EXHIBIT 10.98
PRIMARY PLEDGE AGREEMENT
THIS PRIMARY PLEDGE AGREEMENT made as of this 30th day of
September, 1996 between ARIS INDUSTRIES, INC., a New York corporation, having
its principal office and place of business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Pledgor"), and XXXXXX FINANCIAL, INC., a Delaware
corporation having an office and place of business at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, XX 00000 ("Xxxxxx"), amends and restates in its entirety, the Primary
Pledge Agreement, dated as of June 30, 1993 (the "Existing Pledge Agreement"),
between Pledgor and Xxxxxx in its capacity both as Agent and a Lender under that
certain Senior Secured Note Agreement dated as of June 30, 1993 (as amended, the
"Original Note Agreement"). The Existing Pledge Agreement, as amended and
restated hereby, and as further amended, modified or supplemented from time to
time, is referred to herein as this "Agreement".
WHEREAS, pursuant to the terms of that certain Amended and
Restated Senior Secured Note Agreement dated as of September 30, 1996 between
the Pledgor and Xxxxxx, which agreement amends and restates the Original Note
Agreement (as amended, supplemented, or otherwise modified from time to time,
the "Note Agreement"), the indebtedness of the Pledgor under the Original Note
Agreement is being restructured pursuant to the terms thereof (the
"Restructuring");
WHEREAS, capitalized terms used herein and not defined herein
shall, unless otherwise indicated, have the respective meanings given to them in
the Note Agreement.
WHEREAS, in connection with the Restructuring the obligations of
the Pledgor under the Interest Note and the other Reorganization Documents shall
be secured by a first priority perfected security interest in all of the stock
of Europe Crafts Imports, Inc., a New Jersey corporation ("ECI"), and Above the
Belt, Inc., a Virginia corporation ("ATB");
WHEREAS, pursuant to the terms of the Existing Pledge
Agreement, the Pledgor has granted, among other things, a
security interest in favor of Xxxxxx in all of the stock of ECI and ATB; and
WHEREAS, Pledgor and Xxxxxx desire that the Existing Pledge
Agreement be amended and restated in its entirety to provide for the continued
security interest in the stock of ECI and ATB to secure the Obligations (as
hereinafter defined);
NOW, THEREFORE, PURSUANT TO THE RESTRUCTURING AND THE NOTE
AGREEMENT, THE PARTIES HEREBY AGREE THAT THE EXISTING PLEDGE AGREEMENT IS
AMENDED AND RESTATED IN ITS ENTIRETY TO READ AS FOLLOWS:
1. Security Interest. As security for all obligations, liabilities
(including, without limitation, under Section 5 of the Note Agreement) and
indebtedness of every nature of Pledgor from time to time owed to Xxxxxx under
the Interest Note and the other Reorganization Documents, including the
principal amount of all debts, claims and indebtedness, accrued and unpaid
interest and all fees, costs and expenses, whether primary, secondary, direct,
contingent, fixed or otherwise, heretofore, now and/or from time to time
hereafter owing, due or payable whether before or after the filing of a
proceeding under Title 11 of the United States Code entitled "Bankruptcy", as
amended from time to time or any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect and all rules and regulations promulgated
thereunder (collectively, the "Obligations"), subject to the terms and
conditions of this Agreement, Pledgor hereby delivers, pledges and assigns to
Xxxxxx and grants to Xxxxxx a security interest in, all of Pledgor's right,
title and interest in, to and under the following (the "Pledged Collateral"):
(a) all of the issued and outstanding capital stock of ECI
and ATB represented by the stock certificates listed on Exhibit A attached
hereto (the "Pledged Shares") and the certificates representing the Pledged
Shares, and all products and proceeds of any of the Pledged Shares
including, without limitation, all 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 Pledged Shares; and
(b) all additional shares of stock of, or equity interest
in, ECI or ATB, as the case may be, from time to time acquired by Pledgor
in any manner, and the certificates representing such additional shares
(any such
additional shares shall constitute part of the Pledged Shares under and as
defined in this Agreement), and all products and proceeds of any of such
additional Pledged Shares, including, without limitation, all dividends,
cash, instruments, subscriptions, warrants and any other rights and options
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such additional
Pledged Shares. The security interest granted hereby to Xxxxxx shall be a
first priority security interest.
