Exhibit 10.5
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of July 15, 2002 (as amended,
supplemented or otherwise modified from time to time, this "Security
Agreement"), by and between (a) Barneys NEW YORK, Inc., a Delaware corporation
(the "Grantor"), and (b) General Electric Capital Corporation, a Delaware
corporation, in its capacity as administrative agent (with its successors in
such capacity, the "Administrative Agent") for the Lenders (as defined below)
under that certain Credit Agreement, dated as of July 15, 2002 (as amended,
restated, supplemented or otherwise modified and in effect from time to time,
the "Credit Agreement"), among (i) Barney's, Inc., Barneys America, Inc.,
Barneys (CA) Lease Corp., Barneys (NY) Lease Corp., Xxxxx All-American
Sportswear Corp., BNY Licensing Corp., and Barneys America (Chicago) Lease Corp.
(collectively, the "Borrowers"), (ii) the Administrative Agent and (iii) the
lenders from time to time party thereto (collectively, the "Lenders").
W I T N E S S E T H:
WHEREAS, the Grantor will receive substantial direct and
indirect benefits from the making of the Loans (as defined in the Credit
Agreement), the issuance of the Letters of Credit (as defined in the Credit
Agreement) and the granting of the other financial accomodations to the
Borrowers under the Credit Agreement;
WHEREAS, each of the Borrowers is a party to the Credit
Agreement, pursuant to which the Lenders have agreed, subject to certain
conditions precedent, to make certain loans and other financial accommodations
to the Borrowers from time to time;
Whereas, the Grantor is party to that certain Guaranty, dated
of even date herewith, pursuant to which the Grantor has guaranteed to the
Administrative Agent and the Lenders the full payment and performance of all of
the Obligations (collectively, the "Guaranteed Obligations"); and
WHEREAS, in order to secure the prompt and complete payment,
observance and performance of (i) all of the Guaranteed Obligations and (ii) all
of the Grantor's obligations and liabilities hereunder and in connection
herewith (all the Guaranteed Obligations and such obligations and liabilities
hereunder being hereinafter referred to collectively as the "Liabilities"), the
Administrative Agent and the Lenders have required as a condition, among others,
to entering into the Credit Agreement that the Grantor execute and deliver this
Security Agreement.
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, each capitalized term
used herein that is defined in the Credit Agreement shall have the meaning
specified for such term in the Credit Agreement. All terms defined in Article 8
and Article 9 of the Uniform Commercial Code in effect as of the date hereof in
the State of New York are used herein as defined therein.
(b) The words "hereby," "hereof," "herein" and "hereunder" and
words of like import when used in this Security Agreement shall refer to this
Security Agreement as a whole and not to any particular provision of this
Security Agreement, and section references are to this Security Agreement unless
otherwise specified.
(c) All terms defined in this Security Agreement in the
singular shall have comparable meanings when used in the plural, and vice versa,
unless otherwise specified.
2. Grant of Security Interest. To secure the prompt and complete
payment, observance and performance of all the Liabilities, the Grantor hereby
grants (subject as set forth below) to the Administrative Agent for the benefit
of the Administrative Agent, the Lenders and the other Holders, a security
interest in all of the Grantor's rights, title and interests in and to the
following property, whether now owned or existing or hereafter arising or
acquired and wheresoever located (the "Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all General Intangibles (including payment
intangibles and Software);
(v) all Goods (including Inventory, Equipment
and Fixtures);
(vi) all Instruments;
(vii) all Investment Property;
(viii) all Deposit Accounts of the Grantor,
including all Blocked Accounts,
Concentration Accounts and all other bank
accounts and all deposits therein;
(ix) all money, cash or cash equivalents of the
Grantor;
(x) all Supporting Obligations and
Letter-of-Credit Rights of the Grantor;
(xi) commercial tort claims; and
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(xii) to the extent not otherwise included, all
Proceeds, tort claims, insurance claims and
other rights to payments not otherwise
included in the foregoing and products of
the foregoing and all accessions to,
substitutions and replacements for, and
rents and profits of, each of the foregoing.
This Security Agreement shall not create or be filed as a lien against the land,
building and/or improvements to the real property in which the goods, machinery,
equipment, appliances or other personal property covered hereby are to be
located or installed.
3. Continuing Liability. The Grantor hereby expressly agrees that,
notwithstanding anything set forth herein to the contrary, the Grantor shall
remain solely responsible under each contract, agreement, interest or obligation
as to which a Lien has been granted to the Administrative Agent hereunder for
the observance and performance of all of the conditions and obligations to be
observed and performed by the Grantor thereunder, all in accordance with and
pursuant to the terms and provisions thereof, and the exercise by the
Administrative Agent, any Lender of any rights under this Security Agreement,
the Credit Agreement or any other Loan Document shall not release the Grantor
from any of the Grantor's duties or obligations hereunder and under each such
contract, agreement, interest or obligation. Neither the Administrative Agent
nor any Lender shall have any duty, responsibility, obligation or liability
under any such contract, agreement, interest or obligation by reason of or
arising out of this Security Agreement or the assignment thereof by the Grantor
to the Administrative Agent or the granting by the Grantor to the Administrative
Agent of a Lien thereon or the receipt by the Administrative Agent, any Lender
of any payment relating to any such contract, agreement, interest or obligation
pursuant hereto, nor shall the Administrative Agent, any Lender be required or
obligated (nor to the extent prohibited by the terms of such contract,
agreement, interest or obligation or applicable law, rule or regulation, shall
the Administrative Agent, Lender or Issuer be permitted), in any manner, to (a)
perform or fulfill any of the obligations of the Grantor thereunder or pursuant
thereto, (b) make any payment, or make any inquiry as to the nature or the
sufficiency of any payment received by the Grantor or the sufficiency of any
performance by any party under any such contract, agreement, interest or
obligation, or (c) present or file any claim, or take any action to collect or
enforce any performance or payment of any amounts which may have been assigned
to the Grantor, on which the Grantor has been granted a Lien to which the
Grantor may be entitled at any time or times.
