EXHIBIT 4.24
TENTH AMENDMENT AGREEMENT
This TENTH AMENDMENT AGREEMENT is dated as of February 14, 1997 (this
"Agreement"), by and 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 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, 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, 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, by the Eighth
Amendment Agreement, dated as of June 21, 1996, and by the Ninth Amendment,
dated as of December 31, 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 Baker 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 Baker 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 April 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), April 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 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, Baker, the Guarantors and the Banks;
(b) the representations and warranties of the Borrower and Baker
set forth in Section
3 below, shall be true and correct in every respect; and
(c) 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 February 14, 1997, this Agreement shall be null and
void and of no force or effect.
Section 3. Representations and Warranties. By its signature hereto,
each of the Borrower and Baker (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 Baker. The agreements and obligations of the
Borrower and Baker 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
Baker 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, or (ii) 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 3(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 4. Consent of Obligors. Each of the Obligors acknowledges and
consents to the execution and delivery by the Borrower and Baker 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 5. Covenant to Give Notice of Commitment Reduction. Each of the
Borrower and Baker jointly and severally agrees that, on or before March 17
1997, they will give irrevocable written direction to the Agent to reduce the
Aggregate Commitment Amount to $145,000,000 (or such amount less than
$145,000,000 as the Borrower and Baker may elect) and that upon receipt of such
direction by the Agent, the Aggregate Commitment Amount shall automatically be
reduced by such amount. Any failure on the part of the Borrower and Baker to
give such irrevocable written direction on or before March 17, 1997, as set
forth in the immediately preceding sentence, shall constitute an Event of
Default under the Credit Agreement; provided that such Event of Default may be
waived by the Agent with, and only with, the written consent of the Majority
Banks.
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 cause
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 April 14,
1998, notwithstanding anything contained in Section 6(a) in
the Ninth Amendment to the Credit Agreement regarding the
same, 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/Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
J. BAKER, INC.
By /s/Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
FLEET NATIONAL BANK,
for itself and as Agent
By /s/R. A. Meringolo
Name: R. A. Meringolo
Title: Senior Vice President
THE FIRST NATIONAL BANK OF BOSTON
By /s/Thomas F. Farley, Jr.
Name: Thomas F. Farley, Jr.
Title: Director
FLEET BANK, N.A. (formerly "NatWest Bank
N.A.")
By /s/R. A. Meringolo
Name: R. A. Meringolo
Title: Senior Vice President
BANK HAPOALIM B.M.
By /s/Conrad Wagner
Name: Conrad Wagner
Title: First Vice President
By /s/Laura A. Raffa
Name: Laura Anne Raffa
Title: First Vice President and
Corporate Manager
NATIONAL CITY BANK OF COLUMBUS
By /s/Michael J. Durbin
Name: Michael J. Durbin
Title: Corporate Loan Officer
STANDARD CHARTERED BANK
By /s/David D. Cutting
Name: David D. Cutting
Title: Senior Vice President
By /s/Leonardo A. Tee
Name: Leonardo A. Tee
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By /s/Patrick C. Joyce
Name: Patrick C. Joyce
Title: Vice President
THE YASUDA TRUST AND BANKING
COMPANY, LTD.
By /s/Makoto Tagawa
Name: Makoto Tagawa
Title: Deputy 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
SPENCER COMPANIES, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
SPENCER NO. 301 CORP.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
JBI HOLDING CO., INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
TCMB&T, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
WGS CORP.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
TCM HOLDING COMPANY, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
MORSE SHOE, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
BUCKMIN, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
ELM EQUIPMENT CORP.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
JARED CORPORATION
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
MORSE SHOE (CANADA) LTD.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
MORSE SHOE INTERNATIONAL, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
ISAB, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
WHITE CAP FOOTWEAR, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President
THE CASUAL MALE, INC.
By /s/ Philip Rosenberg
Name: Philip Rosenberg
Title: Executive Vice President