Exhibit 10.49
SEVENTH AMENDMENT TO REVOLVING CREDIT AGREEMENT AND
SECOND AMENDMENT TO PROMISSORY NOTE
This AMENDMENT is dated as of the 23rd day of July, 2003 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, as further amended by
that certain Fourth Amendment to Revolving Credit Agreement dated as of May 4,
2001, as further amended by that certain Fifth Amendment to Revolving Credit
Agreement dated as of May 3, 2002, and as further amended by that certain Sixth
Amendment to Revolving Credit Agreement and First Amendment to Promissory Note
dated as of August 19, 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 October 29,
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
"October 29, 2003."
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 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 therefore, 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 X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: AVP
SYMS CORP.
Attest: /s/ Xxx Xxxxxxxxx
-----------------
Xxx Xxxxxxxxx
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: VP & CFO
