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Exhibit 10.33
FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT
THIS FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT ("First Amendment") is
made effective as of November 8, 1996, by and between AGRICULTURAL PRODUCTS,
INC., a California corporation ("Borrower"), and UNION BANK OF CALIFORNIA,
N.A., a national banking association ("Bank").
RECITALS
A. Borrower is currently indebted to Bank pursuant to the terns
and conditions of that certain Reimbursement Agreement dated as of December l,
1991 ("Agreement"). Unless otherwise indicated, all capitalized terms
contained herein shall have the same meanings as set forth in the Agreement.
B. Earlier this year Union Bank ("UB") and The Bank of
California, N.A. ("BOC") engaged in a corporate reorganization and Bank is the
entity resulting therefrom.
C. Pursuant to the Agreement and in connection with the issuance
by the California Statewide Communities Development Authority of its Weekly
Adjustable/Fixed Rate Revenue Bonds, Series 1991 (Agricultural Products, Inc.
Project) in the original principal amount of $1,500,000 (which issuance was
part of a composite issuance), on December 12,1991, UB issued its irrevocable
direct-pay Letter of Credit No. 276/171394 ("Letter of Credit") for the account
of Borrower and other account parties in favor of Trustee, supporting in part
the obligations of Borrower under its Loan Agreement with Issuer (pursuant to
which Bond proceeds were loaned to Borrower). The Letter of Credit is
scheduled to expire on December 12, 1996.
D. As a condition precedent to issuing its Letter of Credit, UB
required that Borrower cause a financial institution satisfactory to UB to
issue in favor of UB a standby letter of credit supporting Borrower's
obligations under the Agreement. In order to satisfy this condition, Borrower
caused BOC to issue its Irrevocable Standby Letter of Credit No. I-20487 in
favor of UB on December 12, 1991 ("Standby Letter of Credit"). In connection
with the issuance of the Standby Letter of Credit, Borrower and BOC entered
into a Standby Reimbursement Agreement dated December 1, 1991 (as amended from
time to time, the "Standby Agreement"). The obligations of Borrower under the
Standby Agreement are secured by that certain Deed of Trust (And Assignment of
Leases and Rents, Assignment for Security Purposes of Construction Contract and
Plans and Specifications, Security Agreement and Fixture Filing) by Borrower,
as Trustor, to The Sansome Corporation, as Trustee, for the benefit of BOC, as
Beneficiary, dated December 6, 1991 and recorded on December 11, 1991 as
Instrument No. 466769 in the Official Records of San Bernardino County,
California ("Deed of Trust"), covering the property described therein
("Property").
E. Subject to the satisfaction of the conditions precedent set
forth herein, Bank has agreed to extend the expiration date of the Letter of
Credit. In addition, because of the corporate reorganization of UB and BOC,
the parties have agreed that the Standby Letter of Credit is no
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longer required, that the Deed of Trust shall secure directly Borrower's
obligations under the Agreement, as amended hereby, and that the Agreement be
amended to include various terms, conditions and covenants previously included
in the Standby Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. RECITALS. The parties hereby confirm the accuracy of the
foregoing Recitals.
2. TERMINATION OF STANDBY LETTER OF CREDIT. Subject to the terms
and conditions hereof, the Standby Letter of Credit shall be terminated and all
references to the "Standby Letter of Credit" and the "Standby Bank" contained
in the Agreement, including without limitation the provisions of Section 4,
subsections 7(i), (l) and (m), subsection 8(a)(ix) and the last sentence of
subsection 8(b) of the Agreement, are hereby deleted in their entirety.
3. MODIFICATION OF DEED OF TRUST. Borrower hereby agrees that
concurrently herewith, Borrower shall deliver to Bank a Modification to Deed of
Trust ("D/T Modification") in recordable form and substance satisfactory to
Bank, which D/T Modification shall provide, in part, that the Deed of Trust is
modified to secure all of Borrower's obligations to Bank under the Agreement,
as amended by this First Amendment and as may be further amended, modified,
supplemented or restated from time to time.
