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Exhibit No. 10.40
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CONSIGNMENT AGREEMENT
CONSIGNMENT AGREEMENT ("AGREEMENT") made as of November 29, 1999, by
and between MITSUI & CO. (U.S.A.), INC., with its principal office at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("CONSIGNOR"), and XXXXXXX XXXXXXX JEWELERS,
INC., a Delaware corporation with its principal office at 000 Xxxxx XxxXxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000 ("CONSIGNEE").
Consignee has requested Consignor to deliver Precious Metal (as defined herein)
on consignment for sale to Consignee. To effectuate this arrangement, Consignor
and Consignee agree that the Consignment Agreement governing this arrangement is
stated as follows:
I . DEFINITIONS.
For the purposes of this Agreement:
"ABN" shall mean ABN AMRO Bank, N.V., New York Branch and any legal
successor in interest thereto.
"BASE RATE" shall mean the higher of (i) the prime commercial lending
rate announced from time to time by The Chase Manhattan Bank, or (ii) the rate
quoted by The Chase Manhattan Bank at approximately 11:00 am, New York City
time, to dealers in the New York Federal Funds Market for the overnight offering
of dollars by The Chase Manhattan Bank for deposit, plus one-half of one percent
(0.5001).
"CONSIGNEE'S COUNSEL" shall mean Xxxx Xxxxxx-Xxxxxxx, Esq., General
Counsel of the Consignee.
"CONSIGNED PRECIOUS METAL" shall mean Precious Metal which Consignor
has consigned to Consignee pursuant to the terms of this Agreement for which
payment has not been received or which has not been Redelivered to Consignor.
"CONSIGNMENT FEES" shall mean the outstanding total of fees agreed to
(based on specified quantities and time periods) by Duly Authorized officers of
both parties at the time of each Delivery of consigned Precious Metal.
"CONSIGNMENT LIMIT" shall mean the lesser of (a) 25,000 xxxx ounces of
fine gold, or (b) Consigned Precious Metal with d Fair Market Value (or unpaid
Purchase Price in the case of Consigned Precious Metal for which the Purchase
Price has been agreed but payment has not been received by Consignor) equal to
$8,750,000.
"CS" shall mean Credit Suisse, New York Branch, and any legal successor
in interest thereto.
"CURRENT LIABILITIES" shall mean, at any date as of which the amount
thereof shall be determined, all amounts that should, in accordance with
generally accepted accounting
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principles, be included as current liabilities on the balance sheet of Consignee
as at such date, plus, to the extent not already included therein all
Indebtedness that is payable upon demand or within one (1) year from the date of
determination thereof unless such Indebtedness is renewable or extendible at the
option of Consignee to a date more than one (1) year from the date of
determination.
"DELIVER" or "DELIVERY" shall mean either actual shipment, creating the
right in Consignee to demand actual shipment through a writing, instrument or a
statement of account, or consignor's crediting Precious Metal to the account of
Consignee with one or more third parties when no physical movement thereof is
contemplated by the parties.
"DULY AUTHORIZED OFFICER" shall mean, with respect to the Consignee,
the President of Consignee, or other officer or employee who is authorized by
the Board of Directors or an executive committee of such Board of Directors and
with respect to the Consignor, any vice president or other officer or employee
who is authorized to act in such capacity.
"ENVIRONMENTAL REQUIREMENT(S)" shall mean any present or future law,
statute, ordinance, rule, regulation, order' code, license, permit, decree,
judgment, directive or the equivalent of or by any Governmental Authority and
relating to or addressing the protection of human health or the environment
"EQUITY PRECIOUS METAL" shall Precious Metal (a) owned outright by the
Consignee subject only to security interests permitted hereunder, and (b) not
delivered to the Consignee pursuant to a consignment, "lease", "loan",
"conditional sale" or other similar arrangement.
"EVENT OF DEFAULT" shall mean an Event of Default under Section 13 of
this Agreement.
"FAIR MARKET VALUE" on any day shall mean the Second London Gold Fixing
for that day. If no such price is available for a particular day, the Fair
Market Value for such day shall be the price for the immediately preceding day
for which such price is available.
"FINANCIAL STATEMENTS" shall mean the balance sheet, income statement,
statement of cash flows and stockholder's equity statement of Consignee for the
year or other period then ended, together with supporting schedules, certified
(without qualification) by Deloitte & Touche or other independent public
accountants approved by Consignor and prepared in accordance with generally
accepted accounting principles consistently applied.
"FPM" shall mean Fleet Precious Metals, successor in interest thereto.
Inc. and any legal successor in interest thereto.
"GOVERNMENTAL AUTHORITY" shall mean the United States government, any
state or other political subdivision thereof, any agency, court or body of the
United States government, any state or other political subdivision thereof, or
any quasi-governmental agency or authority exercising executive, legislative,
judicial, regulatory or administrative functions.
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"GUARANTEES" shall mean, as applied to Consignee, all guarantees,
endorsements or other contingent or surety obligations with respect to
obligations of others whether or not reflected on the balance sheet of
Consignee, including any obligation to furnish funds, directly or indirectly
(whether by virtue of Partnership arrangements, by agreement to keep-well or
otherwise), through the purchase of goods, supplies or services, or by way of
stock purchase, capital contribution, advance or loan, or to enter into a
contract for any of the foregoing, for the purpose of payment of obligations of
any other person or entity.
"HAZARDOUS MATERIAL" shall mean any material or substance (i) which,
whether by its nature or use, is now or hereafter defined as a hazardous waste,
hazardous substance, pollutant or contaminant under any Environmental
Requirement, (ii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous to human health or
the environment, (iii) which is or contains petroleum or any fraction thereof,
including crude oil, heating oil, gasoline or diesel fuel, or (iv) the presence
of which requires investigation or remediation under any Environmental
Requirement.
"INDEBTEDNESS" shall mean, as applied to Consignee, (i) all obligations
for borrowed money or other extensions of credit whether or not secured or
unsecured, absolute or contingent, including, without limitation, unmatured
reimbursement obligations with respect to letters of credit, or guarantees
issued for the account of or on behalf of Consignee and all obligations
representing the deferred purchase price of property, other than accounts
payable arising in the ordinary course of business, (ii) all obligations
evidenced by bonds, notes, debentures or other similar instruments, (iii) all
obligations secured by any mortgage, pledge, security interest or other lien on
property owned or acquired by Consignee whether or not the obligations secured
thereby shall have been assumed, including but not limited to obligations to the
Second Insurance Companies and the Third Insurance Companies, (iv) that portion
of all obligations arising under capital leases that is required to be
capitalized on the balance sheet of Consignee, (y) all Guarantees, (vi) all
obligations with respect to Precious Metal leased or consigned to Consignee,
including but not limited to obligations pursuant to this Agreement, and (vii)
all obligations that are immediately due and payable out of the proceeds of or
production from property now or hereafter owned or acquired by Consignee.
"NOTICE" or "NOTICES" shall mean all requests, demands and other
communications, in writing (including telegraphic and telecopy communications),
sent by registered or certified mail, return receipt requested, overnight
delivery service, telegraph, facsimile transmission or hand-delivery to the
other party at that party's Principal Office.
