Exhibit 4.4
PLEDGE AGREEMENT
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This Pledge Agreement (this "Agreement") dated as of November 25, 2003
between THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation having an
office at 1211 Avenue of the Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as agent for
Lenders (as defined below) (in such capacity, "Agent"), LOEHMANN'S HOLDINGS,
INC., a Delaware corporation having an office at 0000 Xxxxxx Xxxxxx, Xxxxx, Xxx
Xxxx 10461("Parent"), and LOEHMANN'S, INC., a Delaware corporation having an
office at 0000 Xxxxxx Xxxxxx, Xxxxx, Xxx Xxxx 00000 ("Sub-Parent" and, together
with Parent, each a "Pledgor" and collectively, the "Pledgors").
BACKGROUND TO THE AGREEMENT
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Pledgors, together with Xxxxxxxx'x Real Estate Holdings, Inc. ("REH"),
have executed and delivered to Agent a Guaranty dated November 25, 2003 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Guaranty") pursuant to which Pledgors and REH, jointly and severally,
guaranteed to Agent and Lenders the payment and performance of all of the
obligations and indebtedness of Xxxxxxxx'x Operating Co., a Delaware corporation
("Borrower"), to Agent and Lenders under a Loan and Security Agreement dated as
of November ___, 2003 among Borrower, Pledgors, REH, the financial institutions
named therein or which hereafter become a party thereto (each a "Lender" and
collectively, "Lenders") and Agent (as amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement").
In order to induce Agent and Lenders to provide or continue to provide
the financial accommodations to Borrower described in the Loan Agreement, and to
secure the obligations of Pledgors and REH to Agent under the Guaranty, Pledgors
have agreed to pledge and grant a security interest to Agent for its benefit and
for the ratable benefit of Lenders in the Collateral (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
All capitalized terms used herein which are not defined shall have the
meanings given to them in the Loan Agreement.
2. Pledge and Grant of Security Interest.
To secure the full and punctual payment and performance of the (a)
Liabilities and the obligations and liabilities of Pledgors and REH to Agent and
Lenders under the Guaranty and (b) Obligations (as such term is defined in that
certain Security Agreement, dated as of the date hereof, among Pledgors, REH and
Agent, as amended, restated, supplemented or otherwise modified from time to
time) of Pledgors and REH to Agent and Lenders ((a) and (b) collectively,
the "Indebtedness"), Pledgors hereby pledge, assign, hypothecate, transfer and
grant a security interest to Agent for its benefit and for the ratable benefit
of Lenders in all of the following (the "Collateral"):
(a) the shares of stock set forth on Schedule A annexed hereto
and expressly made a part hereof (the "Pledged Stock"), the certificates
representing the Pledged Stock and all dividends, cash, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the Pledged Stock;
(b) all additional shares of stock of any issuer of the
Pledged Stock (the "Issuer") from time to time acquired by either Pledgor in any
manner, including, without limitation, stock dividends or a distribution in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off or
split-off (which shares shall be deemed to be part of the Collateral), and the
certificates representing such additional shares, and all dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares; and
(c) all options and rights, whether as an addition to, in
substitution of or in exchange for any shares of the Pledged Stock.
3. Delivery of Collateral.
All certificates representing or evidencing the Pledged Stock shall be
delivered to and held by or on behalf of Agent pursuant hereto and shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to Agent. Pledgors hereby authorize the
Issuer upon demand by Agent to deliver any certificates, instruments or other
distributions issued in connection with the Collateral directly to Agent, in
each case to be held by Agent, subject to the terms hereof. Agent shall have the
right, at any time in its discretion and without notice to either of the
Pledgors, to transfer to or to register in the name of Agent or any of its
nominees any or all of the Pledged Stock, subject to the terms and conditions of
this Agreement. In addition, Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing Pledged Stock for
certificates or instruments of smaller or larger denominations.
4. Representations and Warranties of Pledgors.
Each Pledgor represents and warrants to Agent (which representations
and warranties shall be deemed to continue to be made until all of the
Indebtedness has been paid in full and the Loan Agreement and Guaranty have been
irrevocably terminated) that:
(a) Such Pledgor has the requisite power and authority to
enter into this Agreement, to pledge its respective Collateral for the purposes
described herein and to carry out the transactions contemplated by this
Agreement.
