Exhibit 10.1
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), dated as of November 5, 2004 (the "Amendment Date"), is
made by and between Xxxxxxxx'x, Inc., a Delaware corporation, each of its
Subsidiaries party hereto, Bank of America, N.A., as Collateral Agent, Bank of
America, N.A., as Revolving Agent, Jewelry Investors II, L.L.C., as Term
Agent, and each of the lending institutions party hereto as Lenders.
RECITALS:
A. The Credit Parties, the Lenders, the Revolving Agent, the Term
Agent, and the Collateral Agent have entered into the Second Amended and
Restated Credit Agreement dated as of September 7, 2004 (as such agreement may
be amended, restated, or otherwise modified from time to time, the "Credit
Agreement").
B. The Credit Parties have requested that the Lenders and the Agents
amend the Credit Agreement in certain respects, and the Lenders and the Agents
are willing to agree to the Credit Parties' request, subject to the terms and
conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises herein contained and
other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Initially capitalized terms used in this
Amendment (including in the Recitals), to the extent not otherwise defined
herein, have the same meanings as in the Credit Agreement, as amended hereby.
ARTICLE 2
Amendments
Section 2.1 New Definition. A new definition of "Section 5.2 Notice"
is hereby added to Section 1.1 of the Credit Agreement in alphabetical order
to read as follows:
"'Section 5.2 Notice' has the meaning specified in Section 4.14(b)."
Section 2.2 Amendment to Section 2.3(f). The first sentence of
Section 2.3(f) is hereby amended and restated to read in its entirety as
follows:
"Each Revolving Lender, with respect to the Existing Letters of
Credit, hereby purchases a participation interest in such Existing
Letters of Credit, and each Revolving Lender that has not as of the
fourth Business Day prior to the issuance of a Letter of Credit
delivered to the Revolving Agent and each other Revolving Lender a
Section 5.2 Notice, with respect to Letters of Credit issued on or
after the Closing Date, upon issuance of a Letter of Credit, shall be
deemed to have purchased without recourse a risk participation from
the Issuing Lender in such Letter of Credit and the obligations
arising thereunder, in each case in an amount equal to such Lender's
pro rata share of the obligations under such Letter of Credit (based
on the Revolving Commitment Percentages of such Lender) and
absolutely, unconditionally, and irrevocably assumes, as primary
obligor and not as surety, and becomes obligated to pay to the
Issuing Lender therefor and discharge when due, such Lender's pro
rata share of the obligations arising under such Letter of Credit."
Section 2.3 Amendment to Section 4.7(a)(ii). Clause (A) of Section
4.7(a)(ii) is hereby amended and restated to read in its entirety as follows:
"(A) following the date that is six months after the first
Anniversary Date, the Term Loans may be prepaid in whole (but not in
part) at a price of 102% of the outstanding principal amount of the
Term Loans, together with any interest accrued thereon, any fees
payable to the Term Agent or the Term Lenders, and all other Term
Obligations; and"
Section 2.4 Amendment to Section 4.7(b)(ii). Section 4.7(b)(ii) of
the Credit Agreement is hereby amended to add the following at the end
thereof:
"If any payment of the Term Loans is required to made pursuant to
this Section 4.7(b)(ii) on any date following the date hereof to and
including the second Anniversary Date, such payment shall be treated
as if it were a voluntary prepayment under Section 4.7(a)(ii)(A)."
Section 2.5 Amendment to Section 4.7(b)(iii). Section 4.7(b)(iii) of
the Credit Agreement is hereby amended to add the following at the end
thereof:
"If any payment of the Term Loans is required to made pursuant to
this Section 4.7(b)(iii) on any date following the date hereof to and
including the second Anniversary Date, such payment shall be treated
as if it were a voluntary prepayment under Section 4.7(a)(ii)(A)."
