EXHIBIT 10.2
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made as of this 8th day of February, 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"), 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 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 informed the Administrative Agent that the
Borrowers will fail to meet the minimum Adjusted EBITDA as required by Section
7.9 of the Credit Agreement, for the period ending December 31, 2001, resulting
in an Event of Default under Section 8.1(c) of the Credit Agreement (the
"Minimum Adjusted EBITDA Default"); and
WHEREAS, the Borrowers have requested that the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent waive the Minimum
Adjusted EBITDA Default and forebear from exercising their rights and remedies
arising under the Credit Agreement and the other Loan Documents as a result of
the Minimum Adjusted EBITDA Default, and subject to the terms and conditions set
forth herein; and
WHEREAS, the Borrowers have further requested that the Lenders, the
Issuing Banks, the Syndication Agent and the Administrative Agent consent to
certain 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:
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1. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) Article 1 of the Credit Agreement, Definitions, is hereby 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 February 22, 2002, or such earlier
date as payment of the Loans shall be due (whether by acceleration or
otherwise) in accordance with the terms hereof."
(b) Article 1 of the Credit Agreement, Definitions, is hereby modified and
amended by deleting the definition of "Revolving Loan Commitment" in its
entirety and by substituting the following in lieu thereof:
"`Revolving Loan Commitment' shall mean the several
obligations of the Lenders to advance to the Borrowers the amounts set
forth below during the applicable periods set forth below, on and after
the Agreement Date, in accordance with their respective Revolving
Commitment Ratios, pursuant to the terms hereof, and as such amounts
may be reduced from time to time, pursuant to the terms hereof:
Applicable Period During Each Year Revolving Loan Commitment
---------------------------------- -------------------------
Agreement Date through August 31, 2001 $15,000,000
September 1, 2001 through November 30, 2001 $25,000,000
December 1, 2001 through January 31, 2002 $22,500,000
February 1, 2002 through February 7, 2002 $20,000,000
February 8, 2002 through the Maturity Date $15,500,000
Each reference to the `Revolving Loan Commitment' contained in this
Agreement shall be deemed to refer to the Revolving Loan Commitment
then in effect."
(c) Subsection 4.1(p) of the Credit Agreement, Compliance with Law; Absence of
Default, is hereby modified and amended by deleting subsection 4.1(p) in its
entirety and by substituting the following in lieu thereof:
"(p) Compliance with Law; Absence of Default. Each of the
Borrowers and each of their respective Subsidiaries is in material
compliance with all Applicable Laws and with all of the provisions of
its certificate of incorporation and by-laws, and no event has occurred
or has failed to occur which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes (i) a Default or (ii)
or a default by any Borrower under any indenture, material agreement,
or other material instrument, or any judgment, decree, or order to
which any Borrower or any Subsidiary of any Borrower is a party or by
which any Borrower or any Subsidiary of any Borrower or any of their
respective properties may be bound. Each of the Borrowers and each of
their respective Subsidiaries are in compliance in all material
respects with all applicable federal, state and local laws, rules, and
regulations."
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(d) Section 6.7 of the Credit Agreement, Notice of Litigation and Other Matters,
is hereby modified and amended by deleting subsection (g) in its entirety and by
substituting the following in lieu thereof:
"(g) Promptly following, but in no event later than two (2)
Business Days after, any (i) Default under any Loan Document, or (ii)
default under any other agreement (other than those referenced in
Section 6.7(b) or clause (i) of this Section 6.7(g) above) to which any
Borrower or any Subsidiary of any Borrower is a party or by which any
of their respective properties is bound which could reasonably be
expected to have a Materially Adverse Effect, then the Borrowers shall
notify the Administrative Agent and the Lenders of the occurrence
thereof giving in each case the details thereof and specifying the
action proposed to be taken with respect thereto."
(e) Section 8.1 of the Credit Agreement, Events of Default, is hereby modified
and amended by deleting subsection (k) therefrom and by substituting the
following in lieu thereof:
"(k) There shall occur (x) any default (after the expiration
of any applicable cure period) under any indenture, agreement, or
instrument evidencing Indebtedness of any of the Borrowers or any of
their respective Subsidiaries in an aggregate principal amount
exceeding $200,000 or (y) a cancellation of or default (after the
expiration of any applicable cure period) under the NCAA Contract; or"
2. WAIVER. The Lenders, the Issuing Banks, the Syndication Agent and
the Administrative Agent hereby waive the Minimum Adjusted EBITDA Default
existing as of December 31, 2001, which shall be reflected in the financial
statements for such quarter then ended to be delivered under Section 6.2 of the
Credit Agreement on or before February 14, 2002. Such waiver shall be effective
from and after December 31, 2001. The waiver contained in the foregoing sentence
shall not waive any other requirement or hinder, restrict or otherwise modify
the rights and remedies of the Lenders, the Issuing Banks, the Syndication Agent
and the Administrative Agent following the occurrence of any other present or
future Default or Event of Default (whether or not related to any Default or
Event of Default described in this Section 2) under the Credit Agreement or any
other Loan Document.
