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EXHIBIT 10.114
JBW RESTRUCTURING AGREEMENT
This JBW RESTRUCTURING AGREEMENT (this "AGREEMENT"), dated as of June
30, 1997, is among CONCORD GENERAL CORPORATION, a California corporation
("CONCORD"), JBW & CO., INC., a California corporation ("JBW"), CLASSIC FIRE &
MARINE INSURANCE COMPANY, an Indiana insurance corporation ("CLASSIC")
(Concord, JBW and Classic sometimes hereinafter are referred to collectively as
the "JBW PARTIES" and individually as a "JBW PARTY"), ALPINE INSURANCE COMPANY,
an Illinois insurance corporation and successor to Transco Syndicate #1 Ltd.,
an Illinois corporation ("ALPINE"), and TCO HOLDINGS, INC., a Delaware
corporation ("TCO").
R E C I T A L S
A. Concord, JBW and Classic are affiliated through common
controlling ownership by Xxxxxxx X. Xxxxxxxxx- Xxxx ("XXXXXXXXX-XXXX").
X. Xxxxxxxxx-Xxxx, Concord, First Horizon Insurance Company, a
Minnesota corporation ("FHIC"), Xxxxx X. X'Xxxxxxxxxxx ("X'XXXXXXXXXXX"),
Exstar Financial Corporation, a Delaware corporation ("OLD EXSTAR"), and Alpine
entered into that certain Stock Purchase Agreement dated as of December 28,
1989, as amended and supplemented by that certain Amendment No. 1 To Stock
Purchase Agreement dated as of June 22, 1990 among Xxxxxxxxx-Xxxx, Concord,
FHIC, X'Xxxxxxxxxxx, Old Exstar, Alpine, Horizon Insurance Company, Ltd., a
Bermuda company ("HICL"), and Classic Syndicate, Inc., an Illinois corporation
("CS"), that certain Amendment No. 2 To Stock Purchase Agreement dated as of
December 3, 1990 among Xxxxxxxxx-Xxxx, Concord, FHIC, X'Xxxxxxxxxxx, Old
Exstar, Alpine, HICL and CS, that certain Amendment No. 3 To Stock Purchase
Agreement dated as of April 22, 1991 among Xxxxxxxxx-Xxxx, Concord, FHIC,
X'Xxxxxxxxxxx, Old Exstar, Alpine, HICL, CS, Classic, Classic Indemnity
Company, a Minnesota corporation ("CIC"), and Transco Holdings, Inc., a
Delaware corporation ("THI"), that certain Amendment No. 4 To Stock Purchase
Agreement dated as of June 6, 1991 among Xxxxxxxxx-Xxxx, Concord, FHIC,
X'Xxxxxxxxxxx, Old Exstar, Alpine, HICL, CS, Classic, CIC and THI, a related
letter agreement dated August 26, 1992, and that certain Agreement dated May
31, 1993 among Concord, X'Xxxxxxxxxxx and TCO, as amended by that certain
Amendment No. 1 To Agreement dated January 17, 1994 among Concord,
X'Xxxxxxxxxxx and TCO (such Stock Purchase Agreement, as so amended and
supplemented, hereinafter is referred to as the "STOCK PURCHASE AGREEMENT"),
pursuant to which, among other things (i) Alpine acquired certain shares of the
Series A Preferred Stock of Concord (the "CONCORD PREFERRED") and (ii) Concord
and/or its affiliates acquired certain shares of the Series A Preferred Stock
of Old Exstar (the "OLD EXSTAR PREFERRED").
C. On or prior to December 31, 1992, Concord exchanged the Old
Exstar Preferred for 1,075 shares of the Series A Preferred Stock of TCO (the
"TCO PREFERRED"), with a stated value of $10,000 per share and having an annual
dividend rate of 11.3%, payable quarterly.
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D. The TCO Preferred is presently held by Classic in a trust,
known as the "Geneva Trust" (the "GENEVA TRUST"), pursuant to an
Asset/Liability Transfer Reinsurance Agreement dated June 30, 1995 between
Classic and Geneva Assurance Syndicate Inc., an Illinois corporation in
liquidation ("GENEVA").
E. Pursuant to that certain Exchange Agreement dated as of
December 31, 1993 (the "EXCHANGE AGREEMENT") among Concord, Alpine and JBW,
Alpine exchanged the Concord Preferred for 1,100 shares of the Series A
Preferred Stock of JBW (the "JBW PREFERRED"), with a stated value of $10,000
per share and having an annual dividend rate of 11.3%, payable quarterly.
F. Subject to the terms and conditions of that certain Secured
Debt Conversion Agreement dated March 25, 1994 with an effective date of
December 31, 1993 (the "CONVERSION AGREEMENT") among Alpine and the JBW
Parties, Alpine was granted the option (the "CONVERSION OPTION") to convert all
or any portion of the JBW Preferred into indebtedness of JBW in a principal
amount equal to the stated value of the JBW Preferred so converted, such
indebtedness to be secured by a pledge of the common stock of Concord or
Classic.
G. Alpine exercised the Conversion Option on or prior to December
31, 1995. As a result, JBW is indebted to Alpine in an aggregate amount of
approximately $13,600,000, which indebtedness is evidenced by that certain
Secured Promissory Note dated December 31, 1995 (the "JBW NOTE") in the
original principal amount of $12,313,625 made by JBW in favor of Alpine.
H. The JBW Note is secured by a pledge of 4,085,000 shares of the
issued and outstanding capital stock of Classic, representing approximately 81%
of such capital stock, pursuant to the terms and conditions of that certain
Pledge Agreement dated as of December 31, 1995 (the "CLASSIC STOCK PLEDGE
AGREEMENT") among Alpine and the JBW Parties.
I. TCO intends to enter into a Restructuring Agreement with the
liquidator of Geneva (the "TCO RESTRUCTURING AGREEMENT"), pursuant to which
TCO, in exchange for the return of the TCO Preferred to TCO, will execute and
deliver to Geneva a $2,500,000 Promissory Note made by TCO in favor of Geneva.
J. The consummation of the transactions described in the TCO
Restructuring Agreement is subject to the approval of the court overseeing the
liquidation of Geneva, which approval would be granted through an order issued
by such court (the "FINAL ORDER").
K. The JBW Parties have (i) informed Alpine that JBW is not
currently willing to meet its obligations under the JBW Note and (ii) requested
that Alpine accept, in exchange for the JBW Note, an assignment by Concord of
its rights under that certain Promissory Note dated October 19, 1994 in the
outstanding principal amount of $1,820,000 made by Par Mee Development
Corporation, an Ohio corporation ("PAR MEE"), held by Concord, as amended by
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that certain Amendment to Note Secured by Deed of Trust dated December 5, 1996
between Par Mee and Concord (such Promissory Note, as amended through the date
hereof, hereinafter is referred to as the "PAR MEE NOTE"). The Par Mee Note is
secured by that certain Deed of Trust and Rent Assignment dated October 19,
1994 (as amended through the date hereof, the "PAR MEE DEED OF TRUST") made by
Par Mee and recorded in the Recorder's Office of Napa County, California on
October 27, 1994 as Document No. 1994 032227, encumbering certain real estate
located in Napa County, California.