Section 2.6 Amendment to Section 4.14(b). Section 4.14(b) is hereby
amended and restated to read in its entirety as follows:
"Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Agreement to the contrary, during the
existence of an Event of Default, all amounts collected or received
on or in respect of the Total Obligations (including proceeds of the
Collateral) shall be paid over or delivered as follows, but in no
event in a manner inconsistent with the provisions of Section 11.1;
FIRST, to the payment of all reasonable
out-of-pocket costs and expenses (including without
limitation, reasonable attorneys' fees) of the Collateral
Agent actually incurred in connection with enforcing the
rights and remedies of the Agents and the Lenders under the
Credit Documents (including without limitation, exercising
rights and remedies in respect of the Collateral) and any
protective advances (including any Discretionary
Over-Advances) made with respect thereto, excluding any of
the foregoing solely relating to Bank Products;
SECOND, to payment of any out-of-pocket fees and
expenses (including without limitation, fees and expenses
owing pursuant to Section 13.5(a)) owed to the Collateral
Agent, the Revolving Agent, the Term Agent, and the Lenders
(in such order) under the Credit Documents and not paid
pursuant to clause "FIRST" preceding, excluding any of the
foregoing solely relating to Bank Products;
THIRD, to the payment of all accrued interest and
fees on or in respect of the Revolving Obligations;
FOURTH, to the payment of all accrued interest and
fees on or in respect of the Term Obligations;
FIFTH, to the payment of the outstanding principal
amount of the Revolving Obligations (including the payment
or cash collateralization of the outstanding LOC
Obligations), but excluding amounts falling under clause
"SIXTH" below;
SIXTH, in the event that any Revolving Lender has
given Revolving Agent at least 48 hours prior written notice
that it will no longer fund pursuant to Section 5.2 (a
"Section 5.2 Notice"), to the payment of the outstanding
principal amount of the Revolving Loans and LOC Obligations
(including cash collateralization thereof) in respect of
Revolving Loans and Letters of Credit made or issued by
another Revolving Lender after receipt of such Section 5.2
Notice;
SEVENTH, to the payment of all amounts due with
respect to Bank Products;
EIGHTH, to the payment of all other Revolving
Obligations hereunder and other obligations which shall have
become due and payable under the Credit Documents otherwise
and not repaid pursuant to clauses "FIRST" through "THIRD",
"FIFTH", "SIXTH", and "SEVENTH" preceding;
NINTH, to the payment of all accrued interest and
fees in respect of the Term Obligations that have not been
paid pursuant to clause "FOURTH" preceding by reason of the
provisions of Article 11;
TENTH, to the payment of the outstanding principal
amount of the Term Obligations;
ELEVENTH, to the payment of all other Term
Obligations hereunder and other obligations which shall have
become due and payable under the Credit Documents otherwise
and not repaid pursuant to clauses "FIRST", "SECOND",
"FOURTH", "NINTH" and "TENTH" preceding; and
TWELFTH, to the payment of the surplus, if any, to
whomever may be lawfully entitled to receive such surplus.
In carrying out the foregoing (i) amounts received shall be applied
in the numerical order provided until exhausted prior to application
to the next succeeding category, (ii) except as otherwise provided in
this Agreement, the Lenders shall receive amounts ratably in
accordance with their respective pro rata shares (based on the
proportion that the then outstanding Term Obligations or Revolving
Obligations, as the case may be, held by such Lenders bears to the
aggregate amount of Term Obligations or Revolving Obligations, as the
case may be, then outstanding) of amounts available to be applied
pursuant to clauses "THIRD", "FIFTH", "SIXTH", "SEVENTH" and "EIGHTH"
preceding, with respect to the Revolving Obligations, and clauses
"FOURTH", "NINTH", "TENTH", and "ELEVENTH" with respect to the Term
Obligations, and (iii) to the extent that any amounts available for
distribution pursuant to clause "FIFTH" or "SIXTH", as the case may
be, preceding are attributable to the issued but undrawn amount of
outstanding Letters of Credit, such amounts shall be held by the
Collateral Agent in a cash collateral account and applied (A) first,
to reimburse the Issuing Lender for any drawings under such Letters
of Credit and (B) then, following the expiration of all Letters of
Credit, to all other obligations in the manner specified above."
Section 2.7 Amendment to Section 7.11(c)(i). Section 7.11(c)(i) is
hereby amended by replacing the Tier I Consolidated EBITDA requirement for the
Fiscal Period ending October 30,2004, with "($6,000,000)" and by replacing the
Tier I Consolidated EBITDA requirement for the Fiscal Period ending November
27,2004, with "($8,500,000)".
Section 2.8 Amendment to Section 7.11(d)(i). Section 7.11(d)(i) is
hereby amended by replacing the Tier I minimum ratio of Accounts Payable to
inventory requirement for the Fiscal Period ending October 30,2004, with
"39.0%".