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(b) The execution, delivery and performance by such Pledgor of
this Agreement and the pledge of its respective Collateral hereunder have been
duly and properly authorized and do not and will not result in any violation of
any agreement, indenture, instrument, license, judgment, decree, order, law,
statute, ordinance or other governmental rule or regulation applicable to such
Pledgor.
(c) This Agreement constitutes the legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in accordance with
its terms.
(d) Such Pledgor is the direct and beneficial owner of each
share of its respective Pledged Stock.
(e) All of the shares of the Pledged Stock of such Pledgor
have been duly authorized, validly issued and are fully paid and nonassessable.
(f) This Agreement creates and grants a valid lien on and
perfected security interest in the respective Collateral of such Pledgor and the
proceeds thereof, subject to no prior security interest, mortgage, pledge,
claim, lien, charge, hypothecation, assignment, offset or encumbrance whatsoever
(collectively, "Liens") or to any agreement purporting to grant to any third
party a Lien upon the property or assets of such Pledgor which would include the
Collateral, other than, in each case, Permitted Liens (as applicable to the
applicable Pledgor).
(g) There are no restrictions on transfer of the respective
Pledged Stock of such Pledgor contained in the certificate of incorporation or
by-laws of the Issuer or otherwise which have not otherwise been enforceably and
legally waived by the necessary parties.
(h) None of the respective Pledged Stock of such Pledgor has
been issued or transferred in violation of the securities registration,
securities disclosure or similar laws of any jurisdiction to which such issuance
or transfer may be subject.
(i) There are no pending or, to the best of such Pledgor's
knowledge, threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely affect the
respective Collateral of such Pledgor.
(j) No consent, approval, authorization or other order of any
Person and no consent, authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required by
such Pledgor either (i) for the pledge of its respective Collateral pursuant to
this Agreement or for the execution, delivery or performance of this Agreement
or (ii) for the exercise by the Agent of the voting or other rights provided for
in this Agreement or the remedies in respect of such Collateral pursuant to this
Agreement, except as may be required in connection with such disposition by laws
affecting the offering and sale of securities generally.
(k) No notification of the pledge evidenced hereby to any
Person is required.
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(l) As of the date hereof, the respective Pledged Stock of
such Pledgor constitutes one hundred percent (100%) of the issued and
outstanding shares of capital stock of the Issuers thereof set forth on Schedule
A annexed hereto.
(m) As of the date hereof, there are no existing options,
warrants, calls or commitments of any such character whatsoever relating to any
of such Pledgor's respective Pledged Stock and no indebtedness or other security
convertible into any such Pledged Stock.
The representations and warranties set forth in this Section 4 shall
survive the execution and delivery of this Agreement.
5. Covenants.
Until such time as all of the Indebtedness has been paid in
full and the Loan Agreement and Guaranty have been irrevocably terminated, each
Pledgor shall, except as expressly permitted by the Loan Agreement:
(a) Not sell, assign, transfer, convey, or otherwise dispose
of its rights in or to its respective Collateral or any interest therein; nor
create, incur or permit to exist any Lien whatsoever with respect to any of such
Collateral or the proceeds thereof other than that created hereby.
(b) At such Pledgor's expense, defend Agent's right, title and
security interest in and to the Collateral against the claims of any Person and
keep its respective Collateral free from all Liens, except for the Liens granted
to Agent under this Agreement and for Permitted Liens (as applicable to the
applicable Pledgor).
(c) At any time, and from time to time, upon the written
request of Agent, execute and deliver such further documents and do such further
acts and things as Agent may reasonably request in order to effect the purposes
of this Agreement including, but without limitation, delivering to Agent upon
the occurrence and during the continuance of an Event of Default irrevocable
proxies in respect of its respective Collateral in form satisfactory to Agent.
Until receipt thereof, this Agreement shall constitute such Pledgor's proxy to
Agent or its nominee to vote all shares of such Collateral then registered in
such Pledgor's name, to be exercised only at the times permitted by this
Agreement.
