PLEDGE AGREEMENT
Exhibit 10.3
1.
GRANT OF SECURITY INTEREST/DELIVERY OF CERTIFICATES.
(a) The
undersigned Lakeland Industries, Inc., a Delaware corporation
("Pledgor") hereby irrevocably and unconditionally grants security
interest in, a lien upon and the right of set-off against, and
assigns and transfers to Bank of America, N.A. and its successors
and assigns (collectively, "Bank") all property referred to in
Exhibit A attached hereto and incorporated herein, as hereafter
amended or supplemented from time to time (the "Collateral"). The
parties hereto expressly agree that all rights, assets and property
at any time held in or credited to any securities account
constituting Collateral shall be treated as financial assets as
defined in the Uniform Commercial Code as in effect in any
applicable state (the “UCC”). Notwithstanding the
foregoing, the Collateral shall not include any voting stock of any
direct subsidiary of any Pledgor that is a controlled foreign
corporation (as defined in Section 957 of the Internal Revenue Code
(a "CFC")) in excess of 65% of the total combined voting power of
all classes of stock of such CFC that are entitled to vote (within
the meaning of Section 1.956-2(c)(2) of the Treasury
Regulations).
(b) Pledgor
certifies that except as indicated on Exhibit A hereto, the
Borrower’s ownership of the Collateral is not evidenced by
certificates. Pledgor further certifies that all certificates
evidencing the Collateral have been delivered to Lender except for
the certificates evidencing Pledor’s ownership of the
following entities: (i) Industrias Lakeland S.A. de C.V., (ii)
Lakeland Protective Wear Inc., (iii) Lakeland Industries Australis
Pty Limited, and (iv) Xxxxxxxx, X.X. (collectively, the
“Post-Closing Certificates”). Pledgor shall deliver the
Post Closing Certificates and any related stock powers requested by
Lender to Lender by July 18, 2020 (the “Post-Closing
Deadline”). Pledgor’s failure to deliver the
Post-Closing Certificates and any related stock powers requested by
Lender on or prior to the Post-Closing Deadline shall constitute an
Event of Default hereunder.
2.
INDEBTEDNESS.
(a) The
Collateral secures and will secure all Indebtedness of Pledgor to
Bank. Each person or entity obligated under any Indebtedness is
sometimes referred to in this Agreement as a
“Debtor.”
(b)
"Indebtedness" means:
(i) all
debts, obligations or liabilities, of every kind or character of
Pledgor to Bank, now or hereafter existing or incurred, whether
absolute or contingent, primary or secondary, secured or unsecured,
joint or several, voluntary or involuntary, due or not due, or
incurred directly or indirectly
or acquired by Bank by assignment or otherwise; including interest
accruing after commencement of any insolvency, reorganization or
like proceeding relating to Pledgor, whether or not allowed in such
proceeding and further including all debt, obligations or
liabilities arising under or incurred in connection with any and
all letters of credit issued by Bank for the account of Pledgor or
at the request of Pledgor and any reimbursement, indemnity or
similar agreements given by Pledgor to Bank in connection
therewith,
(ii)
all debts, obligations or liabilities arising pursuant to any
agreement between Pledgor and Bank or any affiliate of Bank now
existing or hereafter entered into, which provides for an interest
rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate
swap, currency option, securities puts, calls, collars, options or
forwards or any combination of, or option with respect to, these or
similar transactions (each a "Hedge Transaction”) other than
Excluded Hedge Obligations.
“Excluded
Hedge Obligations” shall mean any obligations arising under
any Hedge Transaction to which Pledgor is not party if, and to the
extent that, the grant by such Pledgor of a security interest in
the Collateral to Bank to secure such obligations under such Hedge
Transaction would violate the Commodity Exchange Act by virtue of
such Pledgor’s failure to constitute an “eligible
contract participant” as defined in the Commodity Exchange
Act as of the date required thereunder with respect to such
security interest. “Commodity Exchange Act” means 7
U.S.C. Section 1 et seq.,
as amended from time to time, any successor statute, and any rules,
regulations and orders applicable thereto;
(iii)
all obligations and liabilities of Pledgor to Bank hereunder,
and
(iv)
all costs, attorneys’ fees and expenses incurred by Bank in
connection with the collection or enforcement of any of the
above.
3.
PLEDGOR'S COVENANTS, REPRESENTATIONS AND WARRANTIES. Pledgor
covenants, represents and warrants that unless compliance is waived
by Bank in writing:
(a)
Pledgor is the legal and beneficial owner of all the Collateral
free and clear of any and all liens, encumbrances, or interests of
any third parties other than the security interest of Bank, and
will keep the Collateral free of all liens, claims, security
interests and encumbrances of any kind or nature, whether voluntary
or involuntary, except the security interest of Bank.