L. In order to induce Alpine to accept the assignment by Concord
of its rights under the Par Mee Note in exchange for the JBW Note, Concord has
agreed to pledge 990,000 shares of the issued and outstanding capital stock of
Classic, representing approximately 19.8% of such capital stock, as security
for the repayment of the Par Mee Note.
M. Alpine is willing to exchange the JBW Note for an assignment
by Concord of its rights under the Par Mee Note and the pledge of the capital
stock of Classic described in Recital L above, subject to the terms and
conditions of this Agreement.
N. TCO is willing to enter into the TCO Restructuring Agreement
and this Agreement in reliance upon the representations and warranties made by
the JBW Parties herein.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto hereby agree
as follows:
1. INCORPORATION OF RECITALS. The Recitals set forth above are
acknowledged by the parties hereto to be true and accurate and by this
reference are incorporated into this Agreement.
2. DEFINITIONS. All capitalized terms used but not elsewhere
defined in this Agreement shall have the following meanings:
AMENDED PLEDGE AGREEMENT shall mean an amendment and
restatement of the Classic Stock Pledge Agreement executed by Concord
in favor of Alpine substantially in the form of EXHIBIT 1 attached
hereto.
CENTRAL NATIONAL RESTRUCTURING shall mean the execution of an
agreement by TCO with Central National Insurance Company, a Nebraska
insurance company in rehabilitation ("Central National"), modifying
the terms of a November 9, 1995 Settlement Agreement between Central
National and TCO (as amended).
EFFECTIVE DATE shall mean the date all conditions set forth in
Paragraph 4 of this Amendment have been satisfied.
ESCROW AGENT shall mean the law firm of Xxxxxx Xxxxxx & Zavis
of Chicago, Illinois.
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PAR MEE ASSIGNMENT shall mean an assignment by Concord in
favor of Alpine of all of Concord's right, title and interest in and
to the Par Mee Note and the Par Mee Deed of Trust substantially in the
form of EXHIBIT 2 attached hereto.
PRIOR AGREEMENTS shall mean the Stock Purchase Agreement, the
Exchange Agreement, the Conversion Agreement, the JBW Note, the
Classic Stock Pledge Agreement and all other agreements, documents and
instruments executed and delivered pursuant to the terms thereof or
otherwise in connection therewith or related thereto, other than the
Restructuring Documents.
RESTRUCTURING DOCUMENTS shall mean this Agreement, the Amended
Pledge Agreement, the Par Mee Assignment, the Par Mee Note, the Par
Mee Deed of Trust, and all other agreements, documents and instruments
executed and delivered pursuant to the terms of this Agreement or the
Par Mee Assignment.
TERMINATION DATE shall mean September 30, 1997.
3. RESTRUCTURING TRANSACTIONS. Subject to the terms and
conditions of this Agreement, on or before the fifth business day following the
Effective Date:
(a) Concord shall execute and deliver to Alpine the Par
Mee Assignment, thereby assigning to Alpine all of Concord's right,
title and interest in and to the Par Mee Note and the Par Mee Deed of
Trust;
(b) Concord shall execute and deliver to Alpine the
Amended Pledge Agreement;
(c) Concord shall deliver to Alpine the original Par Mee
Note and the original recorded Par Mee Deed of Trust;
(d) Concord shall deliver to Alpine an ALTA mortgagee's
policy of title insurance (ALTA Revised 1987 Form) in favor of Alpine
with respect to the real estate covered by the Par Mee Deed of Trust,
issued by a title company and in an amount satisfactory to Alpine,
showing that Par Mee has good and marketable title to such real
estate, insuring that the Par Mee Deed of Trust constitutes a valid
first priority mortgage lien on such real estate subject to no other
liens of equal or greater priority (other than certain liens in the
aggregate amount of not more than $180,000 recorded in favor of Xxxx
X. Xxxxxxx and Xxxxxxx Xxxxxxxxxxxx), insuring over all survey and
other general exceptions contained therein and including such
affirmative endorsements as reasonably may be requested by Alpine;
(e) Concord shall deliver to Alpine original stock
certificates for 990,000 shares of the issued and outstanding common
stock of Classic (representing no less than
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19.8% of the issued and outstanding capital stock of Classic),
accompanied by assignments separate from certificate duly executed in
blank by Concord;
(F) Alpine shall deliver the original JBW Note to
Concord;
(G) Alpine shall deliver to Concord the original stock
certificates representing the shares of common stock of Classic
pledged to Alpine pursuant to the Classic Stock Pledge Agreement;
(H) Each JBW party shall deliver a certificate to Alpine
confirming the satisfaction of the conditions set forth in Paragraph 4
hereof applicable to such JBW Party;
(I) Each of Alpine and TCO shall deliver a certificate to
Concord confirming the satisfaction of the conditions set forth in
Paragraph 4 hereof applicable to Alpine or TCO;
(J) Each JBW Party shall deliver to Alpine such evidence
of such JBW Party's authority to execute and deliver the Restructuring
Documents to be executed and delivered by it as Alpine reasonably may
require, including but not limited to resolutions of the respective
boards of directors of Concord and JBW, certified as true, complete
and correct by the respective secretaries of Concord and JBW; and
(K) Alpine and TCO shall deliver to Concord such
evidence of Alpine's and TCO's authority to execute and deliver the
Restructuring Documents to be executed and delivered by it as Concord
reasonably may require, including but not limited to resolutions of
the respective boards of directors of Alpine and TCO, certified as
true, complete and correct by the respective secretaries of Alpine and
TCO.
The transactions described in this Paragraph 3 hereinafter are referred to as
the "RESTRUCTURING TRANSACTIONS." Each party hereto acknowledges that the
consummation of the Restructuring Transactions will have substantial direct and
indirect benefits to such party and that the commitments of such party under
the Restructuring Documents are made and given at arm's length and in exchange
for fair and reasonable consideration.
Upon the delivery of the documents described above, the party
receiving each such document shall deliver it to the Escrow Agent, to be held
in escrow (the "ESCROW") in accordance with the terms of an escrow agreement
(the "ESCROW AGREEMENT") in a form mutually agreed by the parties and the
Escrow Agent. During the term of the Escrow Agreement, payments required to be
made pursuant to the Par Mee Note shall be made to the Escrow Agent, to be held
pursuant to the terms of the Escrow Agreement. Each document held by the
Escrow Agent shall be delivered to the party entitled to receive it (as
described above) and all payments made pursuant to the Par Mee Note (and any
interest thereon) shall be transferred to Alpine, upon the later of (i) the
expiration of the period during which the Xxxxx
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Order may be appealed pursuant to applicable law, if no appeal of such Final
Order is filed during such period, or (ii) if such an appeal is filed, on the
second business day following the date on which the Final Order is upheld by
the court of appeals. If an appeal of the Final Order is filed, and the Final
Order is overturned on appeal, this Agreement shall be deemed null and void ab
initio, the Escrow Agent shall return each document to the party which
delivered it as described above, all payments made pursuant to the Par Mee Note
(and any interest thereon) shall be returned to Concord, and the parties shall
have no further rights or obligations hereunder.
4. CONDITIONS TO EFFECTIVENESS. The obligations of the parties
hereto to consummate the Restructuring Transactions shall be subject to the
satisfaction of all of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the JBW Parties, Alpine and TCO set forth in the
Restructuring Documents shall be true and correct in all material
respects.
