PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of July 27, 1998, made by SWANK,
INC., a Delaware corporation (the "Borrower"), in favor of PNC
BANK, NATIONAL ASSOCIATION, a national banking association, as
Agent (in such capacity, the "Agent") for the financial
institutions which are now or which hereafter become a party to
the Credit Agreement described below (the "Lenders").
W I T N E S S E T H:
WHEREAS, pursuant to the Revolving Credit and Security
Agreement dated as of even date herewith by and among the
Borrower, the Lenders and the Agent (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"),
the Lenders have agreed to make revolving advances to, and to
issue or participate in letters of credit for the account of, the
Borrower, all upon the terms and subject to the conditions set
forth therein;
WHEREAS, the Borrower owns all of the issued and outstanding
capital stock of Swank Sales International (V.I.), Inc., a Virgin
Islands corporation ("Swank Sales"; and
WHEREAS, it is a condition precedent to the obligation of
Lenders to make revolving advances to, and to issue or
participate in letters of credit for the account of, the Borrower
that the Borrower execute and deliver to Agent this Pledge
Agreement.
NOW, THEREFORE, in consideration of the premises and to
induce Agent and the Lenders to enter into the Credit Agreement,
the Borrower hereby agrees with the Agent and the Lenders as
follows:
1. Defined Terms. Unless otherwise defined herein, terms
which are defined in the Credit Agreement and used herein are so
used as so defined, and the following terms shall have the
following meanings:
"Code" means the Uniform Commercial Code from time to
time in effect in the State of New York.
"Collateral" means the Pledged Stock and all Proceeds,
whether now owned or hereafter acquired.
"Pledge Agreement" means this Pledge Agreement, as
amended, supplemented or otherwise modified from time to
time.
"Pledged Stock" means the shares of capital stock of
Swank Sales owned by the Borrower, as listed on Schedule I
hereto, together with all stock certificates, options or
rights of any nature whatsoever that may be issued or
granted by Swank Sales to the Borrower while this Pledge
Agreement is in effect.
"Proceeds" means all "proceeds" as such term is defined
in Section 9-306(1) of the Code in effect in the State of
New York on the date hereof and, in any event, shall
include, without limitation, all dividends or other income
from the Pledged Stock, collections thereon and
distributions with respect thereto.
"Securities Act" means the Securities Act of 1933, as
amended.
2. Pledge; Grant of Security Interest. The Borrower
hereby delivers to the Agent all the Pledged Stock that exists on
the date hereof and will immediately deliver to the Agent all
Pledged Stock that comes into existence in the future and hereby
grants to the Agent, for the ratable benefit of the Lenders, a
first priority security interest in all of the Borrower's right,
title and interest to and in the Collateral, as collateral
security for the prompt and complete performance of the
Obligations.
3. Stock Powers. Concurrently with the delivery to the
Agent of each certificate representing one or more shares of
Pledged Stock, the Borrower shall deliver an undated stock power
covering such certificate, duly executed in blank by the
Borrower.
4. Representations and Warranties. The Borrower
represents and warrants that:
(a) The shares of Pledged Stock listed on Schedule I
hereto constitute all the issued and outstanding shares of
all classes of the capital stock of Swank Sales owned by the
Borrower.
(b) All the shares of the Pledged Stock have been duly
and validly issued and are fully paid and nonassessable.
(c) The Borrower is the record and beneficial owner
of, and has good and marketable title to, the Pledged Stock
listed on Schedule I hereto, free of any and all Liens or
options in favor of, or claims of, any other Person, except
the Lien created by this Pledge Agreement and Permitted
Encumbrances.
(d) Upon delivery to the Agent of the stock
certificates evidencing the Pledged Stock, the Lien granted
pursuant to this Pledge Agreement will constitute a valid,
perfected first priority Lien (subject only to Permitted
Encumbrances) on the Collateral, enforceable as such against
all creditors of the Borrower and any Persons purporting to
purchase any Collateral from the Borrower, subject to (i)
limitations imposed by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
or relating to the enforcement of creditors' rights
generally, and (ii) general principles of equity, regardless
of whether such enforceability is considered in a proceeding
in equity or at law.
(e) Except as disclosed in Schedule 5.8(b) to the
Credit Agreement, the Borrower does not have any pending or
threatened litigation, arbitration, action or proceeding
which could reasonably be expected to have a material
adverse effect on the value of the Collateral, or Agent's
Lien on the Collateral, including the priority thereof.
