EXHIBIT 10.1
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
As of June 18, 2003
THIS THIRD AMENDMENT TO THE LOAN AND SECURITY AGREEMENT dated as of
October 1, 2001 (the "Third Amendment") is entered into as of June 18, 2003 by
and among Xxxxxxx Jewelers, Inc. as Borrower (the "Borrower"), the lenders party
thereto (the "Lenders") and DDJ Capital Management, LLC as agent for the Lenders
(the "Agent"). All capitalized terms used in this Amendment shall have the
meanings given to them in the Loan and Security Agreement (as defined below)
unless specifically defined herein.
WHEREAS, Borrower, Lenders and Agent are parties to that certain Loan
and Security Agreement, dated as of October 1, 2001, as amended pursuant to that
certain First Amendment dated as of November 12, 2001, as amended pursuant to
that certain Second Amendment dated as of May 31, 2002 (collectively, the "Loan
and Security Agreement"), pursuant to which Lenders have made certain credit
available to the Borrower and to secure the obligations outstanding under the
Loan Agreement and the documents and instruments executed in connection
therewith (collectively, the "Loan Documents");
WHEREAS, pursuant to the Loan and Security Agreement, dated as of
October 1, 2001, the Lenders agreed to commit an aggregate principal amount of
$20,000,000 to the Borrower;
WHEREAS, Borrower, Lenders and Agent are also parties to that certain
Loan Agreement dated as of April 30, 2001, as amended and modified from time to
time (the "Subordinated Loan Agreement"), pursuant to which Lenders have made
certain credit available to and on behalf of Borrower;
WHEREAS, Lenders executed that certain Intercreditor and
Subordination Agreement, dated as of October 1, 2001 (the "Subordination
Agreement"), whereby Lenders agreed that the obligations incurred pursuant to
the Subordinated Loan Agreement are subordinate in right of payment to the prior
payment in full of all of the obligations incurred pursuant to the Loan and
Security Agreement;
WHEREAS, on or about November 12, 2001, Borrower entered into supply
agreements (the "Supply Agreements") with certain suppliers of inventory and
their affiliates (the "Suppliers") and in consideration for the Supply
Agreements, Borrower granted the Suppliers a security interest in substantially
all of the assets of Borrower;
WHEREAS, the Suppliers and Lenders entered into an Intercreditor and
Subordination Agreement dated as of November 12, 2001, which governs the
priorities of Lenders and the Suppliers;
WHERAS, the Borrower has requested certain modifications to the terms
of the Loan Documents, and the Lenders have agreed to modify certain terms under
which the Lenders may advance the funds committed to the Borrower; provided,
however, that this amendment shall in no way be construed to increase the
$20,000,000 commitment made by the Lenders.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby amend and modify the Loan and Security
Agreement as follows:
1. AMENDMENTS
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1.1 Section 3.3 of the Loan and Security Agreement is hereby
deleted in its entirety and replaced with the following:
TERM. This Agreement shall terminate on August 31, 2003 (the
"Termination Date").
2. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Lenders
and Agent that all of Borrower's representations and warranties set forth in the
Loan and Security 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).
3. RATIFICATION OF EXISTING AGREEMENTS. The Borrower hereby ratifies
and confirms the enforceability in all respects of the Loan Documents and the
Borrower's Obligations thereunder. The Borrower acknowledges that the Agent on
behalf of the Lenders has a valid first-priority perfected lien security for the
repayment of the Obligations against substantially all of the assets of the
Borrower, except as may be limited by the Supply Agreements.
4. 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.
5. EFFECTIVENESS; CONDITION TO EFFECTIVENESS. This Amendment shall
become effective as of the date first set forth above, upon execution hereof by
the Lenders, the Agent and the Borrower.
6. COUNTERPARTS. This Amendment may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same document.
IN WITNESS WHEREOF, the parties have executed this Third Amendment as
of the date and year first written above.
XXXXXXX JEWELERS, INC.
By: /s/ Xxxxx XxXxxxxxxx
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Name: Xxxxx XxXxxxxxxx
Title: President & C.E.O.
DDJ CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Member
B III CAPITAL PARTNERS, L.P.
By: DDJ Capital III, LLC, its General
Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Member
B III-A CAPITAL PARTNERS, L.P.
By: GP III-A, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Member