(b) ILLINOIS DEPARTMENT OF INSURANCE APPROVAL. The
approval and/or consent of the Illinois Department of Insurance with
respect to the Restructuring Transactions and the TCO Restructuring
Agreement shall have been obtained.
(c) TCO RESTRUCTURING AGREEMENT. The transactions
contemplated by the TCO Restructuring Agreement shall have been
consummated, or shall be consummated concurrently with the
Restructuring Transactions, in accordance with the terms and
conditions set forth in the TCO Restructuring Agreement.
(d) PAR MEE DUE DILIGENCE. The (i) Par Mee Note and Par
Mee Deed of Trust shall be reasonably satisfactory in form and content
to Alpine and its counsel, (ii) the sum of the outstanding principal
balance of the Par Mee Note and all payments of principal under the
Par Mee Note received by Concord and transferred to the Escrow Agent
pursuant to Section 7 hereof shall not be less than $1,820,000 and no
event of default shall exist thereunder and (iii) real estate
encumbered by the Par Mee Deed of Trust shall be valued at not less
than $3,500,000, as evidenced by an appraisal in form and content and
prepared by an appraiser satisfactory to Alpine.
(e) CLASSIC DUE DILIGENCE. The issued and outstanding
capital stock of Classic subject to the Amended Pledge Agreement shall
have a book value of not less than $2,200,000 based on the most recent
annual or quarterly statutory financial statements of Classic filed
with the Indiana Department of Insurance.
(f) CENTRAL NATIONAL RESTRUCTURING. The Central National
Restructuring shall have been consummated, or shall be consummated
concurrently with the Restructuring Transactions, on terms mutually
acceptable to the parties thereto.
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(g) CONCORD COVENANTS. Concord shall have complied in
all material respects with the covenants set forth in Section 7
hereof.
In the event the court overseeing the liquidator of Geneva disapproves
the petition of the liquidator of Geneva seeking issuance of the Final Order,
or if the Illinois Department of Insurance disapproves the Restructuring
Transactions or any component of the TCO Restructuring Agreement, this
Agreement shall be deemed null and void ab initio, and the parties shall have
no further rights or obligations hereunder.
Notwithstanding anything herein to the contrary, in the event the
conditions to effectiveness described in Section 4 hereof have not been
satisfied or the Escrow described in Section 3 hereof has not been released on
or before the Termination Date, this Agreement shall be deemed null and void ab
initio on the Termination Date, and all payments made and documents delivered
shall be returned to the party which delivered the same, and the parties shall
have no further rights or obligations hereunder.
5. REPRESENTATIONS AND WARRANTIES OF THE JBW PARTIES. The JBW
Parties jointly and severally represent and warrant to Alpine and TCO that each
JBW Party (i) has full power and authority to execute, deliver and perform its
obligations under this Agreement and the other Restructuring Documents, (ii)
upon the execution and delivery hereof and thereof, this Agreement and the
other Restructuring Documents will be valid, binding and enforceable upon each
JBW Party, to the extent such JBW Party is a party thereto, in accordance with
their respective terms, (iii) the execution and delivery of this Agreement and,
subject to the satisfaction of the conditions set forth in Paragraph 4, the
other Restructuring Documents by the JBW Party, and the performance of its
obligations hereunder and thereunder does not and will not conflict with,
violate or constitute a default under any applicable law, rule, regulation,
judgment, decree or order or any agreement, indenture or instrument to which
such JBW Party is a party or is bound or which is binding upon or applicable to
all or any portion of such JBW Party's property, or require notice to, or
approval or consent by, any regulatory agency, court or other governmental body
which has not been given or obtained, (iv) assuming the satisfaction of the
conditions set forth in Paragraph 4, there is no condition, event or
circumstance existing, or any litigation, arbitration, governmental or
administrative proceeding, action, examination, claim or demand pending or, to
the best of such JBW Party's knowledge, threatened, affecting any JBW Party
which could prevent such JBW Party from performing its obligations hereunder or
under any other Restructuring Document within the time limits set forth herein
or therein for such compliance or performance, and no basis for any such matter
exists, (v) no JBW Party or any affiliate thereof, or any person or entity
other than the Geneva Trust and the trustee and beneficiaries thereof, has any
right, title or interest in or to the TCO Preferred, (vi) any and all required
regulatory or court notices and approvals were given and obtained in connection
with all prior transfers of all or any portion of the TCO Preferred, and (vii)
the Indiana Department of Insurance has been informed of the transactions
contemplated by this Agreement, including the pledge by Concord of stock of
Classic, and no other notice to or approval by the Indiana Department of
Insurance is required in connection with such transactions.
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6. REPRESENTATIONS AND WARRANTIES OF ALPINE AND TCO. Alpine and
TCO jointly and severally represent and warrant to the JBW Parties that each of
them (i) has full power and authority to execute, deliver and perform its
obligations under this Agreement and, subject to the satisfaction of the
conditions set forth in Paragraph 4, the other Restructuring Documents, (ii)
upon the execution and delivery hereof and thereof, this Agreement and the
other Restructuring Documents will be valid, binding and enforceable upon
Alpine and TCO, to the extent it is a party thereto, in accordance with their
respective terms, (iii) the execution and delivery of this Agreement and,
subject to the satisfaction of the conditions set forth in Paragraph 4, the
other Restructuring Documents, by Alpine and TCO, and the performance of their
obligations hereunder and thereunder, does not and will not conflict with,
violate or constitute a default under any applicable law, rule, regulation,
judgment, decree or order or any agreement, indenture or instrument to which
Alpine or TCO is a party or is bound or which is binding upon or applicable to
all or any portion of Alpine's property, or require notice to, or approval or
consent by, any regulatory agency, court or other governmental body, except as
referenced in Paragraph 4 hereof, and (iv) assuming the satisfaction of the
conditions set forth in Paragraph 4, there is no condition, event or
circumstance existing, or any litigation, arbitration, governmental or
administrative proceeding, action, examination, claim or demand pending or, to
the best of Alpine's or TCO's knowledge, threatened, affecting Alpine or TCO
which could prevent Alpine or TCO from performing its obligations hereunder or
under any other Restructuring Document within the time limits set forth herein
or therein for such compliance or performance, and no basis for any such matter
exists.
7. COVENANTS OF CONCORD. From and after the execution of this
Agreement, Concord shall not cause or permit the Par Mee Note or the Par Mee
Deed of Trust, or any rights relating thereto, to be transferred, cancelled or
modified in any manner without the prior written consent of Alpine. Any funds
received by Concord or any of its affiliates pursuant to the Par Mee Note after
the execution of this Agreement shall be held by Concord or any such affiliate
as a fiduciary for the benefit of Alpine, and Concord shall cause any and all
such funds to be delivered to the Escrow Agent within two business days
following receipt of the funds by Concord or any of its affiliates, to be held
in accordance with an Escrow Agreement in a form agreed by the parties and the
Escrow Agent. Any such funds shall be released to the party entitled to
receive payments under the Par Mee Note on the terms described in Section 3
hereof.
