1
EXHIBIT 4.2
SECOND AMENDMENT, dated as of May 2, 1997 (this "Second Amendment"),
with respect to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November
19, 1996 (as amended by the Waiver and First Amendment, dated as of February
11, 1997 and as the same may be further amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among XXXXXX
COMMUNICATIONS CORPORATION, a Delaware corporation (the "Borrower"), the
lenders from time to time party thereto (the "Lenders"), and UNION BANK OF
CALIFORNIA, N.A., as Agent.
WITNESSETH:
-----------
WHEREAS, the parties hereto wish to amend certain provisions of the
Credit Agreement, but only on the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, all capitalized
terms defined in the Credit Agreement and used herein are so used as so
defined.
2. Amendments to Credit Agreement.
A. Subsection 1.1 of the Credit Agreement is hereby amended by
inserting at the end of the definition of "Leverage Ratio" the following:
For the purposes of calculating the Leverage Ratio for the 1997
fiscal year of the Borrower, Consolidated Total Debt shall be
determined without regard to any "Permitted Indebtedness", as such
term is defined in the Senior Subordinated Note Indenture, provided
that the aggregate principal amount of such Permitted Indebtedness
excluded from such calculation of Consolidated Total Debt shall not be
in excess of $30,000,000.
B. Subsection 2.6(d) of the Credit Agreement is hereby amended
by deleting the date "June 30, 1997" in the fourth line thereof and
substituting in lieu thereof the date "September 30, 1997".
C. Subsection 6.1(a) of the Credit Agreement is hereby amended
by deleting the table therein and inserting in its place the following new
table:
2
PERIOD ENDED LEVERAGE RATIO
============ ==============
Closing Date - September 30, 1997 6.35:1.00
------------------------------------ ---------
October 1, 1997 - September 30, 1998 5.50:1.00
------------------------------------ ---------
October 1, 1998 - thereafter 5.00:1.00
==================================== =========
D. Subsection 6.1(b) of the Credit Agreement is hereby
amended by deleting the table therein and inserting in its place the following
new table:
CASN INTEREST
PERIOD COVERAGE RATIO
====== ==============
Closing Date -
March 31, 1997 1.40:1.00
------------------------------------ ---------
April 1, 1997 - September 30, 1997 1.30:1.00
------------------------------------ ---------
October 1, 1997 - December 31, 1998 1.50:1.00
------------------------------------ ---------
Thereafter 2.00:1.00
==================================== =========
3. Effect of Issuance or Sale of Equity Securities. If (a)
any class of equity Securities of the Borrower or any of its Subsidiaries shall
be issued or sold during the 1997 fiscal year of the Borrower and (b) the Net
Cash Proceeds received by the Borrower or any of its Subsidiaries from such
issuance or sale are in an amount such that the application of such Net Cash
Proceeds to the reduction of the Consolidated Total Debt of the Borrower would
enable the Borrower to be in compliance with subsection 6.1(a) of the Credit
Agreement as such subsection was in effect prior to this Second Amendment, then
the amendments to the Credit Agreement contained in subsections 2A and 2C of
this Second Amendment shall cease to be in effect and the provisions of the
Credit Agreement amended by subsections 2A and 2C of the Second Amendment shall
be in effect as such provisions were in effect prior to the Second Amendment,
except as such provisions may be amended, modified or supplemented subsequent
to the date hereof in accordance with the Credit Agreement.
4. Effective Date. This Second Amendment will become effective
as of the date hereof upon its execution by the Borrower and the Lenders in
accordance with the terms of the Credit Agreement.
5. Representations and Warranties. The Borrower represents
and warrants to each Lender that as of the effective date of this Second
Amendment (a) this Second Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with its
terms, except as such enforcement may be limited by
3
bankruptcy, insolvency, fraudulent conveyances, reorganization, moratorium or
similar laws affecting creditors' rights generally, by general equitable
principles (whether enforcement is sought by proceedings in equity or at law)
and by an implied covenant of good faith and fair dealing, (b) the
representations and warranties made by the Borrower in the Loan Documents are
true and correct in all material respects on and as of the date hereof before
and after giving effect to the terms hereof (except to the extent that such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date) and (c) no Default or Event of Default
shall have occurred and be continuing as of the date hereof nor would result
herefrom.
6. Continuing Effect. Except as expressly waived or amended
hereby, the Credit Agreement shall continue to be and shall remain in full
force and effect in accordance with its terms.
7. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
8. Counterparts. This Second Amendment may be executed by the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
9. Payment of Expenses. The Borrower agrees to pay and
reimburse the Administrative Agent for all of its out-of-pocket costs and
reasonable expenses incurred in connection with this Second Amendment,
including without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
4
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their property and duly
authorized officers as of the day and year first above written.
XXXXXX COMMUNICATIONS
CORPORATION
By: /s/
------------------------------
Title:
UNION BANK OF CALIFORNIA, N.A., as
Agent
By: /s/Xxxxxxxxx X. Xxxx
------------------------------
Title: Vice President
THE BANK OF NEW YORK
By: /s/
------------------------------
Title
CIBC, INC.
By: /s/
------------------------------
Title
THE FIRST NATIONAL BANK OF BOSTON
By: /s/
------------------------------
Title
0
XXXXX XXXXX XXXXXXXX XXXX XX XXXXX
XXXXXXXX
By: /s/
------------------------------
Title: Senior Vice President
ABN-AMRO BANK N.V.
ABN AMRO NORTH AMERICA, INC.
By: /s/
------------------------------
BANK OF AMERICA ILLINOIS
By: /s/
------------------------------
Title
BANK OF MONTREAL
By: /s/
------------------------------
Title
XXXXXXX BANK, N.A.
By: /s/
------------------------------
Title
6
ABN AMRO BANK NV
By: /s/Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Group Vice President
By: /s/Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
7
FLEET NATIONAL BANK
By: /s/
----------------------------------
Title:
LTCB TRUST COMPANY
By:
----------------------------------
Title:
THE SUMITOMO BANK LIMITED
By: /s/ XXXXX X. XXXXXXX, XX.
----------------------------------
Title: XXXXX X. XXXXXXX, XX.
VICE PRESIDENT & MGR.
By: /s/ M. XXXXXXX XXXXXXX
----------------------------------
Title: M. XXXXXXX XXXXXXX
VICE PRESIDENT
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/
----------------------------------
Title:
VICE PRESIDENT