(d) Within two (2) Business Days of receipt thereof by such
Pledgor, deliver to Agent all notices and statements relating to its respective
Collateral received by such Pledgor.
(e) Not consent to or approve the issuance to any person or
entity other than the respective Pledgors of (i) any additional shares of any
class of capital stock of the Issuer; (ii) any securities convertible either
voluntarily by the holder thereof or automatically upon the occurrence or
nonoccurrence of any event or condition into, or any securities exchangeable
for, any such shares; or (iii) any warrants, options, contracts or other
commitments entitling any person to purchase or otherwise acquire any such
shares.
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(f) Not create, incur, assume or suffer to exist any Lien or
other encumbrance of any kind (including the charge on property purchased under
conditional sales or other title retention agreements) upon any property or
assets, whether now owned or hereafter acquired.
(g) Not convey, sell, lease, transfer or otherwise dispose of
in one or a series of related transactions, all or any substantial part of its
property, business or assets.
6. Voting Rights and Dividends.
In addition to Agent's rights and remedies set forth in Section 8
hereof, in case an Event of Default shall have occurred and has been declared by
Agent, Agent may, at its option, (i) vote the Collateral, (ii) be entitled to
give consents, waivers and ratifications in respect of the Collateral (each
Pledgor hereby irrevocably constituting and appointing Agent, with full power of
substitution, the proxy and attorney-in-fact of such Pledgor for such purposes)
and (iii) be entitled to collect and receive for its own use cash dividends paid
on the Collateral. Neither Pledgor shall be permitted to exercise or refrain
from exercising any voting rights or other powers if, in the reasonable judgment
of Agent, such action would have a material adverse effect on the value of the
Collateral or any part thereof; and, provided, further, that such Pledgor shall
give at least ten (10) days' written notice of the manner in which such Pledgor
intends to exercise, or the reasons for refraining from exercising, any voting
rights or other powers other than with respect to any election of directors and
voting with respect to any incidental matters. All dividends and all other
distributions in respect of any of the Collateral, whenever paid or made, shall
be delivered to Agent to hold as Collateral and shall, if received by either
Pledgor, be received in trust for the benefit of Agent, be segregated from the
other property or funds of such Pledgor, and be forthwith delivered to Agent as
Collateral in the same form as so received (with any necessary endorsement).
7. Events of Default.
The term "Event of Default" wherever used herein shall mean the
occurrence of any one of the following events:
(a) an Event of Default shall occur under the Loan Agreement;
or
(b) the Collateral is subjected to a Lien other than a
Permitted Lien (as applicable to the applicable Pledgor).
8. Remedies.
Upon the occurrence and during the continuance of an Event of Default,
Agent may:
(a) Demand, collect, receipt for, settle, compromise, adjust,
xxx for, foreclose or realize upon the Collateral (or any part thereof), as
Agent may determine in its sole discretion;
(b) Transfer any or all of the Collateral into its name, or
into the name of its nominee or nominees;
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(c) Exercise all rights with respect to the Collateral
including, without limitation, all rights of conversion, exchange, subscription
or any other rights, privileges or options pertaining to any shares of the
Collateral as if it were the absolute owner thereof, including, but without
limitation, the right to exchange, at its discretion, any or all of the
Collateral upon the merger, consolidation, reorganization, recapitalization or
other readjustment of the Issuer thereof, or upon the exercise by the Issuer of
any right, privilege or option pertaining to any of the Collateral, and, in
connection therewith, to deposit and deliver any and all of the Collateral with
any committee, depository, transfer agent, registrar or other designated agent
upon such terms and conditions as it may determine, all without liability except
to account for property actually received by it;
(d) Subject to the requirements of applicable law, sell,
assign and deliver the whole or, from time to time, any part of the Collateral
at the time held by Agent, at any private or public sale or auction, with or
without demand, advertisement or notice of the time or place of sale or
adjournment thereof or otherwise (all of which are hereby waived, except such
notice as is required by applicable law and cannot be waived), for cash or
credit or for other property for immediate or future delivery, and for such
price or prices and on such terms as Agent in its sole discretion may determine,
or as may be required by applicable law.
