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EXHIBIT 99.g
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Stock Pledge Agreement"),
dated as of November 17, 1995, is made by Xxxxxxx X. Xxxxxx (the "Pledgor"), in
favor of NATIONSBANK, N.A., a national banking association, as agent for the
Lenders (the "Agent"). All capitalized terms used herein and not otherwise
defined shall have the meanings ascribed thereto in the Loan Agreement (as
defined below).
RECITALS
WHEREAS, the Lenders have agreed to make Term Loans and Revolving
Loans (collectively, the "Loans") to the Pledgor in accordance with the terms
and conditions of that certain Loan Agreement among the Pledgor, the Agent and
the Lenders dated as of the date hereof (the "Loan Agreement");
WHEREAS, it is a condition precedent to the Lenders entering into the
Loan Documents that the Pledgor shall have executed and delivered to the
Lenders, among other things, this Stock Pledge Agreement providing for the
pledge to the Agent, for the benefit of the Lenders, of, and the grant to the
Agent, for the benefit of the Lenders, of a security interest in, outstanding
shares of capital stock owned by the Pledgor; and
WHEREAS, the Pledgor reasonably expects to benefit, directly or
indirectly, from its execution and delivery of this Stock Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Lenders to make the Loans under the Loan
Agreement, the Pledgor and the Agent, for the benefit of the Lenders, hereby
agree as follows:
AGREEMENT
SECTION 1. Pledge and Grant of Security Interest. As collateral
security for all of the Pledgor Obligations (as defined in Section 2 hereof),
the Pledgor hereby pledges and assigns to the Agent, for the benefit of the
Lenders, and grants to the Agent, for the benefit of the Lenders, a continuing
security interest in the following (collectively, the "Pledged Collateral"):
(a) Pledged Shares. All of the issued and outstanding shares
of stock set forth on Schedule 1 attached hereto, and all of the
issued and outstanding shares of stock set forth on Schedule 2
attached hereto, together with the certificates representing such
shares, and all options and other rights, contractual or otherwise,
with respect thereto (collectively the "Pledged Shares"),
including the following:
(i) all shares, securities, cash, property or rights
thereto representing a dividend on any of the
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Pledged Shares, or representing a distribution or return of capital
upon or in respect of the Pledged Shares, or resulting from a stock
split, revision, reclassification or other exchange therefor, and any
subscriptions, warrants, rights or options issued to the holder of, or
otherwise in respect of, the Pledged Shares; and
(ii) without affecting the obligations of the Pledgor under
any provision prohibiting such action hereunder, in the event
of any consolidation or merger in which Fruit of the Loom,
Inc. or Xxxxxx, Inc. is not the surviving corporation, all
shares and other rights of each class of the capital stock of
the successor corporation formed by or resulting from such
consolidation or merger.
(b) Proceeds. All proceeds and products of the Pledged
Collateral, however and whenever acquired and in whatever form.
Without limiting the generality of the foregoing, it is hereby
specifically understood and agreed that the Pledgor may from time to time
hereafter deliver additional shares of stock to the Agent as collateral
security for the Pledgor Obligations. Upon delivery to the Agent, such
additional shares of stock shall be deemed to be part of the Pledged Collateral
and shall be subject to the terms of this Stock Pledge Agreement whether or not
Schedule 1 or Schedule 2 is amended to refer to such additional shares.
SECTION 2. Security for Obligations. The security interest created
hereby in the Pledged Collateral constitutes continuing collateral security for
all of the following obligations, whether now existing or hereafter incurred
(the "Pledgor Obligations"):
(a) Payment. The prompt payment by the Pledgor, as and when
due and payable, of the Obligations under the Loan Agreement and the
other Loan Documents and all other amounts owing from time to time
by the Pledgor to the Agent or any Lender under the Loan Documents;
(b) Performance by the Pledgor. The due performance and
observance by the Pledgor of his obligations under this Stock Pledge
Agreement; and
(c) Other. All other obligations and liabilities of the
Pledgor to any Lender or the Agent whether now existing or hereafter
arising under the Loan Documents.
SECTION 3. Delivery of the Pledged Collateral.