4. SINKING FUND ACCOUNT AND PAYMENTS. On or before the first day
of each calendar month after the date hereof to and including November l, 1999,
Borrower shall deposit into an interest-bearing deposit account at the Bank
(the "Sinking Fund Account") the sum of $1,667 per month, and, thereafter, on
the first day of each calendar month beginning December l, 1999, until the
expiration or cancellation of the Letter of Credit, Borrower shall deposit into
the Sinking Fund Account the sum of $2,083 per month. All sums deposited in
the Sinking Fund Account, together with all interest earned thereon, are hereby
pledged and assigned to Bank pursuant to the Deed of Trust as additional
security for Borrower's performance of its obligations under the Agreement, as
amended by this First Amendment and as may be further amended, modified,
supplemented or restated from time to time, and shall not be available to
Borrower during the term of the Agreement for any other purpose. Upon Bank's
honoring of a "B Drawing" under Annex B to the Letter of Credit with respect to
any scheduled Sinking Fund Installment (as defined in and pursuant to Item 9 of
Annex A to the Indenture), Bank shall at Borrower's request use funds in the
Sinking Fund Account (to the extent sufficient funds are available) to remit to
Bank a sum equal to the amount of such Sinking Fund Installment so paid. In
addition, funds in the Sinking Fund Account may be applied at Borrower's
request to any Bank fees due and payable in accordance herewith. The balance
of funds in the Sinking Fund Account shall remain on deposit therein until the
termination of the Agreement, subject to the terms and conditions hereof.
5. FEES. In addition to any other fees payable under the
Agreement, Borrower agrees that it shall pay to Bank a renewal fee, payable
concurrently herewith, in an amount equal to three-eighths of one percent
(.375%) of Borrower's share of the Stated Amount of the Letter of
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Credit as of the date hereof. Furthermore, from and after the date that the
conditions precedent set forth in subsection 7(e) below have been satisfied,
"Borrower's Fee Percentage", as set forth as Item 8 of Schedule A to the
Agreement and referenced in subsection 2(b)(i) of the Agreement, shall be equal
to one and one-eighth percent (1.125%) rather than one-quarter of one percent
(.25%) and Schedule A is hereby amended accordingly. Subsection 2(b)(ii) of
the Agreement is hereby deleted.
6. ADDITIONAL PROVISIONS TO AGREEMENT.
a. Additional Definitions. The following additional
definitions are hereby added to Section 17 of the Agreement:
"Affiliate" means any Person which directly or
indirectly controls, is controlled by, or is under common
control with, Borrower, including, but not limited to, any
Subsidiary. "Control" "controlled by" and "under common
control with" means possession, directly or indirectly, of
power to direct or cause the direction of management or
policies (whether through ownership of voting securities, by
contract or otherwise); provided that, in any event, any
Person or affiliated group which owns directly or indirectly
five percent or more of the securities having ordinary voting
power for the election of directors of a corporation shall be
conclusively presumed to control such corporation
"Current Long-Term Debt" means the current portion of
any long-term debt and long-term capital lease obligations
owing to Bank under this Agreement or to any Person under any
other debt incurred by Borrower, including, without
limitation, scheduled principal payments becoming due and
payable during the next twelve (12) full calendar months.
"Debt Coverage Ratio" means the quotient obtained by
dividing Net Cash Income by Current Long-Term Debt.
"Deed of Trust" and "Property" have the meanings
assigned to them in Recital D above.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"GAAP" means generally accepted accounting principles
and practices consistently applied.
"Governmental Authority" means any governmental or
regulatory body having jurisdiction over Borrower, the Project
or the Property.
"Hazardous Material" means any hazardous or toxic
substance, material or waste which is or becomes regulated by
any local Governmental Authority, the State of California or
the United States Government. The term "Hazardous Material"
includes, without limitation, any material or substance which
is
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(i) defined as a "hazardous waste" under Sections 25115, 25117
or 25122.7, or listed pursuant to Section 25140 of the
California Health and Safety Code, Division 20, Chapter 6.5
(Hazardous Waste Control Law), (ii) defined as a "hazardous
substance" under Section 25316 of the California Health and
Safety Code, Division 20, Chapter 6.8 (Xxxxxxxxx-Xxxxxxx-Xxxxxx
Hazardous Substance Account Act), (iii) defined as a "hazardous
material," "hazardous substance," or "hazardous waste" under
Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response
Plans and Inventory, (iv) defined as a "hazardous substance"
under Section 25281 of the California Health and Safety Code,
Division 20, Chapter 6.7 (Underground Storage of Hazardous
Substances), (v) petroleum or any volatile derivative of
petroleum, (vi) asbestos, (vii) listed under Article Nine or
defined as hazardous or extremely hazardous pursuant to Article
11 of Title 22 of the California Administrative Code, Division
4, Chapter 20, (viii) designated as a "hazardous substance"
pursuant to Section 311 of the Federal Water Pollution Control
Act (33 U.S.C. Section 1317), (ix) defined as "hazardous waste"
pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C.
