EXHIBIT 4.8
EXECUTION COPY
FIRST AMENDMENT TO AMENDED
AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") dated as of the 13th day of November, 1998 (the "Amendment Date"),
by and among ▇▇▇▇ COMMUNICATIONS SYSTEMS, INC., a Georgia corporation (the
"Borrower"), the BANKS (as defined in the Loan Agreement defined below),
NATIONSBANK, N.A., as syndication agent (the "Syndication Agent") and
administrative agent (the "Administrative Agent"), and KEY CORPORATE CAPITAL, as
documentation agent (the "Documentation Agent", and collectively with the
Syndication Agent and the Administrative Agent, the "Agents"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Agents are parties to that
certain Amended and Restated Loan Agreement dated as of July 31, 1998 (the "Loan
Agreement"); and
WHEREAS, the Borrower has requested, and the Banks have agreed, subject
to the terms hereof, to amend the Loan Agreement as more fully set forth herein;
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:
1. Amendment to Article 1. Section 1.1 of the Loan Agreement, Defined
Terms, is hereby amended by deleting the definition of "Fixed Charge Coverage
Ratio" in its entirety and by substituting in lieu thereof the following:
"'Fixed Charge Coverage Ratio' means, as of the end of any
fiscal quarter, the ratio of (a) Operating Cash Flow for the four (4)
quarter period then ended to (b) the sum of (i) all Interest Expense
for such four (4) quarter period, plus, (ii) all required principal
payments of Revolving Loans made pursuant to scheduled Revolving
Commitment reductions pursuant to Section 2.1 during such four (4)
quarter period, plus (iii) all required principal payments due on the
Term Loans during such four (4) quarter period, plus (iv) all principal
payments required to be made by the Borrower and its Subsidiaries on
Total Debt (other than the Loans) during such four (4) quarter period,
plus (v) Capital Expenditures made by the Borrower and its Subsidiaries
during such four (4) quarter period, plus (vi) any federal, state or
local income taxes paid by the Borrower or any of its Subsidiaries
during such four (4) quarter period, plus (vii) any purchases of common
stock of the Borrower by the Borrower or any of its Subsidiaries during
such four (4) quarter period."
2. Amendment to Article 8. Section 8.12 of the Loan Agreement,
Financial Covenants, is hereby amended by deleting subsection (d) thereof,
Operating Cash Flow to Interest Expense, in its entirety and by substituting in
lieu thereof the following:
"(d) Operating Cash Flow to Interest Expense. As of any
calculation date, the Borrower shall not permit the ratio of (i)
Operating Cash Flow for the four (4) fiscal quarter period then ended
or most recently ended, to (ii) the sum of (A) Interest Expense, plus
(B) dividends made by the Borrower and its Subsidiaries in respect of
the Borrower's or such Subsidiary's Capital Stock or other ownership
interest for the same such four (4) quarter period (excluding dividends
made in such Capital Stock or other ownership interest), to be less
than 1.50 to 1.00."
3. 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.
4. 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
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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 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.
5. 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.
6. 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.
7. 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.
8. 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.
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 Agreement or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
▇▇▇▇ COMMUNICATIONS SYSTEMS, INC.,
a Georgia corporation
By: c/▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President - Chief Financial
Officer
[CORPORATE SEAL]
Attest: c/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇
Title: Assistant Secretary
First Amendment to Amended
and Restated Loan Agreement
Signature Page 1
NATIONSBANK, N.A., as Administrative Agent,
Syndication Agent and a Bank
By: c/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 2
KEY CORPORATE CAPITAL INC., as Documentation
Agent and a Bank
By: c/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 3
CIBC INC., as a Bank
By: c/▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
First Amendment to Amended
and Restated Loan Agreement
Signature Page 4
THE BANK OF NEW YORK, as a Bank
By: c/▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Senior Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 5
FIRST UNION NATIONAL BANK, as a Bank
By: c/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 6
SUNTRUST BANK, CENTAL FLORIDA, N.A.,
as a Bank
By: c/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 7
THE BANK OF NOVA SCOTIA, as a Bank
By: c/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
First Amendment to Amended
and Restated Loan Agreement
Signature Page 8
TORONTO DOMINION (TEXAS), INC.,
as a Bank
By: c/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 9
WACHOVIA BANK, N.A., as a Bank
By: c/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 10
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Bank
By: c/▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 11
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH, as a Bank
By: c/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: c/W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Credit Officer/Senior
Vice President
First Amendment to Amended
and Restated Loan Agreement
Signature Page 12
