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EXHIBIT 10.16
October 13, 1995
Envirodyne Industries, Inc
000 Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Re: First Amendment to/Consent under Revolving Credit Agreement
Gentlemen:
Reference is made to the Revolving Credit Agreement ("Agreement"),
dated as of June 20, 1995, between Envirodyne Industries, Inc. ("Envirodyne")
and The Prudential Insurance Company of America ("Prudential"). Unless
otherwise defined herein, terms used herein which are defined in the Agreement
shall have the meanings as given in the Agreement.
Envirodyne has requested that Prudential amend the Agreement and
Prudential has agreed to make the amendment specified herein. Envirodyne and
Prudential therefore agree that paragraph 8 of the Agreement is hereby amended
by deleting the definition of "Consolidated Intangible Assets" in its entirety
and substituting in lieu thereof the following:
"Consolidated Intangible Assets" means, as at any date, (i) the
amount of all write-ups in the book value of any asset resulting from
the revaluation thereof and all write-ups in excess of the cost of
assets acquired, plus (ii) the amount of all unamortized original issue
discount, unamortized debt expense (exclusive of amounts attributable
to unamortized debt expense in existence as of June 29, 1995),
goodwill, patents (exclusive of amounts attributable to patents owned
by the Company and its Subsidiaries as of June 29, 1995), trademarks,
service marks, trade names, copyrights, organization and development
expense and other intangible assets, in each case as would be taken
into account in preparing a consolidated balance sheet of the Company
and its Subsidiaries on a consolidated basis as at such date in
accordance with GAAP.
The provisions of paragraph 4A(a), as amended by this letter, shall be
deemed effective for all purposes as of June 20, 1995, provided, however, that
this letter shall not become effective until (a) Envirodyne has entered into
amendments that are substantially identical to the amendment to the Agreement
contained herein with respect to (i) the Indenture, dated as of June 20, 1995
between Envirodyne and Shawmut Bank Connecticut, National Association
("Indenture"), as trustee and (ii) the Credit Agreement ("Credit Agreement"),
dated as of June 20, 1995, among Envirodyne, the lenders identified therein and
BT Commercial Corporation, as Agent ("BT"), and (b) Prudential shall have
received from the Required Holders (as defined in the Indenture) and BT written
consents satisfactory to it of the amendment of the Agreement set forth herein.
Prudential hereby consents to amendments to the Indenture and Credit Agreement
that are substantially identical to the amendment to the Agreement contained
herein.
Envirodyne represents and warrants as follows: (i) it has all
necessary power and authority to execute and deliver this letter; (ii) the
execution, delivery and performance of this letter have been duly authorized by
it; (iii) this letter and the Agreement, as amended hereby, constitute the
legal, valid and binding obligations of Envirodyne and are enforceable against
Envirodyne in accordance with their terms; (iv) the approval,
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execution, delivery and performance of the terms hereof do not violate any
contractual provision to which it is a party or by which it is or its
properties are bound or any law applicable to it; and (v) after giving effect
to the amendment to the Agreement set forth herein, no Default or Event of
Default has occurred and is continuing.
Upon the effective date of this letter, each reference in the Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to the Agreement as amended hereby and each
reference to the Agreement in all other Transaction Documents shall mean and be
a reference to the Agreement, as amended hereby.
This letter shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the internal law of the state of
New York.
Except as specifically amended above, the Agreement, and all other
Transaction Documents shall remain in full force and effect and are hereby
ratified and confirmed. The execution, delivery and effectiveness of this
letter shall not, except as expressly provided herein, operate as an amendment
to any provision of the Agreement nor a waiver of any right, power or remedy of
Prudential, nor constitute a waiver of, or consent to any departure from, any
provision of the Agreement or any other Transaction Document.
This letter may be executed by one or more of the parties to this
letter on any number of separate counterparts and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.
Please acknowledge the foregoing and your agreement thereto by signing
this letter agreement where indicated below.
Very truly yours,
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: ________________________
Title:______________________
Accepted and Agreed to
as of the date written above:
ENVIRODYNE INDUSTRIES, INC.
By: ________________________
Title:______________________
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