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EXHIBIT 10.32
WAIVER AND SIXTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND
GOLD CONSIGNMENT AGREEMENT
Waiver and Sixth Amendment, dated as of November 16, 2000 (the
"Amendment"), amending that certain Amended and Restated Revolving Credit, Term
Loan and Gold Consignment Agreement dated as of September 10, 1998 (as amended
and in effect from time to time, the "Credit Agreement"), by and among (a)
Whitehall Jewellers, Inc. (f/k/a Marks Bros. Jewelers, Inc.), a Delaware
corporation (the "Borrower"); (b) Fleet Capital Corporation, LaSalle Bank
National Association (f/k/a LaSalle National Bank), ABN AMRO Bank N.V. and the
other lending institutions which are now parties thereto (collectively, the
"Banks"); and (c) Fleet Capital Corporation, as Collateral Agent, Administrative
Agent and Syndication Agent for the Agents as herein defined and the Banks and
LaSalle Bank National Association and ABN AMRO Bank N.V., each as Syndication
Agent for the Agents and the Banks (the Collateral Agent, Administrative Agent
and Syndication Agents are collectively referred to as the "Agents").
Capitalized terms used herein and which are not otherwise defined shall have the
respective meanings ascribed thereto in the Credit Agreement.
WHEREAS, the Borrower and the Banks have agreed to modify certain terms
and conditions of the Credit Agreement as specifically set forth in this
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SS.1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 12.3 of the Credit Agreement is hereby amended by deleting
the ratio "1.40:1.00" set forth opposite the period of "2/1/00-1/31/01" and
replacing such ratio with "1.00:1.00".
(b) Section 12.5 of the Credit Agreement is hereby amended by deleting
the table contained therein and replacing it with the following new table:
Period or Date Amount
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10/31/00-01/31/01 $39,000,000
04/30/01 $42,000,000
07/31/01-10/31/01 $43,000,000
01/31/02 $50,000,000
04/31/02 $50,500,000
07/31/02 $51,000,000
10/31/02 $51,500,000
01/31/03 $55,000,000
04/30/03 $55,500,000
07/31/03 $56,000,000
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10/31/03 $56,500,000
01/31/04 $57,000,000
04/30/04 $57,500,000
SS.2. LIMITED WAIVER. The Borrower has informed the Agent and the Banks
that it has formed two new Subsidiaries, XxxxxxxxxXxxxxxxxx.xxx, LLC, a Delaware
limited liability company ("XXX.xxx") and WH Inc. of Illinois, an Illinois
corporation ("WH"). The formation of XXX.xxx and WH without the consent of the
Administrative Agent and the Majority Banks is in violation of Section 11.12 of
the Credit Agreement and constitutes an Event of Default under Section 15.1(c)
of the Credit Agreement. Upon the effectiveness of this Amendment, the Agent and
each of the Banks hereby waive, any Event of Default under the Credit Agreement
caused by the creation of XXX.xxx and WH by the Borrower without the consent of
the Administrative Agent and the Majority Banks as required by Section 11.12 of
the Credit Agreement, such waiver to be effective as of the date of creation of
XXX.xxx and WH, respectively, provided, however, that each of the Borrower,
XXX.xxx and WH enter into the Security Documents set forth on Schedule A
attached hereto within ten days of the effectiveness of this Amendment, all on
terms and conditions reasonably satisfactory to the Administrative Agent. The
waiver given herein is limited strictly to its terms and shall apply only to the
specific provisions described herein. The waiver contained herein shall not
extend to or affect any other obligations of the, the Borrower or its
Subsidiaries contained in the Credit Agreement or any other Loan Documents and
shall not impair or prejudice any rights consequent thereon. Nothing contained
in this waiver shall be construed to imply a willingness on the part of the
Administrative Agent and the Banks to grant any similar or other future waivers
of any of the terms and conditions of the Credit Agreement or the other Loan
Documents.
SS.3. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become
effective until the Administrative Agent receives (a) a counterpart of this
Amendment, executed by each of the Borrower, the Agents and the Majority Banks,
and (b) an amendment fee in an aggregate amount equal to four basis points
($66,000) on the Commitment and the outstanding principal amount of the Term
Loan of each Bank to be allocated pro rata among the Banks which consent to this
Amendment.
SS.4. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Borrower contained in the Credit Agreement (including, without
limitation, the representation regarding litigation contained in Section 9.7
thereof) were true and correct when made and continue to be true and correct on
and as of the date hereof as if made on the date hereof except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and to the extent that such representations and warranties relate
expressly to an earlier date. No Default or Event of Default has occurred and is
continuing.
SS.5. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement and all documents, instruments and agreements related thereto,
including, but not limited to the Security Documents, are hereby ratified and
confirmed in all respects and shall continue in full force and effect. The
Credit Agreement and this Amendment shall be read and construed as a single
agreement. All references in the
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Credit Agreement or any related agreement or instrument to the Credit Agreement
shall hereafter refer to the Credit Agreement as amended hereby.
SS.6. NO WAIVER. Nothing contained herein shall constitute a waiver of,
impair or otherwise affect any Obligations, any other obligation of the Borrower
or any rights of the Agents or the Banks consequent thereon.
SS.7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
SS.8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT
REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
a document under seal as of the date first above written.
WHITEHALL JEWELLERS, INC. (f/k/a Marks
Bros. Jewelers, Inc.)
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: EVP - CFO
FLEET CAPITAL CORPORATION,
individually and as Administrative Agent, as
Collateral Agent and as Syndication Agent
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Syndication Agent
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V., individually and as
Syndication Agent
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: VP
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: EVP
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: VP
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BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
Title: Senior Vice President
SOVEREIGN BANK NEW ENGLAND
By: /s/ Xxxxxxx Maleeba
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Name: Xxxxxxx Maleeba
Title: Vice President
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SCHEDULE A
1. Guaranty (executed by WH and XXX.xxx)
2. Amended and Restated Security Agreement (executed by
Whitehall, WH and XXX.xxx)
3. Perfection Certificate (WH)
4. Perfection Certificate (XXX.xxx)
5. UCC-1 financing statements listing WH and XXX.xxx as
Debtors to be filed with SOS-IL.
6. Stock Pledge Agreement (Whitehall of the stock of WH,
acknowledged by WH)
7. Trademark Agreement (WH)
8. Membership Interest Pledge Agreement (Whitehall of the
interests of XXX.xxx, acknowledged by XXX.xxx)
