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SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), is
entered into as of March 17, 1997, by and between JALATE LIMITED, INC.
("Borrower"), and XXXXX FARGO HSBC TRADE BANK, N.A. ("Bank").
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms
and conditions of certain Credit Agreement dated as of June 1, 1996, (the
"Agreement").
WHEREAS, Bank and Borrower have agreed to certain changes in the terms
and conditions set forth in the Agreement and have agreed to amend the
Agreement to reflect said changes.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that the Agreement
shall be amended as follows:
I. EXHIBIT A, ADDENDUM TO CREDIT AGREEMENT shall be amended by deleting in
its entirety, under ADDITIONAL NEGATIVE COVENANTS, the section,
"GUARANTEES", and by substituting the following therefor:
"- GUARANTEES. Borrower will not guarantee or otherwise become
liable with respect to the obligations of any other person or
entity, except for endorsement of instruments for deposit into
Borrower's account in the ordinary course of Borrower's
business, and except for guarantees of the obligations of Linroz
Manufacturing Company to General Electric Credit Corporation
(arising from leases maturing June 1, 2000 and November 17,
2000) which do not exceed in the aggregate at any one time
outstanding $544,800."
II. EXHIBIT B, LOANS AGAINST IMPORTS FOR LETTERS OF CREDIT REIMBURSEMENT
SUPPLEMENT, shall be amended by:
A. deleting "$2,000,000" as the "CREDIT LIMIT", and substituting
"$3,000,000", therefor;
B. deleting "$2,000,000" as the "CREDIT SUBLIMIT", and substituting
"$3,000,000", therefor;
C. deleting "$2,000,000" as "THE AGGREGATE AMOUNT OF CREDIT
EXTENSIONS OUTSTANDING UNDER THIS FACILITY AND THE FOLLOWING
OTHER FACILITIES MAY NOT ANY ONE TIME EXCEED", and substituting
"$3,000,000", therefor;
D. adding to the section, "FEES: The following fees will apply to
this Facility:
"- Borrower will pay the following documentation fee to Trade
Bank: $1,000."; and
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E. deleting the section, "INTEREST RATE:" in its entirety and
substituting the following therefor:
"INTEREST RATE: All advances under this Facility will bear
interest at the following rate:
- PRIME RATE: The Prime Rate plus 0.25% per annum."
III. EXHIBIT B, SHIPPING GUARANTEES SUPPLEMENT, shall be amended by deleting
"$2,000,000" as "THE AGGREGATE AMOUNT OF CREDIT EXTENSIONS OUTSTANDING
UNDER THIS FACILITY AND THE FOLLOWING OTHER FACILITIES MAY NOT AT ANY
ONE TIME EXCEED", and by substituting "$3,000,000", therefor.
Except as specifically provided herein, all terms and conditions of the
Agreement remain in full force and effect, without waiver or modification. All
terms defined in the Agreement shall have the same meaning when used in this
Amendment. This Amendment and the Agreement shall be read together as one
document.
Borrower hereby remakes all representations and warranties contained in
the 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 Agreement, nor any condition, act or even 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.
JALATE LIMITED, INC. XXXXX FARGO HSBC TRADE BANK, N.A.
By: /s/ X. X. XXXXXXX By: /s/ XXX XXXX-XXXXXXXX
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Xxx Xxxx-Xxxxxxxx
Title: VP Finance & CFO Title: Vice President
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XXXXX FARGO HSBC TRADE BANK LOANS AGAINST IMPORTS NOTE
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$3,000,000 March 17, 1997
FOR VALUE RECEIVED, the undersigned JALATE LIMITED, INC., A CALIFORNIA
CORPORATION (jointly and severally, if the undersigned be more than one)
("Borrower") hereby promises to pay to the order of XXXXX FARGO HSBC TRADE
BANK, N.A. ("Bank"), when due as provided herein, at its 000 Xxxxx Xxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxx, XX 00000 office, in lawful money of the United
States and in immediately available funds, the principal sum of Three Million
Dollars ($3,000,000) or, if less, the aggregate unpaid principal amount of all
advances made by Bank to Borrower from time to time, as evidenced on the
records of Bank, together with interest thereon as hereinafter provided.
Borrower may from time to time from the date of this Note up to and including
May 31, 1997, borrow and partially or wholly repay its outstanding advances,
and reborrow, subject to all of the limitations, terms and conditions of this
Note and of that certain Credit Agreement between Borrower and Trade Bank dated
as of June 1, 1996, as amended from time to time ("Credit Agreement") executed
in connection with or governing this Note; provided that the total advances
made under this Note shall not exceed the principal amount stated above. The
unpaid principal balance of this obligation at any time shall be the total
amounts advanced hereunder by the holder hereof less the amount of principal
payments made hereon by or for any Borrower, which balance may be endorsed
hereon from time to time by the holder.
