EXHIBIT 4(d)
FIRST AMENDMENT TO REVOLVING LOAN AGREEMENT,
PROMISSORY NOTE AND OTHER LOAN DOCUMENTS
AGREEMENT, made this 23rd day of October 2003 between XXXXXX, INC.
("Borrower"), a corporation organized and existing pursuant to the laws of the
State of Delaware, having an address at 000 00xx Xxxxxx, Xxxx Xxx Xxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as, "Borrower") and XXXXXX UNITED BANK, a
New Jersey corporation, (hereinafter referred to as, "Bank"), located at 0000
XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS:
A. Borrower entered into a revolving loan agreement with Bank on
December 23, 2002 (the "Loan Agreement") and pursuant to such Loan Agreement,
Borrower executed and delivered to Bank its promissory note in the original
principal amount of THIRTY-TWO MILLION AND 00/100 (32,000,000.00) DOLLARS dated
December 23, 2002 (the "Revolving Note");
B. Borrower has now requested that Bank increase the amount of
funds available under the Revolving Loan from "THIRTY-TWO MILLION AND 00/100
(32,000,000.00) DOLLARS" to "FORTY MILLION AND 00/100 (40,000,000.00) DOLLARS,"
extend the maturity date of the Revolving Loan and Revolving Note from "December
1, 2004" to "December 1, 2005," increase the amount of the direct debt sub-limit
under the Revolving Loan from "$22,000,000.00" to "$25,000,000.00," increase the
over-advance limit from "$5,000,000.00" to "$8,000,000.00" for the period July
31st through November 30th and make certain other modifications and changes to
the Loan Agreement; and
C. Bank has agreed to increase the amount of funds available
under the Revolving Loan from "THIRTY-TWO MILLION AND 00/100 (32,000,000.00)
DOLLARS" to "FORTY MILLION AND 00/100 (40,000,000.00) DOLLARS," to extend the
maturity date of the Revolving Loan and Revolving Note from "December 1, 2004"
to "December 1, 2005," to increase the amount of the direct debt sub-limit under
the Revolving Loan from "$22,000,000.00" to "$25,000,000.00," to increase the
over-advance limit from "$5,000,000.00" to "$8,000,000.00" for the period July
31st through November 30th and to make certain other modifications and changes
to the Loan Agreement strictly in accordance with the terms and conditions of
this Agreement.
NOW THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the undersigned hereto agree as follows:
1. In connection with Bank's agreement to increase the
amount of funds available under the Revolving Loan, Borrower has this date
executed and delivered to Bank its promissory note in the original principal
amount of FORTY MILLION AND 00/100 (40,000,000.00) DOLLARS in the form attached
hereto as Schedule A (hereinafter, the "Restated Secured Revolving Note") which
note shall replace and supersede, but shall not be considered a repayment of,
the Revolving Note. Any and all interest due and owing under the Revolving Note
and any further amounts evidenced by the Revolving Note shall hereafter be
evidenced by the Restated Secured Revolving Note and any unpaid interest under
the under the Revolving Note shall be payable on the first payment date on the
Restated Secured Revolving Note.
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2. Paragraph 1.47 of the Loan Agreement is amended to
read as follows:
"1.47. "Termination Date" shall mean the earlier of
December 1, 2005, or the date on which Lender terminates this Agreement pursuant
to Section 12.1 of this Agreement."
3. Paragraph 2.1 of the Loan Agreement is amended to
read as follows:
"2.1. Advances. Subject to the terms and conditions
of this Agreement including, without limitation, the Maximum Facility and
relying upon the representations and warranties set forth in this Agreement, for
so long as no Default or Event of Default shall have occurred and shall be
continuing, Lender shall make Advances to Borrower on its request, from time to
time during the term of this Agreement in an amount ("Borrowing Capacity") not
to exceed at any one time outstanding the lesser of:
(a) TWENTY-FIVE MILLION and 00/100
(25,000,000.00) Dollars, or
(b) the sum of (i) eighty-five (85) percent of
the face amount of Borrower's Eligible Receivables, (ii) fifty (50) percent of
the Value of Borrower's Eligible Inventory, and (iii) fifty (50) percent of the
outstanding face amount of Letters of Credit issued under this Agreement, plus
in each case, for the period from July 31st through November 30th only,
$8,000,000.00 provided an officer of Borrower submits to Lender an Authenticated
Record within twenty (20) days of the end of July, August, September, October
and November stating that sixty-five (65) percent of the value of all Eligible
Inventory is subject to confirmed bona fide purchase orders with unrelated third
parties. Value shall mean the lower of cost or the fair market value of such
Inventory, as reflected on the books and records of Borrower.
For the purpose of calculating the Borrowing Capacity under
Subsection 2.1(b), the face of all Letters of Credit shall be deducted from such
sum. Within the limits of the Borrowing Capacity, and subject to the limitations
set forth in this Agreement, Borrower may borrow, repay and reborrow Advances."