5. Covenants. The Borrower covenants and agrees with the
Agent and the Lenders that, from and after the date of this
Pledge Agreement until the Obligations are paid and performed in
full and the Credit Agreement has been terminated:
(a) If the Borrower shall, as a result of its
ownership of the Pledged Stock, become entitled to receive
or shall receive any stock certificate (including, without
limitation, any certificate representing a stock dividend or
a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued
in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion
of, or in exchange for any shares of the Pledged Stock, or
otherwise in respect thereof, the Borrower shall accept the
same as the agent of the Agent and the Lenders, hold the
same in trust for the Agent and the Lenders and deliver the
same forthwith to the Agent in the exact form received, duly
indorsed by the Borrower to the Agent, if required, and if a
stock certificate is received, together with an undated
stock power covering such certificate duly executed in blank
by the Borrower, to be held by the Agent, subject to the
terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the
Pledged Stock upon the liquidation or dissolution of Swank
Sales shall be paid over to the Agent to be held by it
hereunder as additional collateral security for the
Obligations, and in case any distribution of capital shall
be made on or in respect of the Pledged Stock or any
property shall be distributed upon or with respect to the
Pledged Stock pursuant to the recapitalization or
reclassification of the capital of Swank Sales or pursuant
to the reorganization of Swank Sales, the property so
distributed shall be delivered to the Agent to be held by it
hereunder as additional collateral security for the
Obligations. If any sums of money or property so paid or
distributed in respect of the Pledged Stock shall be
received by the Borrower, the Borrower shall, until such
money or property is paid or delivered to the Agent, hold
such money or property in trust for the Agent and the
Lenders, segregated from other funds of the Borrower, as
additional collateral security for the Obligations.
(b) The Borrower will not (i) vote to enable, or take
any other action to permit, Swank Sales to issue any stock
or other equity securities of any nature or to issue any
other securities convertible into or granting the right to
purchase or exchange for any stock or other equity
securities of any nature of Swank Sales, (ii) sell, assign,
transfer, exchange or otherwise dispose of, or grant any
option with respect to, the Collateral or (iii) create,
incur or permit to exist any Lien or option in favor of, or
any claim of any Person with respect to, any of the
Collateral, or any interest therein, except for the Lien
provided for by this Pledge Agreement and Permitted
Encumbrances. The Borrower will defend the right, title and
interest of the Agent and the Lenders in and to the
Collateral against the claims and demands of all Persons
whomsoever.
(c) At any time and from time to time, upon the
written request of the Agent, and at the sole expense of the
Borrower, the Borrower will promptly and duly execute and
deliver such further instruments and documents and take such
further actions as the Agent may reasonably request for the
purposes of obtaining or preserving the full benefits of
this Pledge Agreement and of the rights and powers herein
granted. If any amount payable under or in connection with
any of the Collateral shall be or become evidenced by any
promissory note, other instrument or chattel paper, such
note, instrument or chattel paper shall be immediately
delivered to the Agent, duly endorsed in a manner reasonably
satisfactory to the Agent, to be held as Collateral pursuant
to this Pledge Agreement. Until such note, instrument or
chattel paper is delivered to the Agent, the Borrower shall
hold such note, instrument or chattel paper in trust for the
Agent and the Lenders, as additional collateral security for
the Obligations.
(d) The Borrower agrees to pay, and to save the Agent
and the Lenders harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and
all stamp, 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 Pledge Agreement.
(e) The Borrower shall promptly notify the Agent in
writing of any material adverse event relating to the
Collateral or any material adverse change in the value of
the Collateral.
(f) The Borrower shall furnish to the Agent such other
information relating to the Collateral as the Agent may from
time to time reasonably request.
6. Voting Rights. Unless an Event of Default shall have
occurred and be continuing, the Borrower shall be permitted to
exercise all voting and corporate rights with respect to the
Pledged Stock, provided that no vote shall be cast or corporate
right exercised or other action taken by or on behalf of the
Borrower which, in the Agent's reasonable judgment, is reasonably
likely to impair the Collateral or would result in any violation
of any provision of the Credit Agreement or any Other Document.
7. Rights of Lender.
(a) If an Event of Default shall occur and be
continuing, at the option of the Agent, all shares of the Pledged
Stock shall be registered in the name of the Agent or its
nominee, and the Agent or its nominee may thereafter exercise (i)
all voting, corporate and other rights pertaining to such shares
of the Pledged Stock at any meeting of shareholders of Swank
Sales or otherwise and (ii) any and all rights of conversion,
exchange, subscription and any other rights, privileges or
options pertaining to such shares of the Pledged Stock as if it
were the absolute owner thereof, all without liability except to
account for property actually received by it, but Agent shall
have no duty to the Borrower to exercise any such right,
privilege or option and shall not be responsible for any failure
to do so or delay in so doing.
(b) The rights of Agent hereunder shall not be
conditioned or contingent upon the pursuit by Agent or any Lender
of any right or remedy against Borrower or against any other
Person which may be or become liable in respect of all or any
part of the Obligations or against any collateral security
therefor, guarantee therefor or right of offset with respect
thereto. Neither the Agent nor any Lender shall be liable for
any failure to demand, collect or realize upon all or any part of
the Collateral or for any delay in so doing, nor shall the Agent
or any Lender be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Borrower or any
other Person or to take any other action whatsoever with regard
to the Collateral or any part thereof.
