1
EXHIBIT 10.10
FIRST AMENDMENT OF AMENDED AND RESTATED
LOAN AGREEMENT BETWEEN BULL RUN CORPORATION AND
NATIONSBANK, N.A., DATED AS OF FEBRUARY 24, 1999
2
FIRST AMENDMENT OF AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT is made as of this 24th day of February, 1999, by and
between BULL RUN CORPORATION, a Georgia corporation ("Borrower"), and
NATIONSBANK, N.A. ("Lender").
RECITALS
WHEREAS, Lender and Borrower are parties to that certain Amended and
Restated Loan Agreement, dated as of March 20, 1998 (the "Loan Agreement"),
pursuant to which Lender has agreed to make one or more loans from time to time
to the Borrower in accordance with the terms and conditions thereof; and
WHEREAS, Borrower has requested and Lender has agreed to provide an
additional term loan (the "Third Term Loan") to finance the acquisition of
shares of common and preferred stock of Total Sports, Inc., a Delaware
corporation ("Total Sports"), and Lender and Borrower desire to modify the Loan
Agreement in order to provide for the Third Term Loan, and in certain other
respects in accordance with the terms and conditions 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, Borrower and Lender do
hereby agree that all capitalized terms used herein shall have the meanings
ascribed thereto in the Loan Agreement as amended hereby (except as otherwise
expressly defined or limited herein) and do hereby further agree as follows:
1. AMENDMENTS OF LOAN AGREEMENT. Subject to the fulfillment of
the conditions precedent to the effectiveness of this Modification which are set
forth below, the Loan Agreement shall be amended as follows:
(a) Section 1.01 of the Loan Agreement is hereby amended
by adding to Section 1.01 the following new definitions in the
appropriate alphabetical order:
"First Amendment" shall mean that certain First
Amendment of Loan Agreement dated as of February 24, 1999, by
and between Borrower and Lender.
"Third Term Loan" shall mean any and all advances
made by Lender to Borrower under the Third Term Loan Facility.
"Third Term Loan Facility" shall mean the term loan
facility provided by Lender to Borrower under Section 3.2A
hereof.
"Third Term Loan Facility Expiration Date" shall mean
May 28, 1999 (as such date may be extended, accelerated or
amended from time to time pursuant to this Agreement).
"Third Term Loan Maturity Date" shall mean August 23,
1999.
"Third Term Loan Maximum Availability" shall mean
$4,000,000.
"Third Term Loan Note" shall mean the Third Term Loan
Note executed by the Borrower and payable to the order of the
Lender as evidence of the Third Term Loan, and any extension,
renewal, modification or replacement thereof or therefor.
3
"Third Term Loan Obligations" shall mean,
collectively, any and all Obligations of Borrower to pay
Lender the principal of, interest or fees on, collection costs
for, or any other sums owing in respect of the Third Term
Loans or the Third Term Loan Notes.
"Total Sports" shall mean Total Sports, Inc., a
Delaware corporation.
"Total Sports Shares" shall mean all shares of common
and preferred stock of Total Sports now owned or hereafter
acquired by Borrower and all cash and non-cash proceeds
thereof.
(b) Section 1.1 of the Loan Agreement is hereby further
amended by deleting from Section 1.1 the terms "Term Loan Facilities,"
"Term Loan Notes," and "Term Loans" and by substituting in lieu thereof
the following new definitions of such terms:
"Term Loan Facilities" shall mean, collectively, the
First Term Loan Facility, the Second Term Loan Facility and
the Third Term Loan Facility.
"Term Loan Notes" shall mean, collectively, the First
Term Loan Note, the Second Term Loan Note and the Third Term
Loan Note.
"Term Loans" shall mean, collectively, the First Term
Loan, the Second Term Loan and the Third Term Loan.
(c) The Loan Agreement is hereby further amended by
adding the following new Section 3.2A after the existing Section 3.2
and before the existing Section 3.3:
"SECTION 3.2A. THIRD TERM LOAN FACILITY.
(a) Subject to the terms and conditions of this
Agreement, including, without limitation, the conditions
precedent set forth in Section 5.3 hereof, the Lender agrees
to advance to the Borrower, from time to time on or prior to
the Third Term Loan Facility Expiration Date and upon the
Borrower's request therefor, a Third Term Loan in the
principal amount of the Third Term Loan Maximum Availability.