4. The undersigned Borrower and Guarantors acknowledge
and agree that the term "Obligation" or "Obligations," as defined in the Loan
Agreement, shall include the Restated Secured Revolving Note referred to in this
Agreement
5. Any reference in any document executed and/or
delivered in connection with the Loan Agreement to the "Agreement" or the "Loan
Agreement" shall mean the revolving loan agreement dated December 23, 2002 as
amended by this Agreement. Any reference in any document executed and/or
delivered in connection with the Loan Agreement to the Revolving Note shall mean
the note attached hereto as Schedule A. All of the provisions of the Restated
Secured Revolving Note, the Loan Agreement or any other document executed or
delivered in connection with the Loan Agreement (collectively, the "Loan
Documents") are amended so that such terms shall be consistent with the
provisions of this Agreement. Notwithstanding the foregoing, and to the extent
that there is any inconsistency between the provisions of those agreements and
this Agreement, the provisions of this Agreement shall govern.
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6. Bank's agreement to increase the amount of funds
available under the Revolving Loan, to extend the maturity date of the Revolving
Loan and Revolving Note from "December 1, 2004" to "December 1, 2005," to
increase the amount of the direct debt sub-limit under the Revolving Loan from
$22,000,000.00 to $25,000,000.00, to increase the over-advance limit from
"$5,000,000.00" to "$8,000,000.00" for the period July 31st through November
30th and to otherwise modify the Loan Agreement and the other Loan Documents is
not and shall not be construed as a waiver of any current or future default
under the Revolving Note, the Restated Secured Revolving Note, the Loan
Agreement or any other Loan Document nor shall it preclude Bank from proceeding
against Borrower on any such default. This Agreement is also not a
relinquishment of any rights or remedies Bank may have in connection with the
Revolving Note, the Restated Secured Revolving Note, the Loan Agreement or any
other Loan Document.
7. As a material condition to the entering into of this
Agreement, Borrower and the undersigned Guarantors by executing this Agreement
voluntarily and expressly waive any and all rights to assert a claim,
counterclaim or defense which now exists of which they have actual knowledge
against Bank arising out of or in any way connected with the Restated Secured
Revolving Note, the Loan Agreement or any other Loan Document. The foregoing
waiver shall apply to any action instituted by any of the undersigned and to any
action or proceeding brought against any of the undersigned by Bank. The term
"actual knowledge" means the conscious awareness of those officers of Borrower
and the undersigned guarantors who have given substantive attention to this
Agreement, of facts or information relating to such a claim, counterclaim or
defense, without undertaking any investigation to determine the existence or
absence of any such facts or information, either within Borrower or any of the
undersigned guarantors or otherwise.
8. Borrower and the guarantors by executing this
Agreement acknowledge that there is due and owing on the Restated Secured
Revolving Note the principal sum of $17,700,000.
9. BORROWER AND THE GUARANTORS BY EXECUTING THIS
AGREEMENT ACKNOWLEDGE THAT HE, SHE OR IT HAS HAD A FULL AND FAIR OPPORTUNITY TO
REVIEW THIS AGREEMENT AND THE DOCUMENTS REFERRED TO HEREIN WITH COUNSEL OF HIS,
HER OR ITS CHOICE AND THAT HE, SHE OR IT HAS BEEN ADVISED AS TO THEIR TERMS AND
CONDITIONS, WHICH ARE ACCEPTABLE TO HIM, HER OR IT. FURTHER, EACH CONFIRMS THAT
IN DELIVERING THIS AGREEMENT TO BANK, HE, SHE OR IT IS NOT RELYING ON ANY
PROMISE, COMMITMENT, REPRESENTATION OR UNDERSTANDING, EITHER EXPRESS OR IMPLIED,
MADE BY OR ON BEHALF OF BANK THAT IS NOT EXPRESSLY SET FORTH HEREIN, OR IN THE
LOAN AGREEMENT, THE REVOLVING NOTE, THE RESTATED SECURED REVOLVING NOTE OR ANY
OTHER LOAN DOCUMENT. BORROWER AND THE GUARANTORS BY EXECUTING THIS AGREEMENT AND
THE RESTATED SECURED REVOLVING NOTE ACKNOWLEDGE AND UNDERSTAND THAT ALL
OBLIGATIONS UNDER THE RESTATED SECURED REVOLVING NOTE ARE DUE AND PAYABLE IN
ACCORDANCE WITH THE LOAN AGREEMENT AS AMENDED BY THIS AGREEMENT, UNLESS BANK IN
ITS SOLE AND ABSOLUTE DISCRETION EXTENDS THE MATURITY DATE OF SUCH OBLIGATION
AND THAT BANK HAS NOT MADE ANY REPRESENTATION THAT IT WILL EXTEND THE MATURITY
DATE OF SUCH OBLIGATION.
