Exhibit 10.19 - Amendment to Loan Agreement
AMENDMENT NO. 1 TO LOAN AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AGREEMENT (this "Amendment"),
is made this 15th day of November, 1996, by and between XXXX-
XXXXX CORPORATION, a Delaware corporation ("Borrower"), and XXXXX
FARGO BANK, National Association (the "Bank").
I. . Recitals.
A. Borrower 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 (the "Loan Agreement").
Capitalized terms used without definition herein are used with
the meanings attributed to such terms in the Loan Agreement.
B. Borrower and the Bank desire to modify and amend the
Loan Agreement to provide, among other things, (a) that the
Bank's obligation to make Advances under the Loan Agreement is
reduced from $15,000,000 to $10,000,000 in maximum principal
amount, (b) that the definition of Termination Date be amended,
(c) that the Commitment Fee be reduced, and (d) that Section 9.6
of the Loan Agreement relating to Debt Coverage Ratio be amended
and restated to provide for an EBITDA coverage ratio.
Accordingly, in consideration of the premises and other
good and valuable consideration, the receipt and adequacy are
acknowledged by the parties hereto, the parties hereto agree as
follows:
I. . Modification and Amendment of Loan Agreement.
A. The Loan Agreement is hereby modified and amended as
follows:
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 1, 1998 or (b) the
date on which the Revolving Commitment is
terminated pursuant to subsection 10.2."'
1. Definition of "Debt Service Ratio". The defined term
"Debt Service Ratio" is deleted in its entirety from Annex 1 to
the Loan Agreement, and each reference, if any, to the term Debt
Service Ratio contained elsewhere in Loan Agreement shall be
deemed to be a reference to the term EBITDA Coverage Ratio
(hereinafter defined).
2. Definition of "EBITDA Coverage Ratio". The following
definition is added to Annex 1 to the Loan Agreement in the
proper alphabetical sequence:
""EBITDA Coverage Ratio" means the result of the
following calculation, expressed as a percentage, for
Borrower and the Subsidiaries as at the end of any
fiscal quarter of Borrower:
(a) the sum of Borrower's Consolidated Net
Income, interest expense net of capitalized interest
expense, depreciation expense, and amortization of
intangibles expense, measured over the preceding four
fiscal quarters of Borrower; divided by
(b) the sum of interest expense net of
capitalized interest expense, measured over the
preceding four fiscal quarters of Borrower, plus the
prior quarterly period current maturity of long-term
debt and the prior quarterly period current maturity of
subordinated indebtedness."
1. Definition of "Revolving Credit Commitment Amount".
The definition of "Revolving Credit Commitment Amount" set forth
in Annex 1 to the Loan Agreement is hereby amended in its
entirety to read as follows:
'"Revolving Credit Commitment Amount"
means Ten Million Dollars ($10,000,000.00)
(as the same may be (i) reduced pursuant to
subsection 3.5 or (ii) changed as a result of
an assignment pursuant to subsection 12.6)."'
1. Amendment of Section 3.4 Commitment Fee. The words
"three-eights of one percent (0.375%)" are deleted from the first
sentence of Section 3.4 of the Loan Agreement, and the words "one-
quarter of one percent (0.25%)" are inserted in place thereof.
2. 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:
"EBITDA Coverage Ratio. The Borrower
shall not permit the EBITDA Coverage Ratio to be
less than 2.0 to 1 as of the last day of any
fiscal quarter of Borrower."
I. . Borrower's Representations; Effectiveness of this
Amendment.
Borrower represents and warrants to the Bank that:
A. Immediately 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
B. Immediately 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.
The Bank acknowledges and agrees that the reduction of the
commitment fee to 0.25% shall be effective from November 1, 1996,
and the Bank and Borrower agree that the reduction of the Bank's
Revolving Commitment Amount shall also be effective from November
1, 1996.
I. . Acknowledgements. 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.
II. . General.
A. Borrower 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.
B. This 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.
C. Any 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.
D. This 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.
E. This Amendment shall be binding upon and inure to the
benefit of Borrower and the Bank and their respective successors
and assigns.
F. This instrument supersedes and replaces any and all
prior versions of this Amendment No. 1 to Loan Agreement,
including any executed version that inadvertently omitted
provisions relating to the amendment of the term "Revolving
Credit Commitment Amount" which is hereinabove set forth, and no
such version shall have any force or effect whatever.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to Loan Agreement to be executed as of the day
and year first above written.
XXXX-XXXXX CORPORATION
By G. Xxxxx Xxxxx
Its Treasurer
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By
Xxxx X. Xxxxxxx, Vice President
