EXHIBIT 10.6
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AS OF OCTOBER 5, 2001
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is made as of this 5th day of October, 2001, by and among BR
HOLDING, INC., a Georgia corporation ("BR Holding"), 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 BR Holding, Capital and Host, the "Borrowers"),
as Borrowers, BULL RUN CORPORATION, a Georgia corporation (the "Parent"), as a
Guarantor, THE LENDERS SIGNATORY HERETO (collectively, the "Lenders"), BANK OF
AMERICA, N.A. and BANK ONE, KENTUCKY, NA, as Issuing Banks (collectively, the
"Issuing Banks"), FIRST UNION NATIONAL BANK, as Syndication Agent for the
Issuing Banks and the Lenders (the "Syndication Agent"), and BANK OF AMERICA,
N.A., as Administrative Agent for the Issuing Banks and the Lenders (the
"Administrative Agent").
RECITALS
WHEREAS, the Borrowers, the Parent, the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent are parties to that
certain Amended and Restated Credit Agreement dated as of July 27, 2001 (as
amended, 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 have breached certain representations, warranties and
covenants required by the Credit Agreement as a result of the restatement of the
Borrowers' financial statements for the period from December 31, 1996 through
and including July 31, 2001 due to errors in the Parent's consolidated financial
statements resulting in an overstatement of the Parent and its Subsidiaries
consolidated investment in Xxxx Communications Systems, Inc. and stockholders
equity, and understatement of the deferred income tax net asset (the "Financial
Statement Defaults"); and
WHEREAS, the Borrowers have failed to deliver to the
Administrative Agent and the Lenders on or before September 30, 2001, the
monthly financial statements of the Borrowers for the month ending August 31,
2001, as required by Section 6.1 of the Credit Agreement, resulting in an Event
of Default under Section 8.1(c) of the Credit Agreement (the "Monthly Financial
Reporting Default"); and
WHEREAS, the Borrowers have failed to deliver to the
Administrative Agent and the Lenders on or before September 30, 2001, the annual
financial statements of the Borrowers for the fiscal year ending June 30, 2001,
as required by Section 6.3 of the Credit Agreement, resulting in an Event of
Default under Section 8.1(c) of the Credit Agreement (the "Annual Financial
Reporting Default"); and
WHEREAS, the Borrowers have failed to deliver to the
Administrative Agent and the Lenders on or before September 30, 2001, the
performance certificate in conjunction with the June 30, 2001 financial
statements as required by Section 6.4 of the Credit Agreement, resulting in an
Event of Default under Section 8.1(c) of the Credit Agreement (the "Performance
Certificate Default"); and
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WHEREAS, the Borrowers have requested that the Lenders, the
Issuing Banks, the Syndication Agent and the Administrative Agent waive the
Financial Statement Defaults, the Monthly Financial Reporting Default, the
Annual Financial Reporting Default and the Performance Certificate Default
(collectively, the "Specified Events of Default") and forebear from exercising
their rights and remedies arising under the Credit Agreement and the other Loan
Documents as a result of such Specified Events of Default, and subject to the
terms and conditions set forth herein, the Lenders, the Issuing Banks, the
Syndication Agent and the Administrative Agent have agreed to grant such waiver
effective through and including October 15, 2001; 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:
1. AMENDMENT TO SECTION 7.10. Section 7.10 of the Credit Agreement,
Minimum Net Worth, is hereby modified and amended effective July 27, 2001 by
deleting the reference to "$53,000,000" and by substituting "$40,000,000" in
lieu thereof.
2. CONSENT. Notwithstanding anything to the contrary contained in the
Credit Agreement or any other Loan Document, the Lenders hereby consent to the
making of those Advances identified in the table set forth below, which Advances
were made based on the estimate of the Borrowing Base as of August 31, 2001,
provided to the Administrative Agent and the Lenders by the Borrowers in a
Borrowing Base Certificate dated September 4, 2001:
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AMOUNT OF ADVANCE DATE OF ADVANCE
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$850,000.00 September 4, 2001
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$2,000,000.00 September 12, 2001
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$1,000,000.00 September 14, 2001
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3. WAIVER. The Lenders, the Issuing Banks, the Syndication Agent and
the Administrative Agent hereby waive (a) the Specified Events of Default and
(b) their rights and remedies under the Credit Agreement and the other Loan
Documents which may arise as a result of the Specified Events of Default, during
the period from September 30, 2001 through and including October 15, 2001, and
in the event that the Borrowers shall deliver the monthly financial statements
of the Borrowers for the month ending August 31, 2001, the annual financial
statements of the Borrowers for the fiscal year ending June 30, 2001,
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and the performance certificate in conjunction with the June 30, 2001 financial
statements as required by Section 6.4 of the Credit Agreement on or before
October 15, 2001, the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent hereby agree that no Events of Default shall then exist in
respect of the Specified Events of Default and the Lenders, the Issuing Banks,
the Syndication Agent and the Administrative Agent shall be deemed to have
waived all of their rights and remedies under the Credit Agreement and the other
Loan Documents with respect to such Specified Events of Default from and after
October 15, 2001. The waivers contained in the foregoing sentence shall not
waive any other requirement or hinder, restrict or otherwise modify the rights
and remedies of the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent following the occurrence of any other present or future
Default or Event of Default (including, without limitation, any Specified Event
of Default continuing after the waiver period set forth above) under the Credit
Agreement or any other Loan Document.
