Exhibit 10.6
PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of July 15, 2002 (this
"Agreement"), is executed by and among (a) Barneys New York, Inc., a Delaware
corporation (the "Pledgor"), and (b) GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation, in its capacity as administrative agent (with its
successors in such capacity, the "Administrative Agent") for itself and for the
"Lenders" under the Credit Agreement defined below. Capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Credit Agreement (as defined below).
WITNESSETH:
(1) Barney's, Inc., Barneys America, Inc., Barneys (CA) Lease
Corp., Barneys (NY) Lease Corp., Xxxxx All-American Sportswear Corp., BNY
Licensing Corp., and Barneys America (Chicago) Lease Corp. (collectively, the
"Borrowers") have entered into the Credit Agreement, dated as of even date
herewith (as amended, restated, supplemented or otherwise modified from time to
time, the "Credit Agreement"), with the financial institutions party thereto as
lenders (collectively, the "Lenders"), and the Administrative Agent, pursuant to
which the Lenders have agreed, subject to certain conditions precedent, to make
loans and other financial accommodations to the Borrowers from time to time;
(2) The Pledgor will receive substantial direct and indirect
benefits from the making of the Loans, the issuance of the Letters of Credit and
the granting of the other financial accomodations to the Borrowers under the
Credit Agreement;
(3) The Pledgor is party to that certain Guaranty, dated of
even date herewith, pursuant to which the Pledgor has guaranteed to the
Administrative Agent and the Lenders the full payment and performance of all of
the Obligations; and
(4) The Pledgor owns (a) the issued and outstanding equity
interests set forth on Exhibit A attached hereto and made a part hereof (the
"Equity Interests") and (b) the promissory notes and instruments listed on
Exhibit B attached hereto and made a part hereof;
(5) The Administrative Agent and the Lenders have required, as
a condition to their entering into the Credit Agreement, that the Pledgor
executes and delivers this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing and
of any financial accommodations or extensions of credit heretofore, now or
hereafter made to or for the benefit of the Borrowers pursuant to the Credit
Agreement or any other agreement, instrument or document executed pursuant to or
in connection therewith, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Pledgor and the
Administrative Agent hereby agree as follows:
1. Pledge. The Pledgor hereby pledges to the Administrative
Agent, for the benefit of the Administrative Agent, the Lenders and the other
Holders, and grants to the Administrative Agent for the benefit of the
Administrative Agent, the Lenders and the other Holders, a security interest in,
the following (collectively, the "Pledged Collateral"):
(a) All of the right, title and interest of the Pledgor in the
Equity Interests, whether now existing or hereafter arising, and the
certificates representing the shares of such capital stock (such
now-existing shares being identified on Exhibit A attached hereto and
made a part hereof), all options and warrants for the purchase of
additional equity interests now or hereafter held in the name of the
Pledgor (all of said Equity Interests, options and warrants and all
capital stock held in the name of the Pledgor as a result of the
exercise of such options or warrants being hereinafter collectively
referred to as the "Pledged Stock"), herewith delivered to the
Administrative Agent accompanied by stock powers in the form of Exhibit
C attached hereto and made a part hereof duly executed in blank, and
all dividends, distributions, cash, instruments and other property 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 equity interests from time to time acquired
by the Pledgor in any manner, and the certificates representing such
additional equity interests (any such additional equity interests shall
constitute part of the Pledged Stock and the Administrative Agent is
irrevocably authorized to amend Exhibit A from time to time to reflect
such additional equity interests), and all options, warrants,
dividends, distributions, cash, instruments and other rights and
options from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such equity interests;
(c) the Indebtedness evidenced by the promissory notes and
instruments listed on Exhibit B attached hereto (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;
(d) all additional Indebtedness arising after the date hereof
and owing to the 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;
(e) The property and interests in property described in
Section 4 below; and
(f) All proceeds of the foregoing.
