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Exhibit 10.51
FIRST AMENDMENT
TO
TERM LOAN CREDIT AGREEMENT
FIRST
AMENDMENT, dated as of April 30, 2008 (this “
Amendment ”), to the Term Loan Credit Agreement, dated
as of January 18, 2008 (as amended, restated or otherwise modified
from time to time, the “ Credit Agreement ”), by
and among (a) WHITEHALL JEWELERS, INC. (the “
Borrower ”), a Delaware corporation having its
principal place of business at 125 South Wacker Drive, Suite 2600,
Chicago, Illinois 60606; (b) the lending institutions from time to
time party thereto (collectively, the “ Lenders
”); and (c) PWJ LENDING II LLC (“
Prentice ”), a Delaware limited liability company, as
administrative agent (in such capacity, the “
Administrative Agent ”) and as collateral agent (in
such capacity, the “ Collateral Agent ” and,
together with the Administrative Agent, each an “
Agent ” and collectively, the “ Agents
”) for the Agents and the Lenders.
W I T N E S S E T
H
WHEREAS,
the Borrower and the Lenders are parties to the Credit Agreement,
pursuant to which the Lenders have made an initial term loan to the
Borrower in the aggregate principal amount of $25,000,000 and an
additional term loan to the Borrower in the aggregate principal
amount of $10,000,000;
WHEREAS,
the Borrower has requested that the Credit Agreement be amended to
provide for, among other things, the making by the Lenders of a
multi-draw third term loan to the Borrower in the aggregate
principal amount of $15,000,000, the proceeds of which shall be
used for working capital and general corporate purposes;
and
WHEREAS,
the Lenders are willing to amend the Credit Agreement in accordance
with the terms and conditions set forth herein.
NOW
THEREFORE, the Borrower, the Agents and the Lenders, agree as
follows:
1.
Definitions . Any capitalized term used and not defined
herein shall have the meaning assigned to such term in the Credit
Agreement.
2.
Amendments to Credit Agreement .
(a)
New Definitions . Section 1.1 of the Credit Agreement
is hereby amended by adding the following definitions of the terms
“ First Amendment ”, “ Guarantor
Consent ”, “ Notice of “Borrowing
”, “ Third Borrowing Period ”, “
Third Closing Date ”, “ Third Term Loan
”, “ Third Term Loan Commitment ”, “
Third Term Loan Fee ” and “ Third Term Loan
Notes ” thereto in appropriate alphabetical order to read
in their entirety as follows:
First Amendment The First Amendment to Term Loan Credit
Agreement, dated as of April 30, 2008, by and among the Borrower,
the Lenders and the Agents.
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Guarantor Consent . An Acknowledgement, Consent and
Reaffirmation, dated as of April 30, 2008, made by the Guarantor in
favor of the Agents and the Lenders in substantially the form
attached to the First Amendment as Exhibit B .
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Notice of Borrowing . See Section 2.1(c)(iii)
.
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Third Borrowing Period. The period of time commencing on the
Third Closing Date until the earliest of (a) the date on which the
Third Term Loan Commitment is reduced to zero, (b) the date on
which this Agreement is terminated (whether by maturity,
acceleration or otherwise) pursuant to the terms hereof or (c) May
2, 2009.
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Third Closing Date . The date on which (a) each of the
Conditions to Effectiveness set forth in Section 3 of the
First Amendment is satisfied or waived by the Agents and (b) the
first draw under the Third Term Loan is made by the
Borrower.
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Third Term Loan . See Section 2.1(c)(i) .
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Third Term Loan Commitment . With respect to each Lender,
the amount set forth on Schedule 1 to the First Amendment as
the amount of such Lender’s commitment to make the Third Term
Loan to the Borrower pursuant to the terms of the Credit
Agreement.
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Third Term Loan Fee . See Section 4(b) of the First
Amendment.
