EXHIBIT 4.27
GUARANTY AGREEMENT
To Massachusetts Mutual Life Insurance Company
and MassMutual Participation Investors:
Gentlemen:
JBI, Inc., a Massachusetts corporation (the "Company") originally
issued and sold $35,000,000 aggregate principal amount (of which $4,500,000 is
currently outstanding and held by Massachusetts Mutual Life Insurance Company
and MassMutual Participation Investors) of 11.21% (original interest rate, which
interest rate has been adjusted per Letter Agreement dated February 24, 1997,
the "Letter Agreement") Senior Subordinated Notes, due 1999 (the "Subordinated
Notes"), pursuant to the several Senior Subordinated Note Agreements (the
"Subordinated Note Agreements"), each dated as of May 1, 1989 between the
Company, X. Xxxxx, Inc., a Massachusetts corporation ("Xxxxx"), and the
Purchasers named in Schedule I thereto.
All indebtedness for principal, interest, Make Whole Amount, fees,
expenses and all other amounts payable by the Company under and in respect of
the Subordinated Notes are hereinafter collectively referred to as the
"Subordinated Debt". Terms used but not otherwise defined herein are used as
defined in the Subordinated Note Agreements.
Xxxxx owns, directly or indirectly, 100% of the outstanding stock of
the Company, WGS Corp., a Massachusetts corporation, The Casual Male, Inc., a
Massachusetts corporation; TCMB&T, Inc., a Massachusetts corporation; Xxxxxxx
No. 301 Corp., a New York corporation; Xxxxx Shoe, Inc., a Delaware corporation;
Buckmin, Inc., a Massachusetts corporation; Elm Equipment Corp., a Massachusetts
corporation; Isab, Inc., a Delaware corporation; Jared Corporation, a Puerto
Rican corporation; Xxxxx Shoe (Canada) Ltd., a Canadian corporation; Xxxxx Shoe
International, Inc., a Delaware corporation, and White Cap Footwear, Inc., a
Delaware corporation, (individually a "Guarantor" and collectively, the
"Guarantors"). The Subordinated Notes are to be guaranteed by, inter alia, an
unconditional guaranty by each of the Guarantors.
In compliance with the requirements of the Letter Agreement, the
Guarantors do hereby covenant with the holders of the Subordinated Notes as
follows:
SECTION 1. GUARANTY.
Section 1.1. Guaranty. Each Guarantor, individually, hereby
unconditionally guarantees the payment when due, whether by demand or otherwise,
of all of the Subordinated Debt and agrees to pay any and all reasonable
expenses incurred by the holders of the Subordinated Notes in enforcing any
rights under this Guaranty Agreement.
The guaranty provided for herein is a guaranty of payment and not of
collectability.
Section 1.2. Nature of Guaranty. Each Guarantor guarantees that the
Subordinated Notes will be paid strictly in accordance with the terms thereof,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such items or the rights of the holders of the
Subordinated Notes with respect thereto, except as specifically provided herein.
The liability of each Guarantor under this Guaranty Agreement shall be absolute
and unconditional irrespective of:
(i) any lack of validity or enforceability of the Subordinated
Note Agreements, this Guaranty Agreement, the other Subsidiary Guaranty
Agreements, the Xxxxx Guaranty Agreement, the Subordinated Notes or any
other agreement or instrument relating thereto (collectively the
"Related Documents");
(ii) any change in the time, manner or place of payment of, or
in any other terms of, all or any of the Subordinated Debt, or any
other amendment or waiver of or any consent to departure from all or
any of the Related Documents;
(iii) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Subordinated
Debt; or
(iv) to the extent permitted by law, any other circumstance
which might otherwise constitute a defense available to, or a discharge
of, a Guarantor in respect of the Subordinated Debt or a Guarantor in
respect of this guaranty, other than the payment or the tender of
payment in full of the Subordinated Debt.
This Guaranty Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Subordinated Debt is rescinded or must otherwise be returned by any holder of
Subordinated Notes upon the insolvency, bankruptcy or reorganization of a
Guarantor or otherwise, all as though such payment had not been made.
The obligations of each Guarantor hereunder shall in no way be effected
or impaired by any acceptance by any holder of Subordinated Notes of any direct
or indirect security for, or other guaranties of, any of the Subordinated Debt
or by any failure, delay, neglect or omission by the holders of the Subordinated
Notes to realize upon or protect any of the Subordinated Debt or any notes or
other instruments evidencing the Subordinated Debt or any direct or indirect
security therefor or by any approval, consent, waiver, or other action taken, or
omitted to be taken, by the holders of the Subordinated Notes.
Each Guarantor expressly recognizes that payment of the Subordinated
Debt is guaranteed by Xxxxx pursuant to the Xxxxx Guaranty Agreement and by each
of Holding and Xxxxxxx pursuant to separate Subsidiary Guaranty Agreements
entered into by each of Holding and Xxxxxxx, respectively, and agrees that the
obligations of a Guarantor under this Guaranty Agreement are in no way affected
or diminished thereby.
The obligations of a Guarantor under this Guaranty Agreement and the
rights of the holders of the Subordinated Notes to enforce such obligations by
any proceedings, whether by action at law, suit in equity or otherwise, shall
not be subject to any reduction, limitation, impairment or termination, whether
by reason of any claim of any character whatsoever or otherwise, including,
without limitation, claims of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense, setoff, counterclaim,
recoupment or termination whatsoever, other than the payment or the tender of
payment in immediately available funds in full of the Subordinated Debt.
A Guarantor shall not be required to make any payment hereunder at any
time when payment by the Company of the Subordinated Debt is prohibited by the
provisions of Section 9 of the Subordinated Note Agreement.
