Exhibit 10.9
EXECUTION COPY
CASH COLLATERAL
PLEDGE AND ASSIGNMENT AGREEMENT
CASH COLLATERAL PLEDGE AND ASSIGNMENT AGREEMENT, dated as of January 28,
1999, made by Barney's, Inc., a New York corporation (the "Pledgor"), to
Citicorp USA, Inc., as agent (the "Administrative Agent") for the financial
institutions from time to time parties to the Credit Agreement (as defined
below) as lenders (the "Lenders"), the financial institutions from time to time
parties to the Credit Agreement (as defined below) as issuing banks (the
"Issuing Banks").
PRELIMINARY STATEMENTS:
(1) The Pledgor has opened a special non-interest-bearing cash
collateral account (the "Account") with Citibank, N.A. ("Citibank") at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 00000000 (CUSA f/a/o Barney's,
Inc.), in the name of the Administrative Agent and under the sole control and
dominion of the Administrative Agent and subject to the terms of this Agreement.
(2) Barney's, Inc., Barneys America, Inc., PFP Fashions, 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") the Lenders, the Issuing Banks, the Administrative Agent for
the Lenders and the Issuing Banks and General Electric Capital Corporation, in
its capacity as documentation agent (in such capacity, the "Documentation
Agent") have entered into a Credit Agreement dated as of January 28, 1999 (said
Agreement, as it may hereafter be amended or otherwise modified from time to
time, being the "Credit Agreement", the terms defined therein and not otherwise
defined herein being used herein as therein defined).
(3) It is a condition precedent to the making of the Loans and the
issuing of the Letters of Credit by the Issuing Banks under the Credit Agreement
that the Pledgor shall have made the pledge and assignment contemplated by this
Agreement.
NOW THEREFORE, in consideration of the premises and in order to induce
the Lenders to make the Loans and the Issuing Banks to issue the Letters of
Credit under the Credit Agreement, the Pledgor hereby agrees with the
Administrative Agent for its benefit and the ratable benefit of the Lenders, the
Issuing Banks and the other Holders as follows:
SECTION 1. PLEDGE AND ASSIGNMENT. The Pledgor hereby pledges and assigns
to the Administrative Agent for its benefit and the ratable benefit of the
Lenders, the Issuing Banks and the other Holders, and grants to the
Administrative Agent for its benefit and the ratable
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benefit of the Lenders, the Issuing Banks and the other Holders a security
interest in, the following collateral (the "Collateral"):
(i) the Account, all funds held therein and all certificates and
instruments, if any, from time to time representing or evidencing the
Account;
(ii) all Investments (as hereinafter defined) from time to time,
and all certificates and instruments, if any, from time to time
representing or evidencing the Investments;
(iii) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time hereafter delivered to or
otherwise possessed by the Administrative Agent for or on behalf of the
Pledgor in substitution for or in addition to any or all of the then
existing Collateral;
(iv) all interest, dividends, 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 then existing
Collateral; and
(v) all proceeds of any and all of the foregoing Collateral.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures the payment
of all Obligations and all obligations of the Pledgor now or hereafter existing
under this Agreement (all such obligations being the "Liabilities").
SECTION 3. DELIVERY OF COLLATERAL. All certificates or instruments, if
any, representing or evidencing the Collateral 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, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Administrative Agent. 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 Collateral. In addition, the Administrative Agent
shall have the right at any time to exchange certificates or instruments
representing or evidencing Collateral for certificates or instruments of smaller
or larger denominations.
SECTION 4. MAINTAINING THE ACCOUNT. So long as any Lender has any
Commitment or any Note shall remain unpaid:
(a) The Pledgor will maintain the Account with Citibank.
(b) It shall be a term and condition of the Account,
notwithstanding any term or condition to the contrary in any other
agreement relating to the Account and except as otherwise provided by
the provisions of SECTION 6 and SECTION 13, that no amount
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(including interest on the Account) shall be paid or released to or for
the account of, or withdrawn by or for the account of, the Pledgor or
any other person or entity from the Account.
The Account shall be subject to such applicable laws, and such applicable
regulations of the Board of Governors of the Federal Reserve System and of any
other appropriate banking or governmental authority, as may now or hereafter be
in effect.
