ACCOUNTS RECEIVABLE PLEDGE AGREEMENT BY AND BETWEEN QUALYTEXTIL S/A, as Pledgor, AND WACHOVIA BANK, NATIONAL ASSOCIATION as Pledgee May 13, 2008.
Exhibit
10.20
BY
AND BETWEEN
QUALYTEXTIL
S/A,
as
Pledgor,
AND
WACHOVIA
BANK, NATIONAL ASSOCIATION
as
Pledgee
May
13, 2008.
This
Accounts Receivable Pledge Agreement (the “Agreement”), is made by and
between:
(a) QUALYTEXTIL S/A, a corporation
(sociedade por ações),
duly organized and existing in accordance with the laws of Brazil, with its head
office located at the City of Salvador, State of Bahia, at Rua Luxemburgo,
s/n.º, Loteamento Granjas Rurais, Presidente Xxxxxx, Quadra O, Lotes 82 and 83,
São Caetano, enrolled with the Brazilian Taxpayers Roll of the Ministry of
Finance (CNPJ/MF) under no. 04.011.170/0001-22 (hereinafter referred to as
“Pledgor”), herein
represented in accordance with its corporate documents; and
(b) WACHOVIA BANK, NATIONAL
ASSOCIATION, duly organized and existing in accordance with the laws of
New York, with its registered office at 00 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as “Pledgee”), herein represented
in accordance with its corporate documents.
Pledgee
and Pledgor are hereby individually referred to as a "Party" and collectively as
"Parties",
WHEREAS,
pursuant to the Loan Agreement, dated July 7, 2005, as amended by the Third
Modification Agreement and Reaffirmation of Guaranty dated of even date
herewith, entered into by and between Lakeland Industries, Inc. (“Lakeland”) and
the Bank (the “Credit Agreement”), the Bank has agreed to loan to Lakeland a $
30,000,000 revolving line of credit to be used for the purchase by Lakeland do
Brasil Empreendimentos e Participações Ltda. (“Lakeland do Brasil”) of the
totality of shares of Pledgor (as amended, supplemented, restated or
otherwise modified and in effect from time to time, the “Credit
Agreement”);
WHEREAS
after the execution of a Share Purchase Agreement by and among Lakeland
Lakeland, Lakeland do Brasil, Pledgor, and its shareholders, Lakeland do Brasil
shall be the legal owner of 1,507,701 shares, being 1,492,624 shares
of common stock and 15,077 shares of Class A preferred stock, without par value,
representing in the aggregate, 100% of the capital stock
of Pledgor;
WHEREAS,
the payment of all amounts owed to Pledgee pursuant to the Credit Agreement and
any of the other documents referred therein shall be secured by the pledge over
certain receivables of Pledgor, among other guaranties;
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NOW,
THEREFORE, in consideration of the foregoing premises and mutual covenants
contained herein, the parties hereto agree as follows:
1.
Rules of
Construction. (a) Capitalized
terms used and not otherwise defined in this Agreement are used herein with the
same meanings ascribed to such terms in the Credit Agreement. All terms defined
in this Agreement in the singular shall have the same meaning when used in the
plural and vice versa. All terms defined in this Agreement shall have the
defined meanings contained herein when used in any other document made or
delivered pursuant hereto.
(b) Any
reference in this Agreement to “continuing” in relation to an Event of Default
shall be construed as meaning that the relevant Event of Default has not been
remedied (if capable of remedy), cured (if capable of cure), waived (if
constituting a breach of covenant) or otherwise terminated.
2.
Pledge; Grant of Security
Interest. In order to secure the payment of all amounts owed
to Pledgee under the Credit Agreement and any of the other Credit Documents,
with interest at the rates set forth therein and the full performance by Pledgor
of all of the other terms, covenants and obligations set forth in the Credit
Documents or herein (the “Secured Obligations”), Pledgor
hereby unconditionally and irrevocably pledges, assigns, transfers and gives as
security interest to Pledgee, pursuant to the provisions of Article 1,419 to
1,437 and 1,451 et seq.
