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PLEDGE AGREEMENT
This PLEDGE AGREEMENT, dated as of March __, 1997 (together with all
amendments, if any, from time to time hereto, this "Agreement"), by the Pledgors
identified as such on the signature pages hereof (each, a "Pledgor" and
collectively, "Pledgors") in favor of GENERAL ELECTRIC CAPITAL CORPORATION in
its capacity as Agent for Lenders ("Agent").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated as of the
date hereof among Xxxx Perfumes Corp. ("Borrower"), the other Persons named
therein as Credit Parties, Agent and the Persons named therein as Lenders (as
from time to time amended, restated, supplemented or otherwise modified (the
"Credit Agreement"), Lenders have agreed to make Loans to Borrower;
WHEREAS, each Pledgor is the record and beneficial owner of the
shares of stock described in Part A of Schedule I hereto and issued by the
issuers named therein (each, a "Pledged Entity"), and the owner of the
promissory notes and instruments listed in Part B of Schedule I hereto;
WHEREAS, each Pledgor benefits from the credit facilities made
available to Borrower through the Credit Agreement;
WHEREAS, it is a condition to the making of Loans under the Credit
Agreement that each Pledgor shall have executed and delivered this Agreement and
granted the security interest contemplated hereby to secure the obligations of
Borrower under the Credit Agreement and the Loan Documents;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce Lenders to make Loans 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):
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"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 Indebtedness" means those 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 and grants to Agent for
itself and the ratable benefit of Lenders, a first priority security interest in
all of the following (collectively, the "Pledged Collateral"):
(i) 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
(ii) such portion, as determined pursuant to 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 shares; and
(iii) 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
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(iv) 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 each Pledgor 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 representing or
evidencing the Pledged Shares and all promissory notes and instruments
evidencing Pledged Indebtedness shall be delivered to and held by or on behalf
of Agent, for itself and the ratable 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 each 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 pursuant to Section 4 hereof will be, the sole
holder of record and the sole beneficial owner of such Pledged Shares 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 pursuant to Section 4 hereof
will be, the sole owner of such Pledged Indebtedness free and clear of any
Lien thereon or affecting title thereto, except for any Lien created by
this Agreement;
(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 are the legal, valid and binding obligations of, the
issuers thereof who are not in default thereunder;
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(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 Lender 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 stock 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 of any
Person and no consent, authorization, approval, or other action by, and no
notice to or filing with, any governmental authority 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, and the continuing possession of
the Pledged Collateral by the Agent will create a valid first priority
Lien on and a first priority perfected security interest in the Pledged
Collateral pledged by such Pledgor, and the proceeds thereof, securing the
payment of the Secured Obligations, subject to no other Lien or security
interest;
(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 in accordance with its terms;
(i) The Pledged Shares constitute 66% of the issued and
outstanding shares of Stock of each Pledged Entity; and
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(j) Except as disclosed on Part B of Schedule I, none of the
Pledged Indebtedness is subordinated in right of payment to other
Indebtedness 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 the
Termination Date:
(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 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 Code
financing statements, which may be filed by Agent with or (to the extent
permitted by law) without the signature of such Pledgor, and will
cooperate with Agent, at such Pledgor's expense, in obtaining all
necessary approvals and making all necessary filings under federal or
state law in connection with such Liens or 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 any additional shares of stock
of a Pledged Entity or promissory notes or instruments, which shares,
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 such Pledgor, in substantially the form of
Schedule II hereto (a "Pledge Amendment") in respect of any such
additional shares, notes or instruments, pursuant to which such Pledgor
shall pledge to Agent all of such additional shares, notes and
instruments; provided, however, that with respect to
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any Pledged Entity, the aggregate shares of Stock pledged hereunder shall
not constitute more than 66% of the issued and outstanding shares of Stock
of such Pledged Entity. Such 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 Amendment delivered to Agent
shall for all purposes hereunder be considered Pledged Collateral.
7. Pledgor's Rights. As long as no Event or 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 impairing the position or
interest of Agent in respect of the Pledged Collateral or which would
authorize or effect (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, except with a Pledgor provided that such Pledgor is
the surviving corporation;
(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;
(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; 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
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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 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 such 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.
(a) Upon the occurrence of an Event of Default (as defined in the
Credit Agreement) and during the continuation of such Event of Default,
then on or at any time after such declaration (provided that such
declaration is not rescinded by the Agent) and concurrently with written
notice to any Pledgor, 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 (which
in the case of any Pledged Entity organized under the laws of Canada or
any province thereof, may be done without regard to the occurrence of an
Event of Default), 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
stockholder 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 each Pledgor agrees is commercially reasonable) the
whole or any part of the Pledged Collateral and to otherwise act with
respect to the Pledged
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Collateral as though Agent was the outright owner thereof, each Pledgor
hereby irrevocably constituting and appointing Agent as the proxy and
attorney-in-fact of Pledgor, with full power of substitution to do so, and
which shall remain in effect until the Secured Obligations are
indefeasibly paid in full; provided, however, 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. 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
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.
(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, the unlikelihood of the proceeds of
the sales of the whole of the Pledged Collateral being 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
such Pledgor.
(c) The proceeds of any sale, disposition or other realization upon
all or any part of the Pledged Collateral shall be distributed by Agent,
upon receipt, in the following order of priorities.
first, to Agent in an amount sufficient to pay in full the
expenses of Agent in connection with such sale, disposition or other
realization,
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including all expenses, liabilities and advances incurred or made by
Agent in connection therewith, including attorneys' fees and
expenses;
second, to Lenders in an amount sufficient to pay in full all
of the Secured Obligations; and
finally, upon payment in full of all of the Secured
Obligations, to Pledgors or to whomsoever may be lawfully entitled
to receive the same, or as a court of competent jurisdiction may
direct.
(d) If, at any time when Agent in its sole discretion determines,
following the occurrence and during the continuance of an Event of
Default, that, in connection with any actual or contemplated exercise of
its rights (when permitted under this Section 8) to sell the whole or any
part of the Pledged Shares hereunder, it is necessary or advisable to
effect a public registration of all or part of the Pledged Collateral
pursuant to the Securities Act of 1933, as amended (or any similar statute
then in effect) (the "Act"), each Pledgor shall, in an expeditious manner,
cause the Pledged Entities to:
(i) Prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement with respect
to the Pledged Shares and in good faith use commercially reasonable
efforts to cause such registration statement to become and remain
effective;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions
of the Act with respect to the sale or other disposition of the
Pledged Shares covered by such registration statement whenever Agent
shall desire to sell or otherwise dispose of the Pledged Shares;
(iii) Furnish to Agent such numbers of copies of a prospectus
and a preliminary prospectus, in conformity with the requirements of
the Act, and such other documents as Agent may request in order to
facilitate the public sale or other disposition of the Pledged
Shares by Agent;
(iv) Use commercially reasonable efforts to register or
qualify the Pledged Shares covered by such registration statement
under such
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other securities or blue sky laws of such jurisdictions within the
United States and Puerto Rico as Agent shall request, and do such
other reasonable acts and things as may be required of it to enable
Agent to consummate the public sale or other disposition in such
jurisdictions of the Pledged Shares by Agent;
(v) Furnish, at the request of Agent, on the date that shares
of the Pledged Collateral are delivered to the underwriters for sale
pursuant to such registration or, if the security is not being sold
through underwriters, on the date that the registration statement
with respect to such Pledged Shares becomes effective, (A) an
opinion, dated such date, of the independent counsel representing
such registrant for the purposes of such registration, addressed to
the underwriters, if any, and in the event the Pledged Shares are
not being sold through underwriters, then to Agent, in customary
form and covering matters of the type customarily covered in such
legal opinions; and (B) a comfort letter, dated such date, from the
independent certified public accountants of such registrant,
addressed to the underwriters, if any, and in the event the Pledged
Shares are not being sold through underwriters, then to Agent, in a
customary form and covering matters of the type customarily covered
by such comfort letters and as the underwriters or Agent shall
reasonably request. The opinion of counsel referred to above shall
additionally cover such other legal matters with respect to the
registration in respect of which such opinion is being given as
Agent may reasonably request. The letter referred to above from the
independent certified public accountants shall additionally cover
such other financial matters (including information as to the period
ending not more than five (5) Business Days prior to the date of
such letter) with respect to the registration in respect of which
such letter is being given as Agent may reasonably request; and
(vi) Otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and
make available to its security holders, as soon as reasonably
practicable but not later than 18 months after the effective date of
the registration statement, an earnings statement covering the
period of at least 12 months beginning with the first full month
after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Act.
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(e) All expenses incurred in complying with Section 8(d) hereof,
including, without limitation, all registration and filing fees (including
all expenses incident to filing with the National Association of
Securities Dealers, Inc.), printing expenses, fees and disbursements of
counsel for the registrant, the fees and expenses of counsel for Agent,
expenses of the independent certified public accountants (including any
special audits incident to or required by any such registration) and
expenses of complying with the securities or blue sky laws or any
jurisdictions, shall be paid by such Pledgor.
(f) 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 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 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;
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(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.
(g) 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 (f)
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
applicable state securities laws, even if such Pledgor and the Pledged
Entity would agree to do so.
