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EXHIBIT 10.3
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT is dated as of October __, 1996 and is by and
among XXXXXXXX'X INC. ("Xxxxxxxx'x"), each of the Lenders from time to time
party to the Loan Agreement (as defined below) and LASALLE NATIONAL BANK, as
Agent for such Lenders ("Agent").
W I T N E S S E T H:
WHEREAS, Crescent Jewelers, a California corporation ("Borrower"), is
indebted to Xxxxxxxx'x, as evidenced by a Loan and Security Agreement (the
"Xxxxxxxx'x Agreement") and Note, each dated of even date herewith (together
with the Other Agreements as defined in the Xxxxxxxx'x Agreement, the "Junior
Debt Instruments"), and will or may from time to time hereafter be otherwise
indebted to Xxxxxxxx'x in various sums;
WHEREAS, Xxxxxxxx'x is desirous of having Agent and the other Lenders party
to that certain Loan and Security Agreement dated of even date herewith (the
"Loan Agreement") among Borrower, Agent and the other Lenders extend and/or
continue the extension of credit to Borrower from time to time in accordance
with the terms of the Loan Agreement, and Lenders have required as a condition
to the extension and/or continued extension of such credit that the "Junior
Debt" (as defined below) be subordinated to the "Senior Debt" (as defined below)
in the manner hereinafter set forth; and
WHEREAS, the parties hereto acknowledge that the extension and/or continued
extension of credit, as aforesaid, by Lenders and Xxxxxxxx'x is necessary or
desirable to the conduct and operation of the business of Borrower;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
X. Xxxxxxxx'x hereby agrees:
A. to subordinate the indebtedness evidenced by the Junior Debt
Instruments now or at any time or times hereafter owing by Borrower, or any
successor or assign of Borrower, including without limitation, a receiver,
trustee or debtor-in-possession (the term "Borrower" as used hereinafter shall
include any such successor or assign) to Xxxxxxxx'x, whether such indebtedness
is absolute or contingent, direct or indirect and howsoever evidenced, including
without limitation all interest thereon (collectively, the "Junior Debt") to any
and all indebtedness evidenced by the Loan Agreement and the Other Agreements
(as defined in the Loan Agreement) now or at any time or times hereafter owing
by Borrower to Lenders (whether absolute or contingent, direct or indirect and
howsoever evidenced, including without limitation all interest thereon) and all
other demands, claims, liabilities or causes of action for which Borrower may
now or at any time or times hereafter in any way be liable to Lenders, whether
under any agreement, instrument or document executed and
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delivered or made by Borrower to Agent, any Lender or otherwise (collectively,
the "Senior Debt");
b. except as otherwise permitted in Section 6 below, not to ask for or
receive from Borrower or any other person or entity any security for the Junior
Debt not specifically granted by the Junior Debt Instruments; agrees that all
security interests, liens, encumbrances and claims, whether now existing or
hereafter arising, which in any way secure the payment of the Junior Debt
("Xxxxxxxx'x Collateral") are subordinate to and junior in right to all security
interests, liens, encumbrances and claims, whether now existing or hereafter
arising, which in any way secure the payment of the Senior Debt (the "Lenders'
Collateral"); agrees that it will not take any action to enforce any of its
liens on Xxxxxxxx'x Collateral; and agrees that it shall have no right to
possession of any assets of Borrower or any other assets included in Xxxxxxxx'x
Collateral or the Lenders' Collateral, whether by judicial action or otherwise,
unless and until all the Senior Debt has been indefeasibly paid in full in cash,
the Loan Agreement has terminated and all obligations arising in connection
therewith have been discharged and agrees that it will not file any fixture
filings under the Uniform Commercial Code against any assets of Borrower unless
Agent has also made each such filing;
c. except for payments permitted under Section 2 below, to instruct
Borrower not to pay, and agrees not to accept payment of, or (except, subject to
paragraph 1(D), to the extent necessary to preserve its claims against Borrower
in any liquidation, bankruptcy or other similar proceeding) assert, demand, xxx
for or seek to enforce against Borrower or any other person or entity, by setoff
or otherwise, all or any portion of the Junior Debt unless and until the Senior
Debt has been indefeasibly paid in full in cash, the Loan Agreement has
terminated and all obligations arising in connection therewith have been
discharged and, in particular but not by way of limitation, agrees that, until
all of the Senior Debt has been indefeasibly paid in full in cash, the Loan
Agreement has terminated and all obligations arising in connection therewith
have been discharged, it will not exercise any of its rights under the second