Each Pledgor hereby waives and releases any and all right or
equity of redemption, whether before or after sale hereunder. At any such sale,
unless prohibited by applicable law, Agent may bid for and purchase the whole or
any part of the Collateral so sold free from any such right or equity of
redemption. All moneys received by Agent hereunder whether upon sale of the
Collateral or any part thereof or otherwise shall be held by Agent and applied
by it as provided in Section 10 hereof. No failure or delay on the part of Agent
in exercising any rights hereunder shall operate as a waiver of any such rights
nor shall any single or partial exercise of any such rights preclude any other
or future exercise thereof or the exercise of any other rights hereunder. Agent
shall have no duty as to the collection or protection of the Collateral or any
income thereon nor any duty as to preservation of any rights pertaining thereto,
except to apply the funds in accordance with the requirements of Section 10
hereof. Agent may exercise its rights with respect to property held hereunder
without resort to other security for or sources of reimbursement for the
Indebtedness. In addition to the foregoing, Agent shall have all of the rights,
remedies and privileges of a secured party under applicable law and the UCC
regardless of the jurisdiction in which enforcement hereof is sought.
9. Private Sale.
Each Pledgor recognizes that Agent may be unable to effect (or to do so
only after delay which would adversely affect the value that might be realized
from the Collateral) a public sale of all or part of the Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as amended, and
may be compelled to resort to one or more private sales to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor agrees that any such private sale
may be at prices and on terms less favorable to the seller than if sold at
public sales and that such private sales shall be deemed to have been made
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in a commercially reasonable manner. Each Pledgor agrees that Agent has no
obligation to delay sale of any Collateral for the period of time necessary to
permit the applicable Issuers to register the Collateral for public sale under
the Securities Act.
10. Proceeds of Sale.
The proceeds of any collection, recovery, receipt, appropriation,
realization, disposition or sale of the Collateral shall be applied by Agent as
follows:
(a) First, to the payment of all costs, expenses and charges
of Agent and to the reimbursement of Agent for the prior payment of such costs,
expenses and charges incurred in connection with the care and safekeeping of any
of the Collateral (including, without limitation, the expenses of any sale or
other proceeding, the expenses of any taking, attorneys' fees and expenses,
court costs, any other fees or expenses incurred or expenditures or advances
made by Agent and Lenders in the protection, enforcement or exercise of its
rights, powers or remedies hereunder) with interest on any such reimbursement at
the rate set forth in Section 4.1(d) of the Loan Agreement from the date of
payment.
(b) Second, to the payment of the Indebtedness, in whole or in
part, in such order as Agent may elect, whether such Indebtedness is then due or
not due.
(c) Third, to such Persons as required by applicable law
including, without limitation, Section 9-615(a)(3) of the UCC.
(d) Fourth, to the extent of any surplus thereafter remaining,
to Pledgor or as a court of competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery,
receipt, appropriation, realization or sale are insufficient to satisfy the
Indebtedness, Pledgors shall be liable for the deficiency together with interest
thereon at the rate set forth in Section 4.1(d) of the Loan Agreement plus the
costs and fees of any attorneys employed by Agent and/or Lenders to collect such
deficiency.
Agent, in its sole and absolute discretion, with or without
notice to either Pledgor, may deposit any proceeds of any collection, recovery,
receipt, appropriation, realization, disposition or sale of the Collateral in a
non-interest bearing cash collateral deposit account to be maintained as
security for the Indebtedness.
11. Waiver of Marshaling.
Each Pledgor hereby waives any right to compel any marshaling of any of
the Collateral.
12. Agent Appointed Attorney-In-Fact and Performance by Agent. Each
Pledgor hereby irrevocably constitutes and appoints Agent as such Pledgor's true
and lawful attorney-in-fact, with full power of substitution, to, upon the
occurrence and during the continuance of an Event of Default, execute,
acknowledge and deliver any instruments and to do in such Pledgor's
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name, place and stead, all such acts, things and deeds for and on behalf of and
in the name of such Pledgor, which such Pledgor could or might do or which Agent
may deem necessary, desirable or convenient to accomplish the purposes of this
Agreement, including, without limitation, to execute such instruments of
assignment or transfer or orders and to register, convey or otherwise transfer
title to the Collateral into Agent's name. Each Pledgor hereby ratifies and
confirms all that said attorney-in-fact may so do in the absence of gross
negligence and willful misconduct of said attorney-in-fact and hereby declares
this power of attorney to be coupled with an interest and irrevocable. If either
Pledgor fails to perform any agreement herein contained, Agent may itself
perform or cause performance thereof, and any costs and expenses of Agent
incurred in connection therewith shall be paid by Pledgors as provided in
Section 23 hereof.
