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EXHIBIT 10.4
THIRD AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND
GOLD CONSIGNMENT AGREEMENT
Third Amendment dated as of February 9, 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) BankBoston, N.A., 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) BankBoston,
N.A., 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. AMENDMENT TO SS.12.2 OF THE CREDIT AGREEMENT. Notwithstanding
anything to the contrary contained in ss.12.2 of the Credit Agreement, the
Borrower may make Capital Expenditures during the Borrower's fiscal year ending
January 31, 2000 in an amount not to exceed $23,500,000 (the "1999 Capital
Expenditures"); provided, however, that in no event shall any unutilized portion
of the 1999 Capital Expenditures be utilized in any subsequent fiscal year.
SS.2. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become
effective until the Administrative Agent receives a counterpart of this
Amendment, executed by the each of the Borrower, the Agents and each of the
Banks.
SS.3. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Borrower contained in the Credit Agreement 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.
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SS.4. 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 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).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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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:
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Name:
Title:
BANKBOSTON, N.A., individually and as
Administrative Agent, as Collateral Agent and
as Syndication Agent
By:
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Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
individually and as Syndication Agent
By:
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Name:
Title:
ABN AMRO BANK N.V., individually and as
Syndication Agent
By:
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Name:
Title:
By:
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Name:
Title:
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THE CHASE MANHATTAN BANK
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
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Name:
Title:
