FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND MODIFICATION TO CREDIT DOCUMENTS
This First Amendment to Amended and Restated Credit Agreement and
Modification to Credit Documents (this "Amendment"), dated as of September 30,
2002 (the "Amendment Date"), is among the financial institutions listed on the
signature pages hereof, Bank of America, N. A. as administrative agent for the
Lenders (the "Agent"), The CIT Group/Business Credit, Inc., as syndication
agent, Xxxxxxxx'x Inc., a Delaware corporation ("Xxxxxxxx'x"), each of its
Subsidiaries party to the original "Agreement" referred to below (collectively
with Xxxxxxxx'x, the "Original Credit Parties"), Xxxxxxxx'x Beneficiary Inc., a
Delaware corporation ("FBI"), and Xxxxxxxx'x Investments LLC, a Georgia limited
liability company ("Investments" and together with FBI, the "New Credit
Parties").
RECITALS:
A. The Original Credit Parties, the Lenders, and the Agent are parties to
that certain Amended and Restated Credit Agreement dated as of August 28, 2002
(as amended, restated, or otherwise modified from time to time, the
"Agreement").
B. The Original Credit Parties have advised the Agent that ownership of
Stores is being reorganized as described in Exhibit A hereto (the
"Reorganization").
C. The Original Credit Parties have requested that the Lenders amend the
Agreement in certain respects as more specifically provided hereinbelow to
reflect and permit the Reorganization.
D. Subject to the satisfaction of the conditions set forth herein, the
Lenders party hereto are willing to amend the Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions. Unless otherwise defined in this Amendment,
capitalized terms used in this Amendment shall have the same meanings as are
given to such terms in the Agreement (as amended by this Amendment) and the
Security Agreements.
ARTICLE 2
AMENDMENTS
Section 2.1 Amendment to Section 1.1 of the Agreement. Effective as of the
Amendment Date, the following definitions contained in Section 1.1 of the
Agreement are hereby amended and restated to read in their entirety as follows:
"Guarantors" means, Xxxxxxxx'x, FMC, FFP, FHC, Stores, FCJVH,
FCJVLP, FBI, Investments, and each other Person which may hereafter become
a party to a Guaranty Agreement reasonably acceptable to the Agent,
together with their successors and "Guarantor" means any one of such
Persons.
"Permitted Acquisition" means (a) the Reorganization, or (b) any
Acquisition that satisfies each of the following requirements:
(i) such Acquisition is not a hostile or contested
Acquisition;
(ii) the business acquired in connection with such Acquisition
is (A) located in the United States, (B) organized under
Requirements of Law of the United States, and (C) not engaged,
directly or indirectly, in any line of business other than the
businesses in which the Borrowers are engaged on the Closing Date
and any business activities that are substantially similar, related,
or incidental thereto;
(iii) both immediately before and immediately after giving
effect to such Acquisition and the Extensions of Credit (if any)
requested to be made in connection therewith, each of the
representations and warranties in the Credit Documents is true and
correct (except (A) any such representation or warranty which
relates to a specified prior date, and (B) to the extent the Agent
and the Lenders have been notified in writing by the Credit Parties
that any representation or warranty is not correct and the Required
Lenders have explicitly waived in writing compliance with such
representation or warranty) and no Default or Event of Default
exists or will exist or would result therefrom;
(iv)(A) as soon as available, but not less than thirty (30)
days prior to such Acquisition, the Borrowers have given the Agent
(l) notice of such Acquisition (2) a copy of all business and
financial information reasonably requested by the Agent including
financial statements, statements of cash flow, and projections of
availability (i.e. Borrowing Base minus the Obligations) prepared on
a Pro Forma Basis for the twelve (12) Fiscal Periods ended as of the
most recent Fiscal Period end and for each of the subsequent
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twelve (12) Fiscal Periods, such financial information to be
reasonably satisfactory to the Agent, (3) if the Installment
Contracts and inventory acquired in connection with such Acquisition
are proposed to be included in the determination of the Borrowing
Base, the Agent shall have conducted a field audit and appraisal of
the business and property of the acquired entity, including its
Installment Contracts and inventory, and (4) a certificate of an
Executive Officer of Xxxxxxxx'x certifying (and showing the
calculations therefor in reasonable detail) that the Credit Parties
will be in compliance with each of the covenants set forth in
Section 6.11 on a Pro Forma Basis for the twelve (12) Fiscal Periods
ended as of the most recent Fiscal Period end before and after
giving effect to such Acquisition and (B) as soon as available, the
information provided to the board of directors of Xxxxxxxx'x with
respect to such Acquisition;
(v) the aggregate consideration in connection with any such
Acquisition (whether paid in cash, constituting assumed or acquired
Indebtedness, or otherwise, but excluding any Capital Stock of
Xxxxxxxx'x) does not exceed $7,000,000 and the aggregate
consideration paid in connection with all such Acquisitions (whether
paid in cash, constituting assumed or acquired Indebtedness, or
