EXHIBIT 4.16
FOURTH AMENDMENT AGREEMENT
FOURTH AMENDMENT AGREEMENT dated as of March 6, 1995,
among JBI, INC., a Massachusetts corporation (the "BORROWER"); J.
BAKER, INC., a Massachusetts corporation ("BAKER"); each of the
banks that is a signatory hereto (individually, a "BANK" and,
collectively, the "BANKS"); and SHAWMUT BANK, 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, BAKER, 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 relating thereto dated as of November 19, 1993, by the
SECOND AMENDMENT AGREEMENT relating thereto dated as of April 29,
1994 and by the THIRD AMENDMENT AGREEMENT relating thereto dated
as of December 1, 1994 and as in effect on the date hereof, the
"CREDIT AGREEMENT").
The BORROWER and BAKER have requested that the CREDIT
AGREEMENT be amended to, among other things, (i) delete Section
9.15 in its entirety and (ii) amend certain covenants thereunder,
and the BANKS and the AGENT have agreed to such amendments upon
the terms and conditions hereof. Accordingly, the parties hereto
hereby agree as follows:
Section 1. Definitions. Except as otherwise defined
in this Agreement, terms defined in the CREDIT AGREEMENT are used
herein as defined therein.
Section 2. Amendments. Effective as of March 6, 1995
but subject to the satisfaction of all of the conditions
precedent set forth in Section 4 hereof, the CREDIT AGREEMENT and
other OPERATIVE DOCUMENTS and FINANCING AGREEMENTS shall be
amended as follows:
A. Section 10.01.4(a) of the CREDIT AGREEMENT is
amended to read in its entirety as follows:
"(a) Permit LEVERAGE at any time to exceed,
during each period specified below, the percentage set
forth opposite the reference to such period (subject to
clause (b) below):
Period Maximum Leverage
From the CLOSING DATE
to but not including
the last day of the
fiscal quarter
ending on or about
February 1, 1995 122%
From the end of the
immediately preceding
period to but not
including the last day
of the fiscal quarter
ending on or about
February 1, 1996 130%
From the end of the
immediately preceding
period to but not
including the last day
of the fiscal quarter
ending on or about
February 1, 1997 125%
At all times thereafter 100%"
B. Section 10.01.4(b) of the CREDIT AGREEMENT is
amended to read in its entirety as follows:
"(b) Permit LEVERAGE to exceed, on each date
specified below, the percentage set forth opposite
the reference to such date:
Date Maximum Leverage
the last day of
the fiscal quarter
ending on or about
February 1, 1994 115%
the last day of
the fiscal quarter
ending on or about
February 1, 1995 122%
the last day of
the fiscal quarter
ending on or about
February 1, 1996 110%
the last day of
the fiscal quarter
ending on or about
February 1, 1997 100%"
C. The introductory sentence of Section 10.01.5 of the
CREDIT AGREEMENT is amended to read in its entirety as follows:
"At the end of each fiscal quarter of each FISCAL YEAR and
with respect to the six or twelve month period, as
applicable, then ending:"
D. Section 10.01.5(c) of the CREDIT AGREEMENT is
amended to read in its entirety as follows:
"(c) The applicable percentages to be used in
Section 10.01.5(a) shall be as follows for each of the
following respective periods:
Period Minimum Percentage
From the first day of the
FISCAL YEAR beginning on
or about February 1, 1994
to and including the last
day of the FISCAL YEAR
ending on or about
February 1, 1995 112%
From the first day of the
FISCAL YEAR beginning on
or about February 1, 1995
to and including the last
day of the fiscal quarter
ending on or about
August 1, 1995 112%
From the first day of the
fiscal quarter beginning on
or about August 1, 1995
to and including the last
day of the FISCAL YEAR
ending on or about
February 1, 1996 115%
From the first day of the
FISCAL YEAR beginning on
or about February 1, 1996
to and including the last
day of the FISCAL YEAR
ending on or about
February 1, 1997 125%
At all times thereafter 135%"
E. Section 9.15 is deleted in its entirety.
F. References in each of the OPERATIVE DOCUMENTS and
FINANCING AGREEMENTS to the CREDIT AGREEMENT or words of like
import (including indirect references thereto) shall be deemed to
be references to the CREDIT AGREEMENT as amended hereby.
Section 3. Representations and Warranties; Covenants.