2. Security for Liabilities. The Pledged Collateral secures
the prompt payment, performance and observance of (i) all Obligations and (ii)
all obligations of the Pledgor under this Agreement (all such obligations
referred to in clauses (i) and (ii) now or hereafter existing being hereinafter
collectively referred to as the "Liabilities").
3. Delivery of Pledged Collateral; Registration and
Acknowledgments. All certificates, promissory notes and instruments representing
or evidencing the Pledged Collateral, if any, shall be delivered to and held by
or on behalf of the Administrative Agent pursuant hereto and shall be in
suitable form for transfer by delivery and shall be accompanied by duly executed
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instruments of transfer, powers, or assignments in blank as appropriate (such
instruments of transfer, powers, or assignments in blank, being the "Powers"),
all in form and substance satisfactory to the Administrative Agent. After the
occurrence and during the continuance of an Event of Default, the Administrative
Agent shall have the right, at any time in its discretion and without notice to
the Pledgor, to transfer to or to register in the name of the Administrative
Agent or any of its nominees any or all of the Pledged Collateral, subject only
to the revocable rights specified in Sections 7 and 8. In addition, the
Administrative Agent shall have the right at any time to exchange certificates
or instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
4. Pledged Collateral Adjustments. If, during the term of this
Agreement:
(a) Any stock dividend, reclassification, readjustment or
other change is declared or made in the capital structure of any issuer
of the Pledged Stock, or any option included within the Pledged
Collateral is exercised, or both, or
(b) Any subscription warrants, shares, or any other rights or
options shall be issued in connection with the Pledged Collateral,
then all new, substituted and additional shares, warrants, shares, rights,
options or other securities, issued by reason of any of the foregoing, shall be
immediately delivered to and held by the Administrative Agent under the terms of
this Agreement and shall constitute Pledged Collateral hereunder; provided,
however, that nothing contained in this Section 4 shall be deemed to permit any
distribution, issuance of additional shares, warrants, shares, rights or
options, reclassification, readjustment or other change in the capital structure
which is not expressly permitted in the Credit Agreement nor to prohibit any
such distribution, issuance of additional equity interests, warrants, shares,
rights or options, reclassification, readjustment or other change in the capital
structure of such issuer which is expressly permitted in the Credit Agreement.
5. Subsequent Changes Affecting Pledged Collateral. The
Pledgor represents and warrants that it has made its own arrangements for
keeping itself informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of distributions, reorganization or other exchanges, offers
to purchase and voting rights), and the Pledgor agrees that none of the
Administrative Agent or any of the Lenders shall have any obligation to inform
the Pledgor of any such changes or potential changes or to take any action or
omit to take any action with respect thereto. The Administrative Agent may,
after the occurrence and during the continuance of an Event of Default, without
notice and at its option, transfer or register the Pledged Collateral or any
part thereof into its or its nominee's name with or without any indication that
such Pledged Collateral is subject to the security interest hereunder.
6. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) (i) The Pledgor is the sole legal and beneficial owner of
the Equity Interests set forth opposite its name on Exhibit A attached
hereto and made a part hereof, free and clear of any Lien except for
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the Lien created by this Agreement and, if any, Liens permitted under
the Credit Agreement, and (ii) the Pledgor is and at the time of
delivery of the Pledged Indebtedness to the Administrative Agent will
be, the sole owner of the Pledged Indebtedness set forth opposite its
name on Exhibit B attached hereto and made a part hereof free and clear
of any Lien thereon or affecting title thereto, except for any Lien
created by this Agreement and, if any, Liens permitted under the Credit
Agreement;
(b) (i) All of the Pledged Stock has been duly authorized,
validly issued and is fully paid and non-assessable, and (ii) the
Pledged Indebtedness has been duly authorized, authenticated or issued
and delivered by, and is the legal, valid and binding obligations of,
the Pledgor, and the Pledgor is not in default thereunder;
(c) All of the Pledged Stock is presently represented by the
certificates listed on Exhibit A hereto. As of the date hereof, there
are no existing options, warrants, calls or commitments of any
character whatsoever relating to the Pledged Stock;
(d) The Pledgor has full power and authority to enter into
this Agreement;
(e) There are no restrictions upon the voting rights
associated with, or upon the transfer of, any of the Pledged Collateral
except pursuant to the Securities Act;
(f) The Pledgor has the right to vote, pledge, assign and
grant a security interest in or otherwise transfer such Pledged
Collateral free of any Liens, except as set forth in paragraph (e)
above;
(g) No authorization, approval, or other action by, and no
notice to or filing with, any Governmental Authority is required either
(i) for the pledge of the Pledged Collateral pursuant to this Agreement
or for the execution, delivery or performance of this Agreement by the
Pledgor or (ii) for the exercise by the Administrative 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);
(h) The pledge of the Pledged Collateral pursuant to this
Agreement, together with the delivery of the stock certificates,
promissory notes and other instruments pertaining thereto to the
Administrative Agent, creates a valid and perfected first priority
security interest in the Pledged Collateral, in favor of the
Administrative Agent for the benefit of the Administrative Agent, the
Lenders and the other Holders, securing the payment and performance of
the Liabilities;
(i) This Agreement has been duly executed and delivered by and
on behalf of the Pledgor and constitutes the legal, valid and binding
obligation of the Pledgor, enforceable against the Pledgor in
accordance with its terms;
(j) There is no action, suit, proceeding, governmental
investigation or arbitration, at law or in equity, or before or by any
Governmental Authority, pending, or to the knowledge of the Pledgor,
threatened against the Pledgor or any of its property which will
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materially and adversely affect the ability of the Pledgor to perform
its obligations under this Agreement;
(k) The Pledgor (i) is a corporation duly formed, validly
existing and in good standing and is duly qualified to do business
under the laws of the State of Delaware and (ii) has all requisite
corporate power and authority to own, operate and encumber its property
and assets and to conduct its business as presently conducted and as
proposed to be conducted in connection with and following the
consummation of the transactions contemplated by this Agreement, the
Credit Agreement or any of the other Loan Documents;
(l) The execution, delivery and performance of this Agreement
by the Pledgor (i) does not violate any indenture, mortgage, or any
other agreement to which the Pledgor is a party or by which any of its
properties or assets may be bound; (ii) complies with all corporate
organization documents of the Pledgor; and (iii) does not violate any
restriction on such transfer or encumbrance of the Pledged Collateral;
(m) The Powers are effective endorsements duly executed by an
appropriate person and give the Administrative Agent the authority they
purport to confer; and
(n) The Pledged Stock constitutes one hundred percent (100%)
of the issued and outstanding shares of Equity Interests of each issuer
thereof.
7. Voting Rights. During the term of this Agreement, and
except as provided in this Section 7 below, the Pledgor shall have the right to
vote the Pledged Stock on all corporate questions in a manner not inconsistent
with the terms of this Agreement, the Credit Agreement and the other Loan
Documents; provided, however, that no vote shall be cast, and no consent shall
be given or action taken, which would have the effect of impairing the position
or interest of the Administrative 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 an issuer of Pledged Stock or Pledged Indebtedness (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 the
Administrative Agent; (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 Equity Interests; or (v) the alteration
of the voting rights with respect to the Equity Interests of a Pledged Entity.
After the occurrence and during the continuation of an Event of Default, the
Administrative Agent shall, at the Administrative Agent's option and following
written notice from the Administrative Agent to the Pledgor, exercise all voting
rights pertaining to the Pledged Collateral, including the right to take action
by shareholder consent.
