EXHIBIT 4.01
SEVENTH AMENDMENT AGREEMENT
SEVENTH AMENDMENT AGREEMENT dated as of November 17,
1995, among JBI, INC., a Massachusetts corporation (the
"Borrower"); X. XXXXX, INC., a Massachusetts corporation
("Xxxxx"); each of the banks that is a signatory hereto
(individually, a "Bank" and, collectively, the "Banks"); and
SHAWMUT BANK, N.A., a national banking association, as agent for
the BANKS (in such capacity, together with its successors in such
capacity, the "Agent").
The Borrower, Xxxxx, the Banks and the Agent are
parties to a Revolving Credit and Loan Agreement dated as of
February 1, 1993 (as amended by the First Amendment and Waiver
Agreement relating thereto dated as of November 19, 1993, by the
Second Amendment Agreement relating thereto dated as of April 29,
1994, by the Third Amendment Agreement relating thereto dated as
of December 1, 1994, by the Fourth Amendment Agreement relating
thereto dated as of March 6, 1995, by the Fifth Amendment
Agreement relating thereto dated as of May 19, 1995 and by the
Sixth Amendment Agreement relating thereto dated as of September
12, 1995, and as in effect on the date hereof, the "Credit
Agreement").
The Borrower and Xxxxx have requested that Banks and
the Agent agree to amend the Credit Agreement and, accordingly,
the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined
in this Agreement, terms defined in the Credit Agreement are used
herein as defined therein.
Section 2. Amendments to the Credit Agreement.
Effective on the Effective Date (as defined in Section 4
hereof), the Credit Agreement shall be amended as follows:
A. Article I of the Credit Agreement shall be amended
by adding thereto the new definitions set forth below (and
inserting the same in the appropriate alphabetical locations):
"CANTON MORTGAGE" shall mean any mortgage, deed of
trust, deed to secure debt of the Borrower of not less than
$10,000,000, or other similar form of instrument required
under applicable law, in form and substance satisfactory to
the MAJORITY BANKS, with respect to the Borrower's
distribution center located in Canton, Massachusetts (and
property directly related thereto).
"COLUMBUS MORTGAGE" shall mean any mortgage, deed of
trust, deed to secure debt of the Borrower of not less than
$6,000,000, or other similar form of instrument required
under applicable law, in form and substance satisfactory to
the MAJORITY BANKS, with respect to the Borrower's
distribution center located in Columbus, Ohio (and property
directly related thereto).
"FAYVA RESTRUCTURING CHARGE" shall mean the
restructuring charge incurred by the Borrower in connection
with the liquidation of XXXXX'X Xxxxx division.
B. Article II of the Credit Agreement shall be amended
by inserting the following at the end thereof:
"2.30 Upon execution and delivery of the CANTON
MORTGAGE or the COLUMBUS MORTGAGE, as the case may be, the
Borrower shall prepay the LOANS and the AGGREGATE COMMITMENT
AMOUNT shall, simultaneously with such prepayment,
automatically be reduced, in an amount equal to the
principal of the indebtedness secured by the CANTON MORTGAGE
or the COLUMBUS MORTGAGE, as the case may be (each such
prepayment to be applied first to the PRIME RATE ADVANCES
then outstanding and then to the LIBO RATE ADVANCES then
outstanding, amounts so paid in respect to the LIBO ADVANCES
to be held by the AGENT in an account (which shall be deemed
to constitute part of the COLLATERAL (as defined in the
SECURITY AGREEMENT)) until the end of the then current
INTEREST PERIOD in respect thereof and applied to such
prepayment on the last day of such INTEREST PERIOD, amounts
in such account to be invested by the AGENT in such money
market instruments as the AGENT may determine, upon terms
and conditions acceptable to the AGENT, and interest thereon
to accrue to the benefit of the BORROWER and to be paid to
the BORROWER on the last day of such INTEREST PERIOD).
2.31 On the date 90 days after the end of the FISCAL
YEAR ending February 1, 1997, the AGGREGATE COMMITMENT
AMOUNT shall be reduced, in an amount equal to 50% of the
excess of the net income for such FISCAL YEAR over
$8,915,000, such reduction to be rounded upwards to the
nearest $100,000.
C. Article IX of the Credit Agreement shall be amended
by inserting the following at the end thereof:
"9.15 Use their best efforts to obtain, not later than
May 1, 1996, a written binding commitment from a lender or
group of lenders to lend the Borrower an aggregate principal
amount of not less than $10,000,000 to be secured solely by
the CANTON MORTGAGE; provided that if a written binding
commitment shall not have been obtained by said date,
BORROWER and XXXXX shall use their best efforts to obtain a
written binding commitment within 90 days of said date.
9.16 Use their best efforts to obtain, the mortgage
financing contemplated by Section 9.15 not later than August
1, 1996.
9.17 Use their best efforts to obtain, not later than
August 1, 1996, a written binding commitment from a lender
or group of lenders to lend the Borrower an aggregate
principal amount of not less than $6,000,000 to be secured
solely by the COLUMBUS MORTGAGE; provided that if a written
binding commitment shall not have been obtained by said
date, BORROWER and XXXXX shall use their best efforts to
obtain a written binding commitment within 90 days of said
date.