otherwise, but excluding any Capital Stock of Xxxxxxxx'x) does not
exceed $14,000,000 during the term of this Agreement;
(vi) if such Acquisition is an Acquisition of the Capital
Stock of a Person, the Acquisition is structured so that the
acquired Person shall become a wholly-owned Subsidiary of a Borrower
and (if applicable), subject to Section 10.20, a Credit Party
pursuant to the terms of this Agreement;
(vii) no Credit Party shall, as a result of or in connection
with any such Acquisition, assume or incur any direct or contingent
liabilities (whether relating to environmental, tax, litigation, or
other matters) that could reasonably be expected, as of the date of
such Acquisition, to result in the existence or occurrence of a
Material Adverse Effect;
(viii) in connection with an Acquisition of the Capital Stock
of any Person, all Liens, other than any Liens which constitute
Permitted Liens hereunder, on Property of such Person shall be
terminated, and in connection with an Acquisition of the assets of
any Person, all Liens on such assets, other than Liens which
constitute Permitted Liens hereunder, shall be terminated; and
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(ix) Xxxxxxxx'x shall certify (and provide the Agent and the
Lenders with a calculation prepared on a Pro Forma Basis in form and
substance reasonably satisfactory to the Agent) to the Agent and the
Lenders that, immediately before and immediately after giving effect
to completion of such Acquisition, the Excess Availability is not
less than the Minimum Excess Availability Requirement.
"Permitted Distributions" means (a) any Restricted Payment by a
Credit Party to a Borrower or by a Credit Party that is not a Borrower to
another Credit Party that is not a Borrower, (b) cash dividends payable by
Xxxxxxxx'x to the holders of its Capital Stock; provided that all such
dividends under this clause b shall not exceed $2,500,000 during any
Fiscal Year and no such dividends shall be paid if before or after making
such payment any Default or Event of Default exists or would exist,
including any Default or Event of Default under Section 6.11 on a Pro
Forma Basis determined for the preceding twelve (12) Fiscal Periods after
giving effect thereto, (c) Permitted Stock Repurchases, (d) partnership
distributions of not more than 99% of Stores' taxable income from Stores
to Investments provided that the proceeds thereof are immediately
distributed by Investments to FBI, immediately distributed by FBI to FHC,
immediately distributed by FHC to FMC and immediately distributed by FMC
to Xxxxxxxx'x and (e) partnership distributions of not more than 99% of
FFP's taxable income from FFP to FMC provided that the proceeds thereof
are immediately distributed by FMC to Xxxxxxxx'x; provided, further, with
respect to clauses (d) and (e) preceding, no distribution of taxable
income may be made more than three years after such taxable income was
earned by Stores or FFP, respectively.
"Permitted Investments" means Investments which are (a) cash and
Cash Equivalents, (b) accounts receivable created, acquired, or made in
the ordinary course of business and payable or dischargeable in accordance
with customary trade terms, (c) Investments consisting of Capital Stock,
obligations, securities, or other Property received in settlement of
accounts receivable (created in the ordinary course of business) from
bankrupt obligors, (d) Investments existing as of the Closing Date and set
forth in Schedule 1.1B, (e) advances or loans to directors, officers, and
employees in the ordinary course of business for reasonable business
expenses that do not exceed $1,000,000 in the aggregate at any one time
outstanding, (f) Investments by members of the Consolidated Group in their
Subsidiaries and Affiliates existing on the Closing Date; provided that
such Investments in Crescent shall not at anytime exceed $95,000,000 in
the aggregate as follows: (i) an initial investment of $85,000,000 on the
Closing Date; (ii) an additional Investment not in excess of $5,000,000 in
the aggregate at anytime after the Closing Date if the Excess Availability
immediately after giving effect to the making of such Investment is equal
to or greater than $10,000,000;
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provided that if such additional Investment is made in December the Excess
Availability immediately after giving effect to the making of such
Investment shall be equal to or greater than $35,000,000; and (iii) an
additional Investment not in excess of $5,000,000 in the aggregate if the
Excess Availability immediately after giving effect to the making of such
Investment is equal to or greater than the Minimum Excess Availability
Requirement, (g) Investments by members of the Consolidated Group in and
to Domestic Credit Parties, (h) Investments which constitute Permitted
Acquisitions, (i) Investments in Persons that do not become Subsidiaries
after giving effect to such Investments, representing the formation of
strategic alliances or other similar arrangements in an amount not to
exceed $6,000,000 in the aggregate at any time outstanding; provided that
at the time of making any such Investment, Excess Availability is equal to
or in excess of the Minimum Excess Availability Requirement immediately
after giving effect to such Investment, and no Default or Event of Default
exists, (j) the Reorganization and (k) other Investments of a nature not
contemplated in clauses a through (j) preceding in an amount not to exceed
$3,000,000 in the aggregate at any time outstanding.