8. Dividends and Other Distributions. (a) So long as no Event
of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to receive and retain any
and all dividends, interest and distributions paid in respect of the
Pledged Collateral, notwithstanding such dividends, interest and
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distributions being subject to the pledge and assignment thereof
pursuant to Section 1; provided, however, that any and all
(A) dividends, interest and distributions paid or
payable other than in cash with respect to, and instruments
and other property received, receivable or otherwise
distributed with respect to, or in exchange for, any of the
Pledged Collateral;
(B) dividends and other distributions paid or payable
in cash with respect to any of the Pledged Collateral on
account of a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or
paid-in surplus; and
(C) cash paid, payable or otherwise distributed with
respect to principal of, or in redemption of, or in exchange
for, any of the Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the
Administrative Agent to hold, for the benefit of the Administrative
Agent, the Lenders and the other Holders, as Pledged Collateral and
shall, if received by the Pledgor, be received in trust for the
Administrative Agent, for the benefit of the Administrative Agent, the
Lenders and the other Holders, be segregated from the other property or
funds of the Pledgor, and be delivered immediately to the
Administrative Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement); and
(ii) The Administrative Agent shall execute and deliver (or
cause to be executed and delivered) to the Pledgor all such proxies and
other instruments as the Pledgor may reasonably request for the purpose
of enabling the Pledgor to receive the dividends or interest payments
which it is authorized to receive and retain pursuant to clause (i)
above.
(b) After the occurrence and during the continuation of an Event of
Default:
(i) All rights of the Pledgor to receive the dividends,
interest payments and other distributions which it would otherwise be
authorized to receive and retain pursuant to Section 8(a)(i) hereof
shall cease, and all such rights shall thereupon become vested in the
Administrative Agent, for the benefit of the Administrative Agent, the
Lenders and the other Holders, which shall thereupon have the sole
right to receive and hold as Pledged Collateral such dividends,
interest payments and other distributions;
(ii) All dividends, interest payments and other distributions
which are received by the Pledgor contrary to the provisions of clause
(i) of this Section 8(b) shall be received in trust for the
Administrative Agent, for the benefit of the Administrative Agent, the
Lenders and the other Holders, shall be segregated from other funds of
the Pledgor and shall be paid over immediately to the Administrative
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Agent as Pledged Collateral in the same form as so received (with any
necessary endorsements);
(iii) The Pledgor shall, upon the reasonable request of the
Administrative Agent, at the Pledgor's expense, execute and deliver,
and cause the issuer of the Pledged Stock and its officers and
directors to execute and deliver, all such instruments and documents,
and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Administrative Agent, the Pledgor
or its or their counsel, advisable to register the applicable Pledged
Collateral under the provisions of the Securities Act, and to exercise
its best efforts to cause the registration statement relating thereto
to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make all
amendments and supplements thereto and to the related prospectus which,
in the opinion of the Administrative Agent, the Pledgor or their
respective counsel, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of
the Commission applicable thereto;
(iv) The Pledgor shall, upon the reasonable request of the
Administrative Agent, at the Pledgor's expense, use its best efforts to
qualify the Pledged Collateral under state securities or "Blue Sky"
laws and to obtain all necessary governmental approvals for the sale of
the Pledged Collateral, as requested by the Administrative Agent;
(v) The Pledgor shall, upon the reasonable request of the
Administrative Agent, at the Pledgor's expense, cause the issuers of
the Pledged Stock to make available to the holders of its securities,
as soon as practicable, earnings statements which will satisfy the
provisions of Section 11(a) of the Securities Act; and
(vi) The Pledgor shall, upon the reasonable request of the
Administrative Agent, at the Pledgor's expense, do or cause to be done
all such other acts and things as may be necessary to make such sale of
the Pledged Collateral or any part thereof valid and binding and in
compliance with applicable law.
The Pledgor will reimburse the Administrative Agent for all expenses incurred by
the Administrative Agent, including, without limitation, reasonable attorneys'
and accountants' fees and expenses in connection with the foregoing. Upon or at
any time after the occurrence and during the continuation of an Event of
Default, if the Administrative Agent determines that, prior to any public
offering of any securities constituting part of the Pledged Collateral, such
securities should be registered under the Securities Act and/or registered or
qualified under any other federal or state law and such registration and/or
qualification is not practicable, then the Pledgor agrees that it will be
commercially reasonable if a private sale, upon at least ten (10) Business Days'
notice to the Pledgor, is arranged so as to avoid a public offering, even though
the sales price established and/or obtained at such private sale may be
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substantially less than prices which could have been obtained for such security
on any market or exchange or in any other public sale.