2. Stock Dividends, Options or Other Adjustment. Until the date on
which this Agreement terminates as provided in Section 12 hereof, Xxxxxx shall
receive, as Pledged Collateral, any and all additional shares of stock or any
other property of any kind distributable on or by reason of the Pledged
Collateral, whether in the form of or by way of stock dividends, warrants, total
or partial liquidation, conversion, exchange, prepayments or redemptions (in
whole or in part), or otherwise, with the sole exception of cash dividends or
cash interest payments, as the case may be. If any additional shares of capital
stock, instruments, or other property against which a security interest can only
be perfected by possession by Xxxxxx, which are distributable on or by reason of
the Pledged Collateral, shall come into the possession or control of Pledgor,
Pledgor shall hold or control and forthwith deliver the same to Xxxxxx subject
to the provisions hereof.
3. Delivery of Share Certificates; Stock Powers. All instruments
and stock certificates representing the Pledged Shares have been or are being
delivered to Xxxxxx simultaneously herewith together with stock powers duly
executed in blank by Pledgor. Pledgor shall promptly deliver to Xxxxxx or cause
the corporation or other entity issuing the Pledged Shares to deliver directly
to Xxxxxx, all instruments and stock certificates or other documents
representing Pledged Collateral acquired or received after the date of execution
of this Agreement with a stock power duly executed in blank by Pledgor. If at
any time Xxxxxx notifies Pledgor that additional stock powers duly executed in
blank by Xxxxxx with respect to the Pledged Collateral are required, Pledgor
shall promptly execute in blank and deliver such stock powers as Xxxxxx may
reasonably request.
4. Power of Attorney. Pledgor hereby constitutes and
irrevocably appoints Xxxxxx (or its designee), with full power of substitution
and revocation by Xxxxxx (or its designee), as Pledgor's true and lawful
attorney-in-fact, to the full extent
permitted by law, at any time or times when an Event of Default (as defined in
the Interest Note) has occurred and is continuing, for the purpose of carrying
out the provisions of this Agreement and taking any action and executing any
instrument which Xxxxxx reasonably may deem necessary and advisable to
accomplish the purposes of this Agreement, including, without limitation, to
affix to instruments, certificates and documents representing the Pledged
Collateral the stock powers delivered with respect thereto, to transfer or cause
the transfer of the Pledged Collateral, or any part thereof on the books of the
corporation or other entity issuing the same, to the name of Xxxxxx or Xxxxxx'x
nominee and thereafter exercise as to such Pledged Collateral all the rights,
power and remedies of an owner. The power of attorney granted pursuant to this
Agreement and all authority hereby conferred are granted and conferred solely to
protect Xxxxxx and Xxxxxx'x interest in the Pledged Collateral and shall not
impose any duty upon Xxxxxx to exercise any power. This power of attorney shall
be irrevocable as one coupled with an interest prior to the payment in full to
Xxxxxx of all of the Obligations by Pledgor. At such time as an Event of Default
is cured or waived, any power of attorney or other authorization herein
conferred is suspended, but such suspension shall not affect the validity of
actions previously taken by the attorney-in-fact pursuant thereto.
5. Inducing Representations of Pledgor. Pledgor represents and
warrants to Xxxxxx that as of the date hereof:
(a) the Pledged Shares constitute one hundred
percent (100%) of the issued and outstanding capital stock
of each of ECI and ATB;
(b) Pledgor is the sole legal and beneficial owner of, and
has good and marketable title to, the Pledged Collateral, free and clear of
all pledges, liens, security interests and other encumbrances other than
the security interests created by this Agreement and those listed on
Exhibit B hereto, and Pledgor has the necessary right and authority to
execute this Agreement and to pledge the Pledged Collateral to Xxxxxx as
provided for herein;
(c) except as set forth on Exhibit B attached hereto,
there are no outstanding options, warrants or other agreements with respect
to the Pledged Shares;
(d) (i) the Pledged Shares have been validly issued and
are fully paid and non-assessable; (ii) the holder or holders of the
Pledged Collateral are not and
will not be subject to any personal liability as such holder; (iii) the
Pledged Shares are not subject to any charter, bylaw, statutory,
contractual or other restrictions governing the issuance, transfer,
ownership or control of such Pledged Shares, except (A) the offering, sale,