Section 6903), or (x) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. Section
9601, et seq. (42 U.S.C. Section 9601).
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any
agreement to give any of the foregoing, any conditional sale
or other title retention agreement, any lease in the nature
thereof, and the filing of or any agreement to give any
financing agreement under the Uniform Commercial Code of any
jurisdiction).
"Net Cash Income" means Borrower's Net Profit for the
four (4) preceding full fiscal quarters of Borrower, plus the
amount of any depreciation and other non-cash items deducted
to determine such Net Profit in accordance with GAAP, less the
amount of any dividends and distributions paid by Borrower to
any Person during such period.
"Net Profit" means the net income of Borrower after
taxes for any financial reporting period determined in
accordance with GAAP.
"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereto.
"Plan" means any employee benefit pension plan subject
to Title IV of ERISA and maintained by Borrower or any such
plan to which Borrower is required to contribute on behalf of
any of its employees.
"Related Documents" means this Agreement, the Letter
of Credit, the Deed of Trust, the Bonds, the Indenture, the
Loan Agreement and any other agreements
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or instruments relating to or executed pursuant to or in
connection with any of the foregoing instruments and
agreements. This definition supersedes the definition of
"Related Documents" contained in the Agreement.
"Related Person" means any officer, employee,
director, shareholder and Affiliate of Borrower and any
officer, employee, director and shareholder of any Affiliate,
or a relative of any of them.
"Reportable Event" means a reportable event as
defined in Title IV of ERISA, except actions of general
applicability by the Secretary of Labor under Section 110 of
ERISA.
"Tangible Net Worth" means the net book value of (a)
all Borrower's assets, exclusive of intangibles, and loans to
and notes receivable from Related Persons, minus (b) all
Borrower's liabilities determined in accordance with GAAP.
"Termination Event" means (i) a Reportable Event
described in Section 4043 of ERISA and the regulations issued
thereunder (other than a Reportable Event not subject to the
provision for 30-day notice to the PBGC under such
regulations), or (ii) the withdrawal of Borrower or any of its
Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to terminate
a Plan or the treatment of a Plan amendment as a termination
under Section 4041 of ERISA, or (iv) the institution of
proceedings to terminate a Plan by the PBGC, or (v) any other
event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.
b. Additional Representations and Warranties. All
representations and warranties contained in the Agreement are
continuing and shall be true and correct as of each draw under the
Letter of Credit. The following new subsections (l) through (p) are
hereby added to Section 6 of the Agreement:
"(l) It is the intention of Borrower that the
interest on the Bonds be excluded from the gross income of the
holders thereof (other than "substantial users," or "Related
persons" of substantial users, as such terms are defined in
Section 144(a)(3) of the Internal Revenue Code of 1986, as
amended from time to time) for Federal income tax purposes.
To that end, Borrower represents to the Bank that it has not
taken any action, and knows of no action that any other person
has taken, which would cause interest on the Bonds to be
included in the gross income of the recipients thereof.
Borrower warrants that it will not take any action or omit to
take any action which, if taken or omitted, would cause
interest on the Bonds to be included in the gross income of
the holders thereof (other than "substantial users," or
"Related persons" of substantial users, as such terms are
defined in Section 144(a)(3) of the Internal Revenue Code of
1986, as amended from time to time) for Federal income tax
purposes;
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(m) No Reportable Event has occurred and is
continuing with respect to any Plan, and no Termination Event
has occurred and is continuing with respect to any Plan
Schedule B (Actuarial Information) to the 1987 annual report
(Form 5500 Series) with respect to each Plan, copies of which
have been filed with the Internal Revenue Service and
furnished to the Bank, is complete and accurate and fairly
presents the funding status of such Plan, and since the date
of such Schedule B there has been no material adverse change
in such funding status. Neither Borrower nor any of its
Affiliates has incurred nor reasonably expects to incur any
withdrawal liability under ERISA to any Multiemployer Plan;
(n) Borrower has filed or caused to be filed all
tax returns which to the knowledge of Borrower are required to
be filed, and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it, except
for returns which have been appropriately extended, and all
other taxes, fees or other charges imposed on it by any
governmental authority, agency or instrumentality which have
become due and payable (other than those the amount or
validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves
in conformity with generally accepted accounting principles
have been provided on the books of Borrower, and no tax liens
have been filed;
(o) Borrower enjoys peaceful and undisturbed
possession under all leases under which it operates, subject
to subleases in the ordinary course of business, and all of
such leases are valid and subsisting and are in full force and
effect. There is no default on the part of Borrower existing
under any of such leases, and none of such leases contains any
unusually or burdensome provision which materially adversely
affects or in the future may (so far as Borrower can now
foresee) materially adversely affect Borrower's right of
occupancy and to continue its operations under such lease; and
(p) No "Event of Default" or "Default" as defined
in this Agreement or any Related Document has occurred and is
continuing."
