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EXHIBIT 10.6
FIFTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND
GOLD CONSIGNMENT AGREEMENT
Fifth Amendment dated as of August 18, 2000 (the "Amendment") amending
that certain Amended and Restated Revolving Credit, Term Loan and Gold
Consignment Agreement dated as of September 10, 1998 (as amended and in effect
from time to time, the "Credit Agreement"), by and among (a) Whitehall
Jewellers, Inc. (f/k/a Marks Bros. Jewelers, Inc.), a Delaware corporation (the
"Borrower"); (b) Fleet Capital Corporation, LaSalle Bank National Association
(f/k/a LaSalle National Bank), ABN AMRO Bank N.V. and the other lending
institutions which are now parties thereto (collectively, the "Banks"); and (c)
Fleet Capital Corporation, as Collateral Agent, Administrative Agent and
Syndication Agent for the Agents as herein defined and the Banks and LaSalle
Bank National Association and ABN AMRO Bank N.V., each as Syndication Agent for
the Agents and the Banks (the Collateral Agent, Administrative Agent and
Syndication Agents are collectively referred to as the "Agents"). Capitalized
terms used herein and which are not otherwise defined shall have the respective
meanings ascribed thereto in the Credit Agreement.
WHEREAS, the Borrower and the Banks have agreed to modify certain terms
and conditions of the Credit Agreement as specifically set forth in this
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SS.1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 11.4 of the Credit Agreement is hereby amended by deleting
it in its entirety and replacing it with the following:
"11.4. DISTRIBUTIONS. The Borrower will not make any
Distributions, except for (a) repurchases of the Borrower's Class
B common stock in an aggregate amount not to exceed $150,000 for
all such repurchases, and (b) repurchases of its common stock in
an aggregate amount not to exceed $20,000,000, so long as no
Default or Event of Default has occurred or is continuing."
(b) References in ss.18 and 19 of the Credit Agreement to the
"Administrative Agent" or "Agents" shall hereinafter be deemed to be references
to "the Administrative Agent and Sovereign Bank as Gold Fronting Bank".
SS.2. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become
effective until the Administrative Agent receives a counterpart of this
Amendment, executed by each of the Borrower, the Agents and the Majority Banks.
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SS.3. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Borrower contained in the Credit Agreement (including, without
limitation, the representation regarding litigation contained in Section 9.7
thereof) were true and correct when made and continue to be true and correct on
and as of the date hereof as if made on the date hereof except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and to the extent that such representations and warranties relate
expressly to an earlier date. No Default or Event of Default has occurred and is
continuing.
SS.4. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement and all documents, instruments and agreements related thereto,
including, but not limited to the Security Documents, are hereby ratified and
confirmed in all respects and shall continue in full force and effect. The
Credit Agreement and this Amendment shall be read and construed as a single
agreement. All references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended hereby.
SS.5. NO WAIVER. Nothing contained herein shall constitute a waiver of,
impair or otherwise affect any Obligations, any other obligation of the Borrower
or any rights of the Agents or the Banks consequent thereon.
SS.6. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
SS.7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
a document under seal as of the date first above written.
WHITEHALL JEWELLERS, INC. (f/k/a Marks
Bros. Jewelers, Inc.)
By:
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Name:
Title:
FLEET CAPITAL CORPORATION,
individually and as Administrative Agent, as
Collateral Agent and as Syndication Agent
By:
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Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Syndication Agent
By:
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Name:
Title:
ABN AMRO BANK N.V., individually and as
Syndication Agent
By:
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Name:
Title:
By:
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Name:
Title:
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THE CHASE MANHATTAN BANK
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
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Name:
Title:
SOVEREIGN BANK NEW ENGLAND
By:
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Name:
Title:
