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EXHIBIT 10.1
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Commercial Mortgage Loan - NY
LOAN AGREEMENT
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LOAN AGREEMENT dated October 6, 1995 (together with any amendments or
modifications hereto in effect from time to time, the "AGREEMENT"), between
FIRST FIDELITY BANK, NATIONAL ASSOCIATION ("BANK") and Xxxxxxx Xxxxxxx
Jewelers, Inc. ("BORROWER").
Bank has agreed to make a loan to Borrower and Borrower has agreed to
accept the loan proceeds in the principal amount of Two Million Five Hundred
Thousand and 00/100 Dollars ($2,500,000.00) (the "LOAN"), on the terms and
conditions set forth herein. The Loan shall be evidenced by a Mortgage Note of
even date herewith from Borrower to Bank (the "NOTE").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, Bank and Borrower agree as follows:
1. DEFINITIONS
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1.1. "AFFILIATE" means First Fidelity Bancorporation and any of its
direct and indirect affiliates and subsidiaries.
1.2. "COMMITMENT LETTER" means the commitment letter dated September
20, 1995 pursuant to which Bank committed to make the Loan to Borrower.
1.3. "LIABILITIES" means, collectively: (i) the repayment of all
sums due under the Note (and all extensions, renewals, replacements,
substitutions, amendments and modifications thereof) and the other Loan
Documents; (ii) the performance of all terms, conditions and covenants set
forth in the Loan Documents; and (iii) all obligations and indebtedness of
every kind and description of Borrower to Bank or to any Affiliate, whether
primary or secondary, absolute or contingent, direct or indirect, sole, joint
or several, secured or unsecured, due or to become due, contractual or
tortious, arising by operation of law or otherwise, or now or hereafter
existing, and whether incurred by Borrower as principal, surety, endorser,
guarantor, accommodation party or otherwise, including, without limitation,
principal, interest, fees, late charges and expenses, including attorneys' fees
and/or allocated fees of Bank's in-house legal counsel.
1.4. "LOAN DOCUMENTS" means, collectively, this Agreement, the Note,
that certain Mortgage and Security Agreement of even date herewith from
Borrower to Bank (the "MORTGAGE"), that certain Assignment of Leases and Rents
of even date herewith from Borrower to Bank (the "ASSIGNMENT OF LEASES") and
any other document, certificate or instrument executed by Borrower or any other
obligated party in connection with the Loan, together with all amendments,
modifications, renewals or extensions thereof.
1.5. "MORTGAGED PREMISES" means the real, personal and mixed property
described in the Mortgage as the "Mortgaged Premises" and located at
000/000-000 Xxxxx XxxXxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx.
2. THE LOAN
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2.1. TERMS OF LOAN. Bank agrees to make the Loan to Borrower on the
terms and conditions hereinafter set forth. The Loan will bear interest at the
rate and will be repaid as set forth in the Note.
2.2. USE OF LOAN PROCEEDS. Borrower shall use the proceeds of the
Loan to refinance the acquisition costs of the Mortgaged Premises.
2.3. INCORPORATION. All of the Loan Documents are hereby made a part
of this Agreement to the extent and with the same effect as if fully set forth
herein.
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3. CONDITIONS PRECEDENT Bank's obligations hereunder are conditioned
upon the satisfaction of each of the following conditions precedent:
3.1. Borrower shall have delivered or caused to be delivered to Bank
each of the Loan Documents, in form and substance satisfactory to Bank, duly
executed by Borrower or Guarantor, as applicable;
3.2. Borrower shall have delivered or caused to be delivered to Bank
each of the other documents, certificates and instruments required by the
Commitment Letter within the applicable time periods specified therein, each in
form and substance satisfactory to Bank; and
3.3. Each of the other conditions contained in the Commitment Letter
shall have been satisfied.
