WAIVER AND SECOND AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT AND CREDIT DOCUMENTS
THIS WAIVER AND SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT AND CREDIT DOCUMENTS ("Amendment"), dated as of October 24, 2002 (the
"Amendment Date"), is among Xxxxxxxx'x Inc., a Delaware corporation, each of its
Subsidiaries party hereto, Bank of America, N.A. (in its capacity as
administrative agent for the Lenders), and each of the lending institutions
party hereto.
RECITALS:
A. The Credit Parties, the Lenders, and the Agent have entered into
that certain Amended and Restated Credit Agreement dated as of August 28, 2002
(as amended, the "Credit Agreement") pursuant to which the Lenders have provided
certain credit facilities to the Borrowers.
B. The Credit Parties have requested that the Lenders amend certain
provisions of the Credit Agreement and waive Events of Default under the Credit
Agreement as provided hereinbelow.
C. Subject to satisfaction of the conditions set forth herein, the
Lenders are willing to amend the Credit Agreement and provide the requested
waivers of Events of Default as specifically provided herein.
NOW, THEREFORE, BE IT RESOLVED, THAT, in consideration of the premises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in the
Credit Agreement, as amended hereby.
ARTICLE 2
Waiver of Event of Default
Section 2.1 Waiver of Event of Default. The Credit Parties have failed
to deliver on or before October 12, 2002, (a) the terminations, releases, and
UCC amendments prescribed by clause (c) of paragraph 1 of the certain
Postclosing Agreement dated as of the Closing Date among the original parties to
the Credit Agreement (as amended or otherwise modified from time to time, the
"Postclosing Agreement") which is an Event of Default under the Postclosing
Agreement and (b) the terminations,
releases, and UCC amendments prescribed by clause (o) of the definition of
"Permitted Liens" set forth in the Credit Agreement which has resulted in a
breach of the covenant contained in Section 7.2 of the Credit Agreement and an
Event of Default pursuant to Section 8.1(c)(i) of the Credit Agreement
(collectively, the "Specified Defaults"). The Credit Parties have requested that
the Lenders waive the Events of Default resulting from the Specified Defaults.
Effective as of the Amendment Date, and subject to the conditions precedent and
other terms of this Amendment, the requisite Lenders hereby waive the Events of
Default resulting from the Specified Defaults.
ARTICLE 3
Amendments
Section 3.1 Amendment to Cover Page of the Credit Agreement. Effective
as of the Amendment Date, the cover page of the Credit Agreement is amended and
restated in its entirety to read as set forth in Annex A of this Amendment.
Section 3.2 Amendment to Section 1.1 of the Credit Agreement. Effective
as of the Amendment Date, Section 1.1 of the Credit Agreement is amended as
follows:
(a) the definition of "Borrowing Base" in Section 1.1 of the
Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"Borrowing Base" means, as of any day, an amount
equal to the sum of (a) the Receivables Advance Rate
multiplied by the Net Balance of the Borrowers' Eligible
Installment Contracts, plus (b) the lesser of (i) fifty
percent (50.0%) of the Borrowers' Eligible Inventory, (ii)
eighty-five percent (85.0%) of the Net Recovery Value of the
Borrowers' inventory, or (iii) $75,000,000, minus (c)
Reserves, minus (d) on any day other than the Closing Date,
$5,000,000.
(b) the definition of "Permitted Investments" in Section 1.1
of the Credit Agreement is hereby amended and restated to read in its
entirety as follows:
"Permitted Investments" means Investments which are
(a) cash and Cash Equivalents, (b) accounts receivable
created, acquired, or made in the ordinary course of business
and payable or dischargeable in accordance with customary
trade terms, (c) Investments consisting of Capital Stock,
obligations, securities, or other Property received in
settlement of accounts receivable (created in the ordinary
course of business) from bankrupt obligors, (d) Investments
existing as of the Closing Date and set forth in Schedule
1.1B, (e) advances or loans to directors, officers, and
employees in the ordinary course of business for reasonable
business expenses that do not exceed $1,000,000 in the
aggregate at any one time outstanding, (f) Investments by
members of the
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Consolidated Group in their Subsidiaries and Affiliates
existing on the Closing Date; provided that such Investments,
direct and indirect, in Crescent Jewelers, Inc., its
Subsidiaries, and parent companies (collectively herein
"Crescent Parties") shall not at anytime exceed $95,000,000 in
the aggregate as follows: (i) an initial investment of
$85,000,000 on the Closing Date; (ii) an additional Investment
not in excess of $5,000,000 in the aggregate at anytime after
the Closing Date if the Excess Availability immediately after
giving effect to the making of such Investment is equal to or
greater than $10,000,000; provided that if such additional
Investment is made in December the Excess Availability
immediately after giving effect to the making of such
Investment shall be equal to or greater than $35,000,000; and
(iii) an additional Investment not in excess of $5,000,000 in
the aggregate if the Excess Availability immediately after
giving effect to the making of such Investment is equal to or
greater than the Minimum Excess Availability Requirement, (g)
Investments by members of the Consolidated Group in and to
Domestic Credit Parties, (h) Investments which constitute
Permitted Acquisitions, (i) Investments in Persons that do rot
become Subsidiaries (but specifically excluding any of the
Crescent Parties) after giving effect to such Investments,
representing the formation of strategic alliances or other
similar arrangements in an amount not to exceed $6,000,000 in
the aggregate at any time outstanding; provided that at the
time of making any such Investment, Excess Availability is
equal to or in excess of the Minimum Excess Availability
Requirement immediately after giving effect to such
Investment, and no Default or Event of Default exists, and (j)
other Investments of a nature not contemplated in clauses (a)
through (j) preceding (but specifically excluding any
Investment in any of the Crescent Parties) in an amount not to
exceed $3,000,000 in the aggregate at any time outstanding.
