EXHIBIT 10.2
THIRD AMENDMENT TO LOAN AGREEMENT
As of June 18, 2003
THIS THIRD AMENDMENT TO THE LOAN AGREEMENT (the "Third Amendment") is
entered into as of June 18, 2003 by and among ▇▇▇▇▇▇▇ Jewelers, Inc. as Borrower
(the "Borrower"), the lenders party thereto (the "Lenders") and DDJ Capital
Management, LLC as agent for the Lenders (the "Agent").
WHEREAS, Borrower, Lenders and Agent are parties to that certain Loan
Agreement dated as of April 30, 2001, as amended pursuant to that certain
amendment dated November 12, 2001, as amended by that certain Second Amendment,
dated as of June 15, 2002 (collectively, the "Loan Agreement"), pursuant to
which Lenders have made certain credit available to and on behalf of Borrower.
WHEREAS, the obligations of Borrower to Lenders under the Loan
Agreement are secured by a lien on substantially all of the assets of Borrower
pursuant to that certain Junior Security Agreement by and between Borrower and
Agent on behalf of Lenders (the "Security Agreement" and, together with the Loan
Agreement and the other documents and instruments executed in connection
therewith, the "Loan Documents");
WHEREAS, Borrower, Lenders and Agent are also parties to that certain
Loan and Security Agreement, dated as of October 1, 2001, as amended and
modified from time to time (the "Senior Loan Agreement"), pursuant to which
Lenders have made certain credit available to and on behalf of Borrower and to
secure the obligations outstanding under the Senior Loan Agreement;
WHEREAS, the obligations of Borrower to Lenders under the Senior Loan
Agreement are secured by a first priority lien in substantially all of the
assets of Borrower;
WHEREAS, Lenders executed that certain Intercreditor and
Subordination Agreement, dated as of October 1, 2001 (the "Subordination
Agreement"), whereby Lenders agreed that the obligations incurred pursuant to
the Loan Agreement are subordinate in right of payment to the prior payment in
full of all of the obligations incurred pursuant to the Senior Loan Agreement;
WHEREAS, the Lenders and the Borrower desire to amend the Loan
Agreement in order to confirm the Borrower's obligations under the Loan
Documents and in the order to amend and confirm certain provisions of the Loan
Agreement, as more fully set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION 1.REPRESENTATIONS AND WARRANTIES. The Borrower has adequate
corporate power and authority to execute and deliver this Third Amendment and to
perform its obligations hereunder. This Third Amendment has been duly
authorized, executed and delivered by the Borrower and does not contravene any
law, rule or regulation applicable to the Borrower or any of the terms of the
Borrower's charter documents, by-laws or other governing document or any
indenture, agreement or undertaking to which the Borrower is a party. The
obligations of the Borrower under this Third Amendment and the Loan Documents
constitute its legal, valid and binding obligations enforceable against it in
accordance with their respective terms except to the extent such enforceability
(a) may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to creditors' rights generally and (b) is subject to
general principles of equity. All of the representations and warranties made by
or on behalf of the Borrower in the Loan Documents are true and correct on the
date hereof as if made on and as the date hereof, unless such representation or
warranty is true only as of a specified date in the Loan Agreement.
SECTION 2.AMENDMENTS. The Borrower, the Agent and the Lenders agree
to amend the Loan Agreement as follows:
(1) The definition of "Maturity Date" in Section 1.1 of the Loan
Agreement shall be deleted in its entirety and replaced with the following:
"Maturity Date" shall mean August 31, 2003.
SECTION 3.COSTS AND EXPENSES. Borrower shall pay to Agent all of
Agent's out-of-pocket costs and expenses (including, without limitation, the
reasonable fees and expenses of its counsel, which counsel may include any local
counsel reasonably deemed necessary, search fees, filing and recording fees,
documentation fees, appraisal fees, travel expenses, and other fees) arising in
connection with the preparation, execution, and delivery of this Third Amendment
and any related documents.
SECTION 4.EFFECTIVENESS; CONDITION TO EFFECTIVENESS. This Third
Amendment shall become effective as of the date first set forth above, upon
execution hereof by the Lenders, the Agent and the Borrower.
SECTION 5.OBLIGATIONS IN FULL FORCE AND EFFECT Except as herein
amended and modified, the Loan Agreement and the other Loan Documents shall
remain in full force and effect.
SECTION 6.COUNTERPARTS. This Third Amendment may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties have executed this Third Amendment as
of the date and year first written above.
▇▇▇▇▇▇▇ JEWELERS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President & C.E.O.
DDJ CAPITAL MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Member
B III CAPITAL PARTNERS, L.P.
By: DDJ Capital III, LLC, its General
Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Member
B III-A CAPITAL PARTNERS, L.P.
By: GP III-A, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Member
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