(b)
Pledgor shall, at Pledgor’s expense, take all actions
necessary or advisable from time to time to maintain the first
priority and perfection of the security interest of Bank in the
Collateral and shall not take any actions that would alter, impair
or eliminate said priority or perfection.
(c)
Pledgor agrees to pay prior to delinquency all taxes, charges,
liens and assessments against the Collateral, and upon the failure
of Pledgor to do so, Bank at its option may pay any of them and
shall be the sole judge of the legality or validity thereof and the
amount necessary to discharge the same.
(d) If
any of the Collateral is margin stock as defined in Regulation U
promulgated by the Board of Governors of the Federal Reserve System
of the United States (“FRB”), Pledgor will provide Bank
a properly executed Form U-1 Purpose Statement. Bank and Pledgor
will comply with the requirements and restrictions imposed by
Regulation U.
(e)
Pledgor’s exact legal name is correctly set forth on the
signature page hereof. Pledgor will notify Bank in writing at least
30 days prior to any change in Pledgor's name or
identity.
(f) If
Pledgor is an Individual, Pledgor resides and has for the four
month period preceding the date hereof resided, or if Pledgor is
not an individual, Pledgor's chief executive office is, and has
been for the four-month period preceding the date hereof (or, if
less, the entire period of the existence of Pledgor) located, in
the state specified on the signature page hereof. In addition, if
Pledgor is not an Individual, Pledgor is an organization of the
type and (if not an individual or other unregistered entity), is
incorporated in or organized under the laws of the state specified
on such signature page. Pledgor shall give Bank at least thirty
(30) days notice before changing the location of its residence or
its chief executive office, type of organization, business
structure or state of incorporation or organization.
(g) If
Pledgor is not an individual, Pledgor’s organizational
identification number, if any, assigned by its state of
incorporation or organization is correctly set forth on the
signature page hereof. Pledgor shall promptly notify Bank (i) of
any change of its organizational identification number, or (ii) if
Pledgor does not have an organizational identification number and
later obtains one, of such organizational identification
number.
4.
REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING EQUITY
SECURITIES COLLATERAL. Pledgor hereby represents, warrants and
covenants the following with respect to any equity securities
comprising any or all of the Collateral (the "Equity Securities")
and covenants and agrees to promptly notify Bank in writing in the
event that any of the foregoing representations and warranties is
no longer true and correct:
(a) The
Equity Securities have been duly authorized and validly issued and
are fully paid and non-assessable.
(b)
There are no restrictions on the pledge of the Equity Securities by
Pledgor to Bank nor on the sale of the Equity Securities by Pledgor
or Bank (whether pursuant to securities laws or regulations or any
shareholder, lock-up or other similar agreement or xxxxxxx xxxxxxx
rules of the issuer).
5. BANK
APPOINTED ATTORNEY IN FACT. Pledgor authorizes and irrevocably
appoints Bank as Pledgor's true and lawful attorney-in-fact with
full power of substitution in order to allow Bank upon an Event of
Default to take any action and execute or otherwise authenticate
any record or other documentation that Bank considers necessary or
advisable to accomplish the purposes of this Agreement, including
but not limited to, the following actions: (a) to endorse, receive,
accept and collect all checks, drafts, other payment orders and
instruments representing or included in the Collateral or
representing any payment, dividend or distribution relating to any
Collateral or to take any other action to enforce, collect or
compromise any of the Collateral; (b) to transfer any Collateral
(including converting physical certificates to book-entry holdings)
into the name of Bank or its nominee or any broker-dealer (which
may be an affiliate of Bank) and to execute any control agreement
covering any Collateral on Pledgor's behalf and as attorney-in-fact
for Pledgor in order to perfect Bank's first priority and
continuing security interest in the Collateral and in order to
provide Bank with control of the Collateral, and Pledgor's
signature on this Agreement or other authentication of this
Agreement shall constitute an irrevocable direction by Pledgor to
any bank, custodian, broker dealer, any other securities
intermediary or commodity intermediary holding any Collateral or
any issuer of any letters of credit to comply with any instructions
or entitlement orders, of Bank without further consent of Pledgor;
(c) to participate in any recapitalization, reclassification,
reorganization, consolidation, redemption, stock split, merger or
liquidation of any issuer of securities which constitute
Collateral, and in connection therewith Bank may deposit or
surrender control of the Collateral, accept money or other property
in exchange for the Collateral, and take such action as it deems
proper in connection therewith, and any money or property received
on account of or in exchange for the Collateral shall be applied to
the Indebtedness or held by Bank thereafter as Collateral pursuant
to the provisions hereof; (d) to exercise any right, privilege or
option pertaining to any Collateral, but Bank has no obligation to
do so; (e) to file any claims, take any actions or institute any