"Subsidiary" means, with respect to any Person (the "subject
Person"), (a) any corporation, partnership, association, limited liability
company, joint venture, trust or other business entity of which more than
fifty percent (50.0%) of the voting Capital Stock or other Capital Stock,
is owned or controlled directly or indirectly by the subject Person, or
one or more of the Subsidiaries of the subject person, or a combination
thereof; provided that Crescent shall not be a Subsidiary of any Credit
Party unless such Credit Party (or the Credit Parties collectively)
beneficially owns or controls a majority of the Capital Stock of Crescent
having ordinary voting power (other than by reason of the happening of a
contingency) for the election of the members of the board of directors of
Crescent. Unless the context otherwise clearly requires, "Subsidiary" or
"Subsidiaries" shall refer to a Subsidiary or Subsidiaries of Xxxxxxxx'x.
Section 2.2 Additions to Section 1.1 of the Agreement. Effective as of the
Amendment Date, the following definitions shall be added to Section 1.1 of the
Agreement in alphabetical order:
"FBI" means Xxxxxxxx'x Beneficiary Inc., a Delaware corporation, and
its successors and assigns.
"First Amendment" means that certain First Amendment to Amended and
Restated Credit Agreement and Modification to Credit Documents, dated as
of September 30, 2002, among the Borrowers, the other Credit Parties, the
Agent, and the Lenders.
"Investments" means Xxxxxxxx'x Investments LLC, a Georgia limited
liability company, and its successors and assigns.
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"Reorganization" has the meaning set forth in the Recitals and
Exhibit A to the First Amendment.
"Subordination Agreement" means that certain Subordination Agreement
dated as of August 28, 2002 among Xxxxxxxx'x, the Agent, Crescent, and
Crescent Jewelers, Inc., a Delaware corporation, as the same may be
amended, restated or otherwise modified from time to time.
Section 2.3 Addition of Section 6.18. Effective as of the Amendment Date,
Article 6 of the Agreement is amended to include a new Section 6.18 to read in
its entirety as follows:
Section 6.18 Distributions among Borrower and Guarantors. The Credit
Parties and Investments will cause any proceeds of dividends, redemptions,
collections, interest payments or proceeds of the sale or other
disposition of the Series A Preferred Stock referred to in the
Subordination Agreement, the Junior Notes referred to in the Subordination
Agreement and the $1,651,393 Note delivered to Investments as part of the
Reorganization and all partnership distributions from Stores to
Investments to be distributed or otherwise contributed by Investments
immediately to FBI, by FBI immediately to FHC, by FHC immediately to FMC
and by FMC immediately to Xxxxxxxx'x; provided, however, that this
requirement shall not permit any payment or other action prohibited by the
Subordination Agreement, Section 7.7 of this Agreement or otherwise. The
Credit Parties and FMC will cause all partnership distributions from FFP
to FMC to be distributed or otherwise contributed by FMC immediately to
Xxxxxxxx'x, provided, however, that this requirement shall not permit any
payment or other action prohibited by Section 7.7 of this Agreement or
otherwise.
