SECOND AMENDMENT TO
1999 LOAN AND SECURITY AGREEMENT Fleet Retail Finance Inc.
ADMINISTRATIVE AGENT
AND COLLATERAL AGENT
August 22, 2000
THIS SECOND 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
40 Broad Street, Boston, Massachusetts, 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
J. Baker, Inc., a Massachusetts corporation with its principal
executive offices at 555 Turnpike Street, Canton, Massachusetts 02021
as agent for the following:
Morse Shoe, Inc. ( a Delaware corporation with its principal
executive offices at 555 Turnpike Street, Canton, Massachusetts
02021);
JBI, Inc. ( a Massachusetts corporation with its principal
executive offices at 555 Turnpike Street, Canton, Massachusetts
02021);
JBI Apparel, Inc.( a Massachusetts corporation with its principal
executive offices at 555 Turnpike Street, Canton, Massachusetts
02021);
The Casual Male, Inc. ( a Massachusetts corporation with its
principal executive offices at 437 Turnpike Street, Canton,
Massachusetts 02021);
WGS Corp. ( a Massachusetts corporation with its principal
executive offices at 555 Turnpike Street, Canton, Massachusetts
02021); and
TCMB&T, Inc.( a Massachusetts corporation with its principal
executive offices at 437 Turnpike Street, Canton, Massachusetts
02021);
on the other,
WITNESSETH:
1. AMENDMENT OF LOAN AGREEMENT:
Subject to the satisfaction of the Conditions to Effectiveness of
Amendment set forth in (2), below, the Loan Agreement is amended as
follows:
Article 1 of the Loan Agreement is amended so that the following
Definition, included therein, reads as follows:
" "Revolving Credit Loan Ceiling": $160 Million.
Section 2-9 of the Loan Agreement is amended to read as follows:
The obligation to repay loans and advances under the Revolving Credit,
with interest as provided herein, shall be evidenced by Notes (each, a
"Revolving Credit Note") in the form of EXHIBIT , annexed hereto, executed
by the Borrowers, one payable to each Revolving Credit Lender. Each of the
Borrower's shall be bound by, and obligated on account of any increase in
the amount of any Revolving Credit Lender's Revolving Credit Dollar
Commitment notwithstanding that such increase may not be reflected on the
Revolving Credit Note held by that Revolving Credit Lender. Neither the
original nor a copy of any Revolving Credit Note shall be required,
however, to establish or prove any Liability. Upon the Borrowers'
Representative's being provided with an affidavit, from the Administrative
Agent to the effect that any Revolving Credit Note has been lost,
mutilated, or destroyed, the Borrowers shall execute a replacement thereof
and deliver such replacement to the Administrative Agent.
Schedule 1 of the Loan Agreement is amended to read as Schedule 1
annexed hereto.
2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT:
The effectiveness of this Amendment is conditioned on the satisfaction
of each of the following:
(a) Payment of the Second Amendment Fee described in the Second
Amendment Fee Letter of or about even date.
(c) The delivery to the Administrative Agent of Certificates executed
respectively by the Chief Executive Officer and the Chief Financial Officer
of J. Baker, 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 Second 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.
(d) The delivery of an opinion of counsel to the Borrowers which
confirms the due execution, binding effect, and enforceability of this
Second Amendment and absence of conflict of this Second 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 Second Amendment which are defined in the Loan
Agreement are used as so defined.
(b) This Second 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 Second 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 Second 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 Second
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 Second Amendment.
(f) This Second 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/ Sally A. Sheehan
Name: Sally A. Sheehan
Title: Director
THE REVOLVING CREDIT LENDERS:
FLEET RETAIL FINANCE INC.
By: /s/ Sally A. Sheehan
Name: Sally A. Sheehan
Title: Director
DEBIS FINANCIAL SERVICES, INC.
By: /s/ Christopher J. Esposito
Name: Christopher J. Esposito
Title: Managing Director
HELLER FINANCIAL, INC.
By: /s/ Thomas W. Bukowski
Name: Thomas W. Bukowski
Title: Senior Vice President
ORIX BUSINESS CREDIT, INC.
By: /s/ Michael J. Cox
Name: Michael J. Cox
Title: Senior Vice President
FOOTHILL CAPITAL CORPORATION
By: /s/ Todd R. Nakamoto
Name: Todd R. Nakamoto
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.
By: /s/ Gregory A. Godec
Name: Gregory A. Godec
Title: Senior Vice President
AMSOUTH BANK
By: /s/ Barry S. Renow
Name: Barry S. Renow
Title: Attorney in Fact
LASALLE BUSINESS CREDIT
By: /s/ Corey L. Sclar
Name: Corey L. Sclar
Title: Vice President
THE PROVIDENT BANK
By: /s/ Peter B. York
Name: Peter B. York
Title: Vice President
FINOVA CAPITAL CORPORATION
By: /s/ Gerard C. Wordell
Name: Gerard C. Wordell
Title: Authorized Signer
IBJ WHITEHALL BUSINESS CREDIT CORP.
By: /s/ John N. Favale
Name: John N. Favale
Title: Assistant Vice President
SOVEREIGN BANK
By: /s/ Patrick J. Norton
Name: Patrick J. Norton
Title: Vice President
THE TERM LENDER:
BACK BAY CAPITAL LLC
By: /s/ Michael L. Pizette
Name: Michael L. Pizette
Title: Managing Director
BORROWERS' REPRESENTATIVE
J. BAKER, INC., as Agent
By: /s/ Alan I. Weinstein
Name: Alan I. Weinstein
Title: President and CEO