EXHIBIT 10.13
EXECUTION COPY
AMENDED AND RESTATED PLEDGE AGREEMENT
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This AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of January 22,
2003 (together with all amendments, if any, from time to time hereto, this
"Agreement") among FINLAY FINE JEWELRY CORPORATION, a Delaware corporation
("Borrower"), FINLAY JEWELRY, INC., a Delaware corporation, ("Finlay"), Finlay
Merchandising & Buying, Inc., a Delaware corporation ("Finlay Merchandising")
and eFinlay, Inc., a Delaware corporation ("eFinlay"); (Borrower, Finlay, Finlay
Merchandising and eFinlay are sometimes collectively referred to herein as
"Pledgors" and individually as a "Pledgor") and GENERAL ELECTRIC CAPITAL
CORPORATION in its capacity as agent for the Lenders ("Agent").
W I T N E S S E T H:
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WHEREAS, the Borrower is party to the Amended and Restated Credit
Agreement dated as of September 11, 1997, among the Borrower, Finlay
Enterprises, Inc. ("Parent"), the Lenders thereunder and Agent (as amended, the
"Existing Credit Agreement");
WHEREAS, the Borrower is party to a Pledge Agreement dated as of May
26, 1993 (as amended, the "Existing Pledge Agreement"), in favor of the Agent;
WHEREAS, the Borrower is party to a Note Pledge Agreement, dated as of
October 28, 1994 (as amended, the "Existing Note Pledge Agreement"), in favor of
Agent;
WHEREAS, the Borrower, the Parent, the Lenders and the Agent have
agreed to amend and restate the Existing Credit Agreement on terms set forth in
the Second Amended and Restated Credit Agreement, dated as of the date hereof
(including all annexes, exhibits and schedules thereto, as from time to time
amended, restated, supplemented or otherwise modified, the "Credit Agreement"),
among the Borrower, the Parent, the Lenders, the Agent and Fleet Precious
Metals, Inc., as Documentation Agent, pursuant to which the Lenders have agreed
to continue to make secured revolving credit advances to the Borrower from time
to time;
WHEREAS, the Borrower, the Lenders and the Agent have agreed to amend
and restate the Existing Pledge Agreement and the Existing Note Pledge Agreement
to permit the foregoing on the terms set forth in this Agreement;
WHEREAS, Pledgors benefit from the credit facilities made available to
Borrower and it is a condition precedent to the obligation of the Lenders to
continue to make their respective secured revolving credit advances to the
Borrower under the Credit Agreement that the Pledgors shall have executed and
delivered this Agreement to the Agent;
WHEREAS, it is the intent of the parties hereto that this Agreement not
constitute a novation of the obligations and liabilities under the Existing
Pledge Agreement and the Existing Note Pledge Agreement or evidence payment of
all or any of such obligations and liabilities, that this Agreement amend and
restate in its entirety the Existing Pledge Agreement and the Existing Note
Pledge Agreement, and that from and after the effectiveness of this Agreement
the Existing Pledge Agreement and the Existing Note Pledge Agreement be of no
further force or effect except as to evidence the granting of the Liens
thereunder, the incurrence of the obligations of the parties thereto and the
representations and warranties made thereunder; and
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans and to incur Letter of
Credit Obligations under the Credit Agreement, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Agreement) the following
respective meanings (such meanings being equally applicable to both the singular
and plural form of the terms defined):
"Bankruptcy Code" means title 11, United States Code, as amended from
time to time, and any successor statute thereto.
"Pledged Collateral" has the meaning assigned to such term in Section 2
hereof.
"Pledged Entity" means an issuer of Pledged Shares or Pledged
Indebtedness.
"Pledged Indebtedness" means the Indebtedness evidenced by promissory
notes and instruments listed on Part B of Schedule I hereto;
"Pledged Shares" means those shares listed on Part A of Schedule I
hereto.
