EXHIBIT 10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made as of this 14th day of December, 2001, by and among BR
HOLDING, INC., a Georgia corporation ("Bull Run"), CAPITAL SPORTS PROPERTIES,
INC., a Delaware corporation ("Capital"), HOST COMMUNICATIONS, INC., a Kentucky
corporation ("Host") and DATASOUTH COMPUTER CORPORATION, a Delaware corporation
("Datasouth" and together with Bull Run, Capital and Host, the "Borrowers"), as
Borrowers, BULL RUN CORPORATION, a Georgia corporation (the "Parent"), as a
Guarantor, THE LENDERS SIGNATORY HERETO (collectively, the "Lenders"), BANK OF
AMERICA, N.A. and BANK ONE, KENTUCKY, NA, as Issuing Banks (collectively, the
"Issuing Banks"), FIRST UNION NATIONAL BANK, as Syndication Agent for the
Issuing Banks and the Lenders (the "Syndication Agent") and BANK OF AMERICA,
N.A., as Administrative Agent for the Issuing Banks and the Lenders (the
"Administrative Agent").
RECITALS
WHEREAS, the Borrowers, the Parent, the Lenders, the Issuing Banks, the
Syndication Agent and the Administrative Agent are parties to that certain
Amended and Restated Credit Agreement dated as of July 27, 2001, as amended by
that certain First Amendment to Amended and Restated Credit Agreement dated as
of October 5, 2001 (as further amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), pursuant to which the
Lenders have agreed to make one or more loans from time to time to the Borrowers
in accordance with the terms and conditions thereof; and
WHEREAS, as of December 1, 2001, the aggregate amount of the Revolving
Loan Commitment decreased from $25,000,000 to $20,000,000, effective during the
period on and after December 1, 2001 through February 28, 2002; and
WHEREAS, as of December 1, 2000 and through the date hereof, the amount
of the Aggregate Revolving Credit Obligations may from time to time exceed the
amount of the Revolving Loan Commitment then outstanding giving rise to an
overadvance of the Revolving Loans, and in the event that the Borrowers shall
fail to repay the amount of such overadvance, an Event of Default shall be
deemed to have occurred under the Credit Agreement (the "Overadvance Default");
and
WHEREAS, the Borrowers have requested that the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent waive any Overadvance
Default that may occur and forebear from exercising their rights and remedies
arising under the Credit Agreement and the other Loan Documents as a result of
any such Overadvance Default, and subject to the terms and conditions set forth
herein, the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent have agreed to grant such waiver effective during the
period from December 1, 2000 through and including the date hereof; and
WHEREAS, the Borrowers have further requested, and the Lenders, the
Issuing Banks, the Syndication Agent and the Administrative Agent have agreed,
to amend the Credit Agreement as and to the extent set forth herein;
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto do
hereby agree that all capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement as amended hereby (except as otherwise
expressly defined or limited herein) and do hereby further agree as follows:
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1. AMENDMENT TO ARTICLE 1 OF THE CREDIT AGREEMENT. Article 1 of the
Credit Agreement, Definitions, is hereby modified and amended by deleting the
existing definition of "Revolving Loan Commitment" and by substituting the
following in lieu thereof:
"`Revolving Loan Commitment' shall mean the several
obligations of the Lenders to advance to the Borrowers the amounts set
forth below during the applicable periods set forth below, on and after
the Agreement Date, in accordance with their respective Revolving
Commitment Ratios, pursuant to the terms hereof, and as such amounts
may be reduced from time to time, pursuant to the terms hereof:
Applicable Period During Each Year Revolving Loan Commitment
---------------------------------- -------------------------
Agreement Date through August 31, 2001 $15,000,000
September 1, 2001 through November 30, 2001 $25,000,000
December 1, 2001 through January 31, 2002 $22,500,000
February 1, 2002 through February 28, 2002 $20,000,000
March 1, 2002 and thereafter $15,000,000
Each reference to the `Revolving Loan Commitment' contained in this
Agreement shall be deemed to refer to the Revolving Loan Commitment
then in effect."
2. AMENDMENT TO SECTION 7.7 OF THE CREDIT AGREEMENT. Section 7.7 of the
Credit Agreement, Liquidation; Change in Ownership, Name, or Year; Disposition
or Acquisition of Assets, is hereby modified and amended by deleting clause (a)
therefrom and by substituting the following in lieu thereof:
"(a) Liquidate or dissolve itself (or suffer any liquidation or
dissolution) or otherwise wind up its business, provided, however, on or after
December 31, 2001, NTA On-Line Connect, Inc. may be dissolved so long as such
Person shall have no assets or be engaged in any business activities;"
3. WAIVER. The Lenders, the Issuing Banks, the Syndication Agent and
the Administrative Agent hereby waive (a) any Overadvance Default and (b) their
rights and remedies under the Credit Agreement and the other Loan Documents
which may arise as a result of any Overadvance Default, during the period from
December 1, 2001 through and including the date hereof. The waivers contained in
the foregoing sentence shall not waive any other requirement or hinder, restrict
or otherwise modify the rights and remedies of the Lenders, the Issuing Banks,
the Syndication Agent and the Administrative Agent following the occurrence of
any other present or future Default or Event of Default (including, without
limitation, any Overadvance Default continuing after the waiver period set forth
above) (whether or not related to any Default or Event of Default described in
this Section 2) under the Credit Agreement or any other Loan Document.
