FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT is dated as of the 24th day of November, 1997 and is by and
between SUMMIT BANK (as successor to United Jersey 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, (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 definition of "Conversion Date" which appears in Section
1.1 is amended to read as follows:
"Conversion Date" shall mean December 1, 2000, or, if earlier, the
date upon which the Borrower shall, in accordance with the terms
hereof, reduce the Commitment to zero.
2.2 The definition of "Maturity Date" which appears in Section 1.1
is amended to read as follows:
"Maturity Date" shall mean the date which is the fourth
anniversary of the Conversion Date.
2.3 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 (a) $35,000,000 for
the fiscal year ending February 28, 1998 and each of the three
fiscal years thereafter and (b) $40,000,000 for the fiscal year
ending March 2, 2002 and each fiscal year thereafter; provided,
however, that (1) the foregoing shall be increased in each fiscal
year by an amount equal to the net cash proceeds received by the
Borrower from the sale of capital assets (as determined in
accordance with GAAP) during such fiscal year and (2) to
the extent that the amount of Capital Expenditures made by the
Borrower and its subsidiaries during any fiscal year ending on or
after February 28, 1998 is less than the amount permitted for such
fiscal year pursuant to the foregoing, such amount (the "Rollover
Amount") may be carried forward and utilized to make Capital
Expenditures in excess of the amount permitted by the foregoing in
the succeeding fiscal years."
2.4 Section 6.17 is amended by deleting the reference to "October 2,
1993" which appears in paragraph (b) therein and inserting "August 30, 1997" in
its place.
3. Substitute Note. Concurrently herewith, the Borrower shall
execute and deliver to the Bank a substitute revolving credit note (the
"Substitute Note") which shall supersede, and be in substitution for, the
revolving credit note (the "Prior Note") executed and delivered pursuant to the
provisions of Section 2.3 of the Credit Agreement and shall be the "Note" as
defined and described in the Credit Agreement for all purposes. 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.
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) Except as otherwise disclosed in writing to the Bank, 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) Except as otherwise disclosed in writing to the Bank, 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) 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.
(g) 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.
5. 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.
6. 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.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this
Amendment as of the date above written.
SUMMIT BANK
By: Xxxxx X. Xxxx
------------------
Vice President
SYMS CORP
Attest:
Xxxxxx X. Xxxxxxx
----------------- By: Xx Xxxx
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SUBSTITUTE REVOLVING CREDIT NOTE
November 24, l997
$40,000,000
FOR VALUE RECEIVED, the undersigned, SYMS CORP., a New Jersey
corporation (the "Borrower") hereby unconditionally promises to pay on or before
the Conversion Date (unless the indebtedness evidenced hereby shall be converted
into the Term Loan), to the order of SUMMIT BANK, a banking institution of the
State of New Jersey (the "Bank"), at the office of the Bank located at 000 Xxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, or at such other location as the Bank shall
designate, in lawful money of the United States of America and in immediately
available fluids, the principal amount of the lesser of (i) $40,000,000 or (ii)
so much thereof as shall have been advanced (the "Advances") by the Bank to the
Borrower pursuant to that certain Revolving Credit Agreement between the
Borrower and the Bank dated December 1, 1993, as amended by the First Amendment
to Revolving Credit Agreement dated the date hereof (as amended, the "Credit
Agreement"). Terms defined in the Credit Agreement shall have the same meaning
when used herein. All of the terms and provisions of the Credit Agreement are
incorporated herein by reference as if set forth at length herein.
The Borrower further agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time as hereinafter
provided. Except as hereinafter provided, the unpaid principal amount hereof
shall bear interest commencing with the date hereof at a fluctuating rate per
annum equal to the Floating Rate.
The Borrower may elect to have all or any portion of the
outstanding principal balance of this Note, in an amount equal to or greater
than $500,000 (and, if greater, in additional increments of $100,000), bear
interest at the LIBOR Rate or at the Secondary CD Based Rate for any Interest
Period, to the extent and in the manner provided in the Credit Agreement.
Interest shall be calculated on the basis of a 360-day year for
the actual number of days elapsed and, except for that portion of this Note
bearing interest at a Fixed Rate, shall be adjusted automatically as of the
opening of business on each day on which any change in the Base Rate or the
Federal Funds Rate shall be announced and be effective.
