FIRST AMENDMENT TO CREDIT AGREEMENT AND NOTE
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND NOTE is entered into as
of April 1, 1999 between XXXXXXX-XXXXXX, INC., a Delaware corporation
("Borrower"), and EAST-WEST BANK, a California banking corporation ("Lender").
RECITALS
A. Borrowed and Lender are parties to the Amended and Restated
Revolving Credit Agreement dated as of September 10, 1998 (the "Credit
Agreement"). Debt outstanding under the Credit Agreement is evidenced by the
Amended and Restated Promissory Note dated September 10, 1998 in the
principal amount of $20,000,000 made by Borrower and payable to the order of
Lender (the "Note").
B. Borrower and Lender desire to increase the amount available to
borrow under the Credit Agreement and accordingly wish to enter into this
Agreement.
AGREEMENT
1. AMENDMENTS.
(a) "$20,000,000" in Sections 1.1(c)(i), 1.3(a)(c)(i), 1.3(c),
2.4(b)(i) of the Credit Agreement, the form of Certification for Loan Request
set forth as Exhibit A to the Credit Agreement and on the first page of the
Note is deleted and "$21,500,000" is inserted in its place. Also, "Twenty
Million" on the first page of the Note is deleted and "Twenty-One Million
Five Hundred Thousand" is inserted in its place.
(b) A Section 4.15 is added to the Credit Agreement as follows:
"4.15 POSITIVE NET INCOME. Borrower shall earn net income (calculated in
accordance with generally accepted accounting principles) in each fiscal
year."
2. CONDITIONS PRECEDENT. The effectiveness of the amendments set
forth in Section 1 above is subject to the following conditions precedent:
(a) Lender shall have received from Colony K-W, LLC a consent to
the increase in the amount of credit available under the Credit Agreement and
the Note and a confirmation that its loans to Borrower continue to be
subordinate in right of repayment to the credit extended pursuant to the
Credit Agreement; and
(b) such other conditions as Lender shall reasonably require.
3. OTHER AMENDMENTS. Each reference in the Credit Agreement and the
Note to the Credit Agreement and the Note will mean and be a reference to the
Credit Agreement and Note as amended by this Amendment.
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4. FULL FORCE AND EFFECT. Borrower represents that it has no rights
of setoff relating to or defenses against payment of the credit extended by
the Credit Agreement and the Note, that the indebtedness owing under the
Credit Agreement and Note is payable in accordance with the terms of such
documents, and, except as provided in or contemplated by this Amendment, such
documents remain unmodified and in full force and effect.
5. ENTIRE AGREEMENT. This Amendment constitutes the entire agreement
and understanding among the parties with respect to the subject matter of
such amendments and supersedes all prior agreements and understandings with
respect to such subject matter, whether oral or written.
6. FEES AND EXPENSES. Borrower agrees, on Lender's demand, to pay
all costs and expenses incurred by Lender in connection with this Amendment.
XXXXXX-XXXXXX, INC., a Delaware
corporation
By: /s/ [ILLEGIBLE]
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EAST-WEST BANK, a California banking
corporation
By:
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Xxxxxxxx Xxxx, Vice President
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