4. REPRESENTATIONS AND WARRANTIES Borrower represents and warrants as of
the date hereof and, unless otherwise indicated, at all times hereafter until
the Liabilities are fully paid and performed, as follows:
4.1. ORGANIZATION, POWERS. Borrower (i) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its organization, and is authorized to do business in each other jurisdiction
wherein its ownership of property or conduct of business legally requires such
authorization; (ii) has the power and authority to own its properties and
assets and to carry on its business as now being conducted and as now
contemplated; and (iii) has the power and authority to execute, deliver and
perform all of its obligations under each Loan Document to which it is a party.
4.2. EXECUTION OF LOAN DOCUMENTS. Each of the Loan Documents to which
Borrower is a party have been duly executed and delivered by Borrower.
Execution, delivery and performance of each of the Loan Documents to which
Borrower is a party will not: (i) violate any of its organizational documents,
provision of law, order of any court, agency or instrumentality of government,
or any provision of any indenture, agreement or other instrument to which it is
a party or by which it or any of its properties is bound; (ii) result in the
creation or imposition of any lien, charge or encumbrance of any nature, other
than the liens created by the Loan Documents; and (iii) require any
authorization, consent, approval, license, exemption of, or filing or
registration with, any court or governmental authority.
4.3. OBLIGATIONS OF BORROWER. Each of the Loan Documents to which
Borrower is a party are the legal, valid and binding obligations of Borrower,
enforceable against it in accordance with their terms, except as the same may
be limited by bankruptcy, insolvency, reorganization or other laws or equitable
principles relating to or affecting the enforcement of creditors' rights
generally. Borrower is obtaining the Loan for commercial purposes.
4.4. LITIGATION; COMPLIANCE WITH LAWS. There is no action, suit, or
proceeding at law or in equity or by or before any governmental authority,
agency or other instrumentality now pending or, to the knowledge of Borrower,
threatened against or affecting Borrower or any of its properties or rights
which, if adversely determined, would materially impair or affect: (i) the
value of any collateral securing the Liabilities; (ii) Borrower's right to
carry on its business substantially as now conducted (and as now contemplated);
(iii) its financial condition; or (iv) its capacity to consummate and perform
its obligations under the Loan Documents to which Borrower is a party.
Borrower is in compliance with all laws, ordinances, rules, regulations and
requirements which affect Borrower, its assets or the operation of its
business, and is not in violation of or in default with respect to any order,
writ, injunction, decree or demand of any court or governmental authority.
4.5. PAYMENT OF TAXES. Borrower has filed or caused to be filed all
federal, state and local tax returns which are required to be filed, and has
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes or assessments have
become due, except such that are contested in good faith by Borrower by
appropriate proceedings and for which adequate reserves have been established.
Borrower is not aware of any material unasserted claims for prior taxes against
it for which adequate reserves satisfactory to Bank have not been established.
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4.6. NO DEFAULTS. Borrower is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained herein or in any material agreement or instrument to which it is a
party or by which it or any of its properties is bound.
4.7. FINANCIAL STATEMENTS. All financial statements delivered by
Borrower to Bank, are true, correct and complete in all material respects,
fairly represent Borrower's financial condition as of the date hereof and
thereof, and no information has been omitted which would make the information
previously furnished misleading or incorrect in any material respect.
4.8. NO MATERIAL ADVERSE CHANGE. As of the date hereof, there has
been no material adverse change in the financial condition, operations,
affairs, prospects, or business of Borrower from the date of the most recent
financial statements provided by Borrower to Bank.
4.9. NO UNTRUE STATEMENTS. No Loan Document or other document,
certificate or statement furnished to Bank by or on behalf of Borrower contains
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and therein not
misleading. It is specifically understood by Borrower that all such
statements, representations and warranties shall be deemed to have been relied
upon by Bank as an inducement to make the Loan to Borrower.
