EXHIBIT 4.11
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT ("Pledge Agreement"), dated March
11, 1999, is by ANVIL KNITWEAR, INC., a Delaware corporation ("Pledgor"), with
its chief executive office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, to
and in favor of CONGRESS FINANCIAL CORPORATION, a Delaware corporation
("Pledgee"), having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
WHEREAS, Pledgor is now the direct and beneficial owner of all of the
issued and outstanding shares of capital stock of Cottontops, Inc., a Delaware
corporation ("Issuer") as described on Exhibit A annexed hereto and made a part
hereof (the "Pledged Securities"); and
WHEREAS, Pledgee and Pledgor have entered into or are about to enter
into financing arrangements pursuant to which Pledgee may make loans and
advances and provide other financial accommodations to Pledgor as set forth in
the Loan and Security Agreement, dated of even date herewith, by and among
Pledgor, Anvil Holdings, Inc., Cottontops, Inc. and Pledgee (as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement"; terms used and not defined herein
shall have the meanings assigned to such terms in the Loan Agreement) and other
agreements, documents and instruments referred to therein or at any time
executed and/or delivered in connection therewith or related thereto, including,
but not limited to, this Pledge Agreement (all of the foregoing, together with
the Loan Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein as the "Financing Agreements"); and
WHEREAS, in order to induce Pledgee to enter into the Loan Agreement
and the other Financing Agreements and to make Loans and provide other financial
accommodations to Pledgor pursuant thereto, Pledgor has agreed to secure the
payment and performance of the Obligations (as hereinafter defined) to Pledgee
and to accomplish same by (i) executing and delivering to Pledgee this Pledge
Agreement, (ii) delivering to Pledgee the Pledged Securities which are
registered in the name of Pledgor, together with appropriate powers duly
executed in blank by Pledgor, and (iii) delivering to Pledgee any and all other
documents which Pledgee deems necessary to protect Pledgee's interests
hereunder;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST
As collateral security for the prompt performance, observance and
indefeasible payment in full of all of the Obligations (as hereinafter defined),
Pledgor hereby assigns, pledges, hypothecates, transfers and sets over to
Pledgee and grants to Pledgee a security interest in and lien upon (a) the
Pledged Securities, together with all cash dividends (subject to Section 3(h)
hereof), stock dividends, interests, profits, redemptions, warrants,
subscription rights, stock, securities options, substitutions, exchanges and
other distributions now or hereafter distributed by Issuer or which may
hereafter be delivered to the possession of Pledgor or Pledgee with respect
thereto, (b) Pledgor's records with respect to the foregoing, and (c) the
proceeds of all of the foregoing (all of the foregoing being collectively
referred to herein as the "Pledged Property").
2. OBLIGATIONS SECURED
The security interest, lien and other interests granted to Pledgee
pursuant to this Pledge Agreement shall secure the prompt performance and
payment in full of any and all obligations, liabilities and indebtedness of
every kind, nature and description owing by Pledgor to Pledgee and/or its
Affiliates, including principal, interest, charges, fees, costs and expenses,
however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, whether arising under this Pledge Agreement, the Loan Agreement, the
other Financing Agreements or otherwise, whether now existing or hereafter
arising, whether arising before, during or after the initial or any renewal term
of the Loan Agreement or after the commencement of any case with respect to
Pledgor under the United States Bankruptcy Code or any similar statute
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the commencement of such case), whether
direct or indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or unsecured, and
however acquired by Pledgee (all of the foregoing being collectively referred to
herein as the "Obligations").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
Pledgor hereby represents, warrants and covenants with and to Pledgee
the following (all of such representations, warranties and covenants being
continuing so long as any of the Obligations are outstanding):
(a) The Pledged Securities are duly authorized, validly issued, fully
paid and non-assessable capital stock of Issuer and constitute Pledgor's entire
interest in Issuer and are not registered, nor has Pledgor authorized the
registration thereof, in the name of any Person or entity other than Pledgor or
Pledgee.
(b) The Pledged Property is directly, legally and beneficially owned by
Pledgor, free and clear of all claims, liens, pledges and encumbrances of any
kind, nature or description, except for the pledge and security interest in
favor of Pledgee and the pledges and security interests permitted under the Loan
Agreement.
