EXHIBIT 4.01.9
EIGHTH AMENDMENT TO REVOLVING CREDIT
AND SECURITY AGREEMENT
THIS EIGHTH AMENDMENT TO REVOLVING CREDIT AND SECURITY
AGREEMENT (this "Amendment") is made as of May 7, 2002, among
SWANK, INC., a corporation organized under the laws of the
State 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, the Fifth Amendment
to Revolving Credit and Security Agreement dated as of April 27,
2001, the Sixth Amendment to Revolving Credit and Security
Agreement dated as of June 8, 2001, and the Seventh Amendment to
Revolving Credit and Security Agreement dated as of July 16, 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. The definition of "Maximum Revolving Advance Amount" in
Section 1.2 of the Credit Agreement (last amended in the Seventh
Amendment to Revolving Credit and Security Agreement) is hereby
amended to add the following immediately after the phrase "twenty-
five million dollars ($25,000,000) at all other times after the
sale of the Women's Jewelry Business":
"until May 7, 2002 and (c) "twenty-three million dollars
($23,000,000) at all other times on and after May 7, 2002."
3. The definition of "Maximum Seasonal Advance Amount" in
Section 1.2 of the Credit Agreement is hereby amended to add the
following at the end thereof:
"The Maximum Seasonal Advance Amount set forth in the
foregoing sentence shall be increased by the applicable
additional amount (such additional amount, the
"Seasonal Over Advance Amount" and each Advance made
under the Seasonal Over Advance Amount, a "Seasonal
Over Advance") for the applicable period set forth
below; provided that no such increase shall be made
unless the Agent shall have received the unconditional,
unsecured, joint and several personal guaranty of
Xxxxxxx Xxxxx and Xxxx Xxxxx (the "Xxxxx Guaranty")
limited in amount to $750,000 (plus interest from the
date of demand for payment and costs of collection) to
secure repayment of Seasonal Over Advances. The Tulin
Guaranty must remain in place as long as any portion of
any Seasonal Over Advance remains outstanding. The
Seasonal Over Advance Amount shall be $1,500,000 for
the period from July 1, 2002 through October 15, 2002.
No Seasonal Over Advance shall be permitted after
October 15, 2002."
4. Section 6.10 of the Credit Agreement is hereby amended
to delete the final date and amount (for December 31, 2001) at
the end of the table contained therein and to add the following
at the end of such table:
"Quarter Minimum Tangible
Ending Net Worth
December 31, 2001 $3,800,000
March 31, 2002 $2,900,000
June 30, 2002 $1,900,000
September 30, 2002 $2,600,000
December 31, 2002 $4,700,000"
5. The first sentence of Section 13.1 of the Credit
Agreement (last amended in the Fifth Amendment to Revolving
Credit and Security Agreement) is hereby amended to delete "June
25, 2002" and to insert "June 25, 2003" in lieu thereof.
6. The Borrower hereby releases any claims that the
Borrower has or could have had against the Agent and Lender with
respect to the reduction in the Maximum Revolving Advance Amount
from twenty-five million dollars ($25,000,000) to twenty-three
million dollars ($23,000,000).
7. In its March 19, 2002 letter to the Borrower, among
other things, the Agent agreed to grant, and the Agent hereby
grants, a waiver of the Borrower's non-compliance with Section
6.10 of the Credit Agreement for the quarter ended December 31,
2001 and of any Event of Default that would otherwise result from
said violation of said Section as stated. The Borrower agrees
that it will comply fully with said Section 6.10 (as amended by
this Agreement) 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.
8. The Borrower has heretofore paid Twenty-Five Thousand
Dollars ($25,000.00) to the Agent and Lender as a waiver fee for
waiving compliance with Section 6.10 of the Credit Agreement, as
set forth in the Agent's March 19, 2002 letter to the Borrower
and Section 7 above. Contemporaneously herewith, the Borrower
shall pay a one-time fee of Twenty-Five Thousand Dollars
($25,000.00) in immediately available funds to the Agent and
Lender as an extension fee for extending the maturity of the
Revolving Credit Facility, as set forth in Section 5 above.
9. 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 and complying with the
provisions of this Amendment, no Default or Event of Default has
occurred and is continuing;
(b) that the Tulin Guaranty has been approved by its
Board of Directors and that Borrower has undertaken all
notification and other filings and submission as may be required
of Borrower under any and all applicable federal and state laws,
rules and regulations and under any and all applicable stock
exchange rules and regulations with respect to the Tulin
Guaranty, this Amendment, and as otherwise required of Borrower.
(c) 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;
(d) 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
(e) 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 correct in
all material respects on and as of the date hereof, as though
made on and as of such date.
(10) This Amendment shall become effective as of the
date above upon receipt by the Agent of (a) two (2) copies of
this Amendment executed by the Borrower and (b) the extension fee
referred to in the second sentence of Section 8 above.
(11) The Borrower hereby confirms that all liens
granted on the Collateral that have not previously been expressly
released in writing shall continue unimpaired and in full force
and effect.
(12) 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.
(13) 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.
(14) 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.
(15) 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.
[signatures on following page]
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/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: CFO
PNC BANK, NATIONAL ASSOCIATION,
As Lender and as Agent
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
