Exhibit 10.19
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is made this 30th day of April, 2001 by
and between FLEET NATIONAL BANK, a national banking association organized and
existing under the laws of the United States of America with an address at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank") and XXXXXXX SHOE
COMPANY, INC., having a principal place of business at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Borrower").
Reference is made to a certain loan arrangement (the "Loan Arrangement")
between the Bank and the Borrower evidenced by, among other documents,
instruments, and agreements, the following:
(i) a certain Demand Promissory Note dated September 2, 1998 in favor the Bank
as successor in interest to BankBoston, N.A. in the original principal
amount of Thirty-Five Million and No/100 ($35,000,000.00) Dollars (the
"Note");
(ii) a certain letter of agreement dated September 2, 1998 by and between the
Borrower and the Bank (the "Letter Agreement"); and
(iii) a certain extension letter agreement dated April 24, 2000 by and between
the Borrower and the Bank (the "Extension Letter").
The Note, the Letter Agreement and the Extension Letter, together with any
and all other instruments, documents contracts or agreements which evidence,
secure or otherwise relate to the Borrower's obligations with respect to the
Loan Arrangement, all as modified by any prior amendment agreements are herein
collectively referred to as the "Loan Documents."
Whereas, the Borrower has requested that the Bank agree to the
modification of the Loan Documents, and the Bank has so agreed, but only upon
the terms and conditions set forth hereinafter.
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is hereby agreed by the Bank and the Borrower that
the Loan Documents are amended effective April 30, 2001 as follows:
1. The line of credit facility evidenced by the Loan Documents shall expire on,
the earlier to occur of (i) DEMAND by the Bank, or (ii) April 29, 2002, at which
time the credit availability may be extended, modified, or terminated in the
Bank's sole discretion. Nothing herein shall be construed as a limitation on the
Bank's right to demand repayment of all amounts due to it under the Loan
Documents ON DEMAND.
2. All references in the Loan Documents to "Expiration Date" shall refer to
April 29, 2002.
3. All references in the Loan Documents to April 30, 2001 are hereby deleted and
April 29, 2002 is substituted therefor.
4. Section 11.4 of the Letter Agreement is hereby deleted in its entirety and
the following substituted therefore:
"11.4. Negative Pledges, Etc. Without the Bank's prior written
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consent, the Borrower will not enter into any agreement (excluding
this Agreement) prohibiting (a) the Borrower from amending or
otherwise modifying this Agreement or (b) the creation or assumption
of any Encumbrance upon the properties, revenues or assets of the
Borrower whether now owned or hereafter acquired including, but not
limited to, the Borrower's or any subsidiary or affiliate of the
Borrower, tangible and intangible assets, including trademarks,
trade names, service marks, copyrights and all other forms of
intellectual property whether now owned or hereafter acquired by the
Borrower or its subsidiaries or affiliates.
5. The definition of "Interbank Offered Rates" found on Schedule A to the Letter
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Agreement is deleted in its entirety and the following substituted therefore:
"The Interbank Offered Rates means for any interest period with
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respect to a Eurodollar Loan, the rate of interest equal to (i) the
arithmetic mean of the rates per annum for each first-class bank in
the
interbank eurodollar market ("Reference Bank") (rounded upwards to
the nearest 1/16 of one percent) of the rate at which such Reference
Bank is offered dollar deposits two Eurodollar Business Days prior
to the beginning of such interest period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange
operations of such Reference Bank are customarily conducted, for the
delivery on the first day of such interest period for the number of
days comprised therein and in an amount comparable to the amount of
the Eurodollar Loan of such Reference Bank to which such interest
period applies, divided by (ii) a number equal to 1.00 minus the
Eurocurrency Reserve Rate."
6. The definition of "Reserve Percentage" found on Schedule A to the Letter
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Agreement is deleted in its entirety and the following substituted therefor:
"The Reserve Percentage means for any day with respect to a
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Eurodollar Loan, the maximum rate (expressed as a decimal) at which
any lender subject thereto would be required to maintain reserves
under Regulation D of the Board of Governors of the Federal Reserve
System (or any successor or similar regulations relating to such
reserve requirements) against "Eurocurrency Liabilities" (as that
terms is defined in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted
automatically."
7. The following definition of "Eurodollar Business Day" is hereby added to
Schedule A to the Letter Agreement:
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"Eurodollar Business Day means any day on which commercial banks are
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open for international business (including dealings in Dollar
deposits) in London or such other eurodollar interbank market as may
be selected by the Agent in its sole discretion and acting in good
faith."
