Exhibit 10.16
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
September 31, 1999, is entered into by and among XXXXXX COMPANIES INC. (the
"Company"), BANK OF AMERICA, N.A., as agent for itself and the Lenders (the
"Agent"), and the several financial institutions party to the Credit Agreement
described below (collectively, the "Lenders").
RECITALS
A. Reference is hereby made to that certain Credit Agreement dated as of
June 24, 1999 as the same was amended pursuant to that certain First Amendment
to Credit Agreement dated as of August 24, 1999 in each case by and among the
Company, Lenders and Agent (the "Credit Agreement") pursuant to which the Agent
and the Lenders have extended certain credit facilities to the Company.
B. The Company has requested that the Lenders agree to amend the Credit
Agreement.
C. The Lenders are willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. Amendment to Credit Agreement. Section 6.15(b) of the Credit Agreement
shall be amended and restated to read as follows:
(b) Interest Coverage Ratio. The Company shall maintain on a
consolidated basis for each period of four consecutive fiscal
quarters, an Interest Coverage Ratio of not less than the applicable
minimum ratio set forth below:
Period Minimum Ratio
------ -------------
For the periods of four consecutive 1.80 to 1
fiscal quarters ending on or before
December 31, 2000
For the periods of four consecutive 1.90 to 1
fiscal quarters ending after
December 31, 2000 and on or before
December 31, 2001
For the periods of four consecutive 2.00 to 1
fiscal quarters ending after
December 31, 2001 and on or before
December 31, 2002
For the periods of four consecutive 2.25 to 1
fiscal quarters ending after
December 31, 2002
As used herein, "Interest Coverage Ratio" means, for any period, the
ratio of (a) Adjusted Cash Flow of the Company and its Subsidiaries
for such period to (b) interest expense (including capitalized
interest and the interest component of rentals paid or accrued under
capital leases) of the Company and its Subsidiaries for such period,
provided, however, that for purposes of this subsection and subsection
6.15(c), "interest expense" for the four consecutive fiscal quarters
ending on September 30, 1999, December 31, 1999 and March 31, 2000
shall be calculated in accordance with the following formula: (i)
interest expense for the four quarter period ending on September 30,
1999, shall be four times the Company's consolidated interest expense
for the quarter ending on September 30, 1999; (ii) interest expense
for the four quarter period ending on December 31, 1999, shall be two
times the Company's consolidated interest expense for the two quarter
period ending on December 31, 1999; and (iii) interest expense for the
four quarter period ending on March 31, 2000, shall be four-thirds
(4/3) of the Company's consolidated interest expense for the three
quarter period ending on March 31, 2000.
3. Representations and Warranties. The Company hereby represents and
warrants to the Agent and the Lenders as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its respective terms. without defense,
counterclaim or offset.
(c) All representations and warranties of the Company contained in
the Credit Agreement are true and correct.
-2-
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the Agent and
the Lenders or any other Person.
4. Effective Date. This Amendment will become effective as of September
30, 1999, at such time as (a) the Agent has received from the Company and the
Lenders a duly executed original (or, if elected by the Agent, an executed
facsimile copy) of this Amendment, together with a duly executed Guarantor
Acknowledgment and Consent in the form attached hereto; and (b) the Company has
paid in full certain amendment fees to the Agent and certain Lenders in
accordance with the terms of that certain letter dated November 1, 1999 from the
Agent to the Lenders in respect of this Amendment; and (c) Agent shall have
received in form and substance reasonably satisfactory to it such evidence of
corporate authority and action as Agent or any Lender shall request
demonstrating that the execution, delivery and performance of this Amendment has
been duly authorized by the Company.
5. Reservation of Rights. The Company acknowledges and agrees that the
execution and delivery by the Agent and the Lenders of this Amendment shall not
be deemed to create a course of dealing or otherwise obligate the Agent or the
Lenders to forbear or execute similar amendments under the same or similar
circumstances in the future.
6. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and all references therein to such Credit Agreement shall henceforth refer to
the Credit Agreement as amended by this Amendment. This Amendment shall be
deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
(c) This Amendment shall be governed by and construed in accordance
with the law of the State of Washington.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Lender or
the Company shall bind such Lender or the Company, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
-3-
(e) This Amendment, together with the Credit Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior drafts
and communications with respect thereto. This Amendment may not be amended
except in accordance with the provisions of Section 10.01 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Agent and the
Lenders, upon demand, for all costs and expenses (including allocated costs of
in-house counsel) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment, including without
limitation appraisal, audit, search and filing fees incurred in connection
therewith.
5. Oral Agreements Not Enforceable.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR
TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE
UNDER WASHINGTON LAW.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
XXXXXX COMPANIES INC.
By:__________________________________
Title:_______________________________
BANK OF AMERICA, N.A., as Agent
By:__________________________________
Title:_______________________________
BANK OF AMERICA, N.A., as a Lender
By:__________________________________
Title:_______________________________
-4-
U.S. BANK NATIONAL ASSOCIATION, as
a Lender
By:__________________________________
Title:_______________________________
CREDIT SUISSE FIRST BOSTON, as a Lender
By:__________________________________
Title:_______________________________
BANKBOSTON, N.A. as a Lender
By:__________________________________
Title:_______________________________
THE BANK OF NOVA SCOTIA, as a Lender
By:__________________________________
Title:_______________________________
BANK OF MONTREAL, as a Lender
By:__________________________________
Title:_______________________________
KEY CORPORATE CAPITAL INC., as a Lender
By:__________________________________
Title:_______________________________
THE BANK OF NEW YORK, as a Lender
By:__________________________________
Title:_______________________________
-5-
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By:__________________________________
Title:_______________________________
THE FUJI BANK, LIMITED, as a Lender
By:__________________________________
Title:_______________________________
CITY NATIONAL BANK, as a Lender
By:__________________________________
Title:_______________________________
CREDIT SUISSE FIRST BOSTON, as
Syndication Agent
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
-6-