"Secured Obligations" has the meaning assigned to such term in Section
3 hereof.
2. Pledge. Each Pledgor hereby pledges to Agent, and grants to Agent
for itself and the benefit of Lenders, a first priority security interest in all
of the following (collectively, the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, distributions, 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 Shares; and
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(b) such portion, as determined by Agent as provided in Section
6(d) below, of any additional shares of stock of a Pledged Entity from
time to time acquired by such Pledgor in any manner (which shares shall be
deemed to be part of the Pledged Shares), and the certificates
representing such additional shares, and all dividends, distributions,
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 Stock; and
(c) the Pledged Indebtedness and the promissory notes or
instruments evidencing the Pledged Indebtedness, and all interest, cash,
instruments and other property and assets from time to time received,
receivable or otherwise distributed in respect of the Pledged
Indebtedness; and
(d) all additional Indebtedness arising after the date hereof and
owing to such Pledgor and evidenced by promissory notes or other
instruments, together with such promissory notes and instruments, and all
interest, cash, instruments and other property and assets from time to
time received, receivable or otherwise distributed in respect of that
Pledged Indebtedness.
3. Security for Obligations. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Obligations of any kind under or in connection with the Credit Agreement and the
other Loan Documents and all obligations of the Pledgors now or hereafter
existing under this Agreement including, without limitation, all fees, costs and
expenses whether in connection with collection actions hereunder or otherwise
(collectively, the "Secured Obligations").
4. Delivery of Pledged Collateral. All certificates and all promissory
notes and instruments evidencing the Pledged Collateral shall be delivered to
and held by or on behalf of Agent, for itself and the benefit of Lenders,
pursuant hereto. All Pledged Shares shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Agent and all promissory notes or other instruments evidencing
the Pledged Indebtedness shall be endorsed by Pledgor.
5. Representations and Warranties. Each Pledgor represents and warrants
to Agent that:
(a) such Pledgor is, and at the time of delivery of the Pledged
Shares to Agent will be, the sole holder of record and the sole beneficial
owner of such Pledged Collateral pledged by Pledgor free and clear of any
Lien thereon or affecting the title thereto, except for any Lien created
by this Agreement; such Pledgor is and at the time of delivery of the
Pledged Indebtedness to Agent will be, the sole owner of such Pledged
Collateral free and clear of any Lien thereon or affecting title thereto,
except for any Lien created by this Agreement and other Liens permitted to
exist on the Pledged Collateral under the Credit Agreement;
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(b) All of the Pledged Shares have been duly authorized, validly
issued and are fully paid and non-assessable; the Pledged Indebtedness has
been duly authorized, authenticated or issued and delivered by, and is the
legal, valid and binding obligations of, the Pledged Entities, and no such
Pledged Entity is in default thereunder;
(c) such Pledgor has the right and requisite authority to pledge,
assign, transfer, deliver, deposit and set over the Pledged Collateral
pledged by such Pledgor to Agent as provided herein;
(d) None of the Pledged Shares or Pledged Indebtedness 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;
(e) All of the Pledged Shares are presently owned by such
Pledgor, and are presently represented by the certificates listed on Part
A of Schedule I hereto. As of the date hereof, there are no existing
options, warrants, calls or commitments of any character whatsoever
relating to the Pledged Shares;
(f) No consent, approval, authorization or other order or other
action by, and no notice to or filing with, any Governmental Authority or
any other Person is required (i) for the pledge by such Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by such Pledgor, or (ii) for the
exercise by Agent of the voting or other rights provided for in this
Agreement or the remedies in respect of the Pledged 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;
(g) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first priority Lien on and
a first priority perfected security interest in favor of the Agent for the
benefit of Agent and Lenders in the Pledged Collateral and the proceeds
thereof, securing the payment of the Secured Obligations, subject to no
other Lien except for other Liens permitted to exist on the Pledged
Collateral under the Credit Agreement;
(h) This Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity);
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(i) The Pledged Shares constitute 100% of the issued and
outstanding shares of Stock of each Pledged Entity; and
(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness (except for the Secured Obligations) or subject to the terms
of an indenture.
