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BANK ACCOUNT PLEDGE AGREEMENT

Security Agreement

BANK ACCOUNT PLEDGE AGREEMENT | Document Parties: QUIKSILVER INC | JP MORGAN EUROPE LIMITED | JPMORGAN CHASE BANK, NA You are currently viewing:
This Security Agreement involves

QUIKSILVER INC | JP MORGAN EUROPE LIMITED | JPMORGAN CHASE BANK, NA

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Title: BANK ACCOUNT PLEDGE AGREEMENT
Date: 9/24/2008
Industry: Apparel/Accessories     Sector: Consumer Cyclical

BANK ACCOUNT PLEDGE AGREEMENT, Parties: quiksilver inc , jp morgan europe limited , jpmorgan chase bank  na
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EXHIBIT 10.1

EXECUTION COPY

 


Bank Account Pledge Agreement
( Convention de Nantissement de Comptes Bancaires )

 

By and Between

Na Pali SAS

A cting in its capacity as Pledgor

JPMORGAN CHASE BANK, N.A.
J.P. MORGAN EUROPE LIMITED

as Beneficiaries

And

SOCIÉTÉ GÉNÉRALE

AS ACCOUNT BANK

 


Dated as of 19 September, 2008

 

1


 

BETWEEN:

 

NA PALI , a French société par actions simplifiée , a company organized under the laws of France, with a share capital of EUR 3 444 300 having its registered office 162 rue Belharra 64500 St Jean de Luz, France, registered with the Trade and Companies Registry of Bayonne, under number 331 377 036 R.C.S., represented by an authorised signatory, duly authorized for the purposes hereof,

 

 

 

 

 

hereinafter referred to as the “ Pledgor ” (which term includes its successors and assigns),

ON THE FIRST PART,

AND:

 

J.P. MORGAN EUROPE LIMITED, a company acting through its office at 125 London Wall, London EC2Y 5AJ , United Kingdom and,

 

 

 

 

JPMORGAN CHASE BANK, N.A. London Branch a company having its registered office at 125 London Wall, London EC2Y 5AJ, United Kingdom

 

 

 

 

 

hereinafter individually referred to as the “ Beneficiary ” and collectively referred to as the “ Beneficiaries ” (which term includes their successors and assigns),

ON THE SECOND PART,

AND

 

SOCIÉTÉ GÉNÉRALE , a company having its registered office at 2 avenue du 11 novembre 1918, BP 315, 64 103 Bayonne Cedex, France,

 

 

 

 

 

hereinafter referred to as the “ Account Bank ” (which term includes its successors and assigns),

ON THE THIRD PART,

hereinafter individually referred to as a “ Party ” or collectively as the “ Parties ”.

2


 

Whereas:

(A)

 

Pursuant to the terms of an issuance and reimbursement agreement dated September 14, 2007 between the Pledgor and J.P. Morgan Europe Limited (the “ Issuance and Reimbursement Agreement ”) and of an application and agreement for irrevocable Standby Letter of Credit signed between the Pledgor and JPMorgan Chase Bank, N.A. dated September 2007 (the “ Application and Agreement ”), as such documents may be amended, varied, novated or supplemented, J.P. Morgan Europe Limited has agreed to issue a Bank Guarantee (the “ Bank Guarantee ”) in the amount of EUR 35.6 million in order to secure the payment of the purchase price of 146.169 Pilot SAS shares sold by the Boix-Vives Family.

(B)

 

Pursuant to the terms of the Issuance and Reimbursement Agreement and of the Application and Agreement referred in (A) above, the Pledgor has agreed to reimburse to the Beneficiaries any sum which may become payable by any of them under the terms of the Bank Guarantee.

 

(C)

 

On August 22, 2008, the Pledgor has entered into a receivables financing agreement with GE Factofrance, pursuant to which the Pledgor may obtain financing of up to EUR 100 Million in exchange for the collateralization of all or substantially all of its trade receivables (the “ Receivables Financing ”).

(D)

 

As a consequence of the entry into the receivables Financing, the Pledgor has agreed to further secure its obligations under paragraph (B) above and to pledge in favour of the Beneficiaries, a bank account described below in which an amount of EUR 35.6 million will be deposited by the Pledgor.

It has been agreed as follows:

Article 1. — Definitions and Interpretation

1.1

 

Terms defined in the Issuance and Reimbursement Agreement

 

 

 

 

 

All the terms defined in the Issuance and Reimbursement Agreement and used in this Agreement but not otherwise defined herein shall have the same meaning in this Agreement as in the Issuance and Reimbursement Agreement.