8. The Letter Agreement further is amended and supplemented as follows:
(a) All payments shall be made by the Borrower to the Bank at its
office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or such
other place as the Bank may from time to time specify in writing in
lawful currency of the United States of America in immediately
available funds, without counterclaim or setoff and free and clear
of, and without any deduction or withholding for, any taxes or other
payments.
(b) All payments shall be applied first to the payment of all fees,
expenses and other amounts due to the Bank (excluding principal and
interest), then to accrued interest, and the balance on account of
outstanding principal; provided, however, that after default,
payments will be applied to the obligations of Borrower to Bank as
Bank determines in its sole discretion. All computations of interest
shall be made on the basis of a three hundred sixty (360) day year
and the actual number of days elapsed.
(c) If the Note or any payment hereunder becomes due on a day which
is not a Business Day, the due date of the Note or payment shall be
extended to the next succeeding Business Day, and such extension of
time shall be included in computing interest and fees in connection
with such payment.
(d) The Borrower shall pay on demand all reasonable out-of-pocket
expenses of the Bank in connection with the preparation,
administration, default, collection, waiver or amendment of loan
terms, or in connection with the Bank's exercise, preservation or
enforcement of any of its rights, remedies or options hereunder,
including, without limitation, reasonable fees of outside legal
counsel or the allocated costs of in-house legal counsel,
accounting, consulting, brokerage or other similar professional fees
or expenses, and any fees or expenses associated with travel or
other costs relating to any appraisals or examinations conducted in
connection with the loan or any collateral therefor, and the amount
of all such expenses shall, until paid, bear interest at the rate
applicable to principal hereunder (including any default rate) and
be an obligation secured by any collateral. The aforementioned
expenses will be billed to the Borrower.
(e) The term "Prime Rate" means the variable per annum rate of
interest so designated from time to time by the Bank as its prime
rate. The Prime Rate is a reference rate and does not necessarily
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represent the lowest or best rate being charged to any customer.
Changes in the rate of interest resulting from changes in the Prime
Rate shall take place immediately without notice or demand of any
kind.
(f) If, at any time, the interest rate on the loan is a fixed rate,
and (ii) Bank in its sole discretion should determine that current
market conditions can accommodate a prepayment request, Borrower
shall have the right, at any time and from time to time, upon at
least ten (10) Business Days prior written notice to Bank, to prepay
the loan in whole (but not in part), and Borrower shall pay to Bank
a yield maintenance fee in an amount computed as follows: The
current rate for United States Treasury securities (bills on a
discounted basis shall be converted to a bond equivalent) with a
maturity date closest to the maturity date of the term chosen
pursuant to the Fixed Rate Election as to which the prepayment is
made, shall be subtracted from the "Cost of Funds" component of the
fixed rate in effect at the time of prepayment. If the result is
zero or a negative number, there shall be no yield maintenance fee.
If the result is a positive number, then the resulting percentage
shall be multiplied by the amount of the principal balance being
prepaid. The resulting amount shall be divided by 360 and multiplied
by the number of days remaining in the term chosen pursuant to the
Fixed Rate Election as to which the prepayment is made. Said amount
shall be reduced to present value calculated using the
above-referenced United States Treasury securities rate and the
number of days remaining in the term chosen pursuant to the Fixed
Rate Election as to which the prepayment is made. The resulting
amount shall be the yield maintenance fee due to Bank upon
prepayment of the fixed rate loan. Each reference in this paragraph
to "Fixed Rate Election" shall mean the election by Borrower
pursuant to the Letter Agreement, if demand is made by the Bank,
then any yield maintenance fee with respect to the loan shall become
due and payable in the same manner as though Borrower had exercised
such right of prepayment.
(g) After demand or after judgement has been rendered on the Note,
Borrower's right to select pricing options shall cease and the
unpaid principal of all advances shall, at the option of Bank, bear
interest at a rate which is four (4) percentage points per annum
greater than that which would otherwise be applicable.
(h) If the entire amount of any required principal and/or interest
is not paid in full within ten (10) days after the same is due, the
Borrower shall pay to the Bank a late fee equal to five percent (5%)
of the required payment.