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(c) The Pledged Property is not subject to any restrictions relative to
the transfer thereof and Pledgor has the right, subject to applicable law, to
transfer and hypothecate the Pledged Property free and clear of any liens,
encumbrances or restrictions.
(d) The Pledged Property is duly and validly pledged to Pledgee and no
consent or approval of any governmental or regulatory authority or of any
securities exchange or the like, nor any consent or approval of any other third
party, was or is necessary to the validity and enforceability of this Pledge
Agreement.
(e) Pledgor authorizes Pledgee to: (i) store, deposit and safeguard the
Pledged Property, (ii) perform any and all other acts which Pledgee in good
xxxxx xxxxx reasonable and/or necessary for the protection and preservation of
the Pledged Property or its value or Pledgee's security interest therein,
including, without limitation, transferring, registering or arranging for the
transfer or registration of the Pledged Property to or in Pledgee's own name and
receiving the income therefrom as additional security for the Obligations and
(iii) pay any charges or expenses which Pledgee deems necessary for the
foregoing purpose, but without any obligation to do so. Any obligation of
Pledgee for reasonable care for the Pledged Property in Pledgee's possession
shall be limited to the same degree of care which Pledgee uses for similar
property pledged to Pledgee by other Persons.
(f) If Pledgor shall become entitled to receive or acquire, or shall
receive any stock certificate, or option or right with respect to the stock of
Issuer (including without limitation, any certificate representing a dividend or
a distribution or exchange of or in connection with reclassification of the
Pledged Securities) whether as an addition to, in substitution of, or in
exchange for any of the Pledged Property or otherwise, Pledgor agrees to accept
same as Pledgee's agent, to hold same in trust for Pledgee and to deliver same
forthwith to Pledgee or Pledgee's agent or bailee in the form received, with the
endorsement(s) of Pledgor where necessary and/or appropriate powers and/or
assignments duly executed to be held by Pledgee or Pledgee's agent or bailee
subject to the terms hereof, as further security for the Obligations.
(g) Pledgor shall not, without the prior consent of Pledgee, directly
or indirectly, sell, assign, transfer, or otherwise dispose of, or grant any
option with respect to the Pledged Property, nor shall Pledgor create, incur or
permit any further pledge, hypothecation, encumbrance, lien, mortgage or
security interest with respect to the Pledged Property.
(h) So long as no Event of Default (as hereinafter defined) has
occurred and is continuing, Pledgor shall have the right to vote and exercise
all corporate rights with respect to the Pledged Securities, except as expressly
prohibited herein, and to receive any cash dividends payable in respect of the
Pledged Securities.
(i) Pledgor shall not permit Issuer, directly or indirectly, to issue,
sell, grant, assign, transfer or otherwise dispose of, any additional shares of
capital stock of Issuer or any option or warrant with respect to, or other right
or security convertible into, any additional shares of capital stock of Issuer,
now or hereafter authorized, unless all such additional shares, options,
warrants, rights or other such securities are made and shall remain part of the
Pledged Property subject to
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the pledge and security interest granted herein.
(j) Pledgor shall pay all charges and assessments of any nature against
the Pledged Property or with respect thereto prior to said charges and/or
assessments being delinquent.
(k) Pledgor shall promptly reimburse Pledgee on demand, together with
interest at the rate then applicable to the Prime Rate Loans for any charges,
assessments or expenses paid or incurred by Pledgee in its discretion for the
protection, preservation and maintenance of the Pledged Property and the
enforcement of Pledgee's rights hereunder, including, without limitation,
reasonable attorneys' fees and legal expenses incurred by Pledgee in seeking to
protect, collect or enforce its rights in the Pledged Property or otherwise
hereunder.
(l) Pledgee may notify Issuer or the appropriate transfer agent of the
Pledged Securities to register the security interest and pledge granted herein
and honor the rights of Pledgee with respect thereto.
(m) Pledgor waives: (i) all rights to require Pledgee to proceed
against any other person, entity or collateral or to exercise any remedy, (ii)
the defense of the statute of limitations in any action upon any of the
Obligations, (iii) any right of subrogation or interest in the Obligations or
Pledged Property until all Obligations have been paid in full, (iv) any rights
to notice of any kind or nature whatsoever, unless specifically required in this
Pledge Agreement or non-waivable under any applicable law, and (v) to the extent
permissible, its rights under Section 9-112 and 9-207 of the Uniform Commercial
Code. Pledgor agrees that the Pledged Property, other collateral, or any other
guarantor or endorser may be released, substituted or added with respect to the
Obligations, in whole or in part, without releasing or otherwise affecting the
liability of Pledgor, the pledge and security interests granted hereunder, or
this Pledge Agreement. Pledgee is entitled to all of the benefits of a secured
party set forth in Section 9-207 of the New York Uniform Commercial Code.
