EXHIBIT 10.1
TENTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND
GOLD CONSIGNMENT AGREEMENT
Tenth Amendment, dated as of June 30, 2002 (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 1.1 of the Credit Agreement is hereby amended by inserting
the following new definition in the appropriate alphabetical sequence:
"Applicable Availability Amount. For any month ending during any period
set forth in the table below, the amount set forth opposite such period in such
table:
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Month Amount
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January 1 through January 31 $50,000,000
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February 1 through February 28/29 $35,000,000
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March 1 through March 31 $30,000,000
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April 1 through May 31 $25,000,000
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June 1 through June 30 $20,000,000
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July 1 through September 30 $15,000,000
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October 1 through October 31 $20,000,000
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November 1 through November 30 $25,000,000
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December 1 through December 31 $45,000,000
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(b) Section 11.4 of the Credit Agreement is hereby amended by restating
it in its entirety as follows:
"11.4 DISTRIBUTIONS. The Borrower will not make any Distributions,
except for:
(a) repurchases of the Borrower's Class B common stock in an
aggregate amount not to exceed $150,000 for all such repurchases;
(b) repurchases of its common stock in an aggregate amount not
to exceed $22,500,000, provided that such repurchases shall only be
permitted so long as (i) no Default or Event of Default has occurred
or is continuing or would result after giving effect to such
repurchase, and (ii) the Borrower can demonstrate availability
(based at the option of the Borrower on either the Borrowing Base
Report most recently delivered to the Banks pursuant to Section
10.4(f) hereof or an updated Borrowing Base Report since such date)
after giving effect to such repurchase, in excess of the Applicable
Availability Amount, provided, further, that upon the request of the
Administrative Agent or the Majority Banks, the Borrower shall
deliver an updated Borrowing Base Report within three (3) Business
Days of such request evidencing compliance with the Applicable
Availability Amount; and
(c) in the event that such repurchase would not otherwise be
permitted by clause (b) above, repurchases of its common stock in an
aggregate amount not to exceed $2,500,000, provided that such
repurchases shall only be permitted so long as no Default or Event of
Default has occurred or is continuing or would result after giving
effect to such repurchase."
SS.2. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become
effective until the Administrative Agent receives a counterpart of this
Amendment, executed by each of the Borrower, the Agents and the Majority Banks.
SS.3. 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.4. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement and all documents, instruments and agreements related thereto,
including,
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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 Credit Agreement or any related agreement or instrument to the
Credit Agreement shall hereafter refer to the Credit Agreement as amended
hereby.
SS.5. 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.6. 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.7. 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).
IN WITNESS WHEREOF, the parties hereto have executed this Tenth 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: Executive Vice President
FLEET CAPITAL CORPORATION, individually
and as Administrative Agent, as Collateral
Agent and as Syndication Agent
By: /s/ XXXXXX X. 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: Vice President
ABN AMRO BANK N.V., individually and as
Syndication Agent
By: /s/ XXXXXXX XXXXXXX
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ XXX XXXXXXXXX
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Name: Xxx Xxxxxxxxx
Title: Vice President
XX XXXXXX XXXXX BANK
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
SOVEREIGN BANK NEW ENGLAND
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
