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Exhibit 10.29
FIFTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FIFTH AMENDMENT ("Fifth Amendment") made effective as of December
11, 1995 between ALFIN, INC., a New York corporation (the "Borrower"), having
an address at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000; ADRIEN ARPEL, INC., a
Delaware corporation having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Guarantor") and MIDLANTIC BANK, N.A., a national banking
association (the "Lender"), having an address at 000 Xxxxxx Xxxxxx, Xxxxx, Xxx
Xxxxxx 00000.
Preliminary Statement
A. The Borrower, the Guarantor and the Lender are parties to a certain
Amended and Restated Revolving Credit and Term Loan Agreement dated June 30,
1992, as previously amended by (i) Letter Amendment dated May 13, 1993,
(ii) Amendment dated June 24, 1993, (iii) Second Amendment dated February 16,
1994 (iv) Letter Amendments dated May 16, 1994 and June 28, 1994, (v) a Third
Amendment dated August 22, 1994, and (vi) a Fourth Amendment dated July 31,
1995 (as so amended, the "Existing Agreement").
B. The Borrower, the Guarantor and the Lender desire to eliminate the
Revolving Loan facility in the Loan Agreement and recast the outstanding
Revolving Loan balance of $164,750.78 ("Revolving Loan Balance") into an
Amended and Restated Consolidated Term Loan No. 3 (as hereinafter defined).
C. The Borrower, the Guarantor and the Lender also desire to recast
the outstanding balance of $150,000.00 ("Term Loan Balance") due under the
Term Loan dated July 31, 1990 in the original sum of $5,000,000.00 ("Term Loan
No. 1") and the Term Note executed simultaneously therewith ("Term Note No. 1").
D. The Borrower, the Guarantor and the Lender therefore desire to
further modify and amend the terms of the Existing Agreement to recast the
Revolving Loan Balance and the Term Loan Balance into one consolidated
obligation in the amount of $314,750.78 in accordance with the terms and
conditions of an Amended and Restated Consolidated Term Loan No. 3 (as
hereinafter defined), pursuant to the terms and conditions of the amendments to
the Existing Agreement by this writing.
E. The Borrower, the Guarantor and the Lender desire to amend the
Existing Agreement as hereinafter provided.
NOW, THEREFORE, for valuable consideration (the receipt and sufficiency
of which are hereby acknowledged), the parties hereto agree as follows:
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1. DEFINITIONS
(a) All capitalized terms used but not defined in this Amendment shall have
the respective meanings ascribed to them in the Existing Agreement.
(b) As used herein, the following capitalized terms shall have the
respective meanings ascribed to them below (superseding all previous definitions
of such terms, if any, in the Existing Agreement):
"Agreement" -- the Existing Agreement, as amended by this Amendment.
"Amended and Restated Consolidated Term Loan No. 3" -- the loan
described in Subsection 2E hereof.
"Amended and Restated Consolidated Term Note No. 3" -- the Note
described in Subsection 2E and any promissory notes in renewal
thereof or substitution or replacement therefor.
"Loan Documents" -- shall mean, collectively this Amendment, the
Existing Agreement, the Mortgage Modification Agreement, the Term
Note, the Amended and Restated Consolidated Term Note No. 3, the
Replacement Note, the Guaranty, the Affirmation of Guaranty, the
Security Agreement, the Mortgage and the Trademark Collateral
Assignment.
2. MODIFICATION OF REVOLVING LOANS.
(a) The facility for Revolving Loans under the Existing Agreement is hereby
rescinded and deleted in its entirety, therefore Section 2A., Subsection 2A.1
(a) and (b) of the Loan Agreement are hereby deleted in their entirety.
3. MODIFICATION OF TERM LOAN NO. 1.
Subsection 2B is deleted in its entirety in the Loan Agreement and
Subsection 2E. is hereby added to the Loan Agreement and reads as follows:
2E. AMENDED AND RESTATED CONSOLIDATED TERM LOAN NO. 3 -- $314,750.78.
