EXHIBIT 10.3
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FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered
into as of February 16, 1996, by and among XXXXXXX MANUFACTURING CO.,
INC., a California corporation ("Borrower"), XXXXXXX HOLDINGS, INC., a
California corporation ("Holdings"), and XXXXX FARGO BANK, NATIONAL
ASSOCIATION ("Bank").
RECITALS
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WHEREAS, Borrower is currently indebted to Bank pursuant to the
terms and conditions of that certain Credit Agreement between Borrower
and Bank dated as of May 31, 1995, as amended from time to time ("Credit
Agreement").
WHEREAS, Bank and Borrower have agreed to certain changes in the
terms and conditions set forth in the Credit Agreement and have agreed
to amend the Credit Agreement to reflect said changes.
WHEREAS, Holdings is a wholly-owned subsidiary of Borrower and the
substituted account party on the Letter of Credit issued to the Self
Insurance Plans of California pursuant to Section 1.4(a) of the Credit
Agreement.
WHEREAS, the stated principal amount of this Letter of Credit
issued to the Self Insurance Plans of California pursuant to Section
1.4(a) of the Credit Agreement has been increased to $416,285.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree
that the Credit Agreement shall be amended as follows:
1. Section 1.4 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(a) LETTER OF CREDIT. Bank has issued a letter of Credit for
the account of Xxxxxxx Holdings, Inc. ("Holdings") and in favor of Self
Insurance Plans of California to support Borrower's workers'
compensation insurance requirements (the "Letter of Credit") in the
amended principal amount of Four Hundred Sixteen Thousand Two Hundred
Eighty-Five Dollars ($416,285.00). The Letter of Credit has an
expiration date of June 1, 1997, and is subject to the additional terms
of the Application and Agreement for Standby Letter of Credit required
by Bank in connection with the issuance thereof, as amended from time to
time (the "Letter of Credit Agreement"). Subject to the terms and
conditions of this Agreement, Bank hereby confirms that the Letter of
Credit remains in full force and effect.
"(b) REPAYMENT OF DRAFTS. Each draft paid by Bank under the
Letter of Credit shall be repaid by Borrower or Holdings in accordance
with the provisions of the Letter of Credit Agreement. The obligations
of Borrower and Holdings under this Section 1.4 are joint and several."
2. Holdings jointly and severally assumes and will pay when due all
sums at any time due or owing under Section 1.4 of the Credit Agreement
or under the Letter of Credit Agreement, and Holdings will hereafter
faithfully perform and be bound by all of the terms and conditions of
the Credit Agreement, insofar as the Credit Agreement relates to the
Letter of Credit, and the Letter of Credit Agreement, the terms of which
are incorporated herein by this reference.
3. Borrower shall not be released from any of its obligations under the
Credit Agreement or the Letter of Credit Agreement as a result of
Holdings' assumption of the obligations described in Section 2, above,
and Borrower hereby reaffirms such liability. Borrower agrees that its
liability and that of Holdings for the obligations described in Section
2, above, shall be joint and several.
4. Borrower and Holdings agree and acknowledge that there are no
claims, defenses (legal or equitable), counterclaims, set-offs and/or
other rights or remedies whatsoever which any of them now has, claim or
assert against Bank which would in any way alter, reduce or extinguish
any of their liabilities to Bank. Holdings hereby waives and agrees not
to assert against Bank or Borrower any rights which a guarantor or
surety could exercise, including without limitation, the rights, if any,
of subrogation, or of requiring Bank to proceed to foreclose upon
collateral, or of requiring Bank to marshal collateral.
5. Except as specifically provided herein, all terms and conditions of
the Credit Agreement and the Letter of Credit Agreement remain in full
force and effect, without waiver or modification. All terms defined in
the Credit Agreement shall have the same meaning when used in this
Amendment. This Amendment and the Credit Agreement shall be read
together, as one document.
6. Borrower hereby remakes all representations and warranties contained
in the Credit Agreement and reaffirms all covenants set forth therein.
Borrower further certifies that as of the date of this Amendment there
exists no Event of Default as defined in the Credit Agreement, nor any
condition, act or event which, with the giving of notice or the passage
of time or both, would constitute any such Event of Default.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed as of the day and year first written above.
XXXXX FARGO BANK
XXXXXXX MANUFACTURING CO., INC. NATIONAL ASSOCIATION
By: /s/Xxxxx Xxxxxx By: /s/Xxxxx Xxxxxxxx
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Title: CFO Title: Vice President
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By: /s/Xxxxxx X Xxxxxxxxx
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Title: President
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XXXXXXX HOLDINGS, INC.