4. EVENTS OF DEFAULT
All Obligations shall become immediately due and payable, without
notice or demand, at the option of Pledgee, upon the occurrence and continuance
of any Event of Default, as such term is defined in the Loan Agreement (each an
"Event of Default" hereunder).
5. RIGHTS AND REMEDIES
At any time an Event of Default exists or has occurred and is
continuing, in addition to all other rights and remedies of Pledgee, whether
provided under this Pledge Agreement, the Loan Agreement, the other Financing
Agreements, applicable law or otherwise, Pledgee shall have the following rights
and remedies which may be exercised without notice to, or consent by, Pledgor
except as such notice or consent is expressly provided for hereunder or required
by applicable law:
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(a) Pledgee, at its option, shall be empowered to exercise its
continuing right to instruct the Issuer (or the appropriate transfer agent of
the Pledged Securities) to register any or all of the Pledged Securities in the
name of Pledgee or in the name of Pledgee's nominee and Pledgee may complete, in
any manner Pledgee may deem expedient, any and all stock powers, assignments or
other documents heretofore or hereafter executed in blank by Pledgor and
delivered to Pledgee. After said instruction, and without further notice,
Pledgee shall have the exclusive right to exercise all voting and corporate
rights with respect to the Pledged Securities and other Pledged Property, and
exercise any and all rights of conversion, redemption, exchange, subscription or
any other rights, privileges, or options pertaining to any shares of the Pledged
Securities or other Pledged Property as if Pledgee were the absolute owner
thereof, including, without limitation, the right to exchange, in its
discretion, any and all of the Pledged Securities and other Pledged Property
upon any merger, consolidation, reorganization, recapitalization or other
readjustment with respect thereto. Upon the exercise of any such rights,
privileges or options by Pledgee, Pledgee shall have the right to deposit and
deliver any and all of the Pledged Securities and other Pledged Property to any
committee, depository, transfer agent, registrar or other designated agency upon
such terms and conditions as Pledgee may determine, all without liability,
except to account for property actually received by Pledgee. However, subject to
applicable law, Pledgee shall have no duty to exercise any of the aforesaid
rights, privileges or options (all of which are exercisable in the sole
discretion of Pledgee) and shall not be responsible for any failure to do so or
delay in doing so.
(b) In addition to all the rights and remedies of a secured party under
the Uniform Commercial Code or other applicable law, Pledgee shall have the
right, at any time and without demand of performance or other demand,
advertisement or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon Pledgor or any other Person (all
and each of which demands, advertisements and/or notices are hereby expressly
waived to the extent permitted by applicable law), to proceed forthwith to
collect, redeem, recover, receive, appropriate, realize, sell, or otherwise
dispose of and deliver said Pledged Property or any part thereof in one or more
lots at public or private sale or sales at any exchange, broker's board or at
any of Pledgee's offices or elsewhere at such prices and on such terms as
Pledgee may in good xxxxx xxxx best. The foregoing disposition(s) may be for
cash or on credit or for future delivery without assumption of any credit risk,
with Pledgee having the right to purchase all or any part of said Pledged
Property so sold at any such sale or sales, public or private, free of any right
or equity of redemption in Pledgor, which right or equity is hereby expressly
waived or released by Pledgor. The proceeds of any such collection, redemption,
recovery, receipt, appropriation, realization, sale or other disposition, after
deducting all costs and expenses of every kind incurred relative thereto or
incidental to the care, safekeeping or otherwise of any and all Pledged Property
or in any way relating to the rights of Pledgee hereunder, including attorneys'
fees and legal expenses, shall be applied first to the satisfaction of the
Obligations (in such order as Pledgee may elect and whether or not due) and then
to the payment of any other amounts required by applicable law, including
Section 9-504(1)(c) of the Uniform Commercial Code, with Pledgor to be and
remain liable for any deficiency. Pledgor shall be liable to Pledgee for the
payment on demand of all such costs and expenses, together with interest at the
then applicable rate set forth in the Loan Agreement, and any attorneys' fees
and legal expenses. Pledgor agrees that five (5) days prior written notice by
Pledgee designating the place and time of
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any public sale or of the time after which any private sale or other intended
disposition of any or all of the Pledged Property is to be made, is reasonable
notification of such matters.
