Exhibit 10.1
SIXTH AMENDED AND RESTATED LOAN AGREEMENT
This Sixth Amended and Restated Loan Agreement ("AGREEMENT") made as of May
3rd, 2006 by and among The J. Xxxx Group, Inc., a Delaware corporation (herein
"BORROWER"), on the one hand, and Citizens Bank of Massachusetts, HSBC Bank USA,
National Association, and TD Banknorth, N.A. (collectively "LENDERS") and
Citizens Bank of Massachusetts as agent ("AGENT") for the LENDERS, on the other
hand.
WITNESSETH:
WHEREAS, BORROWER, LENDERS and AGENT are parties to that certain Fifth
Amended and Restated Loan Agreement dated as of June 29, 2001, as amended by
First Amendment thereto dated as of August 28, 2001; by Second Amendment thereto
dated as of July 25, 2002; by Third Amendment thereto dated as of June 26, 2003;
by Fourth Amendment thereto dated as of September 30, 2004; by Fifth Amendment
thereto dated as of December 27, 2004; by Sixth Amendment thereto dated as of
June 17, 2005; and by Seventh Amendment thereto dated as of December 30, 2005
(collectively, the "LOAN AGREEMENT"); and
WHEREAS, in light of the acquisition by The Talbots, Inc. of all of the
capital stock of BORROWER, BORROWER and LENDERS desire that said LOAN AGREEMENT
be amended and restated so as to provide for certain financial accommodations by
the LENDERS to BORROWER during the period through the TERMINATION DATE (as
hereafter defined), all as more particularly hereafter set forth; and
WHEREAS, LENDERS are willing to provide said financial accommodations, and
AGENT is willing to act as agent for the LENDERS but only in accordance with the
terms and subject to the conditions of this AGREEMENT.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Capitalized words and phrases in this Agreement shall have the
meanings ascribed to them in this Article.
"ADVANCE(S)" shall mean any sums paid by AGENT in honoring any drafts
presented to it under LETTERS OF CREDIT.
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"AFFILIATE" shall mean with respect to any party, (i) each PERSON that
controls, is controlled by or is under common control with such party, (ii) each
PERSON that, directly or indirectly, owns or controls, whether beneficially or
as a trustee, guardian or other fiduciary, any of the stock of such party, and
(iii) each of such party's officers, directors, members, joint venturers and
partners. For the purpose of this definition, "control" of a PERSON shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"AGENT" shall mean CITIZENS or any AFFILIATE of CITIZENS or any successor
thereto as provided herein.
"AGENT'S PAYMENT OFFICE" means the address set forth in Section 12.02(c) or
such other address as the AGENT may from time to time specify in accordance with
Article XII.
"AGGREGATE COMMITMENT AMOUNT" shall mean the sum of FORTY MILLION DOLLARS
($40,000,000) or such lesser amount as provided in Section 3.15.
"AGREEMENT" is defined in the preamble.
"AVAILABILITY" shall mean ninety percent (90%) of the undrawn amount of the
letter of credit described in Section 6.03 less the value of EXISTING STANDBYS.
"AVAILABILITY PERIOD" shall mean the period commencing on the CLOSING DATE
and ending on the TERMINATION DATE.
"BANKING DAY" shall mean any BUSINESS DAY on which banks are open for
business in Boston, Massachusetts.
"BORROWER" is defined in the Recitals.
"BORROWING" shall mean the issuance of a LETTER OF CREDIT.
"BORROWING DATE" shall mean that date on which a LETTER OF CREDIT is
issued.
"BUSINESS DAY" shall mean a calendar day other than (a) a Saturday, Sunday
or legal holiday in The Commonwealth of Massachusetts, and (b) a calendar day on
which banks are not authorized to be open for business in Boston, Massachusetts.
"CITIZENS" shall mean Citizens Bank of Massachusetts, which is a LENDER and
the AGENT hereunder.
"CLOSING" is defined in Article XV.
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"CLOSING DATE" shall mean May 3, 2006.
"CODE" shall mean the Internal Revenue Code of 1986, as amended,
supplemented or modified from time to time, and all regulations issued
thereunder.
"COMMITMENT AMOUNT" shall mean, as to each LENDER, the amounts specified in
Article V.
"COMMITMENT FEE" is defined in Section 4.06.
"COMMITMENT PERCENTAGE" shall mean the percentages specified in Article V.
"DDA" shall mean the demand deposit account(s) of BORROWER or any of its
SUBSIDIARIES at the AGENT.
"DEFAULT" shall mean the occurrence of an event which with the passage of
time or the requiring of the giving of notice, or both, may become an EVENT OF
DEFAULT.
"DEMAND NOTE(S)" shall mean one or more demand promissory note(s) from
BORROWER to the LENDERS in the form of Exhibit 1.01A evidencing one or more
ADVANCES, and as the same may be amended, replaced or substituted hereafter.
"DOCUMENTS" shall mean a document of title as defined in the UCC.
"DOLLARS" or "$" shall mean lawful currency of the United States of
America.
"EVENT OF DEFAULT" is defined in Article X.
"EXISTING STANDBYS" shall mean so-called standby letters of credit issued
by the AGENT as of date of this AGREEMENT which standby letters of credit are
described in Exhibit 14.01(c).
"FINANCING AGREEMENTS" shall mean, collectively, this AGREEMENT, all DEMAND
NOTES executed and delivered hereunder, each L/C APPLICATION, the GUARANTIES,
all as amended from time to time, and all other agreements executed and
delivered by the BORROWER and the SPECIAL SUBSIDIARIES hereunder, and all other
agreements of every kind and nature now or hereafter in force between any LENDER
and the BORROWER or between any LENDER and any SPECIAL SUBSIDIARY or between
AGENT and the BORROWER or between AGENT and any SPECIAL SUBSIDIARY relating to
the OBLIGATIONS, as the same may have been or may, from time to time, be amended
or supplemented.
"GAAP" shall mean generally accepted accounting principles as in effect
from time to time and applied with respect to the preparation of financial
statements.
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"GUARANTIES" shall mean joint and several unlimited guaranties of the
OBLIGATIONS by each of the SPECIAL SUBSIDIARIES pursuant to confirmatory
instruments in form and substance satisfactory to the AGENT, forms of which are
annexed as Exhibit 6.02.
"INVENTORY" shall mean all of BORROWER'S and the SPECIAL SUBSIDIARIES'
"Inventory", as such term is defined under the UCC, including, without
limitation, all inventory, merchandise, finished inventory and all other
tangible personal property held by BORROWER and its SPECIAL SUBSIDIARIES for
sale or lease, furnished or to be furnished under contracts of service, or used
or consumed in BORROWER'S and its SPECIAL SUBSIDIARIES' respective business(es).
"L/C APPLICATION" shall mean the AGENT'S form of letter of credit
application and reimbursement agreement (the current form of which is annexed as
Exhibit 1.01B) in use from time to time, which may be submitted by electronic
means or by facsimile transmission.
"L/C BALANCE ACCOUNT" is defined in Section 3.05.
"L/C BALANCE" shall mean the aggregate undrawn, uncanceled portions of all
LETTER(S) OF CREDIT outstanding from time to time and at any time.
"L/C FEES" are the fees payable on account of the issuance, amendment,
increase, processing or administration of a LETTER OF CREDIT, but shall not
include NEGOTIATION FEES.
"LENDER" and "LENDERS" have the meanings ascribed thereto in the first
paragraph hereof and includes CITIZENS.
"LETTER(S) OF CREDIT" shall mean letters of credit issued by the AGENT for
the account of the BORROWER or any of the SPECIAL SUBSIDIARIES payable on sight
to a beneficiary who is a supplier of goods to the BORROWER or any of the
SPECIAL SUBSIDIARIES, which, upon delivery to BORROWER or any of the SPECIAL
SUBSIDIARIES, will be INVENTORY and which letter(s) of credit require the
delivery and presentation to AGENT at the AGENT'S PAYMENT OFFICE of DOCUMENTS
reflecting a sale of such goods to the BORROWER or any of the SPECIAL
SUBSIDIARIES, as a condition of AGENT'S payment thereon.
"LOAN AGREEMENT" shall mean the Loan Agreement as amended from time to
time, including by this instrument, unless otherwise specified herein.
"MAJORITY LENDERS" shall mean two or more LENDERS holding in the aggregate
eighty-one percent (81%) or more of the aggregate COMMITMENT PERCENTAGES.
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"NEGOTIATION FEE" shall mean the fee payable under Section 4.04 on the
presentation of a draft and related documents under a LETTER OF CREDIT.
"OBLIGATIONS" shall mean all L/C BALANCES, ADVANCES, indebtedness,
liabilities, and amounts, liquidated or unliquidated, owing from the BORROWER or
any SPECIAL SUBSIDIARY to any LENDER or the AGENT, at any time, and arising
under the FINANCING AGREEMENTS, absolute or contingent, due or to become due,
now existing or hereafter arising or contracted. Said term shall also include
all interest, fees and other charges chargeable to the BORROWER and the SPECIAL
SUBSIDIARIES or due from the BORROWER and the SPECIAL SUBSIDIARIES to any LENDER
or AGENT or all of them from time to time hereunder and also all covenants,
agreements or undertakings of the BORROWER and the SPECIAL SUBSIDIARIES to any
LENDER or AGENT or all of them whether for the payment of money or otherwise
arising under the FINANCING AGREEMENTS.