9. Transfers and other Liens. Other than as permitted under
the Credit Agreement, the Pledgor agrees that it will not (i) sell, transfer or
otherwise dispose of, or grant any option with respect to, any of the Pledged
Collateral without the prior written consent of the Administrative Agent, or
(ii) create or permit to exist any Lien upon or with respect to any of the
Pledged Collateral (except for the security interest under this Agreement).
10. Defense of Title. The Pledgor will defend the title to the
Pledged Collateral and the Liens of the Administrative Agent in the Pledged
Collateral against the claim of any Person and will maintain and preserve such
Liens.
11. Additional Equity Interests, Notes and Instruments. The
Pledgor will, upon obtaining ownership of any additional Equity Interests or
promissory notes or instruments otherwise required to be pledged to the
Administrative Agent pursuant to any of the Loan Documents, which Equity
Interests, notes or instruments are not already Pledged Collateral, promptly
(and in any event within three (3) Business Days) deliver to the Administrative
Agent an amendment to this Agreement, duly executed by the Pledgor and in form
and substance satisfactory to the Administrative Agent, in respect of any such
additional Equity Interests, notes or instruments, pursuant to which the Pledgor
shall pledge to the Administrative Agent all of such additional Equity
Interests, notes and instruments. The Pledgor hereby authorizes the
Administrative Agent to attach such amendment to this Agreement and agrees that
all Pledged Stock and Pledged Indebtedness listed on any such amendment
delivered to the Administrative Agent shall for all purposes hereunder be
considered Pledged Collateral.
12. Remedies. 1. The Administrative Agent shall have, in
addition to any other rights given under this Agreement or by law, all
of the rights and remedies with respect to the Pledged Collateral of a
secured party under the Uniform Commercial Code as in effect in the
State of New York (the "UCC"). In addition, after the occurrence and
during the continuation of an Event of Default, the Administrative
Agent shall have such powers of sale and other powers as may be
conferred by applicable law. With respect to the Pledged Collateral or
any part thereof which shall then be in or shall thereafter come into
the possession or custody of the Administrative Agent or which the
Administrative Agent shall otherwise have the ability to transfer under
applicable law, the Administrative Agent may, in its sole discretion,
without notice except as specified below, after the occurrence and
during the continuation of an Event of Default, sell or cause the same
to be sold at any exchange, broker's board or at public or private
sale, in one or more sales or lots, at such price as the Administrative
Agent may deem best, for cash or on credit or for future delivery,
without assumption of any credit risk, and the purchaser of any or all
of the Pledged Collateral so sold shall thereafter own the same,
absolutely free from any claim, encumbrance or right of any kind
whatsoever. The Administrative Agent or any Lender may, in its own
name, or in the name of a designee or nominee, buy the Pledged
Collateral at any public sale and, if permitted by applicable law, buy
the Pledged Collateral at any private sale. The Pledgor agrees to pay
to the Administrative Agent all reasonable expenses (including, without
limitation, court costs and reasonable attorneys' and paralegals' fees
and expenses) of, or incident to, the enforcement of any of
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the provisions hereof. The Administrative Agent agrees to distribute
any proceeds of the sale of the Pledged Collateral in accordance with
the Credit Agreement and the Pledgor shall remain liable for any
deficiency following the sale of the Pledged Collateral.
(b) Unless any of the Pledged Collateral threatens to decline
speedily in value or is or becomes of a type sold on a recognized
market, the Administrative Agent will give the Pledgor reasonable
notice of the time and place of any public sale thereof, or of the time
after which any private sale or other intended disposition is to be
made. Any sale of the Pledged Collateral conducted in conformity with
reasonable commercial practices of banks, commercial finance companies,
insurance companies or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be
commercially reasonable. Notwithstanding any provision to the contrary
contained herein, the Pledgor agrees that any requirements of
reasonable notice shall be met if such notice is received by the
Pledgor as provided in Section 27 below at least ten (10) Business Days
before the time of the sale or disposition. Any other requirement of
notice, demand or advertisement for sale is waived, to the extent
permitted by law.