4.10. TITLE TO PROPERTY. Borrower has good and marketable title to
all of its properties and assets listed in the most recent financial statements
delivered to Bank on or prior to the date hereof, except as otherwise expressly
described in said financial statements, and except those properties and assets
disposed of since the date of said financial statements in the ordinary course
of business.
5. COVENANTS
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5.1. MERGERS, RESTRUCTURE. Borrower shall not merge into, consolidate
with or into, or sell, assign, lease or otherwise dispose of (whether in one
transaction or a series of transactions) all or substantially all of its assets
(now owned or hereafter acquired) to any person or entity, without the prior
written consent of Bank.
Notwithstanding the provisions on this Section 5.1, Borrower shall be
permitted to (A) create wholly-owned subsidiaries in connection with
acquisitions and (B) effect mergers that do not involve a change of control,
including mergers of a wholly-owned subsidiary with or into Borrower or to
effect a change in Borrower's state of incorporation.
5.2. MAINTENANCE OF BUSINESS. Borrower shall: (i) continue to remain
in and operate substantially the same line of business presently engaged in by
it; (ii) not suspend transaction of its usual business; (iii) conduct its
business in an orderly, efficient and customary manner; (iv) comply with all
laws, ordinances, rules, regulations and requirements and shall maintain its
business, properties and assets necessary to conduct its business in compliance
with all applicable governmental laws, ordinances, approvals, rules,
regulations and requirements, including without limitation, zoning, sanitary,
pollution, building, environmental and safety laws and ordinances, and the
rules and regulations promulgated thereunder; and (v) except with respect to
the renovation of the parking lot section of the Mortgaged Premises, not
remove, demolish, materially alter, discontinue the use of, sell, transfer,
assign, hypothecate, pledge or otherwise dispose of any part of its properties
and assets necessary for the continuance of its business, as presently
conducted and as presently contemplated, other than in the normal course of its
business.
5.3. BOOKS AND RECORDS. Borrower shall keep and maintain complete and
accurate books and records in accordance with generally accepted accounting
principles consistently applied, reflecting all of the financial affairs of
Borrower. Borrower shall permit representatives of Bank to examine and audit
Borrower's (and its parent's and its subsidiaries') books and records, to
inspect Borrower's facilities and properties, and to discuss Borrower's
financial condition and the contents of Borrower's financial statements with
Borrower's accountants.
5.4. FINANCIAL STATEMENTS; COMPLIANCE CERTIFICATE.
5.4.1. Borrower shall furnish to Bank the following
financial information, in each instance prepared in accordance with generally
accepted accounting principles consistently applied:
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(a) As soon as available, but in any event within one
hundred twenty (120) days after the close of its Fiscal Year(s) during the term
of the Loan, "audited" annual consolidated financial statements of Borrower and
its subsidiaries together with the Form 10-K filed with the Securities and
Exchange Commission or any successor governmental authority; and when sent to
the shareholders the annual report to shareholders for said fiscal year. Such
financial statements are to include (a) a consolidated balance sheet for
Borrower and its subsidiaries as at the end of Borrower's fiscal year, (b) a
consolidated statement of profit or loss for Borrower and its subsidiaries for
the twelve (12) months then ended, and (c) a consolidated statement of cash
flows for the twelve (12) months then ended, all with respect to the operations
of Borrower and its subsidiaries. All such financial statements shall state in
comparative form the respective figures for the corresponding date and period
in the prior fiscal year. Such consolidated financial statements shall be
prepared in accordance with generally accepted accounting principles
consistently applied, and shall be accompanied by an unqualified report from
Borrower's independent certified public accountant.
