Exhibit 10.16
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SECOND AMENDMENT
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
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Second Amendment dated as of December 31, 1998 to Revolving Credit and
Term Loan Agreement (the "Second Amendment"), by and among STRIDE & ASSOCIATES,
INC. a Delaware corporation (the "Borrower"), BANKBOSTON, N.A. and the other
lending institutions listed on SCHEDULE 1 to the Credit Agreement (as
hereinafter defined) (the "Banks") and BANKBOSTON, N.A., as agent for the Banks
(in such capacity, the "Agent"), amending certain provisions of the Revolving
Credit and Term Loan Agreement dated as of June 4, 1998 (as amended by the First
Amendment to Revolving Credit and Term Loan Agreement dated as of August 10,
1998 and as further amended and in effect from time to time, the "Credit
Agreement") by and among the Borrower, the Banks and the Agent. Terms not
otherwise defined herein which are defined in the Credit Agreement shall have
the same respective meanings herein as therein.
WHEREAS, the Borrower and the Banks have agreed to modify certain terms
and conditions of the Credit Agreement as specifically set forth in this Second
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT. The
definition of "Consolidated Operating Cash Flow" is hereby amended by
deleting such definition in its entirety and restating it as follows:
CONSOLIDATED OPERATING CASH FLOW. For any period, an amount
equal to (a) EBITDA for such period, less (b) the sum of (i) cash
payments for all taxes paid during such period, PROVIDED that for
purposes of calculating this clause (i), income taxes incurred for the
fiscal quarter ended September 30, 1998 but not paid until the fiscal
quarter ended December 31, 1998 shall, for purposes of this definition,
be treated as paid in the September 30, 1998 fiscal quarter and
excluded from calculations for the December 31, 1998 fiscal quarter,
PLUS (ii) to the extent not already deducted in the determination of
EBITDA, Capital Expenditures made during such period.
SECTION 2. AMENDMENT TO SECTION 10 OF THE CREDIT AGREEMENT.
Section 10.2 of the Credit Agreement is hereby amended by deleting
Section 10.2 in its entirety and restating it as follows:
SECTION 10.2 DEBT SERVICE COVERAGE RATIO. The Borrower will
not permit the Debt Service Coverage Ratio (a) at the end of any
fiscal quarter other than the fiscal quarter ending March 31, 1999
to be less than 1.25:1.00, and (b) at the end of the fiscal quarter
ending March 31, 1999 to be less than 1.00:1.00.
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SECTION 3. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall
not become effective until the Agent receives a counterpart of this Second
Amendment, executed by the Borrower and the Majority Banks.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
repeats, on and as of the date hereof, each of the representations and
warranties made by it in Section 7 of the Credit Agreement (except to the
extent of changes resulting from transactions contemplated or permitted by
this Second Amendment, the Credit Agreement and the other Loan Documents and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date),
PROVIDED, that all references therein to the Credit Agreement shall refer to
such Credit Agreement as amended hereby. In addition, the Borrower hereby
represents and warrants that the execution and delivery by the Borrower of
this Second Amendment and the performance by the Borrower of all of its
agreements and obligations under the Credit Agreement as amended hereby are
within the corporate authority of the Borrower and have been duly authorized
by all necessary corporate action on the part of the Borrower.
SECTION 5. RATIFICATION, Etc. Except as expressly amended hereby,
the Credit Agreement and all documents, instruments and agreements related
thereto, including, but not limited to the Security Documents, are hereby
ratified and confirmed in all respects and shall continue in full force and
effect. The Credit Agreement and this Second Amendment shall be read and
construed as a single agreement. All references in the Credit Agreement or
any related agreement or instrument to the Credit Agreement shall hereafter
refer to the Credit Agreement as amended hereby.
SECTION 6. NO WAIVER. Nothing contained herein shall constitute a
waiver of, impair or otherwise affect any Obligations, any other obligation
of the Borrower or any rights of the Agent or the Banks consequent thereon.
SECTION 7. COUNTERPARTS. This Second Amendment may be executed in
one or more counterparts, each of which shall be deemed an original but which
together shall constitute one and the same instrument.
SECTION 8. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT OF LAWS).
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as a document under seal as of the date first above written.
STRIDE & ASSOCIATES, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: Chief Financial Officer
BANKBOSTON, N.A.,
individually and as Agent
By: /s/ Xxxx X. Xxxxxxx
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Vice President
IMPERIAL BANK
By: /s/ Xxxxx X. Pouripauskur
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Title: Vice President
SILICON VALLEY BANK
By: /s/ Xxxxx Xxxx
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Title: Senior Vice President
