Exhibit 10.34
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ADDITIONAL CAPITAL CONTRIBUTION AGREEMENT
by and between
▇▇▇▇▇▇ GROUP LLC
and
SLJ RETAIL LLC
June 24, 1998
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS
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1.1 Certain Defined Terms.................. 1
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ARTICLE II. ADDITIONAL CAPITAL CONTRIBUTIONS
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2.1 Additional Capital Contributions....... 3
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2.2 Issuance of Additional Member Interests 3
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2.3 Requests for Capital Contributions..... 4
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2.4 Use of Proceeds........................ 4
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ARTICLE III. CONDITIONS PRECEDENT
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3.1 Initial Capital Contribution........... 4
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3.2 First Capital Contribution Subsequent
to the Closing Date 5
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3.3 Subsequent Capital Contributions....... 5
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3.4 All Capital Contributions.............. 5
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ARTICLE IV. ▇▇▇▇▇▇'▇ REPRESENTATIONS AND WARRANTIES
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4.1 Existence.............................. 6
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4.2 Authority.............................. 6
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ARTICLE V. THE COMPANY'S REPRESENTATIONS AND WARRANTIES
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5.1 Organization and Qualification......... 7
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5.2 Authority.............................. 7
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5.3 Valid Obligations...................... 7
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5.4 Approvals.............................. 7
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5.5 Compliance with Laws and Agreements.... 7
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5.6 Financial Statements................... 7
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5.7 Litigation............................. 8
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5.8 Senior Credit Agreement................ 8
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5.9 Full Disclosure........................ 8
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ARTICLE VI. MISCELLANEOUS
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6.1 Expenses............................... 8
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6.3 Assignment............................. 9
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6.4 Notices................................ 9
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6.5 Binding Effect......................... 11
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6.6 No Third Party Beneficiary............. 11
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6.7 Waiver................................. 11
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6.8 Counterparts........................... 11
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6.9 Entire Agreement....................... 11
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6.10 Governing Law.......................... 11
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6.11 Waiver of Jury Trial................... 12
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6.12 Opinion of ▇▇▇▇▇▇'▇ Counsel............ 12
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ADDITIONAL CAPITAL CONTRIBUTION AGREEMENT
THIS ADDITIONAL CAPITAL CONTRIBUTION AGREEMENT (this "Agreement") is made
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and entered into as of June 24, 1998 by and between SLJ RETAIL LLC, a Delaware
limited liability company (the "Company"), and ▇▇▇▇▇▇ GROUP LLC, a Delaware
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limited liability company ("▇▇▇▇▇▇").
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RECITALS
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▇. ▇▇▇▇▇▇▇ Retail Inc., a Delaware corporation ("▇▇▇▇▇▇▇ Retail"), and
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▇▇▇▇▇▇ are all of the Members of the Company and, as such, are parties to an
Operating Agreement dated as of April 14, 1997 (the "Operating Agreement"),
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pursuant to which the Company has been formed and is governed.
B. Capitalized terms used in this Agreement and not otherwise defined
herein will have the definitions set forth in the Operating Agreement, unless
otherwise clearly indicated to the contrary herein.
C. An Event of Default has occurred under the Senior Credit Agreement and
the Company has requested that ▇▇▇▇▇▇ make certain additional cash contributions
to the capital of the Company, for the uses and purposes set forth herein, in
order to induce the Senior Lenders to forbear from exercising their rights and
remedies provided under the Senior Credit Agreement as more fully set forth
herein.
▇. ▇▇▇▇▇▇ is willing to make such additional cash contributions to the
capital of the Company on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, and intending to be legally bound, the parties
hereto agree as follows:
ARTICLE I.
DEFINITIONS
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1.1 Certain Defined Terms. When used in this Agreement, the terms set
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forth below are defined as follows:
"Accountants" means Ernst & Young LLP, or other independent certified
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public accountants of nationally-recognized standing retained by the Company.