8. GENERAL RELEASES.
(a) XXXXXXXXX-XXXX AND JBW PARTIES. In consideration of
the consummation of the Restructuring Transactions, from and after the
Effective Date, each JBW Party, Xxxxxxxxx-Xxxx and their affiliates,
and its, his and their respective successors and assigns, irrevocably
shall be deemed to have released and forever discharged Alpine,
X'Xxxxxxxxxxx, TCO and their respective affiliates, subsidiaries,
predecessors, successors, assigns, employees, directors, officers,
agents, servants and attorneys (each, for purposes of this CLAUSE (A),
a "RELEASED PERSON") of and from all damages, losses, claims, demands,
liabilities, obligations, actions and causes of action whatsoever
which Xxxxxxxxx-Xxxx or any such JBW Party or any of its affiliates
may
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now have or claim to have against any Released Person on account of or
in any way touching, concerning, arising out of or founded upon the
Prior Agreements, whether presently known or unknown, and of every
nature and extent whatsoever. This agreement and covenant on the part
of Xxxxxxxxx-Xxxx and the JBW Parties (i) is contractual, and not a
mere recital, and the parties hereto acknowledge and agree that no
liability is admitted on the part of any party in connection with the
Prior Agreements and (ii) shall inure to the benefit of and be
enforceable by each Released Person.
(b) ALPINE, TCO AND X'XXXXXXXXXXX. In consideration of
the consummation of the Restructuring Transactions, from and after the
Effective Date, Alpine, TCO and X'Xxxxxxxxxxx and their affiliates,
and its, his and their respective successors and assigns, each
irrevocably shall be deemed to have released and forever discharged
Xxxxxxxxx-Xxxx and the JBW Parties and their respective affiliates,
predecessors, subsidiaries, successors, assigns, employees, directors,
officers, agents, servants and attorneys (each, for purposes of this
CLAUSE (B), a "RELEASED PERSON") of and from all damages, losses,
claims, demands, liabilities, obligations, actions and causes of
action whatsoever which Alpine, TCO, X'Xxxxxxxxxxx or any of their
affiliates may now have or claim to have against any Released Person
on account of or in any way touching, concerning, arising out of or
founded upon the Prior Agreements, whether presently known or unknown,
of every nature and extent whatsoever. This agreement and covenant on
the part of Alpine, TCO and X'Xxxxxxxxxxx (i) is contractual, and not
a mere recital, and the parties hereto acknowledge and agree that no
liability is admitted on the part of any party in connection with the
Prior Agreements and (ii) shall inure to the benefit of and be
enforceable by each Released Person.
9. COSTS AND EXPENSES. Each party hereto shall bear all of its
own fees and expenses in connection with the preparation, negotiation and
execution of this Agreement and the consummation of the Restructuring
Transactions.
10. FURTHER ASSURANCES; COOPERATION. Prior to the Termination
Date, each party hereto will do, execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged and delivered, all such further acts,
agreements, documents and instruments as reasonably may be requested by any
other party hereto in order to effectuate fully the intent of this Agreement.
Each party hereto agrees to cooperate with the other parties hereto in
obtaining the approvals and consents referred to in Paragraph 4 hereof,
including the execution of such documents, the making of such disclosures, the
furnishing of such financial information and the taking of all such other
actions as reasonably may be necessary to obtain such approvals and consents.
11. SEVERABILITY. If any term or provision of this Agreement or
the application thereof to any party or circumstance shall be held to be
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, the validity, legality and enforceability of the remaining terms
and provisions of this Agreement shall not in any way be affected or impaired
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thereby, and the affected term or provision shall be modified to the minimum
extent permitted by law so as most fully to achieve the intention of this
Agreement.
12. BINDING EFFECT; GOVERNING LAW. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors
and assigns, provided that no party hereto may assign its rights or delegate
its duties hereunder without the prior written consent of all other parties
hereto. This Agreement shall be construed in accordance with the laws of the
State of Illinois without regard to conflicts of law principles.
13. ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the
documents to be executed and delivered pursuant to the terms hereof constitute
the entire agreement among the parties hereto with respect to the Restructuring
Transactions and supersede any other written or oral agreements relating to the
Restructuring Transactions. No provision of this Agreement or the other
Restructuring Documents may be amended, modified or waived except with the
prior written consent of the party against whom enforcement of the applicable
amendment, modification or waiver is sought.
14. CAPTIONS. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe or limit the scope
or intent of this Agreement or any of the provisions hereof.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which, when
taken together, shall constitute one and the same instrument.
16. SUBMISSION. Submission of this Agreement by any party hereto
to any other parties hereto, or their respective counsel, agents or
representatives, for examination and/or execution shall not constitute an offer
by the submitting party to agree to the terms hereof or in any manner bind the
submitting party unless and until this Agreement shall have been fully executed
and delivered by each party hereto.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement at Chicago, Illinois as of the day and year first above written.
CONCORD GENERAL CORPORATION
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CEO
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JBW & CO., INC.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: President
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CLASSIC FIRE & MARINE INSURANCE
COMPANY
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: President
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TCO HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: President
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ALPINE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: President
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With respect to Section 8 hereof only:
_____________________________________
XXXXXXX X. XXXXXXXXX-XXXX,
individually
/s/ Xxxxx X. X'Xxxxxxxxxxx
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XXXXX X. X'XXXXXXXXXXX, individually
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Exhibit 1 - AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "PLEDGE AGREEMENT"),
dated as of June 30, 1997, is among CONCORD GENERAL CORPORATION, a California
corporation ("PLEDGOR"), and ALPINE INSURANCE COMPANY, an Illinois insurance
corporation and successor to Transco Syndicate #1 Ltd., an Illinois corporation
("PLEDGEE").
R E C I T A L S
A. Pledgor, Pledgee and Xxxxxxx X. Xxxxxxxxx-Xxxx
("XXXXXXXXX-XXXX") entered into that certain Pledge Agreement dated as of
December 31, 1995 (the "ORIGINAL PLEDGE AGREEMENT") pursuant to which Pledgor
pledged to Pledgee, as security for the repayment of the JBW Note (as
hereinafter defined), 81% of the issued and outstanding shares of capital stock
of Classic Fire & Marine Insurance Company, an Indiana insurance corporation
wholly owned by Pledgor ("CLASSIC").
B. Pledgor, Pledgee, JBW & Co., Inc., a California corporation,
Classic, and TCO Holdings, Inc., a Delaware corporation ("TCO"), have entered
into that certain JBW Restructuring Agreement of even date herewith (the "JBW
RESTRUCTURING AGREEMENT"). Capitalized terms used but not elsewhere defined
herein shall have the respective meanings ascribed to such terms in the JBW
Restructuring Agreement.
C. Pursuant and subject to the terms and conditions of the JBW
Restructuring Agreement, Pledgee has agreed to exchange the JBW Note for the
Par Mee Assignment.
D. One of the conditions precedent to the obligations of Pledgee
and TCO under the JBW Restructuring Agreement is that Pledgor shall have
executed and delivered this Pledge Agreement to Pledgee.
NOW, THEREFORE, in order to induce Pledgee and TCO to execute and
deliver the JBW Restructuring Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged,
Pledgor, Pledgee and Xxxxxxxxx-Xxxx hereby amend and restate the Original
Pledge Agreement in its entirety as follows:
1. RECITALS; DEFINITIONS. The Recitals set forth above are
acknowledged by the parties hereto to be true and accurate and by this
reference are incorporated into this Pledge Agreement. The following terms
shall have the following meanings in this Pledge Agreement:
Collateral: the Securities and all dividends, distributions,
other amounts, additional securities of Classic or any successor in
interest to Classic and other property to which Pledgor or any
successor in interest to Pledgor (with or without additional
consideration) is or becomes entitled by virtue of the ownership by
such person of any of the Securities or as the result of any Classic
corporate reorganization, merger, consolidation, stock split, stock
dividend, conversion, preemptive right or otherwise, and the proceeds
thereof.
