EXHIBIT A
SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is effective as of the 28th day of June, 2002, by and among BR
HOLDING, INC., a Georgia corporation ("Bull Run"), CAPITAL SPORTS PROPERTIES,
INC., a Delaware corporation ("Capital"), HOST COMMUNICATIONS, INC., a Kentucky
corporation ("Host") and DATASOUTH COMPUTER CORPORATION, a Delaware corporation
("Datasouth" and together with Bull Run, Capital and Host, the "Borrowers"), as
Borrowers, BULL RUN CORPORATION, a Georgia corporation (the "Parent"), as a
Guarantor, THE LENDERS SIGNATORY HERETO (collectively, the "Lenders"), BANK OF
AMERICA, N.A. and BANK ONE, KENTUCKY, NA, as Issuing Banks (collectively, the
"Issuing Banks"), WACHOVIA BANK, NATIONAL ASSOCIATION (FORMERLY KNOWN AS FIRST
UNION NATIONAL BANK), as Syndication Agent for the Issuing Banks and the Lenders
(the "Syndication Agent"), BANK OF AMERICA, N.A., as Administrative Agent for
the Issuing Banks and the Lenders (the "Administrative Agent").
RECITALS
WHEREAS, the Borrowers, the Parent, the Lenders, the Issuing Banks, the
Syndication Agent and the Administrative Agent are parties to that certain
Amended and Restated Credit Agreement dated as of July 27, 2001, as amended by
that certain First Amendment to Amended and Restated Credit Agreement dated as
of October 5, 2001, as amended by that certain Second Amendment to Amended and
Restated Credit Agreement dated as of December 14, 2001, as amended by that
certain Third Amendment to Amended and Restated Credit Agreement dated as of
February 8, 2002, as amended by that certain Fourth Amendment to Amended and
Restated Credit Agreement dated as of February 22, 2002, as amended by that
certain Fifth Amendment to Amended and Restated Credit Agreement dated as of
March 29, 2002 (as further amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), pursuant to which the Lenders have
agreed to make one or more loans from time to time to the Borrowers in
accordance with the terms and conditions thereof; and
WHEREAS, the Borrowers have requested that the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent extend the Maturity
Date and consent to certain other amendments to the Credit Agreement, and the
Lenders, the Issuing Banks, the Syndication Agent and the Administrative Agent
have agreed to do so to the extent set forth herein;
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto do
hereby agree that all capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement as amended hereby (except as otherwise
expressly defined or limited herein) and do hereby further agree as follows:
3
1. AMENDMENTS TO ARTICLE 1.
(a) Article 1 of the Credit Agreement, Definitions, is hereby
modified and amended by adding the following definition in appropriate
alphabetical order:
"`AMT Subordination Agreement' shall mean that certain
Subordination Agreement dated September 27, 2000, executed by Datasouth
in favor of LaSalle Business Credit, Inc., with respect to the AMT
Note, and any replacement thereof executed by Datasouth in favor of any
lender which succeeds LaSalle as AMT's senior lender in a form
reasonably acceptable to the Administrative Agent."
(b) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the definition of "AMT" in its entirety
and by substituting the following in lieu thereof:
"`AMT' shall mean AMT Datasouth Corp. (formerly known as
Advanced Matrix Technology, Inc.), a California corporation."
(c) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the definition of "AMT Note" in its
entirety and by substituting the following in lieu thereof:
"`AMT Note' shall mean that certain Subordinated Promissory
Note dated July 1, 2002, issued by AMT in favor of Datasouth in the
original principal amount of $3,392,350.43, to amend and restate that
certain Subordinated Promissory Note dated September 27, 2000, issued
by AMT in favor of Datasouth in the original principal amount of
$4,285,074.18."
(d) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the definition of "Assignment of Note"
in its entirety and by substituting the following in lieu thereof:
"`Assignment of Note' shall mean that certain Amended and
Restated Assignment of Note dated as of July 1, 2002, from Datasouth in
favor of the Administrative Agent, on its behalf and on behalf of the
Issuing Banks, the Syndication Agent and the Lenders, in form and
substance acceptable to the Administrative Agent."