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Each Pledgor covenants and agrees that until all of the
Secured Obligations have been paid (or in the case of Letter of Credit
Obligations, cash collateralized in accordance with the Credit Agreement) in
full:
(a) Without the prior written consent of Agent, such Pledgor will
not sell, assign, transfer, pledge, or otherwise encumber any of its
rights in or to the Pledged Collateral, or any unpaid dividends, interest
or other distributions or payments with respect to the Pledged Collateral
or xxxxx x Xxxx in the Pledged Collateral, unless otherwise expressly
permitted by the Credit Agreement;
(b) such Pledgor will, at its expense, promptly execute,
acknowledge and deliver all such instruments and take all such actions as
Agent from time to time may reasonably request in order to ensure to Agent
and Lenders the benefits of the Liens in and to the Pledged Collateral
intended to be created by this Agreement, including the filing of any
necessary UCC financing statements, which may be filed by Agent with or
(to the extent permitted by law) without the signature of Pledgor, and
will cooperate with Agent, at such Pledgor's expense, in obtaining all
necessary approvals and making all necessary filings under federal, state,
local or foreign law in connection with such Liens or, during the
existence of an Event of Default, any sale or transfer of the Pledged
Collateral;
(c) such Pledgor has and will defend the title to the Pledged
Collateral and the Liens of Agent in the Pledged Collateral against the
claim of any Person and will maintain and preserve such Liens; and
(d) such Pledgor will, upon obtaining ownership of any additional
Stock or promissory notes or instruments of a Pledged Entity or Stock or
promissory notes or instruments otherwise required to be pledged to Agent
pursuant to any of the Loan Documents, which Stock, notes or instruments
are not already Pledged Collateral, promptly (and in any event within five
(5) Business Days) deliver to Agent a Pledge Amendment, duly executed by
Pledgor, in substantially the form of Schedule II hereto (a "Pledge
Amendment") in respect of any such additional Stock, notes or instruments,
pursuant to which Pledgor shall pledge to Agent all of such additional
Stock, notes and instruments. Each Pledgor hereby authorizes Agent to
attach each Pledge Amendment to this Agreement and agrees that all Pledged
Shares and Pledged Indebtedness listed on any Pledge
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Amendment delivered to Agent shall for all purposes hereunder be
considered Pledged Collateral.
7. Pledgors' Rights. As long as no Event of Default shall have occurred
and be continuing and until written notice shall be given to the Pledgors in
accordance with Section 8(a) hereof:
(a) Each Pledgor shall have the right, from time to time, to vote
and give consents with respect to the Pledged Collateral, or any part
thereof for all purposes not inconsistent with the provisions of this
Agreement, the Credit Agreement or any other Loan Document; provided,
however, that no vote shall be cast, and no consent shall be given or
action taken, which would have the effect of adversely impairing the
position or interest of Agent in respect of the Pledged Collateral or
which would authorize, effect or consent to (unless and to the extent
expressly permitted by the Credit Agreement):
(i) the dissolution or liquidation, in whole or in part, of
a Pledged Entity;
(ii) the consolidation or merger of a Pledged Entity with
any other Person;
(iii) the sale, disposition or encumbrance of all or
substantially all of the assets of a Pledged Entity, except for Liens in
favor of Agent and Liens permitted to exist on the Pledged Collateral
under the Credit Agreement;
(iv) any change in the authorized number of shares, the
stated capital or the authorized share capital of a Pledged Entity or the
issuance of any additional shares of its Stock subject to Section 6(d); or
(v) the alteration of the voting rights with respect to the
Stock of a Pledged Entity; and
(b) (i) Each Pledgor shall be entitled, from time to time, to
collect and receive for its own use all cash dividends and interest paid
in respect of the Pledged Shares and Pledged Indebtedness to the extent
not in violation of the Credit Agreement other than any and all: (A)
dividends and interest paid or payable other than in cash in respect of
any Pledged Collateral, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for, any
Pledged Collateral; (B) dividends and other distributions paid or payable
in cash in respect of any Pledged Shares in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in capital of a Pledged Entity; and (C)
cash paid, payable or otherwise distributed, in respect of principal of,
or in redemption of, or in exchange for, any Pledged Collateral; provided,
however, that until actually paid
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all rights to such distributions shall remain subject to the Lien created
by this Agreement; and
(ii) all dividends and interest (other than such cash
dividends and interest as are permitted to be paid to each Pledgor in
accordance with clause (i) above) and all other distributions in respect
of any of the Pledged Shares or Pledged Indebtedness, whenever paid or
made, shall be delivered to Agent to hold as Pledged Collateral and shall,
if received by any 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 Pledged Collateral in the same form as so
received (with any necessary indorsement).