of the Brazilian Civil Code, all of its present and future credit rights of
Pledgor in relation to (i) all incomes, rents, revenues, profits, proceeds,
accounts receivable, security deposits and other benefits, present or future,
derived from its activities and trading business, (ii) all proceeds from
insurance payable to the Pledgor, whether or not such insurance coverage is
specifically required under the terms of the Credit Agreement, (iii) all
proceeds arising on account of condemnation of any of its properties, and
recoveries for any diminution in the value of its properties and (iv) to the
extent not included in the foregoing items, all proceeds and products of the
property referred to in items above and whatever is received upon any exchange,
sale or other disposition of any of such property, whether cash or non-cash
proceeds, and any and all other amounts paid or payable under or in connection
with any of the foregoing and any and all documents or instruments related
thereto, (the "Pledged
Rights").
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2.1. For
purposes of Article 1,424 of the Brazilian Civil Code, it is expressly
covenanted by the Parties that the principal conditions and characteristics of
the Secured Obligations are those established in the Credit Agreement. The total
estimated principal amount of the Secured Obligations, the final maturity date
and the interest rates provided in the Credit Agreement for such Secured
Obligations are, on this date, those set forth in Exhibit A hereof.
3.
Restriction on Transfer and
Encumbrance. During the term of this Agreement, Pledgor may
not dispose of, sell, assign, transfer, lend, swap, or convey to the capital
stock of companies, establish any usufruct or common trust, create any other
lien, encumbrance or collateral security in addition to the pledge contracted
herein, or otherwise dispose of, fully or partially, directly or indirectly,
free of charge or for remuneration, of the Pledged Rights.
4.
Registration of
the Pledged Rights. Pledgor shall, within twenty (20) days
after the execution of this Agreement, cause this Agreement to be registered
with the competent Registries of Titles and Deeds (Cartórios de Registro de Títulos e
Documentos) in Brazil and deliver to Pledgee evidence of such
registration.
4.1.
Pledgor shall pay all expenses incurred in
connection with such registrations.
5.
Representations
and Warranties. Pledgor hereby represents and warrants to
Pledgee, as follows:
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(a)
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This
Agreement constitutes a legal, valid and binding obligation of Pledgor,
enforceable against Pledgor in accordance with its terms, and the security
interest created hereby will, constitute a legal, valid and perfected
first priority security interest in the Pledged Rights, enforceable in
accordance with its terms against all creditors of Pledgor, in
each case as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to creditors’
rights generally; provided, however, that any security interest created
hereby in any Pledged Right which has not been issued to, or received or
acquired by, Pledgor on or before the date hereof shall be deemed to have
been created, perfected and to be in full force only after such Pledged
Right is issued to, or received or acquired by,
Pledgor;
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(b)
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The
execution, delivery, performance and grant of the security interest
created hereby have been duly authorized by all necessary corporate
actions on the part of Pledgor and do not and will not (i) violate any
provision of any charter or other organizational documents of Pledgor,
(ii) conflict with, result in a breach of, nor constitute a
default under, or, except for consents and approvals that have been
obtained and are in full force and effect, require the approval or consent
of any person pursuant to any material contractual obligation of Pledgor,
nor violate any applicable law binding on Pledgor, or (iii) result in the
creation or imposition of any lien upon any asset of Pledgor or any income
or profits therefrom, except for the lien created under this
Agreement;
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(c)
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Pledgor
is the legal and record owner of the Pledged Rights, free from any liens
other than those contemplated herein and in Exhibit B hereto;
and
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(d)
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Except
as set forth in Exhibit B hereto, the Pledged Rights held by and pledged
by Pledgor hereunder are within its disposition and
control.
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6.
