1
Exhibit _________
FIFTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN
AND GOLD CONSIGNMENT AGREEMENT
FIFTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND GOLD CONSIGNMENT
AGREEMENT dated as of November 13, 1997 (this "Amendment"), by and among (a)
MARKS BROS. JEWELERS, INC. (the "Borrower"), a Delaware corporation having its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (b) the lending institutions (the "Banks") set forth on the
signature pages hereto; and (c) BANKBOSTON, N.A. (FORMERLY KNOWN AS THE FIRST
NATIONAL BANK OF BOSTON), a national banking association and RHODE ISLAND
HOSPITAL TRUST NATIONAL BANK as agents for themselves and the other Banks (in
such capacity, the "Agents"), amending certain provisions of the Revolving
Credit, Term Loan and Gold Consignment Agreement dated as of May 3, 1996 (as
amended and in effect prior to the date hereof, the "Credit Agreement"), by and
among the Borrower, the Banks and the Agents. Terms not otherwise defined
herein which are defined in the Credit Agreement shall have the respective
meanings herein assigned to such terms in the Credit Agreement.
WHEREAS, the Borrower has requested that the Agents and the Banks agree to
amend the terms of the Credit Agreement in several respects all as hereinafter
more fully set forth; and
WHEREAS, the Agents and the Banks are willing to amend the terms of the
Credit Agreement in such respects upon the terms and subject to the conditions
contained herein;
NOW, THEREFORE, in consideration of the mutual agreements contained in the
Credit Agreement, and herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. AMENDMENT OF SECTION 1.1 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 1.1 of the Credit Agreement is hereby amended as follows:
(a) by amending the definitions of "Applicable Agent", "Applicable
Banks", "Base Rate Loans", "Consignment Limit", "Dollar Agent", "Dollar
Facility", "Dollar Facility Loans", "Eurodollar Rate Loans", "FNBB",
"Loans", "Majority Banks", "Notes", "Total Commitment" and "Type" to read
in their respective entireties as follows:
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"Applicable Agent. With respect to the Dollar Facility, the
Revolving Credit Loans, the Letters of Credit, the Term Loan or the
Dollar Banks, the Dollar Agent; with respect to the Gold Facility, the
Purchases and Consignments, the Gold Loans or the Gold Banks, the Gold
Agent."
"Applicable Banks. With respect to the Dollar Facility, the
Revolving Credit Loans, the Letters of Credit, or the Dollar Agent, the
Dollar Banks; with respect to the Gold Facility, the Purchases and
Consignments, the Gold Loans or the Gold Agent, the Gold Banks; with
respect to the Term Loan, each of the Banks."
"Base Rate Loans. Revolving Credit Loans, Gold Loans and all or
any portion of the Term Loan bearing interest calculated by reference
to the Base Rate."
"Consignment Limit. Either (a) 60,000 ▇▇▇▇ ounces of Precious
Metal (the "Consignment Ounce Cap") or (b) Consigned Precious Metal
having a Fair Market Value equal to $20,000,000.00 minus the aggregate
outstanding amount of Gold Loans (after giving effect to all amounts
requested) (the "Consignment Dollar Cap")."
"Dollar Agent. FNBB, acting as agent for the Banks under the
Dollar Facility."
"Dollar Facility. The Dollar Banks' commitments to make Revolving
Credit Loans, the Dollar Agent's agreement to issue, extend and renew
Letters of Credit, and the Banks' commitments to make the Term Loan."
"Dollar Facility Loans. The Revolving Credit Loans and the Term
Loan."
"Eurodollar Rate Loans. Revolving Credit Loans, Gold Loans and all
or any portion of the Term Loan bearing interest calculated by
reference to the Eurodollar Rate."
"FNBB. BankBoston, N.A. (formerly known as The First National Bank
of Boston), a national banking association, in its individual
capacity."
"Loans. The Revolving Credit Loans, the Term Loan and the Gold
Loans."
