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EXHIBIT 10.10
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT BETWEEN
DATASOUTH COMPUTER CORPORATION AND WACHOVIA BANK, N.A. DATED AS OF JUNE 30, 1999
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FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is made as of the 30th day of June, 1999, between DATASOUTH
COMPUTER CORPORATION (the "Borrower") and WACHOVIA BANK, N.A. (the "Bank").
Background:
The Borrower and the Bank have entered into a $9,000,000
Amended and Restated Credit Agreement dated as of March 5, 1999 (the "Credit
Agreement", which term shall include all subsequent amendments, extensions and
modifications thereto).
The Borrower and the Bank wish to amend the Credit Agreement
in certain respects as hereinafter provided.
NOW, THEREFORE, the Borrower and the Bank agree as follows:
SECTION 1. Definitions. Capitalized terms used herein which
are not otherwise defined herein shall have the respective meanings assigned to
them in the Credit Agreement.
SECTION 2. Amendments to Credit Agreement. The Credit
Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby
amended by adding the following definitions in
appropriate alphabetical order:
"Deed of Trust" means the Deed of Trust, Assignment
of Rents, Security Agreement and Financing Statement
dated as of June 30, 1999 executed by the Borrower to
New Salem, Inc. for the benefit of the Bank, covering
the Borrower=s real property located in Charlotte,
Mecklenburg County, North Carolina.
"Guaranty" means the Guaranty Agreement dated as of
June 30, 1999 executed by Bull Run for the benefit of
the Bank.
(b) Section 1.01 of the Credit Agreement is hereby
amended by restating the definition of "Facility B
Commitment Reduction Date" in its entirety as
follows:
"Facility B Commitment Reduction Date" shall mean
September 30, 1999, provided that if such day is not
a Domestic Business Day, the Facility B Commitment
Reduction Date shall be the next succeeding Domestic
Business Day.
(c) Section 1.01 of the Credit Agreement is hereby
amended by restating the definition of "Loan
Documents" in its entirety as follows:
"Loan Documents" means this Agreement, the Notes, the
Security Agreement, the Pledge Agreement, the Deed of
Trust, the Guaranty and any other document evidencing
or securing the Advances.
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(d) Section 6.03(a) of the Credit Agreement is hereby
amended by deleting both references to the date "June
30, 1999" and substituting therefor the date
"September 30, 1999."
(e) Section 6.03(b) of the Credit Agreement is hereby
amended by deleting the date "June 30, 1999" and
substituting therefor the date "September 30, 1999."
(f) Section 6.05(a) of the Credit Agreement is hereby
amended by deleting both references to the date "June
30, 1999" and substituting therefor the date
"September 30, 1999."
(g) Section 6.05(b) of the Credit Agreement is hereby
amended by deleting the date "June 30, 1999" and
substituting therefor the date "September 30, 1999."
(h) Section 6.21 of the Credit Agreement is hereby
amended by deleting such section in its entirety.
(i) Section 6.22 is hereby amended by deleting such
section in its entirety and substituting therefor the
following:
SECTION 6.22 Interest Coverage. (a) At the
end of each Fiscal Quarter, commencing with the
Fiscal Quarter ending September 30, 1999, the
Interest Coverage Ratio, as determined in accordance
with Section 6.22(b), shall not be less than the
following limits:
(i) from September 30, 1999 through December
31, 1999, the Interest Coverage Ratio shall not be
less than 1.85 to 1.00; and
(ii) from January 1, 2000 through December
31, 2000, the Interest Coverage Ratio shall not be
less than 2.75 to 1.00.
(b) The Interest Coverage Ratio shall be
determined at the end of each Fiscal Quarter,
commencing with the Fiscal Quarter ending September
30, 1999, and shall be the ratio of EBITDA for the
twelve months then ended to Consolidated Interest
Expense for the twelve months then ended.
SECTION 3. No Other Amendment. Except for the amendments set forth
above, the text of the Credit Agreement shall remain unchanged and in full force
and effect. This Amendment is not intended to effect, nor shall it be construed
as, a novation. The Credit Agreement and this Amendment shall be construed
together as a single instrument and any reference to the "Agreement" or any
other defined term for the Credit Agreement in the Credit Agreement, the Loan
Documents or any certificate, instrument or other document delivered pursuant
thereto shall mean the Credit Agreement as amended hereby and as it may be
amended, supplemented or otherwise modified hereafter. Nothing herein contained
shall waive, annul, vary or affect any provision, condition, covenant or
agreement contained in the Credit Agreement, except as herein amended, or any of
the other Loan Documents nor affect nor impair any rights, powers or remedies
under the Credit Agreement, as hereby amended, or any of the other Loan
Documents. The Bank hereby reserves all of its rights and remedies against all
other parties who may be or may hereafter become secondarily liable for the
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repayment of the Notes. The Borrower promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Credit Agreement, as hereby amended, and the other Loan Documents, the Credit
Agreement, as amended, and the other Loan Documents being hereby ratified and
affirmed. The Borrower hereby expressly agrees that the Credit Agreement, as
amended, and the other Loan Documents are in full force and effect.
SECTION 4. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Bank as follows:
(a) No Default or Event of Default under the Credit Agreement
has occurred and is continuing on the date hereof (except those being cured by
the amendments effected by this Amendment);
(b) The Borrower has the corporate power and authority to
enter into this Amendment and the Deed of Trust and to do all acts and things as
are required or contemplated hereunder to be done, observed and performed by it;
(c) This Amendment and the Deed of Trust have been duly
authorized, validly executed and delivered by one or more authorized officers of
the Borrower and each of this Amendment, and the Credit Agreement, as amended
hereby, and the Deed of Trust constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with its terms;
and
(d) The execution and delivery of this Amendment and the Deed
of Trust and the Borrower's performance hereunder and under the Credit
Agreement, as amended hereby, and under the Deed of Trust, do not and will not
require the consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower other than those which
have already been obtained or given, nor be in contravention of or in conflict
with the Articles of Incorporation or Bylaws of the Borrower, or the provision
of any statute, or any judgment, order or indenture, instrument, agreement or
undertaking, to which the Borrower is a party or by which its assets or
properties are or may become bound.
SECTION 5. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original and all
of which, taken together, shall constitute one and the same agreement.
SECTION 6. Governing Law. This Amendment shall be deemed to be
made pursuant to the laws of the State of North Carolina with respect to
agreements made and to be performed wholly in the State of North Carolina and
shall be construed, interpreted, performed and enforced in accordance therewith.
SECTION 7. Effective Date. This Amendment shall be effective
as of the date first set forth above. This Amendment shall not become effective
until the Borrower has executed and delivered to the Bank the Deed of Trust,
together with evidence satisfactory to Bank of the Borrower's authority to enter
into the Deed of Trust, and Bull Run Corporation has executed and delivered to
the Bank the Guaranty together with evidence of Bull Run Corporation's authority
to enter into the Guaranty. In addition, the Borrower shall pay all out of
pocket fees and expenses of the Bank in connection with this Amendment, the Deed
of Trust and the Guaranty, including, without limitation, the reasonable fees
and expenses of counsel for the Bank.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
BORROWER:
Attest: DATASOUTH COMPUTER CORPORATION
/s/ K. XXXX XXXXXX By: /s/ XXXXXXXXX X. XXXXXXXX
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Its: Assistant Secretary Its: Executive VP - Finance & Administration,
Secretary & Treasurer
[CORPORATE SEAL]
BANK:
WACHOVIA BANK, N.A.
By: /s/ XXXXXXXXXXX X. XXXXXXX
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Title: Senior Vice President