(a) Delivery of Certificates. All certificates representing the
Pledged Shares set forth on Schedule 1 attached hereto shall be
delivered to the Agent simultaneously with or prior to the execution
and delivery of this Stock Pledge Agreement. All certificates
representing the Pledged
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Shares set forth on Schedule 2 attached hereto shall be delivered to the
Agent concurrently with their release by NatWest, UAW or NationsBank,
N.A., as applicable. All other certificates and instruments constituting
Pledged Collateral shall be delivered to the Agent promptly upon the
receipt thereof by or on behalf of the Pledgor. Prior to delivery to the
Agent, all such certificates and instruments shall be held by the
Borrower on behalf of the Lenders pursuant hereto. All such certificates
shall be delivered in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance satisfactory to the Agent.
(b) Additional Securities. If the Pledgor shall receive by virtue of
his being or having been the owner of any Pledged Collateral, any (i)
stock certificate, including without limitation, any certificate
representing a stock dividend or distribution in connection with any
increase or reduction of capital, reclassification, merger, consolidation,
sale of assets, combination of shares, stock splits, spin-off or
split-off, promissory notes or other instrument; (ii) option or right,
whether as an addition to, substitution for, or an exchange for, any
Pledged Collateral or otherwise; (iii) dividends payable in securities; or
(iv) distributions of securities in connection with a partial or total
liquidation, dissolution or reduction of capital, capital surplus or
paid-in surplus, then the Pledgor shall receive such stock certificate,
instrument, option, right or distribution in trust for the benefit of the
Lenders, shall segregate it from the Pledgor's other property and shall
deliver it forthwith to the Agent in the exact form received together with
any necessary endorsement and/or appropriate stock power duly executed in
blank, to be held by the Agent as Pledged Collateral and as further
collateral security for the Obligations.
(c) Financing Statements. The Pledgor shall execute and deliver to
the Agent such UCC financing statements as reasonably requested by the
Agent.
SECTION 4. Pledgor's Representations and Warranties. The Pledgor
represents and warrants the following:
(a) Authorization of Pledged Shares. The Pledged Shares are duly
authorized and validly issued, are fully paid and nonassessable and are
not subject to the preemptive rights of others. All other shares of stock
constituting Pledged Collateral will be duly authorized and validly
issued, fully paid and nonassessable and not subject to the preemptive
rights of any person.
(b) Title. Other than the Pledged Shares set forth on Schedule 2
attached hereto, which are encumbered as noted on such schedule, the
Pledgor has good and indefeasible title to the Pledged Collateral and will
at all times be the sole legal
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and beneficial owner of the Pledged Collateral free and clear of any Lien
except for the security interest created by this Stock Pledge Agreement
and except as described on Schedule 2.
(c) Exercising of Rights. The exercise by the Agent or any Lender of
its rights and remedies hereunder will not contravene any law or
governmental regulation or any contractual restriction binding on or
affecting the Pledgor or any of its property.
(d) Pledgor's Authority. No authorization, approval or action by, and
no notice or filing with any Governmental Authority or with the issuer of
the Pledged Stock is required either (i) for the pledge made by the
Pledgor or for the granting of the security interest by the Pledgor
pursuant to this Stock Pledge Agreement; or (ii) for the exercise by the
Agent or any Lender of its rights and remedies hereunder (except as may be
required by laws affecting the offering and sale of securities).
(e) Valid Security Interest. This Stock Pledge Agreement creates a
valid security interest in favor of the Lenders in the Pledged Collateral.
The taking possession by the Agent of the certificates representing the
Pledged Shares and all other certificates and instruments constituting
Pledged Collateral and, with respect to the portion of the Pledged
Collateral that consists of dividends, the filing of Uniform Commercial
Code financing statements in the appropriate jurisdictions, will perfect
and establish the first priority of the Lenders' security interest in the
Pledged Shares and in all other Pledged Collateral represented by such
certificates and instruments securing the Pledgor Obligations. Except as
set forth in this Section 4(e), no action is necessary to perfect or
otherwise protect such security interest.
(g) Litigation. No litigation or governmental proceeding is pending
or threatened against the Pledgor or any of his assets which if adversely
determined would have a material adverse effect on the Pledged Collateral
or the Pledgor's performance under this Stock Pledge Agreement or any
other Loan Document.