4. Representations, Warranties and Covenants. The Grantor hereby
represents, warrants and covenants that as of the date of the execution of this
Security Agreement, and until the termination of this Security Agreement
pursuant to Section 14 below:
(a) No effective security agreement, financing statement,
equivalent security or Lien instrument or continuation statement
covering all or any part of the Collateral is on file or of record in
any public office, except such as may have been filed (i) by the
Grantor in favor of the Administrative Agent pursuant to this Security
Agreement or the other Loan Documents, and (ii) in connection with any
Liens permitted under Section 9.03 of the Credit Agreement.
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(b) All of the Equipment and Inventory (other than Inventory
and Equipment sold in accordance with the terms of the Credit
Agreement, Equipment being repaired or serviced, Inventory in transit
or in the possession and control of subcontractors of the Grantor or
any other Person for processing and vehicles) are located at the places
specified in Schedule 1 attached hereto as amended from time to time
pursuant to Section 5(b) below and such location is an owned, leased or
bailment location as specified in Schedule 1 attached hereto. The
Grantor's name as it appears in official filings in the State of
Delaware, the type of entity of the Grantor (including corporation,
partnership, limited partnership or limited liability company),
organizational identification number issued by the State of Delaware or
a statement that no such number has been issued, the Grantor's state of
organization or incorporation, and the place where the Grantor's books
and records concerning the Collateral are currently kept are set forth
in Schedule 2 attached hereto and made a part hereof, and the Grantor
will not change such principal place of business or chief executive
office or remove such records without providing the Administrative
Agent with at least thirty (30) days' prior written notice of such
change. The Grantor will hold and preserve such records and Chattel
Paper and will permit representatives of the Administrative Agent, upon
reasonable notice and at times during normal business hours to inspect
and make abstracts from such records and Chattel Paper.
(c) The Grantor has exclusive possession and control of the
Equipment and Inventory except as permitted under the Credit Agreement.
(d) The Grantor is the legal and beneficial owner of the
Collateral in which it has rights free and clear of all Liens, except
as permitted under Section 9.03 of the Credit Agreement. The Grantor
has not, during the five (5) years preceding the date hereof, been
known as or used any other corporate or fictitious name, except as
disclosed on Schedule 3 hereto, nor acquired all or substantially all
the assets, capital stock or operating unit of any Person, except as
disclosed on Schedule 3 hereto and each predecessor in interest of the
Grantor during the five (5) years preceding the Closing Date is
disclosed on Schedule 3 hereto.
(e) This Security Agreement creates in favor of the
Administrative Agent a legal, valid and enforceable security interest
in the Collateral, securing the payment of the Liabilities. When
financing statements have been filed in the appropriate offices in the
Grantor's jurisdiction of incorporation or organization listed on
Schedule 2 hereto, the Administrative Agent will have a fully perfected
first-priority Lien on the Collateral to the extent such Lien may be
perfected by Uniform Commercial Code filings.
(f) No consent of any Person and no authorization, approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body or other third party is required either
for (i) the perfection or maintenance of the security interest created
hereby, except for the Uniform Commercial Code filings referred to in
clause (e) (and except for the filings with the United States Patent
and Trademark Office and except for, in the case of motor vehicles,
certificates of title which have been issued, which note the
Administrative Agent's security interest) or (ii) for the exercise by
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the Administrative Agent of its rights provided for in this Security
Agreement or the remedies in respect of the Collateral pursuant to this
Security Agreement.
(g) The Inventory produced by the Grantor has been produced in
compliance in all material respects with all requirements of the Fair
Labor Standards Act.
(h) Schedule 4 hereto lists all Instruments, Letter-of-Credit
Rights and Chattel Paper of the Grantor.
(i) Schedule 5 hereto sets forth a complete, true and accurate
list of all registered Intellectual Property in which the Grantor has
interests in or hold title to. This Security Agreement is effective to
create a valid and continuing Lien on and, upon filing of the
Intellectual Property Security Agreement with the United States Patent
and Trademark Office and the United States Copyright Office and the
filing of financing statements in the appropriate offices in State of
Delaware, perfected Liens in favor of the Administrative Agent on the
Grantor's registered Intellectual Property and such perfected Liens are
enforceable as such as against any and all creditors of and purchasers
from the Grantor. Upon filing of the Intellectual Property Security
Agreement with the United States Copyright Office and the United States
Patent and Trademark Office and the filing of appropriate financing
statements in the State of Delaware, all action necessary or desirable
to protect and perfect the Administrative Agent's Lien on the Grantor's
Intellectual Property shall have been duly taken.