(c) In view of the fact that federal and state securities laws
may impose certain restrictions on the method by which a sale of the
Pledged Collateral may be effected after an Event of Default, the
Pledgor agrees that after the occurrence and during the continuation of
an Event of Default, the Administrative Agent may, from time to time,
attempt to sell all or any part of the Pledged Collateral by means of a
private placement restricting the bidders and prospective purchasers to
those who are qualified and will represent and agree that they are
purchasing for investment only and not for distribution. In so doing,
the Administrative Agent may solicit offers to buy the Pledged
Collateral, or any part of it, from a limited number of investors
deemed by the Administrative Agent, in its reasonable judgment, to be
financially responsible parties who might be interested in purchasing
the Pledged Collateral. If the Administrative Agent solicits such
offers from not less than four (4) such investors, then the acceptance
by the Administrative Agent of the highest offer obtained therefrom
shall be deemed to be a commercially reasonable method of disposing of
such Pledged Collateral; provided, however, that this Section does not
impose a requirement that the Administrative Agent solicit offers from
four or more investors in order for the sale to be commercially
reasonable.
(d) The 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 the Pledgor waives the benefit of
all such laws to the extent it lawfully may do so. The Pledgor agrees
that it will not interfere with any right, power and remedy of
Administrative 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 Administrative Agent of any
one or more of such rights, powers or remedies. No failure or delay on
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the part of Administrative Agent to exercise any such right, power or
remedy and no notice or demand which may be given to or made upon the
Pledgor by the Administrative Agent with respect to any such remedies
shall operate as a waiver thereof, or limit or impair the
Administrative 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 Pledgor in any respect.
(e) The Pledgor further agrees that a breach of any of the
covenants contained in this Section 12 will cause irreparable injury to
the Administrative Agent, that the Administrative 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 12 shall
be specifically enforceable against the Pledgor, and the 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
Obligations are not then due and payable in accordance with the
agreements and instruments governing and evidencing such obligations.
13. Security Interest Absolute. All rights of the
Administrative Agent and security interests hereunder, and all obligations of
the Pledgor hereunder, shall be absolute and unconditional irrespective of:
(i) Any lack of validity or enforceability of the
Credit Agreement, the Loan Documents, or any other agreement
or instrument relating thereto;
(ii) Any change in the time, manner or place of
payment of, or in any other term of, all or any part of the
Liabilities, or any other amendment or waiver of or any
consent to any departure from the Credit Agreement or the
other Loan Documents;
(iii) 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 part of
the Liabilities;
(iv) the insolvency of the Pledgor; or
(v) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Pledgor in respect of the Liabilities or of this Agreement.
14. Administrative Agent Appointed Attorney-in-Fact. The
Pledgor hereby appoints the Administrative Agent its attorney-in-fact, with full
authority, in the name of the Pledgor or otherwise, after the occurrence and
during the continuation of an Event of Default, from time to time in the
Administrative Agent's sole discretion, to take any action and to execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgor
representing any dividend, interest payment or other distribution in respect of
the Pledged Collateral or any part thereof and to give full discharge for the
same and to arrange for the transfer of all or any part of the Pledged
Collateral on the books of the issuers of the Pledged Stock to the name of the
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Administrative Agent or the Administrative Agent's nominee.
15. Waivers. The Pledgor waives to the fullest extent
permitted by applicable laws presentment and demand for payment of any of the
Liabilities, protest and notice of dishonor or Event of Default with respect to
any of the Liabilities and all other notices to which the Pledgor might
otherwise be entitled except as otherwise expressly provided herein or in the
Credit Agreement.