"PRECIOUS METAL" shall mean gold having a fineness of not less than
.9995 without regard to whether such gold is alloyed or unalloyed, in billion
form, or is contained in or processed into other materials which contain
elements other than gold.
"PRINCIPAL OFFICE" shall mean:
For Consignor:
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MITSUI & CO. (U.S.A.), INC.,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Metals Division
Number: 000-000-0000
For Consignee:
Xxxxxxx Xxxxxxx Jewelers, Inc.
000 Xxxxx XxxXxxxxxx Xxxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Senior
Vice President and Treasurer
Fax Number: 000-000-0000
"PURCHASE PRICE" shall mean a price to which both parties' Duly
Authorized Officers agree and shall be stated in dollars per xxxx ounce of
Precious Metal content.
"REDELIVER" or "REDELIVERY" shall mean that Consignee deliver to
Consignor's Principal office or as otherwise directed by Consignor, at
Consignee's sole risk and expense, Precious metal of a fineness equal to the
fineness specified for that Precious Metal and of a type and quality and in a
form acceptable to Consignor.
"SECOND INSURANCE COMPANIES" shall mean the companies defined as such
in Subsection 13(m).
"SECURITY AGREEMENT" shall mean that certain Amended and Restated
Security Agreement dated as of August 20, 1993, as amended by amendments thereto
dated as of May 16, 1994, September 1, 1994, January 15, 1995, October 20, 1995
and October 23, 1998 among Consignee, as debtor, FPM as agent and secured party
and ABN, CS and the Consignor, as secured parties.
"TANGIBLE NET WORTH" shall mean, at any date as of which the amount
thereof shall be determined, the total assets of Consignee minus W the sum of
any amounts attributable to (a) goodwill, (b) intangible items such as
unamortized debt discount and expense, patents, trade and service marks and
names, customer lists, copyrights and research and development expenses except
prepaid expenses, (c) all reserves not already deducted from assets, (d) the
value of any minority interests in any subsidiaries and (e) amounts and loans
due from affiliates and/or officers of Consignee, and (ii) Total Liabilities.
"THIRD INSURANCE COMPANIES" shall mean the companies defined as such in
Subsection 13(m).
"TOTAL LIABILITIES" shall mean, at any date as of which the amount
thereof shall be determined, all obligations that should, in accordance with
generally accepted accounting
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principles consistently applied, be classified as liabilities on the balance
sheet of Consignee, including in any event A Indebtedness as shown on the
balance sheet of Consignee.
"WORKING CAPITAL" shall mean the excess of Consignee's current assets,
computed in accordance with generally accepted accounting principles
consistently applied, over the sum of Current Liabilities plus long-term
Indebtedness secured by current assets (including, but not limited to,
obligations of Consignee to the Second Insurance Companies and the Third
Insurance Companies).
2. AMOUNT OF CONSIGNMENT.
Provided (i) no Notice of election to terminate this Agreement (as
provided in Section 14 hereof) has been given by either party and (ii) no Event
of Default nor any event which with notice or lapse of time, or both, would
constitute an Event of Default has occurred hereunder, Consignor will Deliver
from time to time to Consignee upon its request Precious Metal under the terms
and conditions of this Agreement. In no event will Consignor be obligated to
deliver Precious Metal if the aggregate amount of xxxx ounces or Fair Market
Value of Precious Metal requested when added to Consigned Precious Metal exceeds
Consignee's Consignment Limit.
Consignee acknowledges and confirms that, notwithstanding any other
provision of this Agreement, upon its receipt of thirty (30) days' prior written
Notice from the Consignor to the Consignee, which may be delivered at any time
in the Consignor's sole discretion, then:
(a) Consignor shall have no further obligation to deliver Precious Metal to
Consignee; (b) any request made by Consignee thereafter for a Delivery of
Precious Metal shall be reviewed by Consignor on a case-by-case basis; (c) the
decision to make any subsequent Delivery shall be made by the Consignor
thereafter in its sole and absolute discretion and irrespective of whether
Consignee is in compliance with the requirements of this Agreement; and (d)
thereafter Consignor shall have no commitment to Consignee to make any Delivery
of Precious Metal to Consignee. The foregoing Notice requirement shall be a
right of the Consignor in addition to, and shall not be deemed to otherwise
modify or limit, the rights of the Consignor to terminate this Agreement
pursuant to the terms of Section 14 hereof.
If for any reason the number of xxxx ounces or Fair Market value (or
unpaid Purchase Price in the case of Consigned Precious Metal for which the
Purchase Price has been agreed but payment has not been received by Consignor)
of all Consigned Precious Metal at any time exceeds Consignee's Consignment
Limit, Consignee shall immediately Redeliver to Consignor, or purchase and pay
for, Precious Metal of a quantity, or with a Fair Market Value, sufficient to
eliminate such excess.
Consignor shall provide Consignee with a monthly statement of the
quantity of Consigned Precious Metal (in whatever form) held by Consignee. If
Consignee does not agree with the information reported in the statement,
Consignee should give Notice of such disagreement to Consignor within fifteen
(15) days of the date of receipt of such statement. If Consignee fails to give
Notice to Consignor within the fifteen (15) day period, Consignee shall be
deemed to have affirmed the accuracy of the information reported in the
statement and to have waived any claim Consignee may have by reason of a dispute
as to such statement. on or about
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March 30 of each year, Consignee shall provide Consignor with a written
confirmation, signed by a Duly Authorized officer of Consignee, of the quantity
of Consigned Precious Metal as of the date of such confirmation. Upon and after
the occurrence of an Event of Default, Consignee shall provide to Consignor on a
daily basis written confirmation, in form acceptable to Consignor, of the
quantity and location of all Consigned Precious Metal.
Consignee shall give Consignor at least two (2) full New York business
days' Notice of its requirements for Precious Metal. Consignor shall not be
liable to Consignee if Consignor fails to Deliver the Precious Metal by reason
of an Act of God or other catastrophe, force majeure, lack of supply, delay in
transportation, war or other hostilities, strike, lockout, epidemic, acts of
government or other public authority, requirements of any regulatory board,
agency or authority, unavoidable casualties or any other causes beyond
Consignor's control. CONSIGNOR MAKES NO WARRANTY OF MERCHANTABILITY IN RESPECT
TO PRECIOUS METAL CONSIGNED OR SOLD UNDER THIS AGREEMENT NOR OF FITNESS FOR ANY
PARTICULAR PURPOSE NOR ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, except that
Consignor does warrant to Consignee that all Precious Metal will be of the
fineness stated in Section I for that Precious Metal.
3. DELIVERY OF PRECIOUS METAL.
All Deliveries of Precious Metal by Consignor will be made to Consignee
by Consignor crediting an account of Consignee at a third party supplier of
Precious Metal or by delivery at Consignee's Principal Office or other such
location approved by Consignor, such Deliveries to be on terms and conditions
satisfactory to Consignor. At the time of Delivery or crediting, Consignor shall
provide Consignee with particulars of the total quantity of the Precious Metal
being Delivered or credited to Consignee. A Duly Authorized officer of Consignee
receiving any Delivery shall give a receipt to Consignor for the same in a form
satisfactory to Consignor. All shipping expenses (including insurance) shall be
borne by Consignee, and any such expenses paid or incurred by Consignor shall be
reimbursed by Consignee immediately in the same manner as payments under Section
5 hereof.