"PERSON" shall mean any individual, corporation (including a business
trust), partnership, trust, unincorporated association, joint stock company or
other legal entity or organization and any government or agent or political
subdivision thereof.
"PRIME RATE" shall mean the annual rate of interest announced by CITIZENS
or AGENT in Boston from time to time, as its "Prime Rate".
"PRO RATA SHARE" means, as to any LENDER at any time, such LENDER'S
COMMITMENT PERCENTAGE (expressed as a decimal, rounded to the ninth decimal
place).
"SPECIAL SUBSIDIARIES" shall mean individually and collectively each of
J.J. COMPANY, INC., J. XXXX, LLC and J. XXXX, GP.
"SUBSIDIARY" shall mean any PERSON in which fifty percent (50%) of the
ownership interests are owned, directly or indirectly, by the BORROWER.
"TERMINATION DATE" shall mean the earlier of (i) November 15, 2006 or (ii)
that date on which the AGGREGATE COMMITMENT AMOUNT is zero DOLLARS pursuant to
the provisions of Section 3.15 hereof.
"UCC" shall mean the Uniform Commercial Code as in effect in The
Commonwealth of Massachusetts, as amended from time to time.
1.02 All terms defined in the UCC and used in this Agreement, and not
otherwise defined herein, shall have the meaning ascribed to them in the UCC.
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ARTICLE II
Intentionally Omitted.
ARTICLE III
LETTERS OF CREDIT
3.01 Subject to and upon the terms and conditions herein provided, during
the AVAILABILITY PERIOD, the AGENT, but at the risk of the LENDERS to the extent
of their respective COMMITMENT PERCENTAGES, shall issue LETTERS OF CREDIT on
behalf of BORROWER or one of the SPECIAL SUBSIDIARIES to purchase INVENTORY
pursuant to a LETTER OF CREDIT so long as: (A) After giving effect to each such
issuance, the L/C BALANCE does not exceed the lesser of (i) AVAILABILITY or (ii)
the AGGREGATE COMMITMENT AMOUNT; (B) All conditions specified in Section 3.09
shall have been fulfilled; (C) BORROWER shall have delivered to the AGENT for
itself or on behalf of one of the SPECIAL SUBSIDIARIES (i) an L/C APPLICATION,
duly completed and executed, or a facsimile application followed up by the
original documents received by the AGENT within Three (3) BUSINESS DAYS
thereafter, or by electronic transmission, which is not required to be followed
by additional submissions (the forms of such written application is annexed
hereto as Exhibits 1.01B, (ii) such other accompanying documentation as the
AGENT shall require, and (iii) an amount equal to AGENT'S then customary L/C
FEES, which amount shall be non-refundable. With respect to LETTERS OF CREDIT,
the face amount of any such LETTER OF CREDIT shall not exceed the purchase price
of the INVENTORY purchased therewith and covered by the document relating
thereto.
3.02 No LETTER OF CREDIT shall be issued after July 15, 2006. No LETTER OF
CREDIT issued hereunder shall permit a draft to be presented thereunder after
the earlier of (a) 180 days after the date of issue thereof or (b) three (3)
BANKING DAYS before the TERMINATION DATE.
3.03 (a) To the extent any LETTER OF CREDIT shall remain outstanding on the
TERMINATION DATE, BORROWER shall on the TERMINATION DATE pay to the AGENT an
amount equal to the outstanding amount thereof on the TERMINATION DATE.
(b) If, for any reason, the amount paid under subsection (a) above
shall not, in fact, be sufficient to reimburse AGENT for all amounts paid by the
AGENT after the TERMINATION DATE with respect to LETTERS OF CREDIT outstanding
on the TERMINATION DATE plus interest at the rate provided herein on amounts so
paid from the date so paid until reimbursed by the issuer of the letter of
credit described in this section, BORROWER shall pay the same on demand to AGENT
with interest at a per annum rate equal to the aggregate of (x) the PRIME RATE
and (y) two percent (2%) until paid in full.
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3.04 Each LETTER OF CREDIT shall be in such form, contain such terms and
support such transactions as shall be satisfactory to the AGENT consistent with
its then current practices.
3.05 The AGENT on behalf of each LENDER shall maintain on its books in the
name of BORROWER a Letter of Credit balance account ("the L/C BALANCE ACCOUNT")
with respect to each LENDER'S share of the risk with respect to each LETTER OF
CREDIT and any ADVANCES. The issuance of each LETTER OF CREDIT or making of any
ADVANCE will result in a debit to such account, and the honoring of a draft
under or expiration of a LETTER OF CREDIT or a reduction in ADVANCES will result
in a credit to such account.
3.06 Monthly, the AGENT shall advise each LENDER as to the L/C BALANCE.
3.07 The BORROWER and each of its SUBSIDIARIES hereby agrees to indemnify
and hold harmless the AGENT and the LENDERS from and against any and all claims
and damages, losses, liabilities, costs or expenses which the AGENT may incur
(or which may be claimed against the AGENT by any PERSON whatsoever) by reason
of or in connection with the execution and delivery or transfer of, or payment
or refusal to pay, under any LETTER OF CREDIT; provided that the BORROWER shall
not be required to indemnify the AGENT for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
(x) the willful misconduct or gross negligence or bad faith of the AGENT in
determining whether a request presented under any LETTER OF CREDIT complied with
the terms of such LETTER OF CREDIT or (y) the AGENT'S failure to pay under any
LETTER OF CREDIT after the presentation to it of a draft and DOCUMENTS strictly
complying with the terms and conditions of such LETTER OF CREDIT. Nothing in
this Section is intended to limit the other obligations of the BORROWER, or the
AGENT under this AGREEMENT.
3.08 If a draft and related documents for payment under a LETTER OF CREDIT
shall be presented and the AGENT shall honor the same, the AGENT shall
immediately (on the same day) debit the DDA of BORROWER or one of its SPECIAL
SUBSIDIARIES in order to reimburse AGENT for all such amounts incurred in
connection with the honoring of such LETTER OF CREDIT. Any failure by BORROWER
within two (2) BUSINESS DAYS to forthwith reimburse AGENT shall permit AGENT to
draw under the standby letter of credit described in Section 6.03 of this
AGREEMENT (which drawing may be a partial drawing thereunder up to the full
amount of the amount so honored together with all fees and any interest
thereon). If the balance in the DDA is insufficient to reimburse AGENT, and such
insufficiency remains unremedied for two (2) BUSINESS DAYS, such deficiency
shall be deemed to be (i) an EVENT OF DEFAULT hereunder; and (ii) the incurrence
of debt from BORROWER to the AGENT at an interest rate per annum until paid in
full equal to the aggregate of (i) the PRIME RATE and (ii) two percent (2%) per
annum. Each LENDER shall reimburse the AGENT for all such ADVANCES to the extent
of such LENDER'S COMMITMENT PERCENTAGE upon notice from AGENT. Each LENDER'S
reimbursement of
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AGENT shall constitute part of each LENDER'S ADVANCES for all purposes of this
AGREEMENT, including the receipt of interest with respect thereto. The AGENT
shall honor draft(s) and related documents presented under a LETTER OF CREDIT
even if the conditions provided in Section 3.09 have not been fulfilled.
3.09 No LETTER OF CREDIT shall be issued unless each of the following
conditions have been fulfilled:
(a) All conditions precedent as set forth in Article XIV shall have been
fulfilled.
(b) No EVENT OF DEFAULT after giving effect to a requested BORROWING shall
have occurred and be continuing nor shall a DEFAULT have occurred and be
continuing.
(c) The warranties and representations set forth in Article VII hereof
shall be true and correct, in all material respects, as of the date they were
made, except to the extent that written notice of a change thereof shall have
been given by the BORROWER to the AGENT, and such change would not constitute a
DEFAULT or EVENT of DEFAULT, on the date of any request for a BORROWING.
3.10 The AGENT shall maintain a record as to outstanding balances with
respect to all LETTERS OF CREDIT and ADVANCES. The AGENT shall render to
BORROWER and to the LENDERS, monthly, after the end of each calendar month, a
statement of such L/C BALANCE ACCOUNT as of the last BUSINESS DAY of such
calendar month, which statement shall be deemed, absent manifest error, to be
correct and accepted by the BORROWER and binding upon BORROWER unless the
BORROWER notifies the AGENT to the contrary within sixty (60) days after receipt
of such statement; provided that the failure of the AGENT to render any such
statement in a timely fashion shall not affect or impair the validity or binding
nature of the L/C BALANCE ACCOUNT.
3.11 No drafts under LETTERS OF CREDIT shall be honored after the
TERMINATION DATE.
3.12 If at any time the L/C BALANCE plus ADVANCES exceeds AVAILABILITY,
BORROWER shall forthwith pay to the AGENT all such sums as may be necessary to
cover any such excess amounts.
3.13 The obligation of the BORROWER to repay all ADVANCES (and, if
applicable, with interest thereon) shall be evidenced by the issuance to each
LENDER of a DEMAND NOTE in the amount of each LENDER'S COMMITMENT AMOUNT.
3.14 All LETTERS OF CREDIT shall be issued solely to facilitate payment or
financial accommodation requirements of trade suppliers of the BORROWER and its
SPECIAL SUBSIDIARIES.