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Event of Default: if (i)(A) the Par Mee Note matures and
remains unpaid or if any breach of or default by Par Mee under the Par
Mee Note or the Par Mee Deed of Trust occurs and the Par Mee Note is
accelerated, and (B) the amounts received by Pledgee (after deduction
of all costs and expenses, including without limitation reasonable
attorneys' fees and expenses, incurred by Pledgee in connection with
its exercise of remedies under the Par Mee Note and the Par Mee Deed
of Trust) within 180 days after Pledgee commences a collection action
or a foreclosure or sale remedy under the Par Mee Note or Par Mee Deed
of Trust does not equal or exceed the Note Amount, or (ii) any breach
or violation by Pledgor of its obligations under this Pledge Agreement
occurs.
Note Amount: the amount of all principal, accrued and unpaid
interest, penalties, charges and fees due under the Par Mee Note at
the earlier of the maturity or acceleration thereof, under the terms
of the Par Mee Note in effect on the date hereof.
Obligations: (i) any and all indebtedness, due or to become
due, now existing or hereafter arising, of Par Mee under the Par Mee
Note and the Par Mee Deed of Trust, (ii) the performance of the
covenants of Par Mee under the Par Mee Note and the Par Mee Deed of
Trust and (iii) the performance of the covenants of Pledgor contained
in this Pledge Agreement.
Securities: the capital stock of Classic and any warrants,
options or other rights to acquire capital stock of Classic described
on Exhibit A attached hereto, and duly executed assignments separate
from certificate satisfactory to Pledgee attached thereto.
2. PLEDGE OF COLLATERAL. To secure the Obligations, Pledgor
hereby pledges, assigns and grants to Pledgee a valid and perfected first lien
in (i) the Securities and (ii) all other items of Collateral now owned or
hereafter acquired by Pledgor. Upon the execution hereof, Pledgee shall return
to Pledgor the certificates representing shares of stock of Classic now held by
Pledgee which are not being pledged hereunder.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. Pledgor hereby
represents, warrants and covenants to Pledgee that (i) the Securities represent
and at all times in the future will represent at least 19.8% of the issued and
outstanding capital stock and warrants, options and other rights to purchase
capital stock of Classic, (ii) Pledgor is the legal and beneficial owner of the
Securities, (iii) the Securities are validly issued, fully paid and
non-assessable and are registered in the name of Pledgor, (iv) none of the
Securities is subject to any lien of any kind whatsoever of equal or greater
priority to the lien on the Securities granted to Pledgee hereby, (v) no
authorization, approval or other action by, or notice to or filing with, any
governmental body or other person which has not already been obtained is
required for the pledge by Pledgor of the Securities pursuant to the terms of
this Pledge Agreement and (vi) until all of the Obligations have been paid and
performed in full, Pledgor: (A) will not create or permit to exist
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any lien upon or with respect to the Collateral of equal or greater priority to
the lien thereon granted to Pledgee by this Pledge Agreement, (B) will not
sell, transfer, convey, assign, or otherwise divest Pledgor's interest in the
Collateral, or any part thereof, to any other person or entity and (C) Pledgor
will not permit Classic to issue any additional capital stock or options,
warrants or other rights to acquire capital stock.
4. STOCK SPLITS, STOCK DIVIDENDS.
4.1 ADDITIONAL SECURITIES. Pledgor agrees that in the
event that Pledgor, by virtue of the ownership by Pledgor of the
Collateral, now is, or hereafter becomes, entitled (with or without
additional consideration) to other or additional securities as the
result of any Classic corporate reorganization, merger, consolidation,
stock split, stock dividend, conversion or preemptive right or
otherwise, Pledgor shall:
4.1.1 DELIVERY. Cause the issuer of such additional
securities to deliver to Pledgee the certificates and other
documents, if any, evidencing the ownership by Pledgor of such
additional securities and hereby authorizes and empowers
Pledgee to demand the same from such issuer, and agrees if
such certificates and other documents are delivered to
Pledgor, to take possession thereof in trust for Pledgee;
4.1.2 ASSIGNMENT SEPARATE FROM CERTIFICATE. Deliver
to Pledgee an assignment separate from certificate with
respect to such securities, executed in blank by Pledgor; and
4.1.3 REPRESENTATIONS AND WARRANTIES. Deliver to
Pledgee a certificate, executed by Pledgor and dated the date
of such pledge, as to the truth and correctness on such date
of the representations and warranties set forth in Section 3
hereof; and
4.1.4 ADDITIONAL DOCUMENTS. Deliver to Pledgee such
other certificates, forms and other instruments as Pledgee
reasonably may request in connection with the pledge of such
additional securities to Pledgee.
4.2 ADDITIONAL COLLATERAL. Pledgor agrees that such
additional securities shall constitute a portion of the Securities and
be subject to this Pledge Agreement in the same manner and to the same
extent as the Securities pledged hereby to Pledgee on the date hereof.
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5. VOTING POWER; DISTRIBUTIONS. Unless and until an Event of
Default shall have occurred, and until the consent of governmental authority or
regulatory agency referred to in Section 6.10 hereof is obtained, Pledgor shall
be entitled to exercise all voting powers in all corporate matters pertaining
to the Collateral or otherwise, for any purpose not inconsistent with, or in
violation of, any of the Restructuring Documents. Unless and until all of the
Obligations have been performed and paid in full, Pledgor shall not be entitled
to receive any dividends or distributions with respect to any portion of the
Collateral. If any such dividends or distributions are received by Pledgor in
violation of the terms of this Section 5, such dividends or distributions shall
be (i) held in trust by Pledgor on behalf of Pledgee, (ii) turned over to
Pledgee by Pledgor immediately upon receipt thereof and (iii) deemed to
constitute a portion of the Collateral pledged by Pledgor to Pledgee hereunder.
6. DEFAULT AND REMEDIES.
6.1 REMEDIES. If an Event of Default shall occur and be
continuing, Pledgee, at its option, may:
6.1.1 REGISTRATION. Subject to Section 6.10 below,
cause the Collateral to be registered in its name or in the
name of its nominee;
6.1.2 VOTING POWER. Subject to Section 6.10 below,
exercise all voting powers pertaining to the Collateral and
otherwise act with respect thereto as though Pledgee were the
owner thereof;
6.1.3 DISTRIBUTIONS. Receive all distributions of
any kind whatsoever on all or any part of the Collateral;
6.1.4 COLLECTION; CONVERSION. Subject to Section
6.10 below, exercise any and all rights of collection,
conversion or exchange, and any and all other rights,
privileges, options or powers of Pledgor pertaining or
relating to the Collateral;
6.1.5 SALE OF COLLATERAL. Subject to Section 6.10
below and to any applicable state or federal securities and
insurance laws, sell, assign and deliver the whole, or from
time to time, any part of the Collateral at any broker's board
or at any private sale or at public auction, with or without
demand for performance or advertisement of the time or place
of sale or adjournment thereof or otherwise, and free from any
right of redemption (all of which hereby expressly are waived
by Pledgor) for cash, for credit or for other property, for
immediate or future delivery, and for such price and on such
terms as Pledgee in its sole discretion may determine; and
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6.1.6 OTHER REMEDIES. Subject to Section 6.10
below, exercise any other remedy specifically granted under
this Pledge Agreement or now or hereafter existing in equity,
or at law, by virtue of statute or otherwise.
