Exhibit 10.1
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT, as heretofore amended (this "Amendment"), dated as of December 2,
2004 (the "Amendment Date"), is made by and between Xxxxxxxx'x, Inc., a
Delaware corporation, each of its Subsidiaries party hereto, Jewelry Investors
II, L.L.C., as Term Agent, and Jewelry Investors II, L.L.C., as Term 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 Term Lenders and the
Term Agent amend the Credit Agreement in certain respects, and the Term
Lenders and the Term Agent are willing to agree to the Credit Parties'
request, subject to the terms and conditions of this Amendment.
C. In accordance with Section 11.4 of the Credit Agreement, Revolving
Agent and Revolving Lender approval is not required for the amendments herein
requested by the Credit Parties.
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
Amendment
Section 1.1 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 November 27, 2004, with "($10,350,000)".
Section 1.2 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 November 27, 2004, with
"44.5%".
ARTICLE 2
Fees
Section 2.1 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, which Term Lenders'
Amendment Fee shall be fully earned, due, and payable on the date of this
Amendment.
Section 2.2 Acknowledgment. The Credit Parties agree and acknowledge
that: (i) the Term Lenders' Amendment Fee is being paid in consideration of,
among other things, the agreement of the Term 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 Term Lenders would not have entered into the Credit Agreement;
and (iii) the Term 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 Term Lenders' Amendment Fee.
ARTICLE 3
Miscellaneous
Section 3.1 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 reasonable costs and expenses owed to and/or
incurred by the Term Agent and the Term Lenders arising in connection
with the Credit Agreement and this Amendment including, but not limited
to, the Term Lenders' Amendment Fee set forth in Article 2 of this
Amendment.
Section 3.2 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 3.3 Retroactive Effect. The amendments set forth in Article I
of this Amendment have retroactive effect to November 27, 2004, and the Credit
Agreement will be deemed amended pursuant to such Article of this Amendment as
of such date.
Section 3.4 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 3.5 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 3.6 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 3.7 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 3.8 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 3.9 Expenses of Agents and Lenders. The Borrowers agree to
pay on demand: (a) all reasonable costs and expenses incurred by the Term
Agent 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 Term Agents' and Term
Lenders' legal counsel; and (b) all 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 costs and fees associated with any
environmental due diligence conducted in relation hereto.
Section 3.10 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 3.11 Release. 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
TERM AGENT AND THE TERM 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 3.12 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.
[Remainder of Page Intentionally Left Blank]
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:
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XXXXXXXX'X INC.
By: /s/ C. Xxxxxx Xxxxx
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Name: C. Xxxxxx Xxxxx
------------------------------------------
Title: CAO
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XXXXXXXX'X FLORIDA PARTNERSHIP
By: Xxxxxxxx'x Management Corp., its
Managing Partner
By: /s/ C. Xxxxxx Xxxxx
----------------------------------
Name: C. Xxxxxx Xxxxx
----------------------------------
Title: CAO
--------------------------------
FI STORES LIMITED PARTNERSHIP
By: Xxxxxxxx'x Inc., its general partner
By: /s/ C. Xxxxxx Xxxxx
----------------------------------
Name: C. Xxxxxx Xxxxx
----------------------------------
Title: CAO
--------------------------------
XXXXXXXX'X HOLDING CORP.
By: /s/ C. Xxxxxx Xxxxx
-------------------------------------------
Name: C. Xxxxxx Xxxxx
------------------------------------------
Title: CAO
-----------------------------------------
XXXXXXXX'X MANAGEMENT CORP.
By: /s/ C. Xxxxxx Xxxxx
-------------------------------------------
Name: C. Xxxxxx Xxxxx
------------------------------------------
Title: CAO
-----------------------------------------
FCJV HOLDING CORP.
By: /s/ C. Xxxxxx Xxxxx
-------------------------------------------
Name: C. Xxxxxx Xxxxx
------------------------------------------
Title: CAO
-----------------------------------------
FCJV, L.P.
By: FCJV Holding Corp.,
its general partner
By: /s/ C. Xxxxxx Xxxxx
----------------------------------
Name: C. Xxxxxx Xxxxx
----------------------------------
Title: CAO
--------------------------------
XXXXXXXX'X INVESTMENTS LLC
By: Xxxxxxxx'x Inc.,
its managing member
By: /s/ C. Xxxxxx Xxxxx
----------------------------------
Name: C. Xxxxxx Xxxxx
----------------------------------
Title: CAO
--------------------------------
XXXXXXXX'X BENEFICIARY INC.
By: /s/ C. Xxxxxx Xxxxx
-------------------------------------------
Name: C. Xxxxxx Xxxxx
------------------------------------------
Title: CAO
-----------------------------------------
TERM AGENT:
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JEWELRY INVESTORS II, L.L.C., as Term Agent
By FARALLON CAPITAL MANAGEMENT, L.L.C.,
its manager
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Managing Member
---------------------------------
TERM LENDERS:
------------
JEWELRY INVESTORS II, L.L.C.
By FARALLON CAPITAL MANAGEMENT L.L.C.,
its manager
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Managing Member
---------------------------------