4. TITLE.
Title to Consigned Precious Metal shall remain with Consignor and shall
not vest in Consignee until Consignor has received payment for the Consigned
Precious Metal as required by Section 5 of this Agreement. Upon each Precious
Metal Delivery, Consignee shall bear the entire risk of loss, theft, damage or
destruction of the Consigned Precious Metal from any cause whatsoever, whether
or not insured, irrespective of where the Consigned Precious Metal is located,
and including any loss resulting from the bankruptcy or similar circumstances of
any entity holding Consigned Precious Metal for any purpose, including
fabrication or reconsignment, and Consignee agrees to hold the Consigned
Precious Metal in trust for Consignor and to indemnify and hold harmless
Consignor against any and all liabilities, damages, losses, costs, expenses,
suits, claims, demands or judgments of any nature (including, without
limitation, attorneys' fees and expenses) arising from or connected with any
loss, theft, damage or destruction of the Consigned Precious Metal. Consignee
shall execute such financing
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statements, security agreements and other documents as Consignor shall request
to protect Consignor's interest under the Uniform Commercial Code.
5. CONFIRMATION AND PAYMENTS.
During the term of this Agreement, Consignee shall have the right to
purchase any Consigned Precious Metal. To exercise the right, a Duly Authorized
officer of Consignee shall give Notice to a Duly Authorized Officer of Consignor
that Consignee wishes to purchase specified quantities of Consigned Precious
Metal. Promptly after Consignee requests and Consignor agrees to, through their
respective Duly Authorized Officers, delivery and payment terms for a specified
quantity of Consigned Precious Metal, Consignor shall, send Consignee a telecopy
(with signature) confirmation (in the form of Exhibit A attached hereto) which
shall set forth (among other things) the following items: (i) the type and
fineness of Precious Metal, (ii) the quantity of such Precious Metal and
applicable Consignment Fees, (iii) the date on which or the period within which
Delivery and settlement are to be made, and (iv) the manner of delivery. Absent
manifest error, the provisions of each such confirmation shall be binding and
shall supersede any terms hereof not consistent with such provisions. Consignee
agrees to examine each such confirmation and, in the event of error therein, to
notify Consignor of such error by telecopy (with signature) within one (1) New
York business day after Consignee's receipt thereof (Consignee being
conclusively deemed to have waived any such error in the absence of such
notification). Unless otherwise agreed not later than two (2) New York business
days prior to an agreed settlement date, Consignee shall be obligated to
Redeliver or (if a Purchase Price has been agreed upon) purchase and pay for the
specified quantity of Consigned Precious Metal plus all Consignment Fees related
thereto.
Payment of any Purchase Price and all other amounts due by Consignee to
Consignor under this Agreement (including any applicable sales or use tax) shall
be made in the following manner: (i) by bank wire to CitiBank, ABA Number
00000000 for further credit to MITSUI & CO. (U.S.A.), INC., New York, account
number 00000000,(ii) by Consignee authorizing Consignor to charge its account
with Consignor, or (iii) by other means which Consignor approves in writing. If
Consignor in its discretion grants payment terms different from the foregoing
for particular purchases, then the Purchase Price shall not be deemed to be paid
in full for the purposes of this Agreement until all payments under such terms
have been made.
Any amount not paid when due under this Agreement shall bear interest
at four percent (4-%) in excess of the Base Rate until paid in full (whether or
not this Agreement has been terminated), such rate to be a floating rate to be
redetermined daily in accordance with changes in the Base Rate. Such interest
shall be paid on demand in the manner provided above.
6 . COMMINGLING; REDELIVERY OF PRECIOUS METAL.
Consignee may use the Consigned Precious Metal only in the ordinary
course of its business as now conducted. No Consigned Precious Metal shall be
removed from Consignee's Principal office (except as provided in this Section or
Section 12(i) hereof or as may be agreed upon by the parties hereto) or sold to
any third party prior to the fixing of the Purchase Price for such Consigned
Precious Metal. Notwithstanding a contrary provision in this Section, Consignee
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shall have the right, on terms and conditions approved in writing by Consignor,
to remove scrap from its Principal Office for refining in the ordinary course of
its business, it being agreed that all such scrap Consigned-Precious Metal shall
be and remain the property of Consignor until purchased and paid for pursuant to
Section 5 hereof.
At any time prior to termination of this Agreement, any or all of the
amount of the Consigned Precious Metal (excluding any Consigned Precious Metal
as to which a Purchase Price has been agreed to under Section 5) may be
Redelivered by Consignee to-Consignor and shall be Redelivered by Consignee to
Consignor upon demand of Consignor, subject to and pursuant to the provisions of
Section 14 of this Agreement, regardless of whether Consignee is in compliance
with the terms of this Agreement.
7 . INSURANCE.
Consignee, at its sole cost and expense shall procure and maintain
property insurance to cover all locations where Consigned Precious Metal will be
located on an all risk form, including flood and earthquake and such other
insurance (including but not limited to, fidelity insurance for all employees,
including officers) with respect to the Consigned Precious Metal as may from
time to time be reasonably required by Consignor. All insurance provided for in
this Section shall be effected under valid and, enforceable policies, in such
forms and in such amounts as may from time to time be reasonably required by
Consignor, issued by financially sound and responsible insurance companies which
are admitted in the jurisdiction in which the Consigned Precious Metal is
located, or are approved under the applicable states' surplus lines insurance
laws. At least ten (10) days prior, to Consignor's first Delivery of Precious
Metal to Consignee and thereafter not less than fifteen (15) days prior to the
expiration dates of insurance policies theretofore furnished pursuant to this
Agreement, Consignee shall deliver to Consignor copies of all insurance policies
(together with Accord Form 27 (2/84) or other similar forms satisfactory to
Consignor) evidencing the insurance coverage required by Consignor. All policies
of insurance shall provide for thirty (30) days notification in advance of any
cancellation, non renewal or material change in policy conditions, including
cancellation for non-payment of premium.
All policies of insurance provided for or contemplated by this
Agreement shall name Consignor as a loss payee or an additional insured, as its
interests may appear.
All policies of insurance provided for in this Agreement shall, the
extent obtainable, contain clauses or endorsements to the effect that:
(a) No act or negligence of consignee, or anyone acting for Consignee,
which might otherwise result in a forfeiture of such insurance or any part
thereof shall in any way affect the validity or enforceability of such insurance
insofar as Consignor is concerned; and
(b) Consignor shall not be liable for any premiums or subject to any
assessments on the policies.
Losses under each policy of insurance provided for or contemplated by
this Section shall be adjusted with the insurers and/or underwriters and paid
directly to Consignor and Consignee as their interests may appear. Written
Notice of all losses shall promptly be given by Consignee
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to the Consignor. Consignee shall pay all costs and expenses of collecting or
recovering any insurance proceeds under such policies, including, but not
limited to, any and all fees of attorneys, appraisers and adjusters.