(h) Date of Acquisition. The Pledged Shares were acquired by the
Borrower on the dates set forth on Schedule 1 and Schedule 2 attached
hereto.
SECTION 5. Covenants as to the Pledged Collateral. So long as any of
the Pledgor Obligations shall remain outstanding, the Pledgor shall, unless the
Lenders shall otherwise consent in writing, do the following:
(a) Notices. The Pledgor shall promptly notify the Agent of (i) any
Lien or claim made or threatened against the Pledged Collateral; and (ii)
the occurrence or existence of
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any Event of Default, (as defined hereunder) or the occurrence or
existence of any condition or event that, with the giving of notice of
lapse of time or both, would be an Event of Default.
(b) Copies of Notices. The Pledgor shall, at his expense, promptly
deliver to the Agent (i) a copy of each notice or other communication
received by him that is likely to affect in any material respect the
Lenders' security interest in the Pledged Collateral or the value of the
Pledged Collateral and (ii) any and all reports and other information
received by the Pledgor as owner of the Pledged Collateral, including,
without limitation, any annual or quarterly reports, whether on Form 10-Q,
Form 10-K or otherwise, which information set forth in such notice, report
or other information described in clauses (i) and (ii) above is not
otherwise received by the Agent from the Pledgor or any affiliates of the
Pledgor.
(c) Defense of Title. The Pledgor shall, at his expense, warrant and
defend title to and ownership of the Pledged Collateral and the security
interest created hereby against the claims of all persons, and the Pledgor
will maintain and preserve such security interest at all times as
contemplated by this Stock Pledge Agreement and the Loan Agreement.
(d) Further Assurances. The Pledgor shall, at his expense, promptly
execute and deliver all further instruments and documents and take all
further action that may be necessary, desirable or that the Agent or any
Lender may reasonably request in order to (i) perfect and protect the
security interests created hereby; (ii) enable the Lenders to exercise and
enforce their rights and remedies hereunder in respect of the Pledged
Collateral, including, if necessary, completing and forwarding a Form 144
to the United States Securities and Exchange Commission; and (iii)
otherwise effect the purposes of this Stock Pledge Agreement, including,
without limitation and if requested by the Agent or any Lender, delivering
to the Agent irrevocable proxies in respect of the Pledged Collateral.
(e) Sale of Pledged Collateral. The Pledgor shall not sell, assign,
exchange or otherwise dispose of any of the Pledged Collateral or any
interest therein.
(f) Encumbrances. The Pledgor shall not create or allow to exist any
Lien upon or with respect to any of the Pledged Collateral except for (i)
the pledge hereunder and the security interest created hereby and (ii)
those encumbrances noted on Schedule 2 attached hereto.
(g) Amendments. The Pledgor shall not make or consent to any
amendment or other modification or waiver with respect to the Articles of
Incorporation of an issuer of the Pledged
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Shares if such amendment, modification or waiver would affect any of the
Pledged Collateral or enter into any agreement or allow to exist any
restriction with respect to any of the Pledged Collateral other than
pursuant hereto.
(h) Actions. The Pledgor shall not take or fail to take any action
that would impair in any material respect the value of or the
enforceability of the Lenders' security interest in any of the Pledged
Collateral.
(i) Compliance with Securities Laws. The Pledgor shall file or cause
to be filed all reports and other information now or hereafter required to
be filed with the United States Securities and Exchange Commission and any
other state or federal agency in connection with his ownership of the
Pledged Collateral.
SECTION 6. Rights of the Agent.