Covenants. Pledgor
covenants and agrees with Pledgee, until termination of this Agreement and
release of the obligations hereunder, in accordance with Section 15 hereof, as
follows:
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(a)
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In
accordance with the terms of the Credit Agreement, Pledgor shall provide
Pledgee with schedules describing all accounts, including customers'
addresses, created or acquired by Pledgor and at Pledgee’s request shall
execute and deliver written assignments of contracts and other documents
evidencing such accounts to Pledgee. Together with each
schedule, Pledgor shall, if requested by Pledgee, furnish Pledgee with
copies of Pledgor’s sales journals, invoices, customer purchase orders or
the equivalent, and original shipping or delivery receipts for all goods
sold, and Pledgor warrants the genuineness
thereof;
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(b)
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Pledgor
will execute, acknowledge and deliver, at its sole cost and expense, all
such further acts, deeds, or documents as Pledgee shall from time to time
reasonably request, which may be necessary in the judgment of Pledgee to
assure, perfect, and grant to Pledgee the security interests and other
rights conveyed or assigned hereunder. All reasonable costs and expenses
in connection with the grant or continuation of any security
interests
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hereunder,
including reasonable legal fees and other reasonable costs and expenses in
connection with the grant, registration, perfection, maintenance or continuation
of any security interests hereunder or the preparation, execution, delivery,
recordation or filing of documents and any other acts of Pledgee may reasonably
request in connection with the grant, registration, perfection, maintenance or
continuation of such security interests, shall be paid by Pledgor promptly upon
demand. Pledgor will not enter into or become subject to any agreement which
would impair their ability to comply, or which would purport to prohibit them
from complying, with the provisions hereof;
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(c)
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upon
the occurrence and continuation of an Event of Default, as may be
evidenced by written notice from Pledgee to Pledgor, pursuant to Section
17 below (irrespective of any notice to the contrary), comply with all
written instructions received from Pledgee in connection with the exercise
by Pledgee of the remedies set forth in Section 11
hereof;
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(d)
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promptly
inform Pledgee by written notice of the occurrence of (i) any event which
could be expected to cause material reduction of the Pledge created hereby
or (ii) any other event within the knowledge of Pledgor that could be
expected to cause a material reduction of the aggregate value of the
Pledged Rights;
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(e)
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indemnify
and hold Pledgee harmless against any and all claims, suits, liabilities,
damages and costs of any nature, including reasonable and properly
documented attorneys’ fees, arising out of or in any way connected with
the title to the Pledged Rights, except to the extent such claims, suits,
liabilities, damages and costs are caused by the negligence or willful
misconduct of Pledgee, it being agreed and understood that such
indemnification obligation shall remain valid notwithstanding the
termination of this Agreement with respect to events taking place before
termination, subject to the relevant statute of limitations under
applicable law;
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7.
Obligations with Respect to
Third Party Act. As soon as Pledgor becomes aware of the
existence of any third party act which may lead to a threat of encumbrance
and/or effectively result in the encumbrance of the Pledged Rights (“Third Party Act”), Pledgor
shall inform Pledgee of such Third Party Act, providing it with the information
and documents available to it. Pledgor undertakes to adopt all applicable
judicial and/or
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extrajudicial
measures to preserve and maintain the integrity and validity of the pledge
created pursuant to this Agreement, and/or fully recompose or replace such
pledge, by means of other bank accounts so that it remains always in full force
the pledge over the Pledged Assets.
7.1. In
the judicial execution actions brought against the Pledgor by third parties, the
Pledgor is required to make its best endeavors to enforce the pledge created
pursuant to this Agreement, undertaking for such: (a) not to indicate the
Pledged Rights for attachment, (b) to timely challenge any attachment of the
Pledged Rights, in all jurisdiction levels, by filing applicable appeals, (c) to
timely submit the applicable defenses in the execution, (d) not to hinder the
exercise of the rights by Pledgee, but to collaborate with Pledgee for such
rights to actually prevail, (e) to inform Pledgee of the existence of any
execution or collection action filed against it, the amount of which is equal to
or higher than US$ 500,000.00 (five hundred thousand United States dollars),
even if there is no attachment of the Pledged Rights immediately, but always
within at most 5 (five) business days after becoming aware, by any means, of the
existence of said executions or actions, and (f) to send, whenever
requested, reports to Pledgee with updated information on the status of the
execution or collection actions filed against Pledgor, involving an amount equal
to or higher than US$ 500,000.00 (five hundred thousand United States dollars).
For purposes of this clause, “collection action” means any procedural,
administrative or judicial means, including the arbitral means, in which a party
requests that the Pledgor be sentenced to pay any debt for an amount equal to or
higher than said amount.
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10.
