EXHIBIT 10.7.1
AMENDMENT NO. 1 AND WAIVER
THIS AMENDMENT NO. 1 dated as of March 7, 2001 (this "Amendment"), to the
Credit Agreement referenced below, is by and among XXXXXXXX'X INC., a Delaware
corporation, the subsidiaries and affiliates identified as Guarantors on the
signature pages hereto, and Bank of America, N.A., as Administrative Agent.
Terms used but not otherwise defined shall have the meanings provided in the
Credit Agreement.
W I T N E S S E T H:
WHEREAS, a $67.5 million revolving credit facility has been established in
favor of Xxxxxxxx'x Inc., a Delaware corporation (the "Borrower") pursuant to
the terms of that Credit Agreement dated as of September 15, 1999 (as amended
and modified, the "Credit Agreement") among the Borrower, the subsidiaries and
affiliates identified therein as Guarantors, the Lenders identified therein, and
Bank of America, N.A., as Administrative Agent;
WHEREAS, the Borrower has requested certain modifications and consents
under the Credit Agreement which require the consent of the Required Lenders;
and
WHEREAS, the Required Lenders have consented to the requested
modifications and consents on the terms and conditions set forth herein and have
authorized the Administrative Agent to enter into this Amendment on their behalf
to give effect to this Amendment;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. The Credit Agreement is amended and modified in the following
respects:
(a) A new Section 7.11(d) is hereby added to the Credit Agreement
and shall read as follows:
"(d) Maximum Cash Expenditures. As of the end of each fiscal
quarter set forth below, the sum of (1) cash used to finance operating
activities of FCJV, L.P., as determined in accordance with GAAP plus (2)
gross capital expenditures of FCJV, L.P., as determined in accordance with
GAAP, shall not exceed:
Fiscal Quarter End Amount
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December 31, 2000 $2,500,000
March 31, 2001 $ 625,000
June 30, 2001 $ 675,000
September 30, 2001 $1,270,000
December 31, 2001 $1,300,000
March 31, 2002
and thereafter $ 425,000
To the extent that the cash used to finance operating activities of FCJV,
L.P. during any fiscal quarter does not exceed the amount indicated above
corresponding to such fiscal quarter (such excess referred to as the
"Excess Amount"), such Excess Amount can be carried forward and used in
subsequent fiscal quarters; provided, however, in no event shall the cash
used to finance operating activities of FCJV, L.P. exceed (i) $5,000,000
during fiscal year 2001 and (ii) $2,600,000 in fiscal year 2002 plus any
unused Excess Amount for fiscal year 2001.
(b) In Section 8.11, the "or" at the end of subclause (A) is
replaced with "," and a new subclause (C) is added immediately after
subclause (B) therein to read as follows:
"or (C) members of the Crescent Consolidated Group (other than Sparkle
Insurance Company) can own up to 35% of the Capital Stock of FCJV, L.P. formed
solely for the purpose of (a) conducting a joint venture between Xxxxxxxx'x Inc.
and Crescent Jewelers for the operation of their respective internet websites,
(b) for retail internet sales of its own jewelry and related products and (c)
providing certain customers with purchase financing thereof."
(c) A new Section 8.14 is hereby added to the Credit Agreement and
shall read as follows:
"8.14 Inventory Classification.
During any month, the Credit Parties shall not transfer, convert or
otherwise reclassify Eligible Inventory having an aggregate fair market
value in excess of $2,000,000 into inventory which is leased or consigned
unless the Credit Parties provide at least ten Business Day's prior
written notice whereof which notification contains satisfactory
calculations that, after giving effect to such transaction, the aggregate
principal amount of Obligations will not exceed the Borrowing Base."
(d) In Section 9.1(c)(i), the reference to "8.13" is replaced with
"8.14".
(e) Notwithstanding any provisions to the contrary contained in
the Credit Agreement, in Section 7.12 or elsewhere, the Borrower agrees
that it will join FCJV Holding Corp. and FCJV, L.P. as Guarantors under
the Credit Agreement and as guarantors under the Xxxxxxxx'x Guaranty
Agreement.
2. This Amendment shall become effective immediately upon receipt by
the Administrative Agent, each in form and substance satisfactory to the
Administrative Agent, of all of the following:
(a) the consent of the Required Lenders hereunder;
(b) duly executed copies of this Amendment from the Borrower and
the Guarantors; and
(c) a copy of the duly executed Amendment under the Crescent
Credit Agreement.
3. Within 15 days following the formation of FCJV Holding Corp. and
FCJV, L.P., the Credit Parties shall deliver the following documents to the
Administrative Agent, each in form and substance satisfactory to the
Administrative Agent:
(a) duly executed Joinder Agreements from FCJV Holding Corp. and
FCJV, L.P. together with the other deliveries required by Guarantors under
Sections 7.12 and 7.13 of the Credit Agreement, including a pledge of the
Capital Stock in FCJV Holding Corp. and FCJV, L.P.; and
(b) duly executed joinder agreements to the Xxxxxxxx'x Guaranty
Agreement from FCJV Holding Corp. and FCJV, L.P. together with the other
deliveries required by guarantors thereunder.
4. The Borrower hereby represents and warrants in connection herewith
that as of the date hereof (after giving effect hereto) (i) the representations
and warranties set forth in the Credit Documents are true and correct in all
material respects (except those which expressly relate to an earlier date), and
(ii) after the effective date of this Amendment, no Default or Event of Default
exists under the Credit Agreement.
5. The Guarantors join in the execution of this Amendment for the
purpose of acknowledging and consenting to the terms of this Amendment and
reaffirming their guaranty obligations under the Credit Agreement, as amended
and modified hereby.
6. Except as expressly amended, modified or waived hereby, all of the
terms and provisions of the Credit Agreement and the other Credit Documents
remain in full force and effect.
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7. The Borrower agrees to pay all reasonable costs and expenses in
connection with the preparation, execution and delivery of this Amendment,
including the reasonable fees and expenses of the Administrative Agent's legal
counsel.
8. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original. It shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
9. This Amendment shall be deemed to be a contract under, and shall for
all purposes be construed in accordance with, the laws of the State of North
Carolina.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: XXXXXXXX'X INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Sr. V.P. & CFO, Secretary and Treasurer
GUARANTORS: XXXXXXXX'X MANAGEMENT CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Sr. V.P. & CFO, Secretary and Treasurer
XXXXXXXX'X HOLDING CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Sr. V.P. & CFO, Secretary and Treasurer
FI STORES LIMITED PARTNERSHIP,
a Georgia limited partnership
By: Xxxxxxxx'x Inc., its sole general partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Sr. V.P. & CFO, Secretary and Treasurer
XXXXXXXX'X FLORIDA PARTNERSHIP,
a Florida general partnership
By: Xxxxxxxx'x Management Corp., its managing partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Sr. V.P. & CFO, Secretary and Treasurer
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ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
As Administrative Agent for and on behalf of the Lenders
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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