The principal amount and maturity of each advance shall be agreed upon by
Borrower and Bank prior to the making of each advance, and such terms, together
with the applicable interest rate of each advance and all payments of principal
and interest made on this Note shall be inscribed by Bank on its records. Each
advance shall be payable on the earlier of (i) the due date thereof, as
inscribed by Bank on its records, or (ii) 60 days after the date of such advance
is made. All payments shall be made free of any setoff, counterclaims or
withholdings. Each entry set forth on Bank's records shall be the prima facie
evidence of the facts so set forth. No failure by Bank to make, or no error by
Bank in making, any inscription on its records shall affect Borrower's
obligation to repay the full principal amount advanced by Bank to or for the
account of Borrower, or Borrower's obligation to pay interest thereon at the
agreed upon rate.
Each advance shall bear interest at the Prime Rate (defined herein) plus
one-quarter of one percent (.25%). Interest will be calculated for each day at
1/360th of the applicable per annum rate, which will result in a higher
effective annual rate. Accrued interest shall be payable at such times and
dates as shall be agreed upon by Borrower and Bank prior to the making of each
advance and evidenced on the records of Bank, provided that, all accrued
interest on an advance shall be due and payable at the maturity (by acceleration
or otherwise) of such advance. After maturity, whether by acceleration or
otherwise, accrued interest shall be payable on demand. "Prime Rate" means the
rate of interest most recently announced by Xxxxx Fargo Bank, N.A. at its
principal office in San Francisco, California as its "Prime Rate", with the
understanding that the Prime Rate is one of Xxxxx Fargo Bank's base rates and
serves as the basis upon which effective rates of interest are calculated for
those loans making reference thereto, and is evidenced by the recording thereof
after its announcement in such internal publication or publications as Xxxxx
Fargo Bank may designate. Any change in an interest rate resulting from a
change in the Prime Rate shall become effective as of 12:01 a.m. of the Banking
Day on which each change in the Prime Rate is announced by Xxxxx Fargo Bank.
Advances hereunder, to the total amount of the principal sum stated above and
up to and including the date set forth in the preceding paragraph, may be made
by the holder at the oral or written request of Xxxxxxxxx X. Xxxxxxx, Xxxxxx
Xxxxx, any one acting alone, who are authorized to request advances and direct
the disposition of any advances until written notice of the revocation of such
authority is received by the holder at the office designated above, or (b) any
person, with respect to advances deposited to the credit of any account of any
Borrower with the holder, which advances, when so deposited, shall be
conclusively presumed to have been made to or for the benefit of each Borrower
regardless of the fact that persons other than those authorized to request
advances may have authority to draw against such account. The holder shall have
no obligation to determine whether any person requesting an advance is or has
been authorized by any Borrower.
Upon the occurrence of any Event of Default as defined in the Credit Agreement,
the holder of this Note, at the holder's option, may declare all sums of
principal and interest outstanding hereunder to be immediately due and payable
without presentment, demand, protest or notice of dishonor, all of which are
expressly waived by each Borrower, and the obligation, if any, of the holder to
extend any further credit hereunder shall immediately cease and terminate. Each
Borrower shall pay to the holder immediately upon demand the full amount of all
payments, advances, charges, costs and expenses, including reasonable attorneys'
fees (to include outside counsel fees and all allocated costs of the holder's
in-house counsel), incurred by the holder in connection with the enforcement of
the holder's rights and/or the collection of any amounts which become due to
the holder under this Note, and the prosecution or defense of any action in any
way related to this Note, including without limitation, any action for
declaratory relief, and including any of the foregoing incurred in connection
with any bankruptcy proceeding relating to any Borrower.
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Should more than one person or entity sign this Note as a Borrower, the
obligations of each such Borrower shall be joint and several.
This Note shall be governed by and construed in accordance with the laws of the
State of California, except to the extent Bank has greater rights or remedies
under Federal law, whether as a national bank or otherwise, in which case such
choice of California law shall not be deemed to deprive Bank of any such rights
and remedies as may be available under Federal law.
This Note supersedes and replaces that certain Loans Against Imports Note dated
June 1, 1996.
"BORROWER"
JALATE LIMITED, INC.
By: /s/ XXXXXXXXX X. XXXXXXX
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Title: V.P. Finance & CFO
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Borrower's Address:
0000 Xxxxxxxx
Xxxx xx Xxxxxxxx, XX 00000
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