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Account
Debtors.
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(a)
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If
a Default should occur, Pledgee shall have the right to notify the account
debtors obligated on any or all of the Pledged Rights to make payment
thereof directly to Pledgee and Pledgee may take control of all proceeds
of any such Pledged Rights, which rights Pledgee may exercise at any
time. The cost of such collection and enforcement, including
reasonable attorneys' fees and expenses, shall be borne solely by Pledgor
whether the same is incurred by Pledgee or Pledgor. If a
Default should occur or upon demand of Pledgee, Pledgor will, upon receipt
of all checks, drafts, cash and other remittances in payment on Pledged
Rights, deposit the same in a special bank account maintained with Plegee,
pursuant to the Accounts Receivable and Bank Account Pledge Agreement
dated of even date herewith.
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(b)
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If
a Default should occur, no discount, credit, or allowance shall be granted
by Pledgor to any account debtor and no return of merchandise shall be
accepted by Pledgor without Pledgee’s consent. Pledgee may,
after Default, settle or adjust disputes and claims directly with account
debtors for amounts and upon terms that Pledgee considers advisable, and
in such cases Pledgee will credit the Secured Obligations with the net
amounts received by Pledgee, after deducting all of the expenses incurred
by Pledgee. Pledgor agrees to indemnify and defend Pledgee and hold it
harmless with respect to any claim or proceeding arising out of any matter
related to collection of Pledged
Rights.
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11.
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Rights and Powers of
Pledgee Upon an Event of
Default.
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(a)
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Pledgor
hereby irrevocably appoints Pledgee as its true and lawful
attorney-in-fact (the same being coupled with an interest) with full power
of substitution to, upon the occurrence and continuation of an Event of
Default, notify the account debtors obligated on any or all of the Pledged
Rights to make payment thereof directly to Pledgee, without limitation and
in addition to any and all rights with respect to the Pledged Rights
granted to Pledgee hereof:
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(i) instruct
the obligor or obligors on or any counterparties to any agreement, instrument or
other obligation in respect of or relating to Pledgor or the Pledged Rights to
make any payment required by the terms of such instrument, agreement or
obligation to Pledgee;
(ii) direct
Pledgor in writing to deliver the Pledged Rights or any part thereof to Pledgee
at any place or places designated by Pledgee;
(iii) withdraw
or transfer any and all cash and apply such cash for the payment of the Secured
Obligations in accordance with the terms of the Credit Agreement;
and
(iv) sell,
assign or otherwise liquidate the Pledged Rights or any part thereof and apply
the same for the payment of the Secured Obligations in accordance with the terms
of the Credit Agreement,
in each
case, returning to Pledgor any sums exceeding the Secured
Obligations.
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(b)
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Promptly
after the cessation of an Event of Default, Pledgee shall send written
notice of such cessation to the the account debtors obligated on any or
all of the Pledged Rights to make payment thereof directly to
Pledgor.
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12. Default and
Remedies. Upon the occurrence and continuation of an Event of
Default, Pledgee is hereby irrevocably authorized and entitled to, dispose of,
collect, receive, appropriate and/or realize upon the Pledged Rights (or any
part thereof) and may forthwith sell, assign, give option or options to purchase
or otherwise dispose of and deliver the Pledged Rights or any part thereof at
market price and market terms and conditions, irrespective of any prior or
subsequent notice to Pledgor, in accordance with the provisions set forth in
Article 1,433, Item IV and Article 1,435, Item V of the Brazilian Civil Code,
and apply the proceeds thus received for payment of the Secured Obligations,
returning to Pledgor any sums exceeding the Secured Obligations.
13. Amendments with Respect to
the Secured Obligations. Pledgor shall remain obligated
hereunder, and the Pledged Rights shall remain subject to the security interests
granted hereby, at all times until the termination of this Agreement pursuant to
Section 15 below,
notwithstanding the occurrence of any of the events below, without
notice to Pledgor:
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(a)
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the
liability by Pledgor or any person to any part of the Secured Obligations,
or any security or guarantee with respect thereto, is, at any time, in
whole or in part, renewed, extended, amended, modified, accelerated,
reimbursed or released by Pledgee;
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(b)
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the
Credit Agreement is amended, modified or supplemented, in whole or in
part; and
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(c)
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any
guaranty or rights at any time held by Pledgee for the payment of the
Secured Obligations are sold, exchanged, waived, surrendered or
released.