(h) 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 or moratorium 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 any Pledgor by Agent with
respect to any such remedies shall operate as a waiver thereof, or limit
or
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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
any Pledgor in any respect.
(i) 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 such
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 any Pledgor 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 any Pledgor 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 indefeasible payment in
full of all Secured Obligations and termination of the commitments under the
Credit Agreement, Agent shall deliver to each Pledgor the Pledged Collateral
pledged by such 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 such Pledgor's
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:
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(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; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, 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 any Pledgor, 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 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 any Pledgor. No
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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 any 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
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.
(d) THIS AGREEMENT SHALL BE BINDING UPON EACH PLEDGOR AND ITS
SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF, AND BE
ENFORCEABLE BY, AGENT AND ITS SUCCESSORS AND ASSIGNS, AND NONE OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT MAY BE WAIVED, ALTERED, MODIFIED OR
AMENDED AS TO ANY PLEDGOR EXCEPT IN
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WRITING DULY SIGNED FOR AND ON BEHALF OF AGENT AND
SUCH PLEDGOR.
(e) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE LOAN
DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA, AND TO THE EXTENT APPLICABLE WITH RESPECT TO THE PLEDGE OF THE
STOCK OF PERFUMES XXXX S.A.I.C., THE LAWS OF ARGENTINA. EACH PLEDGOR
HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW
YORK COUNTY, CITY OF NEW YORK, NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN OR AMONG PLEDGORS,
AGENT OR ANY LENDER PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS,
PROVIDED, THAT AGENT AND PLEDGORS ACKNOWLEDGE THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNTY,
CITY OF NEW YORK, NEW YORK, AND, PROVIDED, FURTHER, THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT
OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE
PLEDGED COLLATERAL OR ANY OTHER SECURITY FOR THE SECURED OBLIGATIONS, OR
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF AGENT, FOR THE
BENEFIT OF AGENT AND LENDERS. EACH PLEDGOR EXPRESSLY SUBMITS AND CONSENTS
IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH PLEDGOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE
BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PLEDGOR
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HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS
ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PLEDGOR AT THE ADDRESS SET FORTH ON SCHEDULE III HERETO
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS,
PROPER POSTAGE PREPAID.
(f) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED
AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS
TO APPLY (RATHER THAN ARBITRATION RULES), EACH PLEDGOR AND AGENT DESIRES
THAT DISPUTES ARISING HEREUNDER OR RELATING HERETO BE RESOLVED BY A JUDGE
APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OR ARBITRATION, EACH PLEDGOR
AND AGENT WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED IN CONNECTION WITH THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO
OR THERETO.
16. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Agreement. This Agreement is to be
read, construed and applied together with the Credit Agreement and the other
Loan Documents which, taken together, set forth the complete understanding and
agreement of Agent, Lenders and Pledgors with respect to the matters referred to
herein and therein.
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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 party any 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 with
receipt acknowledged or by registered or certified mail, return receipt
requested, postage prepaid, or by telecopy and confirmed by telecopy answerback
addressed as follows:
(a) If to Agent, at:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Accounts Manager - Renaissance
Telecopier Number: (000) 000-0000
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxx, Esq.
Telecopier Number: (000) 000-0000
and:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Counsel - Commercial Finance
Telecopier Number: (000) 000-0000
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(b) If to any Pledgor, at the address of such
Pledgor specified on Schedule III hereto:
with a copy to:
Xxxxxxxxxx Xxxxx Xxxxxx & Xxxxxxxxxx, P.C.
000 00xx Xxxxxx - 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopier Number: (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 validly served, given or delivered (i) upon the earlier of actual
receipt and three (3) Business Days after the same shall have been deposited
with the United States mail, registered or certified mail, return receipt
requested, with proper postage prepaid, (ii) upon transmission, when sent by
telecopy and confirmed by telecopy answerback, (iii) one (1) Business Day after
deposit with a reputable overnight carrier with all charges prepaid, or (iv)
when delivered, if hand-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, each of which shall, collectively and separately, constitute one
agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
XXXX PERFUMES CORP.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
MEM COMPANY, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
RENAISSANCE COSMETICS, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
COSMAR CORPORATION
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
GREAT AMERICAN COSMETICS, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
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HOUBIGANT (1995) LIMITED
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
ARISTOCRAT LEATHER PRODUCTS,
INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
XXXXXX XXXXXX, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
MEM COMPANY (CANADA) LIMITED
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
ENGLISH LEATHER, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
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Accepted and Acknowledged by:
GENERAL ELECTRIC CAPITAL CORPORATION
By:_________________________________
Name:_____________________________
Its Duly Authorized Signatory
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