(a) Power of Attorney. The Pledgor hereby irrevocably appoints the
Agent and any officer or agent thereof the Pledgor's attorney-in-fact and
proxy, with full power of substitution for and on behalf and in the name
of the Pledgor or otherwise, during the existence and continuation of an
Event of Default (as defined herein), in the Agent's discretion, to take
any action and to execute any instrument which the Agent may deem
necessary or advisable to accomplish the purpose of this Stock Pledge
Agreement, and, without limiting the generality of the foregoing, hereby
gives the Agent the power and right on behalf of the Pledgor and in its
own name to do any of the following, without notice to or consent of the
Pledgor:
(i) to demand, xxx for, collect or receive in the name of Agent
or the Lenders, any money or property at any time payable or
receivable on account of, or in exchange for, any of the Pledged
Collateral and, in connection therewith, endorse checks, notes,
drafts, acceptances, money orders, or any other instruments for the
payment of money under the Pledged Collateral;
(ii) to pay or discharge taxes, liens, security interests, or
other encumbrances levied or placed on or threatened against the
Pledged Collateral;
(iii) to direct any parties liable for any payment under any of
the Pledged Collateral to make payment of any and all monies due and
to become due thereunder directly to the Agent or as the Agent shall
direct;
(iv) to receive payment of and receipt for any and all monies,
claims, and other amounts due and to become due at any time in
respect of or arising out of any Pledged Collateral;
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(v) to sign and endorse any drafts, assignments, proxies, stock
powers, verifications, notices and other documents relating to the
Pledged Collateral;
(vi) to commence and prosecute any suit, actions or proceedings
at law or in equity in any court of competent jurisdiction to collect
the Pledged Collateral or any part thereof and to enforce any other
right in respect of any of the Pledged Collateral;
(vii) to defend any suit, action or proceeding brought
against the Pledgor with respect to any of the Pledged Collateral;
(viii) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Agent may deem appropriate; and
(ix) to exchange any of the Pledged Collateral or other property
upon any merger, consolidation, reorganization, recapitalization or
other readjustment of the issuer thereof and in connection therewith,
deposit any of the Pledged Collateral with any committee, depository,
transfer agent, registrar or other designated agency upon such terms
as the Agent may determine.
This power of attorney is a power coupled with an interest and shall be
irrevocable. The Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to the Agent in this Stock Pledge Agreement, and shall not
be liable for any failure to do so or any delay in doing so. The Agent shall
not be liable for any act or omission or for any error of judgment or any
mistake of fact or law in its individual capacity or its capacity as
attorney-in-fact except acts or omissions resulting from its gross negligence
or willful misconduct. This power of attorney is conferred on the Agent solely
to protect, preserve and realize upon its security interest in the Pledged
Collateral.
(b) Performance by the Agent of the Pledgor's Obligations. If the
Pledgor fails to perform any agreement or obligation contained herein
within a reasonable period of time after request therefor by the Agent,
the Agent itself may perform, or cause performance of, such agreement or
obligation, and the reasonable expenses of the Agent incurred in
connection therewith shall be payable by the Pledgor pursuant to Section 9
hereof.
(c) Assignment by the Agent. The Agent may from time to time assign
the Pledgor Obligations and any portion thereof and/or the Pledged
Collateral and any portion thereof, and the assignee shall be entitled to
all of the rights and remedies of the Agent under this Stock Pledge
Agreement in relation thereto. Provided no Event of Default exists at the
time of
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such assignment, no such assignment shall be deemed to be effective unless
the Pledgor shall have consented thereto. Whether or not an Event of
Default exists at the time of such assignment, the Agent shall notify the
Pledgor thereof promptly upon consummation of such assignment.
(d) The Agent's Duty of Care. Other than the exercise of reasonable
care to assure the safe custody of the Pledged Collateral while being held
by the Agent hereunder, the Agent shall have no duty or liability to
preserve rights pertaining thereto, it being understood and agreed that
the Pledgor shall be responsible for preservation of all rights in the
Pledged Collateral, and the Agent shall be relieved of all responsibility
for the Pledged Collateral upon surrendering it or tendering the surrender
of it to the Pledgor. The Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral
in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which the Agent accords its own property, it
being understood that the Agent shall not have responsibility for (i)
ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relating to any Pledged
Collateral, whether or not the Agent has or is deemed to have knowledge of
such matters; or (ii) taking any necessary steps to preserve rights
against any parties with respect to any Pledged Collateral.
(e) Voting Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default (as defined herein) shall
have occurred and be continuing, the Pledgor may exercise any and all
voting and other consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose not inconsistent with
the terms of this Stock Pledge Agreement or the Loan Agreement;
(ii) Upon the occurrence and during the continuance of an Event
of Default, all rights of the Pledgor to exercise the voting and
other consensual rights which it would otherwise be entitled to
exercise pursuant to paragraph (i) of this Section shall cease and
all such rights shall thereupon become vested in the Agent which
shall thereupon have the sole right to exercise such voting and other
consensual rights.
(f) Dividend Rights in Respect of the Pledged Collateral.