8. Defaults and Remedies; Proxy.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, and concurrently with written
notice to the Pledgors, Agent (personally or through an agent) is hereby
authorized and empowered to transfer and register in its name or in the
name of its nominee the whole or any part of the Pledged Collateral, to
exchange certificates or instruments representing or evidencing Pledged
Collateral for certificates or instruments of smaller or larger
denominations, to exercise the voting and all other rights as a holder
with respect thereto, to collect and receive all cash dividends, interest,
principal and other distributions made thereon, to sell in one or more
sales after ten (10) days' notice of the time and place of any public sale
or of the time at which a private sale is to take place (which notice the
Pledgors agree is commercially reasonable) the whole or any part of the
Pledged Collateral and to otherwise act with respect to the Pledged
Collateral as though Agent was the outright owner thereof. Any sale shall
be made at a public or private sale at Agent's place of business, or at
any place to be named in the notice of sale, either for cash or upon
credit or for future delivery at such price as Agent may deem fair, and to
the extent permitted under the UCC and other applicable law, Agent may be
the purchaser of the whole or any part of the Pledged Collateral so sold
and hold the same thereafter in its own right free from any claim of any
Pledgor or any right of redemption. Each sale shall be made to the highest
bidder, but Agent reserves the right to reject any and all bids at such
sale which, in its discretion, it shall deem inadequate. Demands of
performance, except as otherwise herein specifically provided for, notices
of sale, advertisements and the presence of property at sale are hereby
waived and any sale hereunder may be conducted by an auctioneer or any
officer or agent of Agent. EACH PLEDGOR HEREBY IRREVOCABLY CONSTITUTES AND
APPOINTS AGENT AS THE PROXY AND ATTORNEY-IN-FACT OF PLEDGOR WITH RESPECT
TO THE PLEDGED COLLATERAL, INCLUDING THE RIGHT TO VOTE THE PLEDGED SHARES,
WITH FULL POWER OF SUBSTITUTION TO DO SO. THE APPOINTMENT OF AGENT AS
PROXY AND ATTORNEY-IN-FACT IS COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE UNTIL ALL OF THE SECURED OBLIGATIONS HAVE BEEN PAID (OR IN
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THE CASE OF LETTER OF CREDIT OBLIGATIONS, CASH COLLATERALIZED IN
ACCORDANCE WITH THE CREDIT AGREEMENT) IN FULL. IN ADDITION TO THE RIGHT TO
VOTE THE PLEDGED SHARES, THE APPOINTMENT OF AGENT AS PROXY AND
ATTORNEY-IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS,
POWERS, PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF THE PLEDGED SHARES
WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF
SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH
MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE
NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY PLEDGED SHARES ON
THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE
ISSUER OF THE PLEDGED SHARES OR ANY OFFICER OR AGENT THEREOF), UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT and during the continuation of such
Event of Default. NOTWITHSTANDING THE FOREGOING, AGENT SHALL NOT HAVE ANY
DUTY TO EXERCISE ANY SUCH RIGHT OR TO PRESERVE THE SAME AND SHALL NOT BE
LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO.
