EXHIBIT (10)(t)
Second amendment to Credit Agreement
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SECOND AMENDMENT TO CREDIT AGREEMENT
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THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Second Amendment") is made
and dated as of August 25, 1994 by and between CALIFORNIA COMMERCIAL BANKSHARES,
a California corporation ("Company") and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION.
RECITALS
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A. Security Pacific National Bank, which has subsequently merged with the
Bank, and Company entered into a Restated Credit Agreement dated as of December
21, 1988, as modified by certain waivers granted by the Bank and amended by that
First Amendment to Credit Agreement, dated as of March 10, 1993 (as so modified
and amended, the "Agreement").
B. The parties desire to amend certain terms of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in the
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Agreement unless otherwise defined herein. All references to the Agreement shall
mean the Agreement as hereby amended.
2. Amendments. Bank and Company hereby agree to amend the Agreement as
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follows:
2.1 The definition of "Termination Date" is hereby amended to read as
follows:
"'Termination Date' shall mean January 1, 1997."
2.2 Sections 2.1 through 2.3 of the Agreement shall be amended to read
in their entirety as follows:
"2.2.1 Term Loan Commitment. The Bank agrees, on the terms hereof,
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to continue a loan (herein called the "Term Loan") to the Company as of
the date hereof, in a principal amount not exceeding $2,351,000 (herein,
sometimes called the "Term Loan Commitment").
2.2.2 Term Note. The Term Loan shall be evidenced by a Term Note,
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substantially in the form of Exhibit A annexed hereto and with appropriate
insertions, dated the date of the Term Loan and payable to the Bank. The
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Term Note shall (a) be dated the date of the Term Loan; (b) bear interest
at the rate and be due and payable on the dates provided for in Section
2.3 hereof; (c) provide for full payment of principal on the Termination
Date and (d) be stated to mature on the Termination Date.
2.2.3 Term Note Interest. The Term Note shall bear interest from its
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date on unpaid principal, in accordance with Section 2.5 hereof, at a
fluctuating rate per annum equal to three-quarters of one percent (3/4 of
1%) in excess of the Bank's Reference Rate, due and payable on the first
day of each month, commencing the first such date after the date of the
Term Loan, and at maturity, on which date all interest remaining unpaid
shall be due and payable. Should interest not be paid when due, it shall
thereafter bear like interest as the principal."
2.3 Section 6.4 of the Credit Agreement is hereby cancelled and the
Company shall no longer be obliged to comply therewith.
2.4 The Bank may, in its sole and absolute discretion, grant extensions
of the Termination Date.
3. Representations and Warranties. Company represents and warrants to
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Bank:
3.1 Authorization. The execution, delivery and performance of this
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Second Amendment have been duly authorized by all necessary corporate action
by the Company and has been duly executed and delivered by the Company.
3.2 Binding Obligation. This Second Amendment is the legally valid and
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binding obligation of Company, enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principals relating to enforceability.
3.3 No Legal Obstacle to Agreement. Neither the execution of this Second
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Amendment, the making by the Company of any borrowings under the Agreement, nor
the performance of the Agreement has constituted or resulted in or will
constitute or result in a breach of the provisions of any contract to which the
Company is a party, or the violation of any law, judgment, decree or
governmental order, rule or regulation applicable to Company, or result in the
creation under any agreement or instrument of any security interest, lien,
charge, or encumbrance upon any of the assets of the Company. No approval or
authorization of any governmental authority is required to permit the execution,
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delivery or performance by the Company of this Second Amendment, the Agreement,
or the transactions contemplated hereby or thereby, or the making of any
borrowing by Company under the Agreement.
3.4 Incorporation of Certain Representations. The representations and
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warranties set forth in Section 4 of the Agreement are true and correct in all
respects on and as of the date hereof as though made on and as of the date
hereof (except, in regard to Section 4.5, the Company's applicable financial
statement shall be deemed to be its consolidated balance sheet dated as of June
30, 1994 and the related profit and loss statement for the quarter ended on
that date).
3.5 Default. No default or Event of Default under the Agreement has
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occurred and is continuing except as to matters waived by this Second Amendment.
4. Conditions, Effectiveness. The effectiveness of this Second Amendment
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shall be subject to the compliance by the Company with its agreements herein
contained, and to the delivery of the following to Bank in form and substance
satisfactory to Bank:
4.1 Corporate Resolution. A copy of a resolution or resolutions passed by
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the Board of Directors of the Company, certified by the Secretary or an
Assistant Secretary of the Company as being in full force and effect on the
effective date of this Second Amendment, authorizing or ratifying the amendments
to the Agreement herein provided for and the execution, delivery and performance
of this Second Amendment and any note or other instrument or agreement required
hereunder.