13. Termination.
This Agreement shall terminate and Pledgors shall be entitled to the
return, at Pledgors' expense, of such of the Collateral as has not theretofore
been sold, disposed of or otherwise applied pursuant to this Agreement upon
payment in full of the Indebtedness and irrevocable termination of the Loan
Agreement.
14. Concerning Agent.
The recitals of fact herein shall be taken as statements of Pledgors
for which Agent assumes no responsibility. Agent makes no representation to
anyone as to the value of the Collateral or any part thereof or as to the
validity or adequacy of the security afforded or intended to be afforded thereby
or as to the validity of this Agreement. Agent shall be protected in relying
upon any notice, consent, request or other paper or document believed by it to
be genuine and correct and to have been signed by a proper person. The
permissive rights of Agent hereunder shall not be construed as duties of Agent.
Agent shall be under no obligation to take any action toward the enforcement of
this Agreement or rights or remedies in respect of any of the Collateral. Agent
shall not be personally liable for any action taken or omitted by it in good
faith and reasonably believed by it to be within the power or discretion
conferred upon it by this Agreement.
15. Notices.
Any notice or other communication required or permitted pursuant to
this Agreement shall be given in accordance with the Loan Agreement.
16. Governing Law.
This Agreement and all rights and obligations hereunder shall be
governed by and construed and enforced in all respects in accordance with the
laws of the State of New York applied to contracts to be performed wholly within
the State of New York.
17. Waivers.
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EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OTHER AGREEMENT EXECUTED OR DELIVERED BY
THEM IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HERETO HEREBY AGREES AND CONSENTS
THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH
PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
18. Litigation.
EACH PARTY TO THIS AGREEMENT EXPRESSLY CONSENTS TO THE JURISDICTION AND
VENUE OF EACH COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE OF NEW YORK
FOR ALL PURPOSES IN CONNECTION WITH THIS AGREEMENT. ANY JUDICIAL PROCEEDING BY
EITHER PLEDGOR AGAINST AGENT INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR
CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT
SHALL BE BROUGHT ONLY IN A STATE COURT LOCATED IN THE COUNTY OF NEW YORK, STATE
OF NEW YORK. EACH PLEDGOR FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER
PROCESS OR PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER
APPLICATION TO EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY
NOTICE IN CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR
OUTSIDE OF THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE
PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER
AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. EACH PLEDGOR WAIVES ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL
NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON
FORUM NON CONVENIENS.
19. No Waiver; Cumulative Remedies.
Any and all of Agent's and Lenders' rights with respect to the Liens
granted under this Agreement shall continue unimpaired, and Pledgors shall be
and remain obligated in accordance with the terms hereof, notwithstanding (a)
the bankruptcy, insolvency or reorganization of either Pledgor, (b) the release
or substitution of any item of the Collateral at any time, or of any rights or
interests therein, or (c) any delay, extension of time, renewal, compromise or
other indulgence granted by Agent and Lenders in reference to any of the
Indebtedness. Each Pledgor hereby
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waives all notice of any such delay, extension, release, substitution, renewal,
compromise or other indulgence, and hereby consents to be bound hereby as fully
and effectively as if such Pledgor had expressly agreed thereto in advance. No
failure on the part of Agent or Lenders to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof nor shall
any single or partial exercise of any such right, power or remedy by Agent and
Lenders preclude any other or further exercise thereof or the exercise of any
right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
20. Severability.
In case any security interest or other right of Agent and/or any Lender
shall be held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other security interest or
other right, privilege or power granted under this Agreement. In the event that
any provision of this Agreement or the application thereof to either Pledgor or
any circumstance in any jurisdiction governing this Agreement shall, to any
extent, be invalid or unenforceable under any applicable statute, regulation, or
rule of law, such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform to such statute,
regulation or rule of law, and the remainder of this Agreement and the
application of any such invalid or unenforceable provision to parties,
jurisdictions, or circumstances other than to whom or to which it is held
invalid or unenforceable shall not be affected thereby, nor shall same affect
the validity or enforceability of any other provision of this Agreement.