proceedings which Bank determines to be necessary or appropriate to
collect or preserve the Collateral or to enforce Bank's rights with
respect to the Collateral; (f) to execute in the name or otherwise
authenticate on behalf of Pledgor any record reasonably believed
necessary or appropriate by Bank for compliance with laws, rules or
regulations applicable to any Collateral, or in connection with
exercising Bank's rights under this Agreement; (g) to file any
financing statement relating to this Agreement electronically, and
Bank's transmission of Pledgor's signature on and authentication of
the financing statement shall constitute Pledgor's signature on and
authentication of the financing statement; (h) to make any
compromise or settlement it deems desirable or proper with
reference to the Collateral; (i) to do and take any and all actions
with respect to the Collateral and to perform any of Pledgor's
obligations under this Agreement; I(j) to close out or otherwise
terminate any calls, puts or other options in the account, and (k)
to execute any documentation reasonably believed necessary by Bank
for compliance with Rule 144 or any other restrictions, laws, rules
or regulations applicable to any Collateral hereunder that
constitutes restricted or control securities under the securities
laws. The foregoing appointments are irrevocable and coupled with
an interest and shall survive the death or disability of Pledgor
and shall not be revoked without Bank’s written consent. To
the extent permitted by law, Pledgor hereby ratifies all said
attorney-in-fact shall lawfully do by virtue hereof.
6.
VOTING RIGHTS.
(a) So
long as no Event of Default shall have occurred and is continuing
and Bank has not delivered the notice specified in subsection (b)
below, Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Collateral or any part
thereof for any purpose not inconsistent with the terms of this
Agreement or any document or agreement executed in connection
herewith.
(b)
Upon the occurrence and during the continuance of an Event of
Default, at the option of Bank exercised in a writing sent to
Pledgor, all rights of Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise
pursuant to subsection (a) above shall cease, and Bank shall
thereupon have the sole right to exercise such voting and other
consensual rights.
7.
EVENTS OF DEFAULT; REMEDIES.
(a) Any
default under the Loan Agreement executed between the parties dated
of even date herewith, or under any other agreement executed
between Bank and Pledgor relating to the Indebtedness, shall
consititute an Event of Default hereunder.
(b) If
an Event of Default occurs, Bank may do any one or more of the
following, to the extent permitted by law:
(i)
Declare any Indebtedness immediately due and payable, without
notice or demand.
(ii)
Exercise as to any or all of the Collateral all the rights, powers
and remedies of an owner, subject to the Section entitled
“VOTING RIGHTS”, including without limitation, the
right to close out any options held in any Account.
(iii)
Enforce the security interest given hereunder pursuant to the UCC
and any other applicable law.
(iv)
Sell all or any part of the Collateral at public or private sale in
accordance with the UCC, without advertisement, in such manner and
order as Bank may elect. Bank may execute any sale of the
Collateral through an affiliate of Bank and such affiliate shall be
entitled to charge standard fees for such sale. Bank or any
affiliate of Bank may purchase the Collateral for its own account
at any such sale. Bank shall give Pledgor such notice of any public
or private sale as may be required by the UCC, provided that to the
extent notice of any such sale is required by the UCC or other
applicable law, Pledgor agrees that at least three (3) days’
notice to 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 and provided further that, if Bank fails to
comply with this sentence in any respect, its liability for such
failure shall be limited to the liability (if any) imposed on it as
a matter of law under the UCC or other applicable law. Pledgor
acknowledges that Collateral may be sold at a loss to Pledgor, and
that, in such event, Bank shall have no liability or responsibility
to Pledgor for such loss. Pledgor further acknowledges that a
private sale may result in prices and other terms less favorable to
the seller than if such sale were a public sale and,
notwithstanding such circumstances, agrees that no such private
sale shall, to the extent permitted by applicable law, be deemed
not to be "commercially reasonable" solely as a result of such
prices and other sale terms. Pledgor acknowledges and agrees that
Bank, in conducting a private sale, may impose such conditions as
Bank deems appropriate to insure a lawful sale under the securities
laws, including, without limitation, the right to approach and
negotiate with only a limited number of potential purchasers, and
to restrict purchasers to those who can make appropriate
representations and warranties. Upon any such sale, Bank shall have
the right to deliver, assign and transfer to the buyer thereof the
Collateral so sold. Each buyer at any such sale shall hold the
Collateral so sold absolutely and free from any claim or right of
whatsoever kind, including any equity or right of redemption of
Pledgor that may be waived or any other right or claim of Pledgor,
and Pledgor, to the extent permitted by law, hereby specifically
waives all rights of redemption, stay or appraisal that Pledgor has
or may have under any law now existing or hereafter
adopted.