"Majority Banks. As of any date, the Banks (other than Delinquent
Banks) whose aggregate portions of the outstanding amount of the Term
Loan and whose aggregate Commitments or, as the case may be, Gold
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Commitments together constitute at least fifty-one percent (51%) of the
Total Commitment; provided, however, that if the Commitments or the
Gold Commitments shall have been terminated, then the Majority Banks
shall be the Banks whose aggregate portions of the outstanding amount
of the Term Loan and whose aggregate portions of the Outstanding
Facility Amounts together constitute at least fifty-one percent (51%)
of the sum of the outstanding principal amount of the Term Loan plus
the Outstanding Facility Amounts; provided, further, that until the
portion of the outstanding amount of the Term Loan and the Commitment
(or, as applicable, the portion of the Outstanding Facility Amounts) of
FNBB together with the Gold Commitment (or, as applicable, the portion
of the Outstanding Facility Amounts) of RIHT are in the aggregate less
than fifty-one percent (51%) of the Total Commitment (or, as
applicable, the Outstanding Facility Amounts), Majority Banks must
include at least one Bank other than FNBB and RIHT."
"Notes. The Term Notes, the Gold Notes and the Revolving Credit
Notes."
"Total Commitment. The sum of the Total Revolver Commitment, the
Total Gold Commitment and the outstanding principal amount of the Term
Loan."
"Type. As to any Revolving Credit Loan, Gold Loan or all or any
portion of the Term Loan, its nature as a Base Rate Loan or a
Eurodollar Rate Loan."
(b) by inserting the following new definitions of "Fifth Amendment",
"Fifth Amendment Effective Date", "Term Loan", "Term Loan Percentage",
"Term Notes" and "Term Note Record" therein in proper alphabetical order:
"Fifth Amendment. The Fifth Amendment hereto dated as of November
13, 1997, among the Borrower, the Agents and the Banks."
"Fifth Amendment Effective Date. The date on which the conditions
to the effectiveness of the Fifth Amendment (such conditions being set
forth in section 16 thereof) shall have been satisfied."
"Term Loan. The term loan made or to be made by the Banks to the
Borrower prior to January 5, 1998 in the aggregate principal amount of
up to $12,000,000.00 pursuant to Section 3.1."
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"Term Loan Percentage. With respect to each Bank, the percentage
set forth on Schedule 1 hereto under the column "Term Loan Percentage",
such percentage being such Bank's percentage of the aggregate
outstanding principal amount of the Term Loan."
"Term Notes. See Section 3.2."
"Term Note Record. A Record with respect to a Term Note."
Section 2. AMENDMENT OF SECTION 2.6 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 2.6 of the Credit Agreement is hereby amended by inserting the phrase
"and the Term Loan" prior to the period at the end thereof.
Section 3. AMENDMENT OF SECTION 3 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 3 of the Credit Agreement is hereby amended by deleting the text of
such section in its entirety and replacing it with the following new Section 3:
"3. THE DOLLAR FACILITY - THE TERM LOAN.
3.1. COMMITMENT TO LEND. Subject to the terms and conditions set
forth in this Credit Agreement, each Bank severally agrees to lend to the
Borrower upon notice given by the Borrower to the Dollar Agent in
accordance with Section 8.3, at any time on or prior to January 5, 1998,
such sum as is requested by the Borrower up to such Bank's Term Loan
Percentage of the principal amount of $12,000,000.00; provided that the
aggregate principal amount of the Term Loan made by the Banks shall not
exceed the amount necessary (a) to repurchase Senior Subordinated Notes on
or after the Fifth Amendment Effective Date, and (b) to pay any premium,
any accrued and unpaid interest and any fees and expenses in connection
with any such repurchase by the Borrower of Senior Subordinated Notes, in
each case with such repurchase of Senior Subordinated Notes to be made in
accordance with Section 12.8 hereof. The Borrower shall not be entitled to
make more than one (1) Loan Request with respect to the Term Loan, and the
Banks shall not be obligated after lending such initial portion of the Term
Loan to lend any undrawn portion of the Term Loan.