sentence of paragraph 5 (marking and delivery of Chattel Paper), paragraph 7(a)
and paragraph 6 of Exhibit A (collection of accounts), paragraph 7(d) (delivery
of Collateral in the form of Instruments or Documents), or the second to last
sentence of paragraph 8(a) (account verification) of the Xxxxxxxx'x Loan
Agreement or under paragraph 5(a) of each of the Security Agreements between
Xxxxxxxx'x and Crescent Jewelers, Inc. and Diamond Insurance Company and that it
will defer to Agent the right to determine whether any matters that are required
to be satisfactory or acceptable to Xxxxxxxx'x under the Xxxxxxxx'x Loan
Agreement and to Agent under the Loan Agreement are satisfactory or acceptable;
d. to subrogate Agent, for its benefit and the benefit of the other
Lenders, to the Junior Debt and Xxxxxxxx'x Collateral; irrevocably authorizes
Agent, for its benefit and the benefit of the other Lenders, (i) to collect,
receive, enforce and accept any and all sums or distributions of any kind that
may become due, payable or distributable on or in respect of the Junior Debt or
Xxxxxxxx'x Collateral, whether paid
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directly by Borrower or paid or distributed in any liquidation, bankruptcy,
arrangement, receivership, assignment, reorganization or dissolution proceedings
or otherwise; (ii) in Agent's sole discretion, to make and present claims
therefor (including filing of proofs of claim if Xxxxxxxx'x shall have failed to
do so within 5 days following Agent's request that they do so) in any such
proceedings; (iii) to vote all of Xxxxxxxx'x claims in any such proceedings,
provided, however, that Agent may not vote any such claim in a manner that would
impair or effect, directly or indirectly, any of Xxxxxxxx'x rights under the
subordination provisions of the Note Purchase Agreement dated April 13, 1990,
relating to Borrower's 9% Convertible Subordinated Notes Due April 15, 2000, the
Indenture dated as of January 15, 1989, relating to the Borrower's 13-1/2%
Senior Subordinated Notes due 1999 and the Indenture dated as of January 15,
1989, relating to the Borrower's 14-1/2% Senior Subordinated Notes due 1999,
each as amended through the date hereof (collectively, the "Subordinated Debt
Documents") to receive any payments or distributions to which the holders of the
securities issued under the Subordinated Debt Documents would be entitled but
for the subordination provisions of the Subordinated Debt Documents; and (iv) to
take such other actions not inconsistent with this subsection 1(D) as Agent
deems necessary or advisable in connection with any such proceedings, in each
case, either in Agent's name in the name of any Lender or Lenders or in the name
of Xxxxxxxx'x;
e. to receive and hold in trust for and promptly turn over to Agent,
in the form received (except for the endorsement or assignment by Xxxxxxxx'x
where necessary), any sums at any time paid to, or received by, Xxxxxxxx'x in
respect of the Junior Debt that Xxxxxxxx'x is not permitted to be paid or
receive by the terms of this Agreement at any time while this Agreement is in
force and effect and to reimburse Agent for all costs, including reasonable
attorney's fees, incurred by Agent in the course of collecting said sums should
Xxxxxxxx'x fail to voluntarily turn the same over to Agent as herein required.
If Xxxxxxxx'x fails to promptly endorse or assign to Agent any items of payment
received by Xxxxxxxx'x on account of the Junior Debt, Xxxxxxxx'x hereby
automatically and irrevocably makes, constitutes and appoints Agent (and all
persons designated by Agent for that purpose) as Xxxxxxxx'x true and lawful
attorney and agent-in-fact, solely to make such endorsement or assignment in
Xxxxxxxx'x name; and
f. not to modify or amend any agreement, instrument or document
evidencing or securing the Junior Debt, including without limitation the Junior
Debt Instruments, without the prior written consent of Agent, where such
amendment, supplement, alteration, modification, waiver or consent provides for
the following or which has any of the following effects: (i) increases or
decreases the overall principal amount of the Junior Debt or increases the
amount of any single scheduled installment of principal or interest; (ii)
shortens or accelerates the date upon which any installment of principal or
interest of any Junior Debt becomes due; (iii) shortens the final maturity date
of the Junior Debt or otherwise accelerates the amortization schedule with
respect to such indebtedness; (iv) increases the rate of interest accruing on
the Junior Debt; (v) provides for the payment of additional fees or an increase
in the existing fees or (vi) modifies any covenant in a manner, or imposes a new
covenant, which is more
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onerous or more restrictive to an Obligor or which places additional
restrictions on an Obligor or which requires an Obligor to comply with more
restrictive financial ratios or which requires an Obligor to better its
financial performance from that set forth in the existing financial covenants.
