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EXHIBIT 10.6L
FIFTH AMENDMENT TO CREDIT AGREEMENT
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FIFTH AMENDMENT TO CREDIT AGREEMENT
This Amendment dated as of October 16, 1995, is between Bank of
America National Trust and Savings Association (the "Bank") and
Xxxxxxxx-Sonoma, Inc. (the "Borrower").
RECITALS
A. The Bank and the Borrower entered into a certain Amended and
Restated Credit Agreement dated as of October 13, 1994 (as previously amended,
the "Agreement").
B. The Bank and the Borrower desire to amend the Agreement.
AGREEMENT
1. DEFINITIONS. Capitalized terms used but not defined in this
Amendment shall have the meaning given to them in the Agreement.
2. AMENDMENTS. The Agreement is hereby amended as follows:
2.1 Paragraph 1.1(a) of the Agreement is amended by changing
the amount of the Facility 1 Commitment as follows:
Period Commitment Amount
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From the date of this
Amendment through 12/16/95 $97,000,000
12/17/95 through 04/30/96 $45,000,000
05/01/96 through the Expiration Date $65,000,000
2.2 Subparagraph (a) of Paragraph 1.5 ("Optional Interest
Rates") is amended to read as follows:
(a) Instead of the interest rate based on the Bank's
Reference Rate, the Borrower may elect to have all or portions
of the line of credit bear interest at the following rate
during an interest period agreed to by the Bank and the
Borrower: the Offshore Rate plus seven-eights of one (0.875)
percentage point; provided, however, that the interest rate
applicable to any advances outstanding hereunder which exceed
Eighty Seven Million Dollars ($87,000,000) shall be the
Offshore Rate plus one and one-eighth (1.125) percentage
points.
2.3 Paragraph 7.3 of the Agreement ("Tangible Net Worth") is
amended by changing the table therein to read as follows:
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Fiscal Quarter Ended Amount
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07/30/95 104,000,000
10/29/95 107,000,000
01/28/96 128,000,000
04/30/96 126,000,000
2.4 Paragraph 7.4 of the Agreement is amended to read as
follows:
7.4 DEBT TO TANGIBLE NET WORTH. To maintain on a
consolidated basis, as of the end of each fiscal quarter, a
ratio of total liabilities to tangible net worth (exclusive of
the proceeds of any stock sold by the Borrower after the date
of this Agreement) not exceeding the amounts indicated for
each date specified below:
Fiscal Quarter Ended Ratio
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07/30/95 1.50:1
10/29/95 2.15:1
01/28/96 1.50:1
04/28/96 1.50:1
"Total liabilities" means the sum of current liabilities plus
long term liabilities, including the amount of tax credits
booked by the Borrower as negative liabilities.
3. REPRESENTATIONS AND WARRANTIES. When the Borrower signs this
Amendment, the Borrower represents and warrants to the Bank that:
(a) There is no event which is, or with notice or lapse of
time or both would be, an event of default under the Agreement, as
hereby amended;
(b) The representations and warranties in the Agreement are
true and correct as of the date of this Amendment as if made on the
date of this Amendment;
(c) This Amendment is within the Borrower's powers, has been
duly authorized, and does not conflict with any of the Borrower's
organizational papers; and
(d) This Amendment does not conflict with any law, agreement,
or obligation by which the Borrower is bound.
4. EFFECT OF AMENDMENT. Except as provided in this Amendment, all
of the terms and conditions of the Agreement shall remain in full force and
effect.
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This Amendment is executed as of the date first stated above.
Bank of America National Xxxxxxxx-Sonoma, Inc.
Trust and Savings Association
By /s/ XXXXX X. XXXXXXXXXXX By /s/ W. XXXXXX XXXXXX
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Xxxxx X. Xxxxxxxxxxx W. Xxxxxx Xxxxxx
Vice President Chairman and Chief Executive
Officer
By /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx
Senior Vice President
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[LOGO] BANK OF AMERICA Corporate Resolutions to Obtain Credit
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RESOLVED, that this corporation, Xxxxxxxx-Sonoma, Inc., may:
1. borrow money from BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION ("Bank");
2. obtain for the account of this corporation commercial and standby
letters of credit issued by Bank;
3. obtain for the account of this corporation Bank's acceptance of
drafts and other instruments; and
4. discount with or sell to Bank notes, acceptances, drafts,
receivables and other evidences of indebtedness, and assign or
otherwise transfer to Bank any security interest or lien for such
obligations;
from time to time, in such amount or amounts as in the judgement of the
Authorized Officers (as hereinafter defined) this corporation may require (the
credit facilities described in the first part of this resolution are
collectively referred to herein as the "Credit Facilities"); provided, however,
that the aggregate principal amount outstanding at any one time under the
Credit Facilities authorized by this resolution shall not exceed the sum of One
Hundred Twenty Million Dollars ($120,000,000), which sum shall be in addition
to such other amount or amounts as otherwise may be authorized.
