EXHIBIT 10.16
EXECUTION COPY
SIXTH AMENDMENT dated as of September 30,2002
(this "Amendment") to the Amended and Restated Credit
Agreement dated as of April 27,200l (as amended, amended
and restated, supplemented or otherwise modified from time
to time, the "Credit Agreement") among MTS, INCORPORATED,
a California corporation ("MTS"); TOWER RECORDS KABUSHIKI
KAISHA, a Japanese corporation ("TRKK", and together with
MTS, the "Borrowers"); the LENDERS party thereto (the
"Lenders"); and JPMORGAN CHASE BANK (f/k/a The Chase
Manhattan Bank), as Administrative Agent (in such
capacity, the "Agent").
WHEREAS, the Borrowers, the Lenders and the Agent are parties to
the Credit Agreement; and
WHEREAS, the Borrowers have requested that the Maturity Date
under the Credit Agreement be extended to October 4, 2002 and the Lenders party
hereto are willing to amend the Credit Agreement on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which is hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used and not defined
herein shall have the meanings given to them in the Credit Agreement, as amended
hereby.
SECTION 2. Amendments to the Credit Agreement. Section 1.01 of
the Credit Agreement is hereby amended by amending and restating the definition
of "Maturity Date" in its entirety as follows:
"'Maturity Date' means October 4, 2002. "
SECTION 3. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights or remedies of the
Lenders, the Collateral Agent or the Administrative Agent under the Credit
Agreement, as amended by this Amendment, or any other Loan Document, and shall
not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, as
amended by this Amendment, or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
Nothing herein shall be deemed to entitle any Borrower to a consent to, or a
waiver,
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amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement, as
amended by this Amendment, or any other Loan Document in similar or different
circumstances. This Amendment shall apply and be effective only with respect to
the provisions of the Credit Agreement set forth herein. After the date hereof,
any reference to the Credit Agreement shall mean the Credit Agreement as
modified hereby. This Amendment shall constitute a "Loan Document " for all
purposes of the Credit Agreement and the other Loan Documents.
SECTION 4. Representations and Warranties. Each of the Borrowers
hereby represents and warrants to the Agent and the Lenders as of the date
hereof as follows:
(a) No Default or Event of Default shall have occurred and be
continuing after giving effect to this Amendment.
(b) The execution, delivery and performance by each of the
Borrowers 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 obligation of
each of the Borrowers, enforceable against them in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
(c) All representations and warranties of the Borrowers contained
in Article III of the Credit Agreement are true and correct as of the date
hereof (except for representations or warranties that expressly relate to an
earlier date, in which case such representations and warranties are true and
correct as of such earlier date).
SECTION 5. Effectiveness. This Amendment shall become effective
following receipt by the Agent of counterparts hereof duly executed and
delivered by the Borrowers and each of the Lenders.
SECTION 6. Costs and Expenses. Each Borrower hereby agrees,
jointly and severally, to reimburse the Agent for its out-of-pocket expenses in
connection with this Amendment, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Moore, counsel for the Agent.
SECTION 7. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which
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together shall constitute a single instrument. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Submission to Jurisdiction. The provisions of Section
9.09 of the Credit Agreement shall apply mutatis mutandis to this Amendment and
any action or proceeding in respect hereof.
SECTION 10. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
MTS, INCORPORATED
By
/s/ DeVaughn Searson
-------------------------------
Name: DeVaughn Searson
Title: Secretary
TOWER RECORDS KABUSHIKI KAISHA,
By
/s/ DeVaughn Searson
-------------------------------
Name: DeVaughn Searson
Title: Director
JPMORGAN CHASE BANK (f/k/a THE
CHASE MANHATTAN BANK),
individually and as
Administrative Agent,
By
/s/ Susan E. Atkins
-------------------------------
Name: Susan E. Atkins
Title: Managing Director
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
BNP Paribas
by:
/s/ Barbara Eppolito
--------------------------
Name: Barbara Eppolito
Title: Vice President
/s/ Edward V. Canale
--------------------------
Name: Edward V. Canale
Title: Managing Director
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
California Bank & Trust
by:
/s/ Robert K. Chaulk
-----------------------------
Name: Robert K. Chaulk
Title: Senior Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Lloyds TSB Bank Plc
by:
/s/ Matthew A.L. Packham
---------------------------
Name: Mathew A.L. Packham
Title: Assistant Director
Credit Services
/s/ Mark Grant
---------------------------
Name: Mark Grant
Title: Senior Vice President
and Chief Credit Officer
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
The Mitsubishi Trust and Banking Corporation
by:
/s/ Yasushi Ishikawa
------------------------------
Name: Yasushi Ishikawa
Title: Senior Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Mizuho Corporate Bank, Ltd.
(f/k/a The Fuji Bank, Limited)
by:
/s/ Masahito Fukuda
----------------------------
Name: Masahito Fukuda
Title: Senior Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Societe Generale
by:
/s/ R. Wayne Hutton
-----------------------------------
Name: R. Wayne Hutton
Title: Director Corporate Banking
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Sumitomo Mitsui Banking Corporation
by:
/s/ David A. Buck
------------------------------
Name: David A. Buck
Title: Senior Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
UFJ Bank Limited
by:
/s/ Toshiko Boyd
----------------------
Name: Toshiko Boyd
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Union Bank of California, NA
by:
/s/ Cecilia M. Valente
-----------------------------
Name: Cecilia M. Valente
Title: Senior Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
U.S. Bank National Association
by:
/s/ Mark A. Esnob
----------------------
Name: Mark A. Esnob
Title: Vice President
SIGNATURE PAGE TO
SIXTH AMENDMENT
TO MTS/TRKK
AMENDED AND RESTATED CREDIT AGREEMENT
To approve the Amendment:
Name of Institution:
Wachovia Bank, National Association
by:
/s/ Colleen McCullum
----------------------------
Name: Colleen McCullum
Title: Director