(i) So long as no Event of Default shall have occurred and be
continuing, the Pledgor may receive and retain any and all dividends
or interest paid in respect of the Pledged Collateral.
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(ii) Upon the occurrence and during the continuance of
an Event of Default:
(A) all rights of the Pledgor to receive the dividends and
interest payments which it would otherwise be authorized to
receive and retain pursuant to paragraph (i) of this Section
shall cease and all such rights shall thereupon be vested in the
Agent which shall thereupon have the sole right to receive and
hold as Pledged Collateral such dividends and interest payments;
and
(B) all dividends and interest payments which are received
by the Pledgor contrary to the provisions of subparagraph (A) of
this Section shall be received in trust for the benefit of the
Lenders, shall be segregated from other property or funds of the
Pledgor, and shall be forthwith paid over to the Agent as
Pledged Collateral in the exact form received, to be held by the
Agent as Pledged Collateral and as further collateral security
for the Pledgor Obligations.
(g) Release of Collateral. The Agent may release any of the Pledged
Collateral from this Stock Pledge Agreement or may substitute any of the
Pledged Collateral for other Pledged Collateral without altering, varying
or diminishing in any way the force, effect, lien, pledge or security
interest of this Stock Pledge Agreement as to the Pledged Collateral not
expressly released or substituted, and this Stock Pledge Agreement shall
continue as a first priority lien, security interest, pledge and charge on
all Pledged Collateral not expressly released or substituted when any of
the Pledgor Obligations remain outstanding with respect to the Lenders.
SECTION 7. Events of Default.
The occurrence of an Event of Default under the Loan Agreement shall
constitute an Even of Default hereunder.
SECTION 8. Remedies Upon Default.
If any Event of Default shall have occurred and be continuing:
(a) Rights and Remedies. The Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all rights and remedies of a secured
party on default under the Uniform Commercial Code then in effect in the
State of North Carolina or any other applicable law.
(b) Sale of Pledged Collateral. Without limiting the generality of
this Section and without notice, except as
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specified below, the Agent may, in its sole discretion, but subject
to applicable securities laws, sell or otherwise dispose of or
realize upon the Pledged Collateral, or any part thereof, in one or
more parcels, at public or private sale, at any exchange or broker's
board or elsewhere, at such price or prices and on such other terms
as the Agent may deem commercially reasonable, for cash, credit or
for future delivery or otherwise in accordance with applicable law.
The Agent or any Lender may, in such event, bid for the purchase of
such securities. The Pledgor agrees that, to the extent notice of
sale shall be required by law, at least 10 days notice to the Pledgor
of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification.
The Agent shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. The Agent
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was
so adjourned.
(c) Private Sale. The Pledgor recognizes that the Agent or the
Lenders may deem it impracticable to effect a public sale of all or
any part of the Pledged Shares or any of the securities constituting
Pledged Collateral and that the Agent may, therefore, determine to
make one or more private sales of any such securities to a restricted
group of purchasers who will be obligated to agree, among other
things, to acquire such securities for their own account, for
investment and not with a view to the distribution or resale thereof.
The Pledgor acknowledges that any such private sale may be at prices
and on terms less favorable to the Pledgor than the prices and other
terms which might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sale shall be
deemed to have been made in a commercially reasonable manner and that
the Agent shall have no obligation to delay sale of any such
securities for the period of time necessary to permit the issuer of
such securities to register such securities for public sale under the
Securities Act. The Pledgor further acknowledges and agrees that any
offer to sell such securities which has been (i) publicly advertised
on a bona fide basis in a newspaper or other publication of general
circulation in the financial community of Chicago, Illinois (to the
extent that such offer may be advertised without prior registration
under the Securities Act), or (ii) made privately in the manner
described above shall be deemed to involve a "public sale" under the
Uniform Commercial Code as then in effect in the State of North
Carolina, notwithstanding that such sale may not constitute a "public
offering" under the Securities Act, and the Agent or any Lender may,
in such event, bid for the purchase of such securities.
(d) Retention of Pledged Collateral. The Agent, for the
benefit of the Lenders, may, after providing the notices
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required by Section 9.505 of the Uniform Commercial Code in effect in
the State of North Carolina or otherwise complying with the
requirements of applicable law of the relevant jurisdiction, retain
the Pledged Collateral in satisfaction of the Pledgor Obligations.
