SIXTH AMENDMENT TO CREDIT AGREEMENT
This Sixth Amendment to Credit Agreement ("Amendment") is executed and
entered into by and among CRESCENT JEWELERS, a California corporation (the
"Borrower"), Bank of America, N.A., in its capacity as administrative agent (the
"Administrative Agent"), the Lenders (as defined by the Credit Agreement,
defined below) party hereto (the "Lenders") and the Guarantors (as defined by
the Credit Agreement, defined below)(the "Guarantors"), effective as of July 11,
2002 (the "Amendment Effective Date"), as follows:
Recitals
a. The Borrower, the Administrative Agent, the Lenders and the Guarantors
are party to the certain Credit Agreement dated as of September 15, 1999, as
amended by Amendment No. 1 dated March 7, 2001, the Second Amendment to Credit
Agreement dated December 21, 2001, the Third Amendment to Credit Agreement dated
as of March 31, 2002, the Fourth Amendment to Credit Agreement dated as of April
5, 2002, and the Fifth Amendment to Credit Agreement dated as of April 12, 2002
(the "Credit Agreement"). Terms defined by the Credit Agreement, where used in
this Amendment, shall have the same meanings as are prescribed by the Credit
Agreement.
b. The Borrower, the Administrative Agent, the Lenders and the Guarantors
have agreed to enter into this agreement on the terms specified hereinbelow.
NOW THEREFORE, FOR VALUE RECEIVED, the Borrower, the Administrative Agent,
the Lenders and the Guarantors each hereby agrees as follows:
ARTICLE 1
Amendments
Section 1.1 Amendment to Certain Definitions. Effective as of the
Amendment Effective Date, the definition of "Termination Date" in Section 1.1 of
the Credit Agreement hereby is amended and restated to read as follows:
"Termination Date" means August 28, 2002 or such later date as to
which the Administrative Agent and all of the Lenders may in their sole
discretion by written consent agree.
Section 1.2 Amendment to Section 7.11. Effective as of the Amendment
Effective Date, Section 7.11 hereby is amended and restated to read in its
entirety as follows:
7.11 Financial Covenants.
(a) Minimum Consolidated EBITDA. As of the end of each fiscal
month specified below for the Crescent Consolidated Group,
Consolidated EBITDA shall not be less than:
Sixth Amendment to Credit Agreement, Page 1
Fiscal Month Consolidated EBITDA
------------ -------------------
March 2002 $2,400,000
April 2002 $2,575,000
May 2002 $1,950,000
June 2002 $1,775,000
July 2002 $1,975,000
(b) Capital Expenditures. Consolidated Capital Expenditures for the
period beginning (a) November 1, 2001 through March 31, 2002 shall not
exceed $1,000,000 and (b) April 1, 2002 through the last day of the fiscal
month July 2002 shall not exceed $1,175,000.
ARTICLE II
Miscellaneous
Section 2.1 Conditions Precedent. The effectiveness of this Amendment is
subject to the satisfaction of each of the following conditions precedent:
(a) The Administrative Agent shall have received this Amendment, duly
executed by the Borrower, the Guarantors, the Administrative Agent and the
Lenders;
(b) Payment to the Administrative Agent of all reasonable costs and
expenses incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment, including the reasonable
fees and expenses of the Administrative Agent's legal counsel;
(c) After giving effect to this Amendment, the representations and
warranties contained herein, in the Credit Agreement and in all other Credit
Documents, 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 those, if
any, which by their terms specifically relate only to a different date);
(d) All corporate proceedings taken in connection with the transactions
contemplated by this Amendment and all other agreements, documents and
instruments executed and/or delivered pursuant hereto, and all legal matters
incident thereto, shall be reasonably satisfactory to the Administrative Agent;
and
(e) No Default or Event of Default shall be in existence.
Section 2.2 Representations and Warranties. The Borrower and the
Guarantors each hereby represents and warrants to the Administrative Agent and
the Lenders that, as of the Amendment Effective Date (a) the execution,
delivery and performance of this Amendment and any
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and all agreements or documents executed and/or delivered in connection herewith
have been authorized by all requisite corporate action on the part of the
Borrower and the Guarantors and will not violate the Borrower's or any such
Guarantor's certificate of incorporation or bylaws, (b) after giving effect to
this Amendment, all representations and warranties set forth in the Credit
Agreement and in any other Credit Document are true and correct in all material
respects as if made again on and as of such date (except those, if any, which by
their terms specifically relate only to a different date), (c) no Default or
Event of Default has occurred and is continuing and (d) the Credit Agreement (as
amended by this Amendment), and all other Credit Documents are and remain legal,
valid, binding and enforceable obligations in accordance with the terms thereof
except as enforceability may be limited by applicable debtor relief laws and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or law).
