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THIRD AMENDMENT TO
1999 LOAN AND SECURITY AGREEMENT Fleet Retail Finance Inc.
ADMINISTRATIVE AGENT
AND COLLATERAL AGENT
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November 15, 2000
THIS THIRD AMENDMENT is made in consideration of the mutual covenants
contained herein and benefits to be derived herefrom to the August 30, 1999
agreement styled "1999 Loan and Security Agreement" (as amended to date, the
"Loan Agreement") between
BankBoston Retail Finance Inc. (now known as Fleet Retail
Finance Inc.), a Delaware corporation with its principal
executive offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, as
Administrative Agent and as Collateral Agent for the ratable
benefit of (i) a syndicate of lenders (defined therein as the
"Revolving Credit Lenders") and (ii) Back Bay Capital Funding LLC
(defined therein as the "Term Lender") a Delaware limited
liability company,
and
The Revolving Credit Lenders
and
The Term Lender
On the one hand
and
X. Xxxxx, Inc., a Massachusetts corporation with its
principal executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 as agent for the following:
Xxxxx Shoe, Inc. ( a Delaware corporation with its principal
executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
02021);
JBI, Inc. ( a Massachusetts corporation with its principal
executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
02021);
JBI Apparel, Inc.( a Massachusetts corporation with its
principal executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 02021);
The Casual Male, Inc. (a Massachusetts corporation with its
principal executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 02021);
WGS Corp. ( a Massachusetts corporation with its principal
executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
02021); and
TCMB&T, Inc.( a Massachusetts corporation with its principal
executive offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
02021);
on the other,
WITNESSETH:
1. AMENDMENT OF LOAN AGREEMENT:
Article 1 of the Loan Agreement is amended so that the following
Definition, included therein, read as follows:
"Consolidated EBITDA": The Borrowers' Consolidated earnings before
interest, taxes, depreciation, and amortization, each as
determined in accordance with GAAP, provided however, the
determination of Consolidated EBITDA shall exclude charges of
up to $40 Million on account of discontinued operations of X.
Xxxxx'x shoe division.
Article 1 of the Loan Agreement is further amended by the addition of
the following Definition in alphabetical order therein:
"Shoe Division Sale": The sale of a substantial portion of the
assets of the Shoe Division Borrowers on substantially the
same terms and conditions as outlined in a certain letter,
dated November 8, 2000, from the Borrowers' Representative to
the Administrative Agent.
Section 5-24(b) of the Loan Agreement is amended to read as
follows:
The net aggregate of intercompany cash advances between the Shoe
Division Borrowers, on the one hand, and the Apparel Division Borrowers on the
other (determined without regard to intercompany accounts outstanding on August
1, 1999), shall not exceed the following at any one time outstanding.
(i) Until the consummation of the Shoe Division Sale: $17.5
Million.
(ii) Upon and following the consummation of the Shoe Division
Sale: $1.0 Million.
2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT:
The effectiveness of this Amendment is conditioned on the
satisfaction of each of the following:
(a) The delivery to the Administrative Agent of Certificates
executed respectively by the Chief Executive Officer and the Chief Financial
Officer of X. Xxxxx, Inc. stating that at the delivery of such Certificates, no
Suspension Event has occurred which is then continuing and that neither the
execution nor the effectiveness of this Third Amendment is prohibited by or
constitutes a breach of any agreement to which the Borrowers' Representative or
any Borrower is a party or by which any is bound.
(b) The delivery of an opinion of counsel to the Borrowers
which confirms the due execution, binding effect, and enforceability of this
Third Amendment and absence of conflict of this Third Amendment with any
agreement to which the Borrowers' Representative or any Borrower is a party or
by which any is bound (which opinion may be subject to the same qualifications
as had been included in such counsel's opinion rendered in connection with the
execution of the Loan Agreement).
3. RATIFICATION OF LOAN DOCUMENTS. NO CLAIMS AGAINST ANY LENDER:
(a) Except as provided herein, all terms and conditions of the
Loan Agreement and of the other Loan Documents remain in full force and effect.
The Borrowers' Representative and each Borrower hereby ratifies, confirms, and
re-affirms all and singular the terms and conditions, including execution and
delivery, of the Loan Documents.
(b) There is no basis nor set of facts on which any amount (or
any portion thereof) owed by any Borrower under the Loan Agreement could be
reduced, offset, waived, or forgiven, by rescission or otherwise; nor is there
any claim, counterclaim, off set, or defense (or other right, remedy, or basis
having a similar effect) available to any Borrower with regard to thereto; nor
is there any basis on which the terms and conditions of any of the Liabilities
could be claimed to be other than as stated on the written instruments which
evidence such Liabilities. To the extent that any Borrower or any such guarantor
has (or ever had) any such claims against the Agent or any Lender, each hereby
affirmatively WAIVES and RELEASES the same.
4. MISCELLANEOUS:
(a) Terms used in the Third Amendment which are defined in the
Loan Agreement are used as so defined.
(b) This Third Amendment may be executed in several counterparts
and by each party on a separate counterpart, each of which when
so executed and delivered shall be an original, and all of which
together shall constitute one instrument.
(c) This Third Amendment expresses the entire understanding of
the parties with respect to the transactions contemplated hereby.
No prior negotiations or discussions shall limit, modify, or
otherwise affect the provisions hereof.
(d) Any determination that any provision of this Third Amendment
or any application hereof is invalid, illegal, or unenforceable
in any respect and in any instance shall not affect the validity,
legality, or enforceability of such provision in any other
instance, or the validity, legality, or enforceability of any
other provisions of this Third Amendment.
(e) The Borrower shall pay on demand all reasonable costs and
expenses of the Agents, including, without limitation, reasonable
attorneys' fees in connection with the preparation, negotiation,
execution, and delivery of this Third Amendment.
(f) This Third Amendment shall be construed, governed, and
enforced pursuant to the laws of The Commonwealth of
Massachusetts and shall take effect as sealed instrument.
Except as amended hereby all terms and conditions of the Loan
Agreement, as previously amended to date, shall remain in full force and effect.
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT:
FLEET RETAIL FINANCE INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Director
THE REVOLVING CREDIT LENDERS:
FLEET RETAIL FINANCE INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Director
DEBIS FINANCIAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
Name: Xxxxx X. Xxxxxxxxxx
Title: President, ABL Division
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
ORIX BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxx
Name: Xxxxxxx X. Xxx
Title: Senior Vice President
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
AMSOUTH BANK
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney in Fact
LASALLE BUSINESS CREDIT
By: /s/ Xxxxxxx Lavinid
Name: Xxxxxxx Lavinid
Title: Assistant Vice President
THE PROVIDENT BANK
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signer
IBJ WHITEHALL BUSINESS CREDIT CORP.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: AVP
SOVEREIGN BANK
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
THE TERM LENDER:
BACK BAY CAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
BORROWERS' REPRESENTATIVE
X. XXXXX, INC., as Agent
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X Xxxxxxxxx
Title: President and CEO