1. Subject to the terms and conditions of this Agreement, and to the
Borrower's observance and performance of, and compliance with, all terms,
conditions, warranties, representations and covenants of this Agreement, and the
timely payment of all Obligations of the Borrower to the Lender:
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(a) The Borrower acknowledges that the current outstanding principal
balance due and owing pursuant to Term Loan No. 1 and Term Note No. 1 is
$150,000.00 and Borrower wishes to recast said balance and the Revolving Loan
Balance ($164,750.78) into one consolidated loan in the principal sum of
$314,750.78 ("Amended and Restated Consolidated Term Loan No. 3"). Borrower
agrees to repay the Amended and Restated Consolidated Term Loan No. 3 as
hereinafter provided, and the Amended and Restated Consolidated Term Loan No. 3
shall be evidenced by an Amended and Restated Consolidated Term Note No. 3
executed simultaneously herewith. Neither Borrower nor Guarantor have any
defense, offset or counterclaim in respect of their liability to repay the
Amended and Restated Consolidated Term Loan No. 3.
(b) The outstanding principal amount of the Amended and Restated
Consolidated Term Loan No. 3 shall continue to bear interest at a fluctuating
interest rate per annum equal at all times to ONE-HALF OF ONE PERCENT (1/2%)
above the Lender's Prime Rate in effect from time to time, each change in such
fluctuating rate to take effect simultaneously with the corresponding change in
the Prime Rate, without notice to Borrower. Such interest shall be computed on
the basis of actual number of days elapsed, as if each year consisted of 360
days.
(c) The principal amount of the Amended and Restated Consolidated Term
Loan No. 3 shall be repaid by the Borrower in SEVEN (7) consecutive monthly
principal installments payable as follows:
(i) SIX (6) consecutive monthly principal installments of
$50,000.00 each; and
(ii) a SEVENTH (7th) and final installment of $14,750.78,
together with interest as hereinafter provided. The said installments are to be
paid commencing on the 10th day of January, 1996 and on the tenth day of each
month thereafter until July 10, 1996, when the entire unpaid principal and any
accrued interest, if any, shall be due and payable. If any payment of principal
or interest under the Amended and Restated Consolidated Term Loan No. 3 shall
be due and payable on a day other than a business day of the Lender, then such
payment shall be due and payable on the next succeeding business day of the
Lender. All payments of interest or principal or prepayments of principal,
howsoever designated by Borrower, are to be applied first on account of
interest on the unpaid balance of the principal indebtedness of the Amended and
Restated Consolidated Term Loan No. 3 and the balance, if any, on account of the
outstanding principal of Amended and Restated Consolidated Term Loan No. 3.
Lender may, at its discretion, charge any principal or interest payment due
hereunder to any checking or loan account of the Borrower, or apply any
proceeds received by Borrower against payment of same.
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(d) Interest on the Amended and Restated Consolidated Term
Loan No. 3 shall be invoiced at the end of each calendar month and is payable
on the first day of each month commencing February 1, 1996. Any failure or
delay by Lender in submitting invoices for interest payments shall not
discharge or relieve Borrower of its obligation to make such interest payments.
(e) Wherever the term Term Loan is used in the Existing
Agreement, it shall be understood to mean also the Amended and Restated
Consolidated Term Loan No. 3, and wherever the term Term Note is used it shall
be understood to mean also the Amended and Restated Consolidated Term Note No.
3.
4. AMENDED AND RESTATED CONSOLIDATED TERM NOTE NO. 3.
Simultaneously with the execution of this Amendment, Borrower shall execute and
deliver to the Lender an Amended and Restated Consolidated Term Note No. 3. The
form and execution of such instrument is to be in all respects, in form and
substance acceptable to Lender.
5. RATIFICATION OF AGREEMENT. Subject to the amendments to the
Loan Agreement as set forth herein, as of this day, the parties hereto hereby
ratify and confirm, in full, each and every term, condition, agreement,
representation, warranty and covenant set forth in the Loan Agreement.
