STOCK PLEDGE AGREEMENT
This STOCK PLEDGE AGREEMENT is made as of December 23, 1998 (this
"Agreement"), by and between XXXXXXXXX XXXXX, INC., a California corporation
(the "Borrower"), and BANKBOSTON, N.A., a national banking association, as agent
(in such capacity, the "Agent") for itself and other lending institutions
(collectively, the "Banks") which are or may become parties to that certain
Second Amended and Restated Revolving Credit Agreement dated as of December 23,
1998 (as amended and in effect from time to time, the "Credit Agreement") among
the Borrower, Xxxxxxxxx Xxxxx Holding, Inc. (the "Guarantor"), the Banks and the
Agent.
WHEREAS, pursuant to that certain Amended and Restated Revolving Credit and
Term Loan Agreement dated as of December 5, 1997 (as amended and in effect from
time to time, the "First Restated Credit Agreement", which amended and restated
in its entirety the Revolving Credit and Term Loan Agreement dated as of
September 27, 1996), the Banks made loans or otherwise extended credit to the
Borrower for the purposes described therein;
WHEREAS, the Borrower, the Guarantor, the Banks and the Agent have entered
into the Credit Agreement to amend and restate in its entirety the First
Restated Credit Agreement;
WHEREAS, it is a condition precedent to the Banks amending and restating
the First Restated Credit Agreement and converting any loans under the First
Restated Credit Agreement into Loans under the Credit Agreement or making any
other Loans under the Credit Agreement that the Borrower execute and deliver to
the Agent, for the benefit of the Banks and the Agent, a pledge agreement in
substantially the form hereof;
WHEREAS, the Borrower wishes to grant pledges and security interests in
favor of the Agent, for the benefit of the Banks and the Agent, in order to
secure the Obligations; and
WHEREAS, the Borrower is the direct legal and/or beneficial owner of all
(except as otherwise noted in ANNEX A) of the issued and outstanding shares of
each class of the capital stock of each of the corporations described on ANNEX
A;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree.
1. PLEDGE OF STOCK, ETC.
1.1. PLEDGE OF STOCK. The Borrower hereby pledges, assigns, grants a
security interest in, and delivers to the Agent, for the benefit of the
Banks, all of the shares of capital stock of Xxxxxxxxx Xxxxx
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Merchandising, Inc. ("Xxxxxxxxx Xxxxx Merchandising") and Xxxxxxxxx Xxxxx
Administration, Inc. ("Xxxxxxxxx Xxxxx Administration"), as more fully
described on ANNEX A hereto, to be held by the Agent, for the benefit of
the Banks, subject to the terms and conditions hereinafter set forth. The
certificates for such shares, accompanied by stock powers or other
appropriate instruments of assignment thereof duly executed in blank by the
Borrower, have been delivered to the Agent.
1.2. ADDITIONAL STOCK. In case the Borrower shall acquire any
additional shares of the capital stock of Xxxxxxxxx Xxxxx Merchandising or
Xxxxxxxxx Xxxxx Administration or any other Subsidiary of the Borrower or
any corporation which is the successor of the Borrower or such Subsidiary,
or any securities exchangeable for or convertible into shares of such
capital stock of any class of the Borrower or such Subsidiary, by purchase,
stock dividend, stock split or otherwise, then the Borrower shall forthwith
deliver to and pledge such shares or other securities to the Agent, for the
benefit of the Banks, under this Agreement and shall deliver to the Agent
forthwith any certificates therefor, accompanied by stock powers or other
appropriate instruments of assignment duly executed in blank by the
Borrower. The Borrower agrees that the Agent may from time to time attach
as ANNEX A hereto an updated list of the shares of capital stock or
securities at the time pledged with the Agent hereunder.
1.3. PLEDGE OF CASH COLLATERAL ACCOUNT. The Borrower also hereby
pledges, assigns, grants a security interest in, and delivers to the Agent,
the Cash Collateral Account and all of the Cash Collateral as such terms
are hereinafter defined.
2. DEFINITIONS. The term "Obligations" and all other capitalized terms used
herein without definition shall have the respective meanings provided therefor
in the Credit Agreement. Terms used herein and not defined in the Credit
Agreement or otherwise defined herein that are defined in the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts have such defined
meanings herein, unless the context otherwise indicated or requires, and the
following terms shall have the following meanings:
CASH COLLATERAL. See Section 4.