3. NO OTHER AMENDMENTS OR WAIVERS. Except for the amendments, waivers
and releases expressly set forth and referred to above, the text of the Credit
Agreement and the other Loan Documents shall remain unchanged and in full force
and effect, and the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent hereby reserve the right to require strict compliance with
the terms and conditions of the Credit Agreement and the other Loan Documents in
the future.
4. AMENDMENT FEE. The Borrowers hereby, jointly and severally, agree to
pay, upon the date hereof, to each Lender an amendment fee (the "Amendment Fee")
in the amount of 5 basis points on the aggregate amount of such Lender's
Revolving Commitment and Term Loans outstanding as of the date hereof after
giving effect to this Amendment and to any principal payments made on the Term
Loans on or prior to the date hereof. The Amendment Fee shall be fully earned
when due and non-refundable when paid.
5. 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
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on and as of the date of this Amendment, and after giving effect to this
Amendment, as if such representation or warranty were made on and as of the date
of, and after giving effect to, this Amendment (except to the extent that any
such representation or warranty expressly relates to a prior specific date or
period); (b) such Borrower has the corporate power and authority to (i) enter
into this Amendment and (ii) do all acts and things as are required or
contemplated hereunder to be done, observed and performed by such Borrower; (c)
this Amendment has been duly authorized, validly executed and delivered by such
Borrower, and constitutes the legal, valid and binding obligation of such
Borrower, enforceable against it in accordance with its terms; (d) the execution
and delivery of this Amendment and performance by such Borrower under the Credit
Agreement, does not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction
over such Borrower which has not already been obtained, nor contravene or
conflict with the charter documents of such Borrower, or the provision of any
statute, judgment, order, indenture, instrument, agreement or undertaking, to
which such Borrower is a party or by which any of its properties are or may
become bound; and (e) as of the date hereof and after giving effect to the
amendments, consents and waivers contained in this Amendment, no Default or
Event of Default under the Credit Agreement has occurred and is continuing. The
Borrowers, the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent hereby ratify and affirm all of the terms and conditions of
the Credit Agreement and the Loan Documents applicable to each of them,
including, without limitation, the Borrowers' joint and several liability for
the Obligations. The parties hereto have not entered into a mutual disregard of
the terms and provisions of the Credit Agreement or the other Loan Documents, or
engaged in any course of dealing in variance with the terms and provisions of
the Credit Agreement or the other Loan Documents, within the meaning of any
applicable law of the State of Georgia or otherwise.
6. 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.
7. 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 5 above, (b) the receipt by the Lenders of the Amendment Fee and (c) 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.
8. 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.
9. 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.
10. 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
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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.
11. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year specified at the beginning
hereof.
BORROWERS: BR HOLDING, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President - Finance
CAPITAL SPORTS PROPERTIES, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
HOST COMMUNICATIONS, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
DATASOUTH COMPUTER CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Executive VP - Finance & Admin
PARENT: BULL RUN CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President - Finance
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ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ XXXX XXXXXXXXXX JR.
----------------------------------
Name: Xxxx Xxxxxxxxxx Jr.
Title: Assistant Vice President
SYNDICATION AGENT: FIRST UNION NATIONAL BANK
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
ISSUING BANKS: BANK OF AMERICA, N.A.
By: /s/ XXXX XXXXXXXXXX JR.
----------------------------------
Name: Xxxx Xxxxxxxxxx Jr.
Title: Assistant Vice President
BANK ONE, KENTUCKY, NA
By: /s/ XXXX XXXXXX
----------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
LENDERS: BANK OF AMERICA, N.A.
By: /s/ XXXX XXXXXXXXXX JR.
----------------------------------
Name: Xxxx Xxxxxxxxxx Jr.
Title: Assistant Vice President
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BANK ONE, KENTUCKY, NA
By: /s/ XXXX XXXXXX
----------------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
WACHOVIA BANK, N.A.
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
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