transfer or other disposition of the Pledged Collateral may be limited by
the Securities Act of 1933, as amended (the "Act"), the regulations of the
Securities and Exchange Commission thereunder, the Uniform Commercial Code
or applicable state securities laws or regulations and (B) as provided in
the Interest Note, this Agreement, the Series A Junior Secured Note
Agreement, the Series B Junior Secured Note Agreement (as each such term is
defined in the Original Note Agreement prior to giving effect to the
amendment and restatement thereof pursuant to the Note Agreement), the
Intercreditor Agreement and the Secondary Pledge Agreement dated as of June
30, 1993 made by Pledgor in favor of BNY Financial Corporation, as
collateral agent;
(e) any consent, approval or authorization of, or
designation or filing with, any authority on the part of Pledgor which is
required in connection with the pledge and security interests granted under
this Agreement has been obtained or effected and is in full force and
effect except as may be required with respect to the exercise of the rights
and remedies of Xxxxxx by laws affecting the offering and sale of
securities generally;
(f) Pledgor has deposited with Xxxxxx the Pledged Shares,
duly endorsed in blank or accompanied by an assignment or assignments
sufficient to transfer title thereto; and
(g) upon the delivery to Xxxxxx of the Pledged Collateral
and (as to certain proceeds thereof) the filing of Uniform Commercial Code
financing statements in appropriate locations, the pledge of the Pledged
Collateral pursuant to this Agreement creates a valid and perfected first
priority security interest (subject to any applicable bankruptcy,
insolvency, reorganization, moratorium or other similar law) in so much of
the Pledged Collateral as is subject to Article 8 or Article 9 of the
Uniform Commercial Code, securing the payment of the Obligations for the
benefit of Xxxxxx, provided the Pledged Collateral is held in the
possession of Xxxxxx.
6. Obligations of Pledgor. Pledgor further covenants to
Xxxxxx that:
(a) Pledgor will not sell, transfer or convey any interest
in any of the Pledged Collateral, or suffer or permit any lien or
encumbrance to be created upon or with respect to any of the Pledged
Collateral (other than as created under this Agreement and liens securing
the Junior Secured Debt (as defined in the Original Note Agreement prior to
giving effect to the amendment and restatement thereof pursuant to the Note
Agreement)) during the term of this Agreement; and
(b) Pledgor will, at its own expense, at any time and from
time to time at Xxxxxx'x reasonable request, do, make, procure, execute and
deliver all acts, things, writings, assurances and other documents as may
be proposed to be necessary or desirable by Xxxxxx to further enhance,
preserve, establish, demonstrate or enforce Xxxxxx'x rights, interests and
remedies created by, provided in or in connection with this Agreement.
7. Rights of Pledgor. So long as no Event of Default
has occurred and is continuing:
(a) Pledgor shall be entitled to receive and retain free
of the pledge and security interest granted hereby, all cash dividends or
cash interest payments paid on the Pledged Collateral; and
(b) Pledgor shall be entitled to vote or consent
with respect to the Pledged Collateral in any manner not inconsistent with this
Agreement, the Interest Note or the other Reorganization Documents.
Pledgor hereby grants to Xxxxxx an irrevocable proxy to vote the
Pledged Collateral which proxy shall be effective immediately upon the
occurrence and continuance of an Event of Default. Upon request of Xxxxxx,
Pledgor agrees to deliver to Xxxxxx such further evidence of such irrevocable
proxy or such further irrevocable proxy to vote the Pledged Collateral as Xxxxxx
may reasonably request.
8. Rights of Xxxxxx. At any time when an Event of
Default has occurred and is continuing, Xxxxxx may, in
addition to any other rights it may have under this Agreement
or under applicable law, without notice:
(a) collect by legal proceedings or otherwise all
dividends, interest, principal payments, capital distributions and other
sums now or hereafter payable on account of the Pledged Collateral, and
hold the same as
part of the Pledged Collateral, or apply the same to any of
the Obligations in accordance with Section 11 hereof; and
(b) enter into any extension, subordination,
reorganization, deposit, merger or consolidation agreement, or any other
agreement relating to or affecting the Pledged Collateral, and in connection
therewith deposit or surrender control of such Pledged Collateral thereunder,
and accept other property in exchange therefor and hold and apply such property
or money so received in accordance with the provisions hereof.
9. Registration Under the Securities Act of 1933.
(a) Upon the occurrence and continuance of an Event of
Default, and if in the opinion of counsel for Xxxxxx it is necessary to
have the Pledged Collateral or a portion thereof registered under the Act,
in order to sell the Pledged Collateral or such portion thereof in a manner
contemplated by Xxxxxx, then at Xxxxxx'x request, Pledgor shall execute and
deliver, and cause ECI and/or ATB and the directors and officers thereof 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, in the
reasonable opinion of Xxxxxx, to register the Pledged Collateral under the
provisions of the Act, and use its best efforts to cause the registration
statement relating thereto to become effective and to remain effective for
a period of one year from the date of the first public offering of such
Pledged Collateral or that portion thereof to be sold, and to make all
amendments and supplements thereto and to the related prospectus which, in
the reasonable opinion of Xxxxxx, are necessary, all in conformity with the
requirements of the Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto.
(b) All expenses incurred in connection with the
registration and sale of the securities comprising the Pledged Collateral
described in Section 9(a) above, including, without limitation, reasonable
legal, accounting and printing expenses and any reasonable underwriter's fee and
commission, shall be paid by Pledgor.
(c) Pledgor agrees to use its best efforts to
cause each of ECI and ATB to comply with the applicable securities laws and
regulations, including all "blue-sky" laws, of a jurisdiction which Xxxxxx shall
designate. Pledgor shall indemnify and hold harmless Xxxxxx from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement, omission or alleged omission, of a material fact
contained in any registration statement (in the form in which it or any
post-effective amendment thereto becomes effective) under the Act or any
prospectus included therein required to be filed or furnished by reason of this
Section 9, except insofar as such untrue or alleged untrue statement or omission
or alleged omission is based upon information furnished or required to be
furnished in writing to Pledgor by Xxxxxx expressly for use therein, which
indemnification shall include each person, if any, who controls Xxxxxx within
the meaning of the Act. The obligations and liabilities of Pledgor under this
Section 9(c) shall survive any termination or cancellation of the Interest Note,
this Agreement or any of the other Reorganization Documents.
10. Event of Default; Remedies. Upon the occurrence and continuance of an
Event of Default, Xxxxxx shall be entitled to exercise all of its rights and
remedies for the protection and enforcement of its rights in respect of the
Pledged Shares, including the following:
(a) In addition to all the rights and remedies of a
secured party under the Uniform Commercial Code, Xxxxxx shall have the
right, and without demand of performance or other demand, advertisement or
notice of any kind, except as specified below, to or upon Pledgor or any
other person or entity (all and each of which demands, advertisements
and/or notices are hereby expressly waived to the extent permitted by law),
to proceed forthwith to collect, receive, appropriate and realize upon the
Pledged Collateral, or any part thereof, and to proceed forthwith to sell,
assign, give an option or options to purchase, contract to sell, or
otherwise dispose of and deliver the Pledged Collateral, or any part
thereof, in one or more parcels at public or private sale or sales at any
stock exchange, broker's board or at any of Xxxxxx'x offices or elsewhere
at such prices and on such terms (including, without limitation, a
requirement that any purchaser of all or any part of the Pledged Collateral
shall be required to purchase any securities constituting the Pledged
Collateral solely for investment and without any intention to make a
distribution thereof) as Xxxxxx deems to be commercially reasonable. If any
notification of intended disposition of the Pledged Collateral is required
by law, such notification shall be deemed reasonable and properly given if
mailed, in accordance with Section 14(b) below, at least ten (10) days
before any such disposition. Any disposition
of the Pledged Collateral, or any part thereof, may be for cash or on
credit or for future delivery without assumption of any credit risk, with
the right of Xxxxxx to purchase all or any part of the Pledged Collateral
so sold at any such sale or sales, public or private, free of any equity or
right of redemption in Pledgor, which right or equity is, to the extent
permitted by applicable law, hereby expressly waived or released by
Pledgor.
(b) All of Xxxxxx'x rights and remedies,
including but not limited to the foregoing, shall be cumulative and not
exclusive and shall be enforceable alternatively, successively or concurrently
as Xxxxxx may deem expedient.
(c) Xxxxxx may elect to obtain (at Pledgor's
expense) the advice of any independent nationally known investment banking firm
with respect to the method and manner of sale or other disposition of any of the
Pledged Collateral, the best price reasonably obtainable therefor, the
consideration of cash and/or credit terms, or any other details concerning such
sale or disposition. Xxxxxx, in its sole discretion, may elect to sell on such
credit terms which it deems reasonable. The sale of any of the Pledged
Collateral on credit terms shall not relieve Pledgor of its liability for any of
the Obligations until the full purchase price for such Pledged Collateral has
been paid in full.
(d) Pledgor recognizes that Xxxxxx may be unable
to effect a public sale of all or a part of the Pledged Collateral by reason of
certain prohibitions contained in the Act, but may be compelled to resort to one
or more private sales to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire the Pledged Collateral for their own
account, for investment and not with a view for the distribution or resale
thereof. Pledgor agrees that private sales so made may be at prices and on other
terms less favorable to the seller than if the Pledged Collateral were sold at
public sale, and that Xxxxxx has no obligation to delay the sale of any Pledged
Collateral for the period of time necessary to permit the registration of the
Pledged Collateral for public sale under the Act. Pledgor agrees that a private
sale or sales made under the foregoing circumstances shall be deemed to have
been made in a commercially reasonable manner.
(e) If any consent, approval or authorization of
any state, municipal or other governmental department, agency
or authority shall be necessary to effectuate any sale or
other disposition of the Pledged Collateral, or any partial disposition of the
Pledged Collateral, Pledgor will execute all such applications and other
instruments as may be required in connection with securing any such consent,
approval or authorization, and will otherwise use its best efforts to secure the
same. Pledgor further agrees to use its best efforts to effect such sale or
other disposition of the Pledged Collateral as Xxxxxx may xxxx necessary
pursuant to the terms of this Agreement.
(f) Upon any sale or other disposition, Xxxxxx
shall have the right to deliver, assign and transfer to the purchaser thereof
the Pledged Collateral so sold or disposed of. Each purchaser at any such sale
or other disposition (including Xxxxxx) shall hold the Pledged Collateral free
from any claim or right of whatever kind, including any equity or right of
redemption, of Pledgor. Pledgor specifically waives, to the extent permitted by
applicable law, all rights of redemption, stay or appraisal which it had or may
have under any rule of law or statute now existing or hereafter adopted.
(g) Xxxxxx shall not be obligated to make any
sale or other disposition, unless the terms thereof shall be satisfactory to it.
Xxxxxx may, without notice or publication, adjourn any private or public sale,
and, upon ten (10) days' prior notice to Pledgor, hold such sale at any time or
place to which the same may be so adjourned. In case of any sale of all or any
part of the Pledged Collateral, on credit or future delivery, the Pledged
Collateral so sold may be retained by Xxxxxx until the selling price is paid by
the purchaser thereof, but Xxxxxx shall incur no liability in case of the
failure of such purchaser to take up and pay for the property so sold and, in
case of any such failure, such property may again be sold as herein provided.
Pledgor shall only receive credit for funds actually received and retained by
Xxxxxx.
11. Disposition of Proceeds.
(a) The proceeds of any sale or disposition of all or any
part of the Pledged Collateral shall be applied by Xxxxxx in the following
order:
(i) to the payment in full of the costs and
expenses of such sale or sales, collections, and the protection,
declaration and enforcement of any security interest granted
hereunder including the reasonable fees and disbursements of
Xxxxxx'x agents and attorneys in connection therewith;
(ii) to the payment of the Obligations in
such order as Xxxxxx may elect; and
(iii) to the payment to Pledgor of any
surplus then remaining from such proceeds, subject to the rights
of the holders of the Junior Secured Debt or any other holder
of a lien on the Pledged Collateral of which Xxxxxx has actual
notice.
(b) In the event that the proceeds of any sale
or other disposition are insufficient to cover the principal of, and premium, if
any, and interest on, the Obligations plus costs and expenses of the sale or
other disposition, Pledgor shall remain liable for any deficiency.
12. Termination. This Agreement shall continue in full force and
effect until the full and complete payment, satisfaction and termination of all
of the Obligations. Upon full and complete payment, satisfaction and termination
of all of the Obligations, all undertakings, agreements, covenants, warranties
and representations of Pledgor and Xxxxxx contained in this Agreement shall
terminate and expire, except to the extent otherwise provided in the
Reorganization Documents, and the security interest of Xxxxxx in the Pledged
Collateral shall terminate. Subject to any sale or other disposition or release
by Xxxxxx of the Pledged Collateral or any part thereof pursuant to this
Agreement and the rights of the holders of the Junior Secured Debt or any other
holder of a lien otherwise permitted by the Interest Note and granted by Pledgor
of which Xxxxxx has actual notice, the Pledged Collateral shall be returned
promptly to Pledgor (without warranty by, or recourse to, Xxxxxx) upon full
payment, satisfaction and termination of all of the Obligations. Xxxxxx shall
execute and deliver to Pledgor such documents as Pledgor may reasonably request
to evidence such termination of the security interest in the Pledged Collateral.