CASH COLLATERAL ACCOUNT. See Section 4.
STOCK. Includes the shares of stock described in ANNEX A attached hereto
and any additional shares of stock at the time pledged with the Agent hereunder.
STOCK COLLATERAL. The property at any time pledged to the Agent hereunder
(whether described herein or not) and all income therefrom, increases therein
and proceeds thereof, including without limitation that
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included in Cash Collateral but excluding from the definition of "Stock
Collateral" any income, increases or proceeds received by the Borrower to the
extent expressly permitted by Section 6.
TIME DEPOSITS. See Section 4.
3. SECURITY FOR OBLIGATIONS. This Agreement and the security interest in
and pledge of the Stock Collateral hereunder are made with and granted to the
Agent, for the benefit of the Banks, as security for the payment and performance
in full of all the Obligations.
4. LIQUIDATION, RECAPITALIZATION, ETC.
4.1. DISTRIBUTIONS PAID TO AGENT. Any sums or other property paid or
distributed upon or with respect to any of the Stock, whether by dividend
or redemption or upon the liquidation or dissolution of the issuer thereof
or otherwise, shall, except to the limited extent provided in Section 6, be
paid over and delivered to the Agent to be held by the Agent as security
for the payment and performance in full of all of the Obligations. In case,
pursuant to the recapitalization or reclassification of the capital of the
issuer thereof or pursuant to the reorganization thereof, any distribution
of capital shall be made on or in respect of any of the Stock or any
property shall be distributed upon or with respect to any of the Stock, the
property so distributed shall be delivered to the Agent to be held by it as
security for the Obligations. Except to the limited extent provided in
Section 6, all sums of money and property paid or distributed in respect of
the Stock, whether as a dividend or upon such a liquidation, dissolution,
recapitalization or reclassification or otherwise, that are received by the
Borrower shall, until paid or delivered to the Agent, be held in trust for
the Agent as security for the payment and performance in full of all of the
Obligations.
4.2. CASH COLLATERAL ACCOUNT. All sums of money that are delivered to
the Agent pursuant to this Section 4 shall be deposited into an interest
bearing account with the Agent (the "Cash Collateral Account"). Some or all
of the funds from time to time in the Cash Collateral Account may be
invested in time deposits, including, without limitation, certificates of
deposit issued by the Agent (such certificates of deposit or other time
deposits being hereinafter referred to, collectively, as "Time Deposits"),
that are satisfactory to the Agent after consultation with the Borrower,
PROVIDED, that, in each such case, arrangements satisfactory to the Agent
are made and are in place to perfect and to ensure the first priority of
the Agent's security interest therein. Interest earned on the Cash
Collateral Account and on the Time Deposits, and the principal of the Time
Deposits at maturity that is not invested in new Time Deposits, shall be
deposited in the Cash Collateral Account. The Cash Collateral Account, all
sums from time to time standing to the credit of the Cash Collateral
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Account, any and all Time Deposits, any and all instruments or other
writings evidencing Time Deposits and any and all proceeds or any thereof
are hereinafter referred to as the "Cash Collateral."
4.3. BORROWER'S RIGHTS TO CASH COLLATERAL, ETC. Except as otherwise
expressly provided in Section 14, the Borrower shall have no right to
withdraw sums from the Cash Collateral Account, to receive any of the Cash
Collateral or to require the Agent to part with the Agent's possession of
any instruments or other writings evidencing any Time Deposits.