Each of the BORROWER and BAKER hereby represents and
warrants to the BANKS and the AGENT that, as of the date hereof,
after giving effect to the amendments contemplated by Section 2
hereof: (a) no DEFAULT has occurred and is continuing, (b) the
representations and warranties set forth in Article VIII of the
CREDIT AGREEMENT are true and complete on the date hereof as if
made on and as of the date hereof and as if each reference in
said Article VIII to "this Agreement" included reference to this
Agreement (provided that the representation and warranty set
forth herein shall not be deemed to be 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 and R to the
CREDIT AGREEMENT to remain true) and (c) the amendments
contemplated by Section 2 hereof do not require any consent under
any agreement, instrument or other document (including without
limitation the CONVERTIBLE SUBORDINATED NOTES, the SENIOR
SUBORDINATED NOTES and the SUBORDINATED CONVERTIBLE DEBENTURES)
including without limitation any consent necessary to cause the
LOANS and the REVOLVING NOTES to be OBLIGATIONS to which the
SUBORDINATED INDEBTEDNESS shall be subordinated under the
subordination agreement(s) referred to in Section 1.110 of the
CREDIT AGREEMENT (and 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. Conditions Precedent. As provided in
Section 2 above, this Agreement shall become effective as of the
date the AGENT shall first notify the BORROWER it has received:
(a) counterparts of this Agreement duly executed and
delivered by each of the parties hereto; and
(b) an amendment fee paid by the BORROWER to the AGENT,
for the pro rata benefit of the BANKS, in an amount equal to
$125,000.
Section 5. Miscellaneous. Except as expressly herein
provided, the CREDIT AGREEMENT and all other OPERATIVE DOCUMENTS
and FINANCING AGREEMENTS shall remain unchanged and in full force
and effect. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
and the same amendatory instrument and any of the parties hereto
may execute this Agreement by signing any such counterpart. This
Agreement shall be governed by, and construed in accordance with,
the law 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/ Philip Rosenberg
---------------------------
Title: First Sr. Vice President
J. BAKER, INC.
By /s/ Philip Rosenberg
-------------------------------
Title: First Sr. Vice President
SHAWMUT BANK, N.A.
By /s/ Roger A. Stone
--------------------------
Title: Director
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Mitchell B. Feldman
-----------------------------
Title: Director
FLEET BANK OF MASSACHUSETTS, N.A.
By /s/ Barrie King
------------------------------
Title: Vice President
NATWEST BANK N.A.
(formerly "National Westminster
Bank USA")
By /s/ Paul Chau
------------------------------
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By /s/ Kathryn Bacastow
----------------------------
Title: Sr. Vice President
STANDARD CHARTERED BANK
By /s/ Gerard Lob
-----------------------------
Title: Vice President
By /s/ Marguerite J. Felsenfeld
-------------------------------
Title: Administrative Officer
THE YASUDA TRUST & BANKING
CO., LTD.
By /s/ Joel J. Powers
-----------------------------
Title: Vice President
FUJI BANK, LIMITED
By
----------------------------
Title:
SHAWMUT BANK, N.A.,
as AGENT
By /s/ Roger A. Stone
---------------------------
Title: Director
We hereby acknowledge, consent
and agree to the terms of the
foregoing FOURTH AMENDMENT
AGREEMENT and confirm that
our obligations under the
GUARANTEE and the PLEDGE
AGREEMENT shall remain
unchanged and in full
force and effect.
Dated: March 6, 1995
SPENCER COMPANIES, INC.
By /s/ Philip Rosenberg
-------------------------
Title: First Sr. Vice President
SPENCER NO. 301 CORP.
By /s/ Philip Rosenberg
-------------------------
Title: First Sr. Vice President
JBI HOLDING COMPANY, INC.
By /s/ Philip Rosenberg
--------------------------
Title: First Sr. Vice President
THE CASUAL MALE, INC.
By /s/ Philip Rosenberg
----------------------------
Title: First Sr. Vice President
WGS CORP.
By /s/ Philip Rosenberg
-----------------------------
Title: First Sr. Vice President
TCM HOLDING COMPANY, INC.
By /s/ Philip Rosenberg
----------------------------
Title: First Sr. Vice President
MORSE SHOE, INC.
By /s/ Philip Rosenberg
----------------------------
Title: First Sr. Vice President
BUCKMIN, INC.
By /s/ Philip Rosenberg
----------------------------
Title: First Sr. Vice President
ELM EQUIPMENT CORP.
By /s/ Philip Rosenberg
----------------------------
Title: First Sr. Vice President
JARED CORPORATION
By /s/ Philip Rosenberg
----------------------------
Title: First Senior Vice President
MORSE SHOE (CANADA) LTD.
By /s/ Philip Rosenberg
----------------------------
Title: First Senior Vice President
MORSE SHOE INTERNATIONAL, INC.
By /s/ Philip Rosenberg
-----------------------------
Title: First Senior Vice President
ISAB, INC.
By /s/ Philip Rosenberg
-------------------------------
Title: First Senior Vice President
WHITE CAP FOOTWEAR, INC.
By /s/ Philip Rosenberg
-------------------------------
Title: First Senior Vice President