(b) As soon as available, but in any event within ninety
(90) days after the end of each of the first three fiscal quarters of each
fiscal year during the term of this Loan Agreement, unaudited quarterly
consolidated financial statements of Borrower and its subsidiaries together
with the Form 10-Q filed with the Securities and Exchange Commission or any
successor governmental authority; and when sent to the shareholders any
quarterly reports to shareholders for said fiscal quarter. Such consolidated
financial statements are to include (a) a consolidated balance sheet for
consolidated statement of profit or loss for Borrower and its subsidiaries for
the Borrower's fiscal quarter then ended and for the period commencing at the
end of the previous fiscal year and ending with the end of such fiscal quarter,
and (c) a consolidated statement of cash flows for the three (3) months then
ended and for the period commencing at the end of the previous fiscal year and
ending with the end of such fiscal quarter. All such consolidated financial
statements shall state in comparative form the respective figures for the
corresponding date and period in the prior year's fiscal quarter and for the
year-to-date period. Such chief financial officer of Borrower, as being true
and correct and consistent with prior practices (except as otherwise required
by generally accepted accounting principles) and as having been prepared in
accordance with generally accepted accounting principles.
(c) Such other information respecting the operations of
Borrower and/or the Mortgaged Premises as Bank may from time to time reasonably
request.
5.4.2. Borrower shall furnish to Bank, with each set of
financial statements described in Section 5.4.1. above, a compliance
certificate signed by Borrower's chief financial officer certifying that: (i)
all representations and warranties of Borrower set forth in this Agreement or
any other Loan Document remain true and correct; (ii) none of the covenants of
Borrower contained in this Agreement or any other Loan Document has been
breached; and (iii) to its knowledge, no event has occurred which, with the
giving of notice or the passage of time, or both, would constitute an Event of
Default under this Agreement or any other Loan Document. In addition, Borrower
shall promptly notify Bank of the occurrence of any default, Event of Default
or adverse litigation which has or may have a material adverse affect on its
financial condition.
5.5. TAXES AND OTHER CHARGES. Borrower shall prepare and timely file
all federal, state and local tax returns required to be filed by Borrower and
promptly pay and discharge all taxes, assessments, water and sewer rents, and
other governmental charges, imposed upon Borrower or on any of Borrower's
property when due, but in no event after interest or penalties commence to
accrue thereon or become a lien upon such property, except for those taxes,
assessments, water and sewer rents, and other governmental charges then being
contested in good faith by Borrower by appropriate proceedings and for which
Borrower has established on its books or by deposit of cash with Bank at the
option of Bank, a reserve for the payment thereof in such amount as Bank may
require, and so long as such contest: (i) operates to prevent collection, stay
any proceedings which may be instituted to enforce payment of such item, and
prevent a sale of Borrower's property to pay such item; (ii) is maintained and
prosecuted with due diligence; and (iii) shall not have been terminated or
discontinued adversely to Borrower. Borrower shall submit to Bank, upon
request, an affidavit signed by Borrower certifying that all federal, state and
local income tax returns have been filed to date and all real property taxes,
assessments and other governmental charges with respect to Borrower's
properties have been paid to date.
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5.6. INDEMNIFICATION.
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5.6.1. Borrower hereby indemnifies and agrees to protect,
defend and hold harmless Bank, any entity which "controls" Bank within the
meaning of Section 15 of the Securities Act of 1933, as amended, or is under
common control with Bank, and any member, officer, director, official, agent,
employee or attorney of Bank, and their respective heirs, administrators,
executors, successors and assigns (collectively, the "INDEMNIFIED PARTIES"),
from and against any and all losses, damages, expenses or liabilities of any
kind or nature and from any suits, claims or demands, including reasonable
attorneys' fees incurred in investigating or defending such claim, suffered by
any of them and caused by, relating to, arising out of, resulting from, or in
any way connected with the Loan Documents or the transactions contemplated
therein (unless determined by a final judgment of a court of competent
jurisdiction to have been caused solely by the gross negligence or willful
misconduct of the Indemnified Parties) including, without limitation: (i)
disputes with any architect, general contractor, subcontractor, materialman or
supplier, or on account of any act or omission to act by Bank in connection
with the Mortgaged Premises; (ii) losses, damages (including consequential
damages), expenses or liabilities sustained by Bank in connection with any
environmental inspection, monitoring, sampling or cleanup of the Mortgaged
Premises required or mandated by any applicable environmental law; (iii) any
untrue statement of a material fact contained in information submitted to Bank
by Borrower or the omission of any material fact necessary to be stated therein
in order to make such statement not misleading or incomplete; (iv) the failure
of Borrower to perform any obligations herein required to be performed by
Borrower; and (v) the ownership, construction, occupancy, operation, use or
maintenance of the Mortgaged Premises.