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Third Term Loan Notes . See Section 2.2(a)
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(b)
Existing Definitions . The definitions of the terms “
Commitment Percentag e”, “ Commitments
”, “ Loan Documents ”, “ Majority
Lenders ”, “ Notes ”, “
Required Lenders ”, “ Second Term Loan
Notes ”, “ Term Loa n”, “
Term Loans ”, “ Total Commitment ”
and “ Unanimous Lenders ” set forth in
Section 1.1 of the Credit Agreement are hereby amended and
restated in their entirety, to read as follows:
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Commitment Percentage . With respect to each Lender, the
percentage obtained by dividing (i) the Lender’s Commitments
by (ii) the sum of the Total Commitment, provided that if
the Total Commitment has been reduced to zero, the numerator shall
be the aggregate unpaid principal amount of such Lender’s
portion of the Term Loans and the denominator shall be the
aggregate unpaid principal amount of the Term Loans.
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Commitments . With respect to each Lender, its respective
Initial Term Loan Commitment, Second Term Loan Commitment and Third
Term Loan Commitment.
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Loan Documents . This Credit Agreement, the Notes, the
Security Documents, the First Amendment, the Guarantor Consent and
all other agreements, instruments and other documents executed and
delivered pursuant
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hereto or thereto or otherwise evidencing,
guaranteeing or securing the Loans or any other
Obligations.
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Majority Lenders . As of any date, the Lenders (other than
Delinquent Lenders) whose Commitment Percentages aggregate at least
fifty-one percent (51%).
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Notes . Each of the Initial Term Loan Notes, the Second Term
Loan Notes and the Third Term Loan Notes.
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Required Lenders . As of any date, the Lenders (other than
Delinquent Lenders) whose Commitment Percentages aggregate at least
sixty-six and two-thirds percent (66⅔%).
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Second Term Loan Notes . See Section 2.2(a)
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Term Loan . The Initial Term Loan, the Second Term Loan or
the Third Term Loan, as applicable.
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Term Loans . The Initial Term Loan, the Second Term Loan and
the Third Term Loan.
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Total Commitment . The sum of the Commitments (whether
funded or unfunded) of the Lenders, such amount being equal to (i)
$35,000,000 as of the Initial Closing Date and (ii) $50,000,000as
of the Third Closing Date.
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Unanimous Lenders . As of any date, the Lenders (other than
Delinquent Lenders) whose Commitment Percentages aggregate One
hundred percent (100%).
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(c)
Section 2.1 of the Credit Agreement is hereby amended by (i)
redesignating clauses (c), (d) and (e) thereof as clauses (d), (e)
and (f), respectively and (ii) inserting therein new clause (c) to
read as follows:
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(c)
(i) Each Lender, severally and not jointly and severally with any
other Lender, agrees, upon the terms and subject to the conditions
herein set forth, to make one or more term loans (individually and
collectively, the “ Third Term Loan ”) to the
Borrower at any time and from time to time during the Third
Borrowing Period in accordance with the terms hereof (A) in a
principal amount for each Third Term Loan not to exceed the
unfunded portion of such Lender’s Third Term Loan Commitment
and (B) in an aggregate principal amount not to exceed the amount
of such Lender’s Third Term Loan Commitment.
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(ii)
Notwithstanding the foregoing, the aggregate principal amount of
all Third Term Loans made at any time by all Lenders shall not
exceed the Third Term Loan Commitment.
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(iii)
(A) The Borrower shall give the Administrative Agent prior
telephonic notice (immediately confirmed in writing, in a form
satisfactory to the Administrative Agent (a “ Notice of
Borrowing ”), not later than 12:00 noon (New York City
time) on the date which is three (3) Business Days prior to the
date of the proposed Third Term Loan (or such shorter period as the
Administrative Agent is willing to accommodate from time to time,
but in no event later than 12:00 noon (New York City time) on the
borrowing date of the proposed Third Term Loan). Such Notice of
Borrowing shall be irrevocable and shall specify (1) the principal
amount of the proposed Third Term Loan, (2) the use of the proceeds
of the proposed Third Term Loan, and (3) the proposed borrowing
date, which must be a Business Day. The Administrative Agent and
the Lenders may act without liability upon the basis of written,
telecopied or telephonic notice believed by the Administrative
Agent in good faith to be from the Borrower (or from any authorized
officer thereof designated in writing purportedly from the Borrower
to the Administrative Agent). The Borrower hereby waives the right
to dispute the Administrative Agent’s record of the terms of
any such telephonic Notice of Borrowing. The Administrative Agent
and each Lender shall be entitled to rely conclusively on any
authorized officer’s authority to request a Third Term Loan
on behalf of the Borrower until the Administrative Agent receives
written notice to the contrary. The Administrative Agent and the
Lenders shall have no duty to verify the authenticity of the
signature appearing on any written Notice of Borrowing.