21. Counterparts; Facsimiles.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which when taken together shall
constitute one and the same instrument. Any signature delivered by a party by
facsimile transmission shall be deemed an original signature hereto.
22. Miscellaneous.
(a) This Agreement constitutes the entire and final agreement
among the parties with respect to the subject matter hereof and neither this
Agreement nor any term hereof may be changed, discharged or terminated orally,
but only by an instrument in writing, signed by Agent and Pledgors. No waiver of
any term or condition of this Agreement, whether by delay, omission or
otherwise, shall be effective unless in writing and signed by the party sought
to be charged, and then such waiver shall be effective only in the specific
instance and for the purpose for which given.
(b) This Agreement shall be binding upon Pledgors, and
Pledgors' successors and assigns, and shall inure to the benefit of Agent,
Lenders and their successors and assigns. The term "Agent", as used herein,
shall include any successor or assign of Agent at the time entitled to the
pledged interest in the Collateral.
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(c) The headings and captions in this Agreement are for
purposes of reference only and shall not constitute part of this Agreement for
any other purpose.
23. Expenses.
The Collateral shall also secure, and Pledgors shall pay to Agent on
demand, from time to time, all costs and expenses, (including but not limited
to, attorneys' fees and costs, taxes, and all transfer, recording, filing and
other charges) of, or incidental to, the custody, care, transfer, administration
of the Collateral or any other collateral, or in any way relating to the
enforcement, protection or preservation of the rights or remedies of Agent and
Lenders under this Agreement or with respect to any of the Indebtedness.
24. Recapture
Anything in this Agreement to the contrary notwithstanding, if Agent
and/or Lenders receives any payment or payments on account of the Indebtedness,
which payment or payments 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 other party under the United States
Bankruptcy Code, as amended, or any other federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally, common law or equitable doctrine,
then to the extent of any sum not finally retained by Agent and/or Lenders,
Pledgors' obligations to Agent and Lenders shall be reinstated and this
Agreement shall remain in full force and effect (or be reinstated) until payment
shall have been made to Agent, which payment shall be due on demand.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
XXXXXXXX'X HOLDINGS, INC.
By:
-------------------------------------
Name:
Its:
XXXXXXXX'X, INC.
By:
-------------------------------------
Name:
Its:
THE CIT GROUP/BUSINESS CREDIT, INC., as
Agent
By:
-------------------------------------
Name:
Its:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _______ day of November, 2003, before me personally came
_______________ to me known, who, being by me duly sworn did depose and say that
s/he is the ________________ of Xxxxxxxx'x Holdings, Inc., the corporation
described in and which executed the above instrument; and that s/he signed
her/his name thereto by order of the board of directors of said corporation.
--------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the _______ day of November, 2003, before me personally came
_______________ to me known, who, being by me duly sworn did depose and say that
s/he is the ________________ of Xxxxxxxx'x, Inc., the corporation described in
and which executed the above instrument; and that s/he signed her/his name
thereto by order of the board of directors of said corporation.
--------------------------------
Notary Public
SCHEDULE A
PLEDGED STOCK
1. Pledged Stock of Parent
-----------------------
Stock Certificate Par Number of
Issuer Class of Stock Number Value Shares
------ -------------- ------ --------- ------
Xxxxxxxx'x, Inc. Common 1 $.01 per 100
share
1. Pledged Stock of Sub-Parent
---------------------------
Stock Certificate Par Number of
Issuer Class of Stock Number Value Shares
------ -------------- ------ --------- ------
Xxxxxxxx'x Operating Co. Common 2 $.01 per 100
share
Xxxxxxxx'x Real Estate Holdings, Inc. Common 2 $.01 per 100
share