c. Additional Covenants. Subsections 7(a)(i) and (ii)
of the Agreement are hereby deleted and the following new subsections
(o) through (dd) are hereby added to Section 7 of the Agreement:
"(o) Borrower will deliver to the Bank, in form
and detail satisfactory to the Bank, the following
information, which Borrower represents will be accurate and
complete in all respects:
(i) Within 90 days of Borrower's fiscal
year-end, the annual financial statements of
Calnetics Corporation, a California corporation and
the corporate parent of Borrower ("Calnetics") and
its subsidiaries. These financial statements must be
audited (with an unqualified opinion) by a Certified
Public Accountant ("CPA") reasonably acceptable to
the Bank.
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The statements shall be prepared on a consolidated basis.
Neither Calnetics nor Borrower shall change their current
fiscal year-ends without the prior written consent of the
Bank, except that Borrower may alter its fiscal year- end to
conform with the fiscal year-end of Calnetics.
(ii) Within 45 days after the end of each
fiscal quarter, the unaudited quarterly financial
statements of Calnetics and its subsidiaries prepared
by Calnetics and attested to by a responsible officer
of Calnetics as being complete and correct and fairly
presenting the financial condition and results of
operations of such entities. These statements shall
be prepared on a consolidated and consolidating
basis.
(p) Borrower shall:
(i) Maintain at all times a ratio of
cash and cash equivalents plus trade receivables to
current liabilities of not less than 1.0 to 1.0;
(ii) Maintain a Debt Coverage Ratio of
1.05, monitored on an annual basis; and
(iii) Achieve Net Profits of greater than
zero for each financial reporting year.
(q) Borrower will pay and discharge all
indebtedness, liens, charges, taxes, assessments and
governmental charges or levies imposed upon it or upon its
income or profits, or upon any assets and properties belonging
to it, prior to the date on which penalties attach thereto,
and all lawful claims which, if unpaid, would become a Lien
upon any of its properties, including the Project; provided
that Borrower shall not be required to pay any such tax,
assessment, charge, levy or claim, which is being contested in
good faith and by appropriate proceedings, if it makes
adequate provision for payment thereof, satisfactory to the
Bank, in the event it should lose such contest.
(r) Borrower will preserve and maintain its
existence, rights, franchises and privileges necessary or
desirable in the normal conduct of its business as
contemplated and as presently conducted.
(s) Borrower will comply with the requirements of
all applicable laws, rules, regulations and orders of any
governmental authority having jurisdiction, the terms of any
indenture, contract or other instrument to which it is a party
or under which it or its properties may be bound,
non-compliance with which could materially adversely affect
(a) Borrower's business, properties, condition (financial or
otherwise) or operations, (b) Borrower's ability to perform
its obligations under this Agreement or any of the Related
Documents to which it is or is to be a party, or (c)
Borrower's ability to construct, own or operate the Project,
unless the same is being contested in good faith and by
appropriate proceedings and Borrower
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makes adequate provision for payment thereof, satisfactory to
the Bank, in the event it should lose such contest
(t) Borrower shall not amend, modify or
terminate, or agree to amend, modify or terminate any Bond or
any Related Document.
(u) Except as otherwise provided herein, Borrower
shall not be indebted or suffer for borrowed money, the
deferred purchase price of property, or leases which would be
capitalized in accordance with GAAP; or become liable as a
surety, guarantor, accommodation party or otherwise for or
upon the obligation of any other person, except:
(i) The acquisition of supplies or
inventory on normal trade credit;
(ii) The endorsement of negotiable
instruments for deposit or collection in the ordinary
course of Borrower's business;
(iii) The indebtedness of Borrower under
this Agreement;
(iv) Indebtedness which has been
disclosed to Bank in writing prior to the date of the
First Amendment to this Agreement and which has not
been disapproved by Bank, including without
limitation the promissory notes and mortgages in
favor of First Union Bank of Florida with respect to
that certain real property known as 3855 and 0000 X.