16. Term. This Agreement shall remain in full force and effect
until the final payment in full, in cash, of the Liabilities, the Commitment
Termination Date has occurred and the Credit Agreement has terminated pursuant
to its terms. Upon the termination of this Agreement as provided above (other
than as a result of the sale of the Pledged Collateral), the Administrative
Agent will release the security interest created hereunder and, if it then has
possession of any Pledged Stock, notes or instruments pledged hereunder, will
deliver such Pledged Stock, notes and instruments previously delivered to it and
the Powers to the Pledgor.
17. Reinstatement. This Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against the Pledgor or any Pledged Entity for liquidation or reorganization,
should the 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 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 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 Obligations shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
18. Definitions. The singular shall include the plural and
vice versa and any gender shall include any other gender as the context may
require.
19. Binding Effect; Successors and Assigns. This Agreement
shall be binding upon the Pledgor and its successors and assigns, and shall
inure to the benefit of the Administrative Agent, the Lenders and the other
Holders, and their respective successors and assigns. Nothing set forth herein
or in any other Loan Document is intended or shall be construed to give any
other Person any right, remedy or claim under, to or in respect of this
Agreement, the Credit Agreement or any other Loan Document or any Collateral.
The Pledgor's successors shall include, without limitation, a receiver, trustee
or debtor-in-possession of or for the Pledgor.
20. Governing Law. This Agreement has been executed and
delivered by the parties hereto in New York, New York. Any dispute between the
Administrative Agent and the Pledgor arising out of or related to the
relationship established between them in connection with this Agreement, and
whether arising in contract, tort, equity, or otherwise, shall be resolved in
accordance with the laws of the State of New York.
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21. Consent to Jurisdiction; and Serve of Process. The Pledgor
agrees that the terms of Section 13.17 of the Credit Agreement with respect to
consent to jurisdiction and service of process shall apply equally to this
Agreement. The Administrative Agent shall have the right to proceed against the
Pledgor or its personal property in a court in any location to enable the
Administrative Agent to obtain personal jurisdiction over the Pledgor, to
realize on the Pledged Collateral or any other security for the Liabilities or
to enforce a judgment or other court order entered in favor of the
Administrative Agent.
22. Waiver of Jury Trial. Each of the Pledgor and the
Administrative Agent waives any right to trial by jury in any dispute, whether
sounding in contract, tort, or otherwise, between the Administrative Agent and
the Pledgor arising out of or related to the transactions contemplated by this
Agreement or any other instrument, document or agreement executed or delivered
in connection herewith. Either the Pledgor or the Administrative Agent may file
an original counterpart or a copy of this Agreement with any court as written
evidence of the consent of the parties hereto to the waiver of their right to
trial by jury.
23. Advice of Counsel. The Pledgor represents and warrants to
the Administrative Agent, the Lenders and the other Holders that it has
discussed this Agreement and, specifically, the provisions of Sections 20
through 22 hereof, with the Pledgor's lawyers.
24. Severability. If any provision of this Agreement is held
to be prohibited or unenforceable in any jurisdiction the substantive laws of
which are held to be applicable hereto, such prohibition or unenforceability
shall not affect the validity or enforceability of the remaining provisions
hereof and shall not invalidate or render unenforceable such provision in any
other jurisdiction.
25. Further Assurances. The Pledgor agrees that at any time
and from time to time, at the expense of the Pledgor, the Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Administrative Agent may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Administrative Agent
to exercise and enforce its rights and remedies hereunder with respect to any of
the Pledged Collateral.
26. The Administrative Agent's Duty of Care. The
Administrative Agent shall not be liable for any acts, omissions, errors of
judgment or mistakes of fact or law including, without limitation, acts,
omissions, errors or mistakes with respect to the Pledged Collateral, except for
those arising out of or in connection with the Administrative Agent's (i) gross
negligence or willful misconduct, or (ii) failure to use reasonable care with
respect to the safe custody of the Pledged Collateral in the Administrative
Agent's possession. Without limiting the generality of the foregoing, the
Administrative Agent shall be under no obligation to take any steps necessary to
preserve rights in the Pledged Collateral against any other parties but may do
so at its option. All expenses incurred in connection therewith shall be for the
sole account of the Pledgor, and shall constitute part of the Liabilities
secured hereby.