Without
limiting any other rights and remedies available to Bank, Pledgor
expressly acknowledges and agrees that with respect to Collateral
consisting of hedge funds and similar private investment funds, the
sale of such Collateral to the issuing fund in accordance with the
issuing fund’s redemption practices shall be deemed to be a
commercially reasonable sale of such Collateral.
(v)
Enforce the security interest of Bank in any deposit account which
is part of the Collateral by applying such account to the
Indebtedness.
(vi)
Exercise any other right or remedy provided under this Agreement,
any other agreement executed or delivered in connection with this
Agreement or the Indebtedness or by any applicable
law.
(vii)
Comply with any applicable state or federal law requirements in
connection with a disposition of the Collateral and such compliance
will not be considered to affect adversely the commercial
reasonableness of any sale or other disposition of the
Collateral.
(viii)
Sell the Collateral without giving any warranties as to the
Collateral. Bank may specifically disclaim any warranties of title
or the like. This procedure will not be considered to affect
adversely the commercial reasonableness of any sale or other
disposition of the Collateral.
8.
RIGHT TO CURE; LIMITATION ON BANK'S DUTIES. If Pledgor fails to
perform any agreement contained herein, Bank may perform or cause
performance of such agreement and the reasonable third-party
expenses of Bank actually incurred in connection therewith shall be
payable by Pledgor or Debtor under the Section entitled
“COSTS”. Any powers conferred on Bank hereunder are
solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for
reasonable care in the custody of any Collateral in its possession
and the accounting for moneys actually received by it hereunder,
Bank shall have no duty as to any Collateral or as to the taking of
any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral. Bank shall be deemed to
have exercised reasonable care in the custody and preservation of
the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which Bank accords its own
property, it being understood that Bank shall not have any
responsibility for (a) ascertaining, exercising or taking other
action or giving Pledgor notice with respect to subscription
rights, calls, conversions, exchanges, maturities, lenders or other
matters relative to any Collateral, whether or not Bank has or is
deemed to have knowledge of such matters, or (b) taking any
necessary steps to preserve rights against any parties with respect
to any Collateral. Bank shall not be liable for any loss to the
Collateral resulting from acts of God, war, civil commotion, fire,
earthquake, or other disaster or for any other loss or damage to
the Collateral except to the extent such loss is determined by a
court of competent jurisdiction by final and nonappealable judgment
to have resulted from Bank's gross negligence or willful
misconduct.
9.
WAIVERS. Bank shall be under no duty or obligation whatsoever and
Pledgor waives any right to require Bank to (i) make or give any
presentment, demands for performances, notices of nonperformance,
protests, notices of protest or notices of dishonor in connection
with any obligations or evidences of indebtedness held by Bank as
Collateral, or in connection with any obligation or evidences of
indebtedness which constitute in whole or in part the Indebtedness,
(ii) proceed against any person or entity, (iii) proceed against or
exhaust any collateral, or (iv) pursue any other remedy in Bank's
power; and Pledgor waives any defense arising by reason of any
disability or other defense of Debtor or any other person, or by
reason of the cessation from any cause whatsoever of the liability
of Debtor or any other person. Until the Indebtedness is paid in
full, Pledgor waives any right of subrogation, reimbursement,
indemnification, and contribution (contractual, statutory or
otherwise), including without limitation any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S. Code)
or any successor statute, arising from the existence or performance
of this Agreement, and Pledgor waives any right to enforce any
remedy which Bank now has or may hereafter have against Debtor or
against any other person and waives any benefit of and any right to
participate in any Collateral or security whatsoever now or
hereafter held by Bank. If Pledgor is not also a Debtor with
respect to a specified Indebtedness, Pledgor authorizes Bank
without notice or demand and without affecting Pledgor's liability
hereunder, from time to time to: (i) renew, extend, accelerate or
otherwise change the time for payment of or otherwise change the
terms of the Indebtedness or any part thereof, including increase
or decrease of the rate of interest thereon; (ii) take and hold
security, other than the Collateral, for the payment of the
Indebtedness or any part thereof, and exchange, enforce, waive and
release the Collateral or any part thereof or any such other
security; and (iii) release or substitute Debtor or any one or more
of them, or any of the endorsers or guarantors of the Indebtedness
or any part thereof, or any other parties thereto and Pledgor
consents to the taking of, or failure to take, any action by Bank
which might in any manner or to any extent vary the risks of
Pledgor under this Agreement or which, but for this provision,
might operate as a discharge of Pledgor. Pledgor agrees that it is
solely responsible for keeping itself informed as to the financial
condition of Debtor and of all circumstances which bear upon the
risk of nonpayment or the risk of a margin call or liquidation of
the Collateral.