6. SURVIVAL. All representations and warranties, whether ratified
hereby or made herein or in any instrument or certificate contemplated hereby,
shall survive any independent investigation made by Lender and the execution
and delivery of the Loan Agreement, together with this Fifth Amendment to the
Loan Agreement, and the relevant documents and said certificates or instruments
shall continue so long as any of the Borrower's obligations are outstanding and
unsatisfied, applicable Statutes of Limitations to the contrary notwithstanding.
7. AMENDMENT ONLY. This is intended as an amendment only to the Loan
Agreement and is not a new loan agreement, therefore all of the remaining terms
and conditions of the Loan Agreement (including any amendments or supplements
thereto), shall remain in full force and effect as though set forth herein at
length to the extent not inconsistent with the terms of this Fifth Amendment,
and any term in initial capitals and not otherwise defined herein shall have
the meaning ascribed thereto in the Loan Agreement.
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8. HEADINGS. The headings as used in this Fourth Amendment are
inserted solely for convenience of reference and shall not constitute a part of
this Fifth Amendment nor affect its meaning, construction or effect.
9. NO DEFENSES TO PAYMENT. Borrower and Guarantor waive and
forever release and discharge Lender, its officers, directors, agents and
employees, successors and assigns from any and all claims, actions, causes of
action, suits, counterclaims, set-offs, rights and defenses which against
Lender (its officers, directors, agents and employees, successors and assigns),
Borrower, Guarantor and their successors or assigns have or hereafter can,
shall or may have, for, upon, or by reason of any matter, cause or thing
whatsoever up to and including the date of this Fifth Amendment; and Borrower
and Guarantor represent and warrant to Lender that Borrower and Guarantor have
no defenses to the repayment of any or all of the Obligations and has no
claims, rights of set-off or causes of action against Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized agents as of this 14th day of
February, 1996.
ATTEST: ALFIN, INC.
Borrower
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXXXX XXXXX
------------------------- -------------------------
Xxxxxx X. Xxxxxxx Xxxxxxx Xxxxx
Asst. Secretary Chief Financial Officer
REAFFIRMATION AND ACKNOWLEDGEMENT OF GUARANTOR
On July 31, 1990 the Guarantor delivered to the Lender a certain
Continuing Guaranty of Payment, as such has been previously reaffirmed from
time to time, ("Guaranty") of the obligations of the Borrower to the Lender.
The Guarantor hereby wishes to reaffirm its Guaranty and to acknowledge that
its Guaranty extends to each and every obligation due and owing from
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the Borrower to the Lender including, without limitation, whether any advances
were heretofore or are hereafter made and as set forth herein. FURTHERMORE,
GUARANTOR HEREBY WAIVES ANY RIGHT OF SUBROGATION TO WHICH IT OTHERWISE MIGHT
BE ENTITLED.
ATTEST: ADRIEN ARPEL, INC.
Guarantor
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Xxxxx
----------------------------- ----------------------------
Xxxxxx X. Xxxxxxx Xxxxxxx Xxxxx
Asst. Secretary Chief Financial Officer
MIDLANTIC BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx
Vice President
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AMENDED AND RESTATED CONSOLIDATED
TERM NOTE NO. 3
$314,750.78 Effective as of Dec. 11, 1995
Clark, New Jersey
FOR VALUE RECEIVED, ALFIN, INC., a New Jersey corporation (the
"Maker"), and ADRIEN ARPEL, INC., a Delaware corporation, (the "Guarantor")
hereby promise to pay to the order of MIDLANTIC BANK, N.A., formerly known as
Midlantic National Bank, a national banking association (the "Bank"), the
principal amount of THREE HUNDRED FOURTEEN THOUSAND SEVEN HUNDRED FIFTY AND
78/100 ($314,750.78) DOLLARS plus interest on the outstanding balance thereof
at the rate of ONE-HALF OF ONE PERCENT (1/2%) per annum in excess of the Bank's
Prime Rate (as hereinafter defined) from time to time until this Note is paid
in full. Such interest shall be computed on the basis of actual number of days
elapsed, as if each year consisted of 360 days.