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27. Notices. Any notice, demand, request or any other
communication required or desired to be served, given or delivered hereunder
shall be in writing and shall be served, given or delivered as provided in
Section 13.08 of the Credit Agreement.
28. Indemnity and Expenses. The Pledgor agrees, upon demand,
to pay to the Administrative Agent the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its counsel and of any
experts and agents, which the Administrative Agent may incur in connection with
(i) the administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any of
the Pledged Collateral, (iii) the exercise or enforcement of any of the rights
of the Administrative Agent hereunder or (iv) the failure by the Pledgor to
perform or observe any of the provisions hereof.
29. Amendments, Waivers and Consents. None of the terms or
provisions of this Agreement may be waived, altered, modified or amended, and no
consent to any departure by the Pledgor herefrom shall be effective, except by
or pursuant to an instrument in writing which (i) is duly executed by the
Pledgor and the Administrative Agent and (ii) complies with the requirements of
the Credit Agreement. Any such waiver shall be valid only to the extent set
forth therein. A waiver by the Administrative Agent of any right or remedy under
this Agreement on any one occasion shall not be construed as a waiver of any
right or remedy which the Administrative Agent would otherwise have on any
future occasion. No failure to exercise or delay in exercising any right, power
or privilege under this Agreement on the part of the Administrative Agent shall
operate as a waiver thereof; and no single or partial exercise of any right,
power or privilege under this Agreement shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
30. Section Headings: Terms. The section headings herein are
for convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof. Unless otherwise defined herein
or in the Credit Agreement, terms used in Article 8 and Article 9 of the UCC are
used herein as therein defined.
31. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an original, but all of
which shall together constitute one and the same agreement.
32. Merger. This Agreement, taken together with all the other
Loan Documents, embodies the entire agreement and understanding, between the
Pledgor and the Administrative Agent or any Lender and supersedes all prior
agreements and understandings, written and oral, relating to the subject matter
hereof.
33. Termination; Release of Collateral. Notwithstanding
anything in this Agreement to the contrary, the Pledgor may, to the extent
permitted by Section 9.02 of the Credit Agreement, sell, assign, transfer or
otherwise dispose of any Pledged Collateral. In addition, the Pledged Collateral
shall be subject to release in accordance with Section 12.09(c) of the Credit
Agreement (such Pledged Collateral and the Pledged Collateral referred to in the
immediately preceding sentence being the "Released Collateral"). The Liens under
this Agreement shall terminate with respect to the Released Collateral upon such
sale, transfer, assignment, disposition or release and upon the request of the
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Pledgor, the Administrative Agent shall execute and deliver such instrument or
document as may be necessary to release the Liens granted hereunder; provided,
however, that (i) the Administrative Agent shall not be required to execute any
such documents on terms which, in the Administrative Agent's opinion, would
expose the Administrative Agent to liability or create any obligation or entail
any consequence other than the release of such Liens without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Liabilities or any Liens on (or obligations of the Pledgor in respect
of) all interests retained by the Pledgor, including without limitation, the
proceeds of any sale, all of which shall continue to constitute part of the
Pledged Collateral.
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IN WITNESS WHEREOF, the Pledgor and the Administrative Agent
have executed this Agreement as of the date set forth above.
BARNEYS NEW YORK, INC.
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer
Acknowledged and agreed to
as of the date first written above.
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of a copy of the
foregoing Pledge Agreement, agrees promptly to note on its books the security
interests granted under such Pledge Agreement, and waives any rights or
requirement at any time hereafter to receive a copy of such Pledge Agreement in
connection with the registration of any Pledged Collateral in the name of the
Administrative Agent or its nominee or the exercise of voting rights by the
Administrative Agent.
BARNEYS NEW YORK, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