5.6.2. In case any action shall be brought against Bank or
any other Indemnified Party in respect to which indemnity may be sought against
Borrower, Bank or such other Indemnified Party shall promptly notify Borrower
and Borrower shall assume the defense thereof, including the employment of
counsel selected by Borrower and satisfactory to Bank, the payment of all costs
and expenses and the right to negotiate and consent to settlement. The failure
of Bank to so notify Borrower shall not relieve Borrower of any liability it
may have under the foregoing indemnification provisions or from any liability
which it may otherwise have to Bank or any of the other Indemnified Parties.
Bank shall have the right, at its sole option, to employ separate counsel in
any such action and to participate in the defense thereof, all at Borrower's
sole cost and expense. Borrower shall not be liable for any settlement of any
such action effected without its consent (unless Borrower fails to defend such
claim), but if settled with Borrower's consent, or if there be a final judgment
for the claimant in any such action, Borrower agrees to indemnify and save
harmless Bank from and against any loss or liability by reason of such
settlement or judgment.
5.6.3. The provisions of this Section 5.6 shall survive the
repayment or other satisfaction of the Liabilities.
5.7. FINANCIAL COVENANTS. Borrower shall comply with each of the
following financial covenants:
5.7.1. Borrower shall, at all times during the term of the
Loan, maintain a tangible net worth of not less than $37,000,000.00, as
determined in accordance with generally accepted accounting principles
consistently applied.
5.7.2. Borrower shall, at all times during the term of the
Loan, maintain Working Capital of not less than $30,000,000.00. For purposes
of this Commitment Letter, "WORKING CAPITAL" shall be defined as the sum of
Borrower's current assets MINUS Borrower's current liabilities; all as
determined in accordance with generally accepted accounting principles
consistently applied.
5.7.3. Borrower shall, at all times during the term of the
Loan, not permit nor suffer to permit its Current Ratio to be less than 1.75 to
1.0. For purposes of this Commitment Letter, "CURRENT RATIO" shall be defined
as the ratio of Borrower's current assets DIVIDED BY Borrower's current
liabilities; all as determined in accordance with generally accepted accounting
principles consistently applied.
5.7.4. Borrower shall, at all times during the term of the
Loan, not permit nor suffer to permit its Leverage Ratio to exceed 2.0 to 1.0.
For purposes of this Commitment Letter, "LEVERAGE RATIO" shall be defined as
the ration of Borrower's total debt obligations DIVIDED BY Borrower's tangible
net worth; all as determined in accordance with generally accepted accounting
principles consistently applied.
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5.7.5. Borrower will not permit nor suffer to permit its
Coverage Ratio to be less than the following levels during the corresponding
periods:
Period Ratio
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Fiscal Year 1996 1.0 to 1.0
Fiscal Year 1997
and thereafter 1.2 to 1.0
For purposes of this Commitment Letter "COVERAGE RATIO" shall be defined as the
ration of Borrower's EBITDA (Earnings before Interest, Taxes, Depreciation and
Amortization) DIVIDED BY the sum of (i) payment of all interest payments made
by Borrower (inclusive of all gold consignment fees incurred by Borrower) PLUS
(ii) the current maturities of long term debt; all as determined in accordance
with generally accepted accounting principles consistently applied. All
calculations of the Coverage Ratio shall be calculated on an annual basis after
the end of each fiscal year of Borrower.