The principal amount hereof shall be payable in SEVEN (7) consecutive
principal installments payable as follows:
(a) SIX (6) consecutive monthly principal installments of $50,000.00
each; and
(b) a SEVENTH (7th) and final installment of $14,750.78, together with
interest as hereinafter provided. The said installments are to be paid
commencing on the 10th day of January 1996 and on the tenth day of each month
thereafter until July 10, 1996, when the entire unpaid principal and any
accrued interest, if any, shall be due and payable. Interest on the unpaid
principal amount outstanding on this Note shall be due and payable on the first
day of each month commencing on February 1, 1996 and continuing thereafter
until the outstanding principal balance has been paid in full. If any payment
of principal or interest under this Note shall be due and payable on a day
other than a business day of the Bank, then such payment shall be due and
payable on the next succeeding business day of the Bank. All payments of
interest or principal or prepayments of principal, howsoever designated by
Borrower, are to be applied first on account of interest on the unpaid balance
of the principal indebtedness of this Note and the balance, if any, on account
of the outstanding principal of this Note. Bank may, at its discretion, charge
any principal or interest payment due hereunder to any checking or loan account
of the Maker, or apply any proceeds received by Borrower against payment of
same.
The "Bank's Prime Rate" is the rate of interest announced from time to
time by the Bank as its "prime rate" or "prime lending rate". Such rate of
interest is determined from time to time by the Bank as a means of pricing some
loans to its customers and is neither tied to any external rate of interest or
index nor does it necessarily reflect the lowest rate of interest
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actually charged by the Bank to any particular class or category of customers
of the Bank. Each change in the Bank's Prime Rate shall effect a change in the
interest rate on this Note as of the day of such change in the Bank's Prime
Rate.
Any amount of principal hereof which is not paid when due, whether at
maturity, by acceleration or otherwise, shall bear interest from the date when
due until said principal amount is paid in full at a rate of two percent (2%)
per annum in excess of the rate stated above in effect from time to time.
All payments hereunder shall be made in lawful money of the United
States of America to the Bank, at the Bank's offices at 000 Xxxxxx Xxxxxx,
Xxxxx, Xxx Xxxxxx 00000, in immediately available funds. All such payments
shall be applied to accrued and unpaid interest and the balance to the
outstanding principal.
This Note is the Amended and Restated Consolidated Term Note No. 3
referred to in the Fifth Amendment executed simultaneously herewith to the
Amended and Restated Revolving Credit and Term Loan Agreement dated June 30,
1992, as such has been previously amended from time to time (the "Agreement")
between the Maker, Guarantor, and the Bank. Such Agreement describes certain
events of default, upon the happening of any of which the entire principal
balance of this Note, plus all accrued and unpaid interest hereon, shall at the
option of the holder hereof become immediately due and payable.
The Maker hereby waives diligence, presentment of any instrument,
demand for payment, protest and notice of nonpayment or protest and any and all
other notices and demands whatsoever in connection with the delivery,
acceptance, performance, default or enforcement of this Note. The provisions of
this Note are binding on the heirs, executors, administrators, assigns and
successors of the Maker and shall inure to the benefit of the Bank, its
successors and assigns. If this Note is placed in the hands of an attorney for
collection, the undersigned shall pay all costs and disbursements of such
attorney. This Note shall be governed by and construed in accordance with the
laws of the United States of America and the internal laws of the State of New
Jersey (without giving effect to principles of conflicts of law).
No provision of this Note may be changed or waived orally, but only by
an instrument in writing signed by the party to be charged by such change or
waiver.
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IN WITNESS WHEREOF, the Maker has executed this Note the day and year
first above set forth.
(CORPORATE SEAL) ALFIN, INC.
Maker
By: /s/ XXXXXXX XXXXX
---------------------------------
ATTEST: Xxxxxxx Xxxxx,
Chief Financial Officer
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Xxxxxx X. Xxxxxxx
Asst. Secretary
(CORPORATE SEAL) ADRIEN ARPEL, INC.
Guarantor
By: /s/ XXXXXXX XXXXX
---------------------------------
ATTEST: Xxxxxxx Xxxxx,
Chief Financial Officer
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
Xxxxxx X. Xxxxxxx
Asst. Secretary
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ADRIEN ARPEL, INC.
ASSISTANT SECRETARY'S CERTIFICATE
The undersigned, Assistant Secretary of ADRIEN ARPEL, INC., a Delaware
corporation (the "Company"), pursuant to the Fifth Amendment to Amended and
Restated Revolving Credit and Term Loan Agreement dated the date hereof (the
"Amendment") by and between the Company and MIDLANTIC BANK, N.A., f/k/a
Midlantic National Bank DOES HEREBY CERTIFY THAT:
(a) The Certificate of Incorporation of the Company has not been
amended since June 30, 1992 and remains in full force and effect.
(b) The By-Laws of the Company have not been amended since June 30,
1992 and remain in full force and effect.
(c) Attached hereto as Exhibit A is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Company
approving the transactions contemplated by the Amendment, and such
resolutions are still in full force and effect as of the date
hereof.
(d) The following are the duly elected, qualified and acting officers
of the Company and that the signatures set forth opposite their
respective names below are the true signatures of said officers.
Name Office Signature
---- ------ ---------
Xxxxxxx Xxxxx Chief Financial /s/ XXXXXXX XXXXX
Officer ------------------------
Xxxxxx X. Xxxxxxx Asst. Secretary /s/ XXXXXX X. XXXXXXX
------------------------
IN WITNESS WHEREOF, the undersigned has executed this Certificate and
affixed the corporate seal hereto this 14th day of February, 1996.
/s/ XXXXXX X. XXXXXXX
------------------------
Xxxxxx X. Xxxxxxx
Asst. Secretary
(SEAL)
I, Xxxxxxx Xxxxx, Chief Financial Officer of ADRIEN ARPEL, INC., hereby
certify that appearing above is the true and correct signature of Xxxxxx X.
Xxxxxxx, Assistant Secretary of the Company.
/s/ XXXXXXX XXXXX
------------------------
Xxxxxxx Xxxxx
Chief Financial Officer
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EXHIBIT A
RESOLUTIONS OF THE BOARD OF
DIRECTORS OF ADRIEN ARPEL, INC.
BE IT RESOLVED, that ADRIEN ARPEL, INC. (the "Company") be, and it
hereby is, authorized and directed to enter into a Fifth Amendment to Amended
and Restated Revolving Credit and Term Loan Agreement modifying the Amended and
Restated Revolving Credit and Term Loan Agreement dated as of June 30, 1992
(the "Agreement") with MIDLANTIC BANK, N.A., f/k/a Midlantic National Bank (the
"Lender"), pursuant to which the Company, the Lender and the other parties
named therein modified and amended a certain term loan of ALFIN, INC.
(guaranteed by the Company) to the Lender; and be it further
RESOLVED, that the Chief Financial Officer and Assistant Secretary of
the Company be, and hereby is, authorized and directed, by, for, on behalf of
and in the name of the Company to execute, acknowledge and deliver the aforesaid
Amendment and all promissory notes and modifications thereto, guarantees,
pledges, warrants, assignments, mortgages, agreements and all other instruments
and documents which the officer so acting shall deem necessary, appropriate,
convenient or proper to effectuate the transactions described in the above
resolutions and contemplated in the Amendment to the Agreement, his signature
thereon being conclusive evidence of his approval thereof; and be it further
RESOLVED, that the Chief Financial Officer and Assistant Secretary of
the Company be, and each hereby is, authorized and directed, by, for, on behalf
of and in the name of the Company to do all such other acts and things, to
make, negotiate, execute and deliver, file and/or record and receive all such
other instruments, documents and agreements and to do all other acts or things
as may be, in the opinion of the officer so acting, necessary, appropriate,
convenient or proper to carry out the intent of the foregoing resolutions, to
discharge the liabilities and obligations of the Company to the Lender, to
exercise the rights of the Company, and to carry out and consummate the
transactions contemplated by the Amendment to the Agreement, the signature of
such officer so acting shall be conclusive evidence of his approval thereof.
