EXHIBIT 10
$5,500,000.00
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF
OCTOBER 9, 1997
BETWEEN
DATASOUTH COMPUTER CORPORATION
AND
WACHOVIA BANK, N.A.
TABLE OF CONTENTS
[Not a part of the Agreement]
ARTICLE I. DEFINITIONS.......................................................................................... 1
SECTION 1.01. Definitions.............................................................................. 1
SECTION 1.02. Accounting Terms and Determinations..................................................... 12
SECTION 1.03. References.............................................................................. 12
ARTICLE II. THE CREDITS....................................................................................... 12
SECTION 2.01. Commitment to Lend...................................................................... 12
SECTION 2.02. Method of Borrowing..................................................................... 13
SECTION 2.03. Note.................................................................................... 13
SECTION 2.04. Maturity of Advances.................................................................... 14
SECTION 2.05. Interest Rates.......................................................................... 14
SECTION 2.06. Commitment Fee.......................................................................... 15
SECTION 2.07. Optional Termination or Reduction of Commitment......................................... 16
SECTION 2.08. Mandatory Termination of Commitment..................................................... 17
SECTION 2.09. Optional Prepayments.................................................................... 17
SECTION 2.10. Mandatory Prepayments................................................................... 17
SECTION 2.11. General Provisions Concerning Payments.................................................. 17
SECTION 2.12. Computation of Interest and Fees........................................................ 17
ARTICLE III. CHANGE IN CIRCUMSTANCES; COMPENSATION............................................................ 18
SECTION 3.01. Basis for Determining Interest Rate Inadequate or Unfair............................... 18
SECTION 3.02. Illegality.............................................................................. 18
SECTION 3.03. Increased Cost and Reduced Return....................................................... 19
SECTION 3.04. Base Rate Loans Substituted for Affected Euro-Dollar Loans.............................. 20
SECTION 3.05. Compensation............................................................................ 20
ARTICLE IV. CONDITIONS TO BORROWINGS........................................................................... 21
SECTION 4.01. Conditions to First Borrowing........................................................... 21
SECTION 4.02. Conditions to All Borrowings............................................................ 22
ARTICLE V. REPRESENTATIONS AND WARRANTIES....................................................................... 22
SECTION 5.01. Corporate Existence and Power........................................................... 22
SECTION 5.02. Corporate and Governmental Authorization; Contravention................................. 22
SECTION 5.03. Binding Effect.......................................................................... 23
SECTION 5.04. Financial Information................................................................... 23
SECTION 5.05. Litigation.............................................................................. 23
SECTION 5.06. Compliance with ERISA................................................................... 23
SECTION 5.07. Taxes................................................................................... 23
SECTION 5.08. Subsidiaries............................................................................ 24
SECTION 5.09. Not an Investment Company............................................................... 24
SECTION 5.10. Ownership of Property; Liens............................................................ 24
SECTION 5.11. No Default.............................................................................. 24
SECTION 5.12.. Full Disclosure........................................................................ 24
SECTION 5.13. Environmental Matters.................................................................. 24
SECTION 5.14. Compliance with Laws. ................................................................. 25
ARTICLE VI. COVENANTS........................................................................................... 25
SECTION 6.01. Information............................................................................. 25
SECTION 6.02. Inspection of Property, Books and Records............................................... 27
SECTION 6.03. Ratio of Consolidated Debt to Consolidated Total Tangible Capital....................... 27
SECTION 6.04. Minimum Consolidated Tangible Net Worth................................................. 27
SECTION 6.05. Fixed Charges Coverage.................................................................. 27
SECTION 6.06. Investments. .......................................................................... 28
SECTION 6.07. Negative Pledge. ...................................................................... 28
SECTION 6.08. Maintenance of Existence. ............................................................. 28
SECTION 6.09. Dissolution. .......................................................................... 28
SECTION 6.10. Consolidations, Mergers and Sales of Assets. .......................................... 28
SECTION 6.11. Use of Proceeds. ...................................................................... 29
SECTION 6.12 Compliance with Laws; Payment of Taxes. ................................................ 29
SECTION 6.13 Insurance. ............................................................................. 29
SECTION 6.14. Change in Fiscal Year. ................................................................ 29
SECTION 6.15. Maintenance of Property. .............................................................. 29
SECTION 6.16. Environmental Notices. ................................................................ 29
SECTION 6.17. Environmental Matters. ................................................................ 29
SECTION 6.18. Environmental Release. ................................................................ 30
ARTICLE VII.. DEFAULTS......................................................................................... 30
SECTION 7.01. Events of Default....................................................................... 30
SECTION 7.02. Remedies on Default..................................................................... 32
SECTION 7.03. Security Interest; Offset............................................................... 32
ARTICLE VIII.. MISCELLANEOUS................................................................................... 33
SECTION 8.01. Notices................................................................................. 33
SECTION 8.02. No Waivers.............................................................................. 33
SECTION 8.03. Expenses; Documentary Taxes............................................................. 33
SECTION 8.04. Amendments and Waivers.................................................................. 34
SECTION 8,05. Successors and Assigns.................................................................. 34
SECTION 8.06. Confidentiality......................................................................... 36
SECTION 8.07. Interest Limitation..................................................................... 36
SECTION 8.08. Governing Law........................................................................... 36
SECTION 8.09. Counterparts............................................................................ 36
SECTION 8.10. Consent to Jurisdiction................................................................. 36
SECTION 8.11. Severability............................................................................ 37
SECTION 8.12. Captions................................................................................ 37
EXHIBIT A Form of Note
EXHIBIT B Form of Assignment and Acceptance
ii
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, made as of the 9th day of
October, 1997, by and between DATASOUTH COMPUTER CORPORATION, a Delaware
corporation (together with its successors, the "Borrower"), and WACHOVIA BANK,
N.A., a national banking association (together with endorsees, successors and
assigns, the "Bank").
BACKGROUND
The Borrower and the Bank entered into a Credit Agreement dated as of
April 3, 1996 (the "1996 Credit Agreement") pursuant to which the Bank agreed to
provide to the Borrower revolving loans of up to $3,000,000.00 from time to time
outstanding as therein provided. The 1996 Credit Agreement was amended by First
Amendment to Credit Agreement between the Borrower and the Bank dated as of
December 3, 1996 (the 1996 Credit Agreement as so amended, the "Existing Credit
Agreement"). The Borrower and the Bank desire to amend and restate the Existing
Credit Agreement in order, among other things, to increase the maximum amount of
revolving loans which may at any time be outstanding to $5,500,000.00, subject
to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the promises
herein contained, and each intending to be legally bound hereby, the parties
agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein (terms defined in the singular to have the
same meanings when used in the plural and vice versa):
"Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upwards,
if necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
"Advance" means any advance by the Bank under the Commitment.
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this Amended and Restated Credit Agreement, together
with all amendments and supplements hereto.
"Applicable Margin" means (x) for any Base Rate Loan, for any day a
number equal to zero percent (0.0%), and (y) for any Euro-Dollar Loan, the
applicable percentage determined in accordance with Section 2.05(c).
"Assignee" has the meaning set forth in Section 8.05(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed
in accordance with Section 8.05(c) in the form attached hereto as Exhibit B.
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"Authority" has the meaning set forth in Section 3.02.
"Base Rate" means for any Base Rate Loan for any day, the rate per
annum equal to the higher as of such day of (i) the Prime Rate, and (ii)
one-half of one percent above the Federal Funds Rate for such day. For purposes
of determining the Base Rate for any day, changes in the Prime Rate shall be
effective on the date of each such change.
"Base Rate Loan" means an Advance made or to be made as a Base Rate
Loan pursuant to the applicable Notice of Borrowing or Article III.
"Borrowing" shall mean a borrowing under the Commitment consisting of
an Advance by the Bank. A Borrowing is a "Euro-Dollar Borrowing" if the Advance
is made as a Euro-Dollar Loan and a "Base Rate Borrowing" if the Advance is made
as a Base Rate Loan.
"Bull Run" means Bull Run Corporation, a Georgia corporation of which
the Borrower is a Wholly Owned Subsidiary.
"Capital Stock" means any nonredeemable capital stock of the Borrower
or any Consolidated Subsidiary of the Borrower (to the extent issued to a Person
other than the Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 3.02.
"Closing Date" means October 9, 1997.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Commitment" shall have the meaning assigned to it in Section 2.01.
"Commitment Fee Payment Date" means the first day of each June,
September, December and March, commencing December 1, 1997; provided that if any
such day is not a Domestic Business Day, the Commitment Fee Payment Date shall
be on the next succeeding Domestic Business Day.
"Commitment Fee Rate" has the meaning set forth in Section 2.06(b) and
is expressed as a percentage.
"Consolidated Debt" means at any date the Debt of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
"Consolidated Debt-to-Capital Ratio" means at any time the ratio of
Consolidated Debt to Consolidated Total Tangible Capital expressed as a
percentage.
"Consolidated Fixed Charges" for any period means Consolidated Interest
Expense for such period.
"Consolidated Interest Expense" for any period means interest, whether
expensed or capitalized, in respect of Debt of the Borrower or any of its
Consolidated Subsidiaries outstanding during such period.
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"Consolidated Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis,
but excluding (i) extraordinary items and (ii) any equity interests of the
Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary of the Borrower.