The Third Term Loan Facility may be disbursed in one or more
advances but the Lender's commitment under the Third Term Loan
Facility shall be reduced by each advance thereunder and any
sums advanced under the Third Term Loan Facility may not be
repaid and then re-borrowed thereunder.
(b) The proceeds of the Third Term Loan shall
be used to purchase shares of common and preferred stock of
Total Sports."
(d) The Loan Agreement is hereby further amended by
adding a new Section 3.4(b-1) immediately following the existing
Section 3.4(b):
"(b-1) The Borrower's obligation to pay the Lender
the principal of and interest on the Third Term Loan
shall be evidenced by the records of the Lender
(subject to Section 4.5 hereof) and by the Third Term
Loan Note. The principal balance of the Third Term
Loan shall be payable on the Third Term Loan Maturity
Date in an amount equal to the entire remaining
unpaid balance of the Third Term Loan."
2
4
(e) The Loan Agreement is hereby further amended by
deleting Section 3.3(a) in its entirety and by substituting in lieu
thereof, the following new Section 3.3(a):
"(a) The unpaid principal balance of each of the Term
Loans shall bear interest from time to time at a rate per
annum equal to the Prime Rate plus the Applicable Term Loan
Margin therefor as then in effect; provided, however, that
Borrower may, by written notice (or by telephonic notice
promptly confirmed in writing) delivered to the Lender not
later than 10:00 a.m. (Atlanta time) on the second Business
day prior to any Interest Period designated by the Borrower in
such notice, direct that interest accrue on the unpaid
principal balance of any Term Loan other than the Third Term
Loan (or any portion of any Term Loan (other than the Third
Term Loan) which when added to all other LIBOR Advances then
outstanding under any of the Loans and which have the same
Interest Period totals an amount of not less than $100,000 or
any greater integral multiple thereof) outstanding from time
to time during such Interest Period at a rate per annum equal
to the sum of the Adjusted LIBOR for such Interest Period plus
the Applicable Term Loan Margin therefor as then in effect;
provided, further, however, that (i) upon the occurrence and
during the continuation of any Event of Default under Section
9.1(i), (ii) or (iii) hereof, the Lender may, upon notice to
the Borrower, suspend Borrower's right to use the aforesaid
Adjusted LIBOR option, (ii) Borrower may not have more than
six (6) Adjusted LIBOR-based interest rates in effect under
this Section at any one time, and (iii) the interest rate
applicable to the Term Loans shall be subject to adjustment as
provided in paragraph (b) below."
(f) The Loan Agreement is hereby further amended by
deleting Section 4.4(a) in its entirety and by substituting in lieu
thereof the following new Section 4.4(a), the purpose of which is to
add a reference to the Total Sport Shares and to reflect the
appropriate number of shares of Class A Common Stock of Xxxx pledged to
the Lender under the Subsidiary Pledge Agreement after a three-to-two
stock split effected in September of 1998:
"(a) The Obligations shall be secured by (i) the
Borrower's first priority and perfected pledge to the
Lender of (A) one hundred percent of the outstanding
capital stock of Datasouth, (B) 51.5 shares of common
stock of Capital Sports Properties, Inc., (C) the
Host Shares (other than 4,682 shares of common stock
of Host Communications which secure the Second Term
Loan Obligations), and (D) the Total Sports Shares,
all pursuant to the Borrower Pledge Agreement, and
(ii) the Partnership's first priority and perfected
pledge to the Lender of 1,284,000 shares of common
stock of the Borrower pursuant to the Partnership
Pledge Agreement. The Obligations (other than the
Third Term Loan Obligations) shall also be secured by
Datasouth's first priority and perfected pledge to
the Lender of 457,944 shares of Class A Common Stock
of Xxxx pursuant to the Subsidiary Pledge Agreement."
(g) The Loan Agreement is hereby further amended by
deleting the number "906,924" from the second line of Section 4.4(b)
and inserting in lieu thereof, the number "1,359,441", the purpose of
which is to reflect the appropriate number of shares of Class A Common
Stock of Xxxx pledged to the Lender under Purpose Credit Subsidiary
Pledge Agreement after a three-to-two stock split effected in September
of 1998.
(h) the Loan Agreement is hereby further amended by
deleting Section 7.5(c) in its entirety and by substituting in lieu
thereof, the following new Section 7.5(c):
3
5
"(c) As of the last day of each calendar quarter
ending on or after December 31, 1998, Borrower's Debt
Service Ratio for the four quarter period then ended
shall not be less than 1.1 to 1.0; provided, however,
for the purpose of calculating such Debt Service
Ratio for the calendar quarters ending December 31,
1998, March 31, 1999 and June 30, 1999, the Cash Flow
component of such Debt Service Ratio shall include
proceeds received by Borrower during the four quarter
period then ended from the redemption of shares of
preferred stock of Xxxx."