Section 2.9 Amendment to Section 7.11(d)(ii). Section 7.11(d)(ii) is
hereby amended by replacing the Tier II minimum ratio of Accounts Payable to
inventory requirement for the Fiscal Period ending October 30,2004, with
"39.0%".
Section 2.10 Amendment to Section 10.17(a)(iv). Section 10.17(a)(iv)
is hereby amended and restated to read in its entirety as follows:
"(iv) Between Settlement Dates, to the extent no Discretionary
Over-Advances are outstanding, the Revolving Agent may pay over to
Bank of America any payments received by the Revolving Agent, which
in accordance with the terms of this Agreement would be applied to
the reduction of the Revolving Loans, for application to the
Non-Ratable Loans. If, as of any Settlement Date, collections
received since the then immediately preceding Settlement Date have
been applied to Bank of America's Revolving Loans (other than to
Non-Ratable Loans or Discretionary Over-Advances in which a Revolving
Lender has not yet funded its purchase of a participation pursuant to
clause (ii) preceding), as provided for in the previous sentence,
Bank of America shall pay to the Revolving Agent for the accounts of
the Revolving Lenders, the amount necessary to allocate payments
among the Revolving Lenders pursuant to Section 4.11(a) or Section
4.14(b), as the case may be. During the period between Settlement
Dates, Bank of America (with respect to Non-Ratable Loans), the
Revolving Agent (with respect to Discretionary Over-Advances), and
each Revolving Lender (with respect to the Revolving Loans other than
Non-Ratable Loans and Discretionary Over-Advances), shall be entitled
to interest at the applicable rate or rates payable under this
Agreement on the actual average daily amount of funds employed by
Bank of America, the Revolving Agent, and the other Revolving
Lenders."
Section 2.11 Amendment to Postclosing Agreement. Section 1(e) of the
Postclosing Agreement dated as of even date with the Credit Agreement is
hereby amended by replacing "Within 45 days of the Agreement Date" to read "On
or before January 31, 2005".
ARTICLE 3
Amendment Fees
Section 3.1 Revolving Lenders' Amendment Fee. The Credit Parties
agree to pay to the Collateral Agent, for the account of the Revolving Lenders
in accordance with their respective Revolving Commitment Percentages, an
amendment fee (the "Revolving Lenders' Amendment Fee") in the amount of
$67,500.00, which Revolving Lenders' Amendment Fee shall be fully earned, due,
and payable on the date of this Amendment.
Section 3.2 Term Lenders' Amendment Fee. The Credit Parties agree to
pay to the Collateral Agent, for the account of the Term Lenders in accordance
with their respective pro rata shares of the Term Loan, an amendment fee (the
"Term Lenders' Amendment Fee") in the amount of $135,000.00, which Term
Lenders' Amendment Fee shall be fully earned, due, and payable on the date of
this Amendment.
Section 3.3 Acknowledgment. The Credit Parties agree and acknowledge
that: (i) the Revolving Lenders' Amendment Fee and the Term Lenders' Amendment
Fee are being paid, the ability to make voluntary prepayments of the Terms
Loans under Section 4.7(a)(ii) is being deferred, the provisions of Section
4.7(b) are being corrected to reflect the parties' original intent and certain
other modifications to the Credit Agreement requested by the Lenders are being
made under this Amendment in consideration of, among other things, the
agreement of the Lenders to amend and modify certain provisions of the Credit
Agreement as requested by the Credit Parties; (ii) but for such provisions
being amended at the request of the Credit Parties, the Lenders would not have
entered into the Credit Agreement; and (iii) the Lenders are under no
obligation to amend or modify such provisions. Accordingly, the Credit Parties
agree and acknowledge that they are receiving new valuable consideration under
this Amendment for the payment of the Revolving Lenders' Amendment Fee and the
Term Lenders' Amendment Fee and the modifications to the Credit Agreement
under this Amendment requested by the Lenders.
ARTICLE 4
Miscellaneous
Section 4.1 Conditions Precedent. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions precedent:
(a) The representations and warranties contained herein and
in the Credit Agreement, 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 for such representations and warranties limited by
their terms to a specific date;
(b) Each of the parties hereto shall have delivered to the
Collateral Agent an executed original of this Amendment; and
(c) The Credit Parties shall have paid to the Collateral
Agent all fees and previously invoiced and reasonable costs and
expenses owed to each of the Agents and the Lenders arising in
connection with the Credit Agreement and this Amendment including,
but not limited to, the Revolving Lenders' Amendment Fee and the Term
Lenders' Amendment Fee set forth in Article 3 of this Amendment.