(j) With respect to the Eligible Receivables, except as
specifically disclosed in the most recent Collateral Report delivered
to the Administrative Agent, (i) they represent bona fide sales of
Inventory or rendering of services to account debtors in the ordinary
course of the Grantor's business and are not evidenced by a judgment,
Instrument or Chattel Paper; (ii) there are no setoffs, claims or
disputes existing or asserted with respect thereto and no Grantor has
made any agreement with any account debtor for any extension of time
for the payment thereof, any compromise or settlement for less than the
full amount thereof, any release of any account debtor from liability
therefor, or any deduction therefrom except a discount or allowance
allowed by the Grantor in the ordinary course of its business for
prompt payment and disclosed to the Administrative Agent; (iii) to the
Grantor's knowledge, there are no facts, events or occurrences which in
any way impair the validity or enforceability thereof or could
reasonably be expected to reduce the amount payable thereunder as shown
on the Grantor's books and records and any invoices, statements and
Collateral Reports delivered to the Administrative Agent and Lenders
with respect thereto; (iv) no Grantor has received any notice of
proceedings or actions which are threatened or pending against any
account debtor which might result in any adverse change in such account
debtor's financial condition; and (v) the Grantor has no knowledge that
any account debtor is unable generally to pay its debts as they become
due. Further with respect to the Eligible Receivables, (x) the amounts
shown on all invoices, statements and Collateral Reports which may be
delivered to the Administrative Agent with respect thereto are actually
and absolutely owing to the Grantor as indicated thereon and are not in
any way contingent; (y) no payments have been or shall be made thereon
except payments immediately delivered to the applicable Blocked
Accounts or the Administrative Agent as required pursuant to the terms
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of Annex C to the Credit Agreement; and (z) to the Grantor's knowledge,
all account debtors have the capacity to contract.
5. Covenants. The Grantor covenants and agrees with the Administrative
Agent that from and after the date of this Security Agreement and until the
termination of this Security Agreement pursuant to Section 15 below:
(a) At any time and from time to time, upon the
Administrative Agent's written request and at the expense of the Grantor, the
Grantor will promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Administrative
Agent reasonably may deem desirable in order to perfect and protect any Lien
granted or purported to be granted hereby or to enable the Administrative Agent
to exercise and enforce its rights and remedies hereunder with respect to the
Collateral. Without limiting the generality of the foregoing, the Grantor will:
(i) upon the occurrence and during the continuance of an Event of Default, at
the request of the Administrative Agent, xxxx conspicuously each item of Chattel
Paper included in the Collateral and each related contract and each of its
records pertaining to the Collateral, with a legend, in form and substance
satisfactory to the Administrative Agent, indicating that such document, Chattel
Paper, related contract or Collateral is subject to the security interest
granted hereby; (ii) if any Collateral shall be evidenced by a promissory note
or other instrument (other than checks or drafts received in the ordinary course
of the Grantor's business), deliver and pledge to the Administrative Agent
hereunder such note or instrument duly endorsed and accompanied by duly executed
instruments of transfer or assignment, all in form and substance satisfactory to
the Administrative Agent; and (iii) execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices as the Administrative Agent may request, as may be necessary or
desirable, in order to perfect and preserve the security interest granted or
purported to be granted hereby. The Grantor hereby authorizes the Administrative
Agent to file any such financing or continuation statements without the
signature of the Grantor to the extent permitted by applicable law. The Grantor
hereby agrees that a carbon, photographic, photostatic or other reproduction of
this Security Agreement or of a financing statement is sufficient as a financing
statement to the extent permitted by applicable law.
(b) The Grantor shall keep the Equipment and
Inventory (other than Inventory and Equipment sold in accordance with the terms
of the Credit Agreement, Equipment being repaired or serviced, Inventory in
transit or in the possession and control of subcontractors of the Grantor and
vehicles) at the places specified in Schedule 1 hereto and deliver written
notice to the Administrative Agent at least 30 days prior to establishing any
other location at which it reasonably expects to maintain Inventory and/or
Equipment (it being understood and agreed that all action required by Section
5(a) hereof shall have been taken in the relevant jurisdiction with respect to
all such Equipment and/or Inventory prior to the establishment of any such
location). Upon the establishment of any such location, and after notice thereof
to the Administrative Agent as required in the preceding sentence, Schedule 1
hereto shall be deemed amended to add such location thereto without further
action by the Administrative Agent or the Grantor and the Grantor hereby
authorizes the Administrative Agent to substitute a new Schedule 1 hereto to
reflect such additional location(s).
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(c) The Grantor will keep and maintain at the
Grantor's own cost and expense satisfactory and complete records of the
Collateral in a manner reasonably acceptable to the Administrative Agent,
including, without limitation, a record of all payments received and all credits
granted with respect to such Collateral and a record of the Administrative
Agent's security interest in the Collateral. Upon the occurrence and during the
continuance of an Event of Default, the Grantor shall, for the Administrative
Agent's further security, deliver and turn over to the Administrative Agent or
the Administrative Agent's designated representatives at any time upon three (3)
Business Days' notice from the Administrative Agent or the Administrative
Agent's designated representative, copies of any such books and records
(including, without limitation, any and all computer tapes, programs and source
codes relating to the Collateral or any part or parts thereof).
(d) In any suit, proceeding or action brought by the
Administrative Agent under any Account comprising part of the Collateral, the
Grantor will save, indemnify and keep the Administrative Agent, each Lender
harmless from and against all expense (including reasonable attorneys' fees and
expenses), loss or damages suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of the obligor
thereunder, arising out of a breach by the Grantor of any obligation or arising
out of any other agreement, indebtedness or liability at any time owing to or in
favor of such obligor or its successors from the Grantor, and all such
obligations of the Grantor shall be and shall remain enforceable against and
only against the Grantor and shall not be enforceable against the Administrative
Agent or any Lender; provided, however, the Grantor shall have no obligation to
the Administrative Agent with respect to the matters indemnified pursuant to
this subsection (d) resulting from the willful misconduct or gross negligence of
the Administrative Agent or any Lender as determined in a final non-appealable
judgment by a court of competent jurisdiction.