SECTION 5. INVESTING OF AMOUNTS IN THE ACCOUNT. If requested by the
Pledgor, the Administrative Agent will, subject to the provisions of SECTION 6
and SECTION 13, from time to time (a) invest amounts on deposit in the Account
in such Cash Equivalents as the Pledgor may select and the Administrative Agent
may approve and (b) invest interest paid on the Cash Equivalents referred to in
clause (a) above, and reinvest other proceeds of any such Cash Equivalents which
may mature or be sold, in each case in such Cash Equivalents as the Pledgor may
select and the Administrative Agent may approve (the Cash Equivalents referred
to in clauses (a) and (b) above being collectively "Investments"). Interest and
proceeds that are not invested or reinvested in Investments as provided above
shall be deposited and held in the Account.
SECTION 6. RELEASE OF AMOUNTS. (a) So long as no Default or Event of
Default shall have occurred and be continuing, the Administrative Agent will pay
and release to the Pledgor after the Commitment Termination Date and at the
request of the Pledgor, the amount of credit balance of the Account on any
maturity date of the Investment to the extent that (i) the credit balance of the
Account exceeds (ii) the Liabilities.
(b) At all other times, the Administrative Agent will pay and release to
the Pledgor all amounts in accordance with Section 3.01(b)(iii) of the Credit
Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the legal and beneficial owner of the Collateral free
and clear of any Lien, except for the security interest created by this
Agreement.
(b) The pledge and assignment of the Collateral pursuant to this
Agreement creates a valid and perfected first priority security interest in the
Collateral, securing the payment of the Liabilities.
(c) No consent of any other person or entity and no authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required (i) for the pledge and assignment by
the Pledgor of the Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by the Pledgor, (ii) for the
perfection or maintenance of the security interest created hereby (including the
first
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priority nature of such security interest) or (iii) for the exercise by the
Administrative Agent of its rights and remedies hereunder.
SECTION 8. 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
Collateral.
SECTION 9. TRANSFERS AND OTHER LIENS. The Pledgor agrees that it will
not (i) sell, assign (by operation of law or otherwise) or otherwise dispose of,
or grant any option with respect to, any of the Collateral, or (ii) create or
permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Collateral, except for the
security interest under this Agreement.
SECTION 10. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT. The Pledgor
hereby appoints the Administrative Agent its attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, at any time during the occurrence and continuance of an Event of
Default, in the Administrative Agent's 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, indorse and collect all instruments made payable to the
Pledgor representing any interest payment, dividend or other distribution in
respect of the Collateral or any part thereof and to give full discharge for the
same.
SECTION 11. ADMINISTRATIVE AGENT MAY PERFORM. If the Pledgor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Pledgor under SECTION 14.
SECTION 12. THE ADMINISTRATIVE AGENT'S DUTIES. The powers conferred on
the Administrative Agent hereunder are solely to protect its interest in the
Collateral and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any collateral, as to ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Collateral, whether or not the Administrative
Agent, any Lender or any Issuing Bank has or is deemed to have knowledge of such
matters, or as to the taking of any necessary steps to preserve rights against
any parties or any other rights pertaining to any Collateral. The Administrative
Agent shall be deemed to have exercised reasonable care in the custody and
preservation of any Collateral in its possession if such Collateral is accorded
treatment substantially equal to that
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which Citibank accords its own property.
SECTION 13. REMEDIES UPON DEFAULT. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may, without notice to the Pledgor
except as required by law and at any time or from time to time, charge,
set-off and otherwise apply all or any part of the Account against the
Liabilities or any part thereof.
(b) The Administrative Agent may also exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the Uniform Commercial Code in effect in the
State of New York at that time (the "Code") (whether or not the Code
applies to the affected Collateral), and may also, without notice except
as specified below, sell the Collateral or any part thereof in one or
more parcels at public or private sale, at any of the Administrative
Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable. The Pledgor agrees that, to the extent notice
of sale shall be required by law, at least ten days' notice to the
Pledgor of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification.
The Administrative Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it
was so adjourned.