(b) If, at the original time or times appointed for the sale of
the whole or any part of the Pledged Collateral, the highest bid, if there
be but one sale, shall be inadequate to discharge in full all the Secured
Obligations, or if the Pledged Collateral be offered for sale in lots, if
at any of such sales, the highest bid for the lot offered for sale would
indicate to Agent, in its discretion, that the proceeds of the sales of
the whole of the Pledged Collateral would be unlikely to be sufficient to
discharge all the Secured Obligations, Agent may, on one or more occasions
and in its discretion, postpone any of said sales by public announcement
at the time of sale or the time of previous postponement of sale, and no
other notice of such postponement or postponements of sale need be given,
any other notice being hereby waived; provided, however, that any sale or
sales made after such postponement shall be after ten (10) days' notice to
the Pledgors.
(c) If, at any time when Agent shall determine to exercise its
right to sell the whole or any part of the Pledged Collateral hereunder,
such Pledged Collateral or the part thereof to be sold shall not, for any
reason whatsoever, be effectively registered under the Securities Act of
1933, as amended (or any similar statute then in effect) (the "Act"),
Agent may, in its discretion (subject only to applicable requirements of
law), sell such Pledged Collateral or part thereof by private sale in such
manner and under such circumstances as Agent may deem necessary or
advisable, but subject to the other requirements of this Section 8, and
shall not be required to effect such registration or to cause the same to
be effected. Without limiting the generality of the foregoing, in any such
event, Agent in its discretion (x) may, in accordance with
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applicable securities laws, proceed to make such private sale
notwithstanding that a registration statement for the purpose of
registering such Pledged Collateral or part thereof could be or shall have
been filed under said Act (or similar statute), (y) may approach and
negotiate with a single possible purchaser to effect such sale, and (z)
may restrict such sale to a purchaser who is an accredited investor under
the Act and who will represent and agree that such purchaser is purchasing
for its own account, for investment and not with a view to the
distribution or sale of such Pledged Collateral or any part thereof. In
addition to a private sale as provided above in this Section 8, if any of
the Pledged Collateral shall not be freely distributable to the public
without registration under the Act (or similar statute) at the time of any
proposed sale pursuant to this Section 8, then Agent shall not be required
to effect such registration or cause the same to be effected but, in its
discretion (subject only to applicable requirements of law), may require
that any sale hereunder (including a sale at auction) be conducted subject
to restrictions:
(i) as to the financial sophistication and ability of any
Person permitted to bid or purchase at any such sale;
(ii) as to the content of legends to be placed upon any
certificates representing the Pledged Collateral sold in such sale,
including restrictions on future transfer thereof;
(iii) as to the representations required to be made by each
Person bidding or purchasing at such sale relating to that Person's access
to financial information about Pledgor and such Person's intentions as to
the holding of the Pledged Collateral so sold for investment for its own
account and not with a view to the distribution thereof; and
(iv) as to such other matters as Agent may, in its
discretion, deem necessary or appropriate in order that such sale
(notwithstanding any failure so to register) may be effected in compliance
with the Bankruptcy Code and other laws affecting the enforcement of
creditors' rights and the Act and all applicable state securities laws.
(d) Each Pledgor recognizes that Agent may be unable to effect a
public sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof in accordance with clause (c)
above. Each Pledgor also acknowledges that any such private sale may
result in prices and other terms less favorable to the seller than if such
sale were a public sale and, notwithstanding such circumstances, agrees
that any such private sale shall not be deemed to have been made in a
commercially unreasonable manner solely by virtue of such sale being
private. Agent shall be under no obligation to delay a sale of any of the
Pledged Collateral for the period of time necessary to permit the Pledged
Entity to register such securities for public sale under the Act, or under
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applicable state securities laws, even if Pledgor and the Pledged Entity
would agree to do so.