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3.15 BORROWER shall have the right to request a reduction in the AGGREGATE
COMMITMENT AMOUNT if (i) BORROWER furnishes at least ten (10) days' prior
written notice to AGENT requesting such reduction; (ii) the requested reduction
is at least Five Million DOLLARS less than the previous level of the AGGREGATE
COMMITMENT AMOUNT, and such reduction is in an increment of One Million Dollars
($1,000,000) from the previous level; (iii) no EVENT OF DEFAULT shall have
occurred; and (iv) after giving effect to such reduction, such new AGGREGATE
COMMITMENT AMOUNT is equal to or greater than the L/C BALANCE. Upon such
reduction, each LENDER'S COMMITMENT AMOUNT shall equal each such LENDER'S
respective COMMITMENT PERCENTAGE multiplied by the new AGGREGATE COMMITMENT
AMOUNT.
ARTICLE IV
INTEREST, FEES AND COMPUTATION
4.01 Intentionally omitted.
4.02 Intentionally omitted.
4.03 With each request by BORROWER for the issuance of a LETTER OF CREDIT,
BORROWER will pay to AGENT, immediately (on the same day), all L/C FEES.
4.04 Upon presentation of a draft and related documents for payment under
the terms of a LETTER OF CREDIT, BORROWER will pay to AGENT a "NEGOTIATION FEE"
equal to one-quarter of one percent (1/4 of 1%) of the draft amount, but such
NEGOTIATION FEE shall not at any time be less than such minimum fee as is
established by AGENT from time to time. The "NEGOTIATION FEE" provided in this
Section 4.04 shall be paid, on demand, with respect to any draft presented after
the TERMINATION DATE.
4.05 Intentionally omitted.
4.06 BORROWER shall pay to AGENT for the benefit of LENDERS a commitment
fee (the "COMMITMENT FEE") for the period commencing on the date hereof, to and
including the TERMINATION DATE equal to one quarter of one percent (.25%) per
annum (computed daily on the basis of the actual number of days elapsed over a
360 day year) on the amount by which the AGGREGATE COMMITMENT AMOUNT exceeds the
L/C BALANCE plus ADVANCES. The COMMITMENT FEE shall be payable quarterly in
arrears commencing June 30, 2006 and on the TERMINATION DATE.
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4.07 In the event any payment owing from the BORROWER under the FINANCING
AGREEMENTS shall not be paid when due or if any other EVENT OF DEFAULT shall
occur, the BORROWER shall pay interest with respect thereto commencing as of the
date such payment was initially due at a per annum rate equal to the sum of (x)
the rate of interest in effect on the due date of such payment, and (y) two
percent (2%) per annum.
4.08 All rates of interest based on the PRIME RATE shall change immediately
upon the date upon which a change in the PRIME RATE shall become effective.
4.09 Except as otherwise expressly provided in this AGREEMENT, whenever any
payment to be made by the BORROWER hereunder shall be stated to be due on a day
other than a BANKING DAY, such payment shall be made on the next succeeding
BANKING DAY, and such extension of time shall in such case be included in the
computation of such payment.
4.10 All payments by the BORROWER under this AGREEMENT shall be made
without set-off or counterclaim and free and clear of and without deduction for
any taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter
imposed or levied by any country or any political subdivision thereof or taxing
or other authority therein unless the BORROWER is compelled by law to make such
deduction or withholding. If any such obligation is imposed upon the BORROWER
with respect to any amount payable by it hereunder, the BORROWER will pay to the
AGENT on behalf of each LENDER, on the date on which the said amount becomes due
and payable hereunder, such additional amount as shall be necessary to enable
the AGENT on behalf of each LENDER to receive the same net amount which it would
have received on such due date had no such obligation been imposed upon the
BORROWER. The BORROWER will deliver promptly to the AGENT certificates or other
valid vouchers for all taxes or other charges deducted from or paid with respect
to payments made by the BORROWER hereunder.
4.11 The BORROWER agrees to pay any present or future stamp or documentary
taxes and any other excise or property taxes, charges or similar levies,
excluding, in the case of the AGENT, taxes imposed on it by the jurisdiction
under the laws of which the AGENT is organized or any political subdivision
thereof and taxes imposed on its net income and franchise taxes imposed on it,
which arise from any payment made by the BORROWER hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
AGREEMENT, or any other of the FINANCING AGREEMENTS. The BORROWER will indemnify
the AGENT and LENDERS on demand for the full amount of any such taxes, charges
or similar levies paid by the AGENT or any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto.
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4.12 Without prejudice to the survival of any other agreement of the
BORROWER hereunder, the agreements and obligations of the BORROWER contained in
Sections 4.10 and 4.11 shall survive the payment in full of principal of and
interest on the OBLIGATIONS. The AGENT agrees to give to the BORROWER notice of
any such taxes, charges or similar levies paid by it and for which demand for
payment may be made hereunder, and the BORROWER shall have the right to contest
the validity or legal assertion thereof; provided, however, that the foregoing
shall in no way limit the BORROWER'S obligation to indemnify each LENDER and the
AGENT as in this AGREEMENT provided.
4.13 All interest, fees or other charges payable by BORROWER hereunder
shall be computed on the basis of a year of three hundred sixty (360) days and
for the actual number of days elapsed.
4.14 BORROWER for itself and on behalf of its SPECIAL SUBSIDIARIES hereby
authorizes AGENT to charge any account maintained by each of them with LENDER
for any payment due from BORROWER or its SUBSIDIARIES under any of the FINANCING
AGREEMENTS. In any of such cases, such authorization, however, does not obligate
AGENT so to charge nor does it limit BORROWER'S or its SUBSIDIARIES' obligation
to make such payment when due.
4.15 Each payment to be made by BORROWER hereunder, whether principal,
interest, fees, or of any other kind, shall be paid not later than 2:00 p.m.
(Boston time) on the day when due to the AGENT at its principal office in
DOLLARS and in immediately available funds.
4.16 The AGENT shall calculate all interest rates arising and all interest
and fees due hereunder.
4.17 Each LENDER shall share to the extent of its COMMITMENT PERCENTAGE all
payments made by BORROWER hereunder except that AGENT or CITIZENS shall retain
for its own account all L/C FEES.
4.18 Promptly after receipt by AGENT of a payment made hereunder (other
than L/C FEES), AGENT will distribute the same to each LENDER to the extent of
each LENDER'S COMMITMENT PERCENTAGE in DOLLARS and in immediately available
funds. Each LENDER'S PRO RATA SHARE of each NEGOTIATION FEE for a LETTER OF
CREDIT shall be remitted by AGENT to LENDERS quarterly in arrears.
4.19 Without prejudice to any other rights it may have, the AGENT on behalf
of the LENDERS may collect a "late charge" equal to five (5%) percent of any
OBLIGATION not paid within fifteen (15) days of the due date thereof.
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4.20 With respect to all fees payable by BORROWER hereunder, AGENT will
promptly following its receipt of same (other than NEGOTIATION FEES, which shall
be remitted quarterly to each LENDER to the extent of each LENDER'S COMMITMENT
PERCENTAGE following AGENT'S receipt of same) distribute to each LENDER to the
extent of each LENDER'S COMMITMENT PERCENTAGE therein, all such fees paid to the
AGENT, exclusive, however, of the L/C FEES.
ARTICLE V
5.01 Except as may be reduced pursuant to the terms of Section 3.15 hereof,
the respective amount of each LENDER'S COMMITMENT AMOUNT and its respective
COMMITMENT PERCENTAGE with respect to all BORROWINGS and ADVANCES shall be:
BANK COMMITMENT AMOUNT COMMITMENT PERCENTAGE
---- ----------------- ---------------------
Citizens Bank of Massachusetts $18,000,000 45%
HSBC Bank USA, National Association $14,000,000 35%
TD Banknorth, N.A. $ 8,000,000 20%
ARTICLE VI
Security and Guaranties
6.01 Any and all deposits or other sums at any time credited by or due from
LENDER or AGENT to BORROWER or BORROWER'S SUBSIDIARIES shall, at all times
constitute security for all OBLIGATIONS and upon and during the continuance of
an EVENT OF DEFAULT may be set off against any of the OBLIGATIONS at any time
when due whether or not other security held by LENDER or AGENT is deemed to be
adequate.
6.02 The OBLIGATIONS shall at all times be guaranteed, jointly and
severally, in full by GUARANTIES previously furnished to AGENT of each of the
SPECIAL SUBSIDIARIES, by separate confirmatory instruments thereof, of each of
them delivered to the AGENT in the forms of Exhibit 6.02 hereto.
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6.03 Until the OBLIGATIONS are paid in full, and as security therefor,
BORROWER shall cause to be delivered to AGENT not later than the CLOSING, a
standby letter of credit ("the "STANDBY") in an amount equal in DOLLARS to One
Hundred Ten percent (110%) of AGGREGATE COMMITMENT AMOUNT, which standby letter
of credit shall be issued by Bank of America or by another bank satisfactory to
AGENT, shall be irrevocable; shall have an expiration date no sooner than
December 15, 2006; shall permit partial drawings; and shall otherwise in all
respects as to all of its provisions, terms and conditions, be satisfactory to
AGENT. Upon request by the STANDBY issuer, AGENT shall submit a reduction
certificate (if appropriate) to the issuer of the STANDBY as provided in the
STANDBY.