9.18 Use their best efforts to obtain, the mortgage
financing contemplated by Section 9.17 not later than
November 1, 1996.
9.19 Promptly provide to the AGENT copies of all
pertinent documentation relating to the transactions
referred to in Sections 9.15, 9.16, 9.17 and 9.18 hereof."
D. Section 10.01.1 of the Credit Agreement shall be
amended by changing "$175,000,000" in clause (i) thereof to read
"$182,500,000" and by changing "January 31, 1993" in clause (ii)
to read October 30, 1995."
E. Section 10.01.4 of the Credit Agreement shall be
amended in its entirety to read as follows:
"(a) Permit LEVERAGE at any time to exceed, during each
period specified below, the percentage set forth opposite
the reference to such period (subject to clause (b) below):
Period Maximum Leverage
From the first day of
the fiscal quarter
beginning on or about
August 1, 1995 to and
including the last
day of the FISCAL
YEAR ending on or
about January 31, 1997 170%
At all times thereafter 160%
(b) Permit LEVERAGE to exceed, on each date specified
below, the percentage set forth opposite the reference to
such date:
Date Maximum Leverage
February 3, 1996 140%
February 1, 1997 120%
F. Section 10.01.5(a) of the Credit Agreement shall be
amended by inserting the following at the end thereof:
"For purposes of this Section 10.01.5(a) "profit before
any accrual of income tax liability" shall be computed
without deduction for the FAYVA RESTRUCTURING CHARGE."
G. Section 10.01.5(c) of the Credit Agreement shall be
amended in its entirety to read as follows:
"The applicable percentages to be used in
Section 10.01.5(a) shall be as follows for each of the following
respective periods:
Period Minimum Percentage
From the first day of the
fiscal quarter beginning on
or about August 1, 1995 to and
including the last day
of the FISCAL YEAR ending on
or about January 31, 1997 105%
At all times thereafter 115%
H. The first sentence of Section 10.01.6 of the Credit
Agreement shall be amended in its entirety to read as follows:
"In any single FISCAL YEAR, make expenditures for the
purchase, in the ordinary course of business, of fixed
assets, which expenditures, including without limitation
CAPITALIZED LEASE OBLIGATIONS, net capitalized systems
development costs, and the cost of any other intangible
asset in the aggregate exceed the sum of (i) $35,000,000 for
the FISCAL YEAR ending in January, 1996, and (ii)
$20,000,000 for each FISCAL YEAR thereafter."
I. Section 10.01.10(a) of the Credit Agreement shall
be amended by inserting the following at the end thereof:
"For purposes of this Section 10.01.10(a) "operating
net income" shall be computed without deduction for the
FAYVA RESTRUCTURING CHARGE."
J. Section 10.01.10(b) of the Credit Agreement shall
be amended to read in its entirety as follows:
"The applicable percentage to be used in
Section 10.01.10(a) shall be as follows for each of the
following respective periods:
Period Minimum Percentage
From the first day of the
fiscal quarter beginning
on or about August 1, 1995
to and including the
last day of the FISCAL
YEAR ending on or about
February 3, 1996 175%
From the first day of the
FISCAL YEAR beginning
on or about February 4,
1996 to and including the
last day of the FISCAL
YEAR ending on or about
February 1, 1997 180%
At all times thereafter 185%
K. Section 10.03 of the Credit Agreement shall be
amended by (1) deleting "and" at the end of clause (i) thereof,
(2) replacing the period at the end of clause (j) thereof with
";" and (3) inserting new clause (k) and (l) to read in their
entirety as follows:
"(k) INDEBTEDNESS secured by the CANTON MORTGAGE,
provided that the proceeds thereof are used as provided in
Section 2.30 hereof; and
(l) INDEBTEDNESS secured by the COLUMBUS MORTGAGE,
provided that the proceeds thereof are used as provided in
Section 2.30 hereof."
L. Section 10.04 of the Credit Agreement shall be
amended by (1) deleting "and" at the end of clause (g) thereof,
(2) replacing the period at the end of clause (h) thereof with ";
and" and (3) inserting new clause (i) to read in its entirety as
follows:
"(i) LIENS arising pursuant to the CANTON MORTGAGE or
the COLUMBUS MORTGAGE."
M. Article 10 of the Credit Agreement shall be amended
by inserting the following at the end thereof:
"10.17 Permit the FAYVA RESTRUCTURING CHARGE to be
greater than $45,000,000 on an after tax basis."