"Agreement" means this Additional Capital Contribution Agreement, including
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all schedules and exhibits hereto, as the same may be amended, modified,
supplemented or extended from time to time.
"Amendments" means each of the Amendments contemplated by Section
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3.1(d)(i)-(iv) hereof.
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"Business Day" means each day of the week except Saturday, Sunday and any
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day on which banking institutions are authorized by law to close in the States
of New York or Georgia.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Group LLC, a Delaware limited liability company,
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together with its transferees, successors and assigns.
"Capital Contribution" has the meaning set forth in Section 2.1.
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"Closing Date" means the date on which all the conditions stated in
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Sections 3.1 and 3.4 of this Agreement have been satisfied or waived and the
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initial Capital Contribution has been made.
"Company" means SLJ Retail LLC, a Delaware limited liability company.
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"Company Documents" has the meaning set forth in the Contribution
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Agreement.
"Default" has the meaning set forth in the Senior Credit Agreement.
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"Event of Default" has the meaning set forth in the Senior Credit
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Agreement.
"Financial Statements" has the meaning set forth in Section 5.6.
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"Forbearance Agreement" has the meaning set forth in Section 3.1(d)(v).
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"GAAP" means generally accepted accounting principles in effect from time
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to time, applied on a consistent basis with past financial statements (except
for changes with which the Accountants concur).
"Operating Agreement" has the meaning set forth in the Recitals to this
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Agreement.
"Person" means any individual, corporation, limited liability company,
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partnership, joint venture, trust or unincorporated organization or any
government or any agency or political subdivision thereof.
"Senior Agent" means BankBoston, N.A., in its capacity as Agent under the
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Senior Credit Agreement.
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"Senior Credit Agreement" means the Credit Agreement dated as of April 14,
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1997 among the Company, the Senior Lenders and the Senior Agent, together with
all renewals, modifications, extensions, refinancings, substitutions and
replacements thereof.
"Senior Lenders" means the lenders from time to time parties to the Senior
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Credit Agreement.
ARTICLE II.
ADDITIONAL CAPITAL CONTRIBUTIONS
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1.2 Additional Capital Contributions. From time to time on and after the
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Closing Date until and including January 29, 1999, subject to the terms and
conditions hereof and on the basis of the representations and warranties
hereinafter set forth, ▇▇▇▇▇▇ agrees to make cash capital contributions to the
Company (individually, a "Capital Contribution" and, collectively, the "Capital
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Contributions") in an aggregate amount of up to $6,000,000. The first such
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Capital Contribution to be made on the Closing Date shall be in the amount of
not less than $2,000,000 nor more than $3,000,000 and each subsequent Capital
Contribution shall be in an amount of not less than $500,000 and in integral
multiples of $100,000; provided that the last such Capital Contribution may, if
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the Company requests the entire $6,000,000 in Capital Contributions contemplated
hereby, be in an amount equal to $6,000,000 less the aggregate amount of all
Capital Contributions previously funded hereunder. In no event shall there be
more than six separate Capital Contributions funded under this Agreement.
1.3 Issuance of Additional Member Interests. Upon the making of each
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Capital Contribution contemplated by Section 2.1 above, ▇▇▇▇▇▇ will be deemed
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to hold without further action on the part of the Manager or either of the
parties hereto, that additional number of Class B Member Units as is determined
by reference to the following table:
Aggregate Capital Additional Class Cumulative Additional
Contributions B Member Units Class B Member Units
-------------------------------- ---------------- ---------------------
Equal to $2,000,000 1,538 1,538
Greater than $2,000,000 but 962 2,500
equal to or less than $3,000,000
Greater than $3,000,000 but 1,136 3,636
equal to or less than $4,000,000
Greater than $4,000,000 but 1,364 5,000
equal to or less than $5,000,000
Greater than $5,000,000 1,666 6,666
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1.4 Requests for Capital Contributions. The Company shall give ▇▇▇▇▇▇
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irrevocable written, telex or facsimile notice (promptly confirmed in writing)
of each request that ▇▇▇▇▇▇ make a Capital Contribution hereunder not later than
11:00 A.M., Atlanta, Georgia time, no less than five (5) Business Days before
the date on which it proposes that a Capital Contribution be made (except for
the initial Capital Contribution to be made on the Closing Date). Such notice
shall (i) specify the date of such Capital Contribution (which shall be a
Business Day), (ii) state the amount thereof, and (iii) be accompanied by the
closing certificate referenced in Section 3.4(e).