Section 2.4 Amendment to Section 7.10. Effective as of the Amendment Date,
Section 7.10 of the Agreement is amended in its entirety to read as follows:
Section 7.10 Fiscal Year; Organizational Documents. Without the
prior written consent of the Required Lenders (which consent shall not be
unreasonably withheld), the Credit Parties will not permit any member of
the Consolidated Group to amend, modify, or change (a) the last day of its
Fiscal Year or (b) its articles of incorporation (or corporate charter,
trust agreement, or other similar organizational document) or bylaws (or
other similar document) other than in a manner which does not adversely
affect the rights of the Agent or the Lenders.
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ARTICLE 3
MODIFICATIONS TO CREDIT DOCUMENTS
Section 3.1 Amendments to Postclosing Agreement. Effective as of the
Amendment Date, the Postclosing Agreement among the parties to the original
Agreement dated the date thereof (the "Postclosing Agreement") is amended as
follows:
(a) The words "within thirty (30) days of the Agreement Date", where
they appear in clause (b) of paragraph 1 of the Postclosing Agreement, are
hereby amended to read "within fifty-eight (58) days of the Agreement
Date", and
(b) The words "within thirty (30) days of the Agreement Date", where
they appear in clause (c) of paragraph 1 of the Postclosing Agreement, are
hereby amended to read "within forty five (45) days of the Agreement
Date."
Section 3.2 Waiver. The Credit Parties have advised the Agent and the
Lenders that an Event of Default has occurred as a result of the Credit Parties'
failure to deliver, on or before September 27, 2002, the tax status certificates
and terminations, releases, or UCC amendments prescribed by clauses (b) and (c)
of paragraph 1 of the Postclosing Agreement (such instances of noncompliance
hereinafter being called the "Specified Defaults"). The Credit Parties have
requested that the Agent and the Lenders waive the Specified Defaults. The Agent
and each of the Lenders, subject to Section 10.6 of the Agreement and to the
satisfaction of the conditions precedent set forth in Article 5 of this
Amendment, waives the Specified Defaults; provided, that such waiver is
expressly limited as provided herein, and provided further, that in order to
induce the Agent and the Lenders to agree to the foregoing waiver, each of the
Credit Parties agrees that the waiver granted under this Section 3.2 shall not
constitute or be deemed a waiver of any other Event of Default, now existing or
hereafter arising, or a waiver of any rights or remedies arising as a result of
any such other Event of Default. Without limiting the foregoing, any failure to
comply with the requirements of clauses (b) and (c) of paragraph 1 of the
Postclosing Agreement other than as specified in the first sentence of this
Section 3.2 shall constitute an Event of Default.
ARTICLE 4
JOINDER
Section 4.1 Joinder of the New Credit Parties. The Original Credit Parties
have requested that each of the New Credit Parties become a "Guarantor" pursuant
to Sections 6.12 and 10.20 of the Agreement. Each of the New Credit Parties
hereby assumes all the obligations of a "Guarantor" under the Guaranty Agreement
executed by the Subsidiaries of Xxxxxxxx'x (the "Subsidiary Guaranty Agreement")
and the other Credit Documents and agrees that it is a "Guarantor" and bound as
a "Guarantor" under the terms of the Subsidiary Guaranty Agreement and the other
Credit Documents as if it had been an original signatory thereto. In accordance
with the foregoing and for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, each of the New Credit Parties irrevocably and
unconditionally guarantees to the Agent and the
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Lenders the full and prompt payment and performance of the Guaranteed
Obligations (as defined in the Subsidiary Guaranty Agreement) upon the terms and
conditions set forth in the Subsidiary Guaranty Agreement. Each of the New
Credit Parties hereby assumes all the obligations of a "Grantor" under the
Security Agreement executed by the Subsidiaries of Xxxxxxxx'x (the "Subsidiary
Security Agreement") and agrees that it is a "Grantor" and bound as a "Grantor"
under the terms of the Subsidiary Security Agreement and the other Credit
Documents as if it had been an original signatory thereto. In accordance with
the foregoing and for valuable consideration, as security for all Total
Obligations each of the New Credit Parties hereby assigns and grants to the
Agent, for the benefit of the Agent and the Lenders, a continuing security
interest in, lien on, assignment of, and right of set-off against, all of its
property and assets, whether now owned or existing or hereafter acquired or
arising, regardless of where located, including without limitation the following
Collateral (as defined in the Subsidiary Security Agreement): (a) all Accounts,
including any credit enhancement therefor; (b) all money, cash, Cash
Equivalents, securities, and other property of any kind held directly or
indirectly by the Agent or any Lender, (c) all Chattel Paper; (d) all Contracts;
(c) all Deposit Accounts, credits, and balances with and other claims against
the Agent or any Lender or any of their Affiliates or any other financial
institution with which any Grantor maintains deposits, including any Payment
Accounts; (f) all Documents; (g) all Equipment; (h) all Fixtures; (i) all