3.2. THE TERM NOTES. The Term Loan shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit F
hereto (each a "Term Note"), dated the Fifth Amendment Effective Date and
completed with appropriate insertions. One Term Note shall be payable to
the order of each Bank in a principal amount equal to such Bank's Term Loan
Percentage of the maximum aggregate amount of the Term Loan set forth above
in Section 3.1 and representing the obligation of the Borrower to pay to
such Bank such principal
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amount or, if less, the outstanding amount of such Bank's Term Loan
Percentage of the Term Loan, plus interest accrued thereon, as set forth
below. The Borrower irrevocably authorizes each Bank to make or cause to
be made a notation on such Bank's Term Note Record reflecting the original
principal amount of such Bank's Term Loan Percentage of the maximum
aggregate amount of the Term Loan set forth above in Section 3.1 and, at or
about the time of such Bank's receipt of any principal payment on such
Bank's Term Note, an appropriate notation on such Bank's Term Note Record
reflecting such payment. The aggregate unpaid amount set forth on such
Bank's Term Note Record shall be prima facie evidence of the principal
amount thereof owing and unpaid to such Bank, but the failure to record, or
any error in so recording, any such amount on such Bank's Term Note Record
shall not affect the obligations of the Borrower hereunder or under any
Term Note to make payments of principal of and interest on any Term Note
when due.
3.3. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF TERM LOAN. The
Borrower promises to pay to the Dollar Agent for the account of the Banks
the principal amount of the Term Loan in twelve (12) consecutive quarterly
installment payments, payable on the first day of each fiscal quarter, and
each such installment being in the amount set forth in the table below
opposite the period in such table during which such payment date occurs,
with a final payment on the Maturity Date in an amount equal to the unpaid
balance of the Term Loan:
AMOUNT OF
PERIOD: QUARTERLY PAYMENT:
------- ------------------
2/1/98 - 1/31/99 $250,000
2/1/99 - 1/31/00 $500,000
2/1/00 - 1/31/01 $750,000
3.4. OPTIONAL PREPAYMENT OF TERM LOAN. The Borrower shall have the
right at any time to prepay the Term Loan in accordance with the provisions
of Section 8.7. Any prepayment of principal of the Term Loan shall be
applied ratably against the remaining scheduled installments of principal
due on the Term Loan. No amount repaid with respect to the Term Loan may
be reborrowed.
3.5. INTEREST ON TERM LOAN. Except as otherwise provided in Section
8.20, the outstanding amount of the Term Loan shall bear interest in
accordance with the provisions of Section 8.1. The Borrower shall notify
the Dollar Agent, such notice to be irrevocable, at least two (2) Business
Days prior to the Drawdown Date of the Term Loan if all or any portion of
the Term Loan is to bear interest at the
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Eurodollar Rate. After the Term Loan has been made, the provisions of
Section 8.4 shall apply mutatis mutandis with respect to all or any portion
of the Term Loan so that the Borrower may have the same interest rate
options with respect to all or any portion of the Term Loan as it would be
entitled to with respect to the Revolving Credit Loans and the Gold Loans.
No Interest Period relating to the Term Loan or any portion thereof bearing
interest at the Eurodollar Rate shall extend beyond the date on which a
regularly scheduled installment payment of the principal of the Term Loan
is to be made unless a portion of the Term Loan at least equal to such
installment payment has an Interest Period ending on such date or is then
bearing interest at the Base Rate."
Section 4. AMENDMENT OF SECTION 6.4 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 6.4 of the Credit Agreement is hereby amended by inserting the phrase
"and the Term Loan" prior to the period at the end thereof.
Section 5. AMENDMENT OF SECTION 8.1 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 8.1 of the Credit Agreement is hereby amended to read in its entirety
as follows:
"8.1 INTEREST ON LOANS. Except as otherwise provided in Section
8.20,
(a) Each Base Rate Loan (other than any portion of the Term Loan
which is a Base Rate Loan) shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at a rate per annum equal to
the sum of (i) the Base Rate plus (ii) the Base Rate Applicable Margin.