(e) The Grantor will not create, permit or suffer to
exist, and will defend the Collateral against and take such other action as is
necessary to remove, any Lien on such Collateral, other than Liens permitted
under Section 9.03 of the Credit Agreement, and will defend the right, title and
interest of the Administrative Agent in and to the Grantor's rights to such
Collateral, including, without limitation, the proceeds and products thereof,
against the claims and demands of all Persons whatsoever other than claims
secured by Liens permitted under Section 9.03 of the Credit Agreement.
(f) Upon the occurrence and during the continuance of
an Event of Default, the Grantor will not, without the Administrative Agent's
prior written consent, except in the ordinary course of business and for amounts
which are not material to the Barneys Group, taken as a whole in the aggregate,
(i) grant any extension of the time of payment of any of the Collateral or
compromise, compound or settle the same for less than the full amount thereof;
(ii) release, wholly or partly, any Person liable for the payment thereof; or
(iii) allow any credit or discount whatsoever thereon other than trade discounts
granted in the ordinary course of business.
(g) The Grantor will advise the Administrative Agent
promptly, in reasonable detail, of (i) any material Lien or claim made by or
asserted against any or all of the Collateral, and (ii) the occurrence of any
other event which would have a material adverse effect on the aggregate value of
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the Collateral or on the Liens with respect to such Collateral created
hereunder.
(h) The Grantor shall, in accordance with the terms
of the Credit Agreement, obtain or use its commercially reasonable efforts to
obtain waivers or subordinations of Liens from landlords and mortgagees, and the
Grantor shall in all instances obtain signed acknowledgements of the
Administrative Agent's Liens from bailees having possession of the Grantor's
Goods that they hold for the benefit of the Administrative Agent.
(i) If required by the terms of the Credit Agreement
and not waived by the Administrative Agent in writing (which waiver may be
revoked), the Grantor shall obtain authenticated control letters from each
issuer of uncertificated securities, securities intermediary, or commodities
intermediary issuing or holding any financial assets or commodities to or for
the Grantor.
(j) In accordance with the Credit Agreement, the
Grantor shall obtain a blocked account, lockbox or similar agreement with each
bank or financial institution holding a Deposit Account for the Grantor.
(k) The Grantor that is or becomes the beneficiary of
a letter of credit shall promptly, and in any event within two (2) Business Days
after becoming a beneficiary, notify the Administrative Agent thereof and, upon
the request of the Administrative Agent, use commercially reasonable efforts to
enter into a tri-party agreement with the Administrative Agent and the issuer
and/or confirmation bank with respect to Letter-of-Credit Rights assigning such
Letter-of-Credit Rights to the Administrative Agent and directing all payments
thereunder to the Administrative Agent's Account, all in form and substance
reasonably satisfactory to the Administrative Agent.
(l) The Grantor shall take all steps necessary to
grant the Administrative Agent control of all electronic chattel paper in
accordance with the Uniform Commercial Code and all "transferable records" as
defined in each of the Uniform Electronic Transactions Act and the Electronic
Signatures in Global and National Commerce Act.
(m) The Grantor hereby irrevocably authorizes the
Administrative Agent at any time and from time to time to file in any filing
office in any Uniform Commercial Code jurisdiction any initial financing
statements and amendments thereto that (i) indicate the Collateral (A) as all
assets of the Grantor or words of similar effect, regardless of whether any
particular asset comprised in the Collateral falls within the scope of Article 9
of the Uniform Commercial Code or such jurisdiction, or (B) as being of an equal
or lesser scope or with greater detail, and (ii) contain any other information
required by part 5 of Article 9 of the Uniform Commercial Code for the
sufficiency or filing office acceptance of any financing statement or amendment,
including whether the Grantor is an organization, the type of organization and
any organization identification number issued to the Grantor. The Grantor agrees
to furnish any such information to the Administrative Agent promptly upon
request. The Grantor also ratifies its authorization for the Administrative
Agent to have filed in any Uniform Commercial Code jurisdiction any initial
financing statements or amendments thereto if filed prior to the date hereof.
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(n) The Grantor shall promptly, and in any event
within two (2) Business Days after the same is acquired by it, notify the
Administrative Agent of any commercial tort claim (as defined in the Uniform
Commercial Code) acquired by it and unless otherwise consented by the
Administrative Agent, the Grantor shall enter into a supplement to this Security
Agreement, granting to the Administrative Agent a Lien in such commercial tort
claim.
(o) The Grantor shall notify the Administrative Agent
immediately if it knows or has reason to know that any application or
registration relating to any material Intellectual Property (now or hereafter
existing) may become abandoned or dedicated to the public, or of any adverse
determination or development (including the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office, the United States Copyright Office or any court) regarding the
Grantor's ownership of any material Intellectual Property, its right to register
the same, or to keep and maintain the same. In no event shall the Grantor,
either itself or through any agent, employee, licensee or designee, file an
application for the registration of any Intellectual Property with the United
States Patent and Trademark Office, the United States Copyright Office or any
similar office or agency without giving the Administrative Agent written notice
within thirty (30) Business Days thereof, and, upon request of the
Administrative Agent, Grantor shall execute and deliver any and all agreements
and as the Administrative Agent may request to evidence the Administrative
Agent's Lien on such Intellectual Property, and the General Intangibles of the
Grantor relating thereto or represented thereby. The Grantor shall take all
actions necessary or requested by the Administrative Agent to maintain and
pursue each application, to obtain the relevant registration and to maintain the
registration of each of the Intellectual Property (now or hereafter existing),
including the filing of applications for renewal, affidavits of use, affidavits
of noncontestability and opposition and interference and cancellation
proceedings, unless the applicable Grantor shall determine that such
Intellectual Property is not material to the conduct of its business. In the
event that any of the Intellectual Property constituting Collateral is infringed
upon, or misappropriated or diluted by a third party, the Grantor shall comply
with Section 5(o) of this Security Agreement. The Grantor shall, unless the
Grantor shall reasonably determine that such Intellectual Property constituting
Collateral is in no way material to the conduct of its business or operations,
promptly pursue all possible remedies for such for infringement,
misappropriation or dilution and to recover any and all damages for such
infringement, misappropriation or dilution, and shall take such other actions as
the Administrative Agent shall deem appropriate under the circumstances to
protect such Intellectual Property constituting Collateral.
