EXHIBIT 4
January 27, 2002
J Holdings Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Equity Capital Commitment
Gentlemen:
Reference is made to that certain Agreement and Plan of
Merger (the "Agreement"), dated as of the date hereof, by and among J Holdings
Corp., a Delaware corporation ("Parent"), J Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of Parent (the "Purchaser"), and Xxxxx
Xxxxx, Inc., a Delaware corporation (the "Company"), which agreement
contemplates the acquisition by Parent of 100% of the outstanding shares of the
Company (such acquisition, together with agreements related thereto or
contemplated thereby, representing the "Transaction"). In connection therewith
and in order to finance, in part, the Transaction, ACI Capital Co., Inc. (the
"Investor") is pleased to advise you that it hereby commits to provide Parent
with $6 million of equity capital (the "Investment"), to be allocated between
preferred stock (the "Senior Preferred") and common stock of Parent on a
nine-to-one basis. The Investor's commitment to provide the Investment is
subject in all respects to satisfaction of the terms and conditions contained in
this commitment letter and in the Outline of Terms and Conditions attached
hereto as Exhibit A (the "Term Sheet").
The Investor's commitment to provide the Investment is
subject to (i) the negotiation, execution and delivery of definitive
documentation thereof, including, without limitation, a Certificate of
Designations of the Senior Preferred, in form and substance satisfactory to the
Investor, Parent and their respective counsel, (ii) the satisfaction of the
conditions precedent to the closing of the Transaction set forth in Sections 6.1
and 6.3 (other than Section 6.3(c) of the Agreement), (iii) all conditions
precedent to the obligation of the Senior Lender (as defined in the Agreement)
to consummate the Senior Financing (as defined in the Agreement) having been met
and the Senior Lender shall intend to and shall be willing and prepared to
consummate the Senior Financing, in each case other than with respect to any
conditions relating to the equity capital investment contemplated by this
commitment letter, the equity commitment letter of each of DB Capital Investors,
L.P. ("DBCI") and SJF Enterprises, Inc., of even date herewith, and the
subordinated debt facility commitment letter of each of ACI and DBCI, each of
even date herewith, and (iv) satisfaction of the conditions set forth in the
Term Sheet attached hereto.
The offer made by the Investor in this commitment letter is
contingent upon execution of the Agreement, and should the Agreement be
executed, the commitment by the Investor to provide the Investment shall expire
immediately upon the earlier of (i) the termination of the Agreement and (ii)
the Expiration Date (as defined in the Agreement), as may be extended in
accordance with the terms of the Agreement.
Should the terms and conditions of the offer contained
herein meet with your approval, please indicate your acceptance by signing and
returning a copy of this commitment letter to the Investor.
This commitment letter, including the attached Term Sheet
(i) supersedes all prior discussions, agreements, commitments, arrangements,
negotiations or understandings, whether oral or written, of the parties with
respect to the subject matter hereof and thereof, (ii) shall be governed by the
law of the State of New York, (iii) shall be binding upon the parties and their
respective successors and assigns, (iv) may not be relied upon or enforced by
any other person or entity other than the parties hereto and Purchaser, and (v)
may be signed in multiple counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument.
If this commitment letter becomes the subject of a dispute, each of the parties
hereto hereby waives trial by jury. This commitment letter may be amended,
modified or waived only in a writing signed by the parties hereto.
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Please confirm that the foregoing is in accordance with your understanding by
signing and returning to the Investor the enclosed copy of this Commitment
Letter on or before the close of business on the date hereof, whereupon this
Commitment Letter shall become a binding agreement between us.
Very truly yours,
ACI CAPITAL CO., INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
Xxxxxx and accepted on this
27th day of January, 2002:
J HOLDINGS CORP.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
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