(c) Any cash held by the Administrative Agent as Collateral and
all cash proceeds received by the Administrative Agent in respect of any
sale of, collection from, or other realization upon all or any part of
the Collateral may, in the discretion of the Administrative Agent, be
held by the Administrative Agent as collateral for, and/or then or at
any time thereafter be applied (after payment of any amounts payable to
the Administrative Agent pursuant to SECTION 14) in whole or in part by
the Administrative Agent for the ratable benefit of the Administrative
Agent, the Lenders and the Issuing Banks against, all or any part of the
Liabilities in such order as the Administrative Agent shall elect. Any
surplus of such cash or cash proceeds held by the Administrative Agent
and remaining after payment in full of all the Liabilities shall be paid
over to the Pledgor.
SECTION 14. EXPENSES. The Pledgor will upon demand pay to the
Administrative Agent the amount of any and all 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 or preservation of, or the sale of, collection
from, or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Administrative Agent, the Lenders or the
Issuing Banks hereunder or (iv) the failure by the Pledgor to perform or observe
any of the provisions hereof.
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SECTION 15. 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 (if the Pledgor is adversely affected by such amendment) 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.
SECTION 16. ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing and may be personally served,
telecopied or sent by courier service and shall be deemed to have been given
when delivered in person or by courier service, or upon receipt of a telecopy.
Notices to the Pledgor shall be sent to its address specified in the Credit
Agreement, and if to the Administrative Agent, at its address specified in the
Credit Agreement, or, as to either party, at such other address as shall be
designated by such party in a written notice to the other party.
SECTION 17. CONTINUING SECURITY INTEREST; ASSIGNMENTS UNDER CREDIT
AGREEMENT. This Agreement shall create a continuing security interest in the
Collateral and shall (i) remain in full force and effect until the later of (x)
the payment in full of the Liabilities and all other amounts payable under this
Agreement and (y) the Commitment Termination Date, (ii) be binding upon the
Pledgor, its successors and assigns, and (iii) inure to the benefit of, and be
enforceable by, the Administrative Agent, the Lenders or the Issuing Banks and
their respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), any Lender or any Issuing Bank may
assign or otherwise transfer all or any portion of its rights and obligations
under the Credit Agreement (including, without limitation, all or any portion of
its Commitment, the Loans owing to it and any Note held by it) to any other
person or entity, and such other person or entity shall thereupon become vested
with all the benefits in respect thereof granted to such Lender or such Issuing
Bank herein or otherwise in accordance with the provisions of the Credit
Agreement. Upon the later of the payment in full of the Liabilities and all
other amounts payable under this Agreement and the Commitment Termination Date,
the security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the Pledgor. Upon any such termination, the
Administrative Agent will, at the Pledgor's expense, return to the Pledgor such
of the Collateral as shall not have been sold or otherwise applied pursuant to
the terms hereof and execute and deliver to the Pledgor such documents as the
Pledgor shall reasonably request to evidence such termination.
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SECTION 18. GOVERNING LAW; TERMS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, except to
the extent that perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Collateral are governed by the laws of a
jurisdiction other than the State of New York. Unless otherwise defined herein
or in the Credit Agreement, terms defined in Article 9 of the Code are used
herein as therein defined.
SECTION 19. 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.
SECTION 20. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 21. 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.
SECTION 22. ADVICE OF COUNSEL. The Pledgor represents and warrants to
the Administrative Agent, the Lenders and the Issuing Banks that it has
discussed this Agreement with the Pledgor's attorneys.
SECTION 23. 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 Collateral. In addition, the Collateral shall be subject to
release in accordance with SECTION 12.09(C) of the Credit Agreement (such
Collateral and the 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 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
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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 Collateral.
SECTION 23. MERGER. This Agreement, taken together with all the other
Loan Documents, embodies the entire agreement and understanding, between the
Pledgor and the Administrative Agent, any Lender or any Issuing Bank and
supersedes all prior agreements and understandings, written and oral, relating
to the subject matter hereof.
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IN WITNESS WHEREOF, the Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
BARNEY'S, INC.
By: /s/ Xxxxxx Xxxxxxx
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Title: Executive VP and CFO
ACCEPTED AND AGREED:
CITICORP USA, INC., as Administrative Agent
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
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