5. WARRANTY OF TITLE; AUTHORITY. The Borrower hereby represents and
warrants that: (i) the Borrower has good and marketable title to, and is the
sole record and beneficial owner of, the Stock described in Section 1, subject
to no pledges, liens, security interests, charges, options, restrictions or
other encumbrances except the pledge and security interest created by this
Agreement, (ii) all of the Stock described in Section 1 is validly issued, fully
paid and non-assessable, (iii) the Borrower has full power, authority and legal
right to execute, deliver and perform its obligations under this Agreement and
to pledge and grant a security interest in all of the Stock Collateral pursuant
to this Agreement, and the execution, delivery and performance hereof and the
pledge of and granting of a security interest in the Stock Collateral hereunder
have been duly authorized by all necessary corporate or other action and do not
contravene any law, rule or regulation or any provision of the Borrower's
charter documents or by-laws or of any judgment, decree or order of any tribunal
or of any agreement or instrument to which the Borrower is a party or by which
it or any of its property is bound or affected or constitute a default
thereunder, and (iv) the information set forth in Annex A hereto relating to the
Stock is true, correct and complete in all respects. The Borrower covenants that
it will defend the rights and security interest of the Banks and the Agent in
such Stock against the claims and demands of all persons whomsoever. The
Borrower further covenants that it will have the like title to and right to
pledge and grant a security interest in the Stock Collateral hereafter pledged
or in which a security interest is granted to the Agent hereunder and will
likewise defend the rights, pledge and security interest thereof and therein of
the Banks and the Agent.
5.1. DIVIDENDS, VOTING, ETC., PRIOR TO MATURITY. So long as no Event of
Default shall have occurred and be continuing, the Borrower shall be entitled to
receive all cash dividends paid in respect of the Stock, to vote the Stock and
to give consents, waivers and ratifications in respect of the Stock; PROVIDED,
HOWEVER, that no vote shall be cast or consent waiver or ratification given by
the Borrower if the effect thereof would in the reasonable judgment of the Agent
impair any of the Stock Collateral or be inconsistent with or result in any
violation of any of the provisions of the Credit Agreement, the Notes or any of
the other Loan Documents. All such rights of the Borrower to receive cash
dividends shall cease in case a Default or an Event of Default shall have
occurred and be continuing. All
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such rights of the Borrower to vote and give consents, waivers and ratifications
with respect to the Stock shall, at the Agent's option, as evidenced by the
Agent's notifying the Borrower of such election, cease in case a Default or an
Event of Default shall have occurred and be continuing.
6. REMEDIES.
6.1. IN GENERAL. If an Event of Default shall have occurred and be
continuing, the Agent shall thereafter have the following rights and
remedies (to the extent permitted by applicable law) in addition to the
rights and remedies of a secured party under the Uniform Commercial Code as
in effect in the Commonwealth of Massachusetts, all such rights and
remedies being cumulative, not exclusive, and enforceable alternatively,
successively or concurrently, at such time or times as the Agent deems
expedient:
(a) if the Agent so elects and gives notice of such election to
the Borrower, the Agent may vote any or all shares of the Stock
(whether or not the same shall have been transferred into its name or
the name of its nominee or nominees) for any lawful purpose,
including, without limitation, if the Agent so elects, for the
liquidation of the assets of the issuer thereof, and give all
consents, waivers and ratifications in respect of the Stock and
otherwise act with respect thereto as though it were the outright
owner thereof (the Borrower hereby irrevocably constituting and
appointing the Agent the proxy and attorney-in-fact of the Borrower,
with full power of substitution, to do so);
(b) the Agent may demand, xxx for, collect or make any compromise
or settlement the Agent deems suitable in respect of any Stock
Collateral;
(c) the Agent may sell, resell, assign and deliver, or otherwise
dispose of any or all of the Stock Collateral, for cash or credit or
both and upon such terms at such place or places, at such time or
times and to such entities or other persons as the Agent thinks
expedient, all without demand for performance by the BORROWER or any
notice or advertisement whatsoever except as expressly provided herein
or as may otherwise be required by law;
(d) the Agent may cause all or any part of the Stock held by it
to be transferred into its name or the name of its nominee or
nominees; and
(e) the Agent may set off against the Obligations any and all
sums deposited with it or held by it, including without
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limitation, any sums standing to the credit of the Cash Collateral
Account and any Time Deposits issued by the Agent.