General Intangibles (including, without limitation, Payment Intangibles,
Intercompany Accounts, and Software); (j) all Instruments; (k) all Inventory;
(l) all Investment Property; provided that with respect to any Voting Capital
Stock of any Foreign Subsidiary, the amount of such Voting Capital Stock of such
Foreign Subsidiary included in the Collateral shall be limited to the maximum
amount thereof that is less than or equal to 65% of the issued and outstanding
Voting Capital Stock of such Foreign Subsidiary; (m) all Supporting Obligations
and Letter-of-Credit Rights; (n) all Goods; (o) all Commercial Tort Claims from
time to time disclosed to the Agent pursuant to Sections 2.4(j) and 2.4(m) of
the Subsidiary Security Agreement, (p) all books, records, ledger cards, files,
correspondence, computer programs, tapes, disks, and related data processing
software (owned by such Grantor or in which it has an interest) that at any time
evidence or contain information relating to any Collateral or otherwise
necessary or helpful in the collection thereof or realization thereupon; (q) all
accessions to, substitutions for, and replacements and products of any of the
foregoing; (r) all Real Estate covered by each Mortgage; (s) all equity
interests in Subsidiaries pledged to the Agent; (t) all other property of each
Grantor; and (u) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing, including, but not limited to, proceeds of any
insurance policies, claims against third parties, and condemnation or
requisition payments with respect to all or any of the foregoing. Each of the
New Credit Parties hereby confirms that the representations and warranties set
forth in the Agreement and the other Credit Documents applicable to such New
Credit Party and its Collateral are true and correct after giving effect to such
amendment to the Schedules. In furtherance of its obligations under the
Agreement and the other Credit Documents, each of the New Credit Parties (a)
irrevocably authorizes the Agent at any time and from time to time to file in
any filing office any financing statements and amendments thereto that (i)
indicate the Collateral (A) as "all assets" or "all personal property" of such
New Credit Party, or words of similar effect, regardless of whether any
particular asset comprised in the Collateral falls
8
within the scope of Article 9 of the UCC, or (B) as being of an equal or lesser
scope or with greater detail and (ii) contain any other information required by
Part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance
of any financing statement or amendment, including (A) whether such New Credit
Party is an organization, the type of organization, any organization
identification number issued to such New Credit Party, and any employer or
taxpayer identification number issued to such New Credit Party, and (B) in the
case of a financing statement filed as fixture filing or indicating any
Collateral as as-extracted collateral or timber to be cut, a sufficient
description of real property to which such Collateral relates and (b) agrees to
execute and deliver such other documentation as the Agent may require to
evidence, protect, and perfect the Liens created by the Agreement and the other
Credit Documents as modified hereby.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Conditions Precedent. The effectiveness of Articles 2, 3 and 4
of this Amendment is subject to the satisfaction of each of the following
conditions precedent:
(a) The Agent shall have received all of the following, each dated
the Amendment Date (unless otherwise indicated), in form and substance
satisfactory to the Agent:
(i) Amendment Documents. This Amendment and any other
instrument, document, or certificate reasonably required by the
Agent to be executed or delivered by the Credit Parties in
connection with this Amendment, in each case duly executed
(collectively, the "Amendment Documents");
(ii) Receipt of Financing Statements and Corporate Certificate
of each Credit Party. Executed, to the extent applicable, originals
of (A) UCC financing statements with respect to each of the New
Credit Party's Collateral in which a Lien is granted to the Agent
and take all other steps reasonably required by the Agent to
evidence, perfect, maintain, protect, and enforce the Agent's Liens
in all such property and (B) a certificate duly executed by the
secretary and president of each Credit Party designated by the Agent
certifying (1) that such Credit Party is in existence and good
standing in its jurisdiction of organization and in each other
jurisdiction in which it is required to be qualified as a foreign
business entity to transact its business as presently conducted, (2)
to the current incumbency with respect to each of the officers of
each such Credit Party authorized to execute and deliver this
Amendment and the other Amendment Documents to be executed by such
Credit Party in connection therewith and to request Loans and the
issuance of Letters of Credit (as applicable), (3) attaching true
and complete copies of authorizing resolutions of the board of
directors of each such Credit Party to authorize
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the execution, delivery, and performance of this Amendment and the
other Amendment Documents, and (4) where applicable, attaching true
and correct copies of the organizational and governing documents of
each New Credit Party;
(iii) Stock Certificates and Powers. The Agent shall have
