SEVENTH AMENDMENT TO REVOLVING CREDIT
AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO REVOLVING CREDIT AND SECURITY
AGREEMENT (this "Amendment") is made as of July 16, 2001, 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, and the Sixth Amendment to Revolving Credit and Security
Agreement dated as of June 8, 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 1.2 of the Credit Agreement (previously amended in
the Fourth Amendment to Loan Documents) shall be amended by this
Amendment contemporaneously with the sale of Borrower's Women's
Jewelry Business (as defined below) to change the definition of
"Maximum Revolving Advance Amount" from "thirty million dollars
($30,000,000) at all other times subsequent to December 31, 2000"
to "twenty-five million dollars ($25,000,000) at all times after
the sale of the Women's Jewelry Business."
3. Section 1.2 of the Credit Agreement shall be amended
contemporaneously with the sale of the Women's Jewelry Business
to delete the last paragraph of the definition of "Collateral" in
its entirety and replace it with the following:
"Notwithstanding the foregoing, the
term "Collateral" shall not include
(i) any property or assets contributed
or otherwise transferred to the Costa
Rican Venture from time to time in
accordance with the terms of this
Agreement, (ii) any amount due to
Borrower in respect of loans or
advances made by Borrower to the Costa
Rican Joint Venture (other than
prepayments made on account of
products to be manufactured by the
Costa Rican Joint Venture for
Borrower) from time to time in
accordance with other terms of this
Agreement, and any contract rights of
Borrower in connection therewith,
(iii) the shares of capital stock and
other ownership interests in the Costa
Rican Joint Venture owned by Borrower,
(iv) the License Agreements, or any
right, title or interest therein,
except to the extent that such right,
title or interest is expressly
permitted to be assigned by Borrower
thereunder, (v) life insurance
contracts, including, without
limitation, those listed on Schedule
1.2(b) hereto, purchased by Borrower
on the lives of certain of its
employees to fund death benefits for
active employees and post-retirement
death benefits, Borrower's 1987
Deferred Compensation Plan and
Borrower's 1993 Deferred Compensation
Plan, as well as any life insurance
contracts subsequently purchased by
Borrower in the ordinary course of
business pursuant to Borrower's
existing benefit programs, and all
cash proceeds of such life insurance
contracts, and (vi) all of the
property identified in Section 7 of
the Seventh Amendment to Revolving
Credit and Security Agreement as being
released thereby."
4. Borrower has notified Agent that Borrower has elected to
sell certain assets of Borrower's Women's Jewelry Division
("Women's Jewelry Business") to K&M Associates LP ("Buyer") in
July 2001, the sale of which was contemplated by Section 6.12 to
the Credit Agreement (as added under the Fifth Amendment to
Revolving Credit and Security Agreement). Borrower represents,
warrants and agrees that, at the closing in which the sale of
Borrower's Women's Jewelry Business is consummated, Borrower
shall remit to Agent, by wire transfer, the amount of the gross
proceeds of the sale of the Women's Jewelry Business, less the
reasonable costs of (i) any broker's commissions payable with
respect to such sale, (ii) applicable taxes and (iii) other
direct expenses of the sale. Such amount shall be remitted by or
on behalf of Seller to Agent and shall be applied by Agent to
reduce the total of the Advances. It is expressly understood and
agreed by Borrower that Borrower shall forward a letter signed by
the CEO or CFO of Borrower setting forth the costs associated
with the sale of the Women's Jewelry Business to Agent for
Agent's review in advance of funding to confirm the
reasonableness of the costs noted above funding from the gross
proceeds as deductions against the gross proceeds of Agent's
Collateral being released. Borrower also shall supply Agent with
a copy of the closing statement from the sale of the Women's
Jewelry Business from the closing.
5. Section 6.12 of the Credit Agreement is hereby amended to
add the following sentence at the end thereof:
"Provided the conditions set forth in
the Seventh Amendment to Revolving
Credit and Security Agreement are met,
Agent and the sole Lender consent to
the sale of Borrower's Women's Jewelry
Business."
6. The Borrower hereby releases any claims that Borrower has or
could have had against the Agent and Lender with respect to the
sale of the Women's Jewelry Business, the release of certain
Collateral arising out of or associated with the Women's Jewelry
Business, and the reduction in the Maximum Revolving Advance
Amount from thirty million dollars ($30,000,000) to twenty-five
million dollars ($25,000,000).
7. Under section 4.1 of the Credit Agreement, Borrower has
granted Agent and Lender a security interest in the Collateral to
secure prompt payment and performance of the Obligations. In
furtherance of such grant, Borrower executed four original
Uniform Commercial Code Financing Statements (the "Original
Financing Statements") in favor of Agent as follows: two UCC-1's
filed with the Secretary of Commonwealth of the Commonwealth of
Massachusetts on July 29, 1998 as Nos. 567647 and 567648; one UCC-
1 filed with Attleboro City on August 13, 1998 as No. 354-K; and
one UCC-1 filed with Taunton City on August 14, 1998 as No.
