Exhibit 6 (a) (1)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment"),
dated as of May 15, 2002, is made by and among S & K FAMOUS BRANDS, INC., a
Virginia corporation (the "Company"), BRANCH BANKING AND TRUST COMPANY OF
VIRGINIA, a Virginia banking corporation ("BB&T"), and SUNTRUST BANK, a Georgia
banking corporation ("SunTrust", taken together with BB&T, the "Banks").
RECITALS:
WHEREAS, the Company has requested, and the Banks have extended, certain
credit facilities (the "Loans") to the Company, as more particularly described
in that certain Loan and Security Agreement by and among the Company and the
Banks, dated as of March 27, 2002, made a part hereof by this reference as fully
as if set out herein verbatim (such document, as same may have been heretofore
amended, being herein referred to as the "Loan Agreement"); and
WHEREAS, the Company has requested that the Banks make certain
modifications to the Loan Agreement; and
WHEREAS, the Company and the Banks, as holders and owners of the promissory
notes evidencing the Loans, mutually desire to modify and amend the provisions
of the Loan Agreement in the manner hereinafter set out, it being specifically
understood that except as herein modified and amended, the terms and provisions
of the Loan Agreement shall remain unchanged and continue in full force and
effect as therein written.
AGREEMENT:
NOW, THEREFORE, the Company and the Banks, in consideration of One Dollar
($1.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each, and each does hereby agree that the
Loan Agreement should be, and the same hereby is modified and amended as
follows:
Notwithstanding any contrary provisions contained in the Loan Agreement and
any amendments thereto, effective as of May 15, 2002 (the "Effective Date"), the
following changes shall be made:
1. The definition of "Notes" contained in Section 1.1 of the Loan
Agreement is hereby amended and modified by deleting the definition of "Notes"
in its entirety and inserting the following text:
"Notes" means the Revolving Notes defined in Section 2.2, the
Line of Credit Notes defined in Section 3.2, and the Term
Notes defined in Section 4.2 of this Agreement, together with
any amendments, restatements, modifications, extensions or
substitutions thereof.
2. Subsection 3.1 of the Loan Agreement is hereby deleted in its entirety
and the following text shall be inserted in its place:
3.1 Amount. The Bank agrees to make a Line of Credit Loan (the "Line
of Credit Loan") to the Company, in a principal amount (the "Line of
Credit Loan Amount") equal to the amount of the Tender Offer, plus all
expenses, fees and other costs associated with closing the Tender
Offer and the Loans, minus the Term Loan Amount, as such term is
hereinafter defined, but in no event shall the combined amount of the
Line of Credit Loan Amount and the Term Loan Amount exceed
$20,000,000.00; provided, however, that if the Line of Credit Loan is
funded prior to the funding of the Term Loan, the Line of Credit Loan
Amount may equal the amount of the Tender Offer (plus all expenses,
fees and other costs associated with closing the Tender Offer and the
Loans); provided, further, that if the Line of Credit Loan is funded
prior to the funding of the Term Loan and the Line of Credit Loan
Amount equals the amount of the Tender Offer (plus all expenses, fees
and other costs associated with closing the Tender Offer and the
Loans), then the Company shall use the entire principal amount
advanced under the Term Loan to (i) pay down the Line of Credit Loan,
and (ii) refinance the debt associated with the lien on the Property
in the manner described in Section 5.4(e) hereof.
3. Subsection 5.4(j) of the Loan Agreement is hereby deleted in
its entirety and the following text shall be inserted in its place:
(j) In the event that the Line of Credit Loan is funded prior
to the Term Loan, the Company shall use the entire principal
amount advanced under the Term Loan to: (i) pay down the Line
of Credit Loan; and (ii) refinance the debt associated with
the lien on the Property in the manner described in Section
5.4(e) hereof.
IT IS MUTUALLY AGREED by and between the parties hereto that this First
Amendment shall become a part of the Loan Agreement by reference and that
nothing herein contained shall impair the security now held for said Loans, nor
shall waive, annul, vary or affect any provision, condition, covenant or
agreement contained in the Loan Agreement except as herein amended, nor affect
or impair any rights, powers or remedies under the Loan Agreement as hereby
amended. Furthermore, the Banks do hereby reserve all rights and remedies they
may have as against all parties who may be or may hereafter become primarily or
secondarily liable for the repayment of the indebtedness described in the Loan
Agreement, as hereby amended.
The execution and delivery hereof shall not constitute a novation or
modification of the lien, encumbrance or security for the Loans. The Company
expressly agrees that the Loan Agreement and Loans are in full force and effect
and that Company has no right to setoff, counterclaim or defense to the payment
thereof.
Any reference to the Loan Agreement contained either in the Loan Agreement
or in the loan documents related to the Loans, shall hereinafter be deemed to be
a reference to such document as amended by this Amendment.
This Amendment shall be governed by and construed in accordance with the
laws of the Commonwealth of Virginia without regard to principles of conflict of
laws.
This Amendment shall be binding upon and inure to the benefit of any
assignee or the respective heirs, executors, administrators, successors and
assigns of the parties hereto.
This Amendment may be executed in any number of counterparts, each of which
shall be an original but all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute any of such
counterparts.
IN WITNESS WHEREOF, this instrument has been executed under seal by the
parties hereto and delivered on the date and year first above written.
COMPANY:
S & K FAMOUS BRANDS, INC., a Virginia
corporation
By /s/ Xxxxxx X. Xxxxxxx (SEAL)
---------------------------------
Name Xxxxxx X. Xxxxxxx
Title EVP & CFO
BB&T:
BRANCH BANKING AND TRUST COMPANY
OF VIRGINIA, a Virginia banking corporation
By /s/ R. Xxxxxxx Xxxx (SEAL)
--------------------------------
R. Xxxxxxx Xxxx, Senior Vice President
SUNTRUST:
SUNTRUST BANK, a Georgia banking corporation
By /s/ Xxxxxxx X. Xxxxxxxx (SEAL)
--------------------------------
Xxxxxxx X. Xxxxxxxx, Senior Vice President