With respect to the actions described in each of subsections 6.1.2 and
6.1.4 above, subject to Section 6.10 below, Pledgor hereby irrevocably
constitutes and appoints Pledgee its proxy and attorney-in-fact with
full power of substitution and acknowledges that the constitution and
appointment of such proxy and attorney-in-fact are coupled with an
interest and are irrevocable until all of the Obligations are paid and
performed in full.
6.3 AGREEMENT TO SELL COLLATERAL. For the purposes of
this Section 6, an agreement to sell all or any part of the Collateral
shall be treated as a sale thereof and Pledgee shall be free to carry
out such sale pursuant to such agreement, and Pledgor shall not be
entitled to the return of any of the same subject thereto,
notwithstanding the fact that after Pledgee shall have entered into
such an agreement, all Events of Default may have been remedied or all
of the Obligations may have been paid and performed in full.
6.4 PLEDGEE MAY BID. At any sale made pursuant to
Section 6.1 above, subject to Section 6.10 below, Pledgee may bid for
and purchase, free from any right of equity or redemption on the part
of Pledgor (the same hereby being waived and released by Pledgor), any
part or all of the Collateral that is offered for sale, and Pledgee,
upon compliance with the terms of sale, may hold, retain and dispose
of such Collateral without further accountability therefor.
6.5 PROCEEDS OF SALE. The proceeds of any sale of the
whole or any part of the Collateral and any other monies at the time
held by Pledgee under the provisions of this Pledge Agreement (i)
shall be applied first to the reimbursement to Pledgee of all costs
and expenses, including without limitation reasonable attorneys' fees
and expenses, incurred by Pledgee in connection with its exercise of
remedies under the Par Mee Note and the Par Mee Deed of Trust and this
Pledge Agreement, (ii) then, shall be retained by Pledgee until
Pledgee has received an amount equal to the Note Amount either from
such proceeds or as a result of Pledgee's exercise of remedies under
the Par Mee Note and the Par Mee Deed of Trust and (iii) any remainder
shall be paid over to Pledgor. Once Pledgee has received an amount
equal to the sum of the amounts described in clauses (i) and (ii)
above, Pledgee shall reassign to Pledgor any and all remaining rights
it may have in and to the Par Mee Note and the Par Mee Deed of Trust.
6.6 NO DUTY OF PLEDGEE. Pledgee shall not have any duty
to exercise any of the rights, privileges, options or powers or to
sell or otherwise realize upon any of the Collateral, as hereinbefore
authorized, and Pledgee shall not be responsible for any failure to do
so or delay in so doing.
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6.7 EFFECT OF SALE. Any sale of all or any portion of
the Collateral pursuant to Section 6.1 above shall operate to divest
all right, title and interest of Pledgor to the Collateral which is
the subject of any such sale.
6.8 SECURITIES ACT. Pledgor acknowledges that Pledgee
may be unable to effect a public or other sale of all or a part of the
Collateral by reason of certain prohibitions contained in the
Securities Act of 1933, as amended, or by reason of limitations and
restrictions under applicable state insurance laws, or that Pledgee
may be able to do so only after delay or subject to statutory or
regulatory restrictions which might adversely affect the value that
might be realized upon the sale of the Collateral. Accordingly,
Pledgor agrees that Pledgee, without the necessity of attempting to
cause any registration of the Collateral to be effected under the
Securities Act of 1933, as amended, may sell the Collateral or any
part thereof in one or more private sales to a restricted group of
purchasers who may be required to agree, among other things, that they
are acquiring the Collateral for their own account, for investment
purposes only, and not with a view toward the distribution or resale
thereof. Pledgor agrees that any such private sale may be at prices
or on terms less favorable to the owner of the Collateral sold than
would be the case if such Collateral was sold at public sale or
without statutory or regulatory restrictions, and that any such
private sale shall not be deemed not to have been made in a
commercially reasonable manner by virtue of such sale having been a
private sale.
6.9 NOTICE. Pledgee shall give not less than 10 business
days' prior written notice to Pledgor of any sale pursuant to this
Section 6 at the address of Pledgor set forth on Exhibit B hereto.
Pledgor hereby agrees that such notice is commercially reasonable.
6.10 GOVERNMENTAL AND REGULATORY RESTRICTIONS.
Notwithstanding any of the provisions of this Pledge Agreement to the
contrary, the control over the Securities and any other Collateral
pledged by Pledgor to Pledgee pursuant to the terms of this Pledge
Agreement, and the exercise of all voting rights relating thereto,
shall remain with Pledgor until any required consent of all
governmental authorities and regulatory agencies to the transfer of
such control to Pledgee or its nominees, successors or assigns shall
have been obtained. Pledgor shall cooperate and cause its affiliates
to cooperate in any and all efforts by Pledgee to obtain such
consents.
7. PLEDGEE'S OBLIGATIONS, CUSTODIAL AGREEMENT, PERFORMANCE
RIGHTS, PLEDGE DOES NOT MAKE PLEDGEE A SHAREHOLDER. Pledgee shall not have any
duty to protect, preserve or enforce rights against the Collateral other than a
duty of reasonable custodial care of any such Collateral in its possession, it
being understood that Pledgee shall (i) have no responsibility for (A)
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relating to the Collateral, whether or not
Pledgee has or is deemed to have knowledge of such matters, (B) taking any
necessary steps to preserve rights against any
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parties with respect to the Collateral or (C) making any capital contributions
or other payments on behalf of Pledgor and (ii) not be deemed to be a
shareholder of Classic unless Pledgee purchases or otherwise retains the
applicable portion of the Collateral in connection with a foreclosure.
8. TERMINATION OF PLEDGE AGREEMENT. Upon the payment and
performance in full of all of the Obligations, Pledgee shall deliver to Pledgor
the Collateral in its possession and this Pledge Agreement thereupon shall
terminate.
9. MISCELLANEOUS.
9.1 EXERCISE OF RIGHTS. Pledgor unconditionally agrees that
if an Event of Default has occurred and is continuing, Pledgee may
exercise its rights and remedies hereunder prior to, concurrently
with, or subsequent to the exercise by Pledgee of its rights and
remedies against Par Mee under the Par Mee Note, the Par Mee Deed of
Trust or otherwise. The obligations of Pledgor under this Pledge
Agreement shall be absolute and unconditional and shall remain in full
force and effect without regard to, and shall not be released or
discharged or in any way affected by:
9.1.1 AMENDMENTS. Any amendment or modification of
or supplement to the Par Mee Note or the Par Mee Deed of
Trust;
9.1.2 EXERCISE OR NON-EXERCISE OF RIGHTS. Any
exercise or non-exercise of any right or remedy under the Par
Mee Note or the Par Mee Deed of Trust, or the granting of any
postponements or extensions for time of payment or other
indulgences to Pledgor or any other person, or the settlement
or adjustment of any claim or the release or discharge or
substitution of any person primarily or secondarily liable
with respect to the Par Mee Note or the Par Mee Deed of Trust;
9.1.3 BANKRUPTCY. The institution of any
bankruptcy, insolvency, reorganization, debt arrangement,
readjustment, composition, receivership or liquidation
proceedings by or against Pledgor, Par Mee or any other
person; or
9.1.4 OTHER DEFENSES. Any other circumstance which
otherwise might constitute a defense to, or a discharge of,
Pledgor with respect to the Obligations, other than rights
granted to Pledgor under this Pledge Agreement or the JBW
Restructuring Agreement.