received (A) one or more stock certificate(s) representing the
Series A Preferred Stock referred to in the Subordination Agreement,
and (B) executed stock powers in blank for each such certificate;
(iv) Endorsement of Junior Note. The Agent shall have received
the endorsements of the Junior Note referred to in the Subordination
Agreement by Xxxxxxxx'x to FMC, FMC to FHC, FHC to Investments and
by Investments to the Agent;
(v) Delivery and Endorsement of Note. The Agent shall have
received the $1,651,393 Promissory Note from Xxxxxxxx'x, as maker,
payable to the order of Investments together with our endorsement
thereof by Investments to the Agent;
(vi) Reorganization Documents. The Agent shall have received
true and correct copies of the documents listed on Exhibit C hereto
which will result in the Reorganization;
(vii) Legal Opinions. The Agent shall have received multiple
counterparts of opinions of counsel for the Credit Parties relating
to the Amendment Documents and the transactions contemplated
therein, in form and substance satisfactory to the Agent and the
Lenders, and including, among other things, opinions regarding the
enforceability of the Amendment Documents and the perfection of the
security interests created thereby; and
(viii) Additional Information. Such additional documents,
instruments, and information as the Agent may reasonably request to
effect the transactions contemplated hereby.
(b) The representations and warranties contained herein, in the
Agreement, and in all other Credit Documents, as amended hereby, shall be
true and correct in all material respects as of the date hereof as if made
on the date hereof (except those, if any, which by their terms
specifically relate only to a different date).
(c) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements,
documents, and instruments executed and/or delivered pursuant hereto, and
all legal matters incident thereto, shall be reasonably satisfactory to
the Agent.
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(d) No Default or Event of Default shall have occurred and be
continuing.
Section 5.2 Representations and Warranties. Each Credit Party hereby
represents and warrants to the Agent and the Lenders that, as of the date of and
after giving effect to this Amendment, (a) the execution, delivery, and
performance of this Amendment and any and all other Amendment Documents executed
and/or delivered in connection herewith have been authorized by all requisite
corporate, limited liability company, partnership, trust or other action on the
part of each Credit Party and will not violate any Credit Party's organizational
or governing documents, (b) all representations and warranties set forth in the
Agreement and in any other Credit Document are true and correct in all material
respects as if made again on and as of such date (except those, if any, which by
their terms specifically relate only to a different date), (c) no Default or
Event of Default has occurred and is continuing, and (d) the Reorganization has
been consummated, the New Credit Parties have been formed and the ownership
thereof is as described in Exhibit A and the Reorganization documents listed on
Exhibit C.
Section 5.3 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Credit
Document shall survive the execution and delivery of this Amendment and the
other Credit Documents, and no investigation by the Agent or any Lender, or any
closing, shall affect the representations and warranties or the right of the
Agent and the Lenders to rely upon them.
Section 5.4 Reference to Agreement. Each of the Credit Documents,
including the Agreement, the Amendment Documents, and any and all other
agreements, documents, or instruments now or hereafter executed and/or delivered
pursuant to the terms hereof or pursuant to the terms of the Agreement as
amended hereby, are hereby amended so that any reference in such Credit
Documents to the Agreement, whether direct or indirect, shall mean a reference
to the Agreement as amended hereby.
Section 5.5 Ratifications. Each of the parties hereto agrees that the
Credit Documents, as amended hereby, shall continue to be legal, valid, binding,
and enforceable in accordance with their respective terms. Without limiting the
generality of the foregoing, each Credit Party hereby acknowledges and confirms,
that upon the effectiveness of this Amendment, and as a result thereof, the
liens, security interests, and assignments created and evidenced by the Credit
Documents are valid and existing liens, security interests, and assignments of
the respective priority recited in the Credit Documents.
Section 5.6 Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 5.7 General. This Amendment, when signed by the Agent, the
Lenders, and each Credit Party, as provided hereinbelow (a) shall be deemed
effective prospectively as of the Amendment Date, (b) contains the entire
agreement among the
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parties and may not be amended or modified except in writing signed by all
parties, (c) shall be governed and construed according to the laws of the State
of New York, (d) may be executed in any number of counterparts, each of which
shall be valid as an original and all of which shall be one and the same
agreement, and (e) shall constitute a Credit Document. A telecopy or other
electronic transmission of any executed counterpart shall be deemed valid as an
original.