"Consolidated Operating Profits" means, for any period, the Operating
Profits of the Borrower and its Consolidated Subsidiaries. "Consolidated
Subsidiary" means as to Bull Run or the Borrower, as the context hereof may
require, at any date, any Subsidiary or other entity the accounts of which, in
accordance with GAAP, would be consolidated with those of Bull Run or the
Borrower, as applicable, in its consolidated financial statements as of such
date.
"Consolidated Tangible Net Worth" means, at any time, Stockholders'
Equity, less the sum of the value, as set forth or reflected on the most recent
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries,
prepared in accordance with GAAP, of
(A) Any surplus resulting from any write-up of assets subsequent to
September 30, 1995;
(B) All assets which would be treated as intangibles under GAAP,
including without limitation goodwill (whether representing the excess
of cost over book value of assets acquired, or otherwise), trademarks,
tradenames, copyrights, patents and technologies, and unamortized debt
discount and expense;
(C) To the extent not included in (B) of this definition, any amount at
which shares of capital stock of the Borrower appear as an asset on the
balance sheet of the Borrower and its Consolidated Subsidiaries;
(D) Loans or advances to stockholders, directors, officers or
employees;
(E) To the extent not included in (B) of this definition, deferred
expenses;
(F) The difference obtained by subtracting 1) the sum of the amount of
deferred taxes attributable to the Borrower's Investment in shares of
Xxxx Communications Systems, Inc., plus the market value (market value
per share to be determined based on the closing price of such shares on
the New York Stock Exchange on the measurement date) of the Borrower's
Investment in shares of Xxxx Communications Systems, Inc. which are not
subject to any Lien or otherwise encumbered to secure any Debt or other
obligation of Borrower or any other Person, plus the market value
(market value per share to be determined based on the closing price of
such shares on the New York Stock Exchange on the measurement date) of
the Borrower's Investment in shares of Xxxx Communications Systems,
Inc. which are pledged to secure Debt owed to the Bank, from 2) the sum
of the book value of the Borrower's Investment in shares of Xxxx
Communications Systems, Inc. and any other Investment by Borrower or
any Subsidiary of the Borrower other than Investments permitted under
Section 6.06(a); and
(G) any loans or advances made by Borrower or any Subsidiary of the
Borrower to any Person.
"Consolidated Total Assets" means, at any time, the total assets of the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis,
as set forth or reflected on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Consolidated Total Tangible Capital" means, at any time, the sum of
(i) Consolidated Tangible Net Worth, and (ii) Consolidated Debt, provided, that
for purposes of this definition only, in
3
determining Consolidated Debt, clauses (vii), (viii) and (ix) of the definition
of Debt contained in this Agreement shall be disregarded.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under capital leases,
(v) all obligations of such Person to reimburse any bank or other Person in
respect of amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a corporation),
(vii) all obligations of such Person to reimburse any bank or other Person in
respect of amounts paid under a letter of credit or similar instrument, (viii)
all Debt of others secured by a Lien on any asset of such Person, whether or not
such Debt is assumed by such Person, and (ix) all Debt of others Guaranteed by
such Person.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina are authorized
by law to close.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower required by any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority
or by any other person or entity, of possible or alleged noncompliance with any
Environmental Requirement, including without limitation any complaints,
citations, demands or requests from any Environmental Authority or from any
other person or entity for correction of any violation of any Environmental
Requirement or any investigations concerning any violation of any Environmental
Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
4
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
of the Borrower or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law, including any rules or
regulations promulgated thereunder. Any reference to any provision of ERISA
shall also be deemed to be a reference to any successor provision or provisions
thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means an Advance made or to be made (pursuant to the
applicable Notice of Borrowing) as a Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
the Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
"Event of Default" shall have the meaning assigned to such term in
Section 7.01.
"Federal Funds Rate" means, for any day, the rate per annum (rounded upward, if
necessary, to the next higher 1/100th of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if the day for which such rate is to be
determined is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business Day, and (ii) if
such rate is not so published for any day, the Federal Funds Rate for such day
shall be the average rate charged to Wachovia on such day on such transactions.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Charges Coverage Ratio" has the meaning set forth in Section
6.05(b).
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.02, are to be
used in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guarantee shall
not include endorsements for collection or deposit in the
5
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, or in any applicable state or local law or regulation, (b) hazardous
substances, as defined in CERCLA, or in any applicable state or local law or
regulation, (c) gasoline, or any other petroleum product or by-product, (d)
toxic substances, as defined in the Toxic Substances Control Act of 1976, or in
any applicable state or local law or regulation or (e) insecticides, fungicides,
or rodenticides, as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act of 1975, or in any applicable state or local law or regulation,
as each such Act, statute or regulation may be amended from time to time.
"Income Available for Fixed Charges" for any period means the sum of
(i) Consolidated Net Income, (ii) taxes on income and (iii) Consolidated Fixed
Charges, less (or plus) the Borrower's pretax gain (or loss) attributable to the
issuance of common shares by Xxxx Communications Systems, Inc., all determined
with respect to the Borrower and its Consolidated Subsidiaries on a consolidated
basis for such period and in accordance with GAAP.
"Interest Period" means: with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the Borrower may elect in the applicable Notice of
Borrowing; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall, subject
to clause (c) below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
(c) any Interest Period which begins before the Termination Date and
would otherwise end after the Termination Date shall end on the Termination
Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lending Office" means the Bank's office located at its address set
forth on the signature pages hereof (or identified on the signature pages hereof
as its Lending Office) or such other office as the Bank may hereafter designate
as its Lending Office by notice to the Borrower.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary of the
Borrower shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"Loan Access Agreement" means the Financial Management Account
Investment/Commercial Loan Access Agreement dated October 9, 1997 between the
Borrower and the Bank, together with all amendments and supplements thereto.
"Loan Documents" means this Agreement, the Note, the Security Agreement
and any other document evidencing or securing the Advances.
6
"London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan the rate per annum
determined on the basis of the rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rate appears on the display designated
as Page "3750" of the Telerate Service (or such other page as may replace page
3750 of that service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying London interbank
offered rates for U.S. dollar deposits), determined as of 1:00 p.m. (Charlotte,
North Carolina time), 2 Euro-Dollar Business Days prior to the first day of such
Interest Period.
"Margin Stock" means "margin stock" as defined in Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System, as in effect from
time to time, together with all official rulings and interpretations issued
thereunder.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) or ERISA.
"Net Income" means, as applied to any Person for any period, the
aggregate amount of net income of such Person, after taxes, for such period, as
determined in accordance with GAAP.
"Note" shall mean a promissory note of the Borrower payable to the
order of the Bank, in substantially the form of Exhibit A hereto, evidencing the
maximum principal indebtedness of the Borrower to the Bank under the Commitment,
either as originally executed or as it may be from time to time supplemented,
modified, amended, renewed or extended.
"Notice of Borrowing" shall have the meaning assigned to it in Section
2.02.
"Obligations" means all indebtedness, obligations and liabilities to
the Bank existing on the date of this Agreement or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise, of the Borrower under this Agreement or any other Loan
Document.
"Operating Profits" means, as applied to any Person for any period, the
operating income of such Person for such period, as determined in accordance
with GAAP.
"Participant" has the meaning set forth in Section 8.05(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means:
(a) Liens existing on the date of this Agreement;
(b) any Lien existing on any asset of any Person at the time such
Person becomes a Consolidated Subsidiary of the Borrower and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring or constructing
such asset, provided that such Lien attaches to such asset concurrently with or
within 18 months after the acquisition or completion of construction thereof;
(d) any Lien on any asset of any Person existing at the time such
Person is merged or consolidated with or into the Borrower or a Consolidated
Subsidiary of the Borrower and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a
7
Consolidated Subsidiary of the Borrower and not created in contemplation of such
acquisition;
(f) Liens securing Debt owing by any Subsidiary of the Borrower to the
Borrower;
(g) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that (i) such Debt is not secured by any
additional assets, and (ii) the amount of such Debt secured by any such Lien is
not increased;
(h) Liens incidental to the conduct of its business or the ownership of
its assets which (i) do not secure Debt and (ii) do not in the aggregate
materially detract from the value of its assets or materially impair the use
thereof in the operation of its business;
(i) any Lien on Margin Stock; and
(j) Liens in favor of the Bank.
"Person" means any individual, joint venture, corporation, company,
voluntary association, partnership, trust, joint stock company, limited
liability company, unincorporated organization, association, government, or any
agency, instrumentality, or political subdivision thereof, or any other form of
entity or organization.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate. A change in the Prime Rate
shall be effective on the date of such change.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Subsidiary of the Borrower, wherever located.
"Rate Determination Date" has the meaning given such term in Section 2.05(c).
"Redeemable Preferred Stock" of any Person means any preferred stock
issued by such Person which is at any time prior to the Termination Date either
(i) mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Reportable Event" has the meaning given such term in Section 4043(b)
of Title V of ERISA.
"Reported Net Income" means, for any period, the Net Income of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis.
"Security Agreement" means the General Security Agreement of even date
herewith executed by the Borrower for the benefit of the Bank, together with all
amendments and supplements thereto.
"Stockholders' Equity" means, at any time, the shareholders' equity of
the Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' Equity would generally include, but not be limited to (i) the par
or stated value of all
8
outstanding Capital Stock, (ii) capital surplus, (iii) retained earnings, and
(iv) various deductions such as (A) purchases of treasury stock, (B) receivables
due from an employee stock ownership plan, (C) employee stock ownership plan
debt guarantees, and (D) translation adjustments for foreign currency
transactions.