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(iv)
Each Notice of Borrowing pursuant to this Section
2.1(c)(iii) shall be irrevocable and the Borrower shall be
bound to make a borrowing in accordance therewith. Each Third Term
Loan shall be made in a minimum amount of $2,500,000 and shall be
in an integral multiple of $500,000.
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(v)
The Third Term Loan Commitment shall be reduced by the amount of
each borrowing of a Third Term Loan. Once reduced, the Third Term
Loan Commitment may not be increased. Each such reduction of the
Third Term Loan Commitment shall reduce the Third Term Loan
Commitment of each Lender proportionately in accordance with its
Commitment Percentage thereof.
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(d)
Newly designated Section 2.1(f) of the Credit Agreement is
hereby amended by deleting the reference therein to “Section
2.1(d)” and inserting in lieu thereof “Section
2.1(f)”
(e)
Section 2.2(a) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
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(a)
The Initial Term Loan shall be evidenced by this Credit Agreement
and/or one or more promissory notes duly executed on behalf of the
Borrower,
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dated the Initial Closing Date, in substantially
the form attached hereto as Exhibit A-1 (each, an “
Initial Term Loan Note ” and, collectively, the
“ Initial Term Loan Notes ”), payable to the
order of a Lender in the aggregate principal amount equal to the
principal amount of the portion of the Initial Term Loan advanced
by such Lender plus the amount of any interest capitalized thereon
in accordance with the terms of this Credit Agreement. The Second
Term Loan shall be evidenced by this Credit Agreement and/or one or
more promissory notes duly executed on behalf of the Borrower,
dated the Second Closing Date, in substantially the form attached
hereto as Exhibit A-2 (each, a “ Second Term Loan
Note ” and, collectively, the “ Second Term Loan
Notes ”), payable to the order of a Lender in the
aggregate principal amount equal to the principal amount of the
portion of the Second Term Loan advanced by such Lender plus the
amount of any interest capitalized thereon in accordance with the
terms of this Credit Agreement. The Third Term Loan shall be
evidenced by this Credit Agreement and/or one or more promissory
notes duly executed on behalf of the Borrower, dated the Third
Closing Date (or, with respect to any additional funding under the
Third Term Loan, the date of such additional funding), in
substantially the form attached to the First Amendment as
Exhibit A (each, a “ Third Term Loan Note
” and, collectively, the “ Third Term Loan Notes
”), payable to the order of a Lender in the aggregate
principal amount equal to the principal amount of the portion of
the Third Term Loan advanced by such Lender plus the amount of any
interest capitalized thereon in accordance with the terms of this
Credit Agreement. The outstanding principal balance of all
Obligations shall be payable on the Maturity Date (subject to
earlier repayment as provided below). The Term Loans (including,
without limitation, any interest capitalized thereon and added to
the outstanding principal balance of such Loans in accordance with
the terms hereof) shall bear interest from the date hereof on the
outstanding principal balance thereof as set forth in this
Section 2 or Section 5 , as the case may be. Each
Lender is hereby authorized by the Borrower to endorse on a
schedule attached to each Note delivered to such Lender (or on a
continuation of such schedule attached to such Note and made a part
thereof), or otherwise to record in such Lender’s internal
records, an appropriate notation evidencing the date and amount of
each Term Loan from such Lender, each payment and prepayment of
principal of such Term Loan, each payment of interest on such Term
Loan and the other information provided for on such schedule;
provided , however , that the failure of any Lender
to make such a notation or any error therein shall not affect the
obligation of the Borrower to repay any Term Loan made by such
Lender in accordance with the terms of this Credit Agreement and
the applicable Notes.