(e) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the definition of "Borrowing Base
Deficiencies" in its entirety and by substituting the following in lieu thereof:
"`Borrowing Base Deficiencies' shall mean any condition
wherein the Aggregate Revolving Credit Obligations exceed the sum of
(a) Borrowing Base as set forth on the most recent Borrowing Base
Certificate delivered to the Administrative Agent and the Lenders or as
otherwise determined by the Administrative Agent, plus (b) the
Overadvance Cushion."
4
(f) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the definition of "Maturity Date" in
its entirety and by substituting the following in lieu thereof:
"`Maturity Date' shall mean September 13, 2002, or such
earlier date as payment of the Loans shall be due (whether by
acceleration or otherwise) in accordance with the terms hereof."
(g) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by inserting the following definitions of
"Overadvance Cushion" and "Sixth Amendment Date" in appropriate alphabetical
order:
"'Overadvance Cushion' shall mean (1) for the period from
March 29, 2002 until the date of delivery of the Borrowing Base
Certificate for the period ending July 31,2002, $5,000,000, (2) for the
period from delivery of the Borrowing Base Certificate for the period
ending July 31, 2002 until the date of delivery of the Borrowing Base
Certificate for the period ending August 31, 2002, $8,000,000, and (3)
for the period from delivery of the Borrowing Base Certificate for the
period ending August 31, 2002 and until the Maturity Date, $0,
'Sixth Amendment Date' shall mean June 28, 2002."
2. AMENDMENTS TO SECTION 2.1.
(a) Section 2.1(a) of the Credit Agreement, The Revolving
Loans, is hereby modified and amended by deleting the first sentence therefrom
and by substituting the following in lieu thereof:
"The Lenders agree, severally in accordance with their
respective Revolving Commitment Ratios and not jointly, upon the terms
and subject to the conditions of this Agreement, to lend and relend to
the Borrowers, prior to the Maturity Date, amounts which in the
aggregate at any one time outstanding do not exceed (i) the lesser of
(A) the sum of (x) the Borrowing Base, plus (y) the Overadvance Cushion
and (B) the Revolving Loan Commitment, minus (ii) the aggregate stated
amount of all Letter of Credit Obligations then outstanding."
(b) Section 2.1(e) of the Credit Agreement, Borrowing Base
Deficiencies, is hereby modified and amended by deleting the last sentence
therefrom and by substituting the following in lieu thereof:
"Additionally, in no event shall the Borrowers have the right
to receive any Advance of a Revolving Loan in an amount which exceeds
(i) the lesser of (A) the sum of (x) the Borrowing Base, plus (y) the
Overadvance Cushion and (B) the Revolving Loan Commitment, minus (ii)
the Aggregate Revolving Credit Obligations."
3. AMENDMENT TO SECTION 2.4. Section 2.4 of the Credit Agreement,
Fees, is hereby modified and amended by adding the following new subsection (d)
to the end thereof:
5
"(d) Overadvance Cushion Fee. The Borrowers, jointly and
severally, agree to pay to the Lenders, in accordance with the Lenders'
respective Revolving Commitment Ratio, a fee on the amount of the
average outstanding daily balance of Advances under the Overadvance
Cushion, at a rate of two percent (2%) per annum. Such Overadvance
Cushion fee shall be computed on the basis of a hypothetical year of
360 days for the actual number of days elapsed, shall be payable in
arrears on (i) August 16 for the period from July 15, 2002 through and
including August 15, 2002, and (ii) September 13 for the period from
August 16, 2002 through and including September 13, 2002, and shall be
fully earned when due and non-refundable when paid."
4. AMENDMENT TO SECTION 2.6(D). Section 2.6(d) of the Credit
Agreement, Other Mandatory Repayments, is hereby modified and amended by
deleting the first sentence of clause (i) in its entirety and by substituting
the following in lieu thereof:
"(i) In the event that after the Agreement Date, the Parent or
any Borrower or any Subsidiary of any Borrower shall issue any Capital Stock
(other than in connection with (a) the Xxxxxxxx Equity Contribution to the
extent set forth below and (b) an equity contribution or a series of equity
contributions up to an aggregate amount of $10,000,000 (less the amount, if any,
of subordinated debt issued pursuant to Section 7.1(o) hereof) occurring after
the Sixth Amendment Date and prior to the Maturity Date), one hundred percent
(100%) of the Net Cash Proceeds received by the Parent, such Borrower or such
Subsidiary from such issuance shall be paid on the date of receipt thereof by
the Parent, such Borrower, or such Subsidiary to the Lenders as a mandatory
payment of the Loans.
