Exhibit 99.1
FIRST AMENDMENT TO LOAN AGREEMENT
This is the First Amendment (the "First Amendment") dated as of April 7,
2005 to the Loan Agreement dated as of November 5, 2003 between Israel Discount
Bank of New York (hereinafter referred to as "Lender"), a New York bank, having
an office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Syms Corp.
(hereinafter referred to as "Borrower"), a New Jersey corporation, with its
principal office located at Xxx Xxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Loan
Agreement"). All capitalized terms that are not defined herein shall have the
meanings ascribed to them in the Loan Agreement.
WHEREAS, Lender and Borrower wish to supplement and amend the Loan
Agreement as of the date hereof (the "Effective Date") by (i) increasing the
Maximum Revolving Credit Amount from $20,000,000 to $30,000,000; (ii) extending
the Commitment Termination Date to May 1, 2008; and (iii) modifying certain
other terms and conditions of the Loan Agreement.
NOW, THEREFORE, it is agreed as follows:
1. The definition of Maximum Revolving Credit Amount contained in Appendix
A of the Loan Agreement is hereby amended to read "Maximum Revolving Credit
Amount - $30,000,000.".
2. The definition of Commitment Termination Date contained in Appendix A of
the Loan Agreement is hereby amended to read "Commitment Termination Date - May
1, 2008".
3. References in the Loan Agreement to Note or Revolving Credit Note shall
be deemed to refer to the First Amended Revolving Credit Note attached hereto as
Exhibit A.
4. Section 2.5 of the Loan Agreement related to Deficiency Balance
Fees is hereby amended by deleting reference to the amount of "$250,000" and
inserting in its place and stead the amount of "$375,000".
5. Section 3.3 of the Loan Agreement related to Termination and Reduction
of the Commitment is hereby deleted in its entirety and replaced with the
following:
3.3 Mandatory and Optional Prepayments; Commitment Reduction or
Termination; Termination Fee.
3.3.1 Reduction or Termination of the Commitment. Borrower shall
have the right, upon at least two (2) Business Days' prior written or
telephonic notice (promptly confirmed in writing) to Lender, at any
time prior to the Commitment Termination Date, to terminate or from
time to time reduce the Commitment provided that the Commitment may
not be reduced to the extent that following such reduction the sum of
the aggregate unpaid principal balance of the Loans and the Lender
Letter of Credit Obligations would exceed the
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Commitment. Any notice of termination or reduction given by Borrower
shall be irrevocable unless Lender otherwise agrees in writing, and
Lender shall have no obligation to make any Loans or issue or extend
or amend any Letters of Credit on or after the termination date stated
in such notice.
3.3.2. Effect of Termination. All of the Obligations shall be
immediately due and payable upon the termination date stated in any
notice of termination of this Agreement given by Borrower pursuant to
Section 3.3.1. All undertakings, agreements, covenants, warranties and
representations of Borrower contained in the Loan Documents shall
survive any such termination and Lender shall retain all of its rights
and remedies under the Loan Documents notwithstanding such termination
until Borrower has paid the Obligations to Lender, in full, in
immediately available funds and with respect to any outstanding
Letters of Credit issued for the account of Borrower and any other
outstanding Obligations of Borrower to Lender, Lender has obtained
sufficient cash collateral or an appropriate indemnification by any
new lender.
6. Section 5.3.1 of the Loan Agreement related to Working Capital is hereby
amended by deleting reference to the amount of "$50,000,000" and inserting in
its place and stead the amount of "$55,000,000":
7. Section 5.3.3 of the Loan Agreement related to Consolidated Tangible Net
Worth is hereby amended by deleting reference to the amount of "$175,000,000"
and inserting in its place and stead the amount of "$180,000,000":
8. Section 5.3.4 of the Loan Agreement related to Capital Expenditures is
hereby amended to read as follows:
Capital Expenditures. Not permit the sum of Borrower's Capital
Expenditures plus Dividends minus Net Proceeds to exceed (i)
$15,000,000 for each fiscal year of the Borrower through February 28,
2005; and (ii) for each fiscal year thereafter, $15,000,000 plus the
Carry Forward Amount. "Carry Forward Amount" shall mean, for any
fiscal year of the Borrower, the excess, if any, of $15,000,000 over
the aggregate amount of Capital Expenditures for the immediately
preceding fiscal year.
9. The obligations of Lender under this First Amendment and the Loan
Agreement are subject to the following conditions precedent, all of which shall
be performed or satisfied in a manner in form and substance reasonably
satisfactory to Lender and its counsel:
a. The Lender shall have received the First Amended Revolving Credit
Note, duly executed by the Borrower. Promptly upon receipt of said First
Amended Revolving Credit Note, the Lender will xxxx as terminated the
Credit Note dated as of November 5, 2003 and transmit the original of said
terminated Credit Note to
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the Borrower for its records;
b. The Lender shall have received a certified (as of the Effective
Date) copy of a unanimous written consent of the executive committee of, or
resolutions of, the board of directors of the Borrower authorizing and
approving this First Amendment and the First Amended Revolving Credit Note;
c. The Lender shall have received a certificate signed by the
President, Vice President or Chief Financial Officer of the Borrower dated
as of the Effective Date, stating that:
i. The representations and warranties contained in this First
Amendment and in the Loan Documents are true and correct in all
material respects on and as of such date;
ii. No Default or Event of Default has occurred and is
continuing, or would result from the making of this First Amendment;
d. The Lender shall have received payment of the reasonable legal fees
and expenses of the Lender's counsel; and
e. The Lender shall have received payment of an extension fee in the
amount of $37,500. which the Borrower acknowledges shall have been earned
by the Lender in connection with the transactions contemplated hereby.
10. All terms and conditions of the Loan Agreement, except as modified by
this agreement are hereby affirmed and ratified.
11. The Loan Agreement, together with this First Amendment, embodies the
entire agreement and understanding between the Lender and the Borrower and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
12. This First Amendment shall be governed and construed in accordance with
the laws of the State of New York.
13. No modification or waiver of or with respect to any provision of this
First Amendment and all other agreements, instruments and documents delivered
pursuant hereto or thereto, nor consent to any departure by the Lender from any
of the terms or conditions thereof, shall in any event be effective unless it
shall be in writing and executed in accordance with the provisions of the Loan
Agreement, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. No consent to or demand
on the Borrower or any Guarantor in any case shall, of itself, entitle it, him
or her to any other or further notice or demand in similar or other
circumstances.
14. The provisions of this First Amendment are severable, and if any clause
or provision shall be held invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause or provision, or part thereof, in such jurisdiction and shall not in any
manner affect such
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clause or provision in any other jurisdiction, or any other clause or provision
in this First Amendment in any jurisdiction.
15. This First Amendment may be signed in any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
16. This First Amendment shall be binding upon and inure to the benefit of
the Borrower and its successors and to the benefit of the Lender and its
successors and assigns. The rights and obligations of the Borrower under this
First Amendment shall not be assigned or delegated without the prior written
consent of the Lender, and any purported assignment or delegation without such
consent shall be void.
IN WITNESS WHEREOF, the parties have set their hands hereto the day and the
year first above written.
SYMS CORP.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Chief Executive Officer
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Xxxxxx X. X'Xxxx
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Name: Xxxxxx X. X'Xxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
