EXHIBIT 10.33
AMENDMENT NUMBER THREE TO LOAN AGREEMENT
(TOWN & COUNTRY CORPORATION AND SUBSIDIARIES)
THIS AMENDMENT NUMBER THREE TO LOAN AGREEMENT (this "Amendment"), dated as
of July 11, 1994, is entered into between Town & Country Corporation, a
Massachusetts corporation, Town & Country Fine Jewelry Group, Inc., a
Massachusetts corporation, Gold Lance, Inc., a Massachusetts corporation, L.G.
Balfour Company, Inc., a Delaware corporation (which aforesaid corporations,
individually and collectively, jointly and severally, and together with their
successors and assigns, are herein referred to as "Borrower"), and Foothill
Capital Corporation, a California corporation ("Foothill"), in light of the
following:
WHEREAS, Borrower and Foothill are parties to that certain Loan Agreement
dated as of May 14, 1993 (as from time to time amended, modified, supplemented,
renewed, extended, or restated, the "Loan Agreement"); and
WHEREAS, Borrower has requested that certain provisions of the Loan
Agreement be amended, and Foothill has agreed to amend such provisions in
accordance with the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants,
conditions, and provisions as hereinafter set forth, the parties hereto agree as
follows:
1. Initially capitalized terms used herein have the meanings defined in the
Loan Agreement unless otherwise defined herein.
2. The following definitions contained in Section 1.1 of the Loan Agreement
hereby are amended and restated in their entirety as follows:
"Maximum Amount" means Thirty Million Dollars ($30,000,000) during
January, February, March, April, May, June, July, and August of any year, and
Thirty Five Million Dollars ($35,000,000) during September, October, November,
and December of any year.
"Maximum Foothill Amount" means that portion of the Maximum Amount for
which Foothill is responsible, exclusive of any participations with
Participants, which amount is Seventeen Million Five Hundred Thousand Dollars
($17,500,000) during January, February, March, April, May, June, July, and
August of any year, and Twenty Million Four Hundred Sixteen Thousand Six Hundred
Sixty Seven Dollars ($20,416,667) during September, October, November, and
December of any year; provided, however, that each time the Maximum Amount is
reduced pursuant to Section 2.3 hereof, the Maximum Foothill Amount shall be
reduced proportionately.
3. Section 6.13(b) of the Loan Agreement hereby is amended and
restated in its entirety to read as follows:
"(b) Consolidated Tangible Net Worth. Consolidated Tangible Net
Worth at all times up to and including February 27, 1994, of at least Thirty
Eight Million Dollars ($38,000,000), at all times from and after February 28,
1994, up to and including June 30, 1994, of at least Forty Three Million Dollars
($43,000,000), at all times from and after July 1, 1994, up to and including
November 26, 1994, of at least Forty Million Dollars ($40,000,000), and, at all
times thereafter, of at least Forty Three Million Dollars ($43,000,000)."
4. Borrower hereby represents and warrants to Foothill as
follows:
(a) The execution, delivery, and performance by Borrower of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
or notice to or action by, any Person in order to be effective and enforceable.
(b) The Loan Agreement, as amended by this Amendment, constitutes the
legal, valid, and binding obligation of Borrower, enforceable against Borrower
in accordance with its terms, without defense, counterclaim, or offset.
5. Foothill and Borrower also agree that:
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Loan Agreement are and shall remain in full force and effect
and all references therein to the Loan Agreement shall henceforth refer to the
Loan Agreement as amended by this Amendment. This Amendment shall be deemed
incorporated into, and a part of, the Loan Agreement.
(b) This Amendment shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
(c) This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, and all such counterparts together shall
constitute but one and the same instrument. This Amendment shall become
effective when each party has executed and delivered a counterpart hereof. Upon
this Amendment becoming effective, the changes to the provisions of Section 1.1
of the Loan Agreement provided for in this Amendment shall operate prospectively
and not retroactively.
(d) This Amendment, together with the Loan Agreement and the other
Loan Documents, contains the entire and exclusive agreement of the parties
hereto with reference to the matters discussed herein and therein. This
Amendment supersedes all prior drafts and communications with respect thereto.
This Amendment may not be amended except in writing executed by both of the
parties hereto.
(e) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Loan Agreement, respectively.
IN WITNESS HEREOF, this Amendment has been executed and delivered as of the
date first set forth of above.
TOWN & COUNTRY CORPORATION,
a Massachusetts corporation
By__/s/ Francis X. Correra_____________
Its_Sr. Vice President & CFO_ _________
TOWN & COUNTRY FINE JEWELRY GROUP, INC.,
a Massachusetts corporation
By__/s/ Francis X. Correra_____________
Its_Treasurer/Director & V.P._________
GOLD LANCE, INC.,
a Massachusetts corporation
By__/s/ Francis X. Correra_____________
Its_Treasurer & Director_______________
L.G. BALFOUR COMPANY, INC.,
a Delaware corporation
By__/s/ Francis X. Correra_____________
Its_Exec. V.P., & Treasurer & Director_
FOOTHILL CAPITAL CORPORATION,
a California corporation
By__/s/ Beth A. Pease__________________
Its_Assistant Vice President___________
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