Section 4.2 Acknowledgment of the Credit Parties. Each Credit Party
hereby represents and warrants that the execution and delivery of this
Amendment and compliance by such Credit Party with all of the provisions of
this Amendment: (a) are within the powers and purposes of such Credit Party;
(b) have been duly authorized or approved by such Credit Party; and (c) when
executed and delivered by or on behalf of such Credit Party will constitute
valid and binding obligations of such Credit Party, enforceable in accordance
with their terms. The Borrowers reaffirm their obligation to pay all amounts
due to the Agents or the Lenders under the Credit Documents in accordance with
the terms thereof, as modified hereby.
Section 4.3 Retroactive Effect. The amendments set forth in Sections
2.7, 2.8, and 2.9 of this Amendment have retroactive effect to October 29,
2004, and the Credit Agreement will be deemed amended pursuant to such
Sections of this Amendment as of such date.
Section 4.4 Credit Documents Unmodified. Except as otherwise
specifically modified by this Amendment, all terms and provisions of the
Credit Agreement and all other Credit Documents, as modified hereby, shall
remain in full force and effect. Nothing contained in this Amendment shall in
any way impair the validity or enforceability of the Loan Documents, as
modified hereby, or alter, waive, annul, vary, affect, or impair any
provisions, conditions, or covenants contained therein or any rights, powers,
or remedies granted therein. Subject to the terms of this Amendment, any lien
and/or security interest granted to the Collateral Agent, for the benefit of
the Agents and the Lenders, in the Collateral set forth in the Loan Documents
shall remain unchanged and in full force and effect and the Credit Agreement
and the other Loan Documents shall continue to secure the payment and
performance of all of the Total Obligations.
Section 4.5 Parties, Successors and Assigns. This Amendment shall be
binding upon and shall inure to the benefit of the Credit Parties, the Agents,
the Lenders, and their respective successors and assigns.
Section 4.6 Counterparts. This Amendment may be executed in one or
more counterparts and by telecopy, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall
constitute one and the same instrument.
Section 4.7 EFFECT OF WAIVER. NO CONSENT OR WAIVER, EXPRESS OR
IMPLIED, BY THE AGENTS OR LENDERS TO OR OF ANY BREACH OF OR DEVIATION FROM ANY
COVENANT, DUTY, OR CONDITION SET FORTH IN THE CREDIT AGREEMENT OR THE OTHER
CREDIT DOCUMENTS SHALL BE DEEMED A CONSENT OR WAIVER TO OR OF ANY OTHER BREACH
OF OR DEVIATION FROM THE SAME OR ANY OTHER COVENANT, DUTY, OR CONDITION. NO
FAILURE ON THE PART OF THE AGENT OR ANY LENDER TO EXERCISE, NO DELAY IN
EXERCISING, AND NO COURSE OF DEALING WITH RESPECT TO, ANY RIGHT, POWER, OR
PRIVILEGE UNDER THIS AMENDMENT, THE CREDIT AGREEMENT, OR ANY OTHER CREDIT
DOCUMENT SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL
EXERCISE OF ANY RIGHT, POWER, OR PRIVILEGE UNDER THIS AMENDMENT, THE CREDIT
AGREEMENT OR ANY OTHER CREDIT DOCUMENT PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER, OR PRIVILEGE. THE RIGHTS
AND REMEDIES PROVIDED FOR IN THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS ARE CUMULATIVE AND NOT EXCLUSIVE OF ANY RIGHTS AND REMEDIES PROVIDED
BY LAW.
Section 4.8 Headings. The headings, captions, and arrangements used
in this Amendment are for convenience only, are not a part of this Amendment,
and shall not affect the interpretation hereof.
Section 4.9 Expenses of Agents and Lenders. The Borrowers agree to
pay on demand: (a) all reasonable costs and expenses incurred by the Agents in
connection with the preparation, negotiation, and execution of this Amendment
and the other Credit Documents executed pursuant hereto and any and all
subsequent amendments, modifications, and supplements hereto or thereto,
including without limitation, the costs and fees of the Agents' and Lenders'
legal counsel; and (b) all reasonable costs and expenses reasonably incurred
by the Agents and Lenders in connection with the enforcement or preservation
of any rights under the Credit Agreement, this Amendment, and/or the other
Loan Documents, including without limitation, the costs and fees of the
Agents' and Lender's legal counsel and the reasonable costs and fees
associated with any environmental due diligence conducted in relation hereto.