"Subsidiary" of a Person means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person. Unless otherwise
indicated, all references herein to Subsidiaries refer to Subsidiaries of Bull
Run or the Borrower as the context may require.
"Termination Date" shall mean October 9, 2000 or such later date as to
which the Borrower and the Bank may agree pursuant to Section 2.04(b).
"Third Parties" means all lessees, sublessees, licenses and other users
of the Properties, excluding those users of the Properties in the ordinary
course of the Borrower's business and on a temporary basis.
"Transferee" has the meaning set forth in Section 8.05(d).
"Unused Commitment" means at any date an amount equal to the Commitment
less the aggregate outstanding principal amount of the Advances.
"Wachovia" means Wachovia Bank, N.A., a national banking association,
together with its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by Bull Run or
the Borrower, as the context of this Agreement may require.
SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by Bull Run's independent public accountants) with the most recent
audited consolidating and consolidated financial statements of Bull Run and its
Consolidated Subsidiaries delivered to the Bank.
SECTION 1.03. References. Except as otherwise expressly provided in
this Agreement: the words "herein," "hereof," "hereunder" and other words of
similar import refer to this Agreement as a whole, including the Schedule hereto
which is a part hereof, and not to any particular Section, Article, paragraph or
other subdivision; the singular includes the plural and the plural includes the
singular; "or" is not exclusive; the words "include," "includes" and "including"
are not limiting; a reference to any agreement or other contract includes past
and future permitted supplements, amendments, modifications and restatements
thereto or thereof; a reference to an Article, Section, paragraph or other
subdivision is a reference to an Article, Section, paragraph or other
subdivision of this Agreement; a reference to any law includes any amendment or
modification to such law and any rules and regulations promulgated thereunder; a
reference to a Person includes its permitted successors and assigns; any right
may be exercised at any time and from time to time; and, except as otherwise
expressly provided therein, all obligations under any agreement or other
contract are continuing obligations throughout the term of such agreement or
contract.
9
ARTICLE II. THE CREDITS
SECTION 2.01. Commitment to Lend. The Bank agrees, on the terms and
conditions set forth herein, to make Advances to the Borrower from time to time
before the Termination Date; provided that, immediately after each such Advance
is made, the aggregate principal amount of outstanding Advances shall not exceed
$5,500,000.00 (as such figure may be reduced from time to time as provided in
this Agreement, the "Commitment"). Each Euro-Dollar Borrowing under this Section
shall be in an aggregate principal amount of $100,000.00 or any larger multiple
of $100,000.00. Within the foregoing limits, the Borrower may borrow under this
Section, repay or, to the extent permitted by Section 2.09, prepay Advances and
reborrow under this Section at any time before the Termination Date. The Bank
shall have no obligation to advance funds in excess of the amount of the
Commitment.
SECTION 2.02 Method of Borrowing. (a) The Borrower shall give the Bank
notice (a "Notice of Borrowing") at least three Euro-Dollar Business Days before
each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Euro-Dollar Business
Day,
(ii) the aggregate amount of such Borrowing, and
(iii) the duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period;
(b) A Notice of Borrowing, once given, shall be irrevocable. The Bank
shall be entitled to rely on any telephonic Notice of Borrowing which it
believes in good faith to have been given by a duly authorized officer or
employee of the Borrower and any Advances made by the Bank based on such
telephonic notice shall, when credited by the Bank to the regular deposit
account maintained by the Borrower with the Bank, be an Advance for all purposes
hereunder. Not later than 2:00 p.m., Charlotte, North Carolina time, on the date
specified for the Borrowing in the Notice of Borrowing, the Bank shall credit,
in immediately available funds, the amount of such Borrowing to the regular
deposit account maintained by the Borrower with the Bank.
(c) All advances made as Base Rate Loans shall be funded by the Bank in
accordance with the Loan Access Agreement.
(d) If the Bank makes a new Advance hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Advance, the Bank shall
apply the proceeds of its new Advance to make such repayment and only an amount
equal to the difference (if any) between the amount being borrowed and the
amount being repaid shall be made available by the Bank to the Borrower as
provided in subsection (b) or (c) of this Section, or remitted by the Borrower
to the Bank as provided in Section 2.11, as the case may be.
(e) Notwithstanding anything to the contrary contained in this
Agreement, no Euro-Dollar Borrowing may be made if there shall have occurred a
Default or an Event of Default, which Default or Event of Default shall not have
been cured or waived.
(f) If the Borrower is otherwise entitled under this Agreement to repay
any Advance maturing at the end of an Interest Period applicable thereto with
the proceeds of a new Borrowing, and the Borrower fails to repay such Advance
using its own moneys and fails to give a Notice of Borrowing in connection with
such new Borrowing, a new Borrowing shall be deemed to be made on the date such
Advance matures in an amount equal to the principal amount of the Advance so
maturing, and the Advance comprising such new Borrowing shall be a Base Rate
Loan.
SECTION 2.03. Note. The Advances shall be evidenced by a single Note
payable to the order of the Bank for the account of its Lending Office in an
amount equal to the original principal
10
amount of the Bank's Commitment. The Bank shall record, and prior to any
transfer of its Note shall endorse on the schedule forming a part thereof
appropriate notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Advance made by it, the date and amount of
each payment of principal made by the Borrower with respect thereto and whether
such Advance is a Base Rate Loan or a Euro-Dollar Loan, and such recordations
and endorsements shall constitute rebuttable presumptive evidence of the
principal amount owing and unpaid on the Note; provided that the failure of the
Bank to make any such recordation or endorsement shall not affect the obligation
of the Borrower hereunder or under the Note. The Bank is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.04. Maturity of Advances. (a) Each Advance included in any
Euro-Dollar Borrowing shall mature, and the principal amount thereof shall be
due and payable, on the last day of the Interest Period applicable to such
Euro-Dollar Borrowing. Each Advance included in any Base Rate Borrowing shall
finally mature on the Termination Date, and the principal amount thereof shall
be due and payable from time to time as provided in the Loan Access Agreement.
(b) Upon written request of Borrower, which may be made from time to
time and which shall be made in writing and delivered to the Bank on a Domestic
Business Day no fewer than 60 days prior to the third and fourth anniversary of
the Closing Date, the Bank in its sole and absolute discretion may (but shall
not be obligated to) extend the then effective Termination Date for a period of
1 year; provided that in no event shall the Termination Date be extended later
than October 9, 2002. In the event that the Bank chooses to extend the
Termination Date for such a 1 year period, notice shall be given by the Bank to
the Borrower not more than 45, nor fewer than 30, days prior to the next
succeeding anniversary of the Closing Date.
SECTION 2.05. Interest Rates. (a) Each Advance made as a Base Rate Loan
shall bear interest on the outstanding principal amount thereof, for each day
from the date such Advance is made until it becomes due, at a rate per annum
equal to the Base Rate for such day plus the Applicable Margin. Such interest
shall be payable as provided in the Loan Access Agreement, or if the Loan Access
Agreement shall have terminated as provided therein, monthly on the first
Domestic Business Day of each month. Any overdue principal of and, to the extent
permitted by applicable law, overdue interest on any Advance so made as a Base
Rate Loan shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the sum of 2% plus the rate otherwise applicable to such
Advance, so made as a Base Rate Loan, for such day.
(b) Each Advance made as a Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period;
provided that if any Advance made as a Euro-Dollar Loan shall, as a result of
clause (1)(c) of the definition of Interest Period, have an Interest Period of
less than one month, such Advance so made as a Euro-Dollar Loan shall bear
interest during such Interest Period at the rate applicable to Advances made as
Base Rate Loans during such period. Such interest shall be payable for each
Interest Period on the last day thereof and, if such Interest Period is longer
than three months, at intervals of three months after the first day thereof. Any
overdue principal of and, to the extent permitted by law, overdue interest on
any Euro-Dollar Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the higher of (x) the sum
of the Applicable Margin plus the Adjusted London Interbank Offered Rate
applicable to such Euro-Dollar Loan or (y) the rate which would be applicable
for such day to such Advance if it had been made as Base Rate Loan.
(c) The Applicable Margin for any Euro-Dollar Loan for any day shall be
the rate per annum set forth below as determined to be applicable based on the
applicable Consolidated Debt-to-Capital Ratio:
(i) if the Consolidated Debt-to-Capital Ratio is greater than or
equal to sixty percent (60%), the Applicable Margin for
Euro-Dollar Loans shall be two and
11
three-quarters percent (2.75%);
(ii) if the Consolidated Debt-to-Capital Ratio is greater than or
equal to fifty-five percent (55%) but less than sixty percent
(60%), the Applicable Margin for Euro-Dollar Loans shall be two
and one-half percent (2.50%);
(iii) if the Consolidated Debt-to-Capital Ratio is greater than or
equal to fifty percent (50%) but less than fifty-five percent
(55%), the Applicable Margin for Euro-Dollar Loans shall be two
and one-quarter percent (2.25%); and
(iv) if the Consolidated Debt-to-Capital Ratio is less than fifty
percent (50%), the Applicable Margin for Euro-Dollar Loans shall
be two percent (2.00%).