10.
TRANSFER, DELIVERY AND RETURN OF COLLATERAL.
(a)
Pledgor shall immediately deliver or cause to be delivered to Bank
(or the Securities Intermediary, if any) (i) any certificates or
instruments now or hereafter representing or evidencing Collateral
and such certificates and instruments shall be in suitable form for
transfer without restriction or stop order by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment
in blank in form and substance satisfactory to Bank, and (ii) in
the same form as received (with any necessary endorsement), all
dividends and other distributions paid or payable in cash in
respect of any Collateral and any such amounts, if received by
Pledgor, shall be received in trust for the benefit of Bank and be
segregated from the other property or funds of
Pledgor.
(b)
Bank may at any time deliver the Collateral or any part thereof to
Pledgor and the receipt by Pledgor shall be a complete and full
acquittance for the Collateral so delivered, and Bank shall
thereafter be discharged from any liability or responsibility
therefor.
(c)
Upon the transfer of all or any part of the Indebtedness, Bank may
transfer all or any part of the Collateral and shall be fully
discharged thereafter from all liability and responsibility with
respect to such Collateral so transferred, and the transferee shall
be vested with all the rights and powers of Bank hereunder with
respect to such Collateral so transferred; but with respect to any
Collateral not so transferred Bank shall retain all rights and
powers hereby given. Pledgor agrees that Bank may disclose to any
prospective purchaser or transferee and any purchaser or transferee
of all or part of the Indebtedness any and all information in
Bank’s possession concerning Pledgor, this Agreement and the
Collateral.
11.
CONTINUING AGREEMENT AND POWERS.
(a)
This is a continuing Agreement and all the rights, powers and
remedies hereunder shall, unless otherwise limited herein, apply to
all past, present and future Indebtedness of Debtor or any one or
more of them to Bank, including that arising under successive
transactions which shall either continue the Indebtedness, increase
or decrease it, or from time to time create new Indebtedness after
all or any prior Indebtedness has been satisfied, and
notwithstanding the death, incapacity, cessation of business,
dissolution or bankruptcy of Debtor or any one or more of them, or
any other event or proceeding affecting Debtor or any one or more
of them.
(b)
Until all Indebtedness shall have been paid in full and Bank shall
have no obligation to extend credit to any Debtor, the power of
sale and all other rights, powers and remedies granted to Bank
hereunder shall continue to exist and may be exercised by Bank at
the time specified hereunder irrespective of the fact that the
Indebtedness or any part thereof may have become barred by any
statute of limitations, or that the personal liability of Debtor or
any one or more of them may have ceased. Pledgor waives the benefit
of any statute of limitations as applied to this
Agreement.
12.
COSTS. To the extent permitted by law, all reasonable advances,
charges, costs and expenses, including reasonable attorneys' fees,
actually paid by Bank to third-parties in exercising any right,
power or remedy conferred by this Agreement or in the enforcement
thereof, and including the charges and expenses of Bank's custody
unit or of any Securities Intermediary, shall become a part of the
Indebtedness secured hereunder and shall be paid to Bank by Debtor
and Pledgor immediately and without demand, with interest thereon
at an annual rate equal to the highest rate of interest of any
Indebtedness secured by this Agreement (or, if there is no such
interest rate, at the maximum interest rate permitted by law for
interest on judgments). Such costs and attorneys' fees shall
include the allocated cost of in-house counsel to the extent
permitted by law
13.
NOTICES. Unless otherwise provided or agreed to herein or required
by law, notice and communications provided for in this Agreement
shall be in writing and shall be mailed, telecopied or delivered to
Pledgor to the address for notices set forth for Pledgor below or
across from its signature below or at such other address or
facsimile number as shall be designated by Pledgor in a written
notice to Bank at the address for notices set forth for Bank below
or across from Bank’s signature below (each a “Written
Notice”). In addition, any such Written Notice to Pledgor may
be telecopied to Pledgor at the facsimile number for notices
designated by Pledgor in a written notice to Bank at the address
for notices specified above. If Pledgor’s address is not
entered below and Pledgor has not otherwise designated such address
or designated a facsimile number to Bank in writing as provided
above, then the address and/or facsimile number for Pledgor in
Bank’s records shall be deemed the address or facsimile for
notices to Pledgor. Notices and other communications sent by (a)
first class mail shall be deemed delivered on the earlier of actual
receipt or on the fourth business day after deposit in the U.S.
mail, postage prepaid, (b) overnight courier shall be deemed
delivered on the next business day after deposit with the overnight
courier, (c) facsimile shall be deemed delivered when transmitted
and (d) any other method, shall be deemed delivered when delivered.
To the extent that oral notification is provided for or agreed to
herein, such oral notification may be made by telephone to any of
the number(s) set forth on the signature page for Pledgor; provided
that any oral notification in person or at any other telephone
number shall constitute notification hereunder.
In lieu
of a Written Notice, notices and/or communications from Bank to
Pledgor may, to the extent permitted by law, be delivered
electronically (i) by transmitting the communication to the
electronic address provided by Pledgor or to such other electronic
address as Pledgor may specify from time to time in writing, or
(ii) by posting the communication on a website and sending Pledgor
a notice to Pledgor’s postal address or electronic address
telling Pledgor that the communication has been posted, its
location, and providing instructions on how to view it (any such
notice, an “Electronic Notice”).
Electronic Notices shall be effective when the communication, or a
notice advising of its posting to a website, is sent to
Pledgor’s electronic address.
14. INDEMNITY. Pledgor shall indemnify, hold harmless and defend
Bank and its directors, officers, agents and employees, from and
against any and all claims, actions, obligations, liabilities and
expenses, including reasonable defense costs, investigative fees
and costs, and reasonable legal fees and damages arising from their
execution of or performance under this Agreement or any control
agreement executed by Bank in connection with the Collateral,
except to the extent that such claim, action, obligation, liability
or expense is determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such indemnified person. This
indemnification shall survive the termination of this
Agreement.
15.
MISCELLANEOUS.
(a) This Agreement may
only be amended by a writing signed by the parties hereto; which,
to the extent expressly agreed to by Bank in its discretion, may
include being amended by an Electronic Record signed by the parties
hereto using Electronic Signatures pursuant to the terms of this
Agreement. Any waiver, express or implied, of any provision hereof
and any delay or failure by Bank to enforce any provision shall not
preclude Bank from enforcing any such provision
thereafter.
(b)
Pledgor hereby irrevocably authorizes Bank to file one or more
financing statements describing all or part of the Collateral in
any filing office or jurisdiction as Bank may determine in its sole
discretion, and continuation statements, or amendments thereto,
relative to all or part of the Collateral as authorized by
applicable law. Such financing statements, continuation statements
and amendments will contain any other information required by the
UCC for the sufficiency or filing office acceptance of any
financing statement, continuation statement or amendment, including
whether Pledgor is an organization, the type of organization and
any organizational identification number issued to Pledgor. Pledgor
agrees to furnish any such information to Bank promptly upon
request. Pledgor also ratifies its authorization for Bank to have
filed any initial financing statement or amendments thereto filed
prior to the date hereof.
(c)
From time to time, Pledgor and Debtor shall, at the request of
Bank, execute such other agreements, documents or instruments or
take any other actions in connection with this Agreement as Bank
may reasonably deem necessary to evidence or perfect the security
interests granted herein, to maintain the first priority of the
security interests, or to effectuate the rights granted to Bank
herein, but their failure to do so shall not limit or affect any
security interest or any other rights of Bank in and to the
Collateral. Pledgor will execute and deliver to Bank any stock
powers, instructions to any securities intermediary, issuer or
transfer agent, proxies, or any other documents of transfer that
Bank requests in order to perfect, obtain control or otherwise
protect Bank's security interest in the Collateral or to effect
Bank's rights under this Agreement. Such powers or documents may be
executed in blank or completed prior to execution, as requested by
Bank.
(d)
Governing Law.
Except to the extent that any law of the United States may apply,
this Agreement shall be governed and interpreted according to the
laws of Alabama (the “Governing Law State”), without
regard to any choice of law, rules or principles to the contrary.
Nothing in this paragraph shall be construed to limit or otherwise
affect any rights or remedies of Bank under federal
law.
(e)
Acknowledgement Regarding
Any Supported QFCs. To the extent that this Agreement and
any document executed in connection with this Agreement
(collectively, “Loan
Documents”) provide support, through a guarantee or
otherwise, for any Swap Contract or any other agreement or
instrument that is a QFC (such support, “QFC Credit Support”, and
each such QFC, a “Supported QFC”), the
parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under
the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx
Xxxx Street Reform and Consumer Protection Act (together with the
regulations promulgated thereunder, the “U.S. Special Resolution
Regimes”) in respect of such Supported QFC and QFC
Credit Support (with the provisions below applicable
notwithstanding that the Loan Documents and any Supported QFC may
in fact be stated to be governed by the laws of the Governing Law
State and/or of the United States or any other state of the United
States):
(i) In
the event a Covered Entity that is party to a Supported QFC (each,
a “Covered
Party”) becomes subject to a proceeding under a U.S.
