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EXHIBIT 10.7
AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT
This Amendment Number One to Loan and Security Agreement ("Amendment")
is entered into as of April 15, 1999, among XXXXXXX JEWELERS, INC., a Delaware
corporation (the "Borrower"), on the one hand, and the financial institutions
listed on the signature pages hereof (such financial institutions, together
with their respective successors and assigns, are referred to hereinafter each
individually as a "Lender" and collectively as the "Lenders"), and FOOTHILL
CAPITAL CORPORATION, as Agent ("Agent"), on the other hand.
RECITALS
A. Borrower, Lenders and Agent have previously entered into that
certain Loan and Security Agreement, dated as of October 2, 1998 (the
"Agreement").
B. Borrower, Lenders and Agent desire to amend the Agreement as
provided for an on the conditions herein.
NOW, THEREFORE, Borrower, Lenders and Agent hereby amend certain
provisions of the Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in this Amendment
shall have the meanings given to them in the Agreement unless specifically
defined herein.
2. AMENDMENTS.
2.1 Section 1.1 of the Agreement is hereby amended by adding the
following definition thereto:
"Owned Inventory" means, as of any date of determination, Inventory
that is owned by Borrower (other than all merchandise classified on
the Borrower's books and records as "miscellaneous" including, but not
limited to, customer trade-ins, breakouts and giftware), and
specifically excluding any Inventory acquired by Borrower on
consignment from vendors.
2.2 Section 2.1(a)(y) of the Agreement is hereby amended and
restated in its entirety to read as follows:
(y) the lesser of (i) 70% (75% during a Seasonal Period) of the Cost
of Eligible Inventory, less the amount, if any, of the Inventory
Reserve, and reserves for gift certificates outstanding and for
shrinkage, and (ii) 80% (85% during a Seasonal Period) of the GOB
Value of Owned Inventory, less the amount, if any, of the Inventory
Reserve and reserves for gift certificates outstanding and for
shrinkage, minus
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2.3 Section 7.20 (b) of the Agreement is hereby amended and
restated in its entirety to read as follows:
(b) Tangible Net Worth. Tangible Net Worth of at least the
following amounts as of the end of the corresponding fiscal
quarters:
Fiscal Quarter Ending Minimum Tangible Net Worth
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05/29/99 $ 26,000,000
08/29/99 $ 24,000,000
11/27/99 $ 20,000,000
for each fiscal quarter ending thereafter, such minimum Tangible
Net Worth shall be set at amounts acceptable to the Agent and the
Lenders based upon a discount from the Borrower's projected
Tangible Net Worth for such periods, all as set forth in detailed
financial projections (including a balance sheet, income statement,
statement of cash flows, and availability calculations) for
Borrower's fiscal year ending June 3, 2000, which projections are
to be delivered to Lenders on or before June 1, 999. Failure to
deliver such projections by such date, in form and content (and
reflecting financial performance) acceptable to the Lenders in
their sole discretion, shall constitute an Event of Default.
2.4 Section 17.5(a) of the Agreement is hereby amended by deleting
the words "within three days" contained therein and replacing them with the
words "within seven Business Days".
3. REPRESENTATION AND WARRANTIES. Borrower hereby affirms to Lenders
and Agent that all Borrower's representations and warranties set forth in the
Agreement are true, complete and accurate in all respects as of the date hereof
(except to the extent such representations and warranties relate solely to an
earlier date).
4. DEFAULTS; WAIVER. Agent and the Lenders acknowledge and agree that
any Event of Default occasioned by Borrower's noncompliance with the
requirements of Section 7.20(b) (minimum Tangible Net Worth) as set forth in
the Loan Agreement prior to the amendment provided in Section 2 hereof, is
hereby waived.
5. Borrower hereby affirms to Lenders and Agent that, subject to the
waiver provided in the preceding sentence, no Default or Event of Default
exists as of the date hereof.
6. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon the following:
(a) Receipt by Agent of fully executed copies of this Amendment; and
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(b) Payment of a fee to Agent, for the pro rata account of Lenders,
in the amount of $10,000.
7. COSTS AND EXPENSES. Borrower shall pay to Agent all of Agent's
out-of-pocket costs, and expenses (including, without limitation, the
reasonable fees and expenses of its counsel, which counsel may include any
local counsel reasonably deemed necessary, search fees, filing and recording
fees, documentation fees, appraisal fees, travel expenses, and other fees)
arising in connection with the preparation, execution, and delivery of this
Amendment and any related documents.
8. LIMITED EFFECT. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the Agreement, the
terms and provisions of this Amendment shall govern. In all other respects, the
Agreement, as amended, modified, and supplemented hereby, shall remain in full
force and effect.
9. COUNTERPARTS: EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the execution of a
counterpart of this Amendment by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
XXXXXXX JEWELERS, INC.
a Delaware corporation
By: /s/ XXXXXX XXXXXX
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Title: Asst Secretary
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FOOTHILL CAPITAL CORPORATION
a California corporation, as
Agent and as a Lender
By: /s/ XXXXXX XXXXXXX
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Title: Vice President
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LASALLE BUSINESS CREDIT, INC.
a Delaware corporation
By: /s/ XXXXX XXXXX
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Title: FVP
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SUNROCK CAPITAL CORP.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX
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Title: Vice President
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