(b) Each Eurodollar Rate Loan (other than any portion of the Term
Loan which is a Eurodollar Rate Loan) shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last
day of the Interest Period with respect thereto at a rate per annum
equal to the sum of (i) the Eurodollar Rate plus (ii) the Eurodollar
Applicable Margin.
(c) Each portion of the Term Loan which is a Base Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof
and ending on the last day of the Interest Period with respect thereto
at a rate per annum equal to the sum of (i) the Base Rate plus (ii) the
Base Rate Applicable Margin plus (iii) three quarters of one percent
(0.75%).
(d) Each portion of the Term Loan which is a Eurodollar Rate Loan
shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest Period with respect
thereto at a rate per annum equal to the sum of (i) the Eurodollar Rate
plus (ii) the Eurodollar Applicable Margin plus (iii) three quarters of
one percent (0.75%).
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(e) The Borrower promises to pay interest on each Loan in arrears
on each Interest Payment Date with respect thereto."
Section 6. AMENDMENT OF SECTION 8.7 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 8.7 of the Credit Agreement is hereby amended by inserting the phrase
", the Term Loan" immediately following the phrase "Revolving Credit Loan"
appearing therein.
Section 7. AMENDMENT OF SECTION 8.12.1 OF THE CREDIT AGREEMENT. Subject
to the satisfaction of the conditions set forth in section 16 of this
Amendment, Section 8.12.1 of the Credit Agreement is hereby amended by
inserting the parenthetical "(or, in the case of any such amounts due with
respect to the Term Loan, for the respective accounts of each of the Banks)"
immediately following the phrase "Dollar Banks" appearing therein.
Section 8. AMENDMENT OF SECTION 8.13 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 8.13 of the Credit Agreement is hereby amended by inserting the phrase
"the Term Note Records," immediately following the phrase ""Revolving Credit
Note Records," appearing therein.
Section 9. AMENDMENT OF SECTION 8.19(a) OF THE CREDIT AGREEMENT. Subject
to the satisfaction of the conditions set forth in section 16 of this
Amendment, Section 8.19(a) of the Credit Agreement is hereby amended by
inserting the phrase "notice (in the case of all or any portion of the Term
Loan pursuant to Section 3.5)," immediately following the phrase "Loan
Request," appearing therein.
Section 10. AMENDMENT OF SECTION 11.12 OF THE CREDIT AGREEMENT. Subject
to the satisfaction of the conditions set forth in section 16 of this
Amendment, Section 11.12 of the Credit Agreement is hereby amended to read in
its entirety as follows:
"11.12. USE OF PROCEEDS. The Borrower will use the proceeds of the
Revolving Credit Loans, the Gold Loans and the Purchases and Consignments
solely for refinancing certain existing Indebtedness of the Borrower and
for working capital and general corporate purposes; provided that the
Borrower may also use Revolving Credit Loans to repurchase Senior
Subordinated Notes in accordance with Section 12.8(c). The Borrower will
use the proceeds of the Term Loan solely for repurchasing Senior
Subordinated Notes and for the payment of premiums, accrued and unpaid
interest, fees and expenses in connection with such repurchase of Senior
Subordinated Notes. The Borrower will obtain Letters of Credit solely for
working capital and general corporate purposes."