N. Section 10.01.7 shall be deleted in its entirety.
Section 3. Representations and Warranties. Each of
the Borrower and Xxxxx hereby represents and warrants to the
Banks and the Agent as of the Effective Date that, after giving
effect to the amendments set forth herein and to the other
transactions contemplated hereby, (a) no Default has occurred and
is continuing, (b) the representations and warranties set forth
in Article VIII of the Credit Agreement are true and complete as
if made on and as of the Effective Date and as if each reference
in said Article VIII to "this Agreement" included reference to
this Agreement (provided that the representation and warranty set
forth herein shall not be deemed to be inaccurate solely by
reason of the failure of any information contained in any of
Exhibits G (solely as the information therein relates to
Section 8.04 or 8.05 of the Credit Agreement), N, O, P, Q and R
to the Credit Agreement to remain true), (c) the amendments
contemplated by Section 2 hereof do not require any consent under
any agreement, instrument or other document (including, without
limitation, the Convertible Subordinated Notes, the Senior
Subordinated Notes and the Subordinated Convertible Debentures)
including, without limitation, any consent necessary to cause the
Loans and the Revolving Notes to be Obligations to which the
Subordinated Indebtedness shall be subordinated under the
subordination agreement(s) referred to in Section 1.110 of the
Credit Agreement. The foregoing shall be deemed to be
representations and warranties made in an Operative Document for
purposes of Section 11.01(d) of the Credit Agreement.
Section 4. Conditions Precedent. The Effective Date
shall be the date as of which the Agent notifies the Borrower,
Xxxxx and the Banks in writing that it has received the following
documents, each of which shall be in form and substance
satisfactory to the Agent:
(a) counterparts of this Agreement duly executed and
delivered by each of the parties hereto;
(b) certified copies of the charter and by-laws (or
equivalent documents) of each Obligor (or, in the
alternative, a certification to the effect that none of such
documents has been modified since delivery thereof on the
Closing Date pursuant to the Credit Agreement, and of all
corporate authority for each Obligor (including, without
limitation, board of director resolutions and evidence of
the incumbency (with specimen signature) of officers for
each Obligor) with respect to the execution, delivery and
performance of (i) in the case of the Borrower and Xxxxx,
this Agreement and the Credit Agreement as amended hereby
and (ii) in the case of each other Obligor this Agreement,
and each other document to be delivered by each Obligor from
time to time in connection with the Credit Agreement as
amended hereby (and the Agent and each Bank may conclusively
rely on such certificate until it receives notice in writing
from each Obligor to the contrary);
(c) an opinion, dated the date hereof, of Xxxxxxx,
Procter & Xxxx, counsel to the Obligors, substantially in
the form of Exhibit A hereto and covering such matters
relating hereto as the Agent may require (and each Obligor
hereby instructs such counsel to deliver such opinion to the
Banks and the Agent); and
(d) such other documents relating to the transactions
contemplated by this Agreement as the Agent or any Bank or
special counsel to the Agent may reasonably request.
Section 5. References. All references in the Credit
Agreement and in each Operative Document and Financing Agreement
(including references to the Credit Agreement as amended hereby)
to the "Credit Agreement" (and indirect references thereto such
as "hereunder", "hereby", "herein" and "hereof") shall be deemed
to be references to the Credit Agreement as amended hereby.
Section 6. Miscellaneous. Except as expressly herein
provided, the Credit Agreement and all other Operative Documents
and Financing Agreements shall remain unchanged and in full force
and effect. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same amendatory instrument and any of the parties hereto
may execute this Agreement by signing any such counterpart. This
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. This
Agreement shall be governed by, and construed in accordance with,
the law of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
JBI, INC.
By /s/ Xxxx X. Xxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive
Vice President
X. XXXXX, INC.
By /s/ Xxxx X. Xxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive
Vice President
SHAWMUT BANK, N.A.
By /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Director
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
FLEET BANK OF MASSACHUSETTS, N.A.
By /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
NATWEST BANK N.A. (formerly
"National Westminster Bank USA")
By
-------------------------
Name:
Title:
BANK HAPOALIM B.M.
By /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
By /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
NATIONAL CITY BANK, COLUMBUS
By /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
STANDARD CHARTERED BANK
By /s/ Xxxxxxxx XxXxxxx
-------------------------
Name: Xxxxxxxx XxXxxxx
Title: Vice President
By /s/ Xxxxxxxx Tee
-------------------------
Name: Xxxxxxxx Tee
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By
-------------------------
Name:
Title:
THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By /s/ Xxxx Xxxxxxxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxxxxxxx
Title: Senior Vice President
SHAWMUT BANK, N.A.,
as Agent
By /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Director
We hereby acknowledge, consent
and agree to the terms of the
foregoing Seventh Amendment
Agreement and confirm that
our obligations under the
Guarantee and the Pledge
Agreement shall remain
unchanged and in full
force and effect.
Dated: November 17, 1995
XXXXXXX COMPANIES, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
XXXXXXX NO. 301 CORP.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
JBI HOLDING CO., INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
THE CASUAL MALE, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
TCMB&T, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
WGS CORP.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
TCM HOLDING COMPANY, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
XXXXX SHOE, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
BUCKMIN, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
ELM EQUIPMENT CORP.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
JARED CORPORATION
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
XXXXX SHOE (CANADA) LTD.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
XXXXX SHOE INTERNATIONAL, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
ISAB, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
WHITE CAP FOOTWEAR, INC.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior Executive Vice President
