EXHIBIT 4.23
NINTH AMENDMENT AGREEMENT
This NINTH AMENDMENT AGREEMENT is dated as of December 31, 1996 (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, and by the Eighth
Amendment Agreement, dated as of June 21, 1996, 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 February 14, 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),
February 14, 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 later to occur of (a) December 31, 1996 and (b) 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 Aggregate Commitment Amount, as determined as of the date
hereof, shall automatically and permanently be reduced by
$5,400,000, provided, however, that such reduction shall be
in addition to, and not in lieu or in satisfaction of, (i)
any reductions in the Aggregate Commitment Amount
otherwise required under the Credit Agreement and (ii) all
reductions in the Aggregate Commitment Amount required
pursuant to that certain Waiver Agreement, dated as of
December 19, 1996 (the "Chase Waiver Agreement"), by and
among the Borrower, Xxxxx, the Banks and the Agent;
(c) the Borrower shall pay to the Agent, for the benefit of the
Banks, the Initial Payment (a defined in Section 3 below);
(d) the representations and warranties of the Borrower and Xxxxx
set forth in Section 4 below, shall be true and correct in
every respect; and
(e) 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 December 31, 1996, this Agreement shall be null and
void and of no force or effect.
Section 3. Fees. In partial consideration of the Banks and the Agent
executing and delivering this Agreement, and thereby consenting to the extension
of the Termination Date, the Borrower agrees that, on the Effective Date, it
shall pay to the Agent, for the account of all of the Banks, collectively, which
have executed and delivered their respective signature page hereto to the Agent,
a fee in the aggregate amount of $200,000 (the "Fee"). The Fee is earned and
owing in full to the Agent on the Effective Date; however, notwithstanding the
foregoing, the Agent and the Banks hereby consent to the payment by the Borrower
of the Fee in two (2) installments as follows:
(a) 25% of the Fee (the "Initial Payment") shall be paid
immediately on the Effective Date, and
(b) 75%of the Fee (the "Final Payment") shall be paid on February
14, 1997,
provided, however, that if, and only if, on or before 5:00 p.m. Boston,
Massachusetts time, February 14, 1997, (x) the Borrower has permanently reduced
the Aggregate Commitment Amount to an amount equal to or less than $165,000,000
and (y) no Default or Event of Default has occurred and is continuing under any
provision of any of the Credit Agreement, the other Operative Documents or the
Financing Agreements, including without limitation Section 2.25.1 of the Credit
Agreement, then the Agent and the Banks shall irrevocably waive the payment of
the Final Payment set forth in subsection (b) above. The Borrower's obligation
hereunder to pay the Fee shall be an Obligation under the Credit Agreement, and
the failure by the Borrower to pay the Final Payment when (and if) due shall
constitute an Event of Default under the Credit Agreement. The Initial Payment
and the Final Payment (if any) shall be distributed by the Agent to the Banks
pro rata in accordance with each Bank's Commitment Percentage set forth in
Section 6.01 of the Credit Agreement. Notwithstanding the foregoing, should the
Agent and the Banks accelerate, prior to 5:00 p.m. Boston, Massachusetts time,
February 14, 1997, the Borrower's Obligations in accordance with Section 11.02
of the Credit Agreement, and, prior to such acceleration, the Borrower and the
other Obligors not have complied with the conditions set forth in subsections
(x) and (y) above, the Final Payment shall become automatically and immediately
due and payable.
Section 4. 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, (ii) are rendered inaccurate solely
by reason of the transactions contemplated by the Chase Waiver
Agreement or (iii) 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 4(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 5. 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 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 caused
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 February 14, 1998,
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/Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
X. XXXXX, INC.
By /s/Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: 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. Xxxxxx, Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Director
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/Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
By /s/Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: First Vice President
NATIONAL CITY BANK OF COLUMBUS
By /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Corporate Loan Officer
STANDARD CHARTERED BANK
By /s/Xxxxx X. Cutting
Name: Xxxxx X. Cutting
Title: Senior Vice President
By /s/Xxxxxxxx XxXxxxx
Name: Xxxxxxxx XxXxxxx
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By /s/Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By /s/Raitaro Ito
Name: Xx. Xxxxxxx Xxx
Title: Joint 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: December 31, 1996
XXXXXXX COMPANIES, INC.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
XXXXXXX NO. 301 CORP.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
JBI HOLDING CO., INC.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
TCMB&T, INC.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
WGS CORP.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: 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: President
BUCKMIN, INC.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
ELM EQUIPMENT CORP.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
JARED CORPORATION
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
XXXXX SHOE (CANADA) LTD.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
XXXXX SHOE INTERNATIONAL, INC.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
ISAB, INC.
By /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
WHITE CAP FOOTWEAR, 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: President