The Applicable Margin for Euro-Dollar Loans shall be determined and
adjusted quarterly on the date (each a "Rate Determination Date") five (5)
Domestic Business Days after the date by which the annual and quarterly
compliance certificates and related financial statements and information are
required in accordance with the provisions of Sections 6.01(a), (b) and (c), as
appropriate; provided that (A) the initial Applicable Margin for Euro-Dollar
Loans shall be two and one-quarter percent (2.25%) and shall remain in effect
until the first Rate Determination Date to occur after the Closing Date, and (B)
in the event an annual or quarterly compliance certificate and related financial
statements and information are not delivered timely to the Bank by the date
required by Sections 6.01(a), (b) and (c), as appropriate, the Applicable Margin
shall be two and three quarters percent (2.75%) until such time as such an
appropriate compliance certificate and related financial statements and
information are delivered, whereupon the Applicable Margin shall be adjusted
based on the information contained in such compliance certificate and related
financial statements and information. Each Applicable Margin shall be effective
from a Rate Determination Date until the next such Rate Determination Date, and
shall be effective as to existing Advances as well as new Advances made
thereafter.
SECTION 2.06. Commitment Fee. (a) From and after the date hereof up to
and including the Termination Date, the Borrower shall pay to the Bank a
commitment fee at the Commitment Fee Rate, as determined in accordance with
Section 2.06(b) (calculated from the date hereof on the basis of a year of 360
days and payable for the actual number of days elapsed) on the average daily
balance of the Unused Commitment (the "Commitment Fee"). The Commitment Fee
shall be payable by the Borrower quarterly in arrears on each Commitment Fee
Payment Date and on the Termination Date, provided that should the Commitment be
terminated at any time prior to the Termination Date (whether by termination of
the Commitment as provided in Section 2.07 or Section 2.08, refinancing of the
Advances or otherwise), the entire accrued and unpaid Commitment Fee shall be
paid on the date of such termination.
(b) The Commitment Fee Rate for any day shall be the percentage rate
per annum set forth the below as determined to be applicable based on the
applicable Consolidated Debt-to-Capital Ratio:
(i) if the Consolidated Debt-to-Capital Ratio is greater than or
equal to sixty percent (60%), the Commitment Fee Rate shall be
one-half of one percent (0.500%);
(ii) if the Consolidated Debt-to-Capital Ratio is greater than or
equal to fifty-five percent (55%) but less than sixty percent
(60%), the Commitment Fee Rate shall be four-tenths of one
percent (0.400%);
(iii) if the Consolidated Debt-to-Capital Ratio is greater than or
equal to fifty percent (50%) but less than fifty-five percent
(55%), the Commitment Fee Rate shall be three-tenths of one
percent (0.300%); and
(iv) if the Consolidated Debt-to-Capital Ratio is less than fifty
percent (50%), the
12
Commitment Fee Rate shall be two-tenths of one percent (0.200%).
The Commitment Fee Rate shall be determined and adjusted quarterly on
each Rate Determination Date; provided that (A) the initial Commitment Fee Rate
shall be three tenths of one percent (0.300%) and shall remain in effect until
the first Rate Determination Date to occur after the Closing Date, and (B) in
the event an annual or quarterly compliance certificate and related financial
statements and information are not delivered timely to the Bank by the date
required by Sections 6.01(a), (b) and (c), as appropriate, the Commitment Fee
Rate shall be one-half of one percent (0.500%) until such time as such an
appropriate compliance certificate and related financial statements and
information are delivered, whereupon the Commitment Fee Rate shall be adjusted
based on the information contained in such compliance certificate and related
financial statements and information. Each Commitment Fee Rate shall be
effective from a Rate Determination Date until the next such Rate Determination
Date.
SECTION 2.07. Optional Termination or Reduction of Commitment. The
Borrower may, upon at least three Domestic Business Days' notice to the Bank,
terminate the Commitment at any time, or reduce the Commitment from time to time
by an aggregate minimum amount of at least $500,000.00 or an integral multiple
of $100,000.00 in excess thereof. If the Commitment is so reduced, such
reduction shall be accounted for in determining the fees due under Section 2.06.
If the Commitment is so terminated in its entirety, all accrued fees (as
provided under Section 2.06) shall be payable on the effective date of such
termination. A notice of reduction or termination of the Commitment hereunder,
once given, shall not thereafter be revocable by the Borrower.
SECTION 2.08. Mandatory Termination of Commitment. The Commitment shall
terminate and the unpaid principal balance and all accrued and unpaid interest
on the Note will be due and payable upon the first of the following dates or
events to occur: (i) acceleration of the maturity of the Note in accordance with
the remedies contained in Section 7.02; (ii) the Borrower's termination of the
Commitment pursuant to Section 2.07; or (iii) upon the expiration of the
Commitment on the Termination Date. From and after the date of such termination,
no Advances shall be made.
SECTION 2.09. Optional Prepayments. (a) The Borrower may, upon at least
one Domestic Business Days' notice to the Bank, prepay any Base Rate Borrowing
in whole at any time, or from time to time in part, by paying the principal
amount to be prepaid together with accrued interest thereon to the date of
prepayment.
(b) Except as provided in Section 3.05, the Borrower may not prepay all
or any portion of the principal amount of any Euro-Dollar Loan prior to the
maturity thereof.
(c) A notice of prepayment pursuant to this Section, once given, shall
not thereafter be revocable by the Borrower.
SECTION 2.10. Mandatory Prepayments. On each date on which the
Commitment is reduced pursuant to Section 2.07, the Borrower shall repay or
prepay such principal amount of the outstanding Advances, if any (together with
interest accrued thereon), as may be necessary so that after such payment the
aggregate unpaid principal amount of the outstanding Advances does not exceed
the aggregate amount of the Commitment as then reduced.
SECTION 2.11. General Provisions Concerning Payments. (a) All payments
of principal of, or interest on, the Note, and of the Commitment Fee, shall be
made in Federal or other funds immediately available to the Bank at its office
in Charlotte, North Carolina not later than 11:00 a.m., Charlotte, North
Carolina time. Funds received after 11:00 a.m. shall be deemed to have been paid
on the next following Domestic Business Day.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or of the Commitment Fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day which is not a
13
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
SECTION 2.12. Computation of Interest and Fees. Interest on Base Rate
Loans and Euro-Dollar Loans shall be computed on the basis of a year of 360 days
and paid for the actual number of days elapsed, in the case of Base Rate Loans
as provided in the Loan Access Agreement and in the case of Euro-Dollar Loans,
as to each Interest Period from and including the first day thereof to but
excluding the last day thereof. Commitment fees hereunder shall be computed on
the basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).
ARTICLE III. CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 3.01. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period:
(a) the Bank determines that deposits in Dollars (in the applicable
amounts) are not being offered in the relevant market for such Interest Period,
or
(b) the Bank determines that the Interbank Offered Rate as determined
by the Bank will not adequately and fairly reflect the cost to the Bank of
funding Euro-Dollar Loans for such Interest Period,
the Bank shall forthwith give notice thereof to the Borrower, whereupon until
the Bank notifies the Borrower that the circumstances giving rise to such
suspension no longer exist, the obligations of the Bank to make or maintain
Euro-Dollar Loans shall be suspended. Unless the Borrower notifies the Bank at
least two Domestic Business Days before the date of any Borrowing of or the
commencement of any Interest Period for Euro-Dollar Loans for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 3.02. Illegality. If, after the date hereof, the adoption of
any applicable law, rule or regulation, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof (any such authority, bank or agency being referred to as
an "Authority" and any such event being referred to as a "Change of Law"), or
compliance by the Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority shall make it unlawful
or impossible for the Bank (or its Lending Office) to make, maintain or fund its
Euro-Dollar Loans and the Bank shall so notify the Borrower, whereupon until the
Bank notifies the Borrower that the circumstances giving rise to such suspension
no longer exist, the obligation of the Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice pursuant to this paragraph, the Bank shall
designate a different Lending Office if able to do so and if such designation
will avoid the need for giving such notice and will not, in the judgment of the
Bank, be otherwise disadvantageous to the Bank. If the Bank shall determine that
it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Loans to maturity and shall so specify in such notice, the Borrower
shall immediately prepay in full the then outstanding principal amount of each
Euro-Dollar Loan, together with accrued interest thereon. Concurrently with
prepaying each such Advance, the Borrower shall borrow an Advance as a Base Rate
Loan in an equal principal amount from the Bank and the Bank shall make such an
Advance.
SECTION 3.03. Increased Cost and Reduced Return. (a) If after the date
hereof, a Change of Law or compliance by the Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority:
14
(i) shall subject the Bank (or its Lending Office) to any tax, duty or
other charge with respect to its Euro-Dollar Loans, the Note or its obligation
to make or maintain Euro-Dollar Loans, or shall change the basis of taxation of
payments to the Bank (or its Lending Office) of the principal of or interest on
its Euro-Dollar Loans or any other amounts due under this Agreement in respect
of its Euro-Dollar Loans or its obligation to make or maintain Euro-Dollar Loans
(except for changes in the rate of tax on the overall net income of the Bank or
its Lending Office imposed by the jurisdiction in which the Bank's principal
executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System, but
excluding with respect to any Euro-Dollar Loan any such requirement included in
an applicable Euro-Dollar Reserve Percentage) against assets of, deposits with
or for the account of, or credit extended by, the Bank (or its Lending Office);
or
(iii) shall impose on the Bank (or its Lending Office) or the London
interbank market any other condition affecting its Euro-Dollar Loans, its Note
or its obligation to make or maintain Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to the Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by the Bank (or its Lending Office)
under this Agreement or under the Note with respect thereto, by an amount deemed
by the Bank to be material, then, within 15 days after demand by the Bank, the
Borrower shall pay to the Bank such additional amount or amounts as will
compensate the Bank for such increased cost or reduction.
(b) If the Bank shall have determined that after the date hereof the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof, or compliance by the Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Authority, has or would have the effect of reducing the rate of return on
the Bank's capital as a consequence of its obligations under this Agreement with
respect to any Advance to a level below that which the Bank could have achieved
but for such adoption, change or compliance (taking into consideration the
Bank's policies with respect to capital adequacy) by an amount deemed by the
Bank to be material, then from time to time, within 15 days after demand by the
Bank, the Borrower shall pay to the Bank such additional amount or amounts as
will compensate the Bank for such reduction.
(c) The Bank will promptly notify the Borrower of any event of which it
has knowledge, occurring after the date hereof, which will entitle the Bank to
compensation pursuant to this Section and will designate a different Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of the Bank, be otherwise
disadvantageous to the Bank. A certificate of the Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, the Bank may use any reasonable averaging and
attribution methods.
(d) The provisions of this Section shall be applicable with respect to
any Participant in, or Assignee or other Transferee of, the obligations of the
Borrower hereunder to the Bank, and any calculations required by such provisions
shall be made based upon the circumstances of such Participant, Assignee or
other Transferee.
SECTION 3.04. Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of the Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 3.01 or Section 3.02, or (ii) the Bank
has demanded compensation under Section 3.03, and if in either case the
Borrower, by at least one Domestic Business Day's prior notice to the Bank shall
have elected that the provisions of this Section shall apply, then, unless and
until the Bank notifies the Borrower that the circumstances giving rise to such
suspension or demand for compensation no
15
longer apply:
(a) all Advances which would otherwise be made by the Bank as
Euro-Dollar Loans shall be made instead as Base Rate Loans, and
(b) after each of its Euro-Dollar Loans has been repaid, all payments
of principal which would otherwise be applied to repay such Euro-Dollar Loans
shall be applied to repay its Base Rate Loans instead.
SECTION 3.05. Compensation. Upon the request of the Bank, delivered to
the Borrower, the Borrower shall pay to the Bank such amount or amounts as shall
compensate the Bank for any loss, cost or expense actually incurred by the Bank
as a result of:
(a) any optional or mandatory payment or prepayment (pursuant to
Section 3.02 or otherwise) of a Euro-Dollar Loan on a date other than the last
day of an Interest Period for such Euro-Dollar Loan; or
(b) any failure by the Borrower to prepay a Euro-Dollar Loan on the
date for such prepayment specified in the relevant notice of prepayment of or
notice of reduction of the Commitment hereunder, as the case may be; or
(c) any failure by the Borrower to borrow an Advance as a Euro-Dollar
Loan on the date for the Borrowing specified in the applicable Notice of
Borrowing delivered pursuant to Section 2.02;
such compensation to include, without limitation, but only to the extent such
loss, cost or expense is actually incurred by the Bank, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on the
amount so paid or prepaid or not prepaid or borrowed, for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last day
of the then current Interest Period for such Euro-Dollar Loan (or, in the case
of a failure to prepay or borrow, the Interest Period for such Euro-Dollar Loan
which would have commenced on the date of such failure to prepay or borrow) at
the applicable rate of interest for such Euro-Dollar Loan provided for herein
over (y) the amount of interest (as reasonably determined by the Bank) the Bank
would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
ARTICLE IV. CONDITIONS TO BORROWINGS
SECTION 4.01. Conditions to First Borrowing. The obligation of the Bank
to make an Advance on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in Section 4.02 and the following
additional conditions:
(a) receipt by the Bank from the Borrower of a duly executed
counterpart of this Agreement signed by the Borrower;
(b) receipt by the Bank of the duly executed Note complying with the
provisions of Section 2.03;
(c) receipt by the Bank of the duly executed Security Agreement and
related financial statements in form and substance satisfactory to the Bank;
(d) receipt by the Bank of a certificate, dated the date of the first
Borrowing, signed by a principal financial officer of the Borrower to the effect
that (i) no Default hereunder has occurred and is continuing on the date of the
first Borrowing and (ii) the representations and warranties of the Borrower
contained in Article V are true on and as of the date of the first Borrowing
hereunder; and
(e) receipt by the Bank of all documents which the Bank may reasonably
request relating to
16
the existence of the Borrower, the corporate authority for and the validity of
this Agreement and the Note, and any other matters relevant hereto, all in form
and substance satisfactory to the Bank, including without limitation a
certificate of incumbency of the Borrower, signed by the Secretary or an
Assistant Secretary of the Borrower, certifying as to the names, true signatures
and incumbency of the officer or officers of the Borrower authorized to execute
and deliver the Loan Documents, and certified copies of the following items: (i)
the Borrower's Certificate of Incorporation, (ii) the Borrower's Bylaws, (iii) a
certificate of the Secretary of State (or other appropriate office) of the
jurisdiction of the Borrower's incorporation as to the good standing of the
Borrower as a corporation of such jurisdiction, and (iv) the action taken by the
Board of Directors of the Borrower authorizing the Borrower's execution,
delivery and performance of this Agreement, the Note and the other Loan
Documents to which the Borrower is a party.
SECTION 4.02. Conditions to All Borrowings. The obligation of the Bank
to make an Advance on the occasion of each Borrowing is subject to the
satisfaction of the following conditions:
(a) receipt by the Bank of Notice of Borrowing if required by Section
2.02;
(b) the fact that, immediately after such Borrowing, no Default shall
have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article V shall be true on and as of the date of such Borrowing;
and
(d) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Advances will not exceed the amount of the
Commitment.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in clauses
(b), (c) and (d) of this Section; provided that such Borrowing shall not be
deemed to be such a representation and warranty to the effect set forth in
Section 5.04(b) as to any material adverse change which has theretofore been
disclosed in writing by the Borrower to the Bank if the aggregate outstanding
principal amount of the Advances immediately after such Borrowing will not
exceed the aggregate outstanding principal amount of Advances immediately before
such Borrowing.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 5.01. Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such qualification
is necessary, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
SECTION 5.02. Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by the Borrower of this Agreement, the
Note and the other Loan Documents (i) are within the Borrower's corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or in respect of, or filing with, any governmental body,
agency or official, (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of the Borrower or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of its Subsidiaries,
and (v) do not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries.
17
SECTION 5.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, and
the Note and the other Loan Documents, when executed and delivered in accordance
with this Agreement, will constitute valid and binding obligations of the
Borrower enforceable in accordance with their respective terms, provided that
the enforceability hereof and thereof is subject in each case to general
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
SECTION 5.04. Financial Information. (a) The consolidating and
consolidated balance sheet of Bull Run and its Consolidated Subsidiaries as of
December 31, 1996 and the related consolidating and consolidated statements of
income, shareholders' equity and cash flows for the Fiscal Year then ended,
reported on (in the case of the consolidated balance sheet and consolidated
statements of income, shareholders' equity and cash flows only) by Ernst & Young
LLP, copies of which have been delivered to the Bank, and the unaudited
consolidating and consolidated financial statements of Bull Run and its
Consolidated Subsidiaries for the interim period ended June 30, 1997, copies of
which have been delivered to the Bank, fairly present, in conformity with GAAP,
the consolidating and consolidated financial position of Bull Run and its
Consolidated Subsidiaries as of such dates and their consolidating results of
operations and cash flows for such periods stated.
(b) Since June 30, 1997 there has been no material adverse change in
the business, financial position, results of operations or prospects of Bull Run
and its Consolidated Subsidiaries.
SECTION 5.05. Litigation. Except as disclosed on Schedule 5.05 hereto,
there is no action, suit or proceeding pending, or to the knowledge of the
Borrower threatened, against or affecting Bull Run, the Borrower or any of their
respective Subsidiaries before any court or arbitrator or any governmental body,
agency or official which could materially adversely affect the business,
consolidated financial position or consolidated results of operations of Bull
Run, the Borrower and their respective Consolidated Subsidiaries, or which in
any manner draws into question the validity of, or could impair the ability of
the Borrower to perform its obligations under, this Agreement, the Note or any
of the other Loan Documents.
SECTION 5.06. Compliance with ERISA. (a) The Borrower and each member
of the Controlled Group have fulfilled their obligations under the minimum
funding standards of ERISA and the Code with respect to each Plan and are in
compliance in all material respects with the presently applicable provisions of
ERISA and the Code, and have not incurred any liability to the PBGC or a Plan
under Title IV of ERISA.
(b) Neither the Borrower nor any member of the Controlled Group is or
ever has been obligated to contribute to any Multiemployer Plan.
SECTION 5.07. Taxes. There have been filed on behalf of Bull Run, the
Borrower and their respective Subsidiaries all Federal, state and local income,
excise, property and other tax returns which are required to be filed by them
and all taxes due pursuant to such returns or pursuant to any assessment
received by or on behalf of Bull Run, the Borrower or any Subsidiary of Bull Run
or the Borrower have been paid. The charges, accruals and reserves on the books
of Bull Run, the Borrower and their respective Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate.
