EXHIBIT 4.25
ELEVENTH AMENDMENT AGREEMENT
This ELEVENTH AMENDMENT AGREEMENT is dated as of April 14, 1997 (this
"Agreement"), by and 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 FLEET NATIONAL BANK (successor by merger to Fleet National Bank of
Massachusetts (formerly known as Shawmut Bank, N.A.) and Fleet Bank of
Massachusetts, 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, dated as of November 19, 1993, by the
Second Amendment Agreement, dated as of April 29, 1994, by the Third Amendment
Agreement, dated as of December 1, 1994, by the Fourth Amendment Agreement,
dated as of March 6, 1995, by the Fifth Amendment Agreement, dated as of May 19,
1995, by the Sixth Amendment Agreement, dated as of September 12, 1995, by the
Seventh Amendment Agreement, dated as of November 17, 1995, by the Eighth
Amendment Agreement, dated as of June 21, 1996, by the Ninth Amendment, dated as
of December 31, 1996, ,and by the Tenth Amendment, dated as of February 14,
1997, as in effect on the date hereof, the "Credit Agreement"). Capitalized
terms used but not defined in this Agreement have the meanings specified for
such terms in the Credit Agreement.
The Borrower and Xxxxx have requested that the Banks and the Agent
extend the Termination Date under the Credit Agreement. The Banks and the Agent
are prepared to so amend the Credit Agreement, subject to the satisfaction of
the conditions precedent and in reliance upon the representations and warranties
of the Borrower and Xxxxx set forth herein.
Section 1. Amendments to the Credit Agreement. As of the Effective Date
(as defined in Section 2 below), the Credit Agreement shall be amended by
amending and restating the following defined term that appears therein to read
as follows:
" 'TERMINATION DATE' shall mean May 30, 1998, provided, that
if such day is not a BUSINESS DAY, the TERMINATION DATE shall be the
immediately preceding BUSINESS DAY (subject to the provisions of
Article XXV)."
In order to effect said extension, each of the parties hereto waives the request
and notice requirements set forth in Article XXV of the Credit Agreement.
Additionally, the Revolving Notes currently outstanding (collectively, the
"Current Notes") are hereby amended such that the Maturity Date set forth
therein shall be the Termination Date as defined and amended herein. So as to
remove any doubt, the Maturity Date of the Revolving Notes shall be, as of the
Effective Date (as defined below), May 30, 1998.
Section 2. Conditions to Effectiveness. This Agreement shall become
effective (the date of such effectiveness being referred to hereinafter as the
"Effective Date") on the date on which each of the following conditions
precedent is satisfied:
(a) the Agent shall receive copies of this Agreement bearing the
signature of each of the Borrower, Xxxxx, the Guarantors and
the Banks;
(b) the representations and warranties of the Borrower and Xxxxx
set forth in Section 3 below, shall be true and correct in
every respect; and
(c) the Agent shall receive such other documents and writings as
the Agent may reasonably determine necessary to effect the
transactions contemplated hereby.
Notwithstanding anything in this Agreement to the contrary, should the Effective
Date not occur on or before April 14, 1997, this Agreement shall be null and
void and of no force or effect.
Section 3. Representations and Warranties. By its signature hereto,
each of the Borrower and Xxxxx (and with respect to subsections (c), (d) and (e)
below, the other Obligors), jointly and severally, represents and warrants to
the Banks and the Agent that, as of the date hereof and after giving effect to
the amendments to the Credit Agreement contemplated in Section 1 above:
(a) This Agreement has been duly executed and delivered by the
Borrower and Xxxxx. The agreements and obligations of the
Borrower and Xxxxx contained herein constitute legal, valid
and binding obligations of each such Person enforceable
against such Person in accordance with their respective terms.
(b) The execution, delivery and performance by the Borrower and
Xxxxx of this Agreement and the transactions contemplated
hereby are within the corporate authority of each such Person,
have been duly authorized by proper corporate proceedings,
do not and will not contravene any contractual obligation of
such Person or any applicable law, and do not and will not
result in or require the creation or imposition of any Lien on
any property of such Person, other than Liens in favor of the
Agent on behalf of the Banks.
(c) The representations and warranties made by the Obligors in the
Credit Agreement, the other Operative Documents and the
Financing Agreements were true and correct when made and are
true and correct on and as of the date hereof with the same
force and effect as if made on and as of the
date hereof (except for representations or warranties that
(i) relate solely to a prior date, or (ii) are rendered
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 or R to the Credit Agreement to
remain true). For purposes of this Section 3(c), each
reference in Article VIII of the Credit Agreement to "this
Agreement" shall include this Agreement.
(d) No Default or Event of Default has occurred, is continuing or
will exist under the Credit Agreement, any other Operative
Documents or any Financing Agreements after giving effect to
this Agreement.
(e) All of the Obligors' obligations and liabilities to the Agent
and the Banks as evidenced by or otherwise arising under the
Credit Agreement, any of the other Operative Documents or any
Financing Agreements, are hereby ratified and confirmed in all
respects, and no counterclaim, right of set-off or defense of
any kind exists or is outstanding with respect to such
obligations and liabilities.
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. Consent of Obligors. Each of the Obligors acknowledges and
consents to the execution and delivery by the Borrower and Xxxxx of this
Agreement on the terms specified herein and the performance by each such Person
of its respective obligations hereunder, under the Credit Agreement (as amended
hereby), the other Operative Documents and the Financing Agreements. Each
Obligor, by signing this Agreement, confirms and agrees with the Banks that (a)
all of its obligations under the Guarantee and/or the Pledge Agreement (as the
case may be) shall remain in full force and effect and are hereby ratified and
confirmed, and (b) its grant (as the case may be) to the Banks of a security
interest under the Operative Documents to which it is a party shall remain in
full force and effect and is hereby ratified and confirmed.
Section 5. (a) Affirmative Covenant. Each of the Borrower and Xxxxx
jointly and severally agrees that, on or before April 28, 1997, they will
deliver to the Agent and the Banks one or more commitment letters (the "New
Commitment Letters"), issued by one or more financial institutions reasonably
acceptable to the Agent and the Majority Banks, setting forth a commitment or
commitments to provide one or more credit facilities (the "New Commitments") to
the Obligors in an amount sufficient, in the aggregate, to repay all outstanding
obligations under the Credit Agreement (assuming full utilization of the
Aggregate Commitment Amount), and having a required funding date of not later
than May 30, 1997, and provided, that the New Commitment Letters will be
in form and substance reasonably satisfactory to the Agent and the Majority
Banks. Any failure on the part of the Borrower and Xxxxx to deliver the New
Commitment Letters on or before April 28, 1997, as set forth in the immediately
preceding sentence, shall constitute an Event of Default under the Credit
Agreement; provided that such Event of Default may be waived by the Agent with,
and only with, the written consent of the Majority Banks.
(b) Extension Fee. Additionally, each of the Borrower and Xxxxx jointly
and severally promise to pay an extension fee in the aggregate amount of
$150,000 (the "Extension Fee") on April 29, 1997 if the Borrower and Xxxxx have
failed to comply with the covenant contained in subparagraph (a) of Section 5 of
this Amendment. The Extension Fee (if any) shall be paid to the Agent and
distributed by the Agent to the Banks pro rata in accordance with each Bank's
Commitment Percentage set forth in ss.6.01 of the Credit Agreement. The
obligation of the Borrower and Xxxxx to pay the Extension Fee (if any) shall be
an Obligation under the Credit Agreement, and the failure to pay the Extension
Fee (if any) shall constitute an Event of Default under the Credit Agreement.
Section 6. Miscellaneous.
(a) Replacement Notes. The Borrower hereby agrees that, within
five (5) business days after receipt of a written request
therefor from any Bank, the Borrower shall execute or cause
to be executed (as the case may be) and deliver to such Bank
(i) a new Revolving Note in the same form and with the same
terms as the Current Notes, provided, however, that the
Maturity Date set forth therein shall be May 30, 1998,
notwithstanding anything contained in Section 6(a) in the
Tenth Amendment to the Credit Agreement regarding the same,
and (ii) an opinion of in-house counsel to the Borrower as to
the replacement Revolving Note in form and substance
satisfactory to the Bank.
(b) No Other Amendments, Etc. Except as expressly set forth in
this Agreement, this Agreement shall not, by implication or
otherwise, limit, impair, constitute a waiver of or otherwise
affect any rights or remedies of the Agent or the Banks under
the Credit Agreement, the other Operative Documents or the
Financing Agreements, nor alter, modify, amend or in any way
affect any of the terms, obligations or covenants
contained in the Credit Agreement, the other Operative
Documents or the Financing Agreements, all of which are
ratified and confirmed on and as of the date hereof in all
respects and shall continue in full force and
effect. In the event of any conflict between the terms of
this Agreement and the terms of the Credit Agreement, the
terms of this Agreement shall control.
(c) Counterparts, Etc. This Agreement may be executed in any
number of counterparts, but all of such counterparts shall
together constitute but one
and the same agreement. In making proof of this Agreement, it
shall not be necessary to produce or account for more than one
such counterpart. Delivery of an executed counterpart of a
signature page by facsimile transmission shall be effective as
delivery of a manually executed counterpart of this Agreement.
(d) Assignments. This Agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their
respective successors in title and assigns.
(e) Governing Law, Etc. This Agreement and the respective rights
and obligations hereunder of each of the parties hereto shall
be governed by and interpreted and determined in accordance
with the laws 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/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
X. XXXXX, INC.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
FLEET NATIONAL BANK,
for itself and as Agent
By /s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: AVP
THE FIRST NATIONAL BANK OF BOSTON
By /s/Xxxxxx X. XxXxxxx
Name: Xxxxxx X. XxXxxxx
Title: Vice President
FLEET BANK, N.A. (formerly "NatWest Bank
N.A.")
By /s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: AVP
BANK HAPOALIM B.M.
By /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: First Vice President
By /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: First Vice President
NATIONAL CITY BANK OF COLUMBUS
By /s/Xxxxx X. Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
STANDARD CHARTERED BANK
By /s/Xxxxxxxx XxXxxxx
Name: Xxxxxxxx XxXxxxx
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: VP
THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Deputy General Manager
We hereby acknowledge, consent and agree to the terms of the foregoing Agreement
and confirm that our obligations under the Guarantee and the Pledge Agreement
shall remain unchanged and in full force and effect.
Dated: April 14, 1997
XXXXXXX COMPANIES, INC.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXXXX NO. 301 CORP.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
JBI 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: Executive Vice President
WGS CORP.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
TCM HOLDING COMPANY, INC.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXX SHOE, INC.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
BUCKMIN, INC.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
ELM EQUIPMENT CORP.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
JARED CORPORATION
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: Executive Vice President
ISAB, INC.
By /s/Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
WHITE CAP FOOTWEAR, INC.
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
