EXHIBIT 10
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is made as of the 18th day of August, 2003, 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"),
BULL RUN CORPORATION (the "Parent" and as a Guarantor), J. Xxxx Xxxxxxxx, a
Georgia resident, and Hoop-It-Up International, Inc., a Delaware corporation, as
guarantors (collectively, the "Guarantors"), X. Xxxxx Host, a Florida resident,
and The Xxxxxxxx-Xxxxxxx Partnership, a Georgia general partnership, as pledgors
(the "Pledgors"), the LENDERS party hereto (the "Lenders"), WACHOVIA BANK,
NATIONAL ASSOCIATION (an "Issuing Bank"), and WACHOVIA BANK, NATIONAL
ASSOCIATION (the "Administrative Agent").
R E C I T A L S:
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The Borrowers, the Parent, the Administrative Agent, the Issuing Bank
and the Lenders have entered into that certain Second Amended and Restated
Credit Agreement dated as of October 11, 2002 (the "Credit Agreement").
Capitalized terms used in this Amendment which are not otherwise defined in this
Amendment shall have the respective meanings assigned to them in the Credit
Agreement.
The Borrowers have requested the Administrative Agent, the Issuing Bank
and the Lenders to amend the Credit Agreement to extend the Maturity Date, to
permit the sale of certain Collateral, to set forth the allocation of the
proceeds of such Collateral to be sold and to make certain other changes to the
Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the Recitals and the mutual
promises contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties hereto intending to be legally bound hereby, agree as
follows:
SECTION 1. Recitals. The Recitals are incorporated herein by reference
and shall be deemed to be a part of this Amendment.
SECTION 2. Amendments. The Credit Agreement is hereby amended as set
forth in this Section 2.
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SECTION 2.1. Amendments to Definitions. The definitions set forth in
Section 1.01 of the Credit Agreement are hereby amended as follows:
Section 2.1.1. There shall be added a new definition of
"Additional Investments" which shall read in its entirety as follows:
"Additional Investments" shall mean the aggregate
amount of Investments made by Xxxxxxxx in the Parent to the extent that
the Parent contributes such Investments to the Borrowers.
Section 2.1.2. There shall be added a new definition of "First
Amendment Date" which shall read in its entirety as follows:
"First Amendment Date" shall mean August 18, 2003.
Section 2.1.3. The definition of "Maturity Date" shall be
amended and restated in its entirety to read as follows:
"Maturity Date" shall mean November 30, 2004, or such
earlier date as payment of the Loans shall be due (whether by
acceleration or otherwise) in accordance with the terms hereof.
Section 2.1.4. The definition of "Overadvance Amount" is
hereby deleted in its entirety.
Section 2.1.5. There shall be added a new definition of
"Requisite Lenders" which shall read in its entirety as follows:
"Requisite Lenders" shall mean Lenders the sum of
whose outstanding Term Loans and Revolving Loan Commitment, determined
in accordance with their respective Revolving Commitment Ratios (or
after termination of the Revolving Loan Commitment, the Aggregate
Revolving Credit Obligations for each Lender, determined in accordance
with their respective Revolving Commitment Ratios immediately prior to
any such termination of the Revolving Loan Commitment) (with such sum
for each Lender to be hereinafter referred to as such Lender's "Total
Exposure"), exceed 66-2/3% of the sum of (i) all outstanding Term Loans
and (ii) the Revolving Loan Commitment (or after the termination
thereof, the Aggregate Revolving Credit Obligations) (with such sum to
be hereinafter referred to as the "Total Obligations"); provided that
at any time any one (1) Lender has a Total Exposure exceeding 33-1/3%
of the Total Obligations, "Requisite Lenders" shall mean the difference
of (x) the total number of Lenders party to this Agreement at such time
less (y) one.
SECTION 2.2. Amendment to Article 2. Section 2.4 of the Credit
Agreement is hereby amended by deleting paragraph (d) thereof in its entirety.
SECTION 2.3. Amendments to Article 5. Article 5 is hereby amended as
follows:
Section 2.3.1. Section 5.22 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
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Section 5.22 E&Y Litigation. (a) In the event that
the Parent receives any proceeds in connection with the E&Y Litigation,
the Parent shall immediately contribute such proceeds to Bull Run for
prepayment of the Loans, and Bull Run shall use such proceeds (less any
related reasonable fees and expenses in connection therewith) to make
such prepayment, pursuant to Section 2.6(d)(iv) hereof; it being
acknowledged and agreed by the Administrative Agent and the Lenders
that the E&Y Litigation is based upon a contingency fee arrangement
with counsel to the Parent, and that such fee arrangement is reasonable
for purposes of this clause (a).
