NINTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND
GOLD CONSIGNMENT AGREEMENT
Ninth Amendment, dated as of October 31, 2001 (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:
Section 1. Amendments to Credit Agreement.
(a) Section 12.1 of the Credit Agreement is hereby amended by deleting
the table contained therein in its entirety and replacing it with the following
new table:
Period Ratio
2/1/01 through 4/30/01 3.50:1.00
5/1/01 through 7/31/01 3.75:1.00
8/1/01 through 10/31/01 4.50:1.00
11/1/01 through 1/31/02 3.25:1.00
2/1/02 through 7/31/02 3.00:1.00
8/1/02 through 10/31/02 2.75:1.00
11/1/02 through 1/31/03 2.50:1.00
Thereafter 2.25:1.00
(b) Section 12.2 of the Credit Agreement is hereby amended by inserting
after the table contained therein, the following sentence:
"Notwithstanding the foregoing, at any time prior to the end of the
fiscal year of the Borrower ended January 31, 2002, the Borrower will
not, nor will it permit any of its Subsidiaries to, enter into any
contractual arrangements which would result in Capital Expenditures in
excess of $9,500,000 to be incurred in the fiscal year of the Borrower
ended January 31, 2003."
(c) Section 12.5 of the Credit Agreement is hereby amended by deleting
the table contained therein in its entirety and replacing it with the following
new table:
Period Amount
2/1/01 through 7/31/01 $26,000,000
8/1/01 through 10/31/01 $25,000,000
11/1/01 through 7/31/02 $29,000,000
8/1/02 through 10/31/02 $30,000,000
11/1/02 through 1/31/03 $34,000,000
2/1/03 through 4/30/03 $35,000,000
5/1/03 through 7/31/03 $36,500,000
8/1/03 through 10/31/03 $37,000,000
11/1/03 and thereafter $38,500,000
Section 2. 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 amount equal to $32,200, such amendment fee to be
allocated among the Banks which consent to this Amendment on or prior to
November 6, 2001 in accordance with their respective Commitment Percentages,
with the remainder (if any) to be allocated in the sole discretion of the
Administrative Agent.
Section 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.
Section 4. Additional Covenants. The Borrower further covenants and
agrees that a Default and an Event of Default will occur on and as of January
31, 2002 if, during the period commencing on the date hereof through January 31,
2002, there has not been a period of thirty (30) consecutive days during which
(a) the sum of the outstanding amount of the Revolving Credit Loans (after
giving effect to all amounts requested) plus the outstanding amount of the Swing
Line Loans plus the Maximum Drawing Amount and all Reimbursement Obligations is
less than $45,000,000, and (b) the Fair Market Value of Consigned Precious Metal
outstanding is less than or equal to 76,500 troy ounces.
Section 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 Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended hereby.
Section 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.
Section 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.
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Section 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).
IN WITNESS WHEREOF, the parties hereto have executed this Ninth
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:
FLEET CAPITAL CORPORATION, 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:
SOVEREIGN BANK NEW ENGLAND
By:
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Name:
Title: