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SECOND AMENDMENT OF AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDMENT is made as of this 22nd day of March, 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 (as amended, supplemented or
otherwise modified from time to time, 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 "Fourth Term Loan") to finance the acquisition of
additional shares of common stock of Rawlings, a Delaware corporation
("Rawlings"), and Lender and Borrower desire to modify the Loan Agreement in
order to provide for the Fourth 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 Amendment which are set forth
below, the Loan Agreement shall be amended as follows:
(a) Section 1.1 of the Loan Agreement is hereby amended by
adding to Section 1.1 the following new definitions in the appropriate
alphabetical order:
"Borrower Guaranty" shall mean any guaranty of any
obligation of Datasouth or any other Subsidiary of Borrower
executed by Borrower in favor of Lender.
"Fourth Term Loan" shall mean any and all advances
made by Lender to Borrower under the Fourth Term Loan
Facility.
"Fourth Term Loan Facility" shall mean the term loan
facility provided by Lender to Borrower under Section 3.2B
hereof.
"Fourth Term Loan Facility Expiration Date" shall
mean April 30, 1999 (as such date may be extended,
accelerated or amended from time to time pursuant to this
Agreement).
"Fourth Term Loan Maturity Date" shall mean August
23, 1999.
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"Fourth Term Loan Maximum Availability" shall mean
$675,754.
"Fourth Term Loan Note" shall mean the Fourth Term
Loan Note executed by the Borrower and payable to the order
of the Lender as evidence of the Fourth Term Loan, and any
extension, renewal, modification or replacement thereof or
therefor.
"Fourth 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 Fourth
Term Loans or the Fourth Term Loan Notes.
"Second Amendment" shall mean that certain Second
Amendment of Loan Agreement dated as of March 22, 1999, by
and between Borrower and Lender.
(b) Section 1.1 of the Loan Agreement is hereby further
amended by deleting from Section 1.1 the terms "Obligations," "Term
Loan Facilities," "Term Loan Notes," "Term Loans" and "Third Term Loan
Facility Expiration Date" and by substituting in lieu thereof the
following new definitions of such terms:
"Obligations" shall mean, collectively, all amounts
now or hereafter owing to Lender by Borrower pursuant to the
terms of or as a result of this Agreement, any other Credit
Document or any Borrower Guaranty, including without
limitation, the unpaid principal balance of any and all Loans
and all interest, fees, expenses and other charges relating
thereto or accruing thereon, as well as any and all other
indebtedness, liabilities, and obligations of Borrower,
whether direct or indirect, absolute or contingent, or
liquidated or unliquidated, which may be now existing or may
hereafter arise under or as a result of any Borrower Guaranty
or any of the Credit Documents (including, without
limitation, obligations of Borrower under Interest Rate
Contracts with Lender), and together with any and all
renewals, extensions, modifications or refinancings of any of
the foregoing.
"Term Loan Facilities" shall mean, collectively, the
First Term Loan Facility, the Second Term Loan Facility, the
Third Term Loan Facility and the Fourth Term Loan Facility.
"Term Loan Notes" shall mean, collectively, the
First Term Loan Note, the Second Term Loan Note, the Third
Term Loan Note and the Fourth Term Loan Note.
"Term Loans" shall mean, collectively, the First
Term Loan, the Second Term Loan, the Third Term Loan and the
Fourth Term Loan.
"Third Term Loan Facility Expiration Date" shall mean
March 23, 1999.
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(c) The Loan Agreement is hereby further amended by adding
the following new Section 3.2B after the existing Section 3.2A and
before the existing Section 3.3:
"Section 3.2B. Fourth 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 Fourth Term Loan Facility Expiration Date and upon the
Borrower's request therefor, a Fourth Term Loan in the
principal amount of the Fourth Term Loan Maximum
Availability. The Fourth Term Loan Facility may be disbursed
in one or more advances but the Lender's commitment under the
Fourth Term Loan Facility shall be reduced by each advance
thereunder and any sums advanced under the Fourth Term Loan
Facility may not be repaid and then re-borrowed thereunder.
(b) The proceeds of the Fourth Term Loan shall be
used to purchase shares of common stock of Rawlings."
(d) The Loan Agreement is hereby further amended by adding a
new Section 3.4(b-2) immediately following the existing Section
3.4(b-1):
"(b-2) The Borrower's obligation to pay the Lender
the principal of and interest on the Fourth Term
Loan shall be evidenced by the records of the Lender
(subject to Section 4.5 hereof) and by the Fourth
Term Loan Note. The principal balance of the Fourth
Term Loan shall be payable on the Fourth Term Loan
Maturity Date in an amount equal to the entire
remaining unpaid balance of the Fourth Term Loan."
(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 and the Fourth Term Loan (or any portion of any Term
Loan (other than the Third Term Loan and the Fourth 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
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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
Sections 4.4(a) and 4.4(b) in their entireties and by substituting in
lieu thereof the following new Sections 4.4(a) and 4.4(b):
"(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 shares of 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
the Fourth Term Loan Obligations), and (D) the Total
Sports Shares (other than 351,815 shares of Series C
Convertible Preferred Stock of Total Sports which
secure the Second Term Loan Obligations and the
Fourth Term Loan Obligations), 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.
(b) The Second Term Loan Obligations and the Fourth
Term Loan Obligations shall be secured by (i)
Datasouth's first-priority and perfected pledge to
the Lender 1,366,941 shares of Class A Common Stock
of Xxxx and 11,750 shares of Class B Common Stock of
Xxxx pursuant to the Purpose Credit Subsidiary
Pledge Agreement and (ii) the Borrower's
first-priority and perfected pledge to the Lender of
1,000 shares of Series A Preferred Stock of Xxxx,
175 shares of Series B Preferred Stock of Xxxx, the
Warrants, the Rawlings Warrant, the Rawlings Shares,
4,682 shares of common stock of Host Communications
and 351,815 shares of Series C Convertible Preferred
Stock of Total Sports, all pursuant to the Purpose
Credit Borrower Pledge Agreement."
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
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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, Datasouth,
the Partnership and the Purchaser 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"):
(a) Lender shall have received one or more duly executed
counterparts of this Amendment, a Fourth Term Loan Note, the Second
Amendment of Borrower Pledge Agreement, the First Amendment of Purpose
Credit Borrower Stock Pledge Agreement, the Second Amendment of
Subsidiary Stock Pledge Agreement, and the Second Amendment of Purpose
Credit Subsidiary Stock Pledge Agreement;
(b) Lender shall have received stock certificates evidencing
all Rawlings Shares purchased with the proceeds of the Fourth Term
Loan, 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 Second Amendment of Loan Agreement from
Datasouth and a duly executed Partnership Reaffirmation and Consent to
Second 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 Second Term Loan and Fourth
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,"
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"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.
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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.
BORROWER:
BULL RUN CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
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Name: Xxxxxxxxx X. Xxxxxxxx
Title: VP-Finance
LENDER:
NATIONSBANK, N.A.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