(c) clause (o) in the definition of "Permitted Liens" in
Section 1.1 of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
(o) Liens existing as of the Closing Date and set
forth in Schedule 1.1C; provided that no such Lien shall at
anytime be extended to or cover any Property other than the
Property subject thereto on the Closing Date, and provided
further, notwithstanding the foregoing, any such Lien which
purports to cover Collateral, including, without limitation,
proceeds of consigned goods described in clause (p) following
shall not be a Permitted Lien after the expiration of one
hundred twenty (120) days after the Closing Date.
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Section 3.3 Amendment to Section 10.6(a)(ix) of the Credit Agreement.
Effective as of the Amendment Date, Section 10.6(a)(ix) of the Credit Agreement
is hereby amended and restated to read in its entirety as follows:
(ix) amend the definition of (A) Eligible Installment
Contracts, Eligible Inventory, or Reserves if the effect of
any or all of such amendments would increase the determination
of the Borrowing Base by more than five percent (5.0%) or (B)
Borrowing Base, Receivables Advance Rate, or the proviso
contained in clause (f) of the definition of Permitted
Investments (including clause (i), clause (ii), or clause iii
thereof).
Section 3.4 Amendment to Section 10.17 of the Credit Agreement.
Effective as of the Agreement Date, Section 10.17 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
Section 10.17 Agency of Xxxxxxxx'x for Each Other
Credit Party. Each of the other Credit Parties irrevocably
appoints Xxxxxxxx'x as its agent for all purposes relevant to
this Agreement, including the giving and receipt of notices
and execution and delivery of all documents, instruments, and
certificates contemplated herein and all modifications hereto.
Any acknowledgment, consent, direction, certification, or
other action which might otherwise be valid or effective only
if given or taken by all or any of the Credit Parties or
acting singly, shall be valid and effective if given or taken
only by Xxxxxxxx'x, whether or not any of the other Credit
Parties joins therein, and the Agent and the Lenders shall
have no duty or obligation to make further inquiry with
respect to the authority of Xxxxxxxx'x under this Section
10.17, provided that nothing in this Section 10.17 shall limit
the effectiveness of, or the right of the Agent and the
Lenders to rely upon, any notice (including without limitation
a Notice of Borrowing or a Notice of Continuation/Conversion),
document, instrument, certificate, acknowledgment, consent,
direction, certification, or other action delivered by any
Credit Party pursuant to this Agreement.
ARTICLE 4
Amendment to Credit Documents
Section 4.1 Amendments to Postclosing Agreement. Effective as of the
Amendment Date, the Postclosing Agreement is hereby amended as follows:
(a) the words "within forty five (45) days of the Agreement
Date," where they appear in clause (c) of paragraph 1 of the
Postclosing Agreement, are
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hereby amended to read "within one hundred twenty (120) days of the
Agreement Date"; and
(b) the words "within sixty (60) days of the Agreement Date,"
where they appear in clause (d) of paragraph 1 of the Postclosing
Agreement, are hereby amended to read "within ninety (90) days of the
Agreement Date".
ARTICLE 5
Conditions
Section 5.1 Conditions Precedent. The effectiveness of this Amendment
is subject to the satisfaction of each of the following conditions precedent:
(a) The Agent shall have received all of the following, each
dated the date of this Amendment (unless otherwise indicated), in form
and substance satisfactory to the Agent:
(i) Amendment Documents. This Amendment and any other
instrument, document, or certificate reasonably required by
the Agent to be executed or delivered by the Credit Parties in
connection with this Amendment, in each case duly executed
(the "Amendment Documents");
(ii) Additional Information. The Agent shall have
received such additional documents, instruments, and
information as the Agent may reasonably request to effect the
transactions contemplated hereby; and
(iii) Expenses. The Borrowers shall have paid to the
Agent all fees, costs, and expenses owed to and/or incurred by
the Agent in connection with the Credit Agreement or this
Amendment.
(b) 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 for such
representations and warranties limited by their terms to a specific
date.
(c) 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 satisfactory to the
Agent; and
(d) No Default or Event of Default shall be in existence after
giving effect to this Amendment.
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ARTICLE 6
Miscellaneous
Section 6.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and, except as expressly modified and superseded
by this Amendment, the terms and provisions of the Credit Agreement and the
other Credit Documents are ratified and confirmed and shall continue in full
force and effect. Each of the Credit Parties, the Agent, and the Lenders agree
that the Credit Agreement as amended hereby and the other Credit Documents shall
continue to be legal, valid, binding, and enforceable in accordance with their
respective terms.
