Exhibit 10.32
Second Amendment dated June 1, 1996 to the
Fifth Amended and Restated Credit Agreement.
SECOND AMENDMENT, dated as of June 1, 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. AMENDMENT TO SECTION 1.1 OF THE CREDIT AGREEMENT.
Section 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definition 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 and Second Amendment dated June 1, 1996.
2. AMENDMENTS TO SECTION 2.2 OF THE CREDIT AGREEMENT.
Section 2.2 (b) (i) is amended to substitute the amount
"$85,920" in place of the amount "$257,760" appearing after the
date June 30, 1996 and to substitute the amount "$494,081" in place
of the amount "$322,241" appearing after the date June 30, 2000.
Subsection 2.2 (b) (ii) is amended to substitute the amount
"$66,380" in place of the amount "$199,138" appearing after the
date June 30, 1996 and to substitute the amount "$582,758" in place
of the amount "$450,000" appearing after the date June 30, 2001.
Subsection 2.2 (b) (iii) is amended to substitute the
amount "$110,688" in place of the amount "$332,068" appearing after
the date June 30, 1996 and to substitute the amount "$521,380" in
place of the amount "$300,000" appearing after the date June 30,
2000.
Section 2.2 shall be further amended by inserting at the
end thereof a new Subsection (e), such Subsection (e) to read in
its entirety as follows: "(e) In the event the number of persons
employed by the Borrower in the State of Connecticut at December
31, 1996, and at each December 31 thereafter until maturity of the
CDA Term Loan, shall be less than 400 persons, the Borrower shall
pay to the CDA the sum $171,840, which amount shall be deducted
from the amount of $494,081, payable on June 30, 2000. Said
$171,840, together with a penalty of $17,184, for a total of
$189,024 shall be payable thirty (30) days after requested by the
CDA, invoking in writing the provisions of this Subsection 2.2 (e)".
3. AMENDMENT TO SECTION 8.2 OF THE CREDIT AGREEMENT.
Subsection 8.2 (k) of the Credit Agreement is hereby
amended by adding at the end thereof the following "PROVIDED,
HOWEVER, that in any event the capital expenditures may be up to
$700,000 for the fiscal year ending July 31, 1996."
4. AMENDMENT TO SECTION 8.2 OF THE CREDIT AGREEMENT.
Subsection 8.2 (p) is hereby amended by inserting at the
end thereof the phrase "PROVIDED, HOWEVER, the Borrower may create
a subsidiary, foreign or domestic, to own and operate a sewing
facility in Mexico, PROVIDED, HOWEVER, that such subsidiary shall,
upon organization, guarantee unconditionally the Term Loans".
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. AFFIRMATIVE ACTION PLAN. The Borrower covenants that it
shall provide the CDA with an updated Affirmative Action Plan
acceptable to the CDA.
7. EXPENSES. All expenses of CDA counsel incurred as a
result of this Second Amendment shall be the responsibility of the
Borrower.
8. SCOPE. This Amendment is to be narrowly construed.
Except as expressly amended herein, all of the covenants and
provision of the Credit Agreement are and shall continue to be in
full force and effect.
9. 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:
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:
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
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 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