Section 5.8 Entirety. This Amendment together with the other Amendment
Documents and the Credit Documents represent the entire agreement of the parties
hereto and thereto, and supersede all prior agreements and understandings, oral
or written, if any, including any correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have entered into this Amendment on the
date first above written.
CREDIT PARTIES:
XXXXXXXX'X INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President, Chief Financial
Officer
XXXXXXXX'X FLORIDA PARTNERSHIP
By: Xxxxxxxx'x Management Corp., its
Managing Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
President
FI STORES LIMITED PARTNERSHIP
By: Xxxxxxxx'x Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President, Chief
Financial Officer
XXXXXXXX'X HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Secretary and Treasurer
XXXXXXXX'X MANAGEMENT CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
President
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FCJV HOLDING CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
President
FCJV, L.P.
By: FCJV Holding Corp., its general
partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
President
XXXXXXXX'X INVESTMENTS LLC
By: Xxxxxxxx'x Inc.,
its Managing Member
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Chief Financial Officer,
----------------------------------
Secretary and Treasurer
----------------------------------
XXXXXXXX'X BENEFICIARY INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Secretary and Treasurer
----------------------------------
AGENT:
BANK OF AMERICA, N.A., as the Agent
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------
Title: Senior Vice-President
----------------------------------
14
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------
Title: Senior Vice-President
----------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
15
EXHIBIT A
THE REORGANIZATION
1. Xxxxxxxx'x Inc. will contribute Crescent preferred stock ($50 million book
value) and Crescent note ($35 million book value) to the capital of
Xxxxxxxx'x Management Corp.;
2. Xxxxxxxx'x Management Corp. will contribute Crescent preferred stock ($50
million book value) and Crescent note ($35 million book value) to the
capital of Xxxxxxxx'x Holding Corp.;
3. Xxxxxxxx'x Inc. and Xxxxxxxx'x Holding Corp. will create Xxxxxxxx'x
Investments LLC;
4. Xxxxxxxx'x Holding Corp, will contribute its 99% LP interest in FI Stores
Limited Partnership (estimated book value $80,139,276), Crescent preferred
stock ($50 million book value), Crescent note ($35 million book value);
TOTAL of $165,139,276 Book value) to Xxxxxxxx'x Investments LLC in
exchange for a 99% interest in Xxxxxxxx'x Investments LLC;
5. Xxxxxxxx'x Inc. will contribute a note payable of $1,651,393 (interest
only at prime) to Xxxxxxxx'x Investments LLC in exchange for a 1% interest
in Xxxxxxxx'x Investments LLC;
6. Xxxxxxxx'x Holding Corp. will create Xxxxxxxx'x Beneficiary Inc.;
7. Xxxxxxxx'x Holding Corp contributes its 99% interest in Xxxxxxxx'x
Investments LLC to Xxxxxxxx'x Beneficiary Inc.; and
8. Xxxxxxxx'x Beneficiary Inc. transfers to Xxxxxxxx'x Holding Corp. 100% of
its common stock.
EXHIBIT B
SCHEDULE 5.14
TO
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND MODIFICATION TO CREDIT DOCUMENTS
Schedule 5.14
SUBSIDIARIES
XXXXXXXX'X MANAGEMENT CORP.
Jurisdiction of Organization: Delaware
Class of Stock: Common
Authorized Shares: 100 shares of common $0.01 par value
Outstanding Shares and Owner: 100 shares of common held by Xxxxxxxx'x Inc
Existing buy-sell, voting trust or other shareholder agreements
None
XXXXXXXX'X HOLDING CORP. (wholly owned by Xxxxxxxx'x Management Corp.)
Jurisdiction of Organization: Delaware
Class of Stock: Common
Authorized Shares: 100 shares of common $0.01 par value
Outstanding Shares and Owner: 100 shares of common held by Xxxxxxxx'x Management Corp.
Existing buy-sell, voting trust or other shareholder agreements
None
XXXXXXXX'X BENEFICIARY INC. (wholly owned by Xxxxxxxx'x Holding Corp.)
Jurisdiction of Organization: Delaware
Class of Stock: Common
Authorized Shares: 100 shares of common $0.01 par value
Outstanding Shares and Owner: 100 shares of common held by Xxxxxxxx'x Holding Corp.
Existing buy-sell, voting trust or other shareholder agreements
None
XXXXXXXX'X INVESTMENTS LLC
Jurisdiction of Organization: Georgia
Percent of Membership Interests Held
by Xxxxxxxx'x Inc.: 1% (Controlling Manager)
Percent of Membership Interests Held
by Xxxxxxxx'x Beneficiary Inc.: 99%
Existing buy-sell, voting trust or other shareholder agreements
None
FI STORES LIMITED PARTNERSHIP
Jurisdiction of Organization: Georgia
Percent of Partnership Held
by Xxxxxxxx'x Inc.: 1% general
Percent of Partnership Held
by Xxxxxxxx'x Investments LLC.: 99% limited
Existing buy-sell, voting trust or other shareholder agreements
None
FCJV HOLDING CORP.
Jurisdiction of Organization: Delaware
Class of Stock: Common
Authorized Shares: 100 shares of common $0.01 par value
Outstanding Shares and Owner: 100 shares of common held by Xxxxxxxx'x Inc.
Existing buy-sell, voting trust or other shareholder agreements
None
FCJV, L.P.
Jurisdiction of Organization: Delaware
Percent of Partnership Held
by Xxxxxxxx'x Inc. 64% limited
Percent of Partnership Held
by Crescent Jewelers 35% limited
Percent of Partnership Held
by FCJV Holding Corp.: 1% general
Existing buy-sell, voting trust or other shareholder agreements
None
XXXXXXXX'X FLORIDA PARTNERSHIP
Jurisdiction of Organization: Florida
Percent of Partnership Held
by Xxxxxxxx'x Inc.: 1% general
Percent of Partnership Held
by Xxxxxxxx'x Management Corp. 99% general
Existing buy-sell, voting trust or other shareholder agreements
None
COUGAR REINSURANCE COMPANY LTD.
Jurisdiction of Organization Turk & Ciacos Islands Company
Capital Structure
Authorized Shares: 5000 at $1 par value
Issued Shares: 1
Outstanding Shares: 1
Percent of Shares Held
by Xxxxxxxx'x Inc.: 100%
Existing buy-sell, voting trust or other shareholder agreements
None
2
EXHIBIT C
REORGANIZATION DOCUMENTS
1. Action Taken by Unanimous Written Consent of the Board of Directors of
Xxxxxxxx'x Inc. dated September 28, 2002
2. Action Taken by Unanimous Written Consent of the Board of Directors of
Xxxxxxxx'x Management Corp. dated September 28, 2002
3. Action Taken by Unanimous Written Consent of the Board of Directors of
Xxxxxxxx'x Holding Corp. dated September 28, 2002
4. Action Taken by Unanimous Written Consent of the Board of Directors of
Xxxxxxxx'x Beneficiary Inc. In Lieu of an Organizational Meeting dated
September 28, 2002
5. Consent of Xxxxxxxx'x Inc. as Member of Xxxxxxxx'x Investments LLC to the
transfer of the membership interest by Xxxxxxxx'x Holding Corp. dated
September 28, 2002
6. Consent of Xxxxxxxx'x Inc. as General Partner of FI Stores Limited
Partnership to the transfer of the limited partnership interest by
Xxxxxxxx'x Holding Corp. dated September 28, 2002
7. Contribution Agreement dated September 28, 2002 among Xxxxxxxx'x Inc.,
Xxxxxxxx'x Management Corp., Xxxxxxxx'x Holding Corp. and Xxxxxxxx'x
Investments LLC
8. Contribution Agreement dated September 28, 2002 among Xxxxxxxx'x Holding
Corp. and Xxxxxxxx'x Beneficiary Inc.
9. Subscription Agreement dated September 28, 2002 for the Purchase of
Limited Liability Company Interest by Xxxxxxxx'x Inc. and accepted by
Xxxxxxxx'x Investments LLC
l0. Subscription Agreement dated September 28, 2002 for the Purchase of
Limited Liability Company Interest by Xxxxxxxx'x Holding Corp. and
accepted by Xxxxxxxx'x Investments LLC
11. Subscription Agreement dated September 28, 2002 for the Purchase of Common
Stock by Xxxxxxxx'x Holding Corp. and accepted by Xxxxxxxx'x Beneficiary
Inc.