5. AMENDMENT TO SECTION 6.7. Section 6.7 of the Credit Agreement,
Notice of Litigation and Other Matters, is hereby modified and amended by
deleting subsection (i) in its entirety and by substituting the following in
lieu thereof:
"(i) Promptly upon, but in no event later than two (2)
Business Days after, the receipt by any Borrower of a notice under the
AMT Subordination Agreement, the Borrowers shall deliver a copy of such
notice to the Administrative Agent."
6. AMENDMENTS TO SECTION 7.1.
(a) Section 7.1 of the Credit Agreement, Indebtedness, is
hereby modified and amended by adding the following new subsection (n) to the
end thereof:
"(n) Indebtedness of the Borrowers to an Affiliate incurred
after the Sixth Amendment Date and repayable in full on or before
August 31, 2002 in the amount of $4,000,000; and"
(b) Section 7.1 of the Credit Agreement, Indebtedness, is
hereby further modified and amended by adding the following new subsection (o)
to the end thereof:
"(o) Other subordinated debt incurred by the Borrowers on
terms and conditions acceptable to the Administrative Agent in an
amount not to exceed the difference between (i) $10,000,000 and (ii)
the amount of any equity contribution
6
received by the Borrowers after the Sixth Amendment Date and prior to
the Maturity Date, the Net Cash Proceeds of which are not used to repay
the Loans."
7. AMENDMENT TO SECTION 7.12. Section 7.12 of the Credit
Agreement, Amendment and Waiver, is hereby deleted in its entirety and the
following substituted in lieu thereof:
"Section 7.12 Amendment and Waiver None of the Parent or any
Borrower, without the prior written consent of all of the Lenders,
shall enter into any amendment of, or agree to or accept any waiver of
(a) its certificate of incorporation and by-laws, if such amendment or
waiver would adversely affect the rights of the Borrowers, the
Administrative Agent, the Issuing Banks and the Lenders, or any of
them, (b) the Subordinated Note, (c) the AMT Note and the AMT
Subordination Agreement, (d) the Summit Subordinated Notes, and (e) any
documents or instruments evidencing any subordinated debt issued
pursuant to Section 7.1(o) hereof."
8. CONSENT. Notwithstanding anything to the contrary contained in
the Credit Agreement or any other Loan Document, the Lenders hereby consent to
the delivery by the Borrowers to the Administrative Agent, of the June 30, 2002
Borrowing Base Certificate on or before July 23, 2002.
9. NO OTHER AMENDMENTS AND CONSENTS. Except for the amendments
and consents expressly set forth and referred to above, the text of the Credit
Agreement and the other Loan Documents shall remain unchanged and in full force
and effect, and the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent hereby reserve the right to require strict compliance with
the terms and conditions of the Credit Agreement and the other Loan Documents in
the future. Nothing in this Amendment is intended, or shall be construed, to
constitute a novation or an accord and satisfaction of any of the Obligations or
to modify, affect or impair the perfection or continuity of the Administrative
Agent's security interests in, security titles to or other Liens on any
Collateral for the Obligations.
10. REPRESENTATIONS AND WARRANTIES. To induce the Lenders, the
Issuing Banks, the Syndication Agent and the Administrative Agent to enter into
this Amendment, each of the Borrowers hereby warrants, represents and covenants
to the Lenders, the Issuing Banks, the Syndication Agent and the Administrative
Agent that: (a) each representation or warranty of the Borrowers set forth in
the Credit Agreement is hereby restated and reaffirmed as true and correct on
and as of the date of this Amendment, and after giving effect to this Amendment,
as if such representation or warranty were made on and as of the date of, and
after giving effect to, this Amendment (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period); (b) such Borrower has the corporate power and authority to (i) enter
into this Amendment and (ii) do all acts and things as are required or
contemplated hereunder to be done, observed and performed by such Borrower; (c)
this Amendment has been duly authorized, validly executed and delivered by such
Borrower, and constitutes the legal, valid and binding obligation of such
Borrower, enforceable against it in accordance with its terms; (d) the execution
and delivery of this Amendment and performance by such Borrower under the Credit
Agreement, does not and will not require the consent or approval of any
regulatory
7
authority or governmental authority or agency having jurisdiction over such
Borrower which has not already been obtained, nor contravene or conflict with
the charter documents of such Borrower, or the provision of any statute,
judgment, order, indenture, instrument, agreement or undertaking, to which such
Borrower is a party or by which any of its properties are or may become bound;
and (e) as of the date hereof and after giving effect to the amendments
contained in this Amendment, no Default or Event of Default under the Credit
Agreement has occurred and is continuing. The Borrowers, the Parent, the
Lenders, the Issuing Banks, the Syndication Agent and the Administrative Agent
hereby ratify and affirm all of the terms and conditions of the Credit Agreement
and the Loan Documents applicable to each of them, including, without
limitation, the Borrowers' joint and several liability for the Obligations. The
parties hereto have not entered into a mutual disregard of the terms and
provisions of the Credit Agreement or the other Loan Documents, or engaged in
any course of dealing in variance with the terms and provisions of the Credit
Agreement or the other Loan Documents, within the meaning of any applicable law
of the State of Georgia or otherwise.
11. REIMBURSEMENT OF COSTS AND EXPENSES. The Borrowers hereby
jointly and severally agree to reimburse the Lenders, the Issuing Banks, the
Syndication Agent and the Administrative Agent on demand for all costs
(including, without limitation, reasonable attorneys' fees) incurred by such
parties in negotiating, documenting and consummating this Amendment, the other
documents referred to herein, and the transactions contemplated hereby and
thereby.
12. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT. The
effectiveness of this Amendment is subject to:
(a) the truth and accuracy in all respects of the
representations and warranties of the Borrowers contained in Section 10 above;
and
(b) the receipt by the Administrative Agent of one or more
duly executed counterparts of this Amendment signed by the Borrowers, the
Parent, and each of the Lenders.
13. CONDITIONS SUBSEQUENT TO THIS AMENDMENT. As a condition
subsequent to the amendments and consents set forth in this Amendment and
pursuant to Section 5.16 of the Credit Agreement (the failure by the Borrowers
to so perform or cause to be performed for any reason constituting an Event of
Default under the Credit Agreement), the Borrowers shall deliver to the
Administrative Agent, within five (5) Business Days of execution of the revised
AMT Subordination Agreement and the documents related thereto, (i) the duly
executed Assignment of Note, together with the original AMT Note duly endorsed
in blank, (ii) copies of or authorization to file Uniform Commercial Code
financing statements naming AMT as debtor, Datasouth as secured party and the
Administrative Agent as assignee, and identifying as collateral the accounts and
payment intangibles pledged by AMT to secure the AMT Note, and (iii)
authorization to file amendments to modify the collateral description of the
Uniform Commercial Code financing statements of record listing Datasouth as
debtor and the Administrative Agent as secured party to include the assets and
rights assigned to the Administrative Agent pursuant to the Assignment of Note.
8
14. RELEASE. Each of the Parent and the Borrowers hereby waives
and releases each of the Lenders, the Issuing Banks, the Syndication Agent and
the Administrative Agent from any and all claims and defenses with respect to
the Credit Agreement, the Notes and any and all documents, instruments,
certificates, notes, bonds, or other agreements executed in connection
therewith, except in the case of willful misconduct or gross negligence on the
part of such Person.
15. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to "the Credit
Agreement," "thereunder," "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby. This Amendment shall be deemed to be a Loan Document for all
purposes.
16. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
17. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of Georgia
applicable to contracts made and performed in such state.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
9
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of August 13, 2002 and to be made effective as of
the date first above written.
BORROWERS: BR HOLDING, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President - Finance
CAPITAL SPORTS PROPERTIES, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
HOST COMMUNICATIONS, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
DATASOUTH COMPUTER CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Executive VP - Finance & Admin.
PARENT: BULL RUN CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President - Finance
10
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
SYNDICATION AGENT: WACHOVIA BANK, NATIONAL
ASSOCIATION (FORMERLY KNOWN AS
FIRST UNION NATIONAL BANK)
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
ISSUING BANKS: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
BANK ONE, KENTUCKY, NA
By: /s/ XXXXXX XXXX
-----------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
LENDERS: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
11
BANK ONE, KENTUCKY, NA
By: /s/ XXXXXX XXXX
------------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION (AS SUCCESSOR IN INTEREST
TO WACHOVIA BANK, N.A. AND FORMERLY
KNOWN AS FIRST UNION NATIONAL BANK)
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
12
