EXHIBIT 10
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
This SECOND AMENDMENT is dated as of the 27th day of May, 2000 and is by
and between SUMMIT BANK having an office at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 (the "Bank"), and SYMS CORP., a New Jersey corporation having an
address at Xxx Xxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Borrower").
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank have entered into a Revolving Credit
Agreement dated as of December 1, 1993, as amended by that certain First
Amendment to Revolving Credit Agreement dated as of November 24, 1997 (as
amended, the "Credit Agreement"); and
WHEREAS, the Borrower and the Bank have agreed to amend certain terms of
the Credit Agreement as more fully described herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Definitions. Except as otherwise defined herein, terms defined in
the Credit Agreement shall have the same meaning when used herein.
2. Amendment of Credit Agreement. The Credit Agreement is hereby
amended as follows (all Section references are to the corresponding
Sections of the Credit Agreement):
2.1 The definitions of "Consolidated Fixed Charge Coverage Ratio,"
"Consolidated Fixed Charge," "Conversion Date," "Notes," "Rollover Amount"
and "Term Note" which appear in Section 1.1 are hereby deleted in their
entirety.
2.2 The definition of "Commitment" which appears in Section 1.1 is
amended to read as follows:
"Commitment" shall mean $30,000,000, or such lower amount to
which the Commitment shall be reduced by the Borrower in
accordance with the terms hereof."
2.3 The definition of "Maturity Date" which appears in Section 1.1 is
amended to read as follows:
"Maturity Date" shall mean May 4, 2001.
2.4 The last sentence of Section 2.2 is amended to read as follows:
"If not sooner paid, all principal amounts outstanding under the
Revolving Credit Note and all accrued and unpaid interest thereon
shall be due and payable on the Maturity Date."
2.5 Sections 2.3 and 2.4 are amended by deleting such Sections in
their entirety and substituting "Intentionally Deleted" in lieu thereof.
2.6 Section 2.5 is amended by deleting the reference to
"three-quarters of one percent (3/4%)" which appears in paragraph (a)
therein and inserting "one and one-quarter percent (1 1/4%)" in its place.
2.7 Section 2.5 is amended by deleting the reference to
"seven-twentieth of one percent (7/20%)" which appears in paragraph (b)(i)
therein and inserting "one percent (1%)" in its place.
2.8 Section 2.5 is amended by deleting the reference to "one-half of
one percent (1/2%)" which appears in paragraph (b)(ii) therein and
inserting "one and one-half percent (1 1/2%)" in its place.
2.9 Section 2.6 is amended by deleting the fourth sentence which
appears in paragraph (a) therein in its entirety.
2.10 Section 2.9 is amended by deleting the reference to "1/8 of 1%
per annum" which appears therein and inserting "3/8 of 1% per annum" in its
place.
2.11 Section 4.3 is amended by deleting such Section in its entirety.
2.12 Section 6.11 is amended by deleting the Consolidated Fixed Charge
Coverage Ratio covenant which appears therein and inserting the following
covenant in its place:
"EBITDA. The Borrower's Consolidated EBITDA, determined on a
trailing four-quarters basis, shall not be less than (a)
$12,500,000 as at the fiscal quarter ending May 27, 2000, and (b)
$14,500,000 as at the fiscal quarters ending August 26, 2000,
November 25, 2000 and March 3, 2001."
2.13 Section 6.12 is amended to read as follows:
"Capital Expenditures. The Borrower shall not permit the sum of
Capital Expenditures plus Dividends to exceed $10,000,000 for the
fiscal year ending March 3, 2001."
2.14 Section 6.17 is amended by deleting the reference to "August 30,
1997" which appears in paragraph (b) therein and inserting "November 27,
1999" in its place.
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2.15 Article VI is amended by adding the following Section therein
immediately after Section 6.20 thereof:
"6.21 Payment of Revolving Credit Note. Upon at least thirty (30)
days prior written notice to the Bank, the Borrower shall, at any
time from February 1, 2001 through and including April 4, 2001
(the exact date to be selected by the Borrower), pay to the Bank
the entire outstanding principal amount of the Revolving Credit
Note as of such date selected (the "Clean Down Date"), together
with all accrued interest thereon. Commencing on the Clean Down
Date and continuing for a period of thirty (30) consecutive days
thereafter, the Borrower shall not be permitted to request, and
the Bank shall not be obligated to make, any Advances hereunder.
The failure by the Borrower to reduce the outstanding principal
balance of the Revolving Credit Note to zero on the Clean Down
Date shall constitute an Event of Default hereunder."
2.16 All references in the Credit Agreement to "Conversion Date" are
hereby amended to mean "Maturity Date."