By: /s/Xxxxx Xxxxxx
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Title: CFO
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By: /s/Xxxxxx X Xxxxxxxxx
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Title: President
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XXXXX FARGO BANK CORPORATE BORROWING RESOLUTION
TO XXXXX FARGO BANK, NATIONAL ASSOCIATION
RESOLVED: That any of the following officers: Chairman of the Board,
President/C.E.O. or Secretary/C.F.O. and Treasurer together with any one
of the following officers: None of this corporation Xxxxxxx Holdings,
Inc. be and they are hereby authorized and empowered for and on behalf
of and in the name of this corporation and as its corporate act and
deed:
(1) To borrow money from Xxxxx Fargo Bank, National Association
("Bank") and to assume any liabilities of any other person or entity to
Bank, in such form and on such terms and conditions as shall be agreed
upon by those authorized above and Bank, and to sign and deliver such
promissory notes and other evidences of indebtedness for money borrowed
or advanced and/or for indebtedness assumed as Bank shall require; such
promissory notes or other evidences of indebtedness may provide that
advances be requested by telephone communication and by any officer,
employee or agent of this corporation so long as the advances are
deposited into any deposit account of this corporation with Bank; this
corporation shall be bound to Bank by, and Bank may rely upon, any
communication or act, including telephone communications, purporting to
be done by any office, employee or agent of this corporation provided
that Bank believes, in good faith, that the same is done by such person.
(2) To contract for the issuance by Bank of letters of credit, to
discount with Bank notes, acceptances and evidences of indebtedness
payable to or due this corporation and to endorse the same and execute
such contracts and instruments for repayment thereof to Bank as Bank
shall require, and to enter into foreign exchange transactions with or
through Bank.
(3) To mortgage, encumber, pledge, convey, grant, assign or otherwise
transfer all or any part of this corporation's real or personal property
for the purpose of securing the payment of any of the promissory notes,
contracts, instruments and other evidences of indebtedness authorized
hereby, and to execute and deliver to Bank such deeds of trust,
mortgages, pledge agreements and/or other security agreements as Bank
shall require.
(4) To perform all acts and to execute and deliver all documents
described above and all other contracts and instruments which Bank deems
necessary or convenient to accomplish the purposes of this resolution
and/or to perform or continue the rights, remedies and security
interests to be given to Bank hereunder, including without limitation,
any modifications, renewals and/or extensions of any of this
corporation's obligations to Bank, however evidenced; provided that the
aggregate principal amount of all sums borrowed and credits established
pursuant to this resolution shall not at any time exceed the sum of
$416,285.00 outstanding and unpaid.
Loans made pursuant to a special resolution and loans made by
offices or Bank other than the office to which this resolution is
delivered shall be in addition to the foregoing limitation.
The authority hereby conferred shall be deemed retroactive, and any
and all acts authorized herein which were performed prior to the passage
of this resolution hereby approved and ratified. The authority hereby
conferred is in addition to that conferred by any other resolution
heretofore or hereafter delivered to Bank and shall continue in full
force and effect until Bank shall have received notice in writing,
certified by the Secretary of this corporation, of the revocation hereof
by a resolution duly adopted by the Board of Directors of this
corporation, and such revocation shall be effective only as to credit
which was not extended or committed to this corporation by Bank prior to
Bank's receipt of such notice.
CERTIFICATION
I, Secretary of Xxxxxxx Holdings, Inc., a corporation created and
existing under the laws of the State of California, do hereby certify
and declare that the foregoing is a full, true and correct copy of the
resolutions duly passed and adopted by the Board of Directors of said
corporation, by written consent of all Directors of said corporation or
at a meeting of said Board duly and regularly called, noticed and held
on _______________, at which meeting a quorum of the Board of Directors
was present and voted in favor of said resolutions; that said
resolutions are now in full force and effect; that there is no provision
in the Articles of Incorporation or Bylaws of said corporation, or any
shareholder agreement, limiting the power of the Board of Directors of
said corporation to pass the foregoing resolutions and that such
resolutions are in conformity with the provisions of such Articles of
Incorporation and Bylaws; and that no approval by the shareholders of,
or any of the outstanding shares of, said corporation is required with
respect to the matters which are the subject of the foregoing
resolutions.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the
corporate seal of said corporation as of August 16, 1996.
(SEAL)
/s/Xxxxx Xxxxxx, Secretary of
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Xxxxxxx Holdings, Inc., a corporation
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CERTIFICATE OF INCUMBENCY
To: XXXXX FARGO BANK, NATIONAL ASSOCIATION
The undersigned, Xxxxx Xxxxxx, Secretary of Xxxxxxx Holdings, Inc.,
a corporation created and existing under the laws of the State of
California, hereby certificates to Xxxxx Fargo Bank, National
Association ("Bank") that the following named persons are those duly
elected officers of this corporation specified in the Corporate
Resolution attached hereto and that the signatures opposite their names
are their true signatures:
Title Name Signature
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Chairman of
the Board Xxxxxxx Xxxxxxx /s/Xxxxxxx Xxxxxxx
President/CEO Xxxxxx Xxxxxxxxx /s/Xxxxxx X Xxxxxxxxx
Secretary/CFO
and Treasurer Xxxxx Xxxxxx /s/Xxxxx Xxxxxx
The undersigned further certifies that should any of the above-
named officers change, or should the signature requirements of said
Corporate Resolution change, this corporation shall provide Bank
immediately with a new Certificate of Incumbency. Bank is hereby
authorized to rely on this Certificate until a new Certificate certified
by the Secretary of this corporation is received by Bank.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal of this corporation as of August 16, 1996.
Xxxxx Xxxxxx, Secretary of
Xxxxxxx Holdings, Inc., a corporation