Unless and until the Agent shall have provided such notices, however,
the Agent shall not be deemed to have retained any Pledged Collateral
in satisfaction of any Pledgor Obligations for any reason.
(e) Application of Proceeds. All cash proceeds received by the
Agent or any Lender in respect to any sale, collection from, or other
realization upon, all or any part of the Pledged Collateral shall be
applied in the order set forth in Section 3.7 of the Loan Agreement,
and the Pledgor irrevocably waives the right to direct the
application of such payments and proceeds and acknowledges and agrees
that the Agent shall have the continuing and exclusive right to apply
and reapply any and all such payments and proceeds in the Agent's
sole discretion, notwithstanding any entry to the contrary upon any
of its books and records.
(f) Deficiency. In the event that the proceeds of any sale,
collection or realization are insufficient to pay all amounts to
which the Agent or any Lender is legally entitled, the Pledgor shall
be liable for the deficiency, together with interest thereon at the
highest rate specified in the Loan Agreement for interest on overdue
principal thereof or such other rate as shall be fixed by applicable
law, together with the costs of collection and the reasonable fees of
any attorneys employed by the Agent or such Lender to collect such
deficiency.
SECTION 9. Indemnity and Expenses.
(a) Indemnity. The Pledgor agrees to indemnify the Agent and the
Lenders from and against any and all claims, losses and liabilities
growing out of or resulting from this Stock Pledge Agreement,
including without limitation, enforcement of this Stock Pledge
Agreement, except claims, losses and liabilities resulting from the
Agent's or a Lender's gross negligence or willful misconduct, as
determined by a court of appropriate jurisdiction in a final judgment
not subject to appeal or review.
(b) Payment. The Pledgor will, upon demand, pay to the Agent the
amount of any and all costs and expenses, including the reasonable
fees and disbursements of the Agent's counsel, and of any experts and
agents, which the Agent may incur in connection with (i) the
administration of this Stock Pledge Agreement; (ii) the custody, use
or operation of, or the sale of, collection from, or other
realization upon any Pledged Collateral; (iii) the exercise or
enforcement of any of the rights of the Agent or the Lenders
hereunder; or (iv) the failure by the Pledgor to perform or observe
any of the provisions hereof, except expenses resulting from the
Agent's
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gross negligence or willful misconduct, as determined by a court of
appropriate jurisdiction in a final judgement not subject to appeal
or review.
SECTION 10. Notices.
All notices and other communications provided for hereunder shall be
deemed effective if in writing and delivered in conformance with Section 9.1 of
the Loan Agreement.
SECTION 11. Miscellaneous.
(a) Amendments; Continuation of Security Interests. No
amendment of any provision of this Stock Pledge Agreement shall be
effective unless it is in writing and signed by the Pledgor and the
Agent, and no waiver of any provision of this Stock Pledge Agreement,
and no consent to any departure by the Pledgor therefrom, shall be
effective unless it is in writing and signed by the Agent, and then
such waiver or consent will be effective only in the instance and for
the specific purpose for which given.
(b) No Waivers; Cumulative Remedies. No failure on the part of
the Agent to exercise, and no delay in exercising any right hereunder
or under the Loan Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right.
The rights and remedies of the Agent and the Lenders in this Agreement
and in the Loan Agreement are cumulative and are in addition to, and
not exclusive of, any rights or remedies provided by law.
(c) Severability. Any provision of this Stock Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
invalidity without invalidating the remaining portions hereof or
thereof or effecting the validity or enforceability of such provision
in any other jurisdiction.
(d) Agreement in Full Force; Successors and Assigns. This Stock
Pledge Agreement shall create a continuing security interest in the
Pledged Collateral and shall (i) remain in full force and effect until
payment in full or release of the Pledgor Obligations; and (ii) be
binding on the Pledgor and permitted assigns and shall inure, together
with all rights and remedies of the Agent and the Lenders hereunder to
the benefit of the Agent and the Lenders and their successors,
transferees and assigns. Without limiting the generality of the
foregoing, but subject to the last two sentences of Section 6(c)
hereof, the Agent or any Lender may assign or otherwise transfer their
rights and/or duties under this Stock Pledge Agreement to any other
person, and such other person shall thereupon become vested with all
of the benefits and respect thereof granted to the Agent or the Lender
herein or
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otherwise. None of the rights or obligations of the Pledgor hereunder may
be assigned or otherwise transferred without prior written consent of the
Agent and the Lenders.