In the event of any loss described above, except for a loss during
transit of Precious Metal sent by Consignor to Consignee's Principal Office by
registered United States mail, Consignor shall have the right to demand that
Consignee, and upon such demand Consignee shall, compensate Consignor, upon
terms acceptable to Consignor, for the full amount of such loss, whether or not
recovery has been made under any applicable policy. In the event Consignor
requires such compensation, Consignee shall be entitled to manage the relevant
claims and to retain any recovery under the applicable policy.
8 . TAXES, ETC.; CERTAIN RIGHTS OF CONSIGNOR.
Consignee will promptly pay any and all taxes, assessments and
governmental charges upon the Consigned Precious Metal prior to the date of any
penalties and prior to the date any liens would attach thereto. Consignee will
not use the Consigned Precious Metal in violation of any statute or ordinance.
Consignor may examine and inspect the Consigned Precious Metal at any time,
wherever located, and Consignee agrees to keep all records relating to the
Consigned Precious Metal at its Principal office. Consignee further-agrees to
promptly give Notice to Consignor of the assertion of any lien or other
encumbrance against the Consigned Precious Metal and Consignee's response to
such assertion.
At its option, Consignor may discharge taxes, liens, security interests
or other encumbrances at any time levied or placed on the Consigned Precious
Metal (which are not being contested in good faith), may pay for insurance on
the Consigned Precious Metal and may pay for the maintenance and preservation of
the Consigned Precious Metal. Consignee agrees to reimburse Consignor on demand
for any payment made, or any expense incurred, by Consignor in connection with
the foregoing, together with interest thereon at the Base Rate plus four percent
(4.0%), computed from the date of such payment or expense until paid.
9. REPRESENTATIONS AND WARRANTIES.
The following representations and warranties shall survive the delivery
of this Agreement and the Delivery of Precious Metal by Consignor to Consignee.
Consignee represents and warrants to Consignor that:
(a) Consignee has heretofore furnished to Consignor Consignee's
Financial Statements for the period ending January 31, 1998, together with
interim Financial Statements for the period ending August 1,1998, each of which
fairly present the financial condition of Consignee as of their date, and the
results of its operations for the year or other period then ended in conformity
with generally accepted accounting principles consistently applied. To the best
of Consignee's knowledge and belief, Consignee does not have any contingent
obligations, liabilities for taxes or unusual forward or long-term commitments
except as specifically mentioned in the Financial Statements. Since January 31,
1998, there has been no material adverse change in the business,
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prospects, operations, results of operations, assets, liabilities or condition
(financial or otherwise) of Consignee;
(b) Consignee (i) is duly organized, validly existing and in good
standing under the laws of the state of its incorporation as of the date hereof,
(ii) has full power and authority to own its properties and to carry on business
as now being conducted and is qualified to do business in every jurisdiction
(including the State of New York) where such qualification is necessary except
where the failure to so qualify would not have a material adverse effect on the
business or financial condition of Consignee or the security granted by
Consignor under the Security Agreement or any other security documents, (iii)
has full power to execute, deliver and perform this Agreement, the Security
Agreement and any other documents securing the obligations of Consignee under
this Agreement and (iv) when this Agreement and any other document contemplated
hereby have been duly authorized, executed and delivered by Consignee, such
Agreement and documents will constitute the legal, valid and binding obligations
of Consignee enforceable in accordance with their terms, except to the extent
that enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application relating to or
affecting the enforcement of the rights of creditors or by equitable principles,
law; whether enforcement is sought in equity or at law;
(c) The execution, delivery and performance by Consignee of the terms
and provisions of this Agreement, the Security Agreement and any other security
documents (i) have been duly authorized by all requisite corporate action, (ii)
will not violate any provision of law, any order of any court or other agency of
government, or the corporate charter or by-laws of Consignee, (iii) will not
violate any indenture, agreement or other instrument to which it is a party, or
by which it is bound, or be in conflict with, result in breach of, or constitute
(with notice or lapse of time or both) a default under such indenture, agreement
or instrument, and (iv) except as this Agreement and any security or other
document contemplated hereby may provide, will not result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the property or assets of Consignee pursuant to any such indenture, agreement
or instrument;
(d) There is no action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency now pending or, to the
best knowledge of Consignee, threatened against or affecting Consignee, except
as listed on Schedule-A attached hereto;
(e) Consignee is not in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement or instrument to which it is a party where such default, with or
without the passage of time or the giving of notice, would have a material
adverse effect on the business or financial condition of Consignee;
(f) No financing statement or agreement is on file in any public office
pertaining to or affecting any property of Consignee, now owned or hereafter
acquired, except as listed on Schedule 3 attached hereto;
(g) Consignee has obtained all necessary approvals, permits, licenses,
authorizations and other consents required by, is not in material violation of,
and has performed all of its obligations under, all Environmental Requirements;
(h) Except as described on Schedule C attached hereto, Consignee has
not received any notice, citation, summons, directive, order or other
communication, written or oral, from, and
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Consignee has no knowledge, after reasonable inquiry, of any notice, citation,
summons, directive, order or other communication by, any Governmental Authority
or any other person concerning the presence, generation, treatment, storage,
transportation, transfer, disposal, release or other handling of any hazardous
Material within on, from, related to, or affecting any real property owned or
occupied by Consignee;
(i) To the best of Consignee's knowledge (after reasonable inquiry) and
except as described in Schedule C attached hereto, no real property owned or
occupied by Consignee has ever been used, either by Consignee, any tenant or any
predecessor in interest, to generate, treat, store, transport, transfer, dispose
of, release or otherwise handle any Hazardous Material, except in compliance
with all Environmental Requirements; and
(j) No Hazardous Material is currently located within, on, under or
about any real property owned or occupied by Consignee in a manner which
violates any Environmental Requirement, or which requires cleanup or corrective
action of any kind under any Environmental Requirement.
10. CONDITIONS OF CONSIGNMENT.
Without limiting the uncommitted nature of Consignor's obligations
under this Agreement, Delivery by Consignor of any Precious Metal under this
Agreement is further subject to the following conditions precedent:
(a) The representations and warranties set forth in Section 9 of this
Agreement shall be true and correct on and as of the date of this
Agreement and the date the Delivery is made.
