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EXHIBIT 10.23
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of June 9, 1995, by and between CIMCO, INC., a Delaware
corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
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 February 1, 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.
NOW, THEREFORE, the Credit Agreement is hereby amended as
follows:
1. Section 1.1. shall be amended (a) by deleting "SIX
MILLION DOLLARS ($6,000,000.00)" as the maximum principal amount available
under the Line of Credit, and by substituting for said amount "SIX MILLION
SEVEN HUNDRED FIFTY-EIGHT THOUSAND FIVE HUNDRED DOLLARS ($6,758,500.00)", up to
and including July 31, 1995 at which time the maximum principal
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amount available under the Line of Credit shall reduce to "SIX MILLION DOLLARS
($6,000,000.00)", with such changes to be effective upon the execution and
delivery to Bank of a promissory note substantially in the form of Exhibit A
attached hereto (which promissory note shall replace and be deemed the Line of
Credit Note defined in and made pursuant to the Credit Agreement) and all other
contracts, instruments and documents required by Bank to evidence such change.
2. Except as specifically provided herein, all terms and
conditions of the 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.
3. 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, other than as specifically referenced in the Forbearance, 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.
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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be executed as of the day and year first written above.
WELLS FARGO BANK,
CIMCO, INC. NATIONAL ASSOCIATION
By: /s/ RUSSELL T. GILBERT By: /s/ MARK MAGDELENO
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Mark Magdeleno
Title: President Vice President
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Exhibit A
REVOLVING LINE OF CREDIT NOTE
$6,758,500.00 Irvine, California
June 9, 1995
FOR VALUE RECEIVED, the undersigned CIMCO, INC. ("Borrower")
promises to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION ("Bank")
at its Orange Coast Regional Commercial Banking Office at 2030 Main Street,
Suite 900, Irvine, CA 92714, or at such other place as the holder hereof may
designate, in lawful money of the United States of America and in immediately
available funds, the principal sum of SIX MILLION SEVEN HUNDRED FIFTY EIGHT
THOUSAND FIVE HUNDRED DOLLARS ($6,758,500.00), or so much thereof as may be
advanced and be outstanding, with interest thereon, to be computed on each
advance from the date of its disbursement at a rate per annum (computed on the
basis of a 360-day year, actual days elapsed) one quarter of one percent (.25%)
above the Prime Rate in effect from time to time. The "Prime Rate" is a base
rate that Bank from time to time establishes and which serves as the basis upon
which effective rates of interest are calculated for those loans making
reference thereto. Each change in the rate of interest hereunder shall become
effective on the date each Prime Rate change is announced within Bank.
Borrower may from time to time during the term of this Note
borrow, partially or wholly repay its outstanding borrowings, and reborrow,
subject to all of the limitations, terms and conditions of this Note and of any
document executed in connection with this Note; provided however, that the
total outstanding borrowings under this Note shall not at any time 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.
Notwithstanding the principal amount set forth above, the
maximum outstanding principal amount available under this Note
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shall reduce on July 31, 1995 to SIX MILLION DOLLARS ($6,000,000.00) until the
maturity date hereof.
Interest accrued on this Note shall be payable on the
fifteenth day of each month, commencing June 15, 1995. The outstanding
principal balance of this Note shall be due and payable in full on September
15, 1995. Each payment made on this Note shall be credited first, to any
interest then due and second, to the outstanding principal balance hereof.
From and after the maturity date of this Note, or such earlier
date as all principal owing hereunder becomes due and payable by acceleration
or otherwise, the outstanding principal balance of this Note shall bear
interest until paid in full at an increased rate per annum (computed on the
basis of a 360-day year, actual days elapsed) equal to four percent (4%) above
the rate of interest from time to time applicable to this Note.
Advances hereunder, to the total amount of the principal sum
stated above, may be made by the holder at the oral or written request of (a)
Russell T. Gilbert or Jennifer Shea 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.
This Note is made pursuant to and is subject to the terms and
conditions of that certain Credit Agreement between Borrower and Bank dated as
of February 5, 1995, as amended from time to time. Any default in the payment
or performance of any obligation, or any defined event of default, under said
Credit Agreement shall constitute an "Event of Default" under this Note.
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Upon the occurrence of any Event of Default, 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.
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.
CIMCO, INC.
By:
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Title:
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