Notwithstanding the foregoing, if Agent and Borrower amend the Loan Agreement,
Xxxxxxxx'x and Borrower shall be permitted to make identical changes to the
corresponding provisions of the Xxxxxxxx'x Loan Agreement, if any, together with
any necessary conforming changes.
II. (A) Borrower may pay, and Xxxxxxxx'x may receive, regularly
scheduled payments of interest on an unaccelerated basis owing under the Junior
Debt Instruments (as in effect on the date hereof or modified as permitted under
subsection 1(F) above) so long as no payment default has occurred and is
continuing in respect of the Senior Debt or would be caused by the making of any
such payment and so long as Xxxxxxxx'x has not failed to purchase Notes (as
defined in the Standby Purchase Agreement attached hereto as Exhibit A) at a
time when it was obligated to purchase them under such Standby Purchase
Agreement. Borrower may resume interest payments on the Junior Debt Instruments
when such payment default is cured or waived or has ceased to exist if this
Section 2 otherwise permits the payment at that time.
b. In addition, during the continuance of any event of default (other
than in the payment of principal or interest) with respect to any Senior Debt
pursuant to which the maturity thereof may be accelerated, upon receipt by
Xxxxxxxx'x of a written notice from Agent (a "Blockage Notice"), no such
regularly scheduled payments of interest may be made by Borrower upon or in
respect of the Junior Debt Instruments for a payment blockage period ("Payment
Blockage Period") commencing on the date of receipt of such notice and ending
179 days thereafter (unless such event of default shall have been cured or
waived or such Payment Blockage Period shall have been terminated by written
notice to Xxxxxxxx'x from Agent). Notwithstanding anything to the contrary
herein, in no event shall a Payment Blockage Period extend beyond 179 days from
the date any such regularly scheduled interest payment was due. Notwithstanding
anything to the contrary herein, not more than a total of 179 days of Payment
Blockage Period may occur with respect to the Junior Debt Instruments during any
period of 360 consecutive days, it being understood that the provisions of this
Section 2(B) shall prevent not more than 6 regularly scheduled interest payments
to be made under the Xxxxxxxx'x Agreement as in effect on the date hereof, out
of any 7 consecutive such interest payments. For all purposes of this Section
2(B), no event of default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Senior Debt
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period by Agent whether or not within a period of 360 consecutive days
unless such event of default shall have been cured or waived for a period of not
less than 90 consecutive days. The foregoing sentence shall not, however,
prevent an additional Payment Blockage Period based upon a new event of default
under the same provision of the Loan Agreement. Notwithstanding the foregoing,
no further notice may be given with respect to an event of default of the type
referred to in this Section 2(B) on any Senior Debt or in respect
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of any acceleration unless and until all regularly scheduled payments of
interest not paid on the Junior Debt Instruments during any such Payment
Blockage Period as a result of any notice pursuant to this Section 2(B) shall
have been paid in full in cash or cash equivalents. Nothing in this Section 2
shall relieve the holders of such Senior Debt from any notice requirements set
forth in the instrument evidencing such Senior Debt.
c. Agent and Lenders agree that a Blockage Notice may only be given
to Xxxxxxxx'x if contemporaneously with the giving of such Blockage Notice,
Agent or the requisite number of Lenders are giving blockage notices under the
subordination provisions of each of (i) the Note Purchase Agreement, dated as of
April 13, 1990, as amended, relating to Borrower's 9% Convertible Subordinated
Notes due April 15, 2000; (ii) the Indenture, dated as of January 15, 1989, as
amended, relating to Borrower's 13-1/2% Subordinated Notes due 1999; and (iii)
the Indenture, dated as of January 15, 1989, as amended, relating to Borrower's
14-1/2% Subordinated Notes due 1999 (collectively, the "Note Agreements").
x. Xxxxxxxx'x agrees that it shall not exercise any of its blockage
rights under any of the Note Agreements without the prior written consent of
Agent, except that, if a payment default exists under the Xxxxxxxx'x Loan
Agreement, Xxxxxxxx'x may enforce compliance by Borrower and by the holders of
the debt instruments issued under the Note Agreements of the payment blockage
provisions of the Note Agreements relating to payment blockages in the case of a
payment default.