(e) Satisfaction of Obligations. Upon the satisfaction in full of the
Pledgor Obligations, this Stock Pledge Agreement (and the security
interest created hereby) shall terminate and all rights to the Pledged
Collateral shall revert to the Pledgor. The Agent shall, upon the
Pledgor's request and at the Pledgor's expense (i) return to the Pledgor
such of the Pledged Collateral as shall not have been sold or otherwise
disposed of or applied pursuant to the terms hereof; and (ii) execute and
deliver to the Pledgor such documents as the Pledgor shall reasonably
request to evidence such termination.
(f) Headings. The headings, captions and agreements used in this
Stock Pledge Agreement are for convenience only and shall not affect the
interpretation of this Stock Pledge Agreement.
(g) Obligations Absolute. The obligations of the Pledgor under this
Stock Pledge Agreement shall be absolute and unconditional and shall not
be released, discharged, reduced or in any way impaired by any
circumstance whatsoever, including without limitation, any amendment,
modification, extension or renewal of this Stock Pledge Agreement, the
Pledgor Obligations, any document or instrument evidencing, securing or
otherwise relating to the Pledgor Obligations, any release, subordination
or impairment of the Pledged Collateral, any waiver, consent, extension,
indulgence, compromise, settlement or other action or inaction in respect
of this Stock Pledge Agreement, the Pledgor Obligations, the pledged
Collateral or any document or instrument evidencing, securing, or
otherwise relating to the Pledgor Obligations, or any exercise or failure
to exercise any right, remedy, power or privilege in respect to the
Pledgor Obligations.
(h) Governing Law; Venue.
(i) THIS STOCK PLEDGE AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA. Any legal action or proceeding with respect to this Stock
Pledge Agreement may be brought in the courts of the State of North
Carolina in Mecklenburg County, or of the United States for the
Western District of North Carolina, and, by execution and delivery of
this Stock Pledge Agreement, the Pledgor hereby irrevocably accepts
for himself and in respect of his property, generally and
unconditionally, the jurisdiction of such courts. The Pledgor further
irrevocably consents to the service of process out of any the
aforementioned courts in any such action or proceeding by the mailing
of copies thereof by registered
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14
or certified mail, postage prepaid, to his address for notices
pursuant to Section 9.1 of the Loan Agreement, such service to become
effective thirty (30) days after such mailing. Nothing herein shall
affect the right of the Agent to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise
proceed against the Pledgor in any other jurisdiction.
(ii) The Pledgor hereby irrevocably waives any objection which
he may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Stock Pledge Agreement brought in the courts referred to in
subsection (i) hereof and hereby irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum.
(i) Waiver of Jury Trial. EACH OF THE PARTIES TO THIS STOCK PLEDGE
AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS STOCK PLEDGE
AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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15
Schedule 1
Certificate Number of
Name of Shares Numbers Date Acquired Shares
-------------- ----------- ------------- -------
Fruit of the Loom, Inc. B106 02/11/88 245,012
Class B Common Stock B111 02/11/88 160,000
B130 12/30/92 800,000
B134 12/30/92 84,200
B135 02/11/88 250,000
B140 02/11/88 476,080
B141 02/11/88 500,000
B146 02/11/88 7,689
B148 02/11/88 17,000
B151 02/11/88 75,000
B152 02/11/88 10,000
B154 02/11/88 81,220
B170 12/30/92 17,553
B176 12/30/92 ---
Total 2,745,201
=========
Xxxxxx, Inc. 14 7/7/93 18,749
Total 18,749
======
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16
The Pledgor has caused this Stock Pledge Agreement to be duly
executed and delivered, as of the date first above written.
/s/ Xxxxxxx X. Xxxxxx
_____________________
XXXXXXX X. XXXXXX
Accepted as of the date
first above written.
NATIONSBANK, N.A., as Agent
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Name: XXXXXX X. XXXXX
---------------------
Title: Vice President
--------------------