Exhibit No. 4(a)
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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:
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");
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
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:
I. 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.
II. 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."
III. 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 amount 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."
IV. 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.
V. 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.
VI. 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.
VII. 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.
VIII. Borrower and the guarantors by executing this Agreement acknowledge
that there is due and owing on the Restated Secured Revolving Note as
of the date hereof the principal sum of $17,700 000.
IX. 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.
X. 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
WITNESS: XXXXXX, INC.
----------------------- by: /s/ XXXXXXX 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
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
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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