Xxxx Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxx, which, in
the aggregate shall not exceed $350,000; and
(v) Indebtedness to Bank of America
National Trust & Savings Association ("Bank of
America") as described in that certain Intercreditor
Agreement between the Bank and Bank of America dated
June 20, 1994 ("Intercreditor Agreement"), regarding
collateral provided to Bank and Bank of America by
Borrower and its Affiliates.
(v) Borrower shall not create, incur, assume or
permit to exist any Lien, or grant any other Person a negative
pledge, on any of Borrower's property, except:
(i) Involuntary Liens which, in the
aggregate, would not have a material adverse effect
on Borrower's financial condition or business;
(ii) Liens for current taxes or other
governmental assessments which are not delinquent, or
which are contested in good faith by the appropriate
procedures and for which appropriate reserves are
maintained;
(iii) Liens in favor of Bank;
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(iv) The security interests created by
any Related Document;
(v) Exceptions referred to in the Title
Policy as approved by the Bank;
(vi) Liens which have been disclosed to
Bank in writing prior to the date of the First
Amendment to this Agreement and have not been
disapproved by Bank, including without limitation the
mortgages referred to in subsection (u)(iv) above;
and
(vii) Liens in favor of Bank of America as
described in the Intercreditor Agreement.
(w) Without the prior written consent of Bank:
Borrower shall not change its name; liquidate or dissolve, or
enter into any consolidation, merger, partnership, joint
venture or other combination; issue, redeem, purchase, retire
or otherwise acquire any shares of any class of capital stock
of Borrower or grant or issue any warrant, right or option
pertaining thereto or other security convertible into any of
the foregoing; reorganize, reclassify or recapitalize its
capital stock.
(x) Borrower shall not sell its accounts,
contract rights or receivables pertaining to its business, or
sell, lease, abandon or otherwise dispose of, directly or
indirectly, its assets or properties except in the ordinary
course of business.
(y) Borrower shall not directly or indirectly:
pay any dividends or make any other distributions on account
of any ownership interest in Borrower or set apart any sum for
such purpose; or redeem, retire, purchase or otherwise acquire
beneficially any ownership interest or subordinated
Indebtedness of Borrower now or hereafter outstanding, or set
apart any sum for any such purpose.
(z) Borrower shall not make or suffer to exist
any loans, advances or investments, except:
(i) Bank accounts in the ordinary course
of Borrower's business;
(ii) Accounts receivable in the ordinary
course of Borrower's business;
(iii) Investments in domestic certificates
of deposit issued by, and other deposit investments
with, financial institutions organized under the laws
of the United States or a state thereof, maintaining
capital of at least $100 million and a rating of at
least Aa by Xxxxx'x or any successor rating agency;
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(iv) Investments in short-term marketable
obligations of the United States of America and in
open market commercial paper given the highest credit
rating by a national credit agency and maturing not
more than one year from the creation thereof;
(v) Securities of the United States
Government; and
(vi) Temporary advances to cover
incidental expenses to be incurred in the ordinary
course of business.
(aa) Borrower shall net prepay, or permit the
prepayment of, any debt subordinated to Borrower's
indebtedness to Bank except as expressly provided in any
subordination agreements executed by the Bank and Borrower's
creditor.
(bb) Borrower shall not take any of the following
actions without the Bank's prior written consent, which
consent the Bank may grant or withhold in its sole and
subjective discretion:
(i) make any prepayment of amounts due
to the Trustee under the Loan Agreement for optional
redemption of Bonds pursuant to Sections 4.01(2) or
4.01(6) of the Indenture; provided, that such
prepayment shall be permitted so long as Borrower
shall not be in violation of any covenants contained
in this Agreement after making such prepayment; or
(ii) use or allow the use of excess net
insurance or condemnation proceeds remaining after
the completion of any restoration or repair work to
be applied to the payment of principal of or interest
on the Bonds pursuant to Section 6.2(a) of the Loan
Agreement.
(cc) Borrower shall not directly or indirectly
enter into any transaction with or for the benefit of a
Related Person on terms more favorable to the Related Persons
than would have been obtainable in "arms' length" dealings.