Section 4.10 Choice of Law; Jury Trial Waiver. This Amendment is
governed by the applicable law pertaining in the State of New York, other than
those conflict of law provisions that would defer to the substantive laws of
another jurisdiction. EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO A TRIAL
BY JURY, IF ANY, IN ANY ACTION TO ENFORCE, DEFEND, INTERPRET, OR OTHERWISE
CONCERNING THIS AMENDMENT.
Section 4.11 Release.
(a) EACH CREDIT PARTY REPRESENTS AND WARRANTS THAT AS OF THE DATE
HEREOF THERE ARE NO CLAIMS OR OFFSETS AGAINST, OR DEFENSES OR COUNTERCLAIMS
TO, ITS OBLIGATIONS UNDER THE CREDIT AGREEMENT OR ANY OF THE CREDIT DOCUMENTS,
NOR ANY CAUSES OF ACTION ARISING THEREFROM. TO INDUCE THE AGENTS AND THE
LENDERS TO ENTER INTO THIS AMENDMENT EACH CREDIT PARTY WAIVES ANY AND ALL SUCH
CLAIMS, OFFSETS, DEFENSES, COUNTERCLAIMS, OR CAUSES OF ACTION WHETHER KNOWN OR
UNKNOWN, ARISING PRIOR TO THE DATE HEREOF AND RELATING TO THE CREDIT DOCUMENTS
OR THIS AMENDMENT. EACH CREDIT PARTY ACKNOWLEDGES THAT IT MAY HEREAFTER
DISCOVER FACTS DIFFERENT FROM OR IN ADDITION TO THOSE NOW KNOWN OR BELIEVED TO
BE TRUE WITH RESPECT TO SUCH CLAIMS, OFFSETS, DEFENSES, COUNTERCLAIMS, OR
CAUSES OF ACTION, AND AGREES THAT THIS AMENDMENT AND THE PRECEDING RELEASE ARE
AND WILL REMAIN EFFECTIVE IN ALL RESPECTS NOTWITHSTANDING ANY SUCH DIFFERENCES
OR ADDITIONAL FACTS.
Section 4.12 Total Agreement. This Amendment, the Credit Agreement,
and all other Loan Documents shall constitute the entire agreement between the
parties relating to the subject matter hereof, and shall rescind all prior
agreements and understandings between the parties hereto relating to the
subject matter hereof, and shall not be changed or terminated orally.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers in several counterparts
effective as of the Amendment Date specified in the introductory paragraph
hereof.
CREDIT PARTIES:
XXXXXXXX'X INC.
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
XXXXXXXX'X FLORIDA PARTNERSHIP
By: Xxxxxxxx'x Management Corp., its
Managing Partner
By: /s/ C. Xxxxxx Xxxxx
---------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
FI STORES LIMITED PARTNERSHIP
By: Xxxxxxxx'x Inc., its general
partner
By: /s/ C. Xxxxxx Xxxxx
----------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
XXXXXXXX'X HOLDING CORP.
By: /s/ C. Xxxxxx Xxxxx
----------------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
XXXXXXXX'X MANAGEMENT CORP.
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
FCJV HOLDING CORP.
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
FCJV, L.P.
By: FCJV Holding Corp.,
its general partner
By: /s/ C. Xxxxxx Xxxxx
---------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
XXXXXXXX'X INVESTMENTS LLC
By: Xxxxxxxx'x Inc.,
its managing member
By: /s/ C. Xxxxxx Xxxxx
-----------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
XXXXXXXX'X BENEFICIARY INC.
By: /s/ C. Xxxxxx Xxxxx
---------------------------------
Name: C. Xxxxxx Xxxxx
Title: Corp. Secretary
AGENTS:
BANK OF AMERICA, N.A., as Collateral
Agent
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Revolving
Agent
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
JEWELRY INVESTORS II, L.L.C., as
Term Agent
By FARALLON CAPITAL MANAGEMENT, L.L.C.,
its manager
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
JEWELRY INVESTORS II, L.L.C.
By FARALLON CAPITAL MANAGEMENT L.L.C.,
its manager
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Member