United States income tax returns of Bull Run, the Borrower and their respective
Subsidiaries have been examined and closed through the Fiscal Year ended
December 31, 1996.
SECTION 5.08. Subsidiaries. Each of Bull Run's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted except where the failure to have such licenses,
authorizations, consents and approvals could not reasonably be expected to have
a material adverse effect on such Subsidiaries, taken as a whole.
18
SECTION 5.09. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 5.10. Ownership of Property; Liens. Each of the Borrower and
its Consolidated Subsidiaries has title to its properties sufficient for the
conduct of its business, and none of such property is subject to any Lien except
for Permitted Encumbrances.
SECTION 5.11. No Default. Neither the Borrower nor any of its
Consolidated Subsidiaries is in default under or with respect to any agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound which will be materially adverse to the business, operations,
property or financial or other condition of the Borrower and its Consolidated
Subsidiaries, or which will materially adversely affect the ability of the
Borrower to perform its obligations under the Loan Documents. No Default has
occurred and is continuing.
SECTION 5.12. Full Disclosure. All information heretofore furnished by
the Borrower to the Bank for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such information hereafter
furnished by the Borrower to the Bank will be, true, accurate and complete in
every material respect or based on reasonable estimates on the date as of which
such information is stated or certified. The Borrower has disclosed to the Bank
in writing any and all facts which materially and adversely affect or may affect
(to the extent the Borrower can now reasonably foresee), the business,
operations, prospects or condition, financial or otherwise, of the Borrower and
its Consolidated Subsidiaries or the ability of the Borrower to perform its
obligations under this Agreement.
SECTION 5.13. Environmental Matters. (a) Neither the Borrower nor any
Subsidiary of the Borrower is subject to any Environmental Liability which is
likely to have a material adverse effect on the business, financial position,
results of operations or prospects of the Borrower or any of its Subsidiaries
and neither the Borrower nor any of its Subsidiaries has been designated as a
potentially responsible party under CERCLA or under any state statute similar to
CERCLA. None of the Properties have been identified on any current or proposed
(i) National Priorities List under 40 C.F.R. Sec. 300, (ii) CERCLIS list or
(iii) any list arising from a state statute similar to CERCLA.
(b) No Hazardous Materials have been or are being used, produced,
manufactured, processed, generated, stored, disposed of, managed at, or shipped
or transported to or from the Properties or are otherwise present at, on, in or
under the Properties, or, to the best of the knowledge of the Borrower, at or
from any adjacent site or facility, except for Hazardous Materials, such as
cleaning solvents, pesticides and other materials used, produced, manufactured,
processed, generated, stored, disposed of, and managed in the ordinary course of
business in compliance with all applicable Environmental Requirements.
(c) The Borrower and each of its Subsidiaries has procured all
Environmental Authorizations necessary for the conduct of its business, and is
in compliance with all Environmental Requirements in connection with the
operation of the Properties and the Borrower's and each of its Subsidiary's and
Affiliate's respective businesses except, in either case, where the failure to
procure such Environmental Authorizations or to be in compliance with such
Environmental Requirements could not reasonably be expected to have a material
adverse effect on the Borrower and its Subsidiaries, taken as a whole.
SECTION 5.14. Compliance with Laws. The Borrower and each Subsidiary of
the Borrower is in compliance with all applicable laws, except where any failure
to comply with any such laws could not, alone or in the aggregate, be reasonably
expected to have a material adverse effect on the business, financial position,
results of operations or prospects of the Borrower or any of its Subsidiaries,
taken as a whole.
19
ARTICLE VI. COVENANTS
The Borrower agrees that, so long as the Commitment is in effect
hereunder or any amount payable under this Agreement remains unpaid:
SECTION 6.01. Information. The Borrower will deliver or cause to be
delivered to the Bank:
(a) as soon as available and in any event within 90 days after the end
of each Fiscal Year, a consolidating and consolidated balance sheet of Bull Run
and its Consolidated Subsidiaries as of the end of such Fiscal Year and the
related consolidating and consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous fiscal year, and in the case of
the consolidated balance sheet and consolidated statements of income,
shareholders' equity and cash flows certified by Ernst & Young LLP or other
independent public accountants of nationally recognized standing, with such
certification to be free of exceptions and qualifications not acceptable to
Bank, and in the case of the consolidating balance sheet and the consolidating
statements of income, shareholders' equity and cash flows certified by the chief
financial officer or the chief accounting officer of Bull Run or the Borrower as
to fairness of presentation, GAAP and consistency.
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each Fiscal Year, a consolidating and
consolidated balance sheet of Bull Run and its Consolidated Subsidiaries as of
the end of such quarter and the related consolidating and consolidated statement
of income and statement of cash flows for such quarter and for the portion of
the Fiscal Year ended at the end of such quarter, all certified (subject to
normal year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer or the chief accounting officer of
Bull Run or the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of Bull Run or the Borrower
(i) setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections 6.03
through 6.07, inclusive, on the date of such financial statements and (ii)
stating whether any Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(d) within five Domestic Business Days after the Borrower becomes aware
of the occurrence of any Default, a certificate of the chief financial officer
or the chief accounting officer of the Borrower setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto;
(e) promptly upon the mailing thereof to the shareholders of Bull Run
or the Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and annual, quarterly or monthly reports which the
Borrower or Bull Run shall have filed with the Securities and Exchange
Commission;
(g) if and when any member of the Controlled Group (i) gives or is
required to give notice to the PBGC of any Reportable Event with respect to any
Plan which might constitute grounds for a termination of such Plan under Title
IV of ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such Reportable Event, a copy of the notice of
such Reportable Event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA, a
copy of such notice; or (iii) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate or appoint a trustee to administer any Plan, a
copy of such notice; and
20
(h) from time to time such additional information regarding the
financial position or business of Bull Run, the Borrower and their respective
Subsidiaries as the Bank may reasonably request.
SECTION 6.02. Inspection of Property, Books and Records. The Borrower
will keep, and will cause each of its Subsidiaries to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and will permit, and will cause each of its Subsidiaries to
permit, representatives of the Bank at the Bank's expense prior to the
occurrence of an Event of Default and at the Borrower's expense after the
occurrence of an Event of Default to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants. The
Borrower agrees to cooperate and assist in such visits and inspections, in each
case at such reasonable times and as often as may reasonably be desired.
SECTION 6.03. Consolidated Debt-to-Capital Ratio. The Consolidated
Debt-to-Capital Ratio will not at any time exceed the following limits:
(a) from the Closing Date through December 31, 1998, the
Debt-to-Capital Ratio will not exceed sixty-five percent (65%);
(b) from January 1, 1999 through December 31, 1999, the Debt-to-Capital
Ratio will not exceed sixty percent (60%); and
(c) from January 1, 2000 until the Termination Date, the
Debt-to-Capital Ratio will not exceed fifty-five percent (55%).
SECTION 6.04. Minimum Consolidated Tangible Net Worth. Consolidated
Tangible Net Worth will at no time be less than $2,418,000.00 plus the sum of
50% of the cumulative Reported Net Income of the Borrower and its Consolidated
Subsidiaries during any period after December 31, 1995 (taken as one accounting
period), calculated annually as of December 31 of each year but excluding from
such calculations any year in which the Consolidated Net Income of the Borrower
and its Consolidated Subsidiaries is negative.
SECTION 6.05. Fixed Charges Coverage. (a) At the end of each Fiscal
Quarter, commencing with the Fiscal Quarter ending December 31, 1997, the Fixed
Charges Coverage Ratio, as determined in accordance with Section 6.05(b), shall
not be less than the following limits:
(i) from the Closing Date through June 30, 1998, the Fixed Charges
Coverage Ratio shall not be less than 1.50;
(ii) from July 1, 1998 through December 31, 1998, the Fixed Charges
Coverage Ratio shall not be less than 2.50;
(iii) from January 1, 1999 through June 30, 1999, the Fixed Charges
Coverage Ratio shall not be less than 3.50; and
(iv) from July 1, 1999 through the Termination Date, the Fixed Charges
Coverage Ratio shall not be less than 4.00.
(b) The Fixed Charges Coverage Ratio shall be determined at the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending December 31,
1997, and shall be the ratio of Income Available for Fixed Charges for the
twelve months then ended to Consolidated Fixed Charges for the twelve months
then ended.
SECTION 6.06. Investments. The Borrower shall not make Investments in
any Person except (a) Investments in (i) direct obligations of the United States
Government maturing within one
21
year, (ii) certificates of deposit issued by a commercial bank whose credit is
satisfactory to the Bank, (iii) commercial paper rated A-1 or the equivalent
thereof by Standard & Poor's Corporation or P-1 or the equivalent thereof by
Xxxxx'x Investors Service, Inc. and in either case maturing within 6 months
after the date of acquisition and/or (v) tender bonds the payment of the
principal of and interest on which is fully supported by a letter of credit
issued by a United States bank whose long-term certificates of deposit are rated
at least AA or the equivalent thereof by Standard & Poor's Corporation and Aa or
the equivalent thereof by Xxxxx'x Investors Service, Inc. and (b) other
Investments to the extent such Investments do not cause the Borrower to be in
violation of any other provision of this Agreement, including, without
limitation, Section 6.04.
