Exhibit 10.11 - Amendment to Loan Agreement
AMENDMENT NO. 2 TO LOAN AGREEMENT
THIS AMENDMENT NO. 2 TO LOAN AGREEMENT (this "Amendment"), is
made this 21st day of December, 1997, by and between XXXX-XXXXX
CORPORATION, a Delaware corporation ("Borrower"), and XXXXX FARGO
BANK, NATIONAL ASSOCIATION, successor-by-merger to First Interstate
Bank of Arizona, N.A. (the "Bank").
1. Recitals.
1.1Borrower and the Bank (as successor-by-merger to First
Interstate Bank of Arizona, N.A.) are parties to that Loan Agreement
dated January 31, 1996 and Amendment No. 1 to Loan Agreement dated
November 15, 1996 (the "Loan Agreement"). Capitalized terms used
without definition herein are used with the meanings attributed to
such terms in the Loan Agreement.
1.2Borrower and the Bank desire to modify and amend the Loan
Agreement to provide, among other things, (a) that the definition of
Termination Date be amended, and (b) that Section 9.6 of the Loan
Agreement relating to an EBITDA Coverage Ratio be amended and
restated to provide for a Current Ratio.
Accordingly, in consideration of the premises and other
good and valuable consideration, the receipt and adequacy of which
are acknowledged by the parties hereto, the parties hereto agree as
follows:
2. Modification and Amendment of Loan Agreement.
2.1The Loan Agreement is hereby modified and amended as follows:
2.1.1 Definition of "Termination Date". The definition
of "Termination Date" set forth in Annex 1 to the Loan Agreement is
hereby amended in its entirety to read as follows:
'"Termination Date" means the earlier of the following:
(a) May 3, 1999 or (b) the date on which the Revolving Commitment is
terminated pursuant to subsection 10.2."'
2.1.2 Definition of "EBITDA Coverage". The defined term
"EBITDA Coverage" is deleted in its entirety from Annex 1 to the
Loan Agreement, and each reference, if any, to the term EBITDA
Coverage Ratio contained elsewhere in Loan Agreement shall be deemed
to be a reference to the term Current Ratio (hereinafter defined).
2.1.3 Definition of Current Ratio". The following
definition is added to Annex 1 to the Loan Agreement in the proper
alphabetical sequence: "Current Ratio" means total consolidated
current assets divided by total consolidated current liabilities,
which current liabilities shall include all outstanding Advances
under the Revolving Credit Loan.
2.1.4 Amendment of Section 8.1(c) and 8.1(e). Sections
8.1(c) and 8.1(e) are hereby deleted in their entirety and Sections
8.1(d), 8.1(f) and 8.1(g) are hereby renumbered 8.1(c), 8.1(d) and
8.1(e), respectively.
2.1.5 Amendment of Section 9.3. Section 9.3 is hereby
amended in its entirety to read as follows:
"Limitation on Net Worth. Borrower will not permit
its Consolidated Tangible Net Worth to be less than
$200,000,000.00."
2.1.6 Amendment of Section 9.6. The caption and the
text of Section 9.6 of the Loan Agreement is deleted in its entirety
and are replaced by the following:
"Current Ratio. The Borrower shall not permit its
Current Ratio to be less than 2.0 to 1.0 as of the last
day of any fiscal quarter of Borrower."
3. Borrower's Representations; Effectiveness of this
Amendment.
Borrower represents and warrants to the Bank that:
3.1Immediately before and after giving effect to this Amendment,
the representations and warranties of the Borrower in Section 7 of
the Loan Agreement are true and correct as though made on the date
hereof, except for changes that are permitted by the terms of the
Loan Agreement; and
3.2Immediately before and after giving effect to this Amendment,
no Default and no Event of Default shall have occurred and be
continuing.
This Amendment shall become effective when the Bank and Borrower
shall each have executed and delivered to the other a counterpart of
this Amendment.
4. Acknowledgments. Borrower and the Bank acknowledge that, as
amended hereby, the Loan Agreement remains in full force and effect
and that each reference to the Loan Agreement shall refer to the
Loan Agreement as amended hereby. The Borrower confirms that it
will continue to comply with the covenants set out in the Loan
Agreement and the other Loan Documents, as amended hereby, and that
its representations and warranties set out in the Loan Agreement and
the other Loan Documents, as amended hereby, are true and correct as
of the date of this Amendment in all material respects. The
Borrower further represents and warrants that (i) the execution,
delivery and performance of this Amendment by the Borrower is within
its corporate powers and has been duly authorized by all necessary
corporate action; (ii) this Amendment has been duly executed and
delivered by Borrower and constitutes the legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance
with its terms; and (iii) the conditions set forth in subsections
3.1 and 3.2 of this Amendment have all been satisfied.
5. General.
5.1Borrower agrees to reimburse the Bank upon demand for all
reasonable expenses (including reasonable attorneys fees and legal
expenses) incurred by the Bank in the preparation, negotiation and
execution of this Amendment and any other document required to be
furnished herewith.
5.2This Amendment may be executed in as many counterparts as may
be deemed necessary or convenient, and by the different parties
hereto on separate counterparts, each of which, when so executed,
shall be deemed an original but all such counterparts shall
constitute but one and the same instrument.
5.3Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining portions hereof or affecting the
validity or enforceability of such provisions in any other
jurisdiction.
5.4This Amendment shall be governed by, and construed in
accordance with, the internal law, and not the law of conflicts, of
the State of Arizona, but giving effect to federal laws applicable
to national banks.
5.5This Amendment shall be binding upon and inure to the benefit
of Borrower and the Bank and their respective successors and
assigns.
5.6This instrument supersedes and replaces any and all prior
versions of this Amendment No. 2 to Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to Loan Agreement to be executed as of the day and year first
above written.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: _______________________
Xxxx X. Xxxxxxx
Title: Vice President
XXXX-XXXXX CORPORATION
By: _______________________
G. Xxxxx Xxxxx
Title: Treasurer