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(f)
Section 2.4 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
Section
2.4 Termination of Commitments .
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Each
Initial Term Loan Commitment shall terminate at 5:00 p.m. (New York
City time) on the Initial Closing Date, each Second Term Loan
Commitment shall terminate at 5:00 p.m. (New York City time) on the
Second
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Closing Date and each Third Term Loan Commitment
shall terminate at 5:00 p.m. (New York City time) on the last day
of the Third Borrowing Period; provided , however ,
that (a) each Second Term Loan Commitment shall terminate
automatically if the Second Closing Date does not occur on or
before April 30, 2008 and (b) each Third Term Loan Commitment shall
terminate automatically if the Third Closing Date does not occur on
or before May 2, 2008.
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(g)
Section 8.12 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
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8.12
Use of Proceeds . The Borrower will use the proceeds of the
Term Loans for working capital and general corporate
purposes.
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(h)
Schedule 1 of the Credit Agreement is hereby amended and
restated in its entirety to read as set forth on Schedule 1
annexed to this Amendment.
3.
Conditions to Effectiveness . The effectiveness of this
Amendment and the making of the Third Term Loan is subject to the
following conditions precedent:
(a)
Representations and Warranties . Before and after giving
effect to this Amendment and to the application of the proceeds of
the first draw under the Third Term Loan, the representations and
warranties contained herein, in the Credit Agreement and in the
other Loan Documents shall be true and correct on and as of the
date hereof, as though made on and as of such date, except that any
such representations and warranties that expressly relate to a
specific date shall be true and correct on and as of such date; and
no event shall have occurred or would result from the funding of
the first draw under the Third Term Loan or from the application of
the proceeds therefrom that would constitute an Event of Default or
a Default;
(b)
Delivery of Documents . The Administrative Agent shall have
received the following, each in form and substance satisfactory to
the Administrative Agent:
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(i)
counterparts of this Amendment duly executed by the Borrower, the
Agents and the Lenders;
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(ii)
a Third Term Loan Note duly executed and delivered by the Borrower
with respect to the Third Term Loan;
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(iii)
the Guarantor Consent, duly executed by the Guarantor;
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(iv)
a consent agreement, duly executed by the Senior Collateral Agent,
on behalf of the Senior Lenders, consenting to the execution and
delivery of this Amendment by the Borrower and the funding by the
Lenders of the first draw under the Third Term Loan to the
Borrower;
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(v)
to the extent not previously delivered to the Agents, copies of the
Borrower’s and the Guarantor’s charter or other
incorporation documents, the by-laws and all amendments or other
modifications as in effect as of the date hereof and the Third
Closing Date, in each case, certified by a duly authorized officer
of such Person
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to be true and complete as of the Third Closing
Date;
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(vi)
evidence satisfactory to the Administrative Agent of all corporate
action duly and effectively taken by the Borrower, the Guarantor
and each of their respective Subsidiaries necessary for the valid
execution, delivery and performance of this Amendment, the Third
Term Loan Notes and the Guarantor Consent;
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(vii)
an incumbency certificate, dated as of the date hereof signed by a
duly authorized officer of each of the Borrower and the Guarantor,
which provides the name and specimen signature of each individual
who is authorized to sign, in the name and on behalf of such
Person, this Amendment, the Third Term Loan Notes, the Guarantor
Consent and each other documents entered into on the Third Closing
Date to which such Person is or is to become a party;
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(viii)
the results of current UCC searches with respect to the Collateral,
indicating that there are no liens on the Collateral other than
Permitted Liens;
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(ix)
a favorable legal opinion addressed to the Lenders and the Agents,
dated as of the date hereof from Holland & Knight LLP, counsel
to the Borrower, the Guarantor and their respective Subsidiaries;
and
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(x)
such other agreements, documents, instruments and certificates as
the Agents may reasonably request.
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(c) Consents and Approvals . The Agents shall have received
satisfactory evidence that (i) all of the parties to the
transactions
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