EXHIBIT 4.9
EXECUTION COPY
SECOND AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") dated as of the 3rd day of March, 1999 (the "Amendment Date"), by
and among XXXX COMMUNICATIONS SYSTEMS, INC., a Georgia corporation (the
"Borrower"), the BANKS (as defined in the Loan Agreement defined below),
NATIONSBANK, N.A., as administrative agent (the "Administrative Agent") on
behalf of the Banks.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, the Administrative Agent, the
Syndication Agent (as defined in the Loan Agreement) and the Documentation Agent
(as defined in the Loan Agreement) are parties to that certain Amended and
Restated Loan Agreement dated as of July 31, 1999, as amended by that certain
First Amendment to Amended and Restated Loan Agreement, dated as of November 13,
1998 (as amended, modified, restated and supplemented from time to time, the
"Loan Agreement"); and
WHEREAS, the Borrower has requested and, subject to the terms and
conditions hereof, the Banks have agreed, to (a) amend certain provisions of the
Loan Agreement and (b) consent to the Borrower's purchase of an interest in
Xxxxxx Xxxxxxx ("Xxxxxx") from one of its Affiliates, as more particularly set
forth in that certain Stock Option Agreement dated as of February 28, 1999
between the Borrower and Bull Run Corporation (the "Option Agreement"); and
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used and not defined herein
shall have the meanings ascribed thereto in the Loan Agreement, and further
agree as follows:
A. Amendments, Consents and Waivers.
1. Amendment to Article 8. Section 8.12 of the Loan Agreement, Financial
Covenants, is hereby amended by deleting subsections (a) and (b) thereof,
Leverage Ratio and Adjusted Leverage Ratio, in their entirety and by
substituting in lieu thereof the following:
"(a) Leverage Ratio. As of any calculation date, the Borrower
shall not permit
the Leverage Ratio at any time during any period listed in Column A below to be
greater than the ratio set forth in Column B below opposite such period:
Column A Column B
Period: Permitted Ratio:
January 1, 1999 through September 30, 1999 6.65:1.0
October 1, 1999, and thereafter 6.40:1.0"
"(b) Adjusted Leverage Ratio. As of any calculation date, the
Borrower shall not permit the Adjusted Leverage Ratio at any time during any
period listed in Column A below to be greater than the ratio set forth in Column
B below opposite such period:
Column A Column B
Period: Permitted Ratio:
January 1, 1999, through September 30, 1999 6.60:1.0
October 1, 1999, through March 31, 2000 6.35:1.0
April 1, 2000, through December 31, 2000 5.75:1.0
January 1, 2001, through December 31, 2001 5.25:1.0
January 1, 2002, and thereafter 4.75:1.0"
2. Consent. The Borrower has informed the Banks that the Borrower
intends to purchase from Bull Run Corporation ("Bull Run") a 73% economic
interest and a 33.5% voting interest in Xxxxxx (the "Xxxxxx Investment") for a
purchase price of $10,000,000 plus transaction and related costs and options for
the purchase of certain of the Borrower's stock. Effective upon the execution
and delivery of this Consent by the Required Banks, the Banks hereby consent to
the Xxxxxx Investment; provided, however, that on or prior to the consummation
of the Xxxxxx Investment, the Borrower shall provide to the Administrative
Agent, in form and substance satisfactory the Administrative Agent, (i) evidence
reasonably satisfactory to the Administrative Agent that the Borrower has
pledged the Xxxxxx Investment as additional collateral securing the Obligations
under the Loan Agreement, (ii) certification to the Administrative Agent and the
Banks of the Borrower's compliance with Section 8.12 of the Loan Agreement and
the Borrower's ability to meet its repayment obligations under the Loan
Agreement through the Maturity Date after giving effect to the Xxxxxx
Investment,
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(iii) certification to the Administrative Agent and the Banks that an Event of
Default does not exist under the Loan Agreement and will not be caused by the
Xxxxxx Investment, and (iv) evidence reasonably satisfactory to the
Administrative Agent of consummation of the Xxxxxx Investment on substantially
the terms and conditions set forth in the Option Agreement.
B. Miscellaneous.
1. No Other Amendment or Waiver. Notwithstanding the agreement of the
Banks to the terms and provisions of this Amendment, the Borrower acknowledges
and expressly agrees that this Amendment is limited to the extent expressly set
forth herein and shall not constitute a modification of the Loan Agreement or
any other Loan Documents or a course of dealing at variance with the terms of
the Loan Agreement or any other Loan Documents (other than as expressly set
forth above) so as to require further notice by the Agents or the Banks, or any
of them, of its or their intent to require strict adherence to the terms of the
Loan Agreement and the other Loan Documents in the future. All of the terms,
conditions, provisions and covenants of the Loan Agreement and the other Loan
Documents shall remain unaltered and in full force and effect except as
expressly modified by this Amendment.
2. Representations and Warranties. The Borrower hereby represents and
warrants in favor of each Agent and each Bank as follows:
(a) The Borrower has the corporate power and authority (i) to enter into
this Amendment and (ii) to do all other acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
(b) This Amendment has been duly authorized and validly executed and
delivered by one or more Authorized Signatories of the Borrower and constitutes
the legal, valid and binding obligation of the Borrower, enforceable against it
in accordance with its terms;
(c) The execution and delivery of this Amendment and the performance by
the Borrower under the Loan Agreement and the other Loan Documents to which it
is a party, as amended hereby, do not and will not require the consent or
approval of any regulatory authority or governmental authority or agency having
jurisdiction over the Borrower or any of its Subsidiaries which has not already
been obtained, nor is in contravention of or in conflict with the articles of
incorporation, by-laws or partnership agreements of the Borrower or any of its
Subsidiaries, or any provision of any statute, judgment, order, indenture,
instrument, agreement, or undertaking to which the Borrower or any of its
Subsidiaries is a party or by which any of their respective assets or properties
is or may become bound; and
(d) The representations and warranties contained in Section 5 of the
Loan Agreement and contained in the other Loan Documents remain true and correct
as of the date
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hereof, both before and after giving effect to this Amendment, except to the
extent previously fulfilled in accordance with the terms of the Loan Agreement
or such other Loan Document, as applicable, or to the extent relating
specifically to the Agreement Date. No Default now exists or will be caused
hereby.
3. Conditions Precedent. The effectiveness of this Amendment is subject
to the receipt by the Administrative Agent of counterparts hereof executed by
the Required Banks and the Borrower and of all documents, instruments, consents
or items which the Administrative Agents shall deem appropriate in connection
herewith.
4. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute one and the same instrument.
5. Loan Documents. Each reference in the Loan Agreement or any other
Loan Document to the term "Loan Agreement" shall hereafter mean and refer to the
Loan Agreement as amended hereby and as the same may hereafter be amended.
6. Governing Law. This Amendment shall be construed in accordance with
and governed by the internal laws of the State of Georgia, applicable to
agreements made and to be performed in Georgia.
7. Severability. Any provision of this Consent which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
8. Entire Agreement This Consent, together with the documents referred
to herein, constitute the entire agreement among the parties with respect to the
matters addressed herein, and may not be modified except in writing.
9. Effective Date. Upon satisfaction of the conditions precedent
referred to in Section 5 hereof, this Amendment shall be effective as of the
Amendment Date.
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IN WITNESS WHEREOF, the parties hereto have executed this Consent or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: XXXX COMMUNICATIONS SYSTEMS, INC., a
Georgia corporation
By: c/Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Its: Vice President - Chief Financial Officer
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ADMINISTRATIVE AGENT, NATIONSBANK, N.A., as Administrative Agent and
AND BANKS: Bank
By: c/Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Its: Senior Vice President
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KEY CORPORATE CAPITAL INC. (f/k/a KeyBank
National Association), as a Bank
By:
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Name:
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Its:
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CIBC INC., as a Bank
By: c/Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Its: Executive Director
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Second Amendment to Amended
and Restated Loan Agreement
Signature Page 1
THE BANK OF NEW YORK, as a Bank
By: c/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Its: Vice President
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FIRST UNION NATIONAL BANK
(f/k/a CoreStates Bank, N.A.), as a Bank
By: c/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: Senior Vice President
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SUNTRUST BANK, CENTAL FLORIDA, N.A.,
as an Assignee
By:
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Name:
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Its:
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By:
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THE BANK OF NOVA SCOTIA, as an Assignee
By: c/P.A. Xxxxxxxxxxxxx
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Name: P.A. Xxxxxxxxxxxxx
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Its: Authorized Signatory
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TORONTO DOMINION (TEXAS), INC.,
as an Assignee
By: c/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Its: Vice President
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Second Amendment to Amended
and Restated Loan Agreement
Signature Page 2
WACHOVIA BANK, N.A., as an Assignee
By: c/oWilliam X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Its: Vice President
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THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as an Assignee
By: c/Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Its: Assistant Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",NEW YORK
BRANCH, as an Assignee
By: c/Xxxxx X. Tackling
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Name: Xxxxx X. Tackling
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Its: Vice President
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By: c/Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Its: Senior Vice President
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Second Amendment to Amended
and Restated Loan Agreement
Signature Page 3