(p) The Grantor will, if so requested by the
Administrative Agent, furnish to the Administrative Agent, as often as the
Administrative Agent requests, statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the Administrative Agent may reasonably request, all in such
detail as the Administrative Agent may reasonably specify.
(q) The Grantor will advise the Administrative Agent
promptly, in reasonable detail, (i) of any Lien (other than Liens permitted by
the Credit Agreement) or claim made or, to its knowledge, asserted against any
of the Collateral, and (ii) of the occurrence of any other event which would
have a material adverse effect on the aggregate value of the Collateral or on
the Liens created hereunder or under any other Loan Document.
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(r) Without limiting the prohibitions on mergers
involving the Grantor contained in the Loan Documents, the Grantor shall not
reincorporate or reorganize itself under the laws of any jurisdiction other than
the jurisdiction in which it is incorporated or organized as of the date hereof
without the prior written consent of the Administrative Agent.
(s) The Grantor acknowledges that it is not
authorized to file any financing statement or amendment or termination statement
with respect to any financing statement filed pursuant to this Security
Agreement or any of the other Loan Documents without the prior written consent
of the Administrative Agent and agrees that it will not do so without the prior
written consent of the Administrative Agent, subject to the Grantor's rights
under Section 9-509(d)(2) of the Uniform Commercial Code.
6. Collections. Except as otherwise provided in this Section 6, the
Grantor shall continue to collect, at its own expense, all amounts due or to
become due the Grantor under the Accounts. In connection with such collections,
the Grantor may take (and, after the occurrence and during the continuation of
an Event of Default, at the Administrative Agent's direction, must take) such
action as the Grantor or, after the occurrence and during the continuation an
Event of Default, the Administrative Agent may deem necessary or advisable to
enforce collection of the Accounts; provided, however, that the Administrative
Agent shall have the right at any time, upon the occurrence and during the
continuance of an Event of Default, to require the Grantor to notify the account
debtors or obligors under any Accounts of the assignment of such Accounts to the
Administrative Agent and to direct such account debtors or obligors to make
payment of all amounts due or to become due to the Grantor thereunder directly
to the Administrative Agent and, upon such notification and at the expense of
the Grantor, to enforce collection of any such Accounts, and to adjust, settle
or compromise the amount or payment thereof, in the same manner and to the same
extent as the Grantor might have done. After receipt by the Grantor of the
notice from the Administrative Agent referred to in the proviso to the preceding
sentence, all amounts and proceeds (including instruments) received by the
Grantor in respect of the Accounts shall be received in trust for the benefit of
the Administrative Agent, the Lenders and the other Holders hereunder, shall be
segregated from other funds of the Grantor and shall be forthwith paid over to
the Administrative Agent in the same form as so received (with any necessary
endorsement) to be applied to the Guaranteed Obligations in accordance with the
Credit Agreement (including, without limitation, Section 3.02(b)(ii) thereof).
If an Event of Default shall have occurred and be continuing, the Administrative
Agent may at any time in the Administrative Agent's own name, in the name of a
nominee of the Administrative Agent or in the name of the Grantor communicate
(by mail, telephone, facsimile or otherwise) with account debtors, parties to
contracts and obligors in respect of Instruments to verify with such Persons, to
the Administrative Agent's satisfaction, the existence, amount terms of, and any
other matter relating to, Accounts, payment intangibles, Instruments or Chattel
Paper. If an Event of Default shall have occurred and be continuing, the
Grantor, at its own expense, shall cause the independent certified public
accountants then engaged by the Grantor or such other certified public
accountants reasonably acceptable to the Administrative Agent to prepare and
deliver to the Administrative Agent and each Lender at any time and from time to
time promptly upon the Administrative Agent's request the following reports with
respect to the Grantor: (i) a reconciliation of all Accounts; (ii) an aging of
all Accounts; (iii) trial balances; and (iv) a test verification of such
Accounts as the Administrative Agent may request. The Grantor, at its own
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expense, shall deliver to the Administrative Agent the results of each physical
verification, if any, which the Grantor may in its discretion have made, or
caused any other Person to have made on its behalf, of all or any portion of its
Inventory.