6.2. SALE OF STOCK COLLATERAL. In the event of any disposition of the
Stock Collateral as provided in clause (c) of Section 7.1, the Agent shall
give to the Borrower at least ten (10) Business Days prior written notice
of the time and place of any public sale of the Stock Collateral or of the
time after which any private sale or any other intended disposition is to
be made. The Borrower hereby acknowledges that ten (10) Business Days prior
written notice of such sale or sales shall be reasonable notice. The Agent
may enforce its rights hereunder without any other notice and without
compliance with any other condition precedent now or hereunder imposed by
statute, rule of law or otherwise (all of which are hereby expressly waived
by the Borrower, to the fullest extent permitted by law). The Agent may buy
any part or all of the Stock Collateral at any public sale and if any part
or all of the Stock Collateral is of a type customarily sold in a
recognized market or is of the type which is the subject of
widely-distributed standard price quotations, the Agent may buy at private
sale and may make payments thereof by any means. The Agent may apply the
cash proceeds actually received from any sale or other disposition to the
reasonable expenses of retaking, holding, preparing for sale, selling and
the like, to reasonable attorneys' fees, travel and all other expenses
which may be incurred by the Agent in attempting to collect the Obligations
or to enforce this Agreement or in the prosecution or defense of any action
or proceeding related to the subject matter of this Agreement, and then to
the Obligations in the order set forth in such order or preference as the
Agent may determine after proper allowance for Obligations not then due.
Only after such applications, and after payment by the Agent of any amount
required by Section 9-504(1)(c) of the Uniform Commercial Code as in effect
in the Commonwealth of Massachusetts, need the Agent account to the
Borrower for any surplus.
6.3. REGISTRATION OF STOCK. If the Agent shall determine to exercise
its right to sell any or all of the Stock pursuant to this Section 7, and
if in the opinion of counsel for the Agent it is necessary, or if in the
reasonable opinion of the Agent it is advisable, to have the Stock, or that
portion thereof to be sold, registered under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), the Borrower
agrees to use its best efforts to cause the issuer or issuers of the Stock
contemplated to be sold, to execute and deliver, and cause the directors
and officers of such issuer to execute and deliver, all at the Borrower's
expense, all such instruments and documents, and to do or cause to be done
all such other acts and things as may be necessary or, in the reasonable
opinion of the Agent, advisable to register such Stock under the provisions
of the Securities Act and to cause the registration statement relating
thereto to become effective
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and to remain effective for a period of 9 months from the date such
registration statement became effective, and to make all amendments thereto
or to the related prospectus or both that, in the reasonable opinion of the
Agent, are necessary or advisable, all in conformity with the requirements
of the Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. The Borrower agrees to use its best
efforts to cause such issuer or issuers to comply with the provisions of
the securities or "Blue Sky" laws of any jurisdiction which the Agent shall
designate and to cause such issuer or issuers to make available to its
security holders, as soon as practicable, an earnings statement (which need
not be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
6.4. PRIVATE SALES. The Borrower recognizes that the Agent may be
unable to effect a public sale of the Stock by reason of certain
prohibitions contained in the Securities Act, federal banking laws, and
other applicable laws, but may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers. The Borrower
agrees that any such private sales may be at prices and other terms less
favorable to the seller than if sold at public sales and that such private
sales shall not by reason thereof be deemed not to have been made in a
commercially reasonable manner. The Agent shall be under no obligation to
delay a sale of any of the Stock for the period of time necessary to permit
the issuer of such securities to register such securities for public sale
under the Securities Act, or such other federal banking or other applicable
laws, even if the issuer would agree to do so. Subject to the foregoing,
the Agent agrees that any sale of the Stock shall be made in a commercially
reasonable manner, and the Borrower agrees to use its best efforts to cause
the issuer or issuers of the Stock contemplated to be sold, to execute and
deliver, and cause the directors and officers of such issuer to execute and
deliver, all at the Borrower's expense, all such instruments and documents,
and to do or cause to be done all such other acts and things as may be
necessary or, in the reasonable opinion of the Agent, advisable to exempt
such Stock from registration under the provisions of the Securities Act,
and to make all amendments to such instruments and documents which, in the
opinion of the Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. The Borrower further
agrees to use its best efforts to cause such issuer or issuers to comply
with the provisions of the securities or "Blue Sky" laws of any
jurisdiction which the Agent shall designate and, if required, to cause
such issuer or issuers to make available to its security holders, as soon
as practicable, an earnings statement (which need not be audited) which
will satisfy the provisions of Section 11(a) of the Securities Act.