(i) All agreements between the Borrower and the Bank are hereby
expressly limited so that in no contingency or event whatsoever,
whether by reason of acceleration of maturity of the indebtedness
evidenced hereby or otherwise, shall the amount paid or agreed to be
paid to Bank for the use or the forbearance of the indebtedness
evidenced hereby exceed the maximum permissible under applicable
law. As used herein, the term "applicable law" shall mean the law in
effect as of the date hereof; provided, however, that in the event
there is a change in the law which results in a higher permissible
rate of interest, then this Agreement shall be governed by such new
law as of its effective date. In this regard, it is expressly agreed
that it is the intent of the Borrower and the Bank in the execution,
delivery and acceptance of this Agreement to contract in strict
compliance with the laws of the Commonwealth of Massachusetts from
time to time in effect. If, under or from any circumstances
whatsoever, fulfillment of any provision hereof or of any of the
Loan Documents at the time of performance of such provision shall be
due, shall involve transcending the limit of such validity
prescribed by applicable law, then the obligation to be fulfilled
shall automatically be reduced to the limits of such validity, and
if under or from circumstances whatsoever the Bank should ever
receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied
to the reduction of the principal balance evidenced hereby and not
to the payment of interest. This provision shall control every other
provision of all agreements between the Borrower and the Bank.
(j) The Bank may at any time pledge or assign all or any portion of
its rights under the Loan Documents including any portion of the
Note to any of the twelve (12) Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such
pledge or assignment or enforcement thereof shall release Bank from
its obligations under any of the Loan Documents.
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(k) The Bank shall have the unrestricted right at any time or from
time to time, and without the Borrower's or any Guarantor's consent,
to assign all or any portion of its rights and obligations hereunder
to one or more banks or other financial institutions (each, an
"Assignee"), and the Borrower agrees that it shall execute, or cause
to be executed, such documents, including without limitation,
amendments to this Agreement and to any other documents, instruments
and agreements executed in connection therewith as the Bank shall
deem necessary to effect the foregoing. In addition, at the request
of the Bank and any such Assignee, the Borrower shall issue one or
more new promissory notes, as applicable, to any such Assignee and,
if the Bank has retained any of its rights and obligations hereunder
following such assignment, to the Bank, which new promissory notes
shall be issued in replacement of, but not in discharge of, the
liability evidenced by the promissory note held by the Bank prior to
such assignment and shall reflect the amount of the respective
commitments and loans held by such Assignee and the Bank after
giving effect to such assignment. Upon the execution and delivery of
appropriate assignment documentation, amendments and any other
documentation required by the Bank in connection with such
assignment, and the payment by Assignee of the purchase price agreed
to by the Bank, and such Assignee, such Assignee shall be a party to
this Agreement and shall have all of the rights and obligations of
the Bank hereunder (and under any and all other guaranties,
documents, instruments and agreements executed in connection
herewith) to the extent that such rights and obligations have been
assigned by the Bank pursuant to the assignment documentation
between the Bank and such Assignee, and the Bank shall be released
from its obligations hereunder and thereunder to a corresponding
extent. The Bank may furnish any information concerning the Borrower
in its possession from time to time to prospective Assignees,
provided that the Bank shall require any such prospective Assignees
to agree in writing to maintain the confidentiality of such
information.
(l) The Bank shall have the unrestricted right at any time and from
time to time, and without the consent of or notice to the Borrower
or any Guarantor, to grant to one or more banks or other financial
institutions (each, a "Participant") participating interests in any
or all of the loans held by the Bank hereunder. In the event of any
such grant by the Bank of a participating interest to a Participant,
whether or not upon notice to the Borrower, the Bank shall remain
responsible for the performance of its obligations hereunder and the
Borrower shall continue to deal solely and directly with Bank in
connection with the Bank's rights and obligations hereunder. the
Bank may furnish any information concerning the Borrower in its
possession from time to time to prospective Participants, provided
that the Bank shall require any such prospective Participant to
agree in writing to maintain the confidentiality of such
information.
(m) Upon receipt of an affidavit of an officer of the Bank as to the
loss, theft, destruction or mutilation of the Note or any other
security document which is not of public record, and, in the case of
any such loss, theft, destruction or mutilation, upon cancellation
of such Note or other security document, Borrower will issue, in
lieu thereof, a replacement note or other security document in the
same principal amount thereof and otherwise of like tenor.
9. In all other respects, the Loan Documents, including, but not limited to, the
Note and the Loan Agreement, are hereby confirmed and ratified and all terms and
provisions not amended hereby shall remain in full force and effect. To the
extent that any term and condition of any Loan Document is inconsistent with the
terms and provisions hereof, such Document is hereby amended to reflect the
modifications and amendments set forth in this Agreement.