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Section 11. AMENDMENT OF SECTION 12.8 OF THE CREDIT AGREEMENT. Subject
to the satisfaction of the conditions set forth in section 16 of this
Amendment, Section 12.8 of the Credit Agreement is hereby amended to read in
its entirety as follows:
"12.8 INDENTURES. The Borrower will not amend, supplement or
otherwise modify the terms of the Indentures or any of the Senior
Subordinated Notes or prepay, redeem, cause the defeasance of or repurchase
any of the Senior Subordinated Notes; provided, however, (a) the Borrower
may amend or modify the Senior Subordinated Notes or refinance, refund or
replace the Senior Subordinated Notes with new notes (any such amended,
modified or new notes resulting from any such amendment, modification,
refinancing, refunding or replacement being herein referred to as the "New
Notes") so long as (i) such New Notes are on substantially identical terms
as the Senior Subordinated Notes (including without limitation, terms
relating to subordination and covenants), provided that such New Notes may
have a longer maturity, lower interest rates, less restrictive covenants,
slower sinking fund payments and lower prepayment premiums and (ii) the
Agents shall have reviewed such New Notes prior to their issuance, (b) on
or prior to January 5, 1998, the Borrower may repurchase a portion of the
Senior Subordinated Notes with the proceeds of the Term Loan so long as the
repurchase price paid by the Borrower for each $1.00 of principal amount of
Senior Subordinated Notes does not exceed $1.12 plus the amount of accrued
and unpaid interest thereon, (c) the Borrower may repurchase a portion of
those Senior Subordinated Notes constituting the 12.15% Series C Senior
Subordinated Notes due 2004 with the proceeds of the Revolving Credit Loans
at a repurchase price (including any prepayment premiums payable thereon)
not to exceed $3,500,000 in the aggregate for all such repurchases from and
after the Fifth Amendment Effective Date, and (d) the Borrower may redeem
Senior Subordinated Notes during any fiscal year solely to the extent of
(i) the aggregate amount of net cash proceeds received by the Borrower
during such fiscal year in connection with any other public offering of its
Common Stock entered into after March 15, 1997 minus (ii) the amount of any
such net cash proceeds from any such public offerings which are used by the
Borrower during such fiscal year to make Capital Expenditures and/or
Investments as permitted by Section Section 13.2 and 12.3, respectively,
hereof. The Borrower will not pay any interest in cash on the Senior
Subordinated Notes in excess of fifteen percent (15%) per annum in the
aggregate with any interest in excess of fifteen percent (15%) per annum to
be payable only in Senior Subordinated Notes."
Section 12. AMENDMENT OF SECTION 15 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 15 of the Credit Agreement is hereby amended by inserting the phrase
"and the Term Loan" immediately following the phrase "Gold Loans" appearing in
the first paragraph thereof.
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Section 13. AMENDMENT OF SECTION 22.1 OF THE CREDIT AGREEMENT. Subject
to the satisfaction of the conditions set forth in section 16 of this
Amendment, Section 22.1 of the Credit Agreement is hereby amended by restating
clause (b) of such Section 22.1 to read in its entirety as follows:
"(b) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and obligations in respect of
(i) its Revolving Credit Commitment, its Revolving Credit Loans, its
participating interest in Letters of Credit and its portion of the Term
Loan or, as the case may be (ii) its Gold Commitment, its Purchases and
Consignments, its Gold Loans and its portion of the Term Loan,"
Section 14. AMENDMENT OF SECTION 29 OF THE CREDIT AGREEMENT. Subject to
the satisfaction of the conditions set forth in section 16 of this Amendment,
Section 29 of the Credit Agreement is hereby amended by deleting clause (f) of
the second sentence thereof in its entirety and replacing it with the following
new clause (f):
"(f) there can be no reduction in the amount or extension of the maturity
date of any of the Obligations (other than as a result of any permitted
prepayments made hereunder, it being understood that any waiver of the
application of any voluntary prepayment of, or the method of application of
any voluntary prepayment to the amortization of, the Term Loan shall not
constitute any such extension) without the consent of Banks (other than
Delinquent Banks) whose aggregate portions of the outstanding principal
amount of the Term Loan and whose aggregate Commitments or, as the case may
be, Gold Commitments together constitute at least sixty-six and two thirds
percent (66-2/3%) of the Total Commitment."
Section 15. CONCERNING EXHIBITS AND SCHEDULES TO THE CREDIT AGREEMENT.
Subject to the satisfaction of the conditions set forth in section 16 of this
Amendment, the Exhibits and Schedules to the Credit Agreement are hereby
amended as follows:
(a) Exhibit F hereto is hereby added to the Credit Agreement as
Exhibit F thereto; and
(b) Schedule 1 to the Credit Agreement is hereby replaced with
Schedule 1 attached hereto.
Section 16. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment shall be subject to the delivery by (or on behalf of) the Borrower of
the following, in form and substance satisfactory to the Agents and the Banks:
(a) this Amendment signed by each of the Borrower, the Banks and the
Agents;
(b) a new Term Note for each of the Banks, each signed by the Borrower,
each substantially in the form of Exhibit F to this Amendment, and each
in the
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amount of each such Bank's Term Loan Percentage of the maximum
principal amount of the Term Loan;
(c) a certificate of the Secretary or Assistant Secretary of the Borrower
certifying as to (a) the Certificate of Incorporation or other
incorporation documents of the Borrower as in effect on such date of
certification, (b) the by-laws of the Borrower as in effect on such
date, (c) the corporate resolutions of the Borrower approving this
Amendment, the Term Notes referred to in section 12(b) above, and the
other documents and instruments required to be delivered hereunder by
the Borrower (collectively with the Amendment and such Term Notes, the
"Amendment Documents"), and (d) the names, titles, incumbency, and true
specimen signatures of the officers of the Borrower authorized to sign
the Amendment Documents;
(d) a certificate, as of a recent date, from the Secretary of State of
Delaware as to the legal existence and corporate good standing of the
Borrower;
(e) a favorable opinion of counsel to the Borrower in form and substance
satisfactory to the Agents and the Banks;
(f) evidence, satisfactory to the Agents and the Banks in all respects, of
the agreement of the holders of Senior Subordinated Notes having an
aggregate outstanding principal amount equal to greater than fifty
percent (50%) of the aggregate outstanding principal amount of all
Senior Subordinated Notes immediately prior to the Fifth Amendment
Effective Date to sell such portion of the Senior Subordinated Notes to
the Borrower;
(g) the Borrower shall have paid to the Agents, for the ratable accounts of
the Banks in accordance with their Term Loan Percentages, an amendment
fee in the amount of $60,000; and
(h) any other document or instrument the Agents and the Banks may
reasonably request.
Section 17. REPRESENTATIONS AND WARRANTIES; NO DEFAULT; AUTHORIZATION.
The Borrower hereby represents and warrants to the Banks and the Agents as
follows:
(a) Each of the representations and warranties made by it in the Credit
Agreement was true as of the date as of which it was made and is true as
and at the date of this Amendment (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and changes occurring in the
ordinary course of business that in the aggregate are not materially
adverse, and to the extent that such representations and warranties relate
expressly to
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an earlier date), and, after the execution of this Amendment, no Default or
Event of Default has occurred and is continuing as of the date of this
Amendment; and
(b) Each of this Amendment and the other Amendment Documents has been duly
authorized, executed and delivered by the Borrower and is in full force and
effect, and the agreements and obligations of the Borrower contained
herein, in the other Amendment Documents and in the Credit Agreement,
respectively constitute the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their
respective terms, except as enforceability is limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which
any proceeding therefor may be brought.
Section 18. RATIFICATION, ETC. Except as expressly amended hereby, the
Credit Agreement and all documents, instruments and agreements related thereto
are hereby ratified and confirmed in all respects. 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 19. NO IMPLIED WAIVER. Except as expressly provided herein,
nothing contained herein shall constitute a waiver of, impair or otherwise
affect any Obligations, or any right of any of the Agents or the Banks
consequent thereon.
Section 20. 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.
Section 21. GOVERNING LAW. THIS AMENDMENT SHALL FOR ALL PURPOSES BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICTS OF LAW).
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IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as a
sealed instrument as of the date first above written.
MARKS BROS. JEWELERS, INC.
By:_________________________
Name:
Title:
BANKBOSTON, N.A. (FORMERLY KNOWN AS THE
FIRST NATIONAL BANK OF BOSTON),
individually and as Agent
By:_________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK, individually and
as Agent
By:_________________________
Name:
Title:
LASALLE NATIONAL BANK
By:_________________________
Name:
Title:
ABN AMRO BANK, N.V.