7. Remedies, Application of Proceeds, Rights upon Event of Default.
(a) Upon the occurrence and during the continuance of an Event
of Default, the Administrative Agent may exercise in respect of the Collateral,
in addition to all other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies provided for in the Credit
Agreement and all the rights and remedies of a secured party under the Uniform
Commercial Code, and all other applicable law as in effect in any relevant
jurisdiction. In addition, the Administrative Agent may also:
(i) require the Grantor to, and the Grantor hereby
agrees that it will at its expense and upon request of the Administrative Agent,
promptly assemble all, or such part, of the Collateral as directed by the
Administrative Agent and make such Collateral available to the Administrative
Agent at a place designated by the Administrative Agent, which place shall be
reasonably convenient to the Administrative Agent, whether at the premises of
the Grantor or otherwise;
(ii) enter, with or without process of law and
without breach of the peace, any premises where any of the Collateral or the
books and records of the Grantor related thereto are or may be located and,
without charge or liability to the Administrative Agent, seize and remove such
Collateral and such books and records from such premises, or remain upon such
premises and use the same for the purpose of enforcing any and all rights and
remedies of the Administrative Agent under this Security Agreement, the Credit
Agreement or any of the other Loan Documents; and
(iii) without notice, except as specified below,
sell, lease, assign, grant an option or options to purchase or otherwise dispose
of all or any part of the Collateral in one or more parcels, at public or
private sale or sales, at any exchange, broker's board or at any of the
Administrative Agent's offices or elsewhere, at such prices as the
Administrative Agent may deem best, for cash, on credit or for future delivery,
and upon such other terms as the Administrative Agent may deem commercially
reasonable; provided, however, that the Grantor shall not be credited with the
net proceeds of any such credit sale, future delivery or lease of the Collateral
until the cash proceeds thereof are actually received by the Administrative
Agent. The Grantor agrees that, to the extent notice of sale shall be required
by law, at least ten (10) Business Days' notice, or such longer period as may be
required by law, to the Grantor 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. No notification required by law need be given to the Grantor if
the Grantor has signed, after the occurrence of an Event of Default, a statement
renouncing any right to notification of sale or other intended disposition. The
Administrative Agent shall not be obligated to make any sale of any of the
Collateral regardless of notice of sale having been given. The Administrative
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. The Administrative
Agent and any Lender shall have the right upon any such public sale or sales
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and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in the Grantor, which right or equity is hereby expressly
waived and released. In the event of a sale of any Collateral, or any part
thereof, to a Lender or the Administrative Agent upon the occurrence and during
the continuance of an Event of Default, such Lender or the Administrative Agent
shall not deduct or offset from any part of the purchase price to be paid
therefor any indebtedness owing to it by the Grantor. Any and all proceeds
received by the Administrative Agent with respect to any sale of, collection
from or other realization upon all or any part of the Collateral, whether
consisting of monies, checks, notes, drafts, bills of exchange, money orders or
commercial paper of any kind whatsoever, shall be held by the Administrative
Agent and distributed by the Administrative Agent in accordance with the Credit
Agreement (including, without limitation, Section 3.02(b)(ii) thereof) and the
Grantor shall remain liable for any deficiency following the sale of the
Collateral. Subject to the terms of any applicable license agreement to which
the Grantor is a party, the Administrative Agent is hereby granted an
irrevocable license or other right to use, without charge, the Grantor's labels,
copyrights, patents, rights of use of any name, trade names, general
intangibles, trademarks and advertising matter, or any property of a similar
nature, in completing production of, advertising for sale and selling any
Collateral.
(b) To the extent permitted by applicable law, the Grantor
waives all claims, damages and demands against the Administrative Agent or any
Lender arising out of the repossession, retention or sale of the Collateral, or
any part or parts thereof, except any such claims, damages and awards arising
out of the gross negligence or willful misconduct of the Administrative Agent.
(c) The Grantor recognizes that in the event the Grantor fails
to perform, observe or discharge any of its obligations or liabilities under
this Security Agreement, no remedy at law will provide adequate relief to the
Administrative Agent and the Administrative Agent shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages.
(d) The rights and remedies provided under this Security
Agreement are cumulative and may be exercised singly or concurrently, and are
not exclusive of any rights and remedies provided by law or equity.
8. The Administrative Agent May Perform. If the Grantor fails to
perform any agreement contained herein, the Administrative Agent, upon written
notice to the Grantor if practicable, may itself perform, or cause performance
of, such agreement, and the expenses of the Administrative Agent incurred in
connection therewith shall constitute an Obligation payable by the Grantor on
demand.
9. The Administrative Agent's Duty of Care. The Administrative Agent
shall not be liable for any acts, omissions, errors of judgment or mistakes of
fact or law including, without limitation, acts, omissions, errors or mistakes
with respect to the Collateral, except for those arising out of or in connection
with the Administrative Agent's (i) gross negligence or willful misconduct, or
(ii) failure to use reasonable care with respect to the safe custody of the
Collateral in the Administrative Agent's possession. Without limiting the
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generality of the foregoing, the Administrative Agent shall be under no
obligation to take any steps necessary to preserve rights in the Collateral
against any other parties but may do so at its option. All expenses incurred in
connection therewith shall be for the sole account of the Grantor, and shall
constitute part of the Liabilities secured hereby.
10. Marshalling, Payments Set Aside; Administrative Agent Appointed
Attorney-in-Fact. The Administrative Agent shall be under no obligation to
marshal any assets in favor of the Grantor or against or in payment of any or
all of the Liabilities. To the extent that the Grantor makes a payment or
payments to the Administrative Agent or the Administrative Agent receives any
payment or proceeds of the Collateral for the benefit of the Administrative
Agent, any Lender or any other Holder, which payment(s) or proceeds or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any party under
any bankruptcy law, state or federal law, common law or equitable cause, then,
to the extent of such payment or proceeds received, the Liabilities or any part
thereof intended to be satisfied shall be revived and continue in full force and
effect, as if such payment or proceeds had not been received by the
Administrative Agent.
The Grantor agrees, upon the request of the Administrative
Agent and promptly following such request, to take any action and execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Security Agreement.
