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EXHIBIT 10.27
FOURTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FOURTH AMENDMENT, dated this 31st day of July, 1995, between
ALFIN, INC., a New York corporation (the "Borrower"), having an address at ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; ADRIEN ARPEL, INC., a Delaware
corporation having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Guarantor") and MIDLANTIC BANK, N.A., a national banking association (the
"Lender"), having an address at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
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 Letter Amendment dated May 13, 1993, Amendment
dated June 24, 1993, Second Amendment dated February 16, 1994, Letter
Amendments dated May 16, 1994, June 28, 1994 and a Third Amendment dated August
22, 1994, (as so amended, the "Existing Agreement").
B. 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:
1. Subsections 6.19, Consolidated Working Capital, and 6.21 Consolidated
Net Cash Flow, are hereby deleted from the Loan Agreement in their entirety.
2. Subsection 6.20 Consolidated Tangible Net Worth, is hereby deleted
in the Loan Agreement and a new Subsection 6.20 is substituted therefore to
read as follows:
6.20 Consolidated Tangible Net Worth. Cause or permit
Consolidated Tangible Net Worth to be less than (i) ($2,500,000.00) at
April 30, 1995; (ii) ($2,250,000.00) at fiscal year-end July 31, 1995;
(iii) $1,000,000.00 at fiscal year-end July 31, 1996 and subsequent
thereto, at any time of the determination thereof, Consolidated Tangible
Net Worth must increase by 120% over the prior fiscal year-end's
Consolidated Tangible Net Worth. The term Consolidated Tangible Net
Worth, meaning, as of the time of any determination thereof, the
difference between (a) the sum of (i) the par value (or value stated on
the books of Borrower and Guarantor) of the capital stock of all classes
of
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Borrower or Guarantor, plus (or minus in the case of a deficit)
(ii) the amount of Borrower's or Guarantor's surplus, whether capital or
earned, less (b) the sum of treasury stock, unamortized debt discount
and expense, good will, trademarks, trade names patents, deferred
charges, leasehold improvements and other intangible assets, and any
write-up of the value of any assets, all determined in accordance with
generally accepted accounting principles, applied on a consistent basis.
3. Subsection 6.22, Consolidated Capital Expenditures, is hereby
deleted in the Loan Agreement and a new Subsection 6.22 is substituted therefore
to read as follows:
6.22 Consolidated Capital Expenditures. Enter into any
agreement to purchase or pay for, or become obligated to pay for,
capital expenditures, long term leases, capital leases or sale
lease-backs, in an amount aggregating in excess of $400,000.00 during
any fiscal year.
4. 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.
5. 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 Fourth 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.
6. 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 Fourth
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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7. HEADINGS. The headings as used in this Fourth Amendment are
inserted solely for convenience of reference and shall not constitute a part of
this Fourth Amendment nor affect its meaning, construction or effect.
8. NO DEFENSES TO PAYMENT. Borrower waives and forever releases
and discharges 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
its 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 Amendment; and Borrower represents and warrants to Lender that
Borrower has 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 the date and year
first written above.
ATTEST: AFLIN, INC.
Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Asst. Secretary Chief Financial Officer
ATTEST: ADRIEN ARPEL, INC.
Guarantor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Asst. Secretary Chief Financial Officer
MIDLANTIC BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
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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 Fourth 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
---- ------ ---------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Chief Financial Officer /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Asst. Secretary /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
IN WITNESS WHEREOF, the undersigned has executed this Certificate and
affixed the corporate seal hereto this 31st day of July, 1995.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Asst. Secretary
(SEAL)
I, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Financial Officer of ADRIEN ARPEL, INC., hereby
certify that appearing above is the true and correct signature of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Assistant Secretary of the Company.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
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 Fourth 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 and the revolving loans
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, 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 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 Fourth Amendment to Amended and
Restated Revolving Credit and Term Loan Agreement dated the date hereof (the
"Amendment") by and between the Company and MIDLANTIC, 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
---- ------ ---------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Chief Financial /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Officer ---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Asst. Secretary /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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IN WITNESS WHEREOF, the undersigned has executed this Certificate and
affixed the corporate seal hereto this 31st day of July, 1995.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Asst. Secretary
I, Chief Financial Officer of ALFIN, INC., hereby certify that
appearing above is the true and correct signature of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Assistant Secretary of the Company.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇
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 Fourth 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 and the revolving loans
of 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, 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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