Exhibit 3.3
FIRST AMENDMENT TO CREDIT AND
SECURITY AGREEMENT
THIS FIRST AMENDMENT (the
“Amendment”), dated August 13, 2009, is entered
into by and between HEMACARE CORPORATION, a California corporation
and CORAL BLOOD SERVICES, INC., a California corporation (jointly
and severally, the “Company”), and WELLS FARGO BANK,
NATIONAL ASSOCIATION (as more fully defined in Paragraph 1 of this
Amendment, “Wells Fargo”), acting through its Wells
Fargo Business Credit operating division.
RECITALS
Company and Wells Fargo are parties
to a Credit and Security Agreement dated April 10, 2008 (as
amended from time to time, the “Credit Agreement”).
Capitalized terms used in these recitals have the meanings given to
them in the Credit Agreement unless otherwise specified.
The Company has requested that
certain amendments be made to the Credit Agreement, which Wells
Fargo is willing to make pursuant to the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants and agreements herein
contained, it is agreed as follows, effective as of April 30,
2009:
1.
Modified Minimum Book Net Worth
Financial Covenant . Section 5.2(a) of the Credit
Agreement is hereby amended in its entirety to read as
follows:
(a)
Minimum Book
Net Worth . Company shall
maintain, during each period described below, its Book Net Worth
(excluding intercompany receivables owed from Hemacare
Bioscience, Inc.), determined as of the end of each month, in
an amount not less than the amount set forth for each such period
(numbers appearing between “< >“ are
negative):
|
Period
|
|
Minimum Book Net Worth
|
|
|
|
|
|
|
|
Month Ending April 30,
2009
|
|
$
|
6,100,000
|
|
|
|
|
|
|
|
Month Ending May 31,
2009
|
|
$
|
6,200,000
|
|
|
|
|
|
|
|
Month Ending June 30,
2009
|
|
$
|
6,250,000
|
|
|
|
|
|
|
|
Month Ending July 31,
2009
|
|
$
|
6,300,000
|
|
|
|
|
|
|
|
Month Ending August 31,
2009
|
|
$
|
6,400,000
|
|
|
|
|
|
|
|
Month Ending September 30,
2009
|
|
$
|
6,400,000
|
|
|
|
|
|
|
|
Month Ending October 31,
2009
|
|
$
|
6,500,000
|
|
|
|
|
|
|
|
Month Ending November 30,
2009
|
|
$
|
6,600,000
|
|
|
|
|
|
|
|
Month Ending December 31,
2009
|
|
$
|
6,600,000
|
|
2.
Modified Minimum Net Income
Financial Covenant . Section 5.2(b) of the Credit
Agreement is hereby amended in its entirety to read as
follows:
(b)
Minimum Net
Income . Company shall
achieve, for each period described below, Net Income of not less
than the amount set forth for each such period (numbers appearing
between “< >“ are negative).
|
Period
|
|
Minimum Net Income
|
|
|
|
|
|
|
|
Fiscal Quarter Ending June 30,
2009
|
|
$
|
150,000
|
|
|
|
|
|
|
|
Fiscal Quarter Ending
September 30, 2009
|
|
$
|
200,000
|
|
|
|
|
|
|
|
Fiscal Quarter Ending
December 31, 2009
|
|
$
|
150,000
|
|
|
|
|
|
|
|
Fiscal Year Ending December 31,
2009
|
|
$
|
500,000
|
|
2
3.
Modified Collateral
Exams .
Section 5.10(c) of the Credit Agreement is hereby amended
in its entirety to read as follows:
(c)
Collateral Exams and
Inspections .
Company shall permit Wells Fargo’s employees, accountants,
attorneys or other Persons acting as its agent, to examine and
inspect any Collateral or any other property of Company at any time
during ordinary business hours; provided , however ,
that so long as (i) Company’s Monthly Average Excess
Availability is at least $750,000 and (ii) no Event of Default
has occurred and is continuing, then the parties contemplate that
such examinations will take place no more frequently than three
times in any calendar year.
4.
Monthly Average Excess
Availability . For
the purposes hereof, the term “Monthly Average Excess
Availability” shall mean, for any given month and measured at
the end of such month, the monthly average of Company’s daily
availability, if any, in excess of the lesser of the Maximum Line
Amount or the Borrowing Base limitations set forth in
Section 1.2 of the Credit Agreement.
5.
No Other Changes
. Except as explicitly amended
by this Amendment, all of the terms and conditions of the Credit
Agreement shall remain in full force and effect and shall apply to
any advance or letter of credit thereunder.
6.
[omitted].
7.
Conditions Precedent
. This Amendment shall be
effective when Wells Fargo shall have received an executed original
hereof, together with each of the following, each in substance and
form acceptable to Wells Fargo in its sole discretion:
(a)
The
Acknowledgment and Agreement of Guarantor set forth at the end of this
Amendment, duly executed by the Guarantor.
(b)
A Certificate of
the Secretary of the Company certifying as to (i) the
resolutions of the
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