8. Remedies. If an Event of Default shall occur and be
continuing, the Agent and the Lenders may exercise, in addition
to all other rights and remedies granted in this Pledge Agreement
and in the Other Documents, all rights and remedies of a secured
party under the Code. Without limiting the generality of the
foregoing, the Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind
(except any notice required by law or referred to below) to or
upon the Borrower or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived
to the extent permitted by applicable law), may in such
circumstances forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and/or may forthwith
sell, assign, give option or options to purchase or otherwise
dispose of and deliver the Collateral, or any part thereof (or
contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, in the over-the-counter market,
at any exchange or broker's board or office of the Agent or
elsewhere, upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on
credit or for future delivery, without assumption of any credit
risk. The Agent and each Lender shall have the right upon any
such public sale or sales 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 Borrower, which right or equity is hereby
waived or released to the extent permitted by law. The Agent
shall apply any Proceeds from time to time held by it and the net
proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights
of the Agent and the Lenders hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of
counsel, to the payment in whole or in part of the Obligations,
in such order as the Agent may elect, and only after such
application and after the payment by the Agent of any other
amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the Code, need the Agent
account for the surplus, if any, to the Borrower. To the extent
permitted by applicable law, the Borrower waives all claims,
damages and demands it may acquire against the Agent and each
Lender arising out of the exercise by the Agent or such Lender of
any rights hereunder. If any notice of a proposed sale or other
disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least five (5)
days before such sale or other disposition. The Borrower further
waives and agrees not to assert any rights or privileges which it
may acquire under Section 9-112 of the Code.
9. Limitation on Duties Regarding Collateral. The Agent's
sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section
9-207 of the Code or otherwise, shall be to deal with it in the
same manner as the Agent deals with similar securities and
property for its own account. Neither the Agent, and Lender nor
any of their respective directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon
any of the Collateral or for any delay in so doing nor shall any
of them be under any obligation to sell or otherwise dispose of
any Collateral upon the request of the Borrower or otherwise.
10. Powers Coupled with an Interest. All authorizations
and agencies herein contained with respect to the Collateral are
irrevocable and powers coupled with an interest.
11. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
12. Paragraph Headings. The paragraph headings used in
this Pledge Agreement are for convenience of reference only and
are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
13. No Waiver; Cumulative Remedies. Lender shall not by
any act (except by a written instrument pursuant to paragraph 14
hereof) be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Event of Default or in any breach of
any of the terms and conditions hereof. No failure by the Agent
or any Lender to exercise, nor any delay by the Agent or any
Lender in exercising, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise
of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Agent or the Lender
of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Agent or the
Lenders would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised
singly or concurrently and are not exclusive of any other rights
or remedies provided by law.
14. Waivers and Amendments; Successors and Assigns;
Governing Law. None of the terms or provisions of this Pledge
Agreement may be amended, supplemented or otherwise modified
except by a written instrument executed by the Borrower and the
Agent, provided that any provision of this Pledge Agreement may
be waived by the Agent in a letter or agreement executed by the
Agent or by telex or facsimile transmission from the Agent. This
Pledge Agreement shall be binding upon the successors and assigns
of the Borrower and shall inure to the benefit of the Agent, the
Lenders and their respective successors and assigns. THIS PLEDGE
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLIED TO
CONTRACTS TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
15. Notices. All notices, requests and demands to or upon
the Borrower, the Agent or any Lender under or in connection with
this Pledge Agreement to be effective shall be in writing and
shall be given in accordance with Section 15.6 of the Credit
Agreement.
16. Irrevocable Authorization and Instruction to Borrower.
The Borrower hereby authorizes and instructs Swank Sales to
comply with any instruction concerning the Pledged Stock and/or
any Proceeds received by it from the Agent in writing that (a)
states that an Event of Default has occurred and is continuing,
and (b) is otherwise in accordance with the terms of this Pledge
Agreement, without any other or further instructions from the
Borrower and the Borrower agrees that Swank Sales shall be fully
protected in so complying.
17. Termination. This Pledge Agreement shall terminate
upon the indefeasible payment in full of each of the Obligations
and the termination of the Credit Agreement. At the time of such
termination, the Agent will execute and deliver to the Borrower
an instrument acknowledging the termination of this Pledge
Agreement and will duly assign, transfer and deliver to the
Borrower such of the Collateral which has not been sold, or
otherwise applied or released pursuant to this Pledge Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Pledge Agreement as of the date first above
written.
WITNESS: SWANK, INC.
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxxxxxx X. Xxxx
________________________
By:_______________________________
Name: Xxxxxxxxxxx X. Xxxx
Title: Senior Vice President
SCHEDULE 1
To Pledge
Agreement
DESCRIPTION OF PLEDGED STOCK
Stock
Class of Certificate No. of
Stock No. Shares