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6.5. BORROWER'S AGREEMENTS, ETC. The Borrower further agrees to do or
cause to be done all such other acts and things as may be reasonably
necessary to make any sales of any portion or all of the Stock pursuant to
this Section 7 valid and binding and in compliance with any and all
applicable laws (including, without limitation, the Securities Act, the
Securities Exchange Act of 1934, as amended, the rules and regulations of
the Securities and Exchange Commission applicable thereto and all
applicable state securities or "Blue Sky" laws), regulations, orders,
writs, injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction
over any such sale or sales, all at the Borrower's expense. The Borrower
further agrees that a breach of any of the covenants contained in this
Section 7 will cause irreparable injury to the Agent, that the Agent has no
adequate remedy at law in respect of such breach and, as a consequence,
agrees that each and every covenant contained in this Section 7 shall be
specifically enforceable against the Borrower and the Borrower hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants.
7. MARSHALLING. The Agent shall not be required to marshal any present or
future security for (including but not limited to this Agreement and the Stock
Collateral), or other assurances of payment of, the Obligations or any of them,
or to resort to such security or other assurances of payment in any particular
order. All of the Agent's rights hereunder and in respect of such security and
other assurances of payment shall be cumulative and in addition to all other
rights, however existing or arising. To the extent that it lawfully may, the
Borrower hereby agrees that it will not invoke any law relating to the
marshalling of collateral that might cause delay in or impede the enforcement of
the Agent's rights under this Agreement or under any other instrument evidencing
any of the Obligations or under which any of the Obligations is outstanding or
by which any of the Obligations is secured or payment thereof is otherwise
assured, and to the extent that it lawfully may the Borrower hereby irrevocably
waives the benefits of all such laws.
8. BORROWER'S OBLIGATIONS NOT AFFECTED. The obligations of the Borrower
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by (i) any exercise or nonexercise, or any waiver, by the Agent of
any right, remedy, power or privilege under or in respect of any of the
Obligations or any security thereof (including this Agreement); (ii) any
amendment to or modification of the Credit Agreement, the Notes, the other Loan
Documents or any of the Obligations; (iii) any amendment to or modification of
any instrument (other than this Agreement) securing any of the Obligations,
including, without limitation, any of the Security Documents; or (iv) the taking
of additional security for, or any other assurances of payment of, any of the
Obligations or the release or discharge or termination of any security or other
assurances of payment or
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performance for any of the Obligations; whether or not the Borrower shall have
notice or knowledge of any of the foregoing.
9. TRANSFER, ETC., BY BORROWER. Without the prior written consent of the
Agent, the Borrower will not sell, assign, transfer or otherwise dispose of,
grant any option with respect to, or pledge or grant any security interest in or
otherwise encumber or restrict any of the Stock Collateral or any interest
therein, except for the pledge thereof and security interest therein provided
for in this Agreement.
10. FURTHER ASSURANCES. The Borrower will do all such acts, and will
furnish to the Agent all such financing statements, certificates, legal opinions
and other documents and will obtain all such governmental consents and corporate
approvals and will do or cause to be done all such other things as the Agent may
reasonably request from time to time in order to give full effect to this
Agreement and to secure the rights of the Agent hereunder, all without any cost
or expense to the Agent. If the Agent so elects, a photocopy of this Agreement
may at any time and from time to time be filed by the Agent as a financing
statement in any recording office in any jurisdiction.
11. AGENT'S EXONERATION. Under no circumstances shall the Agent be deemed
to assume any responsibility for or obligation or duty with respect to any part
or all of the Stock Collateral of any nature or kind or any matter or
proceedings arising out of or relating thereto, other than (i) to exercise
reasonable care in the physical custody of the Stock Collateral and (ii) after
an Event of Default shall have occurred and be continuing, to act in a
commercially reasonable manner. The Agent shall not be required to take any
action of any kind to collect, preserve or protect its or the Borrower's rights
in the Stock Collateral or against other parties thereto. The Agent's prior
recourse to any part or all of the Stock Collateral shall not constitute a
condition of any demand, suit or proceeding for payment or collection of any of
the Obligations.
12. NO WAIVER, ETC. No act, failure or delay by the Agent shall constitute
a waiver of its rights and remedies hereunder or otherwise. No single or partial
waiver by the Agent of any default or right or remedy that it may have shall
operate as a waiver of any other default, right or remedy or of the same
default, right or remedy on a future occasion. The Borrower hereby waives
presentment, notice of dishonor and protect of all instruments, included in or
evidencing any of the Obligations or the Stock Collateral, and any and all other
notices and demands whatsoever (except as expressly provided herein or in the
Credit Agreement).