(b) Consignee shall have executed and delivered to Consignor, upon the
execution of this Agreement, the following:
(i) All required security documents, including but not limited to any
and all UCC-1 financing statements executed by a Duly Authorized Officer of
Consignee as may be I required by Consignor;
(ii) A certificate of the Secretary or Assistant Secretary of Consignee
certifying to the votes of Consignee's Board of Directors authorizing the
execution, delivery and performance of this Agreement and any security documents
or other documents contemplated hereby;
(iii) A certificate of the Secretary or Assistant Secretary of
Consignee certifying the names of the officers of Consignee authorized to sign
this Agreement, any security documents and any other documents or certificates
(or any amendments thereto) to be delivered pursuant to this Agreement (or any
amendments thereto) by Consignee or any of its officers, together with the true
signatures of such officers, on which certificates Consignor may conclusively
rely until it shall receive a further certificate canceling or amending the
prior certificate and submitting the signatures of the officers named in such
further certificate;
(iv) A certificate of the Secretary of State of the state of
incorporation of Consignee, dated reasonably near the date of this Agreement,
stating that Consignee is duly incorporated and in good standing in such state
and has filed all annual reports and has paid all franchise taxes required to be
filed or paid to the date of such certificate;
(v) A favorable written opinion of Consignee's Counsel, dated the date
of this Agreement, satisfactory to Consignor and its counsel in scope and
substance, with respect to the matters set forth in subsections 9 (b), (c), (d)
and (e); and further to the effect that this Agreement and all required security
documents have been duly authorized, executed and delivered by Consignee
12
and constitute the legal, valid, binding obligations of Consignee enforceable in
accordance with their terms;
(vi) A certificate signed by Consignee's chief executive or chief
financial officer to the effect stated in (c) below; and
(vii) Such other supporting documents and legal opinions as Consignor
may reasonably request.
(c) No Event of Default nor any event which with notice or the lapse of
time, or both, would constitute an Event of Default shall have occurred.
11. AFFIRMATIVE COVENANTS.
Consignee covenants and agrees that, from the date of this Agreement
and until payment and performance in full by Consignee of its indebtedness,
obligations and liabilities to Consignor under this Agreement or any other
agreement or instrument, whether now existing or arising hereafter, Consignee
shall:
(a) Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its corporate existence, rights, licenses, permits
and franchises and comply with all laws and regulations applicable to it; at all
times maintain, preserve and protect all franchises and trade names and preserve
all the remainder of its property used or useful in the conduct of its business
and keep the same in good repair, working order and condition, and from time to
time, make, or cause to be made, all needful and proper repairs, renewals,
replacements, betterment's and improvements thereto, so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times;
(b) Comply with all applicable laws and regulations, whether now in
effect or hereafter enacted or promulgated by any Governmental Authority having
jurisdiction in the premises;
(c) Pay and discharge or cause to be paid and discharged all taxes,
assessments and governmental charges or levies imposed upon it or upon its
respective income and profits or upon any of its property, real, personal or
mixed, or upon any part thereof, before the same shall become in default, as
well as all lawful claims for labor, materials and supplies or otherwise, which,
if unpaid, might become a lien or charge upon such properties or any part
thereof; provided that Consignee shall not be required to pay and discharge or
cause to be paid and discharged any such tax, assessment, charge, levy or claim
so long as the validity thereof shall be contested in good faith by appropriate
proceedings and it shall have set aside on its books adequate reserves with
respect to any such tax, assessment, charge, levy or claim so contested, and
provided, further, that payment with respect to any such tax, assessment,
charge, levy or claim shall be made before any of its property shall be seized
and sold in satisfaction thereof;
(d) Give prompt written notice to Consignor of any proceedings
instituted against it by or in any Federal or state court or before any
commission or other regulatory body, Federal, state or local, which, if
adversely determined, would have a materially adverse effect upon its business,
operations, properties, assets, or condition, financial or otherwise or could
result in the forfeiture of assets of Consignee;
(e)Furnish to Consignor:
(i) within ninety (90) days after the end of each fiscal year,
Financial Statements showing its financial condition at the close of such fiscal
such year and containing a statement to
13
the have examined the provisions of this Agreement and that no Event of Default
nor any event which with notice or lapse of time, or both, would constitute an
Event of Default has occurred;
(ii) within forty-five (45) days after the end of the first,
second and third quarter in each such fiscal year, Financial Statements for such
period and the fiscal year to that date, subject to changes resulting from
routine year-end audit adjustments, in form satisfactory to Consignor.
Notwithstanding provisions in the definition of "Financial Statements" requiring
certification by independent public accountants, Financial Statements for this
subsection (ii) may be prepared and certified by the chief financial officer of
Consignee to the best of his or her information and belief;
(iii) within thirty-five (35) days after the end of each month
in such fiscal year, Financial Statements for such monthly period and the fiscal
year to that date, subject to changes resulting from year-end adjustments,
together with a statement of the aging of total accounts receivable as at the
end of such period, both in form satisfactory to Consignor, prepared and
certified by the Chief Financial Officer of Consignee to the best of his or her
information and belief,
(iv) Simultaneously with the furnishing of each of the
Financial Statements to be delivered pursuant to subsections(i),(ii) and (iii)
above, a narrative statement of the President or chief financial officer of
Consignee which shall comment upon and explain any material changes, both
positive and negative, reflected in such statements from prior periods, and
which shall also contain a declaration to the effect that such officer has
reviewed the terms of this Agreement and has no knowledge of any event or
condition which constitutes an Event of Default or which with notice or lapse of
time, or both, would constitute an Event of Default or, if he or she has such
knowledge, specifying the nature and period of existence of such event or
condition;
(v) within twenty (20) days after the end of each month, a
consignment base certificate of Consignee as of the last New York business day
of the preceding month(such certificate to be in the form of Exhibit B attached
hereto and certified by Consignee's Chief Financial officer or Treasurer); and
(vi)within forty-five (45) days after the end of each quarter
in each fiscal yearly a certificate of Consignee as to the status of Consignee's
compliance with its agreements with Consignor (such certificate to be in the
form of Exhibit C attached hereto and certified by Consignee's Chief Financial
Officer or Treasurer);
(f) Promptly, from time to time, furnish such other information
regarding its operations, assets, business affairs and financial condition as
Consignor may reasonably request;
(g) Permit agents or representatives of Consignor, at Consignee's
expense (including without limitation, the fees and expenses of such agents or
representatives), (i) to inspect, at any time during normal business hours and
without notice, the Consigned Precious Metal and Consignee's books and records
and to make abstracts or reproductions of such books and records, (ii) to
conduct field examinations of the Consigned Precious Metal in the possession and
control of Consignee (which examinations shall include the observance thereof by
Deloitte & Touche as to one of such examinations per year including an annual
audit review of Consignee's control system), such examinations to be done at
reasonable times and at any time in the case of an emergency (provided, however,
that Consignee only shall be required to pay for two (2) field examinations per
year unless an Event of Default has occurred and is continuing in which case
Consignor may conduct such field examinations as frequently as it may desire and
all such field examinations shall be at Consignee's expense), (iii) to observe
