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EXHIBIT 10(y)
FIRST AMENDMENT
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") dated as of
April 26, 2000, is made and entered into by and between XXXX INDUSTRIES, INC., a
California corporation ("Borrower"), and UNION BANK OF CALIFORNIA, N.A., a
national banking association ("Bank").
RECITALS:
A. Company and Bank are parties to that certain Loan Agreement dated as of
April 14, 1999 (the "Agreement"), pursuant to which Bank agreed to
extend credit to Company.
B. Company and Bank desire to amend the Agreement, but subject to the terms
and conditions of this First Amendment.
AGREEMENT:
In consideration of the above recitals and of the mutual covenants and
conditions contained herein, Company and Bank agree as follows:
1. DEFINED TERMS. Initially capitalized terms used herein, which are not
otherwise defined, shall have the meanings assigned thereto in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
(a) The definition of "Revolving Loan Commitment Termination Date"
appearing in Subsection 1.1 of the Agreement is hereby amended to read in its
entirety as follows:
"Revolving Loan Commitment Termination Date" means May 31, 2002.
(b) Subsection 6. I (vi) of the Agreement is hereby amended to read in
its entirety as follows:
Within (25) days after the end of each Fiscal Quarter, a completed Borrowing
Base Certificate for such Fiscal Quarter; provided, however, that if the
aggregate outstanding principal amount of the Revolving Loan as at the end of
any month is Five Million Dollars ($5,000,000) or more, Company shall deliver to
Bank a completed Borrowing Base Certificate for such month, within (25) days
after the end of such month.
3. EFFECTIVENESS OF THIS FIRST AMENDMENT. This First Amendment shall become
effective as of the date hereof when,and only when, Bank shall have received all
of the following, in form and substance satisfactory to Bank:
(a) A counterpart of this First Amendment duly executed by Company; and
(b) Such other documents, instruments or agreements, as Bank may
reasonably deem necessary.
4. RATIFICATION. Except as specifically amended hereinabove, the Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
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5. REPRESENTATIONS AND WARRANTIES. Company represents and warrants as follows:
(a) Each of the representations and warranties contained in the
Agreement, as amended hereby, is hereby reaffirmed as of the date hereof, each
as if set forth herein;
(b) The execution, delivery and performance of this First Amendment and
any other instruments or documents in connection herewith are within Company's
corporate power, have been duly authorized, are legal, valid and binding
obligations of Company, and are not in conflict with the terms of any charter,
bylaw, or other organization papers of Company or with any law, indenture,
agreement or undertaking to which Company is a party or by which Company is
bound or affected; and
(c) No event has occurred and is continuing or would result from this
First Amendment which constitutes or would constitute an Event of Default under
the Agreement.
6. GOVERNING LAW. This First Amendment and all other instruments or documents in
connection herewith shall be governed by and construed according to the laws of
the State of California.
7. COUNTERPARTS. This First Amendment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
WITNESS the due execution hereof as of the date first above written.
XXXX INDUSTRIES, UNION BANK OF CALIFORNIA, N.A.
By: /s/ [Signature Illegible] By: /s/ [Signature Illegible]
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Title: SVP - CHIEF FINANCIAL OFFICER Title: VICE PRES.
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