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FIRST AMENDMENT TO MASTER SECURITY AGREEMENT AND SECURITY
AGREEMENT
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November 16, 2000
THIS FIRST AMENDMENT is made, in consideration of the mutual covenants
contained herein and benefits to be derived herefrom, to the August 26, 1999
agreements styled Master Security Agreement and Security Agreement, respectively
(as amended to date, the "Security Agreements") between
BancBoston Leasing Inc. ("BBL") with offices at One Federal Street,
Boston, Massachusetts and General Electric Capital Corporation, CIT Group,
Inc. and Andover Capital Group, Inc. (together with BBL, the "Secured
Parties")
On the one hand
and
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);
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 (collectively, the "Borrowers" or the "Debtors").
1. AMENDMENT OF SECURITY AGREEMENTS:
Section 1 of the Security Agreements is amended so that the following
Definition is included therein, 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 J.
Baker's shoe division.
2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT:
The effectiveness of this First Amendment is conditioned on the
satisfaction of each of the following:
(a) The delivery to BBL of Certificates executed respectively by the Chief
Executive Officer and the Chief Financial Officer of JBI, Inc. stating that at
the delivery of such Certificates, no Event of Default has occurred which is
then continuing and that neither the execution nor the effectiveness of this
First Amendment is prohibited by or constitutes a breach of any agreement to
which any Debtor is a party or by which any is bound.
(b) The delivery of an opinion of counsel to the Debtors which confirms the
due execution, binding effect, and enforceability of this First Amendment and
absence of conflict of this First Amendment with any agreement to which any
Debtor is a party or by which any is bound.
3. RATIFICATION OF LOAN DOCUMENTS. NO CLAIMS AGAINST ANY LENDER:
(a) Except as provided herein, all terms and conditions of the Security
Agreements remain in full force and effect. The Debtors hereby ratify, confirm,
and reaffirm all and singular the terms and conditions, including execution and
delivery, of the Security Agreements.
(b) There is no basis nor set of facts on which any amount (or any portion
thereof) owed by any Debtor under the Security Agreements 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 Debtor 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 Debtor or any such guarantor of any
Debtor has (or ever had) any such claims against the Secured Parties, each
hereby affirmatively WAIVES and RELEASES the same.
4. MISCELLANEOUS:
(a) Terms used in the First Amendment which are defined in the Security
Agreements are used as so defined.
(b) This First 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 First 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 First 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 First Amendment.
(e) The Debtors shall pay on demand all reasonable costs and expenses of
the Secured Parties including, without limitation, reasonable attorneys' fees in
connection with the preparation, negotiation, execution, and delivery of this
First Amendment.
(f) This First Amendment shall be construed, governed, and enforced
pursuant to the laws of The Commonwealth of Massachusetts and shall take effect
as sealed instrument.
[End of Document]
Except as amended hereby all terms and conditions of the Security
Agreements shall remain in full force and effect.
SECURED PARTIES:
BANCBOSTON LEASING, INC.
By: /s/ Patrick T. Kelly
Name: Patrick T. Kelly
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Title:
CIT GROUP, INC.
By: /s/ Benjamin W. Boesch
Name: Benjamin W. Boesch
Title: Assistant Vice President
ANDOVER CAPITAL GROUP, INC.
By: /s/ William J. Carroll
Name: William J. Carroll
Title: Treasurer
DEBTORS:
MORSE SHOE, INC.
By: /s/ Alan I. Weinstein
Name: Alan I. Weinstein
Title: President and Chief Executive
Officer
JBI, INC.
By: /s/ Alan I. Weinstein
Name: Alan I. Weinstein
Title: President and Chief Executive
Officer
THE CASUAL MALE, INC.
By: /s/ Alan I. Weinstein
Name: Alan I. Weinstein
Title: Vice Chairman of the Board of
Directors
WGS CORPORATION
By: /s/ Alan I. Weinstein
Name: Alan I. Weinstein
Title: Vice Chairman of the Board of
Directors and CEO
TCMB&T, INC.
By: /s/ Alan I. Weinstein
Name: Alan I. Weinstein
Title: Vice Chairman of the Board of
Directors