RESOLVED FURTHER, that the Authorized Officers are hereby authorized
and directed, as security for any obligation or obligations of this corporation
to Bank, whether arising pursuant to these Resolutions or otherwise, to grant
in favor of Bank a security interest in or lien on any real or personal
property belonging to or under the control of this corporation.
RESOLVED FURTHER, that
1. If only one signature is obtained, any one of the
following:
a. W. Xxxxxx Xxxxxx, Chief Executive Officer
b. Xxxxxxx Xxxx, Senior Vice President/Secretary
c.
d.
e.
f.
2. If two signatures are obtained, any one of the following:
a.
b.
c.
d.
e.
f.
together with any one of the following:
g.
h.
i.
j.
k.
l.
of this corporation, acting individually or in any combination as may be set
forth above (the "Authorized Officers"), are hereby authorized and directed,
in the name of this corporation, to execute and deliver to Bank, and Bank is
requested to accept:
a. the notes, credit agreements, advance account agreements,
acceptance agreements, letter of credit applications and agreements, purchase
agreements or other instruments, agreements and documents which evidence the
obligations of this corporation under the Credit Facilities obtained or to be
obtained pursuant to these resolutions;
b. any and all security agreements, deeds of trust, mortgages,
financing statements, fixture filings or other instruments, agreements and
documents with respect to any security interest or lien authorized to be given
pursuant to these resolutions; and
c. any other instruments, agreements and documents as Bank may require
and the Authorized Officers may approve.
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RESOLVED FURTHER, that the Authorized Officers are hereby authorized
and directed, in the name of this corporation, to endorse, assign to Bank, and
deliver to Bank, any and all notes, acceptances, drafts, receivables and other
evidences of indebtedness discounted with or sold to Bank, together with any
security interest or lien for such obligations, and to guarantee the payment of
the same to Bank.
RESOLVED FURTHER, that any and all of the instruments, agreements and
documents referred to above may contain such recitals, covenants, agreements
and other provisions as Bank may require and the Authorized Officers may
approve, and the execution of such instruments, agreements and documents by the
Authorized Officers shall be conclusive evidence of such approval, and that the
Authorized Officers are authorized from time to time to execute renewals or
extensions of any and all such instruments, agreements and documents.
RESOLVED FURTHER, that Bank is authorized to act upon the foregoing
resolutions until written notice of revocation is received by Bank, and that
the authority hereby granted shall apply with equal force and effect to the
successors in office of the Authorized Officers.
CORPORATE SECRETARY'S CERTIFICATE
I, Xxxxxxx Xxxx, Secretary of Xxxxxxxx-Sonoma, Inc., a corporation
organized and existing under the laws of the State of California (the
"Corporation"), hereby certify that the foregoing is a full, true and correct
copy of resolutions of the Board of Directors of the Corporation, duly and
reqularly adopted by the Board of Directors of the Corporation in all respects
as required by law and the by-laws of the Corporation on July 28, 1995, at a
meeting at which a quorum of the Board of Directors of the Corporation was
present and the requisite number of such directors voted in favor of said
resolutions, or by the unanimous consent in writing of all members of the Board
of Directors of the Corporation to the adoption of said resolutions.
I further certity that said resolutions are still in full force and
effect and have not been amended or revoked, and that the specimen signatures
appearing below are the signatures of the officers authorized to sign for the
Corporation by virtue of such resolutions.
IN WITNESS WHEREOF, I have hereunto set my hand as Secretary of the
Corporation, and affixed the corporate seal of the Corporation, on ___________.
AUTHORIZED SIGNATURES:
X /s/ W. XXXXXX XXXXXX X /s/ XXXXXXX XXXX
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W. Xxxxxx Xxxxxx, Chief Executive Xxxxxxx Xxxx, Secretary of
Officer Xxxxxxxx-Sonoma, Inc.
a California Corporation
X /s/ XXXXXXX XXXX
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Xxxxxxx Xxxx, Senior Vice
President/Secretary
Affix Corporate Seal Here:
X
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X
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X
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N-243 11-87 (Reprint 12-87) -2- 000310-11049
