FIRST AMENDMENT TO
1999 LOAN AND SECURITY AGREEMENT Fleet Retail Finance Inc.
ADMINISTRATIVE AGENT
AND COLLATERAL AGENT
First Amendment Effective Date ......August 10, 2000
THIS FIRST AMENDMENT is made in consideration of the mutual covenants
contained herein and benefits to be derived herefrom to the August 30, 1999
agreement styled "1999 Loan and Security Agreement" (the "Loan Agreement")
between
BankBoston Retail Finance Inc. (now known as Fleet
Retail Finance Inc.), a Delaware corporation with its
principal executive offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, as Administrative Agent and as Collateral
Agent for the ratable benefit of (i) a syndicate of lenders
(defined therein as the "Revolving Credit Lenders") and (ii)
Back Bay Capital Funding LLC (defined therein as the "Term
Lender") a Delaware limited liability company,
and
The Revolving Credit Lenders
and
The Term Lender
On the one hand
and
▇. ▇▇▇▇▇, Inc., a Massachusetts corporation with its
principal executive offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as agent for the following:
▇▇▇▇▇ Shoe, Inc. ( a Delaware corporation with its
principal executive offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ 02021);
JBI, Inc. ( a Massachusetts corporation with its
principal executive offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ 02021);
JBI Apparel, Inc.( a Massachusetts corporation with its
principal executive offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ 02021);
The Casual Male, Inc. ( a Massachusetts corporation
with its principal executive offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ 02021);
WGS Corp. ( a Massachusetts corporation with its
principal executive offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ 02021); and
TCMB&T, Inc.( a Massachusetts corporation with its
principal executive offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ 02021);
on the other,
WITNESSETH:
1. AMENDMENT OF LOAN AGREEMENT:
Subject to the satisfaction of the Conditions to Effectiveness of
Amendment set forth in (2), below, the Loan Agreement is amended as
follows, which amendment shall take effect on the First Amendment Effective
Date:
Article 1 of the Loan Agreement is amended so that the following
Definitions, included therein, read as follows:
"Apparel Division Inventory Advance Rate": The following percentage
during the following periods:
------------------------------------------ -------------------------------------------- ----------
FROM TO Rate
------------------------------------------ -------------------------------------------- ----------
Effective Date of this Agreement December 15, 1999 29%
------------------------------------------ -------------------------------------------- ----------
December 16, 1999 Day Prior To First Amendment Effective date 27%
------------------------------------------ -------------------------------------------- ----------
First Amendment Effective Date December 15, 2000 29%
------------------------------------------ -------------------------------------------- ----------
December 16, 2000 August 31, 2001 27%
------------------------------------------ -------------------------------------------- ----------
September 1, 2001 December 15, 2001 29%
------------------------------------------ -------------------------------------------- ----------
December 16, 2001 May 1, 2002 27%
------------------------------------------ -------------------------------------------- ----------
"Loan to Collateral Percentage": Subject to Section , the following:
------------------------------------------ ------------------------------------- -----------------
FROM TO Percentage
------------------------------------------ ------------------------------------- -----------------
Effective Date of this Agreement April 30, 2000 105%
------------------------------------------ ------------------------------------- -----------------
May 1, 2000 Day Prior To First Amendment 100%
Effective date
------------------------------------------ ------------------------------------- -----------------
First Amendment Effective Date December 15, 2000 97.5%
------------------------------------------ ------------------------------------- -----------------
December 16, 2000 April 30, 2001 95%
------------------------------------------ ------------------------------------- -----------------
All times After April 30, 2001 90%
------------------------------------------ ------------------------------------- -----------------
"Shoe Division Inventory Advance Rate": The following percentage
during the following periods:
------------------------------------------ -------------------------------------------- ----------
FROM TO Rate
------------------------------------------ -------------------------------------------- ----------
Effective Date of this Agreement December 15, 1999 30%
------------------------------------------ -------------------------------------------- ----------
December 16, 1999 Day Prior To First Amendment Effective date 28%
------------------------------------------ -------------------------------------------- ----------
First Amendment Effective Date December 15, 2000 30%
------------------------------------------ -------------------------------------------- ----------
December 16, 2000 August 31, 2001 28%
------------------------------------------ -------------------------------------------- ----------
September 1, 2001 December 15, 2001 30%
------------------------------------------ -------------------------------------------- ----------
December 16, 2001 May 1, 2002 28%
------------------------------------------ -------------------------------------------- ----------
Article 1 of the Loan Agreement is further amended by the addition of
the following Definition in alphabetical order therein:
"First Amendment Effective Date": The date specified in the First
Amendment to this Loan Agreement as its effective date.