10. This document may be executed in one or more
counterparts and all such documents taken together shall be considered one
original document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers thereunto duly authorized on the day
and year first above written
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WITNESS: XXXXXX, INC.
/s/ XXXXX X. XXXXXXXXXX by: /s/ XXXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer &
Treasurer
WITNESS: XXXXXX UNITED BANK
by /s/ XXXXX X. XXXXXXXXXX
-------------------------------- -------------------------------------
Xxxxx X. Xxxxxxxxxx
Senior Vice President
For valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the undersigned guarantors of the performance and payment
of Borrower, do hereby approve all of the terms and conditions of this
Agreement, do hereby approve the execution and delivery of this Agreement by
Xxxxxx, Inc., do hereby acknowledge and confirm their continuing liability and
responsibility to Xxxxxx United Bank with respect to the debts referred to in
this Agreement and the Loan Agreement including, without limitation, the
Restated Secured Revolving Note.
WITNESS: Xxxxxx International
(Hong Kong) Limited
by /s/ XXXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
WITNESS: JLN, Inc.
by /s/ XXXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
WITNESS: Josell Global Sourcing Ltd.
by /s/ XXXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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WITNESS: Investments (JLN) Ltd.
by /s/ XXXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
WITNESS: Xxx X. Xxxxxxxx, Inc.
by /s/ XXXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
[Signatures continue next page]
WITNESS: Topsville, Inc.
by /s/ XXXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
WITNESS: The Bag Factory Inc.
by /s/ XXXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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RESTATED SECURED REVOLVING NOTE
-------------------------------
$40,000,000.00 Mahwah, New Jersey
October 23, 2003
FOR VALUE RECEIVED, XXXXXX, INC., a corporation having an
address at 000 00xx Xxxxxx, Xxxx Xxx Xxxx, Xxx Xxxxxx 00000 ("Borrower"),
promises to pay to the order of XXXXXX UNITED BANK ("Lender"), at 0000 XxxXxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000 or at such other place as Lender may from
time to time in writing designate, the principal sum of each Advance made by
Lender to Borrower under that certain revolving loan agreement dated December
23, 2002 between Borrower and Lender as it may be subsequently amended and/or
modified (collectively, the "Loan Agreement") (the Loan Agreement together with
all of the other documents, instruments or agreements executed in connection
therewith, as the same may be modified, amended, restated or replaced from time
to time are hereinafter collectively referred to as, the "Loan Documents"). The
aggregate unpaid principal balance hereof shall not exceed at any time the sum
of FORTY MILLION and 00/100 (40,000,000.00) DOLLARS. Capitalized terms used
herein and not otherwise defined shall have the meaning given such terms in the
Loan Documents. The entire unpaid principal balance hereof, together with the
accrued interest thereon and accrued late charges, if any, and all other sums
due hereunder and under the Loan Documents shall be due and payable on the
Termination Date.
Borrower also promises to pay interest to Lender monthly, in
arrears, on the first day of each month commencing on January 1, 2003 on the
average daily unpaid principal balance of this Note at the rate set forth in
Section 3.1 of the Loan Agreement.
This is the "Revolving Note" referred to in the Loan Agreement
and is entitled to the benefit of all of the terms and conditions and the
security of all of the security interests and liens granted by Borrower or any
other person to Lender pursuant to the Loan Agreement or any other Loan
Document. Upon the occurrence and during the continuance of any Event of
Default, the entire unpaid principal amount owed Lender hereunder shall, at the
option of Lender, become immediately due and payable without further notice or
demand, all as provided in the Loan Agreement.
This Note replaces and supersedes (but shall not be considered
a repayment of) a note of the Obligor dated December 23, 2002 in the original
principal amount of $32,000,000.00 (the "Prior Note"). Any and all amounts
evidenced by the Prior Note shall hereafter be evidenced by this Note and any
accrued but unpaid interest due and owing under the Prior Note shall be payable
on the first interest payment date hereunder.
Whenever any payment to be made under this Note shall be
stated to be due on a day other than a Banking Day, such payment shall be made
on the next succeeding Banking Day and such extension of time shall be included
in the computation of any interest then due and payable hereunder.
The undersigned and all other parties who, at any time, may be
liable hereon in any capacity waive presentment, demand for payment, protest and
notice of dishonor of this Note. This Note and any provision hereof may not be
waived, modified, amended or discharged orally, but only by an agreement in
writing which is signed by the holder and the party or parties against whom
enforcement of any waiver, change, modification, amendment or discharge is
sought.
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This Note shall be governed by and construed under the
internal laws of the State of New Jersey, as the same may from time to time be
in effect, without regard to principles of conflicts of laws thereof.
IN WITNESS WHEREOF, the undersigned has executed this Note the
day and year first above written.
WITNESS: XXXXXX, INC.
/s/ XXXXX X. XXXXXXXXXX by /s/ XXXXXXX X. XXXXXXXX
------------------------------- ------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer &
Treasurer
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