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1.5 Use of Proceeds. (a) The proceeds from the initial Capital
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Contribution to be made on the Closing Date shall be used by the Company for
working capital; and (b) the proceeds of each Capital Contribution made
subsequent to the Closing Date shall be used by the Company (i) for working
capital; (ii) to fund the expense of Store closings and lease terminations
permitted by Section 7.5(c)(xx) of the Operating Agreement; and (iii) to fund
the expenses of the relocation of the headquarters operations of the Company to
space in the Boston, Massachusetts area as contemplated by Section 1(e) of the
Services Agreement, to the extent permitted by Section 7.5(c)(xxi) of the
Operating Agreement.
ARTICLE III.
CONDITIONS PRECEDENT
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1.6 Initial Capital Contribution. ▇▇▇▇▇▇'▇ obligation hereunder to make
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the initial Capital Contribution is subject to the satisfaction on or before the
Closing Date of the condition precedent that ▇▇▇▇▇▇ shall have received the
following, each in form and substance satisfactory to ▇▇▇▇▇▇ and its counsel:
(1) Approvals and Consents. Copies, certified by the Chairman of the
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Company of all consents, authorizations and approvals, if any, required in
connection with the execution, delivery and performance by the Company of this
Agreement and each of the Amendments to which the Company is a party;
(2) Opinion of Counsel. The written legal opinion of ▇▇▇▇▇▇, ▇▇▇▇ &
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▇▇▇▇▇▇▇▇ LLP, special counsel to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Retail and ▇▇▇▇▇▇▇,
substantially in the form of Exhibit A to this Agreement;
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(3) Certificate of the Company's Secretary. A certificate of the Secretary
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of ▇▇▇▇▇▇▇ Retail, certifying the names of the officers of ▇▇▇▇▇▇▇ Retail
authorized to sign this Agreement and each of the Amendments on behalf of the
Company, together with a sample of the true signature of each such officer; and
(4) Amendments and Forbearance Agreement. Copies of each of the following,
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duly executed and delivered by the respective parties thereto:
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(1) A First Amendment to the Operating Agreement, substantially in the form
of Exhibit B hereto;
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(2) A First Amendment to the Services Agreement, substantially in the form
of Exhibit C hereto;
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(3) A First Amendment to the Option Agreement, substantially in the form of
Exhibit D hereto;
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(4) A First Amendment to the Retail License Agreement, substantially in the
form of Exhibit E hereto; and
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(5) A Forbearance Amendment with respect to the Senior Credit Agreement,
substantially in the form of Exhibit F hereto (the "Forbearance Agreement").
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1.7 First Capital Contribution Subsequent to the Closing Date. The
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obligation of ▇▇▇▇▇▇ to make the first Capital Contribution subsequent to the
Closing Date shall be subject to the following conditions precedent:
(1) Second Amendment to Credit Agreement. The Company shall have entered
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into a Second Amendment to the Senior Credit Agreement, in form and substance
satisfactory to ▇▇▇▇▇▇, pursuant to which the Senior Lenders agree, among other
things, to waive any Events of Default then outstanding under the Senior Credit
Agreement and to modify the financial covenants set forth therein to conform to
the Company's expected future financial performance; and
(2) Opinion of Counsel. ▇▇▇▇▇▇ shall have received the written legal opinion
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of counsel to the Company selected in accordance with Section 7.3 of the
Operating Agreement, substantially in the form of Exhibit G to this
Agreement.