Notwithstanding the foregoing, no amendment to or modification or
extension of the Par Mee Note or Par Mee Deed of Trust agreed to by Par Mee and
Pledgee shall increase the Obligations otherwise secured hereby, nor shall the
Obligations secured hereby with respect to
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19
indebtedness under the Par Mee Note be deemed to exceed any settlement or
compromise amount voluntarily agreed to by Par Mee and Pledgee pursuant to
clause 9.1.2 above.
9.2 RIGHTS CUMULATIVE. Each and every right, remedy and
power granted to Pledgee hereunder shall be cumulative and in addition
to any other right, remedy or power specifically granted herein or now
or hereafter existing in equity, at law, by virtue of statute or
otherwise and may be exercised by Pledgee, from time to time,
concurrently or independently and as often and in such order as
Pledgee may deem expedient. Any failure or delay on the part of
Pledgee in exercising any such right, remedy or power, or abandonment
or discontinuance of steps to enforce the same, shall not operate as a
waiver thereof or affect the right of Pledgee thereafter to exercise
the same, and any single or partial exercise of any such right, remedy
or power shall not preclude any other or further exercise thereof or
the exercise of any other right, remedy or power, and no such failure,
delay, abandonment or single or partial exercise of rights of Pledgee
hereunder shall be deemed to establish a custom or course of dealing
or performance among the parties hereto.
9.3 MODIFICATION. Any modification or waiver of any
provision of this Pledge Agreement, or any consent to any departure by
Pledgor therefrom, shall not be effective in any event unless the same
is in writing and signed by Pledgee and then such modification, waiver
or consent shall be effective only in the specific instance and for
the specific purpose given. Any notice to or demand on any Pledgor in
any event not specifically required of Pledgee hereunder shall not
entitle Pledgor to any other or further notice or demand in the same,
similar or other circumstances unless specifically required hereunder.
9.4 FURTHER ASSURANCES. Pledgor agrees that at any time,
and from time to time, after the execution and delivery of this Pledge
Agreement, Pledgor, upon the request of Pledgee, promptly will execute
and deliver such further documents and do such further acts and things
as Pledgee reasonably may request in order to effect fully the
purposes of this Pledge Agreement and to subject to the security
interest created hereby any Collateral intended by the provisions
hereof to be covered hereby.
9.5 PRESERVATION OF COLLATERAL. Pledgor agrees that it
will warrant, preserve, maintain and defend, at the expense of
Pledgor, the right, title and interest of Pledgee in and to the
Collateral and all right, title and interest represented thereby
against all claims, charges and demands of all persons whomsoever.
9.6 GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE
GOVERNED BY THE LAWS AND DECISIONS OF THE STATE OF ILLINOIS. FOR THE
PURPOSES OF THIS SECTION 9.6, THIS PLEDGE AGREEMENT
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SHALL BE DEEMED TO BE PERFORMED AND MADE IN THE STATE OF ILLINOIS.
9.7 SEVERABILITY. In the event that any provision of
this Pledge Agreement is deemed to be invalid by reason of the
operation of any law or by reason of the interpretation placed thereon
by any governmental body, this Pledge Agreement shall be construed as
not containing such provision and any and all other provisions hereof
which otherwise are lawful and valid shall remain in full force and
effect.
9.8 SUCCESSORS AND ASSIGNS. This Pledge Agreement shall
inure to the benefit of the successors and assigns of Pledgee and
shall be binding upon the successors and assigns of Pledgor.
9.9 COUNTERPARTS. This Pledge Agreement may be executed
in one or more counterparts, each of which shall be deemed to be an
original, but all of which when taken together shall be deemed to be
one and the same instrument.
9.10 NOTATION ON BOOKS. Concurrently with the execution
and delivery hereof, Pledgor shall cause Classic to register in its
corporate books the security interests in and the pledge of the
Collateral effected hereby.
10. GOVERNMENTAL APPROVALS. Any provision herein to the contrary
notwithstanding, no action shall be taken hereunder by Pledgee unless and until
all applicable requirements (if any) of all applicable insurance laws and
regulations have been satisfied fully with respect thereto and Pledgee has
obtained any consents, approvals and authorizations that are required to be
obtained from any governmental authority or regulatory agency in connection
therewith. The parties hereto intend that the powers of Pledgee under this
Pledge Agreement, in all relevant aspects, shall be subject to and governed by
the applicable statutory requirements and rules and regulations of all
governmental authorities and regulatory agencies. Upon and during the
continuation of an Event of Default, Pledgor agrees to take any action that
Pledgee may request in order to obtain and enjoy the full rights and benefits
granted to Pledgee by this Pledge Agreement including, specifically, at
Pledgor's sole cost and expense, the use of Pledgor's best efforts to assist in
obtaining approval by any governmental authority or regulatory agency for any
action or transaction contemplated by this Pledge Agreement that then is
required by law.
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IN WITNESS WHEREOF, Pledgor and Pledgee have caused this Pledge
Agreement to be executed as of the date first above written.
CONCORD GENERAL CORPORATION
By:
-----------------------------------
Name:
----------------------------------
Title:
----------------------------
ALPINE INSURANCE COMPANY
By:
-----------------------------------
Name:
-----------------------------------
Title:
----------------------------
Acknowledged and Consented to:
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx-Xxxx, individually
CLASSIC ACKNOWLEDGMENT
Classic hereby (i) acknowledges receipt of a copy of this Pledge
Agreement, (ii) acknowledges the pledge of 19.8% of the issued and outstanding
capital stock of Classic pursuant to the terms of this Pledge Agreement and
(iii) confirms to Pledgee that the transfer books of Classic indicate that the
Securities are registered in the name of Pledgor and that a pledge of such
Securities has been registered in the name of Pledgee as of the date of this
Pledge Agreement, subject to no adverse claims about which Classic has a duty
to inquire under Section 8-403(4) of the Uniform Commercial Code.
CLASSIC FIRE & MARINE INSURANCE
COMPANY
By:
-----------------------------------
Name:
-----------------------------------
Title:
----------------------------
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22
EXHIBIT 10.114 (1A)
EXHIBIT 1.A
-----------
Description of Securities
-------------------------
Description
Pledgor of Stock
------- -----------
Concord General 990,000 shares of
Corporation, a the Common Stock
California corporation of Classic Fire &
Marine Insurance
Company, an Indiana
insurance company
23
EXHIBIT 1.B
-----------
Address of Pledgor for Notice Purposes
--------------------------------------
Concord General Corporation
0000 X Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
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EXHIBIT 2 - ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (the "Agreement") is made and entered into
effective the 30th day of June, 1997, by and between Alpine Insurance Company,
an Illinois insurance company ("Alpine") and Concord General Corporation, a
California corporation ("Concord"), with respect to the following recitals of
fact:
A. On or about October 19 1997, Par Mee Development Corporation (also
known as Par Mee Development, Inc.) ("Par Mee") as Maker, executed and
delivered to American Canyon Partners, a California general partnership
("ACP") a Note secured by Deed of Trust in the original principal amount of
$3,500,000.00 (the "Note"). A full, true and correct copy of the note is
attached hereto as Exhibit "A", and by this reference incorporated herein as
though fully set forth.