13. NOTICE, ETC. All notices, requests and other communications hereunder
shall be made in the manner set forth in, and at the address specified by
reference in Section 20 of the Credit Agreement.
14. TERMINATION. Upon final payment and performance in full of the
Obligations, this Agreement shall terminate and the Agent shall, at the
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Borrower's request and expense, return such Stock Collateral in the possession
or control of the Agent as has not theretofore been disposed of pursuant to the
provisions hereof, together with any moneys and other property at the time held
by the Agent hereunder.
15. NO WAIVER, OVERDUE AMOUNTS. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a written instrument
expressly referring to this Agreement and to the provisions so modified or
limited, and executed by the party to be charged. Until paid, all amounts due
and payable by the Borrower hereunder shall be a debt secured by the Stock
Collateral and shall bear, whether before or after judgment, interest at the
rate of interest for overdue principal set forth in the Credit Agreement.
16. SUCCESSORS AND ASSIGNS. This Agreement and all obligations of the
Borrower shall be binding upon the successors and assigns of the Borrower, and
shall, together with the rights and remedies of the Agent hereunder, inure to
the benefit of the Agent, its successors in title and assigns.
17. GOVERNING LAW. THIS AGREEMENT IS INTENDED TO TAKE EFFECT AS AN
INSTRUMENT UNDER SEAL AND THIS AGREEMENT AND THE OBLIGATIONS OF THE BORROWER
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS. The Borrower agrees that any suit for the
enforcement of this Agreement may be brought in the courts of the Commonwealth
of Massachusetts or any federal court sitting therein and consents to the
non-exclusive jurisdiction of such court and to service of process in any such
suit being made upon the Borrower by mail at the address specified in Section 20
of the Credit Agreement. The Borrower hereby waives any objection that it may
now or hereafter have to the venue of any such suit or any such court or that
such suit is brought in an inconvenient court.
18. WAIVER OF JURY TRIAL. THE BORROWER WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Borrower waives
any right which it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages. The Borrower (i)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or such Bank has represented, expressly or otherwise, that
the Agent or such Bank would not, in the event of litigation, seek to enforce
the foregoing waivers and (ii) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent and the Banks are
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parties, the Agent is relying upon, among other things, the waivers and
certifications contained in this Section 19.
19. HEADINGS. The descriptive section headings have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
20. SEVERABILITY, ETC. If any term of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity of all other terms hereof shall
be in no way affected thereby, and this Agreement shall be construed and be
enforceable as if such invalid, illegal or unenforceable term had not been
included herein. The Borrower acknowledges receipt of a copy of this Agreement.
[REMAINING PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, intending to be legally bound, the Borrower and the
Agent have caused this Stock Pledge Agreement to be executed as of the date
first above written.
XXXXXXXXX XXXXX, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Title: CFO
BANKBOSTON, N.A., AS AGENT
By: /s/ XXXXX X. XXXXXX
--------------------------------
Title: Director
The undersigned Subsidiaries hereby join in the above Agreement for the
sole purpose of consenting to and being bound by the provisions of Section
Sections 4.1, 6 and 7 thereof, the undersigned hereby agreeing to cooperate
fully and in good faith with the Bank and the Borrower in carrying out such
provisions.
XXXXXXXXX XXXXX
MERCHANDISING, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Title: CFO
XXXXXXXXX XXXXX
ADMINISTRATION, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------
Title: CFO
ANNEX A TO PLEDGE AGREEMENT
None of the issuers has any authorized, issued or outstanding shares of its
capital stock of any class or any commitments to issue any shares of its capital
stock of any class or any securities convertible into or exchangeable for any
shares of its capital stock of any class except as otherwise stated in this
ANNEX A.
Number of Number of Number of Par or
Record Class of Authorized Issued Outstanding Liquidation
Issuer Owner Shares Shares Shares Shares Value
------ ------ -------- ---------- ---------- ----------- --------
Xxxxxxxxx Xxxxx Xxxxxxxxx common 1,000 1,000 1,000 $1.00
Merchandising Inc. Russe Inc.
Xxxxxxxxx Xxxxx Charlotte common 1,000 1,000 1,000 $1.00
Administration, Russe, Inc.
Inc.