28872. In furtherance of its consent to the sale of Borrower's
Women's Jewelry Division, Agent, for itself as Agent, for the
sole Lender, and as "Secured Party" in the Original Financing
Statements, hereby releases from the Collateral described in the
Original Financing Statements all of the property as set forth
below, whether now owned or hereafter acquired or created, and
wherever located:
(a) all Receivables arising out of or related to women's costume
jewelry products under (i) the License Agreement effective as of
January 1, 2000 (as amended and supplemented to date, the "Xxxx
Xxxxx License Agreement") between Debtor and Xxxx Xxxxx, a
Division of Xxxxxx A.S.L., Ltd., (ii) the License Agreement
effective August 15, 2000 (the "Guess License Agreement"),
between Debtor and Guess Licensing, Inc. and (iii) women's
costume jewelry private label programs of Sears Xxxxxxx and Co.
(with regard to women's costume jewelry products under the trade
name "Apostrophe") and Shopko Department stores (with regard to
women's costume jewelry products under the trademarks "90 Park"
and "Tivoli") (collectively the "Private Label Programs");
(b) all manufacturing molds and models constituting Equipment
used in the design and manufacture of women's costume jewelry
under the Xxxx Xxxxx License Agreement, the Guess License
Agreement and the Private Label Programs;
(c) all Inventory (including, without limitation,
finished goods, supplies, labels and sales and promotional
materials and brochures) relating to women's costume jewelry
products under the Xxxx Xxxxx License Agreement, the Guess
License Agreement and the Private Label Programs, including all
such Inventory on order or in transit;
(d) all General Intangibles relating to women's
costume jewelry products under the Xxxx Xxxxx License Agreement,
the Guess License Agreement and the Private Label Programs;
(e) all of Borrower's right, title and interest in and
to (i) its goods and other property, including, without
limitation, merchandise, returned or rejected by Customers,
relating to or securing any of the Receivables set forth in
paragraph (a) of this Section 7; (ii) all of Borrower's rights as
a consignor, a consignee, an unpaid vendor, mechanic, artisan, or
other lien or, including stoppage in transit, setoff, detinue,
replevin, reclamation and repurchase relating to the items set
forth in paragraphs (a), (b), (c), (d) and (e) of this Section 7,
(iii) all additional amounts due to Borrower from any Customer
relating to the Receivables set forth in paragraph (a) of its
schedule; (iv) other property, including warranty claims,
relating to the items set forth in (a), (b), (c), (d) and (e) of
this Section 7; (v) all of Borrower's contact rights, rights of
payment which have been earned under a contract rights,
instruments, documents, chattel paper, warehouse receipts,
deposit accounts, money, securities and investment property
relating to the items set forth in paragraphs (a), (b), (c), (d)
and (e) of this Section 7; (iv) if and when obtained by Borrower,
all property of third parties in which Borrower has been granted
a lien or security interest as security for the payment or
enforcement of the Receivables set forth in paragraph (a) of this
Section 7; and (vii) any other goods or property now owned or
hereafter acquired with respect to the items of property set
forth in (a), (b), (c), (d) or above in (e) of this Section 7 in
which Borrower has expressly granted a security interest or may
in the future grant a security interest to the Secured Party
under the Credit Agreement or under any Other Documents, or in
any amendment or supplement thereto.
(f) all proceeds and products of the items set forth
in paragraphs (a), (b), (c), (d) and (e) of this Section 7 in
whatever form.
Capitalized terms used but not defined herein shall have the
respective meanings assigned to such terms in the Original
Financing Statements. Agent agrees that the Collateral as
described above that is being released is being released from the
grant of security interest as set forth in the Credit Agreement
and the various original UCC-1 financing statements filed against
such Collateral in various jurisdictions. Agent authorizes the
filing in Delaware of in lieu financing statements under the
Revised Article 9 of the Uniform Commercial Code ("Revised
Article 9") and agrees to execute UCC-3 partial releases (or its
equivalent under Revised Article 9) prepared by Borrower or its
counsel comparable to the UCC-3 partial releases being provided
for the Massachusetts UCC-1 financing statements to the extent
reasonably necessary to release the Collateral in Delaware, and
in other jurisdictions where UCC-1 financing statements have been
filed against such Collateral. No Collateral other than as
described in this Section 7 is being released under this
Amendment by Agent.
8. 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 the sale of Borrower's
Women's Jewelry Business and complying with the provisions of
this Amendment, no Default or Event of Default has occurred and
is continuing;
(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.
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, except as expressly
released hereby, 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.
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.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: President
PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