(c) Pledgor recognizes that Pledgee may be unable to effect a public
sale of all or part of the Pledged Property by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, as now or hereafter in
effect or in applicable Blue Sky or other state securities law, as now or
hereafter in effect, but may be compelled to resort to one or more private sales
to a restricted group of purchasers who will be obliged to agree, among other
things, to acquire such Pledged Property for their own account for investment
and not with a view to the distribution or resale thereof. If at the time of any
sale of the Pledged Property or any part thereof, the same shall not, for any
reason whatsoever, be effectively registered (if required) under the Securities
Act of 1933 (or other applicable Blue Sky or state securities laws), as then in
effect, Pledgee in its sole and absolute discretion is authorized to sell such
Pledged Property or such part thereof, in good faith, by private sale in such
manner and under such circumstances as Pledgee or its counsel may deem necessary
or advisable in order that such sale may legally be effected without
registration. Pledgor agrees that private sales so made may be at prices and
other terms less favorable to the seller than if such Pledged Property were sold
at public sale, and that Pledgee has no obligation to delay the sale of any such
Pledged Property for the period of time necessary to permit Issuer, even if
Issuer would agree, to register such Pledged Property for public sale under such
applicable securities laws. Pledgor agrees that any private sales made under the
foregoing circumstances shall be deemed to have been in a commercially
reasonable manner.
(d) All of the Pledgee's rights and remedies, including, but not
limited to, the foregoing and those otherwise arising under this Pledge
Agreement, the Loan Agreement and the other Financing Agreements, the
instruments comprising the Pledged Property, applicable law or otherwise, shall
be cumulative and not exclusive and shall be enforceable alternatively,
successively or concurrently as Pledgee may deem expedient. No failure or delay
on the part of Pledgee in exercising any of its options, powers or rights or
partial or single exercise thereof, shall constitute a waiver of such option,
power or right.
6. JURY TRIAL WAIVER; OTHER WAIVERS
AND CONSENTS; GOVERNING LAW
(a) The validity, interpretation and enforcement of this Pledge
Agreement and the other Financing Agreements and any dispute arising out of the
relationship between the parties hereto, whether in contract, tort, equity or
otherwise, shall be governed by the internal laws of the State of New York
(without giving effect to principles of conflicts of law).
(b) Pledgor irrevocably consents and submits to the non-exclusive
jurisdiction of the Supreme Court of the State of New York in New York County
and the United States District Court for the Southern District of New York and
waives any objection based on venue or FORUM NON CONVENIENS with respect to any
action instituted therein arising under this Pledge Agreement or any of the
other Financing Agreements or in any way connected with or related or incidental
to the dealings of the parties hereto in respect of this Pledge Agreement or any
of the other Financing Agreements or the transactions related hereto or thereto,
in each case whether now
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existing or hereafter arising, and whether in contract, tort, equity or
otherwise, and agrees that any dispute with respect to any such matters shall be
heard only in the courts described above (except that Pledgee shall have the
right to bring any action or proceeding against Pledgor or its property in the
courts of any other jurisdiction which Pledgee deems necessary or appropriate in
order to realize on the Pledged Property or to otherwise enforce its rights
against Pledgor or its property).
(c) Pledgor hereby waives personal service of any and all process upon
it and consents that all such service of process may be made by certified mail
(return receipt requested) directed to its address set forth herein and service
so made shall be deemed to be completed five (5) days after the same shall have
been so deposited in the U.S. mails, or, at Pledgee's option, by service upon
Pledgor in any other manner provided under the rules of any such courts. Within
thirty (30) days after such service, Pledgor shall appear in answer to such
process, failing which Pledgor shall be deemed in default and judgment may be
entered by Pledgee against Pledgor for the amount of the claim and other relief
requested.