 

 

 

1.2

 

General definitions

 

 

 

 

 

The following terms and expressions used in this Agreement and in the Preamble of this Agreement shall, unless the context requires otherwise, have the following meanings:

 

 

 

 

 

 

 

Account Bank ”:

 

means the bank described in Exhibit 1 hereto, in the books of which the Pledged Account is opened;

3


 

 

 

 

 

 

 

 

Agreement ”:

 

means the present account pledge agreement together with the Exhibits hereto, as the same may be amended, restated or supplemented or otherwise modified from time to time;

 

 

 

 

 

 

 

Beneficiaries ”:

 

means JPMorgan Chase Bank, N.A. and/or J.P. Morgan Europe Limited and its respective successors and assigns;

 

 

 

 

 

 

 

Business Day ”:

 

means a day (other than a Saturday or Sunday) on which banks are open for general business in Paris, and London;

 

 

 

 

 

 

 

Default ”:

 

means the occurrence of any “Event of Default” under and as defined in the Issuance and Reimbursement Agreement;

 

 

 

 

 

 

 

Pledge ”:

 

means the pledge ( nantissement ) over the Pledged Account created hereby in favour of the Beneficiaries pursuant to the terms of this Agreement;

 

 

 

 

 

 

 

Pledged Account ”:

 

means the Société Générale Term Account ( Compte à Terme ) described in Exhibit 1 and maturing on December 10, 2008;

 

 

 

 

 

 

 

Secured Obligations ”:

 

means all liabilities and obligations of the Pledgor to pay to the Beneficiaries any sum payable to them under the terms of the Issuance and Reimbursement Agreement or the Application and Agreement in connection with the issuance of the Bank Guarantee.

 

1.3

 

Interpretation

 

 

 

 

 

The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Article and Exhibit references are to this Agreement unless otherwise specified.

 

 

 

 

 

The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

 

 

 

 

 

The Article headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

4


 

 

Article 2. — Grant of Pledge over the Pledge Account

2.1

 

As security for the punctual payment of the Secured Obligations when due (whether at the stated maturity, by acceleration or otherwise) and in accordance with Article 2355 et seq. of the French Civil Code, the Pledgor hereby pledges in favor of the Beneficiaries, by way of a pledge of account ( nantissement de compte ), the Pledged Account and an amount of EUR 35.6 million (thirty five million, six hundred thousand Euros) deposited in such Pledged Account.

 

 

 

2.2

 

The Pledgor hereby acknowledges that this Agreement shall constitute a security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations to the Beneficiaries.

 

 

 

2.3

 

The Beneficiaries, hereby accept the benefit of such pledge of account.

 

 

 

2.4

 

Société Générale intervenes to this Agreement in order to confirm that it is informed of the terms of this Agreement and of the creation of the Pledge over the Pledged Account in accordance with Article 2362 of the French Civil Code.

Article 3. — Operation of the Pledged Account Blocking

3.1

 

The Pledged Account will remain blocked and, subject to paragraph 3.2 to 3.4 below, the Pledgor shall not be permitted to withdraw any sum from the Pledged Account until all its obligations under the Secured Obligations are fully performed and the Beneficiaries have no further liability under the Bank Guarantee.

 

 

 

3.2

 

The Pledgor will instruct the Account Bank not to accept any withdrawal or debiting from the Pledged Account without the prior written consent of J.P. Morgan Europe Limited; however the Pledgor will be authorized to withdraw any amounts from the Pledged Account provided that (i) following such withdrawal, the credit balance of the Pledged Account is at least equal to EUR 35.6 million and, (ii) no Default has occurred and is continuing at the time of such withdrawal.

 

 

 

3.3

 

Until the release and discharge by the Beneficiaries of the pledge created by this Pledge Agreement, Société Générale will not allow the Pledged Account to be debited by the Pledgor if after such withdrawal, the credit balance of the Pledged Account is less than EUR 35.6 million or if it has been notified by any of the Beneficiaries of a Default (and has not later been notified by such Beneficiary that such Default is not continuing.

 

 

 

3.4

 

On the maturity date of the Pledged Account ( i.e. December 10, 2008), the proceeds of the Pledged Account will be either (i) applied by Société Générale to the payment of such subscription price of money market funds ( SICAV monétaires ) which will be pledged to the Beneficiaries as described in Article 5.2 (v) or (ii) if the Pledgor has not complied with the actions described in Article&nb


 
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