Special Resolution Regime, the transfer of such Supported QFC and
the benefit of such QFC Credit Support (and any interest and
obligation in or under such Supported QFC and such QFC Credit
Support, and any rights in property securing such Supported QFC or
such QFC Credit Support) from such Covered Party will be effective
to the same extent as the transfer would be effective under the
U.S. Special Resolution Regime if the Supported QFC and such QFC
Credit Support (and any such interest, obligation and rights in
property) were governed by the laws of the United States or a state
of the United States. In the event a Covered Party or a BHC Act
Affiliate of a Covered Party becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under the Loan
Documents that might otherwise apply to such Supported QFC or any
QFC Credit Support that may be exercised against such Covered Party
are permitted to be exercised to no greater extent than such
Default Rights could be exercised under the U.S. Special Resolution
Regime if the Supported QFC and the Loan Documents were governed by
the laws of the United States or a state of the United
States.
(ii) As
used in this paragraph, the following terms have the following
meanings:
“BHC Act Affiliate” of a
party means an “affiliate” (as such term is defined
under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of
such party.
“Covered Entity” means any
of the following: (i) a “covered entity” as that term
is defined in, and interpreted in accordance with, 12 C.F.R.
§ 252.82(b); (ii) a “covered bank” as that
term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or (iii) a “covered FSI” as that
term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b).
“Default Right” has the
meaning assigned to that term in, and shall be interpreted in
accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable.
“QFC” has the meaning
assigned to the term “qualified financial contract” in,
and shall be interpreted in accordance with, 12 U.S.C.
5390(c)(8)(D).
“Swap Contract” means (a)
any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity
options, forward commodity contracts, equity or equity index swaps
or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other
similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement, and (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with
any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master
Agreement.
16. FINAL
AGREEMENT. BY SIGNING THIS
DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS DOCUMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY
COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS
AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH
COMMITMENT LETTER, TERM SHEET, OR OTHER WRITTEN OUTLINE OF TERMS
AND CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS
DOCUMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF
THE PARTIES.
17.
Electronic Records and
Signatures. This Agreement and any document, amendment,
approval, consent, information, notice, certificate, request,
statement, disclosure or authorization related to this Agreement
(each a “Communication”),
including Communications required to be in writing, may, if agreed
by Bank, be in the form of an Electronic Record and may be executed
using Electronic Signatures, including, without limitation,
facsimile and/or .pdf. Pledgor agrees that any Electronic Signature
(including, without limitation, facsimile or .pdf) on or associated
with any Communication shall be valid and binding on Pledgor to the
same extent as a manual, original signature, and that any
Communication entered into by Electronic Signature, will constitute
the legal, valid and binding obligation of Pledgor enforceable
against Pledgor in accordance with the terms thereof to the same
extent as if a manually executed original signature was delivered
to Bank. Any Communication may be executed in as many counterparts
as necessary or convenient, including both paper and electronic
counterparts, but all such counterparts are one and the same
Communication. For the avoidance of doubt, the authorization under
this paragraph may include, without limitation, use or acceptance
by Bank of a manually signed paper Communication which has been
converted into electronic form (such as scanned into PDF format),
or an electronically signed Communication converted into another
format, for transmission, delivery and/or retention. Bank may, at
its option, create one or more copies of any Communication in the
form of an imaged Electronic Record (“Electronic Copy”), which
shall be deemed created in the ordinary course of Bank’s
business, and destroy the original paper document. All
Communications in the form of an Electronic Record, including an
Electronic Copy, shall be considered an original for all purposes,
and shall have the same legal effect, validity and enforceability
as a paper record. Notwithstanding anything contained herein to the
contrary, Bank is under no obligation to accept an Electronic
Signature in any form or in any format unless expressly agreed to
by Bank pursuant to procedures approved by it; provided, further,
without limiting the foregoing, (a) to the extent Bank has agreed
to accept such Electronic Signature, Bank shall be entitled to rely
on any such Electronic Signature purportedly given by or on behalf
of any Pledgor without further verification and (b) upon the
request of the Bank any Electronic Signature shall be promptly
followed by a manually executed, original counterpart. For purposes
hereof, “Electronic
Record” and “Electronic Signature”
shall have the meanings assigned to them, respectively, by 15 USC
§7006, as it may be amended from time to time.
[SIGNATURES
ON FOLLOWING PAGE]
The
parties executed this Agreement as of June 25, 2020, intending to
create an instrument executed under seal.
Bank:
Bank of America, N.A.
By: /s/
X.
Xxxxxx Xxxxx
X.
Xxxxxx Xxxxx XX, VP, Senior Relationship Manager
Address:
NC1-001-05-13
One
Independence Center
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000-0000
Pledgor:
Lakeland Industries, Inc.