III. Xxxxxxxx'x represents and warrants to Agent and the other Lenders,
that Xxxxxxxx'x has not assigned or otherwise transferred the Junior Debt or
Xxxxxxxx'x Collateral, or any interest therein to any person or entity, that
Xxxxxxxx'x will make no such assignment or other transfer thereof without the
prior written consent of Agent, and that all agreements, instruments and
documents evidencing the Junior Debt and Xxxxxxxx'x Collateral will be endorsed
with proper notice of this Agreement. Xxxxxxxx'x represents and warrants to
Agent and Lenders that (i) the outstanding principal amount of Junior Debt
evidenced by the Junior Debt Instruments as of the date of this Agreement is
$20,000,000 and shall be no less than $20,000,000 at all times until the Senior
Debt has been paid in full, the Loan Agreement has terminated and obligations
arising in connection therewith have been discharged and (ii) that Xxxxxxxx'x
has executed the Standby Purchase Agreement attached hereto as Exhibit A.
IV. Xxxxxxxx'x expressly waives all notice of the acceptance by Agent
or any Lender of the subordination and other provisions of this Agreement and
all notices not specifically required pursuant to the terms of this Agreement,
and Xxxxxxxx'x expressly waives reliance by Agent and the other Lenders upon the
subordination and other provisions of this Agreement as herein provided.
Xxxxxxxx'x consents and agrees that all Senior Debt shall be deemed to have been
made, incurred and/or continued in reliance upon this Agreement. Xxxxxxxx'x
agrees that neither Agent nor any Lender has made any warranties or
representations with respect to the due execution, legality, validity,
completeness or enforceability of the documents, instruments and agreements
evidencing the Senior Debt, that Agent and each Lender shall be entitled to
manage and supervise its financial arrangements
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with Borrower in accordance with its usual practices, without impairing or
affecting this Agreement, and that neither Agent nor any Lender shall have any
liability to Xxxxxxxx'x, and Xxxxxxxx'x hereby waives any claim which it may now
or hereafter have against Agent or any Lender arising out of (i) any and all
actions which Agent or any Lender takes or omits to take (including without
limitation actions with respect to the creation, perfection or continuation of
liens or security interests in any existing or future Lenders' Collateral,
actions with respect to the occurrence of an event of default under any
documents, instruments or agreements evidencing the Senior Debt, actions with
respect to the foreclosure upon, sale, release, or depreciation of, or failure
to realize upon, any of Lenders' Collateral and actions with respect to the
collection of any claim for all or any part of the Senior Debt from any account
debtor, guarantor or other person or entity) with respect to the documents,
instruments and agreements evidencing the Senior Debt or to the collection of
the Senior Debt or the valuation, use, protection or release of Lenders'
Collateral (ii) Agent's or any Lender's election in any proceeding instituted
under Chapter 11 of Title 11 of United States Code (11 U.S.C. Section 101 et.
seq.) (the "Bankruptcy Code"), of the application of Section 1111(b)(2) of the
Bankruptcy Code, and/or (iii) any borrowing or grant of a security interest
under Section 364 of the Bankruptcy Code by Borrower, as debtor in possession.
Without limiting the generality of the foregoing, Xxxxxxxx'x waives the right to
assert the doctrine of marshalling with respect to any of the Lenders'
Collateral, and consents and agrees that Agent or any Lender may proceed against
any or all of the Lenders' Collateral in such order as Agent or any Lender shall
determine in its sole discretion.
X. Xxxxxxxx'x agrees that Agent or any Lender, at any time and from
time to time hereafter, may enter into such agreements with Borrower as Agent or
any Lender may deem proper extending the time of payment of or renewing or
otherwise altering the terms of all or any of the Senior Debt or affecting any
of Lenders' Collateral, and may sell or surrender or otherwise deal with any of
Lenders' Collateral, and may release any balance of funds of Borrower with Agent
or any Lender, without notice to Xxxxxxxx'x and without in any way impairing or
affecting this Agreement.