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14. Rights and Remedies.
When pursuing its rights and remedies hereunder, Pledgee may, but shall be under
no obligation to, pursue such rights and remedies as it may have against any
third party or against any security for or guaranty of the Secured Obligations.
The failure by Pledgee to pursue such rights or remedies or to collect any
payments from such third party or to realize upon any such security or guaranty,
or any release of such third party or of any such security or guaranty shall not
relieve Pledgor of any liability hereunder, and shall not impair or affect the
rights and remedies of Pledgee.
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15. Termination and
Release. When the Secured Obligations have been indefeasibly satisfied in
full and all obligations under the Credit Agreement have been terminated, and no
other amount is then outstanding or owing to Pledgee under the Credit
Agreement, then this Agreement shall be considered terminated and the security
interests created hereby be released, at the Pledgor's expense, without notice
to or consent by Pledgee; otherwise, this Agreement and the security interests
created hereby shall remain in full force and effect. Pledgee, upon
the Pledgor's request, in accordance with this Section, shall promptly execute
and deliver to Pledgor, at the Pledgor’s expense, all documents reasonably
necessary to evidence the release of such guarantee.
16. Costs and
Expenses. Pledgor hereby agrees to immediately reimburse
Pledgee for all reasonable, actual and documented costs and expenses incurred in
connection with and necessary for the perfection of the pledge granted hereby,
as well as any amendments to and/or enforcement of this Agreement.
17. Notices. Any
and all notices, requests, authorizations and demands to be effective or
transmitted under this Agreement shall be in writing (or by fax or similar
electronic transfer confirmed in writing) and shall be deemed to have been duly
given or made (a) when delivered by courier or registered letter or (b) if by
fax or similar electronic transfer, when sent and receipt has been
confirmed. If to Pledgor or to Pledgee, such notices, requests,
authorizations and demands shall be addressed to the following addresses or
transmission numbers:
Pledgee:
Wachovia Bank, National
Association
Law
Department
00 Xxxx
00xx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 10017
U.S.A.
Attention:
Chief Counsel
Tel:
____________________
Fax:
____________________
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Pledgor:
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QUALYTEXTIL
S/A
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Rua
Luxemburgo, s/nº
Loteamento
Granjas Rurais, Presidente Xxxxxx, Quadra O, Lotes 82 and 83, São
Xxxxxxx
Xxxxxxxx,
Bahia
Brazil
Attention:
Mr. Xxxxxx Xxxxxxx dos Xxxxxxxxx Xxxxxx
Fax: (00
00) 0000-0000
18. Clearance
Certificates. In accordance with and for the purposes of
Decree n. 3,048, of May 6, 1999, Pledgor herein delivered to Pledgee the
Debt Clearance Certificates (Certidão Negativa de Débito)
issued by the Social Security Agency (Instituto Nacional de Seguridade
Social) under n. 223942008-04001010, stating that all its obligations
with social security are duly complied with up to the date specified therein and
Pledgor herein delivered the Clearance Certificate of Federal Debt (Certidão Conjunta Negativa de
Débitos Relativos a Tributos Federais e à Dívida Ativa da União) issued
by the Brazilian Federal Revenue (Receita Federal do Brasil)
under n. C412.4111.1061.3B97.
19. Waivers and
Amendments. Notwithstanding any provisions of this Agreement, no
amendment to any provision of this Agreement shall be effective unless the same
shall have been signed by all Parties.
20. Severability. If any
provision of this Agreement shall be held to be invalid, illegal or
unenforceable under applicable law in any jurisdiction, such provision shall be
ineffective only to the extent of such invalidity, illegality or
unenforceability, and shall not affect any other provisions hereof or the
validity, legality or enforceability of such provision in any other
jurisdiction. Where provisions of any applicable law resulting in such
prohibition or unenforceability may be waived, they are hereby waived by Pledgor
and Pledgee to the full extent permitted by applicable law so that this
Agreement shall be deemed a valid and binding agreement, and the security
interest created hereby shall constitute a continuing and perfected first
priority lien on the Pledged Rights, in each case enforceable against Pledgor in
accordance with its terms.