13. Expenses of Xxxxxx. All expenses (including reasonable fees
and disbursements of counsel) incurred by Xxxxxx in connection with any actual
or attempted sale, exchange of, or any enforcement, collection, compromise or
settlement respecting, the Pledged Collateral, or any other action taken by
Xxxxxx hereunder whether directly or as attorney-in-fact pursuant to a power of
attorney or other authorization herein conferred, for the purpose of
satisfaction of any of the Obligations or any additional amounts owing by
Pledgor to cover Xxxxxx'x costs of acting against the Pledged Collateral, shall
be deemed to be part of the Obligations and Xxxxxx may apply the Pledged
Collateral to
payment of or reimbursement of itself for such expenses. Xxxxxx shall provide to
Pledgor supporting documentation for such expenses as Pledgor may reasonably
request, provided that the provision or receipt of such documentation shall not
be a condition precedent to application of the Pledged Collateral to payment of
or reimbursement of such expenses as provided above, or otherwise affect the
rights of Xxxxxx as provided above. The obligations and liabilities of Pledgor
under this Section 13 shall survive any termination or cancellation of the
Interest Note, this Agreement or any of the other Reorganization Documents.
14. General Provisions.
(a) Xxxxxx and its assigns shall have no obligation in respect of
the Pledged Collateral, except to use reasonable care in holding the Pledged
Collateral and to hold and dispose of the same in accordance with the terms of
this Agreement and the Intercreditor Agreement.
(b) Any notice or other communication given hereunder (except as
expressly provided to the contrary), shall be in writing and shall be given by
messenger, telecopy transmission or commercial express mail service, and shall
be addressed as follows, or to such other address as the party affected may
hereafter designate in writing to the others in accordance with this Section
14(b):
If to Pledgor: Aris Industries, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If to Xxxxxx: Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Project Management
Organization
Facsimile: (000) 000-0000
with a copy to: Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
Project Management
Organization
Facsimile: (000) 000-0000
If given by messenger, telex or telecopy transmission, telegram or
commercial express mail service, any notice or other communication shall be
effective upon receipt.
(c) No failure on the part of Xxxxxx to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Xxxxxx of any right, power
or remedy hereunder preclude any other or future exercise thereof, or the
exercise of any other right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law or any other
agreement. The representations, covenants and agreements of Pledgor herein
contained shall survive the date hereof. Neither this Agreement nor the
provisions hereof can be changed, waived or terminated orally. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns pursuant to the Interest Note.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (BUT WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICT OF LAWS) AS TO INTERPRETATION, ENFORCEMENT, VALIDITY,
CONSTRUCTION, EFFECT AND IN ALL OTHER RESPECTS EXCEPT PERFECTION, WHICH SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE RELEVANT
JURISDICTION. EACH OF PLEDGOR AND Xxxxxx WAIVES ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREUNDER AS SET FORTH IN THE INTEREST NOTE.
(e) This Agreement may be executed in one or more counterparts,
and by the parties hereto on separate counterparts, each of which shall be
deemed to be an original, and such counterparts, together, shall constitute one
and the same instrument, which shall be sufficiently evidenced by any such
original counterpart.
15. Rescission of Perry Sale. In the event that the Perry Sale (as defined
in the Note Agreement) is rescinded or set aside for any reason, the Pledgor
hereby agrees that its
pledge of all of the issued and outstanding capital stock of Perry Manufacturing
Company and the certificates representing such shares, and all products and
proceeds of any of such shares, including, without limitation, all 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 such shares
in favor of Xxxxxx pursuant to the terms of the Existing Pledge Agreement
(collectively, the "Perry Stock") shall be reinstated and continue in full force
and effect without any further action or grant on the part of Pledgor or any
other person or entity, and such pledge as so reinstated shall, together with
the Pledged Collateral, secure the Obligations and the Perry Stock shall
constitute Pledged Collateral for all purposes hereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first above written.
ARIS INDUSTRIES, INC.
By: /s/ XXXXXXX X. RAMAT
------------------------------
Name: Xxxxxxx X. Ramat
Title: President
XXXXXX FINANCIAL, INC.
By: /s/ XXXXXXXX XXXXXXXXX
------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Senior Vice President