6.04 If any LENDER shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of its COMMITMENT AMOUNT in excess of its COMMITMENT PERCENTAGE
(according to the then outstanding principal amount of the L/C BALANCE and
ADVANCES) in payments on account thereof obtained by all the LENDERS, such
LENDER shall purchase from the other LENDERS such participations therein held by
them as shall cause such purchasing LENDER to share such payment ratably
according to the then outstanding principal amount thereof with each of them;
provided, however, that if all or any portions of such payment is thereafter
recovered from such purchasing LENDER, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery, and to the extent a
LENDER shall have received, or at any time shall receive interest on the amount
with respect to which such purchase is rescinded, the amount of such interest so
received shall be paid to the LENDER receiving such restored purchase price with
the restoration of such purchase price to the extent then or previously received
or upon receipt of such interest if received thereafter. BORROWER agrees that
any LENDER so purchasing a participation in BORROWER'S OBLIGATIONS from another
LENDER pursuant to this Section 6.04 may, to the fullest extent permitted by
law, exercise all its rights of payment with respect to such participation as
fully as if such LENDER were the direct creditor of BORROWER in the amount of
such participation.
ARTICLE VII
Warranties and Representations
7.01 Each LENDER and AGENT has entered into this AGREEMENT in reliance upon
the warranties and representations of the BORROWER and the warranties and
representations relating to the SPECIAL SUBSIDIARIES set forth in this Article,
each of which is acknowledged to be continuing and material. Each such warranty
and representation shall be deemed to have been newly made on each day BORROWER
requests the issuance of a LETTER OF CREDIT.
7.02 The BORROWER and each of the SPECIAL SUBSIDIARIES is a duly organized
and existing corporation under the laws of its state of incorporation and is in
good standing under the laws thereof.
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7.03 The BORROWER and each of the SPECIAL SUBSIDIARIES is duly qualified to
do business and is in good standing as a foreign corporation in each state or
other jurisdiction where the failure to so qualify would have a material adverse
effect on the BORROWER and each of the SPECIAL SUBSIDIARIES as a group of
entities. All such jurisdictions, if any, are listed on Exhibit 7.03 to this
instrument.
7.04 The execution and delivery of the FINANCING AGREEMENTS, the financial
accommodations obtained by BORROWER as herein provided, the execution and
delivery by BORROWER and the SPECIAL SUBSIDIARIES of all instruments, agreements
and documents of every kind and nature pursuant to this instrument and the
performance by the BORROWER and the SPECIAL SUBSIDIARIES of the OBLIGATIONS have
been duly authorized by the respective Boards of Directors of the BORROWER and
the SPECIAL SUBSIDIARIES and, to the extent required by law or otherwise, by
stockholders of each, and the FINANCING AGREEMENTS and all instruments,
agreements and documents executed pursuant thereto are valid and binding
obligations of the BORROWER and the SPECIAL SUBSIDIARIES to the extent they are
parties thereto, enforceable in accordance with their terms, except to the
extent that such enforceability may be limited by laws of general application
affecting the rights of creditors.
ARTICLE VIII
Intentionally omitted.
ARTICLE IX
Intentionally omitted.
ARTICLE X
EVENTS OF DEFAULT
10.01 The occurrence of any of the following events shall be an EVENT OF
DEFAULT hereunder and under each of the FINANCING AGREEMENTS:
(a) All OBLIGATIONS shall not be paid in full on the TERMINATION DATE.
(b) The BORROWER shall fail to reimburse the AGENT for any amounts due
under or pursuant to any LETTER OF CREDIT when such reimbursement is
due.
(c) There shall be any breach by BORROWER in its due observance,
performance or fulfillment of its obligations pursuant to the terms of
this AGREEMENT.
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(d) Dissolution or termination of existence, as the case may be of the
BORROWER or any SPECIAL SUBSIDIARY.
(e) Failure by BORROWER immediately to make payment to AGENT pursuant to
the terms of Section 3.12 hereof.
(f) The BORROWER or any SPECIAL SUBSIDIARY shall: (i) cease, be unable, or
admit in writing its inability to pay its debts as they mature or make
a general assignment for the benefit of, or enter into any
composition, trust mortgage or other arrangement with creditors; (ii)
apply for, or consent (by admission of material allegations of a
petition or otherwise) to the appointment of a receiver, trustee or
liquidator of the BORROWER or any such SPECIAL SUBSIDIARY or of a
substantial part of its assets, or authorize such application or
consent, or proceedings seeking such appointment shall be commenced
against the BORROWER or any SPECIAL SUBSIDIARY and continue unstayed
and undismissed for sixty (60) days; or (iii) apply for, or consent
(by admission of material allegations of a petition or otherwise) to
the application of any bankruptcy, reorganization, readjustment of
debt, insolvency, dissolution, liquidation or other similar law of any
jurisdiction, or authorize such application or consent, or proceedings
to such end shall be instituted against the BORROWER or any SPECIAL
SUBSIDIARY and remain unstayed and undismissed for sixty (60) days, be
approved as properly instituted or result in adjudication of
bankruptcy or insolvency.
(g) The letter of credit described in Section 6.03 shall no longer remain
effective for any reason.
ARTICLE XI
ENFORCEMENT
11.01 Upon the occurrence of an EVENT OF DEFAULT, the AGENT may, and upon
the written or telephonic (confirmed in writing) request of the MAJORITY
LENDERS, shall by notice to the BORROWER declare: (i) the obligation of each
LENDER thereafter to issue LETTERS OF CREDIT on behalf of the BORROWER to be
terminated, whereupon such obligation shall terminate, and (ii) all amounts
payable by BORROWER to AGENT under this AGREEMENT including, without limitation,
the DEMAND NOTES, to be forthwith due and payable, whereupon the same shall
become and be forthwith due and payable without presentment, demand, protest or
notice, all of which are hereby expressly waived by BORROWER. The amount paid to
AGENT which represents the aggregate of the face amount of all LETTERS OF CREDIT
outstanding on the date of declaration shall be held by AGENT without interest
and applied to satisfy any drafts presented under such LETTERS OF CREDIT. After
the expiration of all LETTERS OF CREDIT outstanding on the date of declaration,
any
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portion of such amount remaining in AGENT's hands shall be applied first to the
payment of any interest, fees, or charges due to the AGENT or the LENDERS
remaining unpaid, then to any principal on ADVANCES remaining unpaid and then
any balance shall be remitted to the BORROWER.
11.02 Any DEFAULT or EVENT OF DEFAULT may be waived as provided in Section
16.10. Any DEFAULT or EVENT OF DEFAULT so waived shall be deemed to have been
cured and to be not continuing; but no such waiver shall extend to or affect any
subsequent like DEFAULT or EVENT OF DEFAULT or impair any rights arising
therefrom.
11.03 If one or more EVENTS OF DEFAULT shall have occurred and be
continuing, and if, pursuant to Section 11.01 all OBLIGATIONS have been declared
due and payable, the AGENT shall, subject to the provisions of Section 16.11
proceed to protect and enforce the rights of the AGENT and all of the LENDERS by
suit in equity, action at law and/or other appropriate proceedings. To the
extent the AGENT receives any funds by reason of such enforcement, AGENT shall
apply and distribute all sums so received by the AGENT or any compromise or
settlement thereof, in the following order:
FIRST: To the reimbursement of the AGENT and the LENDERS of all fees and
expenses paid in connection with such enforcement;
SECOND: To the payment of the unpaid principal of the ADVANCES, if any, which
shall be distributed by the AGENT ratably to the LENDERS, according to
the COMMITMENT PERCENTAGES.
THIRD: To establish with the AGENT a fund equal to the undrawn and uncancelled
portion of any LETTERS OF CREDIT then outstanding. Any portion of such
fund remaining after expiration of all such LETTERS OF CREDIT, shall be
applied and distributed in accordance with the provisions of the
following subsections; and if such funds shall be insufficient, the
provisions of Section 16.08 shall remain applicable.
FOURTH: To the Payment of accrued and unpaid interest and fees owing to the
LENDERS, which shall be distributed by the AGENT ratably to the LENDERS,
according to the COMMITMENT PERCENTAGES.
11.04 In addition to any rights and remedies of the LENDERS provided by
law, if an EVENT OF DEFAULT occurs, each LENDER is authorized at any time and
from time to time, without prior notice to BORROWER, any such notice being
waived by the BORROWER to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness owing by, such LENDER to or
for the credit or the account of the BORROWER against any and all OBLIGATIONS
owing to such LENDER, now or hereafter existing, irrespective of whether or not
the AGENT or such LENDER shall have made demand under this AGREEMENT or any
FINANCING AGREEMENT and
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although such OBLIGATIONS may be contingent or unmatured. Each LENDER agrees
promptly to notify the BORROWER and the AGENT after any such set-off and
application made by such LENDER; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
ARTICLE XII
NOTICES
12.01 All communications herein provided shall be in writing and shall be
sufficient if (i) sent by United States mail, registered or certified, postage
prepaid, and shall be deemed effective on the second BUSINESS DAY, (ii)
delivered by national courier service which requires receipt evidencing delivery
and shall be deemed effective on receipt or (iii) sent by confirmed telephone
facsimile and addressed as provided in this Article, and shall be deemed
effective upon transmission.
12.02 The addresses to which such communications shall be sent are as
follows:
(a) If intended for the BORROWER, to:
The J. Xxxx Group, Inc.
0 Xxxxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Chief Financial Officer
and
The Talbots, Inc.
Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
with courtesy copies to:
Xxxxx Xxxx LLP
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
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(b) If intended for LENDERS to:
Citizens Bank of Massachusetts
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxx, Senior Vice President
HSBC Bank USA, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Fax (000) 000-0000
Attn: Xxxxxxx X. XxXxxxxx, Senior Vice President
TD Banknorth, N.A.
0 Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Fax (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Senior Vice President
(c) If intended for AGENT:
Citizens Bank of Massachusetts
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax (000) 000-0000
Attn: Xxxx Xxxxxx, Senior Vice President
with courtesy copies to:
Xxxxx, Xxxxxxx & Xxxxxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
AGENT'S PAYMENT OFFICE:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
12.03 The addresses set forth herein may be changed by notice to the other
party hereunder.
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ARTICLE XIII
MISCELLANEOUS
13.01 The BORROWER shall, and shall cause its SPECIAL SUBSIDIARIES to, from
time to time, execute and deliver to the AGENT all such other and further
reasonable instruments and documents and take or cause to be taken all such
other and further action as AGENT may reasonably request in order to effect and
confirm more securely in the AGENT all rights contemplated in this AGREEMENT,
and in any other of the FINANCING AGREEMENTS.
13.02 The BORROWER may take any action herein prohibited or omit to perform
any act required to be performed by the BORROWER if the BORROWER shall obtain
the AGENT'S prior written consent to each such action, or omission to act. No
waiver on the AGENT'S part on any one occasion shall be deemed a waiver on any
other occasion. The AGENT shall not be deemed to have waived any of its rights
hereunder unless such waiver shall be in writing and duly signed by an
authorized officer of the AGENT.
13.03 This AGREEMENT may be amended only by an instrument in writing and
duly signed by the BORROWER and an authorized officer of the AGENT on behalf of
the MAJORITY LENDERS as provided in Section 16.10.
13.04 All agreements, representations and warranties contained in this
AGREEMENT shall bind the BORROWER and its successors and assigns, and shall
inure to the AGENT for the benefit of the LENDERS and the benefit of the
successors and assigns of AGENT and the LENDERS, whether expressed or not;
provided, however, that the BORROWER may not assign its rights or benefits
hereunder.
13.05 All rights of the AGENT hereunder shall be cumulative. The AGENT
shall not be required to have recourse to any COLLATERAL or other security
before enforcing its rights or remedies against the BORROWER. BORROWER hereby
waives presentment and protest of any instrument and any notice thereof.
13.06 If any provisions of this AGREEMENT shall be held to be illegal or
unenforceable, such illegality or unenforceability shall relate solely to such
provision and shall not affect the remainder of this AGREEMENT.
13.07 This AGREEMENT shall be construed and enforced as an instrument under
seal in accordance with the laws of The Commonwealth of Massachusetts.
13.08 The captions herein contained are inserted as a matter of convenience
only and such captions do not form a part of this AGREEMENT and shall not be
utilized in the construction hereof.
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13.09 In the event the BORROWER fails to make any payment, or BORROWER or
any SUBSIDIARY fails to take any action required by this AGREEMENT or any other
of the FINANCING AGREEMENTS, AGENT may, but shall not be required to, upon prior
notice to the BORROWER make such payment or, upon prior notice to BORROWER or
such SUBSIDIARY, take, or cause to be taken, such action. If the AGENT chooses
to make any such payment or to take or cause to be taken any such action, the
amount of such payment and the cost of such action shall become part of the
OBLIGATIONS, shall be payable upon demand and, until paid in full, shall bear
interest at the rate set forth in Section 4.07 hereof.
13.10 The BORROWER and its SUBSIDIARIES shall pay on demand all reasonable
out-of-pocket costs and expenses of every kind and nature, including reasonable
attorneys' fees and costs, incurred or expended by the AGENT and the LENDERS in
connection with the preparation of the FINANCING AGREEMENTS, the issuance of
LETTERS OF CREDIT hereunder, and the protection or supervision thereof and the
protection or enforcement of the AGENT'S and LENDER'S rights hereunder.
13.11 THE LENDER, THE BORROWER AND EACH OTHER PARTY HERETO IRREVOCABLY
WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER INSTITUTED BY OR
AGAINST ANY LENDER OR THE BORROWER IN RESPECT OF THIS AGREEMENT OR ARISING OUT
OF ANY FINANCING AGREEMENTS.
13.12 Notwithstanding any other provision in this AGREEMENT, any LENDER may
at any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this AGREEMENT and the DEMAND NOTES held by it in
favor of any Federal Reserve Bank in accordance with Regulation A of the Board
of Governors of the Federal Reserve System or U.S. Treasury Regulation 31 C.F.R.
Sextion 203.14, and such Federal Reserve Bank may enforce such pledge or
security interest in any manner permitted under applicable law.
ARTICLE XIV
CONDITIONS PRECEDENT
14.01 Unless each of the following conditions are satisfied at the CLOSING,
and until each of the following conditions are satisfied, no LETTERS OF CREDIT
shall be made or issued:
(a) All instruments and documents required to be executed on or prior to
the CLOSING pursuant to the terms hereof shall have been duly executed
and delivered.
(b) The AGENT on behalf of each LENDER shall have been issued a standby
letter of credit from Bank of America or by another bank satisfactory
to AGENT which letter of credit shall be irrevocable, have an
expiration date no sooner than 30 days after the TERMINATION DATE,
permit partial
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drawings, be in an amount equal in DOLLARS to One Hundred Ten percent
(110%) of the L/C BALANCE plus ADVANCES and otherwise be in all
respects as to provisions, terms and conditions, satisfactory to
AGENT.
(c) Except for those EXISTING STANDBYS described in Exhibit 14.01(c)
hereto, all standby letters of credit previously issued by AGENT for
the benefit of BORROWER or any of its SPECIAL SUBSIDIARIES shall have
either been cancelled and BORROWER shall have effected such
substitutions therefor with such other lending institutions as shall
be acceptable to the beneficiaries of such letters of credit.
(d) The AGENT shall have received from counsel to the BORROWER and its
SUBSIDIARIES opinions satisfactory in form and substance to the AGENT.
(e) The AGENT shall have received a certificate from the Clerk or other
appropriate recording officer of the BORROWER and each SPECIAL
SUBSIDIARY in form and substance satisfactory to the AGENT and its
counsel, showing the authority of the BORROWER and each such
SUBSIDIARY (as the case may be) to enter into and amend and restate
this AGREEMENT and, without limitation, the FINANCING AGREEMENTS, to
perform the OBLIGATIONS to which each such party is bound, and the
specific authority of the persons executing this AGREEMENT and all
instruments and documents pursuant hereto so to execute. AGENT shall
have received any amendments, updated certified copies of the Articles
of Organization (or other charter documents) and updated By-Laws of
the BORROWER and each SPECIAL SUBSIDIARY to the extent of any such
updates since the same were last submitted to AGENT.
(f) AGENT shall have received such certificates from public officials with
respect to the corporate existence of the BORROWER and each SPECIAL
SUBSIDIARY and the qualification to do business and good standing of
each, as the AGENT may reasonably require.
(g) AGENT shall have received such other and further documents and
instruments as AGENT may reasonably require.
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ARTICLE XV
CLOSING
15.01 All instruments and documents then to be executed pursuant hereto
shall be executed and delivered at a closing (the "CLOSING") to be held on the
CLOSING DATE at the offices of Xxxxx, Xxxxxxx & Xxxxxxx, P.C., 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx.
ARTICLE XVI
The AGENT
16.01 The AGENT is authorized to take such action on behalf of each of the
LENDERS and to exercise all such powers as are hereunder and in related
documents delegated to the AGENT, together with such powers as are reasonably
incidental thereto.
16.02 The AGENT may exercise its powers and exercise its duties by or
through employees or agents and shall be entitled to take, and to rely on,
advice of counsel concerning all matters pertaining to its rights and duties
under this AGREEMENT and the FINANCING AGREEMENTS. The AGENT may utilize the
services of such PERSONS as the AGENT in its sole discretion may reasonably
determine, and all reasonable fees and expenses of any such PERSONS shall be
paid by the BORROWER.
16.03 Neither the AGENT nor any of its shareholders, directors, officers or
employees nor any other person assisting them in their duties nor any agent or
employee thereof, shall be liable for any waiver, consent or approval given or
any action taken, or omitted to be taken, in good faith by it or them hereunder,
or in connection herewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the AGENT or such other
PERSON, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
16.04 The AGENT shall not be responsible for the execution or validity or
enforceability of this AGREEMENT, or any of the other FINANCING AGREEMENTS or
for the value of any security or for the validity, enforceability or
collectibility of any such amounts owing with respect to the OBLIGATIONS, or for
any recitals or statements, warranties or representations herein or made in any
certificate or instrument hereafter furnished to it by or on behalf of the
BORROWER or its SPECIAL SUBSIDIARIES or be bound to ascertain or inquire as to
the performance or observance of any of the terms, conditions, covenants or
agreements herein or in any instrument at any time constituting, or intended to
constitute collateral security for the OBLIGATIONS. The AGENT shall not be bound
to ascertain whether any notice, consent, waiver or request delivered to it by
or on behalf of the BORROWER or any holder of any of the OBLIGATIONS shall have
been duly authorized or is true, accurate and complete. The AGENT has not made
nor does it now make any representations or warranties, express or implied, nor
does it assume any liability for the financial condition
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of the BORROWER or its SPECIAL SUBSIDIARIES and each LENDER represents and
warrants to the AGENT that it has made its own independent evaluation of the
credit-worthiness of the BORROWER, and its SPECIAL SUBSIDIARIES and has not
relied upon the AGENT or any material or information furnished by the AGENT in
making such evaluation.