5.7.6. Borrower shall maintain a Loan to Value Ratio of not
greater than 80%. "LOAN TO VALUE RATIO" means the outstanding principal
balance of the Loan at the time in question divided by the then current fair
market value of the Mortgaged Premises, as determined by Bank in its reasonable
judgment.
5.7.7. Borrower shall not pledge, grant a security interest
in, mortgage, assign, encumber or otherwise create a lien on the Mortgaged
Premises (whether real or personal, tangible or intangible, and now owned or
hereafter acquired) in favor of any person or entity other than Bank, except
for those liens, security interests and encumbrances existing on the date
hereof and previously disclosed in writing to and approved by Bank or as may be
set forth in that certain Certificate and Report of Title No. P-11547 issued
by Commonwealth Land Title Insurance Company dated January 15, 1995.
5.7.8. Borrower shall not make any loans or advances to any
other person or entity, including without limitation, officers, directors,
shareholders, principals, partners or affiliates of Borrower which would create
a default or an event of default under the Loan Documents.
6. EVENTS OF DEFAULT AND REMEDIES
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6.1. Each of the following shall constitute a default (each,
an "EVENT OF DEFAULT") hereunder:
6.1.1. Non-payment when due of any sum required to be paid to
Bank under any of the Loan Documents;
6.1.2. A breach of the covenants contained in Sections 5.1.,
5.2., 5.5. or 5.7. hereof;
6.1.3. A breach by Borrower of any other term, covenant,
condition, obligation or agreement under this Agreement and the continuation of
such breach for a period of thirty (30) days after written notice by Bank to
Borrower;
6.1.4. Any intentional representation or warranty made by
Borrower in this Agreement shall prove to be materially false, incorrect or
misleading in any material respect as of the date when made; or
6.1.5. An Event of Default under any of the other Loan
Documents
6.2. Upon or at any time after the occurrence of an Event of Default,
Bank may exercise any right, power or remedy permitted by law or as set forth
in any of the Loan Documents.
7. CONTINUING ENFORCEMENT OF AGREEMENT.
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If, after receipt of any payment of all or any part of the
Liabilities, Bank is compelled or agrees, for settlement purposes, to surrender
such payment to any person or entity for any reason (including, without
limitation, a determination that such payment is void or voidable as a
preference or fraudulent conveyance, an impermissible setoff, or a diversion of
trust funds), then this Agreement and the other
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Loan Documents shall continue in full force and effect, and Borrower shall be
liable for, and shall indemnify, defend and hold harmless Bank with respect to
the full amount so surrendered. The provisions of this Section shall survive
the termination of this Agreement and the other Loan Documents and shall remain
effective notwithstanding the payment of the Liabilities, the cancellation of
the Note or any other Loan Document, the release of any security interest, lien
or encumbrance securing the Liabilities or any other action which Bank may have
taken in reliance upon its receipt of such payment. Any cancellation, release
or other such action by Bank shall be deemed to have been conditioned upon any
payment of the Liabilities having become final and irrevocable.
8. MISCELLANEOUS
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8.1. INTEGRATION. This Agreement and the other Loan Documents
constitute the sole agreement of the parties with respect to the transaction
contemplated hereby and supersede all oral negotiations and prior writings with
respect thereto.
8.2. ATTORNEYS' FEES AND EXPENSES. If Bank retains the services of
counsel by reason of a claim of a default or an Event of Default hereunder or
under any of the other Loan Documents, or on account of any matter involving
this Agreement, or for examination of matters subject to Bank's approval under
the Loan Documents, all costs of suit and collection and all reasonable
attorneys' fees (and/or allocated fees of Bank's in-house legal counsel) and
such other reasonable expenses so incurred by Bank shall forthwith, on demand,
become due and payable and shall be secured hereby.
8.3. NO IMPLIED WAIVER. Bank shall not be deemed to have modified or
waived any of its rights or remedies hereunder unless such modification or
waiver is in writing and signed by Bank, and then only to the extent
specifically set forth therein. A waiver in one event shall not be construed
as continuing or as a waiver of or bar to such right or remedy on a subsequent
event.