4. ACKNOWLEDGEMENT. The Lenders, the Issuing Banks, the Syndication
Agent and the Administrative Agent hereby acknowledge and agree that the terms
and conditions of Section 6.6(d) of the Credit Agreement requiring the delivery
of an annual operating plan for the Borrowers and their Subsidiaries have been
met with respect to the current fiscal year of the Borrowers by the delivery of
that certain financial information, including a quarterly financial forecast for
the Parent and its Subsidiaries on a consolidated basis and an annual budget for
Host and its Subsidiaries, relating to the Borrowers and their Subsidiaries
which was provided to the Administrative Agent and the Lenders in connection
with the negotiation, execution and delivery of the Credit Agreement.
5. NO OTHER AMENDMENTS, CONSENTS OR WAIVERS. Except for the amendments,
consents and waivers 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.
6. REPRESENTATIONS AND WARRANTIES. To induce the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent to enter into this
Amendment, each of the Borrowers hereby warrants, represents and covenants to
the Lenders, the Issuing Banks, the Syndication Agent and the Administrative
Agent that: (a) each representation or warranty of the Borrowers set forth in
the Credit Agreement is hereby restated and reaffirmed as true and correct on
and as of the date of this Amendment, and after giving effect to this Amendment,
as if such representation or warranty were made on and as of the date of, and
after giving effect to, this Amendment (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period); (b) such Borrower has the corporate power and authority to (i) enter
into this Amendment and (ii) do all acts and things as are required or
contemplated hereunder to be done, observed and performed by such Borrower; (c)
this Amendment has been duly authorized, validly executed and delivered by such
Borrower, and constitutes the legal, valid and binding obligation of such
Borrower, enforceable against it in accordance with its terms; (d) the execution
and delivery of this Amendment and performance by such Borrower under the Credit
Agreement, does not and will not require the consent or approval of any
regulatory authority or governmental
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authority or agency having jurisdiction over such Borrower which has not already
been obtained, nor contravene or conflict with the charter documents of such
Borrower, or the provision of any statute, judgment, order, indenture,
instrument, agreement or undertaking, to which such Borrower is a party or by
which any of its properties are or may become bound; and (e) as of the date
hereof and after giving effect to the amendments, consents and waivers contained
in this Amendment, no Default or Event of Default under the Credit Agreement has
occurred and is continuing. The Borrowers, the Lenders, the Issuing Banks, the
Syndication Agent and the Administrative Agent hereby ratify and affirm all of
the terms and conditions of the Credit Agreement and the Loan Documents
applicable to each of them, including, without limitation, the Borrowers' joint
and several liability for the Obligations. The parties hereto have not entered
into a mutual disregard of the terms and provisions of the Credit Agreement or
the other Loan Documents, or engaged in any course of dealing in variance with
the terms and provisions of the Credit Agreement or the other Loan Documents,
within the meaning of any applicable law of the State of Georgia or otherwise.
7. REIMBURSEMENT OF COSTS AND EXPENSES. The Borrowers hereby jointly
and severally agree to reimburse the Lenders, the Issuing Banks, the Syndication
Agent and the Administrative Agent on demand for all costs (including, without
limitation, reasonable attorneys' fees) incurred by such parties in negotiating,
documenting and consummating this Amendment, the other documents referred to
herein, and the transactions contemplated hereby and thereby.
8. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall be effective as of the date first written above (the "Effective
Date") upon the Administrative Agent's receipt of one or more duly executed
counterparts of this Amendment signed by the Borrowers, the Parent and each of
the Lenders, and upon the occurrence of each of the following terms and
conditions:
(a) The effectiveness of this Amendment is subject to the truth and
accuracy in all respects of the representations and warranties of the Borrowers
contained in Section 6 above.
(b) No Default or Event of Default shall have occurred and be
continuing which is not waived hereby.
(c) The Administrative Agent shall have received such other
information, documents, instruments or approvals as the Administrative Agent or
its counsel may require.
9. RELEASE. Each of the Parent and the Borrowers hereby waives and
releases each of the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent from any and all claims and defenses with respect to the
Credit Agreement, the Notes and any and all documents, instruments,
certificates, notes, bonds, or other agreements executed in connection
therewith, except in the case of willful misconduct or gross negligence on the
part of such Person.
10. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to "the Credit
Agreement," "thereunder," "thereof" or words of like import referring to the
Credit
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Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby. This Amendment shall be deemed to be a Loan Document for all purposes.
11. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
12. GOVERNING LAW. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of Georgia applicable to
contracts made and performed in such state.
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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
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Title: Vice President - Finance
-----------------------------
CAPITAL SPORTS PROPERTIES,
INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
------------------------------
Title: Vice President
-----------------------------
HOST COMMUNICATIONS, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
------------------------------
Title: Vice President
-----------------------------
DATASOUTH COMPUTER
CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
------------------------------
Title: Executive VP-Finance & Admin.
-----------------------------
GUARANTOR: BULL RUN CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
------------------------------
Title: Vice President - Finance
-----------------------------
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ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
SYNDICATION AGENT: FIRST UNION NATIONAL BANK
By: /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------
Title: Vice President
------------------------------
ISSUING BANKS: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
BANK ONE, KENTUCKY, NA
By: /s/ XXXX XXXXXX
---------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: First Vice President
------------------------------
LENDERS: BANK OF AMERICA, N.A.
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
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BANK ONE, KENTUCKY, NA
By: /s/ XXXX XXXXXX
---------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: First Vice President
------------------------------
WACHOVIA BANK, N.A.
By: /s/ XXXXXXX X. XXXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
FIRST UNION NATIONAL BANK
By: /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------
Title: Vice President
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