Exhibit 10.35
Fifth Amendment dated September 1, 1997 to the Fifth
Amended and Restated Credit Agreement.
FIFTH AMENDMENT, dated as of September 1, 1997 (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 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, the Second
Amendment dated June 1, 1996, the Third Amendment dated October 15, 1996, the
Fourth Amendment dated June 1, 1997 and the Fifth Amendment dated September 1,
1997.
2. AMENDMENTS TO SECTION 2.2 OF THE CREDIT AGREEMENT.
(a) Subsection 2.2 (b)(i) of the Credit Agreement is hereby amended to
(i) delete the dates June 30, 1997, March 31, 1998 and June 30, 1998, and the
corresponding payment amounts for said dates, from the payment schedule set
forth therein, and (ii) substitute the amount "$1,411,743" for the amount
"$616,916" appearing after the date June 30, 2000.
(b) Subsection 2.2 (b)(ii) of the Credit Agreement is hereby amended to
(i) delete the dates June 30, 1997, March 31, 1998 and June 30, 1998, and the
corresponding payment amounts for said dates, from the payment schedule set
forth therein, and (ii) substitute the amount "$1,208,692" for the amount
"$677,657" appearing after the date June 30, 2001.
(c) Subsection 2.2 (b)(iii) of the Credit Agreement is amended to (i)
delete the dates June 30, 1997, March 31, 1998 and June 30, 1998, and the
corresponding payment amounts for said dates, from the payment schedule set
forth therein, and (ii) substitute the amount "$1,565,141" for the amount
"$679,625" appearing after the date June 30, 2000.
The intent of the foregoing amendments to Section 2.2 of the Credit
Agreement is to remove the requirement of any repayment of principal of the
Notes for June 30, 1997, March 31, 1998 and June 30, 1998 and to include the
amounts which would have been payable on such dates to the last payment due.
3. AMENDMENTS TO SECTION 2.3 OF THE CREDIT AGREEMENT.
(a) Subsection 2.3 (a)(i) 2.3 (a)(ii) and 2.3 (a)(iii) of the Credit
Agreement are amended to substitute the phrase "and one half percent (1 1/2%)"
at the end of each such subsection with the phrase "percent (1%)".
(b) a new Subsection (e) shall be added to Section 2.3, such Subsection
(e) to read in its entirety as follows: "(e) notwithstanding anything in
this Section 2.3 or the Notes to the contrary, interest on each of the CDA
Note, Binghamton Note and AI Note shall be paid only in respect of $1,000,000
of principal thereon for the period August 1, 1997 through January 31, 1999
and any interest in respect of principal in excess of $1,000,000 shall be
deferred and paid in a lump sum at June 30, 1999.
4. AMENDMENTS TO SECTION 8.3 OF THE CREDIT AGREEMENT.
(a) Subsection 8.3 (a) of the Credit Agreement is amended by deleting
the table therein in its entirety and substituting in lieu thereof the
following table:
Period Minimum Ebdit
------ -------------
1994 Fiscal Year $1,750,000
1995 Fiscal Year 2,250,000
1996 Fiscal Year 2,000,000
1998 Fiscal Year 1,850,000
1999 Fiscal Year 1,850,000
2000 Fiscal Year 1,850,000
2001 Fiscal Year 1,850,000
(b) Subsection 8.3 (b) of the Credit Agreement is hereby amended by
substituting the number appearing in Subsection (i) to read "a deficit of not
greater that $5,050,000," substituting the number appearing in Subsection
(ii) to read "a deficit of not greater than $3,550,000," substituting the
number appearing in (iii) to read "a deficit of not greater than $1,100,000"
and substituting the number appearing in (iv) to read "a deficit of not
greater than $3,600,000."
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 and
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-Finance
President
with a copy to:
Xxxxxxx Xxxxx & 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:
---------------------------
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 Xxxx Xxxxxx XXXXXXXXX, AS BANK
Xxxxx Xxxx, XX 00000
Telecopy No.:
(000) 000-0000 By:
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
with a copy to:
Xxxxxxx X. Rock, Esq.
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxxx Xxxxx & 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:
---------------------------
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:
(000) 000-0000 ---------------------------
Attn: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
President Title: President
Address: CONNECTICUT DEVELOPMENT
000 Xxxx Xxxxxx XXXXXXXXX, AS BANK
Xxxxx Xxxx, XX 00000
Telecopy No.:
(000) 000-0000 By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
with a copy to:
Xxxxxxx X. Rock, Esq.
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxxx Xxxxx & 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:
(000) 000-0000 ---------------------------
Attn: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx
President Title: President
Address: CONNECTICUT DEVELOPMENT
000 Xxxx Xxxxxx XXXXXXXXX, AS BANK
Xxxxx Xxxx, XX 00000
Telecopy No.:
(000) 000-0000 By:
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
with a copy to:
Xxxxxxx X. Rock, Esq.
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