(b) On or before the fifteenth (15th) Business Day
following the First Amendment Date, the Parent shall grant to the
Administrative Agent, for the benefit of the Lenders and the Issuing
Bank, a perfected first-priority security interest in the proceeds of
the E&Y Litigation, pursuant to documents (including, without
limitation, UCC Financing Statement filings) satisfactory to the
Administrative Agent, all at the sole cost and expense of the
Borrowers; provided that Parent shall at all times maintain sole
control and exclusive right to negotiate and settle the E&Y Litigation.
Section 2.3.2. There is hereby added to Article 5 new Sections
5.23 and 5.24, which shall read in their entirety as follows:
Section 5.23 Summit Subordinated Notes. On or before
December 31, 2003, the Parent shall cause the maturity date of the
Summit Subordinated Notes to be extended to a date not less than 30
days following the Maturity Date.
Section 5.24 Conversion of Subordinated Debt. On or
before October 31, 2003, the Parent shall cause at least $5,000,000 of
the principal amount of the Subordinated Debt to be converted to shares
of preferred stock or other equity interests in the Parent on terms and
conditions reasonably acceptable to the Administrative Agent.
SECTION 2.4. Amendments to Article 6. Article 6 is hereby amended as
follows:
Section 2.4.1 Paragraphs (a) and (b) of Section 6.6 of the
Credit Agreement are hereby amended and restated in their entirety to read as
follows:
(a) On or before the twenty-fifth (25th) day of each month,
or, if such day is not a Business Day, the next succeeding Business
Day, the Parent shall deliver to the Administrative Agent and the
Lenders a cash flow projection report for the three month period
immediately following the month just ended, showing projections of cash
flow of the Parent and the Parent's Subsidiaries for such three month
period, in such form as shall be reasonably acceptable to the
Administrative Agent.
(b) On or before the twenty-fifth (25th) day of each month,
or, if such day is not a Business Day, the next succeeding Business
Day, Host shall deliver to
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the Administrative Agent and the Lenders the sales pacing report for
the current month, in such form as shall be reasonably acceptable to
the Administrative Agent.
Section 2.4.2. There is hereby added to Article 6 a new
Section 6.8 which shall read in its entirety as follows:
Section 6.8 Xxxxxxxx Financials. On or before the 15th
Business Day following the First Amendment Date, current personal
financial statements for Xxxxxxxx.
SECTION 2.5. Amendments to Article 7. Article 7 is hereby amended as
follows:
Section 2.5.1. Paragraph (b)(iii) of Section 7.7 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(iii) each Borrower may sell or dispose of Collateral
for cash proceeds only, provided, that, solely in the case of this
clause (iii), (w) no Default exists, or would exist, after giving
effect to such sale or disposition, (x) such Borrower has provided the
Administrative Agent with a detailed proposal (a "Collateral
Disposition Proposal") for such sale or disposition in a form
satisfactory to the Administrative Agent, in its sole discretion,
including, without limitation, (1) identification of the Collateral to
be sold or disposed of, (2) the amount for which such Borrower is
selling or disposing such Collateral, such amount not to be less than
the fair market value of such Collateral, and the projected Net Cash
Proceeds therefrom, and (3) the purchaser of such Collateral, (y) the
Net Cash Proceeds of such Collateral sale or disposition are applied in
accordance with Section 2.6(d)(ii) hereof, and (z) such Borrower has
obtained the consent of (1) the Administrative Agent with respect to
any Collateral Disposition Proposal projected to generate Net Cash
Proceeds not to exceed $6,000,000 and any Collateral Disposition
Proposal projected to generate Net Cash Proceeds in an aggregate
amount, which when taken together with the Net Cash Proceeds of all
previous sales or dispositions since the First Amendment Date pursuant
to this clause (iii), not to exceed $15,000,000, and (2) the
Administrative Agent and the Lenders with respect to any Collateral
Disposition Proposal projected to generate Net Cash Proceeds exceeding
$6,000,000 and any Collateral Disposition Proposal projected to
generate Net Cash Proceeds in an aggregate amount, which when taken
together with the Net Cash Proceeds of all previous sales or
dispositions since the First Amendment Date pursuant to this clause
(iii), exceeding $15,000,000, in each case, such consent not to be
unreasonably withheld.
Section 2.5.2. Section 7.8 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
Section 7.8 Capital Expenditures. The