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ALFIN, INC.
ASSISTANT SECRETARY'S CERTIFICATE
The undersigned, Assistant Secretary of ALFIN, INC., a New York
corporation (the "Company"), pursuant to the Fifth Amendment to Amended and
Restated Revolving Credit and Term Loan Agreement dated the date hereof (the
"Amendment") by and between the Company and MIDLANTIC BANK, N.A., f/k/a
Midlantic National Bank DOES HEREBY CERTIFY THAT:
(a) The Certificate of Incorporation of the Company has not been
amended since January 16, 1992 and remains in full force
and effect.
(b) The By-Laws of the Company have not been amended since June 30,
1992 and remain in full force and effect.
(c) Attached hereto as Exhibit A is a true and correct copy of
resolutions duly adopted by the Board of Directors of the
Company approving the transactions contemplated by the
Amendment, and such resolutions are still in full force and
effect as of the date hereof.
(d) The following are the duly elected, qualified and acting
officers and directors of the Company, and that the signatures
set forth opposite their respective names below are the true
signatures of said officers.
Name Office Signature
Xxxxxxx Xxxxx Chief Financial Officer /s/ XXXXXXX XXXXX
---------------------
Xxxxxx X. Xxxxxxx Asst. Secretary /s/ XXXXXX X. XXXXXXX
---------------------
IN WITNESS WHEREOF, the undersigned has executed this Certificate and
affixed the corporate seal hereto this 14th day of February, 1996.
/s/ XXXXXX X. XXXXXXX
-------------------------
Xxxxxx X. Xxxxxxx
Asst. Secretary
I, Chief Financial Officer of ALFIN, INC., hereby certify that
appearing above is the true and correct signature of Xxxxxx X. Xxxxxxx,
Assistant Secretary of the Company.
/s/ XXXXXXX XXXXX
-------------------------
Xxxxxxx Xxxxx
Chief Financial Officer
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Exhibit A
RESOLUTIONS OF THE BOARD OF
DIRECTORS OF ALFIN, INC.
BE IT RESOLVED, that ALFIN, INC. (the "Company") be, and it is hereby
is, authorized and directed to enter into a Fifth Amendment to Amended and
Restated Revolving Credit and Term Loan Agreement modifying the Amended and
Restated Revolving Credit and Term Loan Agreement dated as of June 30, 1992
(the "Agreement") with MIDLANTIC BANK, N.A., f/k/a Midlantic National Bank (the
"Lender"), pursuant to which the Company, the Lender and the other parties
named therein modified and amended a certain term loan to the Lender; and be
it further
RESOLVED, that the Chief Financial Officer and Assistant Secretary of
the Company be, and hereby is, authorized and directed, by, for, on behalf of
and in the name of the Company to execute, acknowledge and deliver the
aforesaid Amendment and all promissory notes and modifications thereto,
guarantees, pledges, warrants, assignments, mortgages, agreements and all other
instruments and documents which the Officer so acting shall deem necessary,
appropriate, convenient or proper to effectuate the transactions described in
the above resolutions and contemplated in the Amendment to the Agreement, his
signature thereon being conclusive evidence of his approval thereof; and be it
further
RESOLVED, that the Chief Financial Officer and Assistant Secretary of
the Company be, hereby is, authorized and directed, by, for, on behalf of and in
the name of the Company to do all such other acts and things, to make,
negotiate, execute and deliver, file and/or record and receive all such other
instruments, documents and agreements and to do all other acts or things as may
be, in the opinion of the officer so acting, necessary, appropriate, convenient
or proper to carry out the intent of the foregoing resolutions, to discharge the
liabilities and obligations of the Company to the Lender, to exercise the rights
of the Company, and to carry out and consummate the transactions contemplated by
the Amendment to the Agreement, the signature of the officer so acting shall be
conclusive evidence of his approval thereof.
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