Section 1.3. Waivers by Guarantors; Subrogation. Each Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Subordinated Debt and this Guaranty Agreement and any
requirement that the holders of the Subordinated Notes protect, secure, perfect
or insure any security interest or lien or any property subject thereto or
exhaust any right or take any action (including, without limitation, any
presentment or demand with respect to the Subordinated Debt) against the
Guarantor or any other Person or any collateral.
No Guarantor will exercise any rights which it may acquire by way of
subrogation under this Guaranty Agreement, by any payment made hereunder or
otherwise, until all of the Subordinated Debt and other amounts payable under
this Guaranty Agreement shall have been paid in full (the "Guaranty Termination
Date"). If any amount shall be paid to a Guarantor on account of such
subrogation rights at any time prior to the Guaranty Termination Date, such
amount shall be held in trust and shall forthwith be credited and applied upon
the Subordinated Debt, whether matured or unmatured. If a Guarantor shall make
payment to the holders of the Subordinated Notes of all or any part of the
Subordinated Debt, then, on or after the Guaranty Termination Date, each such
holder will, at the Guarantor's request, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of the
interest in the Subordinated Debt resulting from such payment by the Guarantor.
Section 1.4. Duration of Guaranty. The guaranty provided for herein is
a continuing guaranty and shall (i) remain in full force and effect until the
Guaranty Termination Date, (ii) be binding upon each Guarantor, its successors
and assigns, and (iii) inure to the benefit of and be enforceable by each holder
of Subordinated Notes and its successors, transferees and assigns.
Section 1.5. Subordination. Each holder of Subordinated Notes
acknowledges and agrees, by its acceptance of this Guaranty Agreement, that the
rights of such holder hereunder in respect of such Subordinated Debt shall at
all times be wholly subordinate and junior in right of payment to any and all
Superior Indebtedness, as provided in the subordination provisions appearing in
the Subordinated Note Agreement.
SECTION 2. AMENDMENT.
No amendment, modification or waiver of, or any action taken or not
taken under or pursuant to, any of the terms and provisions of any Subordinated
Note shall effect or modify any of the terms or provisions of this Guaranty
Agreement or any of the obligations of the Guarantor hereunder, except and to
the extent expressly provided for in any such amendment, modification or waiver.
SECTION 3. MISCELLANEOUS.
Section 3.1. Amendment and Waiver. This Guaranty Agreement may be
amended with respect to one or more Guarantor and observance of any term of this
Guaranty Agreement may be waived with respect to one or more Guarantor with, and
only with, the written consent of such Guarantor and the holder or holders of at
least 66-2/3% in principal amount of the Subordinated Notes then outstanding
(exclusive of Subordinated Notes then owned by such Guarantor, any Restricted
Subsidiary and any Affiliates).
Section 3.2. No Waiver. No delay or omission on the part of the holders
of the Subordinated Notes to exercise any right or power accruing upon any
default, omission or failure of performance hereunder shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time as often as may be deemed
expedient. No waiver, amendment, release or modification of this Guaranty
Agreement shall be established by conduct, custom or course of dealing, but
solely by an instrument in writing as provided in Section 3.1 hereof. No remedy
conferred herein upon the holders of the Subordinated Notes is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Guaranty Agreement or now or hereafter existing at law or in equity.
In order to entitle the holders of the Subordinated Notes to exercise any remedy
reserved in this Guaranty Agreement, it shall not be necessary to give any
notice, other than such notice as may be herein expressly required. In the event
any provision contained in this Guaranty Agreement should be breached by the
Guarantor and thereafter duly waived by the holders of the Subordinated Notes,
such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder.
Section 3.3. Notices. All notices and other communications provided for
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, or delivered, if to the Guarantor at 000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, with
a copy to General Counsel at the same address; and if to any holder of the
Subordinated Notes, at the address of such holder set forth in Schedule I to the
Subordinated Note Agreements, or to such other address as any Guarantor or any
holder of Subordinated Notes shall have designated by written notice to the
other parties to this Guaranty Agreement.
Section 3.4. Entire Agreement.This Guaranty Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
Section 3.5. Severability. All provisions contained in this
Guaranty Agreement are severable and the invalidity or unenforceability of
any provision shall in no manner effect or impair the validity, legality
and enforceability of the remaining provisions contained herein.
Section 3.6. Counterparts. This Guaranty Agreement may be
executed simultaneously in several counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the
same instrument.
Section 3.7. Headings. The descriptive headings of the
several sections of this Guaranty Agreement are inserted for convenience
only and do not constitute a part of this Guaranty Agreement.
Section 3.8. Governing Law. This Guaranty Agreement shall in
all respects be governed by and construed in accordance with the law of the
Commonwealth of Massachusetts.
Executed and delivered by each Guarantor on March 13, 1997.
WGS CORP.
By:/s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
THE CASUAL MALE, INC.
By:/s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
TCM HOLDING CO., INC.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
TCMB&T, INC.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: First Senior Vice President
XXXXXXX NO. 301 CORP.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: First Senior Vice President
XXXXX SHOE, INC.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXX SHOE (CANADA) LTD.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXX SHOE INTERNATIONAL, INC.
By:/s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: First Senior Vice President
BUCKMIN, INC.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: First Senior Vice President
ELM EQUIPMENT CORP.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: First Senior Vice President
ISAB, INC.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: First Senior Vice President
JARED CORPORATION
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: First Senior Vice President
WHITE CAP FOOTWEAR, INC.
By: /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: First Senior Vice President
ATTEST:
By: /s/Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Secretary