B. The Note was secured by a Deed of Trust and Rent Assignment in favor
of ACP dated October 19, 1994 and recorded in the Official Records of Napa
County, California as Instrument No. 94-032227 on or about October 27, 1994
(the "Deed of Trust"). A full, true and correct copy of the Deed of Trust is
attached hereto as Exhibit "B", and by this reference incorporated herein as
though fully set forth.
C. On or about Xxxxx 0, 0000, XXX executed an Assignment of Deed of Trust
whereby ACP assigned to Concord all of ACP's beneficial interest under the
Deed of Trust together with the Note and all money due and to become due on
the Note with interest, and all rights accrued or to accrue (the "ACP
Assignment"). A full, true and correct copy of the ACP Assignment is attached
hereto as Exhibit "C", and by this reference incorporated herein as though
fully set forth.
D. On or about December 5, 1996, Par Mee and Concord entered into a
written Amendment to Note Secured by Deed of Trust whereby they agreed to
amend the Note (the "Amendment to Note"). A full, true and correct copy of the
Amendment to Note is attached hereto as Exhibit "D", and by this reference
incorporated herein as though fully set forth.
E. Concord wishes to assign to Alpine, and Alpine wishes to accept the
assignment of, the Note, as amended by the Amendment to Note, and the Deed of
Trust.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions set forth herein and for other valuable consideration, receipt of
which is hereby acknowledged, the parties hereto hereby agree as follows:
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1. Incorporation of Recitals
The foregoing recitals are expressly made a part of this Agreement.
2. Assignment by Concord
Concord does hereby sell, assign and transfer to Alpine all of its right,
title and interest in the Note, as amended by the Amendment to Note, including
its right to receive payments of principal, interest, late fees and all other
sums due from Par Mee under the Note as amended by the Amendment to Note. Upon
execution of this Agreement, Concord shall deliver to Alpine the original of
the Note, the Amendment to Note and the Deed of Trust.
3. Acceptance by Alpine
Alpine hereby accepts the assignment made in paragraph 2 above on the
terms and conditions set forth in this Agreement. The Note and Deed of Trust,
and all rights thereunder, are assignable by Alpine.
4. Representations and Warranties
4.1 Concord's Representations and Warranties
Concord represents and warrants to Alpine that:
4.1.1 Concord is a corporation duly organized, validly existing, and in
good standing under the laws of the State of California. Concord has the power
to sell, transfer and assign the Note, as amended by the Amendment to Note,
and the Deed of Trust and to enter into this Agreement. The sale, transfer and
assignment of the Note and the Deed of Trust have been duly authorized by the
necessary corporate action of Concord and constitute the legal, valid and
binding obligations of Concord, enforceable in accordance with the terms of
this Agreement. Concord has obtained any and all necessary consents of third
parties required of it to accomplish such sale, transfer and assignment. The
individual or individuals executing this Agreement and any and all documents
executed pursuant to this Agreement on behalf of Concord are authorized to do
so.
4.1.2 Concord is the true and lawful owner of the Note, as amended by
the Amendment to Note, and the Deed of Trust. Concord has not previously sold,
assigned, transferred, encumbered or hypothecated to any third party any
interest in or to the Note, as amended by the Amendment to Note, or the Deed
of Trust, save and except those interests which are shown on the face of the
Note.
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4.1.3 There is no default or breach existing under the Note, the
Amendment to Note and/or the Deed of Trust and no event that, with notice and
the expiration of any applicable grace or cure period, would constitute such a
default or breach.
4.1.4 There is no valid offset, defense or counterclaim to the
obligations of Par Mee under the Note, the Amendment to Note and/or the Deed
of Trust.
4.1.5 There is no action, suit or proceeding pending or threatened
against or affecting Concord before any court, arbitrator or administrative
body or agency that affects the validity or enforceability of the Note, the
Amendment to Note or the Deed of Trust or that might result in any adverse
change in the value of the Note or the Deed of Trust.
4.1.6 The Note has not been modified or amended except by the Amendment
to Note.
4.1.7 The original Note, Amendment to Note and the Deed of Trust
delivered to Alpine concurrently with the execution of this Agreement are
full, true, correct and genuine.
4.1.8 Since the date of the ACP Assignment, Concord has not received any
payments from Par Mee pursuant to the Note, whether as principal, interest or
otherwise, except those payments that are disclosed in writing to Alpine at
the time of execution of this Agreement.
4.1.9 The total outstanding balance due on the Note as of June 30, 1997,
exclusive of any amount due to Xxxx X. Xxxxxxx and/or Xxxxxxx Xxxxxxxxxxxx, or
their assignees, is $2,141,563.14, representing $1,820,000.00 in principal,
$85,864.11 in accrued and unpaid interest, and $235,699.03 in late fees and
other charges.
4.1.10 Concord was a general partner of ACP. Concord has acquired all of
the other partnership interests in ACP, and ACP has ceased to exist. No person
or entity other than Concord owns any interest in the Note and/or the Deed of
Trust save and except for those interests that are shown on the face of the
Note.
5. Indemnification
Concord shall indemnify, defend and hold Alpine and Alpine's employees,
officers, directors, agents and attorneys free and harmless from and against
any and all losses, liabilities, costs and expenses (including reasonable
attorney's fees), judgments, damages, claims, counterclaims, demands, actions,
settlement amounts or proceedings arising out of or connected with the breach
of any representation or warranty set forth in this Agreement.
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6. Assignment of Deed of Trust
Concurrently with execution of this Agreement, Concord shall execute and
deliver to Alpine an Assignment of Deed of Trust in the form of Exhibit "E"
attached hereto, in recordable form.
7. Estoppel Certificate
Concord shall obtain and deliver to Alpine an Estoppel Certificate from
Par Mee substantially in the form attached hereto as Exhibit "F".
8. Attorney's Fees
If any action or proceeding is brought to construe or enforce any of the
terms or conditions of this Agreement or any of the documents to be executed
pursuant to this Agreement or the rights of the parties thereunder, the
prevailing party in such action or proceeding shall be entitled to recover all
court costs and reasonable attorney's fees incurred by it, including costs and
reasonable attorney's fees incurred in enforcing any judgment obtained by the
prevailing party.
9. Administrative Provisions
9.1 This Agreement shall inure to the benefit of and shall be binding
upon the respective successors and assigns of the parties hereto.
9.2 In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
9.3 This Agreement may be amended or any of its terms modified only by a
written amendment authorized and executed by all parties hereto.
9.4 This Agreement is made in and shall be governed by and construed in
accordance with the laws of the State of California.
DATED:
--------------------------.
CONCORD GENERAL CORPORATION,
a California corporation,
By:
-------------------------------------
Name:
-------------------------------
Title:
-------------------------------
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DATED:
----------------------------------.
ALPINE INSURANCE COMPANY,
an Illinois insurance company,
By:
----------------------------
Name:
-----------------------
Title:
----------------------
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