8.4. PARTIAL INVALIDITY. The invalidity or unenforceability of any
one or more provisions of this Agreement shall not render any other provisions
herein contained invalid or unenforceable. In lieu of any invalid or
unenforceable provision, there shall be added automatically a valid and
enforceable provision as similar in terms to such invalid or unenforceable
provision as may be possible.
8.5. BINDING EFFECT. The covenants, conditions, waivers, releases and
agreements contained in this Agreement shall bind, and the benefits thereof
shall inure to, the parties hereto and their respective heirs, executors,
administrators, successors and assigns; provided, however, that this Agreement
cannot be assigned by Borrower without the prior written consent of Bank, and
any such assignment or attempted assignment by Borrower shall be void and of no
effect with respect to Bank.
8.6. MODIFICATIONS. This Agreement may not be supplemented, extended,
modified or terminated except by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought.
8.7. JURISDICTION. Borrower irrevocably appoints each and every
officer of the Borrower as its attorneys upon whom may be served, by regular or
certified mail at the address set forth below, any notice, process or pleading
in any action or proceeding against it arising out of or in connection with
this Agreement or any other Loan Document; and Borrower hereby consents that
any action or proceeding against it may be commenced and maintained in any
court within the State of New York or in the United States District Court for
the Southern District of New York by service of process on any such owner,
partner and/or officer; and Borrower agrees that the courts of the State of New
York and the United States District Court for the Southern District of New York
shall have jurisdiction with respect to the subject matter hereof and the
person of Borrower and all collateral securing the obligations of Borrower.
Borrower agrees not to assert any defense to any proceeding initiated by Bank
based upon improper venue or inconvenient forum. Borrower agrees that any
action brought by Borrower shall be commenced and maintained only in a court in
the federal judicial district or county in which Bank has its principal place
of business in New York.
8.8. NOTICES. All notices and communications under this Agreement
shall be in writing and shall be given by either (a) hand-delivery, (b) first
class mail (certified mail, return receipt requested), or (c) reliable
overnight commercial courier (charges prepaid) to the addresses listed in this
Agreement. Notice shall be deemed to have been given and received: (i) if by
hand delivery, upon delivery; (ii) if by mail, three (3) calendar days after
the date first deposited in the United States mail; and (iii) if by overnight
courier, on the date scheduled for delivery. A party may change its address by
giving written
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notice to the other party as specified herein.
8.9. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the substantive laws of the State of New York, or the laws
of any State in which the Loan was made or is repayable, or the laws of any
State in which any collateral for the Loan is located, at the sole discretion
of Bank.
8.10. WAIVER OF JURY TRIAL. BORROWER AND BANK AGREE THAT ANY SUIT,
ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY BANK OR
BORROWER ON OR WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
DEALINGS OF THE PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY
A COURT AND NOT BY A JURY. BANK AND BORROWER EACH HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY, AND WITHOUT THE ADVICE OF THEIR
RESPECTIVE COUNSEL, WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION
OR PROCEEDING. FURTHER, BORROWER WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY,
PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND
MATERIAL ASPECT OF THIS AGREEMENT AND THAT BANK WOULD NOT EXTEND CREDIT TO
BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS
AGREEMENT.
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IN WITNESS WHEREOF, Borrower and Bank, intending to be legally bound,
have duly executed and delivered this Loan Agreement as of the day and year
first above written.
ATTEST XXXXXXX XXXXXXX JEWELERS, INC.
By: /s/ M. Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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M. Xxxxxxx Xxxxxx Xxxxxxx X. Xxxxxxxxx
Secretary Senior Vice President and Treasurer
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxx Xxxxxxxxxx
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Xxxxxxx Xxx Xxxxxxxxxx
Assistant Vice President
Address: 000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
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