(d) PLEDGOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS PLEDGE AGREEMENT OR ANY
OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF PLEDGOR AND PLEDGEE IN RESPECT OF THIS PLEDGE
AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED
HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. PLEDGOR HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT PLEDGOR OR PLEDGEE MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS PLEDGE AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(e) Pledgee shall not have any liability to Pledgor (whether in tort,
contract, equity or otherwise) for losses suffered by Pledgor in connection
with, arising out of, or in any way related to the transactions or relationships
contemplated by this Pledge Agreement, or any act, omission or event occurring
in connection herewith, unless it is determined by a final and non-appealable
judgment or court order binding on Pledgee, that the losses were the result of
acts or omissions constituting gross negligence or willful misconduct on the
part of, or on behalf of, Pledgee. In any such litigation, Pledgee shall be
entitled to the benefit of the rebuttable presumption that it acted in good
faith and with the exercise of ordinary care in the performance by it of the
terms of this Pledge Agreement.
7. MISCELLANEOUS
(a) Pledgor agrees that at any time and from time to time upon the
written request of Pledgee, Pledgor shall execute and deliver such further
documents, including, but not limited to,
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irrevocable proxies or stock powers, in form reasonably satisfactory to counsel
for Pledgee, and will take or cause to be taken such further acts as Pledgee may
request in order to effect the purposes of this Pledge Agreement and perfect or
continue the perfection of the security interest in the Pledged Property granted
to Pledgee hereunder.
(b) Beyond the exercise of reasonable care to assure the safe custody
of the Pledged Property (whether such custody is exercised by Pledgee, or
Pledgee's nominee, agent or bailee) Pledgee or Pledgee's nominee agent or bailee
shall have no duty or liability to protect or preserve any rights pertaining
thereto and, absent gross negligence or willful misconduct, shall be relieved of
all responsibility for the Pledged Property upon surrendering it to Pledgor or
foreclosure with respect thereto.
(c) All notices, requests and demands hereunder shall be in writing and
(a) made to Pledgor at the address of its chief executive office set forth below
and to Pledgee at its address set forth below, or to such other address as such
party may designate by written notice to the other in accordance with this
provision, and (b) deemed to have been given or made: if delivered in person,
immediately upon delivery; if by telex, telegram or facsimile transmission,
immediately upon sending and upon confirmation of receipt; if by nationally
recognized overnight courier service with instructions to deliver the next
business day, one (1) Business Day after sending; and if by certified mail,
return receipt requested, five (5) days after mailing:
If to Pledgor: Anvil Knitwear, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
If to Pledgee: Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
(d) All references to the plural herein shall also mean the singular
and to the singular shall also mean the plural. All references to Pledgor,
Pledgee and Issuer pursuant to the definitions set forth in the recitals hereto,
or to any other person herein, shall include their respective successors and
assigns. The words "hereof," "herein," "hereunder," "this Pledge Agreement" and
words of similar import when used in this Pledge Agreement shall refer to this
Pledge Agreement as a whole and not any particular provision of this Pledge
Agreement and as this Pledge Agreement now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced. An Event of
Default shall exist or continue or be continuing until such Event of Default is
waived in accordance with Section 7(g) hereof.
(e) This Pledge Agreement, the other Financing Agreements and any other
document referred to herein or therein shall be binding upon Pledgor and its
successors and assigns and inure to the benefit of and be enforceable by Pledgee
and its successors and assigns.
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(f) If any provision of this Pledge Agreement is held to be invalid or
unenforceable, such invalidity or unenforceability shall not invalidate this
Pledge Agreement as a whole, but this Pledge Agreement shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
(g) Neither this Pledge Agreement nor any provision hereof shall be
amended, modified, waived or discharged orally or by course of conduct, but only
by a written agreement signed by an authorized officer of Pledgee. Pledgee shall
not, by any act, delay, omission or otherwise be deemed to have expressly or
impliedly waived any of its rights, powers and/or remedies unless such waiver
shall be in writing and signed by an authorized officer of Pledgee. Any such
waiver shall be enforceable only to the extent specifically set forth therein. A
waiver by Pledgee of any right, power and/or remedy on any one occasion shall
not be construed as a bar to or waiver of any such right, power and/or remedy
which Pledgee would otherwise have on any future occasion, whether similar in
kind or otherwise.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Pledgor has executed this Pledge and Security
Agreement as of the day and year first above written.
ANVIL KNITWEAR, INC.
By:
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Title:
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EXHIBIT A
TO
PLEDGE AND SECURITY AGREEMENT
Issuer Certificate No. Shares
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Cottontops, Inc. 1 100
A-1