the taking of any physical
14
inventory of Consigned Precious Metal in Consignee's possession (Consignee shall
give Consignor not less than ten (10) days, prior Notice of the taking of each
such inventory), and (iv) at reasonable times and at any time in case of
emergency or at any time after the occurrence and continuing of an Event of
Default, to take a physical inventory of the Consigned Precious Metal in
Consignee's possession;
(h) Promptly advise Consignor of any material adverse change in its
condition, financial or otherwise, business, prospects, operations, results of
operations, assets or liabilities and of any condition or event which
constitutes, or with notice of lapse of time or both would constitute, an Event
of Default;
(i) Promptly join with Consignor from time to time in executing one or
more financing statements pursuant to the Uniform Commercial Code in form
satisfactory to Consignor, and execute such other instruments in form suitable
for recording or filing as Consignor may reasonably require and Consignee does
hereby (a) make, constitute and appoint Consignor or its agent its true and
lawful attorney-in-fact, for, in its name and on its behalf to execute and
deliver for filing any financing statement, including any continuation
statement, which Consignor or its agent deems necessary to be executed,
delivered or filed by Consignor in connection with this Agreement, and (b)
ratify and confirm all that said attorney- in- fact shall do or cause to be done
by virtue of this Section;
(j) Defend the Consigned Precious Metal against the claims and demands
of any persons (other than Consignor and those persons listed as secured parties
on Schedule 3 attached hereto) at any time claiming the same or any interest
therein;
(k) Consent, and Consignee does hereby consent to the delivery by
Consignor to any lender, lessor or consignor to Consignee of all information and
reports prepared or received by Consignor with respect to Consignee;
(1) Expect as to past violations being cured by Consignee as described
on Schedule C attached hereto, comply, and cause all tenants or other occupants
of any real property which Consignee owns or occupies to comply, in all respects
with all Environmental Requirements, and not generate, treat, store, handle,
process, transfer, transport, dispose of, release or otherwise use, and not
permit any tenant or other occupant of such property to generate, treat, store,
handle, process, transfer, transport, dispose of, release or otherwise use,
Hazardous Materials within, on, under or about such property, in a manner that
could lead to the imposition on Consignee, Consignor or any such real property
of any liability or lien of any nature whatsoever under any Environmental
Requirement;
(m) Except as to matters described on Schedule C attached hereto,
notify consignor promptly in the event of any spill or other release of any
Hazardous Material-within, on,- under or about any real property owned or
occupied by Consignee which is required to be reported to a Governmental
Authority under any Environmental Requirement, promptly forward to Consignor
copies of any notices received by Consignee relating to alleged violation of any
Environmental Requirement and (as to all matters including, without limitation,
those disclosed on Schedule C attached hereto) promptly pay when due any fine or
assessment against Consignee, Consignor or any such real property relating to
any Environmental Requirement;
(n) Upon receipt of Notice by Consignee from a third party to whom
Consignee has reconsigned consigned Precious Metal that such reconsigned
consigned Precious Metal has been sold, reconsigned or otherwise transferred or
disposed of by such third party, and within one (1) New York business day after
receipt of such notice, purchase such Consigned Precious Metal from Consignor
pursuant to terms of this Agreement;
15
(o) Own Equity Precious Metal in an amount at least equal to the sum of
(i) five percent (5%) of Consignee's entire inventory of Precious
Metal-consigned or leased to Consignee (including, without limitation, Consigned
Precious Metal) plus (ii) twenty percent (20%) of the amount of Precious Metal
physically located other than at Consignee's Principal office;
(p) Maintain at all times a Tangible Net Worth in an amount at least
equal to $40,000,000.
(q) Maintain at all times Working Capital in an amount at least equal
to $22,000,000.
(r) Maintain at all times a ratio of Total Liabilities (including,
without limitation, all obligations under this Agreement, any other precious
metal facility or similar agreements and any loan agreements) to Tangible Net
Worth of not more than 3.00:1.00, determined in accordance with generally
accepted accounting principles consistently applied;
(s) Maintain at all times a ratio of Current Liabilities plus long-term
Indebtedness secured by current assets (including, but not limited to,
obligations of Consignee to the Second Insurance Companies and the Third
Insurance Companies) to working Capital of not more than 6.30:1.00;
(t) Maintain at all times a ratio of earnings before interest, taxes,
depreciation and amortization (EBITDA) to current maturities of long-term debt
plus interest expense plus consignment fees plus non-financed capital
expenditures' for any four fiscal quarter period of not less than 1:00:1.00
(excluding from all applicable calculations the special year-end charge of
$4,500,000 taken at the end of fiscal 1998), determined in accordance with
generally accepted accounting principles consistently applied; and
(u) Maintain key-man life insurance with insurance companies
satisfactory to Consignor on the lives of Xxxxxxx Xxxxxxxxx and Xxxxxxx
Xxxxxxxxx, Xx. in the amount of not less than $5,000,000 provided, however, that
in the event that either of such individuals shall terminate his employment with
Consignee during his life, the insurance on the terminated individual's life may
be cancelled.
12. NEGATIVE COVENANTS.
Consignee covenants and agrees that, until Consignee makes payment and
performs in full its indebtedness, obligations, and liabilities under this
Agreement or under any other agreement or instrument, whether now existing or
arising hereafter, unless Consignor consents in writing, Consignee will not,
directly or indirectly:
(a) Create, incur, assume or suffer to exist any mortgage, pledge,
lien, attachment, charge or other encumbrance of any nature whatsoever on any of
the Consigned Precious Metal or any products or property now or hereafter owned
by Consignee or in which Consignee' presently has or hereafter acquires an
interest which does or will include the Consigned Precious Metal other than (i)
security interests in favor of Consignor or as listed on Schedule 3 attached
hereto and (ii) mortgages on Consignee's Mount Vernon, New York real property;
(b) Sell, lease, transfer or otherwise dispose of its properties assets, rights,
licenses and franchises to any person, except in the ordinary course of its
business, or turn over the management of, or enter into a management contract
with respect to, such properties, assets, rights, licenses and franchises;
(c) Dissolve, liquidate, consolidate with or merge with, or acquire all
or substantially all of the assets or properties of, any other corporation or
entity, or make any substantial change in its executive management;
(d) Sell, assign, encumber pledge, discount or otherwise dispose of in
any way any accounts receivable, promissory notes or trade acceptances held by
Consignee, with or without
16
recourse, except for (i) security interest as listed on Schedule B attached
hereto, (ii) collection (including endorsements) in the ordinary course of
business, and (iii) liens in favor of Consignor;
(e) Grant any security interest or ownership rights to any customer of
Consignee with respect to any of the Consigned Precious Metal while at
Consignee's premises whether or not such customers have prepaid orders for the
Consigned Precious Metal or any products or property which does or will include
the Consigned Precious Metal;
(f) Guarantee, endorse or otherwise in any way become or be responsible
for obligations of any other person, except endorsements of negotiable
instruments for collection in the ordinary course of business;
(g) Obtain Precious Metal on consignment or loan from any source other
than Consignor or those persons listed as secured parties on Schedule 3 attached
hereto;
(h) Permit the aggregate amount of Consigned Precious Metal plus
Precious Metal consigned to Consignee by other consignors to exceed 275,000 xxxx
ounces of fine gold; or
(i) Permit the amount of Consignee's Precious Metal Inventory
physically located other than at Consignee's Principal office to exceed at any
time (i) in the aggregate, Consignee's Equity Precious Metal plus ten percent
(10%) of Precious Metal consigned from the Consignor, FPM, ABN and CS to the
Consignee, (ii) 7,500 xxxx ounces at, or in transit to or from, any one
location, or (iii) 4,000 xxxx ounces outside the United States.