SECTION 6.07. Negative Pledge. Neither the Borrower nor any
Consolidated Subsidiary of the Borrower will create, assume or suffer to exist
any Lien on any asset now owned or hereafter acquired by it, except for
Permitted Encumbrances.
SECTION 6.08. Maintenance of Existence. The Borrower shall, and shall
cause each of its Subsidiaries to, maintain its corporate existence and carry on
its business in substantially the same manner and in substantially the same
fields as such business is now carried on and maintained.
SECTION 6.09. Dissolution. Neither the Borrower nor any of its
Subsidiaries shall suffer or permit dissolution or liquidation either in whole
or in part or redeem or retire any shares of its own stock or that of any of its
Subsidiaries, except through corporate reorganization to the extent permitted by
Section 6.10.
SECTION 6.10. Consolidations, Mergers and Sales of Assets. The Borrower
will not, nor will it permit any of its Subsidiaries to, consolidate or merge
with or into, or sell, lease or otherwise transfer all or any substantial part
of its assets to, any other Person, or discontinue or eliminate any business
line or segment, provided that
(a) the Borrower may merge with another Person if (i) such Person was
organized under the laws of the United States of America or one of its states,
(ii) the Borrower is the corporation surviving such merger and (iii) immediately
after giving effect to such merger, no Default shall have occurred and be
continuing, and
(b) Subsidiaries of the Borrower may merge with one another.
SECTION 6.11. Use of Proceeds. No portion of the proceeds of the
Advances will be used by the Borrower (i) in connection with any tender offer
for, or other acquisition of, stock of any corporation with a view towards
obtaining control of such other corporation, (ii) directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock, or (iii) for any purpose in violation of any
applicable law or regulation.
SECTION 6.12. Compliance with Laws; Payment of Taxes. The Borrower
will, and will cause each of its Subsidiaries and each member of the Controlled
Group to, comply with applicable laws (including but not limited to ERISA),
regulations and similar requirements of governmental authorities (including but
not limited to PBGC), except where the necessity of such compliance is being
contested in good faith through appropriate proceedings. The Borrower will, and
will cause each of its Subsidiaries to, pay promptly when due all taxes,
assessments, governmental charges, claims for labor, supplies, rent and other
obligations which, if unpaid, might become a lien against the property of the
Borrower or any of its Subsidiaries, except liabilities being contested in good
faith and against which, if requested by the Bank, the Borrower will set up
reserves satisfactory to the Bank.
SECTION 6.13. Insurance. The Borrower will maintain, and will cause
each of its Subsidiaries to maintain (either in the name of the Borrower or in
such Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business.
22
SECTION 6.14. Change in Fiscal Year. The Borrower will not change its
Fiscal Year without the consent of the Bank.
SECTION 6.15. Maintenance of Property. The Borrower shall, and shall
cause each of its Subsidiaries to, maintain all of its properties and assets in
good condition, repair and working order, ordinary wear and tear excepted.
SECTION 6.16. Environmental Notices. The Borrower shall furnish to the
Bank prompt written notice of all Environmental Liabilities, pending, threatened
or anticipated Environmental Proceedings, Environmental Notices, Environmental
Judgments and Orders, and Environmental Releases at, on, in, under or in any way
affecting the Properties or any adjacent property, and all facts, events, or
conditions that could lead to any of the foregoing.
SECTION 6.17. Environmental Matters. The Borrower will not, and will
not permit any Third Party to, use, produce, manufacture, process, generate,
store, dispose of, manage at, or ship or transport to or from the Properties any
Hazardous Materials except for Hazardous Materials such as cleaning solvents,
pesticides and other similar materials used, produced, manufactured, processed,
generated, stored, disposed or managed in the ordinary course of business in
compliance with all applicable Environmental Requirements.
SECTION 6.18. Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release it will act immediately to investigate
the extent of, and to take appropriate remedial action to eliminate, such
Environmental Release, whether or not ordered or otherwise directed to do so by
any Environmental Authority.
ARTICLE VII. DEFAULTS
SECTION 7.1. Events of Default. The occurrence of any one or more of
the following events shall constitute an Event of Default by the Borrower under
this Agreement:
(a) the Borrower shall fail to pay when due any principal of any
Advance or shall fail to pay any interest on any Advance within five Domestic
Business Days after such interest shall become due, or shall fail to pay any fee
or other amount payable hereunder within five Domestic Business Days after such
fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 6.03 through 6.11, inclusive; or
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for thirty days after the earlier of (i) the first day on which a
responsible officer of the Borrower has knowledge of such failure, or (ii)
written notice thereof has been given to the Borrower by the Bank; or
(d) any representation, warranty, certification or statement made by
the Borrower in Article V or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made); or
(e) Bull Run shall fail to make any payment in respect of any Debt
outstanding in the aggregate in excess of $500,000 when due or within any
applicable grace period or the Borrower or any Subsidiary of Bull Run or the
Borrower shall fail to make any payment in respect of any Debt outstanding
(other than the Note) when due or within any applicable grace period; or
(f) (i) any event or condition shall occur which results in the
acceleration of the maturity of Debt outstanding of Bull Run, the Borrower or
any Subsidiary of Bull Run or the purchase of such Debt by Bull Run (or its
designees), the Borrower (or its designee) or such Subsidiary of Bull Run (or
its designee) prior to the scheduled maturity thereof or (ii) enables (or, with
the giving of notice or
23
lapse of time or both, would enable) the holders of such Debt or any Person
acting on such holders' behalf to accelerate the maturity thereof or require the
purchase thereof by Bull Run (or its designee), the Borrower (or its designee)
or such Subsidiary of Bull Run (or its designee) prior to the scheduled maturity
thereof, without regard to whether such holders or other Person shall have
exercised or waived their right to do so; provided, however, that if the holder
of any such Debt shall have waived its right to accelerate the maturity of such
Debt or require the purchase of such Debt prior to its scheduled maturity and
the Bank shall not have declared the Note to be due and payable pursuant to
Section 7.02, Bank shall be deemed to have waived any Event of Default (and its
right to declare an Event of Default) arising by reason of this subsection (ii).
(g) Bull Run, the Borrower or any Subsidiary of Bull Run or the
Borrower shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced against
Bull Run, the Borrower or any Subsidiary of Bull Run or the Borrower seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against Bull Run, the
Borrower or any Subsidiary of Bull Run or the Borrower under the federal
bankruptcy laws as now or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall fail to
pay when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any such Plan or Plans or a proceeding shall be
instituted by a fiduciary of any such Plan or Plans to enforce Section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 60
days thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(j) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $250,000.00 (exclusive of any amounts covered by
insurance as to which the insurance carrier is not disputing its obligations
with respect to such insurance) shall be rendered against the Borrower or any
Subsidiary of the Borrower and such judgment or order shall continue unsatisfied
and unstayed for a period of 30 days; or
(k) a federal tax lien shall be filed against the Borrower under
Section 6323 of the Code or a lien of the PBGC shall be filed against the
Borrower under Section 4068 of ERISA and in either case such lien shall remain
undischarged for a period of 60 days after the date of filing; or
(l) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
20% or more of the outstanding shares of the voting stock of Bull Run or the
Borrower; or (ii) as of any date a majority of the Board of Directors of Bull
Run or the Borrower consists of individuals who were not either (A) directors of
Bull Run or the Borrower as of the corresponding date of the previous year, (B)
selected or nominated to become directors by the Board of Directors of Bull Run
or the Borrower of which a majority consisted of individuals described in clause
(A), or (C) selected or nominated to become directors by the Board of Directors
of Bull Run or the Borrower of which a majority consisted of individuals
described in clause (A) and individuals
24
described in clause (B).
SECTION 7.02. Remedies on Default. Upon the occurrence of an Event of
Default, the Bank may, by notice to the Borrower, terminate the Commitment which
shall thereupon terminate, and by notice to the Borrower declare the Note
(together with accrued interest thereon) to be, and the Note and all outstanding
Advances shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that if any Event of Default specified
in clause (g) or (h) above occurs with respect to the Borrower, without any
notice to the Borrower or any other act by the Bank, the Commitment shall
thereupon terminate and the Note and all outstanding Advances (together with
accrued interest thereon) and fees shall become immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
SECTION 7.03. Security Interest; Offset. In addition to, and not in
limitation of, all rights of offset that the Bank or other holder of the Note
may have under applicable law, the Borrower hereby grants to the Bank, and to
each Participant, Assignee or other Transferee, as security for the full and
punctual payment and performance of the obligations to pay to the Bank the
principal of and interest on the Advances and other amounts due hereunder, a
continuing lien on and security interest in all deposits and other sums credited
by or due from the Bank (or such Participant, Assignee or other Transferee) to
the Borrower or subject to withdrawal by the Borrower; and regardless of the
adequacy of any collateral or other means of obtaining repayment of the
Obligations, the Bank (and each such Assignee and, to the extent permitted by
applicable law, each such Participant and other Transferee) may, at any time
after the occurrence of an Event of Default and without notice to the Borrower,
set off the whole or any portion or portions of any or all such deposits and
other sums against the amounts owing under this Agreement and the Note, whether
or not any other Person or Persons could also withdraw money therefrom.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at its address set forth below
or such other address as such party may hereafter specify for the purpose by
notice to the other party:
(a) If to the Borrower:
Datasouth Computer Corporation
P. O. Xxx 000000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Fax number: (000) 000-0000
(b) If to the Bank:
Wachovia Bank, N.A.