Section 3-3(b) of the Loan Agreement is amended to read as follows:
(b) Prepayments may be made towards the unpaid principal balance of
the Term Loan as provided in this Section as well as provided in Section
3:3-3(c):
(i) Subject to Section , the following prepayments of the
Term Loan may be made on or after the date indicated:
(A) December 31, 2000 : $5 Million
(B) May 1, 2001 : $5 Million
(ii) The prepayments described in Section may be made
provided that (x) on the date on which such payment is
made, no Suspension Event is continuing and (y) Overall
Availability is not less than the following on each of
the 30 consecutive days prior to, through one day after
the day on which the subject prepayment is made and (z)
with respect to the prepayment described in Section
3:3-3(b)(i)(B), which may be made on or after May 1,
2001, only if the prepayment described in Section
3:3-3(b)(i)(A), which may be made on or after December
31, 2000 has been made (the "Prepayment Parameter"):
(A) Prepayment on or after December 31, 2000 : $30 Million
(B) Prepayment on or after May 1, 2001 : $25 Million
2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT:
The effectiveness of this Amendment is conditioned on the satisfaction
of each of the following:
(a) Payment of the First Amendment Fee described in the First
Amendment Fee Letter of or about even date.
(b) The delivery of the Administrative Agent of Certificates executed
respectively by the Chief Executive Officer and the Chief Financial Officer
of ▇. ▇▇▇▇▇, Inc. stating that at the delivery of such Certificates, no
Suspension Event has occurred which is then continuing and that neither the
execution nor the effectiveness of this First Amendment is prohibited by or
constitutes a breach of any agreement to which the Borrowers'
Representative or any Borrower is a party or by which any is bound.
3. RATIFICATION OF LOAN DOCUMENTS. NO CLAIMS AGAINST ANY LENDER:
(a) Except as provided herein, all terms and conditions of the Loan
Agreement and of the other Loan Documents remain in full force and effect.
The Borrowers' Representative and each Borrower hereby ratifies, confirms,
and re-affirms all and singular the terms and conditions, including
execution and delivery, of the Loan Documents.
(b) There is no basis nor set of facts on which any amount (or any
portion thereof) owed by any Borrower under the Loan Agreement could be
reduced, offset, waived, or forgiven, by rescission or otherwise; nor is
there any claim, counterclaim, off set, or defense (or other right, remedy,
or basis having a similar effect) available to any Borrower with regard to
thereto; nor is there any basis on which the terms and conditions of any of
the Liabilities could be claimed to be other than as stated on the written
instruments which evidence such Liabilities. To the extent that any
Borrower or any such guarantor has (or ever had) any such claims against
the Agent or any Lender, each hereby affirmatively WAIVES and RELEASES the
same.
4. MISCELLANEOUS:
(a) Terms used in the First Amendment which are defined in the Loan
Agreement are used as so defined.
(b) This First Amendment may be executed in several counterparts and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute
one instrument.
(c) This First Amendment expresses the entire understanding of the
parties with respect to the transactions contemplated hereby. No prior
negotiations or discussions shall limit, modify, or otherwise affect the
provisions hereof.
(d) Any determination that any provision of this First Amendment or
any application hereof is invalid, illegal, or unenforceable in any respect
and in any instance shall not affect the validity, legality, or
enforceability of such provision in any other instance, or the validity,
legality, or enforceability of any other provisions of this First
Amendment.
(e) The Borrower shall pay on demand all reasonable costs and expenses
of the Agents, including, without limitation, reasonable attorneys' fees in
connection with the preparation, negotiation, execution, and delivery of
this First Amendment.
(f) This First Amendment shall be construed, governed, and enforced
pursuant to the laws of The Commonwealth of Massachusetts and shall take
effect as sealed instrument.
Except as amended hereby all terms and conditions of the Loan
Agreement shall remain in full force and effect.
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT:
FLEET RETAIL FINANCE INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
THE REVOLVING CREDIT LENDERS:
FLEET RETAIL FINANCE INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
DEBIS FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President, ABC Division
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
ORIX BUSINESS CREDIT, INC.
By: /s/ ▇.▇. ▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇
Title: President
FOOTHILL CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
AMSOUTH BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Attorney in Fact
LASALLE BUSINESS CREDIT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE PROVIDENT BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FINOVA CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signer
IBJ WHITEHALL BUSINESS CREDIT CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: AVP
SOVEREIGN BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE TERM LENDER:
BACK BAY CAPITAL LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
BORROWERS' REPRESENTATIVE
▇. ▇▇▇▇▇, INC., as Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
Title: President and CEO
