SIXTH AMENDMENT TO REVOLVING CREDIT
AND SECURITY AGREEMENT
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THIS SIXTH AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (this
"Amendment") is made as of June 8, 2001, among SWANK, INC., a corporation
organized under the laws of the Stare of Delaware (the "Borrower"), and PNC
BANK, NATIONAL ASSOCIATION, a national banking association ("PNC"), as agent for
the Lenders described below (in such capacity, the "Agent") and as a Lender.
W I T N E S S E T H:
A. Pursuant to the Revolving Credit and Security Agreement dated
as of July 27, 1998, as amended by the Amendment to Revolving Credit and
Security Agreement dated as of July 12, 1999, the Second Amendment to Loan
Documents dated as of October 29, 1999, the Third Amendment to Revolving Credit
and Security Agreement dated as of December 31, 1999, the Fourth Amendment to
Loan Documents dated as of October 18, 2000 and the Fifth Amendment to Revolving
Credit and Security Agreement dated as of April 27, 2001 (as further amended,
supplemented or modified from time to time, the "Credit Agreement"), by and
among the Borrower, the financial institutions and insurance companies which are
now or which hereafter become a party thereto (collectively, the "Lenders" and
individually a "Lender"), and the Agent, as agent for the Lenders, the Lenders
agreed to make revolving credit loans to, and issue letters of credit for the
account of, the Borrower upon the terms and conditions set forth therein.
B. PNC is currently the sole Lender.
C. The Borrower, the sole Lender and the Agent have agreed to
amend the Credit Agreement upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the sole Lender and the Agent agree as follows:
1. Capitalized terms used in this Amendment shall have the same
meanings given them in the Credit Agreement, unless otherwise defined herein.
2. Section 6.10 of the Credit Agreement is hereby amended to
change the final four (4) dates and amounts at the end of the table contained
therein to read as follows:
Quarter Ending Minimum Tangible Net Worth
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March 31, 2001 $ 16,500,000
June 30, 2001 $ 7,000,000
September 30, 2001 $ 7,000,000
December 31, 2001 $ 9,000,000
3. Section 6.2 of the Credit Agreement is hereby amended to add
the following sentence at the end thereof:
"Notwithstanding the foregoing, Borrower may terminate the
operations of the Costa Rican Joint Venture in Costa Rica."
4. Section 7.4 of the Credit Agreement is hereby amended to add
the following at the end thereof:
"In addition to the investments permitted under clause (k)
above, Borrower may pay or advance to the Costa Rican Joint
Venture any reasonable and customary severance and termination
costs to terminate any of the Costa Rican Joint Venture in
Costa Rica."
5. Section 7.5 of the Credit Agreement is hereby amended to add
the following at the end thereof:
"In addition to the loans and advances permitted under clause
(d) above, Borrower may pay or loan or advance to the Costa
Rican Joint Venture any reasonable and customary severance and
termination cost to terminate any operations of the Costa
Rican Joint Venture in Costa Rica"
6. The Agent hereby grants the Borrower a waiver of (a) the
Borrower's non-compliance with Section 9.7 of the Credit Agreement in failing to
deliver the annual financial statements described therein for the fiscal year
ended December 31, 2000 (the "Year 2000 Financial Statements") within 90 days
after the end of such year; provided that the Year 2000 Financial Statements are
delivered to the Agent on the date hereof and (b) the Borrower's noncompliance
with Section 9.7 of the Credit Agreement in that the report of the Accountants
with respect to the Year 2000 Financial Statements will be a qualified report.
The Borrower agrees that after the date hereof it will comply fully with these
and all other provisions of the Credit Agreement and the Other Documents, which
remain in full force and effect, irrespective of this waiver. Except as
expressly described above, this waiver shall not constitute: (a) a modification
or an alteration of the terms, conditions or covenants of the Credit Agreement
or any Other Documents or (b) a waiver, release or limitation upon the Agent's
exercise of any of its rights and remedies thereunder, which shall not relieve
or release the Borrower or any guarantor in any way from any of its respective
duties, obligations, covenants or agreements under the Credit Agreement or the
Other Documents or from the consequences of any Event of Default thereunder,
except as expressly described above. This waiver shall not obligate the Agent,
or be construed to require the Agent, to waive any other Events of Default or
defaults whether now existing or which may occur after the date of this waiver.
7. In order to induce the sole Lender and the Agent to enter into
this Amendment, the Borrower hereby represents and warrants that:
(a) after giving effect to paragraphs 2 and 6 of this Amendment,
no Default or Event of Default has occurred and is continuing;
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(b) this Amendment has been duly authorized, executed and
delivered by the Borrower and constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms;
(c) the Credit Agreement and each of the Other Documents to which
the Borrower is a party, after giving effect to this Amendment and the
transactions contemplated hereby, continue to be in full force and effect and to
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms; and
(d) the representations and warranties made by the Borrower in or
pursuant to the Credit Agreement or any Other Document, or which are contained
in any certificate, document or financial or other statement furnished at any
time under or in connection herewith or therewith, are each true and at in all
material respects on and as of the date hereof, as though made on and as of such
date.
8. This Amendment shall become effective as of the date above
upon receipt by the Agent of two (2) copies of this Amendment executed by the
Borrower.
9. The Borrower hereby confirms that all liens granted on the
Collateral shall continue unimpaired and in full force and effect.
10. This Amendment may be executed in several counterparts, each
of which, when executed and delivered, shall be deemed an original, and all of
which together shall constitute one agreement. Any signature delivered by a
party by facsimile transmission shall be deemed to be an original signature
hereto.
11. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York applied to contracts to be
performed wholly within the State of New York, without giving effect to the
conflicts of law rules that would defer to the substantive laws of another
jurisdiction. This Amendment shall be binding upon and inure to the benefit of
the Borrower, the Lenders and the Agent, and their respective successors and
permitted assigns.
12. From and after the effectiveness hereof, all references to
the Credit Agreement in the Other Documents shall mean the Credit Agreement as
amended and modified by this Amendment.
13. Except as amended and otherwise modified by this Amendment,
the Credit Agreement and the Other Documents shall remain in full force and
effect in accordance with their respective terms. Except as expressly provided
herein, this Amendment shall not constitute an amendment, waiver, consent or
release with respect to any provision of the Credit Agreement or any Other
Document, a waiver of any Default or Event of Default thereunder, or a waiver or
release of any of the Agent's or any Lender's rights or remedies (all of which
are hereby reserved). The Borrower expressly ratifies and confirms the waiver of
jury trial and other provisions of Section 12.3 of the Credit Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
ATTEST: SWANK, INC.
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: President
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PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: VP
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