Exhibit 10.31
First Amendment dated January 12, 1996 to the
Fifth Amended and Restated Credit Agreement.
AMENDMENT, dated as of January 12, 1996 (the "Amendment"), to
the Fifth Amended and Restated Credit Agreement dated July 31, 1994
(the "Credit Agreement"; terms not otherwise defined herein shall
be used herein as therein defined), among APPAREL AMERICA, INC., a
Delaware corporation (the "Borrower"); CONNECTICUT DEVELOPMENT
AUTHORITY ("CDA") an assignee of Chemical Bank, BINGHAMTON SAVINGS
BANK ("BINGHAMTON") an assignee of Chemical Bank, and A.I.
ASSOCIATES,INC. ("AI") (each a "Bank" and collectively the
"Banks"); and BINGHAMTON SAVINGS BANK as agent for the Banks (and
as successor agent to Chemical Bank) (in such capacity, the
"Agent" ).
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Credit Agreement
be amended to reflect changes in certain covenants made by
Borrower;
WHEREAS, the Borrower, the Agent and the Banks have agreed to
so amend the Credit Agreement on the terms set forth below;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT.
(a) Section 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions in the proper alphabetical
order:
"AGREEMENT" means the Fifth Amended and Restated Credit
Agreement dated July 31, 1994, as amended by the Amendment dated
January 12, 1996.
"SERIES H PREFERRED STOCK" means the $8.50 Preferred
Stock, $.05 par value per share, of the Borrower.
2. AMENDMENT TO SECTION 8.1 OF THE CREDIT AGREEMENT.
Subsection 8.1 (c), item (vii) is hereby amended by
inserting in line 10 thereof, immediately after the phrase "such
budget and financial plan" the phrase ", which may subsequently be
revised by Borrower from time to time,"
3. AMENDMENTS TO SECTION 8.2 OF THE CREDIT AGREEMENT.
(a) Subsection 8.2 (a) of the Credit Agreement is hereby
amended by deleting the dollar amount "$15,000,000" from item (ii)
thereof and substituting therefor the dollar amount "$23,000,000.
(b) Subsection 8.2 (h) of the Credit Agreement is hereby
amended by inserting at the end thereof, immediately after the word
"issued", the phrase ", except, however, Borrower may pay cash dividends
on its Series H Preferred Stock".
(c) Subsection 8.2 (i) of the Credit Agreement is hereby
amended by inserting at the end thereof, immediately after the word
"Stock", the phrase ", except for its Series H Preferred Stock".
(d) Subsection 8.2 (k) of the credit Agreement is hereby
amended by deleting the dollar amounts "$250,000" from the third line
thereof and "$350,000" from the seventh line thereof and substituting
therefor the dollar amounts "500,000" and "600,000" respectively, for the
fiscal year ending 7/31/96 only. Thereafter, the amounts shall revert to
$250,000 and $350,000 respectively.
4. AMENDMENTS TO SECTION 8.3 OF THE CREDIT AGREEMENT.
(a) Subsection. 8.3 (a) of the Credit Agreement is hereby
amended by deleting the table therein in its entirety and substituting
in lieu thereof the following table:
PERIOD MINIMUM DEBIT
1994 Fiscal Year $ 1,750,000
1995 Fiscal Year 2,250,000
1996 Fiscal Year 2,000,000
1997 Fiscal Year 2,500,000
1998 Fiscal Year 2,500,000
1999 Fiscal Year 2,500,000
2000 Fiscal Year 2,500,000
2001 Fiscal Year 2,500,000
(b) Subsection 8.3 (b) of the Credit Agreement is hereby
amended by deleting the dollar amount "4,000,000" from item (i) thereof
and substituting therefor the dollar amount "$2,000,000"; deleting the
dollar amount "$4,500,000" from item (i) thereof and substituting
therefor the dollar amount "$3,000,000"; deleting the dollar amount
"$5,500,000" from item (iii) thereof and substituting therefor the dollar
amount "$5,000,000"; and deleting the dollar amount "$5,500,000" from item
(iv) thereof and substituting therefor the dollar amount "$3,000,000".
(c) Subsection 8.3 (c) of the Credit Agreement is hereby
amended by inserting immediately after the phrase "projected budget and
financial plan" the phrase ", or any revisions thereof,".
5. BORROWER'S CORPORATE POWER; AUTHORIZATION; ENFORCEABLE
OBLIGATIONS. The Borrower, by signing below, represents that it has the
power and authority, and the legal right, to make, deliver and perform all
terms and obligations set forth in this Amendment and that the Borrower has
taken all necessary corporate action to authorize the terms and obligations
set forth in this Amendment. No consent or authorization of, filing with or
other Act by or in
respect of, any Governmental Authority or any other person in required in
connection with the execution, delivery, performance, validity or
enforceability of this Amendment. This Amendment has been duly executed end
delivered on behalf of the Borrower. This Amendment constitutes a legal,
valid and binding obligation of the Borrower, enforceable against it in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law).
6. SCOPE. This Amendment is to be narrowly construed. Except as expressly
amended herein, all of the covenants and provisions of the Credit Agreement
are and shall continue to be in full force and effect.
7. COUNTERPARTS. This Amendment may be simultaneously
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers as
of the day and year first above written.
Address: APPAREL AMERICA, INC.
0000 Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxxx
00000 By: /s/ Xxxxxxxxx X. X'Xxxxx
Telecopy No.: --------------------------
(000) 000-0000 Name: Xxxxxxxxx X. X'Xxxxx
Attn: Xxxxxx X. Xxxxxxx Title: Vice President-Financial
President
with a copy to:
Shustak Xxxxx Xxxxxxx & Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
Address: BINGHAMTON SAVINGS BANK, AS
00-00 Xxxxxxxx Xxxxxx XXXXX XXX XXXX
Xxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx Small By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
with a copy to:
Xxxxxx Xxxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxx
Xxxxxx, XX 00000
Address: A.I. ASSOCIATES, INC., AS BANK
000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Telecopy No.: By: /s/ Xxxxxx Xxxxxxx
(000) 000-0000 -------------------------
Attn: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
President Title: President
Address: CONNECTICUT DEVELOPMENT
000 Xxxxx Xxxxxx XXXXXXXXX, AS BANK
Xxxxx Xxxx, XX 00000
Telecopy No.:
(000) 000-0000 By: /s/ Xxxxxxx X. Xxxxx
Attn: Loan Administration -------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
with a copy to:
Xxxxxxx X. Rock, Esq.
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