21. Complete Agreement;
Successors and Assigns. This Agreement constitutes the final agreement
among the Parties regarding the subject matter hereof. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. At any time during the term of this Agreement,
Pledgee
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may
assign or transfer all or part of its rights and obligations hereunder. However,
Pledgor may not assign or transfer any of its rights or obligations under this
Agreement.
22. Waiver of Immunity.
To the extent that Pledgor has or hereafter may be entitled to claim or may
acquire, for itself or any of the Pledged Rights pledged by it pursuant to this
Agreement, any immunity from suit, jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, or otherwise) with respect to itself or its
property, Pledgor hereby irrevocably waives such immunity in respect of its
obligations hereunder to the extent permitted by applicable law.
23. Governing Law;
Jurisdiction. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of Brazil. The parties hereto
irrevocably submit to the exclusive jurisdiction of the courts sitting in the
City of São Paulo, State of São Paulo, Brazil, in any action or proceeding to
resolve any dispute or controversy related to or arising from this
Agreement.
24. Specific Performance.
The Parties acknowledge for all purposes and effects of the law, that this
Agreement, individually, and/or together with the Credit Agreement, and/or
together with Promissory Notes, constitutes an extra-judicial title, pursuant to
the terms of Article 585 of the Brazilian Civil Procedure Code and, for the
purposes hereof, Pledgee, may seek the specific performance of the obligations
undertaken herein by Pledgor, as provided in Articles 461, 461-A, 621, 632 and
639 of the Brazilian Civil Procedure Code.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, the parties have caused this Agreement, in 03 (three)
counterparts of equal content, to be duly executed in the presence of the
undersigned witnesses.
São
Paulo, May 13, 2008.
QUALYTEXTIL
S/A
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By:
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/s/ Xxxxxx X.
Xxxxxx
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By:
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/s/ Elder Xxxxxx
Xxxxxx xx Xxxxxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Name:
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Elder
Xxxxxx Xxxxxx xx Xxxxxxxxx
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Title:
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CFO
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Title:
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CEO
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WACHOVIA
BANK, NATIONAL ASSOCIATION
By: /s/
Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
Witnesses:
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_______________________
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______________________
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Name:
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Name:
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ID:
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ID:
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EXHIBIT
A
CONDITIONS
AND CHARACTERISTICS OF THE SECURED OBLIGATIONS
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1)
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TOTAL
PRINCIPAL AMOUNT OF THE SECURED
OBLIGATIONS
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A sum not
to exceed US$ 30,000,000.00 (thirty million United States dollars).
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2)
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INTEREST
RATE OVER THE AMOUNT EFFECTIVELY
DISBURSED:
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Based on
either LIBOR or LIBOR Market Index Rate, plus the Applicable Margin (equal to
the percentage set forth in the table based on Borrower’s Funded Debt to EBITDA
Ratio), more particularly described in the Second Amended and Restated
Promissory Note attached hereto as Exhibit A.1
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3)
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MATURITY
DATE OF INTEREST:
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Monthly
payments of interest only commencing June 2, 2008, final payment of all accrued
interest on July 7, 2010
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4)
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REPAYMENT
OF THE PRINCIPAL AMOUNT:
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Final
payment of principal on July 7, 2010
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5)
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PENALTY
IN AN EVENT OF DEFAULT:
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Interest
rate plus 3%.
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EXHIBIT
A.1
SECOND
AMENDED AND RESTATED PROMISSORY NOTE
2
EXHIBIT
B
Bank: Banco Itaú
S.A.
Agreement N.: N/A
Purpose: credit facility to
the cash flow of Qualytextil S.A. in the maximum amount of R$
700,000.00.
Guaranty: account receivables
of Qualytextil S.A. (not specified in the Agreement) and promissory
note.
Guarantors: Xxxxxx Xxxxxxx dos
Guimarães Bastos and Elder Xxxxxx Xxxxxx xx Xxxxxxxxx.
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