EXHIBIT 10.47
SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND FIRST
AMENDMENT TO PROMISSORY NOTE
This AMENDMENT is dated as of the 19th day of August, 2002 and is by and
between FLEET NATIONAL 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").
WITNESSETH:
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
further amended by that certain Second Amendment to Revolving Credit Agreement
dated as of May 27, 2000, as further amended by that certain Third Amendment to
Revolving Credit Agreement dated as of November 25, 2000, and as further amended
by that certain Fourth Amendment to Revolving Credit Agreement dated as of May
4, 2001, and as further amended by that certain Fifth Amendment to Revolving
Credit Agreement dated as of May 3, 2002 (as amended, the "Credit Agreement");
and
WHEREAS, in connection with the Credit Agreement, the Borrower executed a
replacement promissory note in favor of the Bank dated May 3, 2002 in the face
amount of $20,000,000 (the "Note"); and
WHEREAS, the Borrower has requested that the Bank amend, and the Bank has
agreed to amend certain provisions of the Agreement and to amend the maturity of
the Note.
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 to Credit Agreement. The Credit Agreement is hereby
amended as follows:
(a) The definition of "Maturity Date" which appears in Section
1.1 is amended to read as follows: " `Maturity Date' shall mean July
31, 2003".
3. Amendment to Note. The maturity date of the Note is amended by
replacing the date "May 2, 2003" the first time it appears with the date
"July 31, 2003."
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4. 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).
(b) 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 asset~ 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
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required in connection with the execution, delivery, performance or
validity of the Amendment Documents or the transactions contemplated
thereby.
5. 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.
6. 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.
7. 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.
8. 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.
FLEET NATIONAL BANK
By: /s/ Xxxxxxx XxXxxxxx
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Name: Xxxxxxx XxXxxxxx
Title: Vice President
SYMS CORP.
Attest:
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President & CFO
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