(dd) Borrower shall not conduct any business other
than the business Borrower conducts as of the Date of
Issuance."
d. Additional Events of Default. The following new
subsections (x) through (xvi) are hereby added to subsection 8(a) of
the Agreement:
"(x) Any governmental or regulatory authority
shall take any action, or any other event shall occur, which,
in the reasonable judgment of Bank, would have a material
adverse effect on the financial condition or business of
Borrower; or
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(xi) Any sale, transfer or other disposition of
all or a substantial or material part of the assets of
Borrower shall occur (including, without limitation, to any
trust or similar entity); or
(xii) Any final judgment(s) shall be entered
against Borrows, or any involuntary Lien(s) of any kind or
character shall attach to any assets or property of Borrower,
any of which, in the judgment of Bank, will have a material
adverse effect on the financial condition or business of
Borrower; or
(xiii) Without the prior written consent of Bank,
which consent shall not be unreasonably withheld, any change
shall occur in the corporate or legal structure of Borrower;
or
(xiv) Any Plan shall be terminated pursuant to
ERISA, a trustee shall be appointed by the appropriate United
State District Court to administer any Plan, the PBGC shall
institute proceedings to terminate any Plan, or any Plan shall
fail to satisfy the minimum funding standard for such Plan for
a plan year as established by the Internal Revenue Code, as
amended from time to time; or.
(xv) The Deed of Trust shall cease to be in full
force and effect as a first lien upon the Property; or
(xvi) The occurrence of any "Event of Default" as
defined in any note, credit agreement or other loan document
evidencing credit extended by Bank to any Affiliate of
Borrower, including without limitation Calnetics."
8. CONDITIONS PRECEDENT. Bank's agreement to the terms and
conditions of this First Amendment is subject to the satisfaction of the
following conditions precedent:
(a) The issuance by Commonwealth Title Insurance Company
of CLTA endorsement nos. 110.5, each issued without exception, for
attachment to Policy of Title Insurance No. 512352-95, issued December
11,1991, insuring the validity and priority of the Deed of Trust, as
modified, subject only to such exceptions as have been approved by the
Bank in writing;
(b) The recordation of the fully executed and
acknowledged Modification of Deed of Trust in the Official Records of
San Bernardino County, California;
(c) Borrower's execution and delivery to the Bank of a
Hazardous Materials and Environmental Indemnity Agreement of or about
even date herewith in form and substance satisfactory to the Bank
covering the Property;
(d) Borrower shall have executed and delivered to Bank an
application for amendment of the Letter of Credit in form and
substance satisfactory to Bank and Trustee shall have accepted the
amendment to the Letter of Credit issued by Bank;
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(e) The Custody, Pledge and Security Agreement dated
December l, 1991 originally executed by BOC, Borrower and Bankers
Trust Company shall have been modified if and as required by Bank;
(f) Borrower's reimbursement to the Bank of all of its
costs and expenses in connection with the transactions evidenced
hereby, including, without limitation, the costs of appraisals and
environmental reports and the Bank's legal fees and expenses; provided
that Borrower's reimbursement obligation shall not exceed $8,000; and
(g) No event of Default shall have occurred and no event
shall have occurred which, with notice or passage of time or both,
would constitute an Event of Default.
9. NOTICES. Notices to Bank or Borrower under the Agreement
shall be addressed (and the Agreement is hereby amended accordingly):
If to Bank: Union Bank of California, N.A.
0000 Xxxxx Xxxxxx, Xxx. 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
FAX No. (000) 000-0000
If to Borrower: Agricultural Products, Inc.
0000 X. Xxxxxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
FAX No. (000) 000-0000
with a copy to: Calnetics Corporation
00000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
FAX No. (000) 000-0000
10. GENERAL PROVISIONS. Except as specifically provided herein,
all terms and conditions of the Agreement remain in full force and effect,
without waiver or modification. This First Amendment and the Agreement shall
be read together as one document. Borrower hereby confirms all representations
and warranties contained in the Agreement and reaffirms all covenants set forth
therein (as amended hereby). Further, Borrower certifies that, as of the date
of this First Amendment, there exists no Event of Default as defined in the
Agreement, as amended hereby, nor, to Borrower's knowledge, any condition, act
or event which with the giving of notice or the passage of time or both would
constitute an Event of Default. This First Amendment may he executed in
counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to become effective as of the date and year first written above.
BORROWER: AGRICULTURAL PRODUCTS, INC.
a California corporation
By: /s/Xxx Xxxxxxx
-------------------------
Its: President
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BANK: UNION BANK OF CALIFORNIA, N.A.
By: /s/Xxxxxx Xxxxxx
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Its: Vice President
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