(e) Each Pledgor agrees to the maximum extent permitted by
applicable law that following the occurrence and during the continuance of
an Event of Default it will not at any time plead, claim or take the
benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay the
enforcement of this Agreement, or the absolute sale of the whole or any
part of the Pledged Collateral or the possession thereof by any purchaser
at any sale hereunder, and each Pledgor waives the benefit of all such
laws to the extent it lawfully may do so. Each Pledgor agrees that it will
not interfere with any right, power and remedy of Agent provided for in
this Agreement or now or hereafter existing at law or in equity or by
statute or otherwise, or the exercise or beginning of the exercise by
Agent of any one or more of such rights, powers or remedies. No failure or
delay on the part of Agent to exercise any such right, power or remedy and
no notice or demand which may be given to or made upon the Pledgors by
Agent with respect to any such remedies shall operate as a waiver thereof,
or limit or impair Agent's right to take any action or to exercise any
power or remedy hereunder, without notice or demand, or prejudice its
rights as against the Pledgors in any respect.
(f) Each Pledgor further agrees that a breach of any of the
covenants contained in this Section 8 will cause irreparable injury to
Agent, that Agent shall have no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant
contained in this Section 8 shall be specifically enforceable against each
Pledgor, and each Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants
except for a defense that the Secured Obligations are not then due and
payable in accordance with the agreements and instruments governing and
evidencing such obligations.
9. Waiver. No delay on Agent's part in exercising any power of sale,
Lien, option or other right hereunder, and no notice or demand which may be
given to or made upon the Pledgors by Agent with respect to any power of sale,
Lien, option or other right hereunder, shall constitute a waiver thereof, or
limit or impair Agent's right to take any action or to exercise any power of
sale, Lien, option, or any other right hereunder, without notice or demand, or
prejudice Agent's rights as against the Pledgors in any respect.
10. Assignment. Agent may assign, indorse or transfer any instrument
evidencing all or any part of the Secured Obligations as provided in, and in
accordance with, the Credit Agreement, and the holder of such instrument shall
be entitled to the benefits of this Agreement.
11. Termination. Immediately following the payment in full of all of
the Secured Obligations (or in the case of Letter of Credit Obligations, cash
collateralized
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in accordance with the Credit Agreement), Agent shall deliver to the Pledgors
the Pledged Collateral pledged by each Pledgor at the time subject to this
Agreement and all instruments of assignment executed in connection therewith,
free and clear of the Liens hereof and, except as otherwise provided herein, all
of Pledgors' obligations hereunder shall at such time terminate.
12. Lien Absolute. All rights of Agent hereunder, and all obligations
of each Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document or any other agreement or instrument
governing or evidencing any Secured Obligations;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document or any other agreement or
instrument governing or evidencing any Secured Obligations;
(c) any exchange, release or non-perfection of any other
Collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Secured Obligations;
(d) the insolvency of any Credit Party; or
(e) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Pledgor.
13. Release. Each Pledgor consents and agrees that Agent may at any
time, or from time to time, in its discretion:
(a) renew, extend or change the time of payment, and/or the
manner, place or terms of payment of all or any part of the Secured
Obligations; and
(b) exchange, release and/or surrender all or any of the
Collateral (including the Pledged Collateral), or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Agent in
connection with all or any of the Secured Obligations; all in such manner
and upon such terms as Agent may deem proper, and without notice to or
further assent from the Pledgors, it being hereby agreed that each Pledgor
shall be and remain bound upon this Agreement, irrespective of the value
or condition of any of the Collateral, and notwithstanding any such
change, exchange, settlement, compromise, surrender, release, renewal or
extension, and notwithstanding also that the Secured Obligations may, at
any time, exceed the aggregate principal amount thereof set forth in the
Credit Agreement, or any other agreement
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governing any Secured Obligations. Each Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and
notice of dishonor of any and all of the Secured Obligations, and
promptness in commencing suit against any party hereto or liable hereon,
and in giving any notice to or of making any claim or demand hereunder
upon Pledgor. No act or omission of any kind on Agent's part shall in any
event affect or impair this Agreement.