On the Closing Date, the Grantor shall execute and deliver to
the Administrative Agent a power of attorney (the "Power of Attorney")
substantially in the form attached hereto as Exhibit A. The power of attorney
granted pursuant to the Power of Attorney is a power coupled with an interest
and shall be irrevocable until the Termination Date. The powers conferred on the
Administrative Agent, for the benefit of the Administrative Agent and the
Lenders, under the Power of Attorney are solely to protect the Administrative
Agent's interests (for the benefit of the Administrative Agent and the Lenders)
in the Collateral and shall not impose any duty upon the Administrative Agent or
any Lender to exercise any such powers. The Administrative Agent agrees that (a)
except for the powers granted in clause (h) of the Power of Attorney, it shall
not exercise any power or authority granted under the Power of Attorney unless
an Event of Default has occurred and is continuing, and (b) the Administrative
Agent shall account for any moneys received by the Administrative Agent in
respect of any foreclosure on or disposition of Collateral pursuant to the Power
of Attorney provided that none of the Administrative Agent or any Lender shall
have any duty as to any Collateral, and the Administrative Agent and the Lenders
shall be accountable only for amounts that they actually receive as a result of
the exercise of such powers. NONE OF the Administrative Agent, THE LENDERS OR
THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES SHALL BE RESPONSIBLE TO THE GRANTOR FOR ANY ACT OR FAILURE TO
ACT UNDER ANY POWER OF ATTORNEY OR OTHERWISE, EXCEPT IN RESPECT OF DAMAGES
ATTRIBUTABLE SOLELY TO THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS
FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION, NOR FOR ANY PUNITIVE,
EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES.
11. Grant of License to Use Intellectual Property Constituting
Collateral. For the purpose of enabling the Administrative Agent to exercise
rights and remedies under Section 7 hereof (including, without limiting the
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terms of Section 7 hereof, in order to take possession of, hold, preserve,
process, assemble, prepare for sale, market for sale, sell or otherwise dispose
of Collateral), the Grantor hereby grants to the Administrative Agent, for the
benefit of the Administrative Agent and Lenders, an irrevocable, nonexclusive
license (exercisable without payment of royalty or other compensation to the
Grantor) to use, license or sublicense any Intellectual Property now owned or
hereafter acquired by the Grantor, and wherever the same may be located, and
including in such license access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof, unless prohibited by applicable law. The
Administrative Agent will not exercise the rights granted in this Section 11
until such time as the Administrative Agent shall be lawfully entitled to
exercise the rights and remedies under Section 7 hereof.
12. Severability. If any provision of this Security Agreement is held
to be prohibited or unenforceable in any jurisdiction the substantive laws of
which are held to be applicable hereto, such prohibition or unenforceability
shall not affect the validity or enforceability of the remaining provisions
hereof and shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Amendments, Waivers and Consents. None of the terms or provisions
of this Security Agreement may be waived, altered, modified or amended, and no
consent to any departure by the Grantor herefrom shall be effective, except by
or pursuant to an instrument in writing which (i) is duly executed by the
Grantor (if the Grantor is adversely affected by such amendment) and the
Administrative Agent and (ii) complies with the requirements of the Credit
Agreement. Any such waiver shall be valid only to the extent set forth therein.
A waiver by the Administrative Agent of any right or remedy under this Security
Agreement on any one occasion shall not be construed as a waiver of any right or
remedy which the Administrative Agent would otherwise have on any future
occasion. No failure to exercise or delay in exercising any right, power or
privilege under this Security Agreement on the part of the Administrative Agent
shall operate as a waiver thereof; and no single or partial exercise of any
right, power or privilege under this Security Agreement shall preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege.
14. Binding Effect; Successors and Assigns. This Security Agreement
shall be binding upon the Grantor and its successors and assign(s), and shall
inure to the benefit of the Administrative Agent, the Lenders and the other
Holders, and their respective successors and assigns. Nothing set forth herein
or in any other Loan Document is intended or shall be construed to give any
other Person any right, remedy or claim under, to or in respect of this Security
Agreement, the Credit Agreement or any other Loan Document or any Collateral.
The Grantor's successors shall include, without limitation, a receiver, trustee
or debtor-in-possession of or for the Grantor.
15. Termination of this Security Agreement; Release of Collateral. (a)
The security interest granted by the Grantor under this Security Agreement shall
terminate against all the Collateral upon final payment in full in cash of the
Guaranteed Obligations and termination of the Commitments. Upon such termination
and at the written request of the Grantor or its successors or assigns, and at
the cost and expense of the Grantor or its successors or assigns, the
Administrative Agent shall execute in a timely manner a satisfaction of this
Security Agreement and such instruments, documents or agreements as are
14
necessary or desirable to terminate and remove of record any documents
constituting public notice of this Security Agreement and the security interests
and assignments granted hereunder and shall assign and transfer, or cause to be
assigned and transferred, and shall deliver or cause to be delivered to the
Grantor, all property, including all monies, instruments and securities of the
Grantor then held by the Administrative Agent or any agent, bailee or nominee of
the Administrative Agent.