16.05 If, in the opinion of the AGENT, the distribution of any amount
received by it in such capacity hereunder might involve it in liability, it may
refrain from making distribution until its right to make distribution shall have
been adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received and distributed by the AGENT
is to be repaid, each PERSON to whom any such distribution shall have been made
shall either repay to the AGENT its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to such
PERSONS as shall be determined by the court. With respect to the OBLIGATIONS, a
payment to the AGENT shall be deemed to be a payment to the LENDERS.
16.06 In its individual capacity, CITIZENS shall have the same obligations
and the same rights, powers and privileges in respect to its commitment and the
financial accommodations made by it hereunder as it would have were it not also
the AGENT.
16.07 In addition to and not in limitation of the provisions of Article
III, each LENDER to the extent of its COMMITMENT PERCENTAGE in the financial
accommodations hereunder, shall indemnify and hold AGENT harmless from any loss
by reason of the AGENT, in accordance with the terms of this AGREEMENT, issuing
a LETTER OF CREDIT, or making an ADVANCE but such indemnity shall not cover
gross negligence or willful misconduct by the AGENT.
16.08 The AGENT may resign on not less than thirty (30) days notice to each
LENDER and BORROWER. The AGENT may be removed by vote of the MAJORITY LENDERS on
not less than thirty (30) days' written notice to AGENT and BORROWER. Upon the
resignation or removal of the AGENT, a successor AGENT shall be designated by
the MAJORITY LENDERS.
16.09 Each LENDER, to the extent of its COMMITMENT PERCENTAGE in the
financial accommodations hereunder, shall indemnify and hold AGENT harmless from
any claim or demand, including, without limitation, counsel fees and expenses,
in connection with any claim by any PERSON including, without limitation,
BORROWER and its SPECIAL SUBSIDIARIES that AGENT, by any act or omission, has
breached its obligations under the FINANCING AGREEMENTS to such PERSON;
provided, however, that the provisions of this indemnification do not relate to
any act or omission of the AGENT which constitutes willful misconduct or gross
negligence.
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16.10 No amendment or waiver of any provisions of this AGREEMENT or any
other FINANCING AGREEMENTS, and no consent with respect to any departure of the
BORROWER or any SUBSIDIARY therefrom, shall be effective unless the same shall
be in writing and signed by the MAJORITY LENDERS (or by the AGENT at the written
request of the MAJORITY LENDERS) and the BORROWER and acknowledged by the AGENT,
and then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that
no such waiver, amendment or consent shall, unless in writing and signed by all
of the LENDERS and the BORROWER and acknowledged by the AGENT, do any of the
following:
(a) increase or extend the COMMITMENT AMOUNT or COMMITMENT PERCENTAGE of
any LENDER or reinstate any commitment terminated pursuant to Article XI.
(b) postpone or delay any date fixed by this AGREEMENT or any other
FINANCING AGREEMENT for any payment of principal, interest, fees or other
amounts due to the LENDERS (or any of them) hereunder or under any other
FINANCING AGREEMENT including any prepayments;
(c) reduce the amount of, or the rate of interest specified herein on any
OBLIGATIONS, or any fees or other amounts payable hereunder or under any other
FINANCING AGREEMENT;
(d) change the COMMITMENT PERCENTAGE of any LENDER or of the aggregate
unpaid principal amount of the OBLIGATIONS which is required for the LENDERS or
any of them to take any action hereunder;
(e) release any property, including any standby letter of credit held by
AGENT on behalf of, and for the benefit of all of the LENDERS;
(f) amend this Section or any provision herein providing for consent or
other action by all LENDERS; or
(g) amend the definition of "MAJORITY LENDERS" set forth in Section 1.01;
and, provided further, that no amendment, waiver or consent shall, unless in
writing and signed by the AGENT in addition to the MAJORITY LENDERS or all of
the LENDERS, as the case may be, affect the rights or duties of the AGENT under
this AGREEMENT or any other FINANCING AGREEMENT.
16.11 The AGENT'S OBLIGATIONS to proceed, pursuant to Section 11.03 is
subject, however, to each of the following conditions:
(a) The AGENT shall have been so directed to proceed by the MAJORITY
LENDERS;
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(b) The AGENT shall have received such indemnification with respect to
costs and expenses as it may reasonably require from the LENDERS; and
(c) Any compromise or settlement of the LENDERS' claims with respect to the
OBLIGATIONS shall be effected, only upon the prior approval of all of the
LENDERS.
ARTICLE XVII
TERMINATION
17.01 Upon the TERMINATION DATE, all obligations of AGENT and any LENDER to
BORROWER shall terminate, and all sums owing hereunder from BORROWER to AGENT
shall become immediately due and payable in full without notice or demand.
17.02 Notwithstanding the passage of the TERMINATION DATE, until all
OBLIGATIONS shall have been fully paid, performed and satisfied, all rights of
AGENT and each LENDER arising under this Agreement and other FINANCING
AGREEMENTS shall continue, and all obligations of BORROWER and its SPECIAL
SUBSIDIARIES arising under this AGREEMENT and the other FINANCING AGREEMENTS
shall continue.
ARTICLE XVIII
OTHER LOANS
Intentionally Omitted.
ARTICLE XIX
INCONSISTENCY IN FINANCING AGREEMENTS
19.01 In the event that any provision of the other FINANCING AGREEMENTS, is
inconsistent with a provision of this Sixth Amended and Restated Loan Agreement,
then and in such event, the provisions of this instrument shall control.
19.02 The existence of a provision in the other FINANCING AGREEMENTS which
is not present in this Sixth Amended and Restated Loan Agreement shall not be
deemed to be an inconsistency.
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ARTICLE XX
Intentionally Omitted.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto (in counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
document) have set their hands and seals as of the date first above written.
THE J. XXXX GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: EVP/CFO & CAO
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IN WITNESS WHEREOF, the parties hereto (in counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
document) have set their hands and seals as of the date first above written.
CITIZENS BANK OF MASSACHUSETTS
By: Xxxxxx X. X'Xxxxx
------------------------------------
Xxxxxx X. X'Xxxxx,
Senior Vice President
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IN WITNESS WHEREOF, the parties hereto (in counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
document) have set their hands and seals as of the date first above written.
HSBC BANK USA, N.A.
By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------
Xxxxxxx X. XxXxxxxx,
Senior Vice President
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IN WITNESS WHEREOF, the parties hereto (in counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
document) have set their hands and seals as of the date first above written.
TD BANKNORTH, N.A.
By: /s/ Xxxxxxx X. Xxxxxx SVP
------------------------------------
Xxxxxxx X. Xxxxxx,
Senior Vice President
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IN WITNESS WHEREOF, the parties hereto (in counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
document) have set their hands and seals as of the date first above written.
CITIZENS BANK OF MASSACHUSETTS,
as AGENT
By: /s/ Xxxxxx X. X'Xxxxx
------------------------------------
Xxxxxx X. X'Xxxxx,
Senior Vice President
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Exhibit 1.01A
DEMAND PROMISSORY NOTE
Boston, Massachusetts
$18,000,000 May 3, 2006
Upon the earlier of demand, the "Termination Date" or the occurrence of an
"Event of Default" as such terms are defined in that certain Loan Agreement
hereinafter referred to, for value received, the undersigned promises to pay to
the order of Citizens Bank of Massachusetts (hereinafter called the "Holder"),
at its principal office at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such
other location that the holder may specify
EIGHTEEN MILLION DOLLARS
($18,000,000)
or such lesser amount as may from time to time be owing pursuant to the terms of
that certain Sixth Amended and Restated Loan Agreement dated as of May 3, 2006,
between the Undersigned, on the one hand, and the several financial institutions
from time to time party thereto (the payee hereof being one of them) and
Citizens Bank of Massachusetts as Agent, on the other hand (as amended,
modified, supplemented and/or restated from time to time) (the "Loan
Agreement"). Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Loan Agreement.
The principal amount outstanding hereunder shall be paid in accordance with
the provisions of the Loan Agreement. Interest (to the extent provided for
pursuant to the Loan Agreement) shall be paid in accordance with, and at the
rate set forth in, the Loan Agreement. The entire unpaid principal balance and
any interest owing thereon and any other amounts owing pursuant to the Loan
Agreement shall be paid in full on the earlier of demand, the Termination Date
or an Event of Default all without notice or demand, in the manner and with the
effect provided in the Loan Agreement. If any payment is not made when due
hereunder, then, without limitation on any other right of the Holder, there
shall be a late charge and an augmented interest rate as provided in the Loan
Agreement.
Every maker, endorser and guarantor of this note, or the obligation
represented by this note, waives presentment, demand, notice, protest, and all
other demands or notices in connection with the delivery, acceptance,
endorsement, performance, default, or enforcement of this note, assents to any
and all extensions or postponements of the time of payment or any other
indulgence, to any substitution, exchange, or release of collateral, and/or to
the addition or release of any other party or person primarily or secondarily
liable, and generally waives all suretyship defense and defenses in the nature
thereof.