4.2 Authorized Signatories. A certificate, signed by the Secretary or an
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Assistant Secretary of Company and dated the date of this Second Amendment, as
to the incumbency of the person or persons authorized to execute and deliver
this Second Amendment and any instrument or agreement required hereunder on
behalf of the Company.
4.3 Amended and Restated Notes. A substitute note substantially in the
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form of Exhibit A hereto which shall thereafter be a deemed to be replacement
note for the Term Note as defined in Section 1.1 of the Agreement.
4.4 Support Agreement. A Support Agreement of Robert L. McKay, supporting
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the obligations of the Company under the Agreement.
4.5 Other Evidence. Such other evidence with respect to the Company or
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any other person as the Bank may reasonably request to establish the
consummation of the transactions
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contemplated hereby, the taking of all corporate action in connection with this
Second Amendment and the Agreement and the compliance with the conditions set
forth herein.
5. Miscellaneous.
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5.1 Effectiveness of the Agreement. Except as hereby amended, the
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Agreement shall remain in full force and effect.
5.2 Waivers. This Second Amendment is specific in time and in intent and
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does not constitute, nor should it be construed as, a waiver of any other right,
power or privilege under the Agreement, or under any agreement, contract,
indenture, document or instrument mentioned in the Agreement; nor does it
preclude any exercise thereof or the exercise of any other right, power,
privilege or default hereunder, or under any agreement, contract, indenture,
document or instrument mentioned in the Agreement, constitute a waiver of any
other default of the same or of any other term or provision.
5.3 Counterparts. This Second Amendment may be executed in any number of
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counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument. This Second Amendment shall not become
effective until the Company and the Bank shall have signed a copy hereof,
whether the same or counterparts, and the same shall have been delivered to the
Bank.
5.4 Jurisdiction. This Second Amendment, and any instrument or agreement
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required hereunder, shall be governed by and construed under the laws of the
State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed and delivered as of the date first written above.
CALIFORNIA COMMERCIAL BANKSHARES
By: /s/ WILLIAM H. JACOBY
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William H. Jacoby
Title: President
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By: /s/ PHILLIP L. BUSH
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Phillip L. Bush
Title: Secretary
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ H. Libby
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Title: Vice President
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EXHIBIT A
TERM NOTE
$2,351,000 Los Angeles, California
as of August 25, 1994
FOR VALUE RECEIVED, the undersigned, CALIFORNIA COMMERCIAL BANKSHARES, a
California corporation, promises to pay to BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, a national banking association (herein called the "Bank"),
or order, at its Corporate Service Center at 1850 Gateway Boulevard, Concord,
California 94520, according to the payment terms hereof, the principal amount of
TWO MILLION THREE HUNDRED FIFTY ONE THOUSAND DOLLARS ($2,351,000), in lawful
money of the United States of America, and the undersigned further promises to
pay interest at said office in like money.
Principal with respect to this Term Note shall be due and payable on the
Termination Date, on which day all principal and interest remaining unpaid on
the Term Note shall be due and payable.
This Term Note shall bear interest upon the unpaid principal balance
hereof from the date hereof until paid, at a fluctuating rate per annum equal to
three-quarters of one percent (3/4 of 1%) in excess of the Bank's Reference
Rate. Any change in the interest rate resulting from a change in the Reference
Rate shall be effective as of the day on which said change in the
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Reference Rate shall become effective, without notice or demand of any kind. All
calculations of interest shall be on a basis of a year of 360 days and an
actual-day month. Interest shall be due and payable on the first day of each
month, commencing the first such date after the date of the Term Loan evidenced
hereby, and at maturity, on which date all interest remaining unpaid shall be
due and payable. Should interest not be paid when due, it shall thereafter bear
like interest as the principal.
The undersigned promises to pay costs of collection and attorneys' fees
in reasonable amount if default is made in the payment of this Term Note. The
right to plead any and all statutes of limitation as a defense to any demand
hereunder is hereby waived to the full extent permitted by law. This Term Note
shall be governed by and construed in accordance with the laws of the State of
California. The Bank retains all of its rights under federal law, including
those relating to the charging of interest rates.
This Term Note is the Term Note referred to that Second Amendment to
Credit Agreement, dated as of August 25, 1994, amending that Credit Agreement,
dated as of December 21, 1988 and modified by waivers granted by the Bank and
previously amended as of March 10, 1993 (as so modified and amended the "Credit
Agreement"). All terms defined in the Credit Agreement shall have the same
definitions when used herein. Upon the occurrence of an Event of Default as
defined in said Credit Agreement as at any time amended, the principal hereof
with interest accrued
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thereon may become or may be declared to be forthwith due and payable, as
provided in said Credit Agreement as at any time amended.
This Term Note is not a deposit and is not insured by any federal
agency.
CALIFORNIA COMMERCIAL BANKSHARES
By /s/ William H. Jacoby
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William H. Jacoby
Title President
By /s/ Phillip L. Bush
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Phillip L. Bush
Title Secretary
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