Section 2.3 No Claims or Offsets; Release. Neither the Borrower nor any
of the Guarantors has any counterclaims, offsets, credits or defenses to the
Credit Documents and the performance of its obligations thereunder, or if such
Person has any such claims, counterclaims, offsets, credits or defenses to the
Credit Documents or any transaction related to the Credit Documents, the same
are hereby waived, relinquished and released in consideration of this Amendment.
In consideration of the agreements of the Administrative Agent and the Lenders
under this Amendment, the Borrower and the Guarantors each hereby releases and
discharges the Administrative Agent and the Lenders from any and all claims or
causes of action, if any, known or unknown, based upon any facts or
circumstances in connection with the Credit Agreement may have occurred at any
time on or prior to the Amendment Effective Date.
Section 2.4 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Credit
Document shall survive the execution and delivery of this Amendment and the
other Credit Documents, and no investigation by the Administrative Agent or any
Lender, or any closing, shall affect the representations and warranties or the
right of the Administrative Agent and the Lenders to rely upon them.
Section 2.5 Reference to Agreement. Each of the Credit Documents is
hereby amended so that any reference in such Credit Documents to the Credit
Agreement, whether direct or indirect, shall mean a reference to the Credit
Agreement as amended by this Amendment.
Section 2.6 Crescent Jewelers, Inc. Crescent Jewelers, Inc. joins in the
execution of this Amendment for the purpose of acknowledging and consenting to
the terms of this Amendment and reaffirming its guaranty obligations under the
Credit Agreement, as amended and modified hereby.
Section 2.7 Xxxxxxxx'x Guarantors. The Xxxxxxxx'x 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
Xxxxxxxx'x Guaranty Agreement.
Section 2.8 Reservation of Rights. Nothing in this Amendment shall
constitute a waiver of any Default or Event of Default under the Credit
Agreement.
Sixth Amendment to Credit Agreement, Page 3
Section 2.9 General. Except as expressly provided by this Amendment, all
Of the terms and provisions of the Credit Agreement and the other Credit
Documents remain in full force and effect. This Amendment, when signed by the
Borrower, each Guarantor and all of the Lenders as provided required by Section
11.6 of the Credit Agreement (i) contains the entire agreement among the parties
and may not be amended or modified except in writing signed by all parties, (ii)
may be executed in any number of counterparts, each of which shall be valid as
an original and all of which shall be one and the same agreement, and (iii)
shall constitute a Credit Document. It shall not be necessary in making proof of
this Amendment to produce or account for more than one such counterpart. A
telecopy or other electronic transmission of any executed counterpart shall be
deemed valid as an original.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS
BETWEEN THE PARTIES.
Sixth Amendment to Credit Agreement, Page 4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers in several counterparts effective as
of the Amendment Effective Date specified in the preamble hereof.
BORROWER:
CRESCENT JEWELERS,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President, Chief Financial
Officer
GUARANTORS:
CRESCENT JEWELERS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President, Chief Financial
Officer
XXXXXXXX'X INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President, Chief Financial
Officer
XXXXXXXX'X MANAGEMENT CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
President
XXXXXXXX'X HOLDING CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Vice President
Sixth Amendment to Credit Agreement, Page 5
FI STORES LIMITED PARTNERSHIP,
a Georgia limited partnership
By: Xxxxxxxx'x Inc., its sole general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President, Chief
Financial Officer
XXXXXXXX'X FLORIDA PARTNERSHIP,
a Florida general partnership
By: Xxxxxxxx'x Management Corp., its managing
partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
President
FCJV HOLDING CORP.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
President
FCJV, L.P., a Delaware limited partnership
By: FCJV Holding Corp., its general partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx X. Xxxxxx
President
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ADMINISTRATIVE
AGENT: BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxx
Senior Vice President
LENDERS: BANK OF AMERICA, N.A.,
individually in its capacity as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxx
Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
individually in its capacity as a Lender
and in its capacity as Documentation Agent
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
-------------------------------
Title: Duly Authorized Secretary
------------------------------
FLEET RETAIL FINANCE INC.
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxx
-------------------------------
Title: Vice President
------------------------------
FLEET CAPITAL CORPORATION
By: /s/ Rooney X. XxXxxxx
---------------------------------
Name: Rooney X. XxXxxxx
-------------------------------
Title: Sr. Vice President
------------------------------
SUNROCK CAPITAL CORP.
By: /s/ Xxxxxx X. Romanaski
---------------------------------
Name: Xxxxxx X. Romanaski
-------------------------------
Title: Sr. V.P.
------------------------------
Sixth Amendment to Credit Agreement, Page 7
LASALLE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: First VP
------------------------------
THE PROVIDENT BANK
By: /s/ Xxxx X. Xxxxxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxxxxx
-------------------------------
Title: Vice President
------------------------------
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
-------------------------------
Title: First Vice President
------------------------------
Sixth Amendment to Credit Agreement, Page 8