(b) Notwithstanding anything in this Security Agreement to the
contrary, the Grantor may, to the extent permitted by Section 9.02 of the Credit
Agreement, sell, assign, transfer or otherwise dispose of any Collateral. In
addition, the Collateral shall be subject to release in accordance with Section
12.09(c) of the Credit Agreement (such Collateral and the Collateral referred to
in the immediately preceding sentence being the "Released Collateral"). The
Liens under this Security Agreement shall terminate with respect to the Released
Collateral upon such sale, transfer, assignment, disposition or release and upon
the request of the Grantor, the Administrative Agent shall execute and deliver
such instrument or document as may be necessary to release the Liens granted
hereunder; provided, however, that (i) the Administrative Agent shall not be
required to execute any such documents on terms which, in the Administrative
Agent's opinion, would expose the Administrative Agent to liability or create
any obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Liabilities or any Liens on (or obligations of
the Grantor in respect of) all interests retained by the Grantor, including
without limitation, the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
16. Reinstatement. This Security Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against the Grantor for liquidation or reorganization, should the Grantor become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of the
Grantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Liabilities, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or
must otherwise be restored or returned by any obligee of the Liabilities,
whether as a "voidable preference," "fraudulent conveyance," or otherwise, all
as though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Liabilities shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.
17. Administrative Agent's Exercise of Rights and Remedies upon the
Occurrence and During the Continuance of an Event of Default. Notwithstanding
anything set forth herein to the contrary, it is hereby expressly agreed that
upon the occurrence and during the continuance of an Event of Default, the
Administrative Agent may, and upon the written direction of the Requisite
Lenders shall, exercise any of the rights and remedies provided in this Security
Agreement, the Credit Agreement and any of the other Loan Documents.
18. Notices. Any notice, demand, request or any other communication
required or desired to be served, given or delivered hereunder shall be in
writing and shall be served, given or delivered as provided in Section 13.08 of
the Credit Agreement.
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19. Section Headings. The section headings herein are for convenience
of reference only, and shall not affect in any way the interpretation of any of
the provisions hereof.
20. GOVERNING LAW. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
EXCEPT FOR PERFECTION AND ENFORCEMENT OF SECURITY INTERESTS AND LIENS IN OTHER
JURISDICTIONS, WHICH SHALL BE GOVERNED BY THE LAWS OF THOSE JURISDICTIONS. EACH
OF THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED IN XXX XXXX XXXXXX, XXXX XX
XXX XXXX, XXX XXXX. THE GRANTOR HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN XXX XXXX XXXXXX, XXXX XX XXX XXXX, XXX XXXX SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE
GRANTOR, ADMINISTRATIVE AGENT AND LENDERS PERTAINING TO THIS SECURITY AGREEMENT
OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS Security AGREEMENT; PROVIDED
THAT ADMINISTRATIVE AGENT, LENDERS AND GRANTOR ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY X XXXXX XXXXXXX XXXXXXX XX XXX XXXX XXXXXX;
AND, PROVIDED, FURTHER, NOTHING IN THIS SECURITY AGREEMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE GUARANTEED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF ADMINISTRATIVE AGENT. THE GRANTOR EXPRESSLY SUBMITS AND
CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND THE GRANTOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. THE GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO THE GRANTOR AT THE ADDRESS SET FORTH
ON ANNEX I TO THE CREDIT AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT THEREOF OR FIVE (5) DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
21. Further Indemnification. The Grantor agrees to pay, and to save the
Administrative Agent and each Lender harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all excise, sales or
other taxes which may be payable or determined to be payable with respect to any
of the Collateral or in connection with any of the transactions contemplated by
this Security Agreement.
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22. Counterparts. This Security Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
23. Consent to Jurisdiction and Service of Process. The Grantor agrees
that the terms of Section 13.14 of the Credit Agreement with respect to consent
to jurisdiction and service of process shall apply equally to this Security
Agreement. The Administrative Agent shall have the right to proceed against the
Grantor or its personal property in a court in any location to enable the
Administrative Agent to obtain personal jurisdiction over the Grantor, to
realize on the Collateral or any other security for the Liabilities or to
enforce a judgment or other court order entered in favor of the Administrative
Agent.
24. Waiver of Bond. The Grantor waives the posting of any bond
otherwise required of the Administrative Agent in connection with any judicial
process or proceeding to realize on the Collateral or any other security for the
Liabilities, to enforce any judgment or other court order entered in favor of
the Administrative Agent, or to enforce by specific performance, temporary
restraining order, or preliminary or permanent injunction, this Security
Agreement or any other agreement or document between the Administrative Agent
and the Grantor.
25. Advice of Counsel. The Grantor represents and warrants to the
Administrative Agent and the Lenders that it has discussed this Security
Agreement and, specifically, the provisions of Sections 20, 23, 24 and 27
hereof, with the Grantor's attorneys.
26. Further Assurances. The Grantor agrees that at any time and from
time to time, at the expense of the Grantor, the Grantor will promptly execute
and deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that the Administrative Agent may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Administrative Agent
to exercise and enforce its rights and remedies hereunder with respect to any
Collateral.
27. WAIVER OF JURY TRIAL. EACH OF THE GRANTOR AND THE ADMINISTRATIVE
AGENT WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN THE ADMINISTRATIVE AGENT AND THE GRANTOR
ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS SECURITY
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EITHER THE GRANTOR OR THE ADMINISTRATIVE AGENT MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECURITY AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
28. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Security Agreement. In the event
an ambiguity or question of intent or interpretation arises, this Security
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Security Agreement.
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29. Merger. This Security Agreement, taken together with all the other
Loan Documents, embodies the entire agreement and understanding, between the
Grantor and the Administrative Agent or any Lender and supersedes all prior
agreements and understandings, written and oral, relating to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this
Security Agreement or caused this Security Agreement to be executed and
delivered by their duly authorized officers as of the date first set forth
above.
BARNEYS NEW YORK, INC.
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION, as Administrative Agent
By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