(i) The Loan Agreement is hereby further amended by
deleting Sections 9.1(xiv) and 9.1(xv) in their entireties and by
substituting in lieu thereof, the following new Sections 9.1(xiv) and
9.1(xv):
"(xiv) the aggregate value of all of J. Xxxx
Xxxxxxxx'x unpledged and non-affiliated Marketable
Securities shall be less than $35,000,000; or
(xv) the aggregate value of J. Xxxx Xxxxxxxx'x
unpledged and non-affiliated Marketable Securities
which constitute capital stock of Wachovia Bank shall
be less than $20,000,000."
2. NO OTHER AMENDMENTS. Except for the amendments expressly set
forth and referred to in Section 1 above, the Loan Agreement shall remain
unchanged and in full force and effect. Nothing in this Amendment or any of the
other Supplemental Credit Documents (as defined below) 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
Lender's security interests in, security titles to or other Liens on any
Collateral for the Obligations.
3. REPRESENTATIONS AND WARRANTIES. To induce Lender to enter into
this Amendment, the Borrower does hereby warrant, represent and covenant to
Lender that: (a) each representation or warranty of the Borrower set forth in
the Loan Agreement is hereby restated and reaffirmed as true and correct on and
as of the date hereof as if such representation or warranty were made on and as
of the date hereof (except to the extent that any such representation or
warranty expressly relates to a prior specific date or period), and no Default
or Event of Default has occurred and is continuing as of this date under the
Loan Agreement as amended by this Amendment; and (b) each of the Borrower, the
Guarantor and the Partnership has the power and is duly authorized to enter
into, deliver and perform the Supplemental Credit Documents to which it is a
party, and each of the Supplemental Credit Documents is the legal, valid and
binding obligation of each Credit Party enforceable against such Credit Party in
accordance with its terms.
4. REIMBURSEMENT OF COSTS AND EXPENSES. The Borrower hereby
agrees to reimburse Lender on demand for all costs (including reasonable
attorneys' fees) incurred by Lender in negotiating, documenting and consummating
this Amendment, the other documents referred to herein, and the transactions
contemplated hereby and thereby.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT. The
effectiveness of this Amendment and the amendments provided in Section 1 above
are subject to the truth and accuracy in all material respects of the
representations and warranties of the Borrower contained in Section 3 above and
to the fulfillment of the following additional conditions precedent (all
documents described below shall be in form and substance satisfactory to Lender,
and are herein collectively called the "Supplemental Credit Documents"):
4
6
(a) Lender shall have received one or more duly executed
counterparts of this Amendment, a Third Term Loan Note, the First
Amendment of Borrower Pledge Agreement, the First Amendment of
Subsidiary Stock Pledge Agreement, the First Amendment of Purpose
Credit Subsidiary Stock Pledge Agreement and the First Amendment of
Option Agreement;
(b) Lender shall have received stock certificates
evidencing all Total Sports Shares, together with undated blank stock
transfer powers for the same duly executed by the appropriate Credit
Parties;
(c) Lender shall have received a duly executed Datasouth
Reaffirmation and Consent to First Amendment of Loan Agreement from
Datasouth, a duly executed Purchaser Reaffirmation and Consent to First
Amendment of Loan Agreement from the Purchaser and a duly executed
Partnership Reaffirmation and Consent to First Amendment of Loan
Agreement from the Partnership; and
(d) Lender shall have received a duly executed and
completed Federal Reserve Form U-1 relating to the Third Term Loan.
6. REFERENCE TO AND EFFECT ON THE CREDIT DOCUMENTS. Upon the
effectiveness of this Amendment, each reference in the Loan Agreement to "this
Agreement," "hereunder," "hereof" or words of like import referring to the Loan
Agreement, and each reference in the other Credit Documents to "the Loan
Agreement," "thereunder," "thereof" or words of like import referring to the
Loan Agreement, shall mean and be a reference to the Loan Agreement as amended
hereby.
7. 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.
8. 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.
5
7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year specified at the beginning
hereof.
BORROWER:
BULL RUN CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
Name: Xxxxxxxxx X. Xxxxxxxx
Title: VP-Finance
LENDER:
NATIONSBANK, N.A.
By: /s/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
