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Title: |
Term Loan Credit Agreement |
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Date: |
2008 |
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Size: |
Preview shows 24KB of 225KB total |
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Price: |
$59 |
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ID: |
#3291215 |
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This instrument and the rights and obligations evidenced hereby, the liens and security interests securing the indebtedness and other obligations incurred or arising under or evidenced by this instrument and the rights and obligations evidenced hereby with respect to such liens are subordinate in the manner and to the extent set forth in that certain Intercreditor and Lien Subordination Agreement (as the same may be amended or otherwise modified from time to time pursuant to the terms thereof, the ?Subordination Agreement?), dated as of January 18, 2008 between LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent (the ?Senior Agent?) for the Lenders (collectively, and together with the Senior Agent and any of their successors and assigns, including any other lender or lenders that at any time refinance or replace the Senior Debt referred to below, the ?Senior Creditors?) pursuant to that certain Third Amended and Restated Credit Agreement dated as of February 20, 2007 (the ?Senior Credit Agreement?), and PWJ LENDING II LLC, as Administrative Agent and Collateral Agent (the ?Subordinating Agent?), for the Agents and the Lenders (collectively, the Subordinating Agent together with the Agents and Lenders party to the Subordinated Credit Agreement, the ?Subordinating Creditors?) party to that certain Term Loan Credit Agreement, dated as of January 18, 2008 (the ?Subordinated Credit Agreement?), and WHITEHALL JEWELERS, INC., a Delaware corporation (the ?Borrower?), as such Senior Credit Agreement has been and hereafter may be amended, restated, supplemented or otherwise modified from time to time as permitted under the Subordination Agreement and to the liens and security interests securing indebtedness refinancing the indebtedness under such agreements as permitted by the Subordination Agreement; and each holder of this instrument, by its acceptance hereof, irrevocably agrees to be bound by the provisions of the Subordination Agreement applicable to the Subordinating Creditors as if such holder were a Subordinating Creditor for all purposes of the Subordination Agreement.
TERM LOAN CREDIT AGREEMENT
Dated as of January 18, 2008
by and among
WHITEHALL JEWELERS, INC.,
as Borrower
THE LENDING INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Lenders
and
PWJ LENDING II LLC,
as Administrative Agent and Collateral Agent,
for the Agents and the Lenders
| TABLE OF CONTENTS | ||||
| Page | ||||
| 1. | DEFINITIONS AND RULES OF INTERPRETATION | 1 | ||
| 2. | TERM LOANS | 13 | ||
| 3. | INTENTIONALLY OMITTED | 15 | ||
| 4. | INTENTIONALLY OMITTED | 15 | ||
| 5. | CERTAIN GENERAL PROVISIONS | 15 | ||
| 6. | COLLATERAL SECURITY | 20 | ||
| 7. | REPRESENTATIONS AND WARRANTIES | 20 | ||
| 8. | AFFIRMATIVE COVENANTS OF THE BORROWER | 26 | ||
| 9. | CERTAIN NEGATIVE COVENANTS OF THE BORROWER | 34 | ||
| 10. | FINANCIAL COVENANTS OF THE BORROWER | 40 | ||
| 11. | CLOSING CONDITIONS | 40 | ||
| 12. | INTENTIONALLY DELETED | 44 | ||
| 13. | EVENTS OF DEFAULT; ACCELERATION; ETC | 44 | ||
| 14. | SETOFF | 47 | ||
| 15. | THE AGENTS | 47 | ||
| 16. | EXPENSES | 55 | ||
| 17. | INDEMNIFICATION | 55 | ||
| 18. | SURVIVAL OF COVENANTS, ETC | 56 | ||
| 19. | ASSIGNMENT AND PARTICIPATION | 57 | ||
| 20. | NOTICES, ETC | 60 | ||
| 21. | GOVERNING LAW | 60 | ||
| 22. | HEADINGS | 61 | ||
| 23. | COUNTERPARTS | 61 | ||
| 24. | ENTIRE AGREEMENT, ETC | 61 | ||
| 25. | WAIVER OF JURY TRIAL | 61 | ||
| 26. | INTENTIONALLY OMITTED | 61 | ||
| 27. | SEVERABILITY | 61 | ||
| 28. | INTERCREDITOR AGREEMENT | 62 | ||
- i -
TERM LOAN CREDIT AGREEMENT
This TERM LOAN CREDIT AGREEMENT is made as of January 18, 2008, 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 hereto (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 the collateral agent (in such capacity, the ?Collateral Agent?) for the Agents (as hereinafter defined) and the Lenders.
WHEREAS, the Borrower has requested that the Lenders make an initial term loan to the Borrower in the aggregate principal amount of up to $25,000,000 and, if Availability under the Senior Credit Agreement is less than $5,000,000, an additional term loan to the Borrower in the aggregate principal amount of up to $10,000,000, in each case for, among other things, general corporate and working capital purposes; and
WHEREAS, the Lenders are willing to provide such loans on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and benefits to be derived herefrom, the Borrower, the Lenders and the Agents agree as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1 Definitions. The following terms shall have the meanings set forth in this Section 1 or elsewhere in the provisions of this Credit Agreement referred to below:
Administrative Agent. Prentice, in its capacity as administrative agent for the benefit of Lenders and the Agents and with respect to the Security Documents.
Administrative Agent?s Head Office. The Administrative Agent?s head office located at 623 Fifth Avenue, 32nd Floor, New York, New York 10022.
Administrative Agent?s Special Counsel. Schulte Roth & Zabel LLP, or such other counsel as may be approved by the Administrative Agent.
Affiliate. Any Person (other than Prentice, its Affiliates, associates and Related Funds) that would be considered to be an affiliate of the Borrower under Rule 144(a) of the Rules and Regulations of the Securities and Exchange Commission, as in effect on the date hereof, if the Borrower were issuing securities.
Agents. Collectively, the Administrative Agent and the Collateral Agent.
Asset Disposition Prepayment. See Section 5.4.3.
Assignment and Acceptance. See Section 19.1.
Availability. As defined in the Senior Credit Agreement
Balance Sheet Date. December 31, 2006.
Blocked Account Agreement. Each Blocked Account Agreement entered into by the Borrower, the Senior Administrative Agent and a depository institution satisfactory to the Senior Administrative Agent, which shall be in form and substance acceptable to the Administrative Agent.
Borrower. As defined in the preamble hereto.
Borrowing Base Report. A Borrowing Base Report, as defined in and as attached to the Senior Credit Agreement as Exhibit H.
Business Day. Any day, other than a Saturday or Sunday, on which banking institutions in Chicago, Illinois and New York, New York are open for the transaction of banking business.
Capital Assets. Fixed and/or capital assets, both tangible (such as land, buildings, fixtures, samples, tools and die, software, software development, machinery and equipment) and intangible (such as software, patents, copyrights, trademarks, franchises and goodwill); provided that Capital Assets shall not include any item customarily charged directly to expense or depreciated over a useful life of twelve (12) months or less in accordance with Generally Accepted Accounting Principles.
Capital Expenditures. Amounts paid or indebtedness incurred by the Borrower or any of its Subsidiaries in connection with the purchase or lease by the Borrower or any of its Subsidiaries of Capital Assets that would be required to be capitalized and shown on the balance sheet of such Person in accordance with Generally Accepted Accounting Principles.
Capitalized Leases. Leases under which the Borrower or any of its Subsidiaries is the lessee or obligor, the discounted future rental payment obligations under which are required to be capitalized on the balance sheet of the lessee or obligor in accordance with Generally Accepted Accounting Principles.
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