REPRESENTATIONS AND WARRANTIES
10. To induce the Bank to enter into this Agreement, the Borrower represents and
warrants that:
(a) the execution and delivery by the Borrower of this Agreement and the
performance by the Borrower of the Loan Documents as amended hereby and the
transactions contemplated hereby and thereby: (i) are within the Borrower's
power and authority; (ii) have been authorized by all necessary action; (iii) do
not require the consent or approval of any governmental authority or any other
party; (iv) will not contravene any provision of the articles of incorporation
or by-laws, partnership agreement, declaration of trust, or similar organization
documentation of the
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Borrower, or any law, rule or regulation applicable to the Borrower; and (v)
will not constitute a default under any other agreement, order or undertaking
binding on the Borrower; and
(b) this Agreement has been duly executed and delivered by the Borrower,
and all of the terms and provisions hereof and of the Loan Documents as amended
hereby constitute the legal, valid, binding and enforceable obligations of the
Borrower, except as the same may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally.
(c) all the representations and warranties contained in the Loan
Documents, after giving effect to the amendments and modifications contemplated
hereby are true and correct on and as of the date hereof as though made on and
as of the date hereof.
(d) as of the date hereof, the Borrower has no defenses, counterclaims,
offsets or other claims against the Bank or any of its officers, employees,
agents, attorneys, predecessors, affiliates, or other representatives of any
nature, relating to the Loan Arrangement.
CONDITIONS TO EFFECTIVENESS
11. The effectiveness of this Agreement is subject to the conditions precedent
that:
(a) the Bank shall have received, in form and substance satisfactory to
it, an executed copy of this Agreement;
(b) the Bank shall have received certified copies of all documents
relating to the Borrower as the Bank may reasonably request, including, without
limitation, the resolution of the Borrower identifying the persons authorized to
execute, deliver and take all other actions required under or in furtherance of
this Agreement, and the Loan Documents, as amended hereby, and providing
specimen signatures of such persons;
MISCELLANEOUS
12. THE BORROWER AND THE BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF THE BANK RELATING TO THE
ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT
NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY
LAW, THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWER CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE BANK HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR
THE BANK TO ACCEPT THIS AGREEMENT AND MAKE THE LOAN.
13. The Borrower and any Guarantor hereby grant to the Bank, a continuing lien,
security interest and right of setoff as security for all liabilities and
obligations to the Bank, whether now existing or hereafter arising, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of the Bank or any entity under the
control of FleetBoston Financial Corporation and its successors and assigns or
in transit to any of them. At any time, without demand or notice (any such
notice being expressly waived by the Borrower), the Bank may setoff the same or
any part thereof and apply the same to any liability or obligation of the
Borrower and any Guarantor even though unmatured and regardless of the adequacy
of any other collateral securing the Loan. ANY AND ALL RIGHTS TO REQUIRE THE
BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT
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TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR,
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
14. This Agreement does not constitute a discharge, release or waiver of any of
the Borrower's or any guarantor's obligations or liabilities under the Loan
Documents, or any other agreements to which the Bank and the Borrower and any
guarantor are parties, all of which remain in full force and effect.
15. This Agreement and the rights and obligations of the parties hereunder shall
be deemed to be a document executed under seal and shall be construed and
interpreted in accordance with the laws of the Commonwealth of Massachusetts
(excluding the laws applicable to conflicts or choice of law).
16. This Agreement shall be binding upon and inure to the benefit of the parties
hereto, their respective administrators, successors and assigns. This Agreement
may only be amended in writing.
17. No portion of the proceeds of the loan to the Borrower evidenced by the Loan
Documents shall be used, in whole or in part, for the purpose of purchasing or
carrying any "margin stock" as such term is defined in Regulation U of the Board
of Governors of the Federal Reserve System.
18. The Loan Documents, as amended, are intended by the parties at the final,
complete and exclusive statement of the transactions evidenced thereby. All
prior or contemporaneous promises, agreements and understandings, whether oral
or written, are deemed to be superceded by the Loan Documents, as amended, and
no party is relying on any promise, agreement or understanding not set forth in
the Loan Documents. The Loan Documents may not be amended or modified except by
a written instrument describing such amendment or modification executed by the
Borrower and the Bank.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
BORROWER:
XXXXXXX SHOE COMPANY, INC.
__________________________________ By: /s/ [Illegible]
Witness -------------------------------------
FLEET NATIONAL BANK
By: /s/ Xxxxxxxx X XxXxxxx
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Name: Xxxxxxxx X XxXxxxx
Its: Vice President
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