13. EVENTS OF DEFAULT, RIGHTS AND REMEDIES OF CONSIGNOR UPON DEFAULT.
In each case of happening of any of the following events (each of which
is herein sometimes called an "Event of Default"):
(a) Any representation or warranty made herein, or in any report,
certificate, financial statement or other instrument furnished in connection
with this Agreement, or the Delivery of Precious Metal by Consignor hereunder,
shall prove to be false or misleading in any material respect;
(b) Consignee fails to make punctual payment or perform any obligation
required by the provisions of Section 2, 5, 6 or 14 of this Agreement;
(c) Consignee fails to pay any amount due hereunder or any other
indebtedness, obligation or liability of Consignee to Consignor when the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment or by acceleration or otherwise;
(d) Consignee fails to observe or perform any covenant, condition or
agreement required by the terms of Sections 7, 8, 11(g), 1l(n), 11(o), 11(p),
11(q), 11(r), 11(s), 11(t), 12(a), 12(c), 12(e), 12(f), 12(g), 12(h) or 12(i) of
this Agreement;
(e) Consignee fails to observe or perform any other covenant, condition
or agreement required by the terms of this Agreement and such failure shall
continue unremedied for ten (10) days;
(f) Default with respect to any evidence of indebtedness, obligations
or liabilities of Consignee (including, but not limited to, consignment
agreements and any other agreements between Consignee and any parent, affiliate
or subsidiary of Consignor), if the effect of such default is to accelerate the
maturity of such indebtedness, obligation or liability or to permit the holder
thereof (or any material portion thereof) to cause such indebtedness to become
due prior to the stated maturity thereof, or if any indebtedness of Consignee is
not paid, when due and payable, whether at the due date thereof or by
acceleration or otherwise;
17
(g) Consignee shall (i) apply for, consent to, or suffer the
appointment of a custodian, receiver, trustee or liquidator of it or any of its
property, (ii) admit in writing its inability to pay its debts as they mature,
(iii) make a general assignment for the benefit of creditors, (iv) file, or have
filed against it, a petition for relief under Title 11 of the United States
Code, or (v) file, or have filed against it, a petition in bankruptcy, or a
petition or an answer seeking reorganization or an arrangement with creditors or
to take advantage of any bankruptcy, reorganization, insolvency, readjustment of
debt, dissolution or liquidation law or statute in any jurisdiction within or
outside of the United States, or an answer admitting the material allegations of
a petition filed against it in any proceeding under any such law, or corporate
action shall be taken for the purpose of effecting any of the foregoing, and
which, in the case of any involuntary proceeding under (i), (iii), (iv) or (v)
is not dismissed or discharged within sixty (60) days of its commencement.
(h) An order, judgment or decree shall be entered, without the
application, approval or consent of Consignee by any court of competent
jurisdiction, approving a petition seeking reorganization of Consignee or
appointing a custodian, receiver, trustee or liquidator of Consignee or of all
or a substantial part of the assets of Consignee;
(i) occurrence of any loss, theft, or destruction of or damage to the
Consigned Precious Metal or any products or property which includes Consigned
Precious Metal;
(j) Discontinuance of the operation of Consignee's business for any
reason;
(k) For any reason the present chief financial officer shall cease to
be or function as the chief financial officer of Consignee and a successor is
not appointed within sixty (60) days of such cessation;
(1) For any reason the present President shall cease to be or function
as President and chief executive officer of Consignee and a successor is not
appointed within sixty (60) days of such cessation;
(m) Occurrence of an event of default under any credit, loan or
consignment agreement or any promissory note to which Consignee is a party, as
amended or modified from time to time, including, without limitation, (i) that
certain Note Purchase Agreement dated May 1, 1992 between Consignee and Northern
Life Insurance Company, Royal Maccabees, Life Insurance Company, The North
Atlantic Life Insurance Company of America, Farm Bureau Life Insurance Company
of Michigan, FB Annuity Company and Farm Bureau Mutual Insurance Company of
Michigan (collectively, the "Second Insurance Companies"), (ii) that certain
Note Purchase Agreement dated as of February 15,1995 between Consignee and
Northwestern National Life Insurance Company and Northern Life Insurance Company
(collectively, the "Third Insurance Companies"), (iii) those certain Consignment
Agreements or Amended and Restated Consignment Agreements dated as of August
20,1993 between Consignee and each of ABN, and FPM, respectively, as the same
have been, amended from time to time (iv) that certain Consignment Agreement
dated as of January 31,1994 between CS and Consignee, as the same has been
amended from time to time and (v) any promissory note (including, without
limitation, that certain promissory note of Debtor in favor of The Chase
Manhattan Bank dated July 31,1998) and/or agreements in favor of The Chase
Manhattan Bank as successor in interest by merger to Chemical Bank.
(n) occurrence of any Event of Default as defined in the Security
Agreement;
(o) occurrence of any attachment on any Precious Metal owned by
consignee or on any Consigned Precious Metal; or
18
(p) Determination by Consignor in good faith that Consignee has
suffered a material adverse change in its business or financial condition.
Upon the occurrence of any such Event of Default and at any time thereafter
during the continuance of such Event of Default, Consignor may, by Notice to
Consignee, terminate this Agreement as provided in Section 14 and declare all
liabilities, indebtedness or obligations of Consignee to be due and payable
-PROVIDED, however, that the foregoing listing of Events of Default shall not be
deemed to limit Consignor's right at any time, even if an Event of Default has
not occurred, to demand, upon thirty (30) days' prior written notice to
Consignee, (x) that Consignee Redeliver Consigned Precious Metal and (y) payment
of all liabilities, indebtedness or obligations of Consignee to Consignor,
subject to and pursuant to the provisions of SECTION 14 of this Agreement. Upon
Consignor's declaration and the expiration of such thirty (30) day notice
period, such liabilities, indebtedness and obligations shall become immediately
due and payable, both as to principal and/or interest, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived,
anything contained herein or in any other evidence of such indebtedness,
obligations and liabilities to the contrary notwithstanding. Notwithstanding the
foregoing, in the case of an Event of Default under Section 13(g) (and assuming
that the thirty (30) day period provided for in Section 13(g), if applicable,
has expired) or under Section 13(h) of this Agreement, this Agreement shall
terminate immediately and automatically upon the occurrence of such Event of
Default, and all of the liabilities, indebtedness or obligations of Consignee
shall be immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by Consignee,
anything contained herein or in any other evidence of such indebtedness,
obligations and liabilities to the contrary notwithstanding. Consignor may
enforce payment of the same and exercise any or all of the rights, powers and
remedies possessed by Consignor, under this Agreement or under any agreement
securing the obligations of Consignee hereunder, whether afforded by the Uniform
Commercial Code or otherwise afforded by law or in equity. The remedies provided
for herein are cumulative and are not exclusive of any other remedies provided
by law. Consignee agrees to pay. Consignor's reasonable attorney's fees and
legal expenses incurred in enforcing Consignor's rights, powers and remedies
under this Agreement, the Security Agreement and any agreement securing the
liabilities, indebtedness or obligations of Consignee to Consignor, whether such
enforcement is directly by Consignor or through its agent.
