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Exhibit 10.95
PARENT CASH EQUIVALENT PLEDGE AGREEMENT
NOMURA HOLDING AMERICA INC.,
as Collateral Agent
Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
As of August 15, 1996
THE CHASE MANHATTAN BANK,
as Agent for Issuing Bank
Corporate Trust Group
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Escrow Administrator
15th Floor
Re: Renaissance Cosmetics, Inc.
Gentlemen/Ladies:
Reference is made to the negotiable certificate of deposit more
particularly described on Schedule 1 hereto issued by The Chase Manhattan Bank,
as issuer of such certificate of deposit (in such capacity, the "Issuing Bank"),
to Renaissance Cosmetics, Inc., a Delaware corporation (the "Obligor"), together
with interest accrued thereon, any proceeds thereof and any other certificate of
deposit or other instrument or security in which such proceeds may be reinvested
(collectively, the "Instrument").
The Obligor has granted to Nomura Holding America Inc., as collateral
agent (in such capacity, the "Secured Party"), and by its execution of a
counterpart of this Agreement the Obligor does hereby confirm and grant to the
Secured Party, a security interest in the Instrument and all proceeds thereof as
collateral security for the prompt and complete payment and performance when due
by the Obligor of the Parent Obligations pursuant to, and as such term is
defined in, the Pledge and Security Agreement, dated as of December 21, 1994,
between the Obligor and the Secured Party, as amended (the "Parent Security
Agreement"). Upon the Obligor's receipt of the Instrument from the Issuing Bank,
the Obligor hereby agrees to immediately deliver the Instrument to the Secured
Party to hold in pledge pursuant to this Agreement and the Parent Security
Agreement until the date on which the Parent Obligations are paid in full.
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1. The Chase Manhattan Bank, Corporate Trust Group, as Agent for the
Issuing Bank (in such capacity, the "Agent"), the Secured Party and the Obligor
hereby agree that:
(a) upon receipt by the Agent of the Instrument and a written
certificate signed by the Secured Party certifying that an Event of
Default (as defined in the Parent Security Agreement) shall have occurred
and be continuing, then the Agent shall follow the written instructions of
the Secured Party as to the disposition of the Instrument; and
(b) upon receipt by the Agent of the Instrument and a joint written
certificate signed by the Obligor and the Secured Party, the Agent shall
follow the written instructions of the Obligor set forth in such
certificate as to the disposition of the Instrument. Until the date on
which the Parent Obligations are paid in full, the Secured Party shall be
under no obligation to sign any such certificate requested by the Obligor
or to deliver the Instrument to the Agent in connection therewith, and the
decision of the Secured Party as to the execution of any such certificate
and the delivery of the Instrument to the Agent shall remain in the sole
and absolute discretion of the Secured Party, both before and after the
initial maturity of the Instrument and whether or not a Default or Event
of Default shall then have occurred or be continuing.
2. The Agent undertakes to perform only such duties as are expressly set
forth herein.
3. The Agent may rely and shall be protected in acting or refraining from
acting upon any written notice, instruction or request furnished to it hereunder
and believed by it to be genuine and to have been signed or presented by the
proper party or parties. The Agent shall be under no duty to inquire into or
investigate the validity, accuracy or content of any such document. The Agent
shall have no duty to solicit any payments which may be due it hereunder.
4. The Agent shall not be liable for any action taken or omitted by it in
good faith unless a court of competent jurisdiction determines that the Agent's
willful misconduct was the primary cause of any loss to the Obligor. In the
administration of its duties hereunder, the Agent may execute any of its powers
and perform its duties hereunder directly or through agents or attorneys and may
consult with counsel, accountants and other skilled persons to be selected and
retained by it. The Agent shall not be liable for anything done, suffered or
omitted in good faith by it in accordance with the advice or opinion of any such
counsel, accountants or other skilled persons.
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5. The Agent may resign and be discharged from its duties or obligations
hereunder by giving notice in writing to the Obligor and the Secured Party of
such resignation specifying a date when such resignation shall take effect.
6. The Obligor hereby agrees to: (a) pay the Agent upon execution of this
Agreement $20,000 for the services to be rendered hereunder, and (b) pay the
Agent upon request for all expenses, disbursement and advances, including
reasonable attorneys' fees, incurred or made by it in connection with the
preparation, execution, performance, delivery modification and termination of
this Agreement.
7. The Obligor hereby agrees to indemnify the Agent for, and to hold it
harmless against any loss, liability or expense arising out of or in connection
with this Agreement and carrying out its duties hereunder, including the costs
and expenses of defending itself against any claim of liability, except in those
cases where the Agent has been guilty of gross negligence or willful misconduct.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Agent be liable for special, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Agent
has been advised of the likelihood of such loss or damage and regardless of the
form of action.