2.17 All provisions in the Credit Agreement implying that there are
two Notes, such as, but not limited to, the terms "Notes," "each Note" and
"a Note" are hereby amended to mean only the Revolving Credit Note.
3. Waiver. The Bank hereby waives as of February 26, 2000, on a
one-time basis, the Borrower's compliance with the consolidated fixed
charge coverage ratio covenant set forth in Section 6.11 of the Credit
Agreement for the Borrower's four consecutive fiscal quarters ended
February 26, 2000.
4. Substitute Note. Concurrently herewith, the Borrower shall execute
and deliver to the Bank a second substitute revolving credit note (the
"Substitute Note") which shall supersede, and be in substitution for, the
substitute revolving credit note dated November 24, 1997 (the "Prior Note")
executed and delivered by the Borrower to the Bank. It is expressly agreed
that the execution and delivery of such Substitute Note shall not evidence
or represent a refinancing, repayment, accord and satisfaction or novation
of the indebtedness evidenced by the Prior Note. As soon as practicable
following its receipt of the Substitute Note, the Bank will return the
Prior Note to the Borrower for cancellation.
5. Representations and Warranties. In order to induce the Bank to
enter into this Agreement and amend the Credit Agreement as provided
herein, the Borrower hereby represents and warrants to the Bank that:
(a) All of the representations and warranties of the Borrower set
forth in the Credit Agreement are true, complete and correct in all
material respects on and as of the date hereof with the same force and
effect as if made on and as of the date hereof and as if set forth at
length herein (except that representations and warranties which are
expressly stated to be as of a certain date are true, complete and
correct in all material respects as of such certain date).
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(b) After giving effect to the waiver described in Paragraph 3
hereof, no Default or Event of Default presently exists and is
continuing on and as of the date hereof.
(c) Since the date of the Borrower's most recent financial
statements delivered to the Bank, no material adverse change has
occurred in the business, assets, liabilities, financial condition or
results of operations of the Borrower, and no event has occurred or
failed to occur which has had, or reasonably may be expected to have,
a material adverse effect on the business, assets, liabilities,
financial condition or results of operations of the Borrower.
(d) The Borrower has full power and authority to execute, deliver
and perform any action or step which may be necessary to carry out the
terms of this Agreement and all other agreements, documents and
instruments executed and delivered by the Borrower to the Bank
concurrently herewith or in connection herewith (collectively, the
"Amendment Documents"); each Amendment Document to which the Borrower
is a party has been duly executed and delivered by the Borrower and is
the legal, valid and binding obligation of the Borrower enforceable in
accordance with its terms, subject to any applicable bankruptcy,
insolvency, general equity principles or other similar laws affecting
the enforcement of creditor's rights generally.
(e) The execution, delivery and performance of the Amendment
Documents will not (i) violate any provision of any existing law,
statute, rule, regulation or ordinance (ii) conflict with, result in a
breach of or constitute a default under (a) any order, judgment, award
or decree of any court, governmental authority, bureau or agency, or
(b) any mortgage, indenture, lease, contract or other agreement or
undertaking to which the Borrower is a party or by which the Borrower
or any of its properties or assets may be bound, or (iii) result in
the creation or imposition of any lien or other encumbrance upon or
with respect to any property or asset now owned or hereafter acquired
by the Borrower.
(f) Except for such filing as may be required under the
Securities Exchange Act of 1934, as amended, which filing (if
required) shall be made by the Borrower as and when required, no
consent, license, permit, approval or authorization of, exemption by,
notice to, report to, or registration, filing or declaration with any
person is required in connection with the execution, delivery,
performance or validity of the Amendment Documents or the transactions
contemplated thereby.
6. Bank Costs. The Borrower agrees to reimburse the Bank for all
reasonable costs and expenses, including reasonable counsel fees and
disbursements, incurred by the Bank in connection with the Amendment
Documents and the transactions contemplated therein. If such amounts are
not paid within ten days of the Bank's request therefor, the Borrower
hereby authorizes the Bank to charge the Borrower's account for the amount
of such fees and expenses.
7. No Change. Except as expressly set forth herein, all of the terms
and provisions of the Credit Agreement shall continue in full force and
effect and are hereby ratified and confirmed in all respects.
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8. Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts and all such counterparts taken together shall
constitute one and the same instrument.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this Agreement
as of the date above written.
SUMMIT BANK
By: /s/ XXXXXXXXXXX X. XXXXXXXXXXX
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Xxxxxxxxxxx X. Xxxxxxxxxxx
Senior Vice President
SYMS CORP.
Attest:
/s/ XXXX X. XXXX By: /s/ XXXXX XXXX
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Xxxx X. Xxxx Name: Xxxxx Xxxx
Title: President, CEO
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