14. Reinstatement. This Agreement shall remain in full force and effect
and continue to be effective should any petition be filed by or against any
Pledgor or any Pledged Entity for liquidation or reorganization, should any
Pledgor or any Pledged Entity become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for all or any
significant part of a Pledgor's or a Pledged Entity'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 Secured Obligations, 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 Secured Obligations, 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 Secured Obligations
shall be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
15. Miscellaneous.
-------------
(a) Agent may execute any of its duties hereunder by or through
agents or employees and shall be entitled to advice of counsel concerning
all matters pertaining to its duties hereunder.
(b) Each Pledgor agrees to promptly reimburse Agent for actual
and reasonable out-of-pocket expenses, including, without limitation,
reasonable counsel fees, incurred by Agent in connection with the
administration and enforcement of this Agreement.
(c) Neither Agent, nor any of its respective officers, directors,
employees, agents or counsel shall be liable for any action lawfully taken
or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction.
(d) THIS AGREEMENT SHALL BE BINDING UPON EACH PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS (INCLUDING A DEBTOR-IN-POSSESSION ON BEHALF OF A
PLEDGOR), AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY, AGENT
AND ITS SUCCESSORS AND ASSIGNS, AND SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
12
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
STATE, AND NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE
WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED FOR AND
ON BEHALF OF AGENT AND EACH PLEDGOR.
16. Severability. If for any reason any provision or provisions hereof
are determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
17. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other a communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person or sent by
registered or certified mail, return receipt requested, with proper postage
prepaid, or by facsimile transmission and confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided herein:
(a) If to Agent, at:
General Electric Capital Corporation
000 Xxxxxxxxxxx Xxxxxx, Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Account Manager - Finlay
Telecopier: (000) 000-0000
with copies to:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Commercial Finance Legal Counsel
Telecopier: (000) 000-0000
-and-
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
(b) If to Pledgors, at:
13
Finlay Fine Jewelry Corporation
000 Xxxxx Xxxxxx, 0xx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
With copies to:
Finlay Enterprises, Inc.
000 Xxxxx Xxxxxx, 0xx Xxx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
-and-
Blank Rome LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx XxXxxxxxx, Esq.
Telecopier: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly served, given or delivered (a) if by registered or certified
mail, return receipt requested, four (4) Business Days following the date when
sent, (b) if by telex, when sent and answerback received, (c) if by overnight
courier, when received, (d) if by telecopier, when sent, or (e) when receipted
for, if personally delivered or delivered by messenger. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to the persons designated above to receive copies shall
in no way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
18. Section Titles. The Section titles contained in this Agreement are
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
19. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
20. Benefit of Lenders. All security interests granted or contemplated
hereby shall be for the benefit of Agent and Lenders, and all proceeds or
payments
14
realized from the Pledged Collateral in accordance herewith shall be applied to
the Obligations in accordance with the terms of the Credit Agreement.
[signature page follows]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
FINLAY FINE JEWELRY CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
------------------------
Title: Sr. V.P., Treas. & CFO
-----------------------
FINLAY JEWELRY, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
-----------------------------------
Title: Sr. V. P., Treas. & CFO
----------------------------------
FINLAY MERCHANDISING & BUYING, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: V.P., Sec. & General Counsel
----------------------------------
eFINLAY, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: V.P., Sec. & General Counsel
----------------------------------
[Signature Page to Amended and Restated Pledge Agreement]
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Duly Authorized Signatory
[Signature Page to Amended and Restated Pledge Agreement]