P. O. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Fax number: (000) 000-0000
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (ii) if given by any other
means, when delivered at the address specified in this Section; provided that
notices to the Bank under Article II or Article III shall not be effective until
received.
SECTION 8.02. No Waivers. No failure or delay by the Bank in exercising
any right, power
25
or privilege hereunder or under the Note shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 8.03. Expenses; Documentary Taxes. (a) The Borrower shall pay
(i) all out-of-pocket expenses of the Bank, including fees and disbursements of
counsel for the Bank, in connection with the preparation of this Agreement and
the other Loan Documents, any waiver or consent hereunder or any amendment
hereof or any actual or alleged Default hereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by the Bank, including fees
and disbursements of counsel, in connection with such Event of Default and
collection and other enforcement proceedings resulting therefrom, including
out-of-pocket expenses incurred in enforcing this Agreement and the other Loan
Documents. The Borrower shall indemnify the Bank against any transfer taxes,
documentary taxes, assessments or charges made by any Authority by reason of the
execution and delivery of this Agreement or the other Loan Documents. The Bank's
counsel fees shall not exceed $3,000 (plus disbursements of such counsel) for
the preparation of this Agreement and the other Loan Documents.
(b) The Borrower shall indemnify the Bank and each Affiliate thereof
and their respective directors, officers, employees and agents from, and hold
each of them harmless against, any and all losses, liabilities, claims or
damages to which any of them may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by the
Bank hereunder or breach by the Borrower of this Agreement or any other Loan
Document or from investigation, litigation (including, without limitation, any
actions taken by the Bank to enforce this Agreement or any of the other Loan
Documents) or other proceeding (including, without limitation, any threatened
investigation or proceeding) relating to the foregoing, and the Borrower shall
reimburse the Bank, and each Affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any expenses (including, without
limitation, legal fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims, damages or
expenses incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified.
SECTION 8.04. Amendments and Waivers. Any provision of this Agreement,
the Note or any other Loan Documents may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the Borrower and the
Bank.
SECTION 8.05. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement.
(b) The Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Advance, the Note, the Commitment
hereunder or any other interest of the Bank hereunder. In the event of any such
sale by the Bank of a participating interest to a Participant, the Bank's
obligations under this Agreement shall remain unchanged, the Bank shall remain
solely responsible for the performance thereof, the Bank shall remain the holder
of any the Note for all purposes under this Agreement, and the Borrower shall
continue to deal solely and directly with the Bank in connection with the Bank's
rights and obligations under this Agreement. In no event shall the Bank be
obligated to the Participant to take or refrain from taking any action hereunder
except that the Bank may agree that it will not (except as provided below),
without the consent of the Participant, agree to (i) the change of any date
fixed for the payment of principal of or interest on the related Advance or
Advances, (ii) the change of the amount of any principal, interest or fees due
on any date fixed for the payment thereof with respect to the related Advance or
Advances, (iii) the change of the principal of the related Advance or Advances,
(iv) any change in the rate at which either interest is payable thereon or (if
the Participant is entitled to any part thereof) commitment fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or commitment fee (as the case may be) in respect of such participation, (v) the
release or substitution
26
of all or any substantial part of the collateral (if any) held as security for
the Advances, or (vi) the release of any guaranty given to support payment of
the Advances. The Bank shall, within ten Domestic Business Days after selling a
participating interest in any Advance, the Note, the Commitment or other
interest under this Agreement, provide the Borrower with written notification
stating that such sale has occurred and identifying the Participant and the
interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article III and Section 7.03
with respect to its participation in Advances outstanding from time to time.
(c) The Bank may at any time assign to one or more banks or financial
institutions (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and the Note, and such Assignee
shall assume all such rights and obligations, pursuant to an Assignment and
Acceptance in the form attached hereto as Exhibit B executed by such Assignee,
the Bank and the Borrower; provided that (i) no interest may be sold by the Bank
pursuant to this paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the Commitment, and (ii) no interest may be sold by the
Bank pursuant to this paragraph (c) to any Assignee which is not an Affiliate of
the Bank without the consent of the Borrower, which consent shall not be
unreasonably withheld or delayed. Upon (A) execution of the Assignment and
Acceptance by the Bank, such Assignee, and the Borrower, (B) delivery of an
executed copy of the Assignment and Acceptance to the Borrower, and (C) payment
by such Assignee to the Bank of an amount equal to the purchase price agreed
between the Bank and such Assignee, such Assignee shall for all purposes be a
Bank party to this Agreement and shall have all the rights and obligations of a
Bank under this Agreement to the same extent as if it were an original party
hereto with a Commitment as set forth in such instrument of assumption, and the
Bank shall be released from its obligations hereunder to a corresponding extent,
and no further consent or action by the Borrower or the Bank shall be required.
Upon the consummation of any transfer to an Assignee pursuant to this paragraph
(c), the Bank and the Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to such Assignee.
(d) Subject to the provisions of Section 8.06, the Borrower authorizes
the Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial information
in the Bank's possession concerning the Borrower which has been delivered to the
Bank by the Borrower pursuant to this Agreement or which has been delivered to
the Bank by the Borrower in connection with the Bank's credit evaluation prior
to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment
under Section 3.03 than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 3.02
or 3.03 requiring the Bank to designate a different Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(f) Anything in this Section 8.05 to the contrary notwithstanding, the
Bank may assign and pledge all or any portion of the Loan and/or obligations
owing to it to any Federal Reserve Bank or the United States Treasury as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and Operating Circular issued by such Federal Reserve
Bank, provided that any payment in respect of such assigned Loan and/or
obligations made by the Borrower to the Bank in accordance with the terms of
this Agreement shall satisfy the Borrower's obligations hereunder in respect of
such assigned Loan and/or obligations to the extent of such payment. No such
assignment shall release the Bank from its obligations hereunder.
SECTION 8.06. Confidentiality. The Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower to
it which is clearly indicated to be confidential information, confidential from
any one other than persons employed or retained by the Bank who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Advances; provided, however, that nothing herein shall prevent
the Bank from
27
disclosing such information (i) upon the order of any court or administrative
agency, (ii) upon the request or demand of any regulatory agency or authority
having jurisdiction over the Bank, (iii) which has been publicly disclosed, (iv)
to the extent reasonably required in connection with any litigation to which the
Bank or their respective Affiliates may be a party, (v) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (vi) to the
Bank's legal counsel and independent auditors and (vii) to any actual or
proposed Participant, Assignee or other Transferee of all or part of its rights
hereunder which has agreed in writing to be bound by the provisions of this
Section.
SECTION 8.07. Interest Limitation. Notwithstanding any other term of
this Agreement, the Note or any other Loan Document, the maximum amount of
interest which may be charged to or collected from any person liable hereunder
or under the Note by the Bank shall be absolutely limited to, and shall in no
event exceed, the maximum amount or interest which could lawfully be charged or
collected under applicable law (including, to the extent applicable, the
provisions of section 5197 of the Revised Statutes of the United States of
America, as amended, 12 U.S.C. Sec.85, as amended), so that the maximum of all
amounts constituting interest under applicable law, howsoever computed, shall
never exceed as to any Person liable therefor such lawful maximum, and any term
of this Agreement, the Note or any other Loan Document which could be construed
as providing for interest in excess of such lawful maximum shall be and hereby
is made expressly subject to and modified by the provisions of this paragraph.
SECTION 8.08. Governing Law. This Agreement and the Note shall be
construed in accordance with and governed by the law of the State of North
Carolina. This Agreement and the Note are intended to be effective as
instruments executed under seal.
SECTION 8.09. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
SECTION 8.10. Consent to Jurisdiction. The Borrower (a) submits to
personal jurisdiction in the State of North Carolina, the courts thereof and the
United States District Courts sitting therein, for the enforcement of this
Agreement, the Note and the other Loan Documents, (b) waives any and all
personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of North Carolina for the purpose of litigation to enforce this
Agreement, the Note or the other Loan Documents, and (c) agrees that service of
process may be made upon it in the manner prescribed in Section 8.01 for the
giving of notice to the Borrower. Nothing herein contained, however, shall
prevent the Bank from bringing any action or exercising any rights against any
security and against the Borrower personally, and against any assets of the
Borrower, within any other state or jurisdiction.
SECTION 8.11. Severability. If any provisions of this Agreement shall
be held invalid under any applicable laws, such invalidity shall not affect any
other provision of this Agreement that can be given effect without the invalid
provision, and, to this end, the provisions hereof are severable.
SECTION 8.12. Captions. Captions in this Agreement are for the
convenience of reference only and shall not affect the meaning or interpretation
of the provisions hereof.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the year and day first above written.
BORROWER:
ATTEST: DATASOUTH COMPUTER CORPORATION
/s/ K. XXXX XXXXXX By: /s/ XXXXXXXXX X. XXXXXXXX
-------------------- -------------------------------------
Assistant Secretary Title: Executive VP - Finance & Administration
[CORPORATE SEAL]
BANK:
Lending Office WACHOVIA BANK, N.A.
--------------
Wachovia Bank, N.A.
P. O. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 By:/s/ XXXXXXXXXXX X. XXXXXXX
--------------------------------------
Title: Vice President