The undersigned will pay all reasonable out-of-pocket costs and expenses of
collection, including reasonable attorneys' fees, incurred or paid by the holder
in enforcing this note or the obligations hereby evidenced, to the extent
permitted by law.
No delay or omission of the holder in exercising any right or remedy
hereunder shall constitute a waiver of any such right or remedy. Acceptance by
the holder of any payment after acceleration shall not operate as a bar to or
waiver of such acceleration.
The holder need not enter payments of principal or interest upon this note,
but may maintain a record thereof on a separate ledger maintained by the holder.
The word "holder" as used in this note shall mean the payee or indorsee of
this note who is in possession of it or the bearer if this note is at the time
payable to bearer.
This note shall be governed by and construed in accordance with the laws of
The Commonwealth of Massachusetts and shall take effect as an instrument under
seal.
WITNESS: THE J. XXXX GROUP, INC.
By:
------------------------------------- ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
DEMAND PROMISSORY NOTE
Boston, Massachusetts
$14,000,000 May 3, 2006
Upon the earlier of demand, the "Termination Date" or the occurrence of an
"Event of Default" as such terms are defined in that certain Loan Agreement
hereinafter referred to, for value received, the undersigned promises to pay to
the order of HSBC Bank USA, National Association (hereinafter called the
"Holder"), at its principal office at 00 Xxxxx Xxxxxxxx, Xxxxx, Xxx Xxxx 00000,
or such other location that the holder may specify
FOURTEEN MILLION DOLLARS
($14,000,000)
or such lesser amount as may from time to time be owing pursuant to the terms of
that certain Sixth Amended and Restated Loan Agreement dated as of May 3, 2006,
between the undersigned, on the one hand, and the several financial institutions
from time to time party thereto (the payee hereof being one of them) and
Citizens Bank of Massachusetts as Agent, on the other hand (as amended,
modified, supplemented and/or restated from time to time) (the "Loan
Agreement"). Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Loan Agreement.
The principal amount outstanding hereunder shall be paid in accordance with
the provisions of the Loan Agreement. Interest (to the extent provided for
pursuant to the Loan Agreement) shall be paid in accordance with, and at the
rate set forth in, the Loan Agreement. The entire unpaid principal balance and
any interest owing thereon and any other amounts owing pursuant to the Loan
Agreement shall be paid in full on the earlier of demand, the Termination Date
or an Event of Default all without notice or demand, in the manner and with the
effect provided in the Loan Agreement. If any payment is not made when due
hereunder, then, without limitation on any other right of the Holder, there
shall be a late charge and an augmented interest rate as provided in the Loan
Agreement.
Every maker, endorser and guarantor of this note, or the obligation
represented by this note, waives presentment, demand, notice, protest, and all
other demands or notices in connection with the delivery, acceptance,
endorsement, performance, default, or enforcement of this note, assents to any
and all extensions or postponements of the time of payment or any other
indulgence, to any substitution, exchange, or release of collateral, and/or to
the addition or release of any other party or person primarily or secondarily
liable, and generally waives all suretyship defense and defenses in the nature
thereof.
The undersigned will pay all reasonable out-of-pocket costs and expenses of
collection, including reasonable attorneys' fees, incurred or paid by the holder
in enforcing this note or the obligations hereby evidenced, to the extent
permitted by law.
No delay or omission of the holder in exercising any right or remedy
hereunder shall constitute a waiver of any such right or remedy. Acceptance by
the holder of any payment after acceleration shall not operate as a bar to or
waiver of such acceleration.
The holder need not enter payments of principal or interest upon this note,
but may maintain a record thereof on a separate ledger maintained by the holder.
The word "holder" as used in this note shall mean the payee or indorsee of
this note who is in possession of it or the bearer if this note is at the time
payable to bearer.
This note shall be governed by and construed in accordance with the laws of
The Commonwealth of Massachusetts and shall take effect as an instrument under
seal.
WITNESS: THE J. XXXX GROUP, INC.
------------------------------------- By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
DEMAND PROMISSORY NOTE
Boston, Massachusetts
$8,000,000 May 3, 2006
Upon the earlier of demand, the "Termination Date" or the occurrence of an
"Event of Default" as such terms are defined in that certain Loan Agreement
hereinafter referred to, for value received, the undersigned promises to pay to
the order of TD Banknorth, N.A. (hereinafter called the "Holder"), at its
principal office at 0 Xxxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxx Xxxxxxxxx 00000, or such
other location that the holder may specify
EIGHT MILLION DOLLARS
($8,000,000)
or such lesser amount as may from time to time be owing pursuant to the terms of
that certain Sixth Amended and Restated Loan Agreement dated as of May 3, 2006,
between the undersigned, on the one hand, and the several financial institutions
from time to time party thereto (the payee hereof being one of them) and
Citizens Bank of Massachusetts as Agent, on the other hand (as amended,
modified, supplemented and/or restated from time to time) (the "Loan
Agreement"). Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Loan Agreement.
The principal amount outstanding hereunder shall be paid in accordance with
the provisions of the Loan Agreement. Interest (to the extent provided for
pursuant to the Loan Agreement) shall be paid in accordance with, and at the
rate set forth in, the Loan Agreement. The entire unpaid principal balance and
any interest owing thereon and any other amounts owing pursuant to the Loan
Agreement shall be paid in full on the earlier of demand, the Termination Date
or an Event of Default all without notice or demand, in the manner and with the
effect provided in the Loan Agreement. If any payment is not made when due
hereunder, then, without limitation on any other right of the Holder, there
shall be a late charge and an augmented interest rate as provided in the Loan
Agreement.
Every maker, endorser and guarantor of this note, or the obligation
represented by this note, waives presentment, demand, notice, protest, and all
other demands or notices in connection with the delivery, acceptance,
endorsement, performance, default, or enforcement of this note, assents to any
and all extensions or postponements of the time of payment or any other
indulgence, to any substitution, exchange, or release of collateral, and/or to
the addition or release of any other party or person primarily or secondarily
liable, and generally waives all suretyship defense and defenses in the nature
thereof.
The undersigned will pay all reasonable out-of-pocket costs and expenses of
collection, including reasonable attorneys' fees, incurred or paid by the holder
in enforcing this note or the obligations hereby evidenced, to the extent
permitted by law.
No delay or omission of the holder in exercising any right or remedy
hereunder shall constitute a waiver of any such right or remedy. Acceptance by
the holder of any payment after acceleration shall not operate as a bar to or
waiver of such acceleration.
The holder need not enter payments of principal or interest upon this note,
but may maintain a record thereof on a separate ledger maintained by the holder.
The word "holder" as used in this note shall mean the payee or indorsee of
this note who is in possession of it or the bearer if this note is at the time
payable to bearer.
This note shall be governed by and construed in accordance with the laws of
The Commonwealth of Massachusetts and shall take effect as an instrument under
seal.
WITNESS: THE J. XXXX GROUP, INC.
By:
------------------------------------- ------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
Exhibit 1.01B
(CITIZENS BANK LOGO) Application and Agreement for Commercial Letter of Credit
To: (Please xxxx the name of your bank) Date: __________
[ ] Citizens Bank of Rhode Island
[ ] Citizens Bank of Massachusetts
[ ] Citizens Bank of Connecticut
[ ] Citizens Bank New Hampshire
[ ] Citizens Bank of Pennsylvania
[ ] Citizens Bank, N.A
[ ] Citizens Bank
Mailling Address: Citizens Bank, International Trade Services, Mailstop: MMF470
00 Xxxxx Xxxx, Xxxxxxx, XX 00000 Fax # 000 000 0000
Please Issue an irrevocable Letter of Credit as set forth below:
Applicant (Customer) Name and Address: Beneficiary (Seller) Name and Address:
______________________________________ _______________________________________
Currency Amount Expiry Date Advising Bank (Beneficiary's Bank)
________ ______ __________________ Name: _________________________________
Address: ______________________________
AVAILABLE WITH ANY BANK BY NEGOTIATION OF DRAFTS AT
[ ] SIGHT [ ] ____ DAYS SIGHT [ ] ____ DAYS SHIPMENT DATE
DESCRIPTION OF MERCHANDISE (Brief Detail)_________ LATEST SHIPPING DATE
[ ] FOB ___ [ ] C & F ___ [ ] CIF ___ [ ] Other ___ _________________________
PARTIAL SHIPMENTS [ ] ALLOWED [ ] NOT ALLOWED FROM (Shipping Port/Airport
or Place) _________________
TRANSHIPMENTS [ ] ALLOWED [ ] NOT ALLOWED TO (Destination Port/
Airport or Place) _________
DOCUMENTS
THE CREDIT SHALL BE SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS ISSUED BY THE INTERNATIONAL CHAMBER OF COMMERCE, PARIS, AND IN EFFECT AS
OF THE DATE HEREOF.
[ ] SIGNED COMMERCIAL INVOICE IN ORIGINAL PLUS _____ COPIES
[ ] FULL SET OF CLEAN ON BOARD MARINE BILLS OF LADING CONSIGNED TO ORDER, BLANK
ENDORSED, MARKED NOTIFY APPLICANT AND FREIGHT
[ ] PREPAID [ ] COLLECT
[ ] CLEAN AIR WAYBILL CONSIGNED TO APPLICANT MARKED FREIGHT
[ ] PREPAID [ ] COLLECT
[ ] FORWARDER'S CERTIFICATE OF RECEIPT CONSIGNED TO APPLICANT
[ ] PACKING LIST AND _____ COPY(IES)
[ ] INSURANCE CERTIFICATE OR POLICY IN NEGOTIABLE FORM COVERING ALL RISKS FOR
110% OF INVOICE VALUE
[ ] CERTIFICATE OF ORIGIN
[ ]
[ ]
ADDITIONAL CONDITIONS (IF ANY) ALL OTHER TERMS
[ ] Insurance to be effected by [ ] All bank charges, other than our
Applicant own, are for the account of the
beneficiary.
[ ] Letter of Credit is transferable.
[ ] Documents must be presented within
[ ] Special instructions (if Any): ______ days after shipment; but
within validity of the credit (if
_________________________________ number of days are not specified,
21 days will be inserted)
[ ] This application was originally
sent to the Bank by fax.
FOR BANK USE ONLY We agree to all the terms and
Account officer approval conditions on the face and reverse
hereof.
-------------------------------------- APPLICANT: ____________________________
Authorized Signature
BY:
-------------------------------------- -----------------------------------
Date Authorized Signature - Title
In consideration of your opening this Documentary Credit for our account we
agree that you shall have a pledge upon all goods and upon all Bills of Lading,
Warrants, Delivery Orders, Documents of Title, and securities whatsoever which
have been already or shall be hereafter delivered into your possession or that
of your agents by us or by any person firm or company as a result of opening
or in connection with any transactions under this Documentary Credit.
We agree that the terms of the said pledge are that the said goods and the said
documents are and shall be pledged as security for all advances made or which
may be made to us or to our agents and for all payments which may be made by you
or your agents under this Documentary Credit and also for any liability
whatsoever incurred or which may be incurred by you as a result of the opening
of this Credit together with interest and all customary charges, and that you
shall have full discretion and power of sale over the said goods without notice
to us and that you shall be held covered against fire and all other risks after
expiry of the insurance already mentioned and that in case of loss any amount
due under such insurance shall be paid over to you. We further undertake that we
will neither do nor suffer any act or thing which may prejudice the security
given by the said pledge.
We further agree that neither you nor your agents shall be in any way
responsible for any error, fault or mistake in the description, quality,
quantity, value or delivery of any goods or the amount of Shipper's charges
thereon or for any delay in connection with the consignments or any loss or
damage to the goods and your right to repayment and reimbursement shall not be
prejudiced or affected by any such error, fault, mistake, delay, loss or damage
or by any invalidity or irregularity or misdescriptton of or in any draft or
document.
We further agree where negotiation is permitted you shall not be responsible for
ascertaining or affected by notice of, whether or not the drafts have been
negotiated or when or where they were negotiated.
We guarantee the validity of all documents tendered hereunder to you or to your
agents.
You are authorized to debit our account with all payments and disbursements,
together with costs, expenses, commissions and charges and/or other liabilities
hereunder of whatsoever nature (including future and/or contingent liabilities)
in connection with this credit and in respect of the goods and/ or with the
amounts of matured acceptances. We undertake to provide you on demand with
sufficient funds to meet your payments, disbursements, costs, expenses,
commissions and charges and such liabilities as aforesaid and upon maturity or
earlier demand by you with sufficient funds to meet your acceptances.
We further undertake immediately upon your request to do, and procure the doing
of, all such acts and to sign, endorse, execute and/or deliver, and to procure
the signature, endorsement, execution and/or delivery of, all such authorities,
transfers, deeds or documents as you may require in order to perfect your title
to the said goods and/or the said documents and/or to vest the same in and/or
deliver the same to any purchaser from you and/ or to recover any insurance
moneys payable or paid in respect of loss of or damage to the said goods.
It is understood that all instructions and correspondence relating to the above
Credit are to be sent at our sole risk and expense and that we will indemnify
you against, and you are not to be responsible for, any loss arising out of any
error, omission or delay in the dispatch, transmission, transcription, receipt,
coding or decoding thereof, howsoever and by whomsoever such error, omission or
delay shall have been caused.
We agree that this Credit is subject to Uniform Customs and Practice for
Documentary Credits, International Chamber of Commerce Publication No. 500 or as
amended by any subsequent revision of the International Chamber of Commerce. |
If this request is made by two or more parties their obligations hereunder shall
be joint and several. Throughout this document the singular number shall be
deemed to include the plural and vice versa.
We warrant that neither this application, nor any reaction hereby requested of
you, nor this shipment involved in this application is in violation of U.S.
Treasury Foreign Assets Control or Cuban Asset Control Regulations and/or
regulations emanating from the U.S. Department of Commerce, and that all
required import or export licenses have been obtained.
Exhibit 6.02
CONFIRMATION OF GUARANTY
Reference is made to that certain Guaranty (the "Guaranty") by the
undersigned of all obligations of The J. Xxxx Group, Inc. (the "Borrower")
executed on December 27, 2004 to Citizens Bank of Massachusetts ("Citizens"),
individually and as Agent for the benefit of, and on behalf of, all Lenders, as
such term is defined in that certain Sixth Amended and Restated Loan Agreement
among Borrower, Citizens, HSBC Bank USA, National Association, and TD Banknorth,
N.A. dated as of May 3, 2006, and as the same may hereafter be amended
(collectively, the "Loan Agreement"). The undersigned hereby confirms to
Citizens individually and as Agent that (i) the Guaranty is valid, binding and
enforceable against the undersigned and the undersigned's successors and assigns
in accordance with its terms, (ii) without limiting the definition of
"Obligations" thereunder, the undersigned remains and is liable to Citizens
individually and as Agent for all "Obligations" as defined in the Guaranty; and
(iii) that the definition of "Loan Agreement" in said Guaranty includes the Loan
Agreement referenced in the preceding sentence above, the same being the latest
iteration thereof among the parties described above.
Executed as an instrument under seal as of this _________ day of May, 2006.
J. XXXX, GP
By: J.J. COMPANY, INC.
Its Managing General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CONFIRMATION OF GUARANTY
Reference is made to that certain Guaranty (the "Guaranty") by the
undersigned of all obligations of The J. Xxxx Group, Inc. (the "Borrower")
executed on December 27, 2004 to Citizens Bank of Massachusetts ("Citizens"),
individually and as Agent for the benefit of, and on behalf of, all Lenders, as
such term is defined in that certain Sixth Amended and Restated Loan Agreement
among Borrower, Citizens, HSBC Bank USA, National Association, and TD Banknorth,
N.A. dated as of May 3, 2006, and as the same may hereafter be amended
(collectively, the "Loan Agreement"). The undersigned hereby confirms to
Citizens individually and as Agent that (i) the Guaranty is valid, binding and
enforceable against the undersigned and the undersigned's successors and assigns
in accordance with its terms, (ii) without limiting the definition of
"Obligations" thereunder, the undersigned remains and is liable to Citizens
individually and as Agent for all "Obligations" as defined in the Guaranty; and
(iii) that the definition of "Loan Agreement" in said Guaranty includes the Loan
Agreement referenced in the preceding sentence above, the same being the latest
iteration thereof among the parties described above.
Executed as an instrument under seal as of this __ day of May, 2006.
J. XXXX, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CONFIRMATION OF GUARANTY
Reference is made to that certain Guaranty (the "Guaranty") by the
undersigned of all obligations of The J. Xxxx Group, Inc. (the "Borrower")
executed on December 27, 2004 to Citizens Bank of Massachusetts ("Citizens"),
individually and as Agent for the benefit of, and on behalf of, all Lenders, as
such term is defined in that certain Sixth Amended and Restated Loan Agreement
among Borrower, Citizens, HSBC Bank USA, National Association, and TD Banknorth,
N.A. dated as of May 3, 2006, and as the same may hereafter be amended
(collectively, the "Loan Agreement"). The undersigned hereby confirms to
Citizens individually and as Agent that (i) the Guaranty is valid, binding and
enforceable against the undersigned and the undersigned's successors and assigns
in accordance with its terms, (ii) without limiting the definition of
"Obligations" thereunder, the undersigned remains and is liable to Citizens
individually and as Agent for all "Obligations" as defined in the Guaranty; and
(iii) that the definition of "Loan Agreement" in said Guaranty includes the Loan
Agreement referenced in the preceding sentence above, the same being the latest
iteration thereof among the parties described above.
Executed as an instrument under seal as of this __ day of May, 2006.
J.J, COMPANY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT 7.03
FOREIGN QUALIFICATION
BORROWER is qualified to do business as a foreign corporation in Massachusetts,
New Hampshire and Pennsylvania
J.J COMPANY, INC. is not qualified to do business as a foreign corporation in
any state.
J.XXXX, LLC is qualified to do business as a foreign corporation in:
Alabama
Arizona
Arkansas
California
Colorado
Connecticut
Florida
Georgia
Illinois
Indiana
Iowa
Kansas
Kentucky
Maine
Maryland
Massachusetts
Michigan
Minnesota
Missouri
Nebraska
Nevada
New Jersey
New York
North Carolina
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
Tennessee
Texas
Utah
Vermont
Xxxxxxxx
Xxxxxxxxxx
Wisconsin
J.XXXX GP is not qualified to do business as a foreign corporation in any state.
EXHIBIT 14.01(c)
EXISTING STANDBYS
Standby No. S900924 in the amount of $50,673.23 in favor of Lumbermen's Mutual
Standby No. S900757 in the amount of $830,000 in favor of Federal Insurance Co.
-2-