Section 6.2 Representations and Warranties. Each Credit Party hereby
represents and warrants to the Agent and the Lenders that, as of the date of and
after giving effect to this Amendment, (a) the execution, delivery, and
performance of this Amendment and any and all other Amendment Documents executed
and/or delivered in connection herewith have been authorized by all requisite
action on the part of such Credit Party and will not violate such Credit Party's
organizational or governing document, (b) the representations and warranties
contained in the Credit Agreement and in the other Credit Documents are true and
correct on and as of the date hereof, in all material respects, as if made again
on and as of the date hereof except for such representations and warranties
limited by their terms to a specific date, and (c) after giving effect to this
Amendment, no Default or Event of Default exists.
Section 6.3 Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan
Document, including any Loan Document furnished in connection with this
Amendment, shall survive the execution and delivery of this Amendment and the
other Credit Documents, and no investigation by the Agent or any Lender, or any
closing, shall affect the representations and warranties or the right of the
Agent and the Lenders to rely upon them.
Section 6.4 Reference to Credit Agreement. Each of the Credit
Documents, including the Credit Agreement, the Amendment Documents, and any and
all other agreements, documents, or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the Credit
Agreement as amended hereby, are 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 hereby.
Section 6.5 Effect of Amendment. The effect of the waivers contained in
Section 2.1 of this Amendment are expressly limited as provided herein, and in
order to induce the Agent and the Lenders to agree to such waivers, each of the
Credit Parties agrees that such waivers shall not constitute or be deemed a
waiver of any other Event of Default, now existing or hereafter arising, or a
waiver of any rights or remedies arising as a result of any such other Event of
Default. No consent or waiver, express or implied, by the Agent or any Lender to
or for any breach of or deviation from any covenant,
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condition, or duty by any Credit Party shall be deemed a consent or waiver to or
of any other breach of the same or any other covenant, condition, or duty. Each
of the Credit Parties (individually, a "subject Credit Party") hereby (a)
consents to the execution and delivery of this Amendment by the other Credit
Parties, (b) agrees that this Amendment shall not limit or diminish the
obligations of the subject Credit Party under its certain Credit Documents
delivered in connection with the Credit Agreement, executed or joined in by the
subject Credit Party and delivered to the Agent, (c) reaffirms the subject
Credit Party's obligations under each of such Credit Documents, and (d) agrees
that each of such Credit Documents remains in full force and effect and is
hereby ratified and confirmed.
Section 6.6 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 6.7 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
APPLICABLE LAWS OF THE UNITED STATES.
Section 6.8 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the Credit Parties, the Agent, and the Lenders and
their respective successors and assigns, except no Credit Party may assign or
transfer any of its respective rights or obligations hereunder except in
accordance with the provisions of the Credit Agreement.
Section 6.9 Counterparts. This Amendment may be executed in one or more
counterparts, and on telecopy counterparts each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 6.10 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 6.11 Entire Agreement. THIS AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS, AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION WITH
THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND
SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers in several counterparts effective as
of the Effective Date specified in the introductory paragraph hereof.
CREDIT PARTIES:
XXXXXXXX'X INC.
By: /s/
-------------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President,
Chief Financial Officer
XXXXXXXX'X FLORIDA PARTNERSHIP
By: Xxxxxxxx'x Management Corp., its
Managing Partner
By: /s/
----------------------------------
Xxxxxx X. Xxxxxx
President
FI STORES LIMITED PARTNERSHIP
By: Xxxxxxxx'x Inc., its general partner
By: /s/
----------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President,
Chief Financial Officer
XXXXXXXX'X HOLDING CORP.
By: /s/
-------------------------------------------
Xxxxxx X. Xxxxxx
Secretary and Treasurer
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XXXXXXXX'X MANAGEMENT CORP.
By: /s/
-------------------------------------------
Xxxxxx X. Xxxxxx
President
FCJV HOLDING CORP.
By: /s/
-------------------------------------------
Xxxxxx X. Xxxxxx
President
FCJV, L.P.
By: FCJV Holding Corp.,
its general partner
By: /s/
----------------------------------
Xxxxxx X. Xxxxxx
President
XXXXXXXX'X INVESTMENTS LLC
By: Xxxxxxxx'x Inc.,
its managing member
By: /s/
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
XXXXXXXX'X BENEFICIARY INC.
By: /s/
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
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AGENT:
BANK OF AMERICA, N.A.
By: /s/
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
LENDERS:
BANK OF AMERICA, N.A.
By: /s/
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
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ANNEX A
TO
SECOND AMENDMENT TO CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 28, 2002
among
XXXXXXXX' S INC.,
and
CERTAIN OF ITS SUBSIDIARIES PARTY HERETO,
as the Credit Parties,
THE LENDING INSTITUTIONS NAMED HEREIN,
as the Lenders,
BANK OF AMERICA, N.A.,
as the Administrative Agent
BANC OF AMERICA SECURITIES LLC
Sole Lead Arranger and Sole Book Manager
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Syndication Agent
JPMORGAN CHASE BANK
Documentation Agent