By:_________________________
Name:
Title:
13
SCHEDULE 1
PART 1 - DOLLAR BANKS - COMMITMENTS AND COMMITMENT PERCENTAGES
--------------------------------------------------------------------------------
COMMITMENT TERM LOAN
DOLLAR BANKS COMMITMENT PERCENTAGE PERCENTAGE
--------------------------------------------------------------------------------
BANKBOSTON, N.A.
Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax Number: (617) 434- 2309 $17,500,000.00 43.75% 25%
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Director
Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax Number: (617) 434- 2309
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Director
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
LASALLE NATIONAL BANK
Domestic Lending ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax Number: (312) 904- 6225 $22,500,000.00 56.25% 25%
Attention: Vanja St. Clar, Vice
President
Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax Number: (312) 904- 6225
Attention: Vanja St. Clar, Vice
President
--------------------------------------------------------------------------------
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SCHEDULE 1
PART 2 - GOLD BANKS - GOLD COMMITMENTS AND GOLD COMMITMENT PERCENTAGES
--------------------------------------------------------------------------------
GOLD COMMITMENT TERM LOAN
GOLD BANKS GOLD COMMITMENT PERCENTAGE PERCENTAGE
--------------------------------------------------------------------------------
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK
Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇-▇▇ $12,500,000.00 62.50% 25%
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telefax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telefax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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16
-4-
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ABN AMRO BANK, N.V.
Domestic Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ $7,500,000.00 37.50% 25%
Telefax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice
President
Eurodollar Lending Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice
President
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17
Exhibit F
TERM NOTE
$___________ November __, 1997
FOR VALUE RECEIVED, the undersigned MARKS BROS. JEWELERS, INC., a Delaware
corporation, (the "Borrower"), hereby promises to pay to the order of [NAME OF
BANK] (the "Bank") at the Dollar Agent's Head Office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇:
(a) prior to or on April 30, 2001 the principal amount of ___________
DOLLARS ($________ ), evidencing the Term Loan made by the Bank to the
Borrower pursuant to the Revolving Credit, Term Loan and Gold Consignment
Agreement dated as of May 3, 1996 (as amended and in effect from time to
time, the "Credit Agreement"), by and among the Borrower, the Bank and the
other parties thereto;
(b) the principal outstanding hereunder from time to time at the
times provided in the Credit Agreement; and
(c) interest from the date hereof on the principal amount from time
to time outstanding to and including the maturity hereof at the rates and
terms and in all cases in accordance with the terms of the Credit
Agreement.
This Note evidences borrowings under and has been issued by the Borrower in
accordance with the terms of the Credit Agreement. The Bank and any holder
hereof is entitled to the benefits of the Credit Agreement, the Security
Documents and the other Loan Documents, and may enforce the agreements of the
Borrower contained therein, and any holder hereof may exercise the respective
remedies provided for thereby or otherwise available in respect thereof, all in
accordance with the respective terms thereof. All capitalized terms used in
this Note and not otherwise defined herein shall have the same meanings herein
as in the Credit Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be made,
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid,
or any other similar record, including computer records, reflecting the receipt
of such payment. The outstanding amount of the Term Loan set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records, maintained by the Bank with respect to the
Term Loan shall be prima facie evidence of the principal amount of the Term
Loan owing and unpaid to the Bank, but the failure to record, or any error in
so recording, any such amount on any such grid, continuation or other record
shall not limit or otherwise affect the obligation of
18
-2-
the Borrower hereunder or under the Credit Agreement to make payments of
principal of and interest on this Note when due.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon
may become or be declared due and payable in the manner and with the effect
provided in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of
any other rights of the Bank or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any future occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN Section 23 OF THE CREDIT
AGREEMENT. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts.
19
-3-
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed in
its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
[Corporate Seal]
MARKS BROS. JEWELERS, INC.
By:
-------------------------------
Name:
Title:
20
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Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
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