VI. Xxxxxxxx'x may ask for or receive from Borrower or any other
person or entity additional security for the Junior Debt so long as such
security is also being granted to Agent for the benefit of Lenders as security
for any of the Senior Debt and such security is taken by Xxxxxxxx'x subject to
the terms and conditions of this Agreement. Agent and Lenders agree not to ask
for or receive from Borrower or any other person or entity additional security
for the Senior Debt unless such security is also being granted to Xxxxxxxx'x as
security for the Junior Debt subject to the terms and conditions of this
Agreement.
VII. This Agreement shall be irrevocable and shall constitute a
continuing agreement of subordination and shall be binding on Xxxxxxxx'x and its
heirs, personal representatives, successors and assigns, and shall inure to the
benefit of Agent, each Lender and their respective successors and assigns until
the Senior Debt has been paid in full, the Loan Agreement has terminated and all
obligations arising in connection therewith have been discharged. Xxxxxxxx'x
agrees that it will not assign all or any part of its interests in the Junior
Debt Instruments. Agent and each Lender may continue, without notice to
Xxxxxxxx'x, to lend monies, extend credit and make other accommodations to or
for the account of Borrower
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on the faith hereof. Xxxxxxxx'x hereby agrees that all payments received by
Agent or any Lender may be applied, reversed, and reapplied, in whole or in
part, to any of the Senior Debt, without impairing or affecting this Agreement.
VIII. Xxxxxxxx'x hereby assumes responsibility for keeping itself
informed of the financial condition of Borrower, any and all endorsers and any
and all guarantors of the Senior Debt and the Junior Debt and of all other
circumstances bearing upon the risk of nonpayment of the Senior Debt and the
Junior Debt that diligent inquiry would reveal, and Xxxxxxxx'x hereby agrees
that neither Agent nor any Lender shall have any duty to advise Xxxxxxxx'x of
information known to Agent or any Lender regarding such condition or any such
circumstances or to undertake any investigation not a part of its regular
business routine. If Agent or any Lender, in its sole discretion, undertakes,
at any time or from time to time, to provide any information of the type
described herein to Xxxxxxxx'x, neither Agent nor any Lender shall be under any
obligation to subsequently update any such information or to provide any such
information to Xxxxxxxx'x on any subsequent occasion.
IX. Xxxxxxxx'x hereby appoints Agent as Xxxxxxxx'x bailee with respect
to any Xxxxxxxx'x Collateral in Agent's possession or control, including without
limitation, any Xxxxxxxx'x Collateral in the form of stock certificates,
instruments or chattel paper or amounts on deposit in any lock box account or
other deposit account. Agent hereby irrevocably accepts such appointment which
shall terminate upon the termination of this Agreement in accordance with its
terms. Except for a duty of reasonable care as described in the next sentence,
Agent shall have no duty as to any Xxxxxxxx'x Collateral. Agent shall be deemed
to have exercised reasonable care in the custody of the Xxxxxxxx'x Collateral in
its possession if Agent accords such Xxxxxxxx'x Collateral treatment
substantially equal to that which Agent accords its own property, it being
understood that Agent shall be under no obligation either to (i) obtain
possession of any chattel paper, stock certificates, instruments, cash or other
Xxxxxxxx'x Collateral or (ii) take any necessary steps to preserve rights
against prior parties or any other rights pertaining to any Xxxxxxxx'x
Collateral. Xxxxxxxx'x hereby agrees that it will indemnify and hold harmless
the Agent from any reasonable costs and expenses incurred in connection with
Agent's actions as bailee hereunder, except to the extent that any liability is
determined by a court of competent jurisdiction to have resulted from Agent's
gross negligence or willful misconduct.
X. Agent and Lenders agree that Xxxxxxxx'x rights under the
Conversion Agreement dated as of the date hereof by and between Borrower,
Crescent Jeweler's, Inc. and Xxxxxxxx'x are not subject to this Agreement.
XI. Agent and Xxxxxxxx'x each agrees to give to the other prompt
written notice of the occurrence of an event of default under or in respect of
the Senior Debt or Junior Debt, as applicable, provided that either party's
failure to give any such notice shall not in any way limit the effectiveness of
this Agreement.
XII. Upon the payment in full of all amounts payable under or in
respect of the Senior Debt, Xxxxxxxx'x shall be subrogated to the rights of
Agent and Lenders to receive payments or other distributions of assets made on
account of the Senior Debt to the extent that
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payments or distributions otherwise payable to Xxxxxxxx'x have been applied to
the payment of the Senior Debt, until the Junior Debt shall be paid in full.
XIII. The provisions of this Agreement are solely for the purpose of
defining the relative rights of Xxxxxxxx'x, Agent and Lenders and shall not
impair, as between Xxxxxxxx'x and Borrower, the obligation of Borrower, which is
unconditional and absolute, to pay the Junior Debt in accordance with the terms
of the Junior Debt Instruments except as the payment thereof may be postponed or
otherwise directed in accordance with the express terms of this Agreement.
XIV. This Agreement shall terminate and be of no further force or
effect when all Senior Debt has been paid in full, the Loan Agreement terminated
and all obligations arising in connection therewith have been discharged.
XV. The provisions of this Agreement are not intended, nor shall they
be construed, to confer upon or give Borrower or any other person or entity
other than Agent, Lenders and Xxxxxxxx'x any rights, remedies or claims
hereunder or by reason hereof.
XVI. This Agreement may be executed in any number of counterparts, each
of which shall constitute an original but which together shall constitute one
instrument.
XVII. All notices or other communications to be given or delivered under
or by reason of this Agreement shall be in writing and delivered personally,
mailed by certified or registered mail, return receipt requested and postage
prepaid, sent via nationally recognized overnight courier, or sent via
facsimile, addressed as follows:
If to Agent or any Lender: LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Xxxxxxxx'x: Xxxxxxxx'x Inc.
0 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Call
Facsimile No.: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party. Any such communication shall be deemed to have been given only upon
receipt.
I. No waiver shall be deemed to be made by Agent or any Lender of any
of its rights hereunder unless the same shall be in writing signed on behalf of
Agent and each such Lender and each such waiver, if any, shall be a waiver only
with respect to the specific matter or matters to which the waiver relates and
shall in no way impair the rights of Agent or
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any Lender or the obligations of Xxxxxxxx'x to Agent or any Lender in any other
respect at any other time.
II. THIS AGREEMENT SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL
LAWS OF THE STATE OF ILLINOIS.
III. To induce Lenders to accept this Agreement, Xxxxxxxx'x irrevocably
agrees that, subject to Agent's sole and absolute election, ALL ACTIONS OR
PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO
THIS AGREEMENT SHALL BE LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF
CHICAGO, STATE OF ILLINOIS. XXXXXXXX'X HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURTS LOCATED WITHIN SAID CITY AND
STATE. Xxxxxxxx'x agrees that service of process in the manner specified in
paragraph 17 hereof (other than via facsimile) for the giving of notice to
Xxxxxxxx'x shall constitute personal service of such process upon Xxxxxxxx'x.
XXXXXXXX'X HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE
OF ANY LITIGATION BROUGHT AGAINST XXXXXXXX'X BY AGENT OR ANY LENDER IN
ACCORDANCE WITH THIS PARAGRAPH.
IV. XXXXXXXX'X HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION
OR PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS AGREEMENT.
X. Xxxxxxxx'x agrees and acknowledges that nothing in this Agreement
shall be deemed to create a relationship of an agency or fiduciary nature, or
except as specifically herein provided, to create any duty or duties, between
Agent and/or Lender on the one hand and Xxxxxxxx'x on the other hand.
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IN WITNESS WHEREOF, this Agreement has been executed as of this ____ day
of October, 1996.
XXXXXXXX'X INC.
By /s/ Xxxx X. Call
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Title Chief Financial Officer
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LASALLE NATIONAL BANK, as Agent
By /s/ Xxxxxxx Xxxxxxxx
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Title Vice President
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XXXXX FARGO BANK, N.A.
By /s/ Xxxxx X. Xxxxx
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Title Vice President
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NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxxxx Xxxxxx
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Title Vice President
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BORROWER'S CONSENT
Borrower hereby consents to the foregoing Agreement (and the terms
thereof) and agrees to abide thereby and to keep, observe and perform the
several matters and things therein intended to be kept, observed and performed
by it, and specifically agrees not to make any payments contrary to the terms
of said Agreement.
A breach of any of the terms and conditions of this consent shall
constitute an "Event of Default" under the Loan Agreement (as defined in the
foregoing Agreement).
CRESCENT JEWELERS
By /s/ Xxxxxx X. Xxxxxxx
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Title Vice President and
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Chief Financial Officer
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