By: /s/
Xxxxx
Xxxxxxx
(Seal)
Xxxxx
Xxxxxxx, Chief Financial Officer
Pledgor’s
Chief Executive Office:
000
Xxxxx Xxxx XX
Xxxxxxx, XX
00000
Attn:
Xxxxx Xxxxxxx
xxxxxxxxx@xxxxxxxx.xxx
|
Pledgor’s
type of organization: Corporation
Pledgor’s
state of incorporation or organization (if Pledgor is a
corporation, limited partnership, limited liability company or
other registered entity):
Delaware
|
Pledgor’s
organizational identification number if any, assigned by the state
of incorporation or organization (If no organizational
identification number has been assigned enter
“None”): 2089758
|
|
|
|
Pledge
Agreement
10
Exhibit A to Pledge Agreement
Description of Collateral
1.
All of
Pledgor’s equity ownership of ArtProm, LLC, which ownership
is not evidenced by a certificate.
2.
32,500 shares of
common stock of Indian & Pan-Pacific Sales Limited, evidenced
in whole or in part by certificate #4.
3.
65 shares of common
stock of Industrias Lakeland S.A. de C.V., evidenced in whole or in
part by certificate #1.
4.
34 shares of common
stock of Industrias Lakeland S.A. de C.V., evidenced in whole or in
part by certificate #2.
5.
1 share of common
stock of Industrias Lakeland S.A. de C.V., evidenced in whole or in
part by certificate #3.
6.
All of
Pledgor’s equity ownership of Lakeland (Beijing) Safety
Products Co., Ltd., which ownership is not evidenced by a
certificate.
7.
6,500 shares of
common stock of Lakeland (Hong Kong) Trading Co., Limited,
evidenced in whole or in part by certificate #2.
8.
All of
Pledgor’s equity ownership of Lakeland (Vietnam) Industries
Company Limited, which ownership is not evidenced by a
certificate.
9.
All of
Pledgor’s equity ownership of Lakeland Argentina S.R.L.,
which ownership is not evidenced by a certificate.
10.
162,24,866 shares
of common stock of Lakeland Gloves and Safety Apparel Private
Limited, evidenced in whole or in part by certificate
#14.
11.
467,100 shares of
common stock of Lakeland Gloves and Safety Apparel Private Limited,
evidenced in whole or in part by certificate #23.
12.
311,400 shares of
common stock of Lakeland Gloves and Safety Apparel Private Limited,
evidenced in whole or in part by certificate #24.
13.
327,210 shares of
common stock of Lakeland Gloves and Safety Apparel Private Limited,
evidenced in whole or in part by certificate #26.
14.
176,190 shares of
common stock of Lakeland Gloves and Safety Apparel Private Limited,
evidenced in whole or in part by certificate #27.
15.
All of
Pledgor’s equity ownership of Lakeland Industries Chile
Limitado, which ownership is not evidenced by a
certificate.
16.
65 shares of common
stock of Lakeland Industries Europe Limited, evidenced in whole or
in part by certificate #3.
17.
65 shares of common
stock of Lakeland Protective Wear Inc., evidenced in whole or in
part by certificate #C1.
18.
35 shares of common
stock of Lakeland Protective Wear Inc., evidenced in whole or in
part by certificate #C2.
Pledge
Agreement
11
19.
All of
Pledgor’s equity ownership of RussIndProtection, Ltd., which
ownership is not evidenced by a certificate.
20.
All of
Pledgor’s equity ownership of SpecProtect LLC, which
ownership is not evidenced by a certificate.
21.
1 share of
Debtor’s equity ownership of Xxxxxxxx, X.X., evidenced in
whole or in part by certificate #1.
22.
All of
Pledgor’s equity ownership of WeiFang Lakeland Safety
Products Co Ltd, which ownership is not evidenced by a
certificate.
24.
100 shares of
common stock of Lakeland Industries Australis Pty Limited,
evidenced in whole or in part by certificate #1.
25.
All present and
future income, proceeds (including identifiable cash proceeds),
earnings, increases, and substitutions from or for the Collateral
of every kind and nature, including without limitation all
payments, interest, profits, distributions, benefits, rights,
options, warrants, dividends, stock dividends, stock splits, stock
rights, regulatory dividends, subscriptions, monies, claims for
money due and to become due, proceeds of any insurance on the
Collateral, shares of stock of different par value or no par value
issued in substitution or exchange for shares included in the
Collateral, and all other property Pledgor is entitled to receive
on account of such Collateral, including accounts, documents,
instruments, chattel paper, and general intangibles.
Pledge
Agreement
12