Except for that portion of this Note bearing interest at a Fixed
Rate, installments of accrued interest only shall be due and payable hereon
quarterly, in arrears, with the first such installment being due and payable on
the first Business Day of the first calendar quarter following the date hereof,
and the remainder of such quarterly installments of interest being due and
payable on the first Business Day of each and every calendar quarter thereafter
until this Note shall have been paid in full.
The Borrower shall pay (i) the outstanding principal amount of each Fixed Rate
Loan on each Fixed Rate Interest Payment Date applicable thereto and (ii) all
unpaid interest accrued on such Fixed Rate Loan on the first Business Day of
each calendar quarter following the making of such Fixed Rate Loan and on the
Fixed Rate Interest Payment Date; provided, however, that if any Fixed Rate
Interest Payment Date shall not be a Business Day, then such payment shall be
made on the next succeeding Business Day. unless, with respect to that portion
of this Note which
bears interest at a LIBOR Rate, the next such succeeding Business Day falls in
the next calendar month, in which case such payment shall be made in the next
preceding Business Day.
All Advances made by the Bank to the Borrower hereunder may be
noted by the Bank on any schedule or other record annexed hereto or otherwise so
designated, and the Bank is authorized to make such notations, which shall be
Prima facia evidence of the principal amount outstanding hereunder at any time;
provided, however, that any failure to make such a notation (or any error in
notation) shall not limit or otherwise affect the obligation of the Borrower
hereunder which are and shall remain absolute and unconditional.
The Borrower agrees to pay to the Bank the commitment fee provided
for in the Credit Agreement.
The Borrower shall pay to the Bank a late charge of five percent
(5%) of any amount due hereunder or under the Credit Agreement if such amount is
not received by the Bank within ten calendar days after the date it is due;
provided, however, that such late charge shall not be less than $25 nor more
than $2,500. The acceptance by the Bank of payment of the late charge shall not
be considered an election of remedies or waiver by the Bank of any of its rights
or remedies.
The Bank may declare this Note to be immediately due and payable
if any of the following events shall have occurred and be continuing:
(1) Failure by the Borrower to (i) make any payment of principal
on this Note or under the Credit Agreement on any date when due or (ii) make any
payment of interest or commitment fee payable hereunder or under the Credit
Agreement within 15 days from any date when due; or
(2) An Event of Default shall have occurred under the Credit
agreement
Upon any nonpayment of any amount owing under this Note at its
stated or accelerated maturity, the Bank may, in addition to such other and
further rights and remedies as provided by law or under the Credit Agreement,
(i) collect interest on such overdue amount from the date of such maturity until
paid at a rate per annum equal to the Base Rate plus three (3%) percent, (ii)
setoff such amount against any deposit account maintained in the Bank by the
Borrower, and such right of setoff shall be deemed to have been exercised
immediately upon such stated or accelerated maturity even though such setoff is
not noted on the Bank's records until a later time and (iii) hold as security
any property heretofore or hereafter delivered into the custody, control or
possession of the Bank or any entity acting as agent for the Bank (other than
property contained in any safe deposit box maintained in the Bank) by any person
liable for the payment of this Note.
This Note may not be changed orally, but only by an agreement in
writing, signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
Should the indebtedness represented by this Note or any part
hereof be collected at law or in equity, or in bankruptcy, receivership, or any
other court proceeding, or should this Note be placed in the hands of attorneys
for collection upon default, the Borrower agrees to pay, in addition to the
principal and interest due and payable hereon, all reasonable costs of
collecting or attempting to collect this Note, including reasonable attorneys'
fees and expenses.
This Note shall be and remain in full force and effect and in no
way impaired until the actual payment thereof to the Bank, its successors or
assigns.
Anything herein to the contrary notwithstanding, the obligations
of the Borrower under this Note shall be subject to the limitation that payments
of interest shall not be required to the extent that receipt of any such payment
by the Bank would be contrary to provisions of law applicable to the Bank
limiting the maximum rate of interest which may be charged or collected by the
Bank.
The Borrower and all endorsers and guarantors of this Note hereby
waive presentment, demand for payment, protest and notice of dishonor of this
Note.
This Note is binding upon the Borrower and its successors and
assigns and shall inure to the benefit of the Bank and its successors and
assigns.
This Note and the rights and obligations of the parties hereto
shall be subject to and governed by the laws of the State of New Jersey.
IN WITNESS WHEREOF, the undersigned has caused this Revolving
Credit Note to be duly executed by its authorized officers, as of the day and
year above written.
ATTEST: SYMS CORP.
By: Xxxxxx X. Xxxxxxx By: Xx Xxxx
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Title: Vice President Title: Chairman