Without limiting the foregoing, upon the occurrence of any Event of
Default and at any time thereafter during the continuance thereof, Consignor
shall have the right to enter and/or remain upon the premises of Consignee or
any other place or places where any Consigned Precious Metal is located and kept
(without any obligation to pay rent to Consignee or others) and; (i) remove
Consigned Precious Metal or inventory containing the same therefrom to the
premises of Consignor or any agent of Consignor, for such time as Consignor may
desire, in order to maintain, collect, sell and/or liquidate said Consigned
Precious Metal or (ii) use such premises, together with equipment, materials,
supplies, books and records of Consignee, to maintain possession, refine and
prepare said Consigned Precious Metal for sale, liquidation, or collection.
Consignor may require Consignee to assemble the Consigned Precious Metal and
make it available to Consignor at a place or places to be designated by
Consignor which is reasonably convenient for the parties. Consignor may at any
time and from time to time employ and maintain in any premises of Consignee or
any place where any of the Consigned Precious
19
Metal is located a custodian selected by Consignor who shall have full authority
to do all acts necessary to protect Consignor's interests and to report to
Consignor thereon. Consignee agrees to cooperate with any such custodian and to
do whatever Consignor may reasonably request to preserve the Consigned Precious
Metal.. All reasonable expenses incurred by reason of the employment of the
custodian shall be paid by Consignee pursuant to the last sentence in Section 8
hereof.
14 . TERMINATION.
This Agreement shall terminate, at the election of the Consignor, upon
the occurrence of any Event of Default. Unless otherwise terminated in
accordance with the terms hereof, this Agreement shall continue until either
Consignor or Consignee elects to terminate this Agreement by not less than
thirty (30) days, prior Notice to the other party. Unless otherwise mutually
agreed in writing by Consignor and Consignee, no Delivery of Precious Metal to
Consignee will be made following the giving of Notice by either Consignor or
Consignee of its election to terminate this Agreement. Termination of this
Agreement shall not affect Consignee's duty to pay and perform in full its
obligations to Consignor hereunder. On the effective date of the termination of
this Agreement, Consignee shall either Redeliver or purchase and pay for all
Consigned Precious Metal which Consignor has previously Delivered and which has
not been paid for or Redelivered, the price to be based on Consignor's spot
market price on the date of such purchase and shall reimburse Consignor for any
and all outstanding fees, costs, expenses and other obligations of Consignee to
Consignor.
15. INDEMNITY.
Consignee will defend, indemnify and hold harmless Consignor, its
employees, agents, officers, and directors, from and against any and all claims,
demands, penalties, causes of action, fines, liabilities, settlements, damages,
costs or expenses of whatever nature, known or unknown, foreseen or otherwise
(including, without limitation, counsel and consultant fees and expenses,, court
costs, and litigation expenses) arising out of, or in any way related to, (i)
any breach by Consignee of any of the provisions of this Agreement, (ii) the
presence, disposal, spillage, discharge, emission, leakage, release, or
threatened release of any Hazardous Material within, on, under, about, from or
affecting any real property owned or occupied by Consignee, including, without
limitation, any damage or injury resulting from any such Hazardous Material to
or affecting such property or the soil, water, air, vegetation, buildings,
personal property, persons or animals located on such property or on any other
property or otherwise, (iii) any personal injury (including wrongful death) or
property damage (real or personal) arising out of or related to any such
Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached,
or order or directive of or by any Governmental Authority relating to such
Hazardous Material or (v) any violation of any Environmental Requirement.
16. MISCELLANEOUS.
(a) This Agreement and all covenants, agreements, representations and
warranties made herein and in the certificates delivered pursuant hereto, shall
survive the execution and delivery to Consignor of this Agreement, and shall
continue in full force and effect so long as this
20
Agreement and any other indebtedness of Consignee to Consignor is outstanding
and unpaid. In this Agreement, reference to a party shall be deemed to include
the successors and permitted assigns of such party, and all covenants and
agreements in this Agreement by or an behalf of Consignee shall inure to the
benefit of the successors and assigns of Consignor.
(b) Consignee will reimburse Consignor upon demand for all
out-of-pocket costs, charges and expenses of Consignor (including costs of
searches of public records and filing and recording documents with public
offices and reasonable fees and disbursements of counsel to Consignor) in
connection with (I) the preparation, execution and delivery of this Agreement
and any Security document or other agreement contemplated hereby, (ii) any
amendments, modifications, consents or waivers in respect hereof and (iii) any
enforcement hereof.
(c) This Agreement shall be construed in accordance with and governed
by the laws of the State of New York.
(d) No modification or waiver of any provision of this Agreement, or of
any security document or other document contemplated hereby, nor consent to any
departure of Consignee from a provision, shall be effective unless the same
shall be in writing. A written consent shall be effective only in the specific
instance, and for the purpose, for which given. No notice to, or demand on
Consignee, in any one case, shall entitle Consignee to any other or future
notice or demand in the same, similar or other circumstances.
(e) Neither any failure nor any delay on the part of Consignor in
exercising any right, power or privilege hereunder, or in any other instrument
given as security therefor, shall operate as a waiver thereof , nor shall a
single or partial exercise thereof preclude any other or future exercise, or the
exercise of any other right, power or privilege.
(f) Consignee shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of Consignor.
(g) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
(h) Any Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose. As used in this Agreement, the term "person" shall
include any individual, corporation, partnership, joint venture, trust or
unincorporated organization, or a government or any agency or political
subdivision thereof.
(i) Consignee hereby submits to the jurisdiction of the courts of the
State of New York and the United States District Court for the Southern District
of New York, as well as to the jurisdiction of all courts to which an appeal may
be taken or other review sought from the aforesaid courts, for the purpose of
any suit, action or other proceeding arising out of any of Consignee's
obligations under or with respect to this Agreement, and expressly waives any
and all objections it may have as to value in any of such courts. CONSIGNEE AND
CONSIGNOR EACH WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER OF THEM AGAINST THE OTHER ON ANY MATTER WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THIS AGREEMENT, ANY OTHER DOCUMENTS EXECUTED IN
CONNECTION HEREWITH OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN).
No party to this Agreement, including but not limited to any assignee or
successor or a party, shall seek a
21
jury trial in any lawsuit, proceeding, counterclaim, or any other litigation
procedure based upon, or arising out of, this Agreement, any related
instruments, any collateral or the dealings or the relationship between the
parties. No party will seek to consolidate any such action, in which a jury
trial has been waived, with any other action in which a jury trial cannot be or
has not been waived. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED
BY THE PARTIES HERETO, AND THESE PROVISIONS-SHALL BE SUBJECT TO NO EXCEPTIONS -
NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY
THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
IN WITNESS WHEREOF, Consignor and Consignee have caused this Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
MITSUI & CO. (U.S.A.), INC.
As Consignor
By: /s/ Yutaka Taka
--------------------------
Name: YUTAKA TAKA
Title: Senior Vice President
METAL DIVISION
XXXXXXX XXXXXXX JEWELERS, INC.
As Consignee
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: SVP & Treasurer