8. The duties and responsibilities of the Agent hereunder shall be
determined solely by the express provisions of this Agreement, and no other or
further duties or responsibilities shall be implied. The Agent shall not have
any liability under, nor duty to inquire into the terms and provisions of any
agreement or instructions, other than outlined in the Agreement.
9. All notices and communications hereunder shall be in writing and shall
be deemed to be duly given if sent by registered mail, return receipt requested,
as follows:
If to the Agent: The Chase Manhattan Bank
Corporate Trust Group
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Escrow Administration, 15th Floor
If to the Secured Party: Nomura Holding America Inc.
Two World Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxx Xxxxxx
If to the Obligor: Renaissance Cosmetics Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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or at such other address or addresses as any of the above may have furnished to
the other parties in writing by registered mail, return receipt requested, and
any such notice or communication given in the manner specified in this paragraph
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respect to the Agent as to which date shall be deemed to have been given on the
date received by the Agent. In the event that Agent, in its sole discretion,
shall determine that an emergency exists, the Agent may use such other means of
communication as the Agent deems advisable.
10. The provisions of this Agreement may be waived, altered, amended or
supplemented, in whole or in part, only by a writing signed by all of the
parties hereto.
11. Neither this Agreement nor any right or interest hereunder may be
assigned in whole or in part by any party without the prior consent of the other
parties.
12. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
13. The Agent shall not incur any liability for following the instructions
herein contained or expressly provided for, or written instructions given by the
parties hereto.
14. In the event that the Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions, claims or demands from any party
hereto which, in its opinion, conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall be
directed otherwise in writing by all of the other parties hereto or by a final
order or judgment of a court of competent jurisdiction.
15. Any corporation into which the Agent in its individual capacity may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Agent in its
individual capacity shall be a party, or any corporation to which substantially
all the corporate trust business of the Agent in its individual capacity may be
transferred, shall be the Agent under this Agreement without further act.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to its principles of conflicts
of laws or any action brought hereunder shall be brought in the courts of the
State of New York, located in the County of New York. Each party hereto
irrevocably waives any objection on the grounds of venue, forum non conveniens
or any similar grounds and
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irrevocably consents to service of process by mail or in any other manner
permitted by applicable law and consents to the jurisdiction of said courts.
17. The Agent, the Obligor and the Secured Party hereby agree that, from
the date hereof until the date on which a notice shall be given to the Agent
pursuant to clause (i) or (ii) of Section 1 above, no portion of the Instrument
shall be subject to any deduction, setoff, banker's lien, or any other right in
favor of the Issuing Bank, the Agent or any other person or entity other than
the Secured Party.
18. The Obligor's agreement to the terms hereof as provided below shall
constitute notification to the Issuing Bank and the Agent pursuant to Section
8-313(h) of the New York Uniform Commercial Code of the Secured Party's security
interest in the Instrument. By its agreement to the terms hereof as provided
below, the Agent recognize the Secured Party's continuing security interest in
the Instrument and in the proceeds thereof and confirms that, as of the date
hereof, the Issuing Bank and the Agent have received notice of no lien in or on
the Instrument other than the lien in favor of the Secured Party.
19. The Agent will from time to time deliver to the Secured Party, upon
the written request of the Secured Party, such information regarding the
Instrument as the Secured Party may reasonably request.
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If the foregoing instructions and agreements are acceptable, please
indicate your acceptance by signing this Agreement in the space provided below.
Sincerely,
NOMURA HOLDING AMERICA INC.,
as Collateral Agent
By: /s/ [Illegible]
--------------------------------
Title: Attorney-In-Fact
ACCEPTED AND AGREED:
RENAISSANCE COSMETICS, INC.
By: /s/ [Illegible] Dated: 8/15/96
-----------------------
Title: Vice President, Secretary
ACCEPTED AND AGREED:
THE CHASE MANHATTAN BANK,
Corporate Trust Group,
as Agent for the Issuing Bank
By: /s/ Xxxx Xxxxxxxxxxxx
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Title: Vice President Dated: 8/15/96
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Schedule 1
to
Parent Cash Equivalent Pledge Agreement
Description of Instrument
The negotiable certificate of deposit referred to in this Agreement:
(i) was issued by the Issuing Bank to the Obligor on August __, 1996, in the
initial amount of $33,800,000, (ii) shall accrue interest on such amount from
the date of issuance at an interest rate of __% per annum, (iii) shall mature on
the _________ month/year anniversary of the date of issuance, and (iv) bears the
control no. ____________.
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