1.8 Subsequent Capital Contributions. The obligation of ▇▇▇▇▇▇ to make any
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Capital Contribution subsequent to the Closing Date (including the first Capital
Contribution subsequent to the Closing Date) shall be subject to the condition
precedent that ▇▇▇▇▇▇ shall have received a request conforming to the
requirements of Section 2.3.
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1.9 All Capital Contributions. The obligation of ▇▇▇▇▇▇ to make all
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Capital Contributions hereunder (including the initial Capital Contribution to
be made on the Closing Date) shall be subject to the following conditions
precedent:
(1) No Default or Event of Default Under Senior Credit Agreement. Except as
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otherwise set forth in the Forbearance Agreement with respect to the initial
Capital Contribution to be made on the Closing Date, the Company shall be in
compliance with all the terms and provisions contained in the Senior Credit
Agreement on its part to be observed or performed, and at the time
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of and immediately after such Capital Contribution (giving effect to the Second
Amendment referred to in Section 3.2(a) with respect to all Capital
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Contributions to be made subsequent to the Closing Date), no Default or Event of
Default shall have occurred and be continuing;
(2) No ▇▇▇▇▇▇▇ Change of Control or ▇▇▇▇▇▇▇ Default. No Change of Control
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of ▇▇▇▇▇▇▇ shall have occurred and no ▇▇▇▇▇▇▇ Default shall have occurred and be
continuing;
(3) Compliance with Company Documents. The Company shall be in compliance
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with all the terms and provisions contained in this Agreement and in each of the
Company Documents on its part to be observed and performed;
(4) Representations and Warranties. The representations and warranties set
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forth in Article V hereof shall be true and correct in all material respects
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with the same effect as though made on and as of such date (except insofar as
such representations and warranties relate expressly to an earlier date); and
(5) Closing Certificate. The Company shall have delivered to ▇▇▇▇▇▇ a
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certificate of the Chairman of the Company to the effect that each of the
conditions precedent set forth in clauses (a)-(d) above has been satisfied
as of the date of such Capital Contribution.
ARTICLE IV.
▇▇▇▇▇▇'▇ REPRESENTATIONS AND WARRANTIES
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▇▇▇▇▇▇ represents and warrants to the Company as follows:
1.10 Existence. ▇▇▇▇▇▇ is a limited liability company duly organized,
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validly existing and in good standing under the laws of the State of Delaware.
1.11 Authority. ▇▇▇▇▇▇ has all requisite power and authority to execute,
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deliver and perform under this Agreement. The execution, delivery and
performance by ▇▇▇▇▇▇ of this Agreement have been duly authorized by all
necessary action, corporate or otherwise, on the part of ▇▇▇▇▇▇. This Agreement
has been duly executed and delivered by ▇▇▇▇▇▇. This Agreement is a legal, valid
and binding agreement of ▇▇▇▇▇▇ enforceable against ▇▇▇▇▇▇ in accordance with
its terms, subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally
and to general principles of equity regardless whether enforcement is considered
in a proceeding at law or in equity.
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ARTICLE V.
THE COMPANY'S REPRESENTATIONS AND WARRANTIES
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To induce ▇▇▇▇▇▇ to enter into this Agreement, the Company represents and
warrants to ▇▇▇▇▇▇ as follows:
1.12 Organization and Qualification. The Company (a) is a limited liability
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company duly organized, validly existing and in good standing under the laws of
the State of Delaware; (b) has all requisite power and authority, as the case
may be, to own its property and conduct its business as now conducted and as
presently contemplated; and (c) is duly qualified and in good standing in each
jurisdiction where the nature of its properties or its business (present or
proposed) requires such qualification, except where the failure to so qualify
will not materially adversely affect its business.
1.13 Authority. The execution, delivery and performance of this Agreement
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and each of the Amendments are within the limited liability company authority of
the Company, have been authorized by all necessary limited liability company
proceedings on the part of the Company, and do not and will not contravene any
provision of law or the certificate of formation or Operating Agreement of the
Company, or breach any provisions of, or constitute a Default or Event of
Default under the Senior Credit Agreement or a default under any other material
agreement (including any lease, any agreement with any member of the Company or
its affiliates, agreement, any license agreement or any supplier contracts),
instrument, judgment, order, decree, permit, license or undertaking binding upon
or applicable to the Company or any of its properties.
1.14 Valid Obligations. This Agreement and each of the Amendments to which
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the Company is a party and all of their respective terms and provisions are
legal, valid and binding obligations of the Company, enforceable in accordance
with their terms.
1.15 Approvals. The execution, delivery and performance of this Agreement
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and each of the Amendments to which the Company is a party do not require any
approval or consent of, or filing or registration with, any governmental or
other agency or authority or any other Person, except as have been obtained and
a copy thereof delivered to ▇▇▇▇▇▇.
1.16 Compliance with Laws and Agreements. The Company is not in violation
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of (a) any provision of its certificate of formation or the Operating Agreement,
or (b) except as otherwise set forth in Schedule 5.5, any provisions of any
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material indenture, agreement or instrument to which it is a party or by which
it is bound or, to the best of the Company's knowledge and belief, of any
provision of law, or (c) any order, judgment or decree of any court or other
agency of government.
1.17 Financial Statements. The Company has furnished to ▇▇▇▇▇▇ (i) its
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balance sheet as of January 31, 1998 and the related statements of operations
and cash flows for the period from March 7, 1997 (date of inception) through
January 31, 1998, accompanied by the audit report thereon of Ernst & Young LLP,
and (ii) its unaudited balance sheet as of May 2, 1998 and the related unaudited
income statement and cash flow statements for the fiscal quarter then ended (the
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"Financial Statements"). The Financial Statements fairly present the financial
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position of the Company as at the respective dates thereof and the results of
operations and cash flows of the Company for the respective periods then ended,
determined in accordance with GAAP. Except as reflected in the Financial
Statements, at the date hereof, the Company has no indebtedness or other
liabilities, debts or obligations, whether accrued, absolute, contingent or
otherwise, and whether due or to become due, including, but not limited to,
liabilities or obligations on account of taxes or other governmental charges,
that are required to be reflected in financial statements of the Company
prepared in accordance with GAAP.
1.18 Litigation. Except as set forth in Schedule 5.7, there is no
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litigation, proceeding or governmental investigation, administrative or
judicial, pending or, to the Company's knowledge, threatened against or
affecting the Company or its properties in which there is a reasonable
possibility of an outcome that could have a material adverse effect on the
business, properties or condition (whether financial or otherwise) of the
Company or its ability to perform its obligations under this Agreement or any of
the Amendments to which it is party.
1.19 Senior Credit Agreement. Except as otherwise set forth in the
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Forbearance Agreement, each of the representations and warranties of the Company
set forth in the Senior Credit Agreement is true and correct in all material
respects as of the date hereof.
1.20 Full Disclosure. No statement of fact made by or on behalf of the
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Company in this Agreement or in any certificate or schedule furnished to ▇▇▇▇▇▇
pursuant hereto, in light of all information provided to ▇▇▇▇▇▇, contains any
untrue statement of a material fact or omits to state any material fact
necessary to make statements continued therein or herein not misleading. There
is no fact currently known to the Company which has not been disclosed to ▇▇▇▇▇▇
in writing which materially adversely affects, or, as far as the Company can
reasonably foresee, will materially adversely affect, the business, operations,
properties, assets, condition (financial or otherwise) or prospects, of the
Company, or the ability of the Company to perform its obligations hereunder and
under each of the Company Documents.
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ARTICLE VI.
MISCELLANEOUS
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1.21 Expenses. ▇▇▇▇▇▇ agrees that it will pay all fees and expenses
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incurred by it in connection with the negotiation, execution and delivery of
this Agreement and the Amendments (including all fees and expenses of counsel
for ▇▇▇▇▇▇). The Company agrees that it will pay all fees and expenses incurred
by it in connection with the negotiation, execution and delivery of this
Agreement and the Amendments (including all fees and expenses of counsel for the
Company), and the Company further agrees that it will arrange for all fees and
expenses incurred by ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Retail and ▇▇▇▇▇▇▇ in connection with the
negotiation, execution and delivery of this Agreement and the Amendments
(including all fees and expenses of counsel for ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Retail or
▇▇▇▇▇▇▇) to be paid solely by ▇▇▇▇▇▇▇, without recourse back to the Company for
the reimbursement thereof.
1.22 INDEMNIFICATION. THE COMPANY SHALL ABSOLUTELY AND UNCONDITIONALLY
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INDEMNIFY AND HOLD ▇▇▇▇▇▇ (INCLUDING ALL TRANSFEREES, SUCCESSORS AND ASSIGNS)
HARMLESS AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS, ACTIONS, CAUSES OF ACTION,
DAMAGES, LOSSES, SETTLEMENT PAYMENTS, OBLIGATIONS, COSTS, EXPENSES AND ALL OTHER
LIABILITIES WHATSOEVER WHICH SHALL AT ANY TIME OR TIMES BE INCURRED OR SUSTAINED
BY IT OR BY ANY OF ITS SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES,
SUBSIDIARIES, AFFILIATES OR AGENTS ON ACCOUNT OF, OR ARISING SOLELY OUT OF, THE
BREACH BY THE COMPANY OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR COVENANTS SET
FORTH IN THIS AGREEMENT.
1.23 Assignment. The Company may not sell, assign, delegate or transfer
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this Agreement, or any of its rights, interests or obligations hereunder.
Subject to the terms and conditions of the Operating Agreement with respect to
Member Interests, ▇▇▇▇▇▇ may sell, assign, delegate or transfer this Agreement,
and any of its rights, interests or obligations hereunder at any time without
the consent of the Company, so long as such assignee shall fully assume all of
the obligations of ▇▇▇▇▇▇ hereunder. ▇▇▇▇▇▇ shall promptly notify the Company of
any sale, assignment, delegation or transfer of the foregoing.
1.24 Notices. All notices that are required or may be given pursuant to
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this Agreement must be in writing and delivered personally, by a recognized
courier service, by a recognized overnight delivery service, by telecopy or by
registered or certified mail, postage prepaid, to the parties at the following
addresses (or to the attention of such other person or such other address as any
party may provide to the other parties by notice in accordance with this Section
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6.4):
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If to ▇▇▇▇▇▇:
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c/o GE Capital Equity Capital Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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With copies to:
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General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Counsel -- Equity Capital Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Company:
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SLJ Retail LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
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Counsel to the Company, at such address and facsimile
number as is provided by counsel to the Company
and
▇▇▇▇▇▇▇ Retail Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or, if by mail, ▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇)
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Any such notice or other communication will be deemed to have been given and
received (whether actually received or not) on the day it is personally
delivered or delivered by courier or overnight delivery service or sent by
telecopy or, if mailed, when actually received.
1.25 Binding Effect. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their successors, legal representatives, and
permitted assigns.
1.26 No Third Party Beneficiary. This Agreement is made solely and
specifically between and for the benefit of the Company and ▇▇▇▇▇▇, their
respective successors and the assigns of ▇▇▇▇▇▇ permitted under Section 6.3. No
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Person whatsoever other than the Company, ▇▇▇▇▇▇, their respective successors
and ▇▇▇▇▇▇'▇ permitted assigns (including, without limitation, the Manager or
any Affiliate of the parties hereto or of the Manager), will have any liability
whatsoever under this Agreement, have any rights, interest or claims hereunder
or be entitled to any benefits under or on account of this Agreement as a third
party beneficiary or otherwise.
1.27 Waiver. No failure by any party to insist upon the strict performance
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of any covenant, duty, agreement, or condition of this Agreement or to exercise
any right or remedy consequent upon a breach thereof will constitute waiver of
any such breach or any other covenant, duty, agreement, or condition.
1.28 Counterparts. This Agreement may be executed in one or more
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counterparts (which may include counterparts delivered by telecopier), all of
which together will constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart.
1.29 Entire Agreement. This Agreement contains the entire understanding of
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the parties relating to the subject matter hereof and supersedes all prior
written or oral and all contemporaneous oral agreements and understandings
relating to the subject matter hereof. This Agreement cannot be modified or
amended except in writing signed by the party against whom enforcement is
sought.
1.30 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THAT STATE. ▇▇▇▇▇▇ AND THE COMPANY HEREBY
CONSENT AND AGREE THAT THE COURTS OF THE STATE OF NEW YORK, SITUATED IN THE
COUNTY OF NEW YORK, OR, AT ▇▇▇▇▇▇'▇ OPTION, THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ▇▇▇▇▇▇ AND ANY THE COMPANY PERTAINING
TO THIS AGREEMENT OR TO ANY MATTER ARISING
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OUT OF OR RELATED TO THIS AGREEMENT. VENUE OF ANY ACTION BROUGHT HEREUNDER SHALL
BE DEEMED TO BE IN NEW YORK COUNTY, NEW YORK. ▇▇▇▇▇▇ AND THE COMPANY EXPRESSLY
SUBMIT AND CONSENT IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT
COMMENCED IN ANY SUCH COURT, AND ▇▇▇▇▇▇ AND THE COMPANY HEREBY WAIVE ANY
OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENT TO THE GRANTING OF SUCH LEGAL
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OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
1.31 Waiver of Jury Trial. BECAUSE DISPUTES ARISING IN CONNECTION WITH
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COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN
EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION (WITHOUT SUBMITTING TO ARBITRATION), EACH OF THE PARTIES HERETO
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY OF THE
DOCUMENTATION CONTEMPLATED HEREBY.
1.32 Opinion of ▇▇▇▇▇▇'▇ Counsel. ▇▇▇▇▇▇ agrees to furnish to the Company,
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at ▇▇▇▇▇▇'▇ expense, an opinion of counsel to ▇▇▇▇▇▇ addressed to the Company,
substantially to the effect set forth in Article IV hereof (subject to customary
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qualifications and exceptions), on or before the making of the first Capital
Contribution hereunder subsequent to the Closing Date.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
executed this Agreement as of the date first written above.
SLJ RETAIL LLC
By: ▇▇▇▇▇▇▇ RETAIL INC., its Manager
By:______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chairman
▇▇▇▇▇▇ GROUP LLC
By:________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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Schedule 5.5
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Failure to Comply with Certain Agreements
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As of the date of this Agreement, the Company has failed to comply with
certain material indentures, agreements or instruments to which it is a party or
by which it is bound, as follows:
1. The Company has failed to comply with the Senior Credit Agreement to
the extent set forth in the Forbearance Agreement.
2. The Company has failed to provide certain letters of credit to ▇▇▇▇▇
Investment Co., Inc. ("▇▇▇▇▇") required by Section 3.1.1 of the ▇▇▇▇▇ New York
Trademark Sublicense (but ▇▇▇▇▇ has not requested that such letters of credit be
provided).
3. The Company is in default under certain of its store leases.
4. The Company is in arrears in payments due to certain of its suppliers.
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Schedule 5.7
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Certain Litigation
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As of the date of this Agreement, the following litigation is pending
against the Company:
1. Lawsuits by landlords of the Company alleging that the Company has
failed to pay rent or to fulfill certain of its other obligations under store
leases.
2. Product liability lawsuits being defended by the Company's insurance
carriers.
3. Various EEOC and similar employee grievances arising in the ordinary
course of the Company's business.
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