4. NO OTHER AMENDMENTS OR WAIVERS. Except for the amendments, waivers
and releases expressly set forth and referred to above, the text of the Credit
Agreement and the other Loan Documents shall remain unchanged and in full force
and effect, and the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent hereby reserve the right to require strict compliance with
the terms and conditions of the Credit Agreement and the other Loan Documents in
the future.
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5. AMENDMENT FEE. The Borrowers hereby, jointly and severally, agree to
pay, upon the date hereof, to each Lender an amendment fee (the "Amendment Fee")
in the amount of 5 basis points on the aggregate amount of such Lender's
Revolving Commitment and Term Loans outstanding as of the date hereof after
giving effect to this Amendment and to any principal payments made on the Term
Loans on or prior to the date hereof. The Amendment Fee shall be fully earned
when due and non-refundable when paid.
6. REPRESENTATIONS AND WARRANTIES. To induce the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent to enter into this
Amendment, each of the Borrowers hereby warrants, represents and covenants to
the Lenders, the Issuing Banks, the Syndication Agent and the Administrative
Agent that: (a) each representation or warranty of the Borrowers set forth in
the Credit Agreement is hereby restated and reaffirmed as true and correct on
and as of the date of this Amendment, and after giving effect to this Amendment,
as if such representation or warranty were made on and as of the date of, and
after giving effect to, this Amendment (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period); (b) such Borrower has the corporate power and authority to (i) enter
into this Amendment and (ii) do all acts and things as are required or
contemplated hereunder to be done, observed and performed by such Borrower; (c)
this Amendment has been duly authorized, validly executed and delivered by such
Borrower, and constitutes the legal, valid and binding obligation of such
Borrower, enforceable against it in accordance with its terms; (d) the execution
and delivery of this Amendment and performance by such Borrower under the Credit
Agreement, does not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction
over such Borrower which has not already been obtained, nor contravene or
conflict with the charter documents of such Borrower, or the provision of any
statute, judgment, order, indenture, instrument, agreement or undertaking, to
which such Borrower is a party or by which any of its properties are or may
become bound; and (e) as of the date hereof and after giving effect to the
amendments, consents and waivers contained in this Amendment, no Default or
Event of Default under the Credit Agreement has occurred and is continuing. The
Borrowers, the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent hereby ratify and affirm all of the terms and conditions of
the Credit Agreement and the Loan Documents applicable to each of them,
including, without limitation, the Borrowers' joint and several liability for
the Obligations. The parties hereto have not entered into a mutual disregard of
the terms and provisions of the Credit Agreement or the other Loan Documents, or
engaged in any course of dealing in variance with the terms and provisions of
the Credit Agreement or the other Loan Documents, within the meaning of any
applicable law of the State of Georgia or otherwise.
7. REIMBURSEMENT OF COSTS AND EXPENSES. The Borrowers hereby jointly
and severally agree to reimburse the Lenders, the Issuing Banks, the Syndication
Agent and the Administrative Agent on demand for all costs (including, without
limitation, reasonable attorneys' fees) incurred by such parties in negotiating,
documenting and consummating this Amendment, the other documents referred to
herein, and the transactions contemplated hereby and thereby.
8. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT. The
effectiveness of this Amendment is subject to the truth and accuracy in all
respects of the representations and warranties of the Borrowers contained in
Section 5 above and the receipt by the Administrative Agent of one or more duly
executed counterparts of this Amendment signed by the Borrowers, the Parent and
each of the Lenders.
9. RELEASE. Each of the Parent and the Borrowers hereby waives and
releases each of the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent from any and all claims and defenses with respect to the
Credit Agreement, the Notes and any and all documents, instruments,
certificates, notes, bonds, or other agreements executed in connection
therewith, except in the case of willful misconduct or gross negligence on the
part of such Person.
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10. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to "the Credit
Agreement," "thereunder," "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby. This Amendment shall be deemed to be a Loan Document for all
purposes.
11. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
12. GOVERNING LAW. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of Georgia applicable to
contracts made and performed in such state.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year specified at the beginning
hereof.
BORROWERS: BR HOLDING, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President - Finance
CAPITAL SPORTS PROPERTIES, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
HOST COMMUNICATIONS, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
DATASOUTH COMPUTER CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Executive VP - Finance & Admin.
GUARANTOR: BULL RUN CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President - Finance
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ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
SYNDICATION AGENT: FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
ISSUING BANKS: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
BANK ONE, KENTUCKY, NA
By: /s/ XXXX XXXXXX
-----------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
LENDERS: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
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BANK ONE, KENTUCKY, NA
By: /s/ XXXX XXXXXX
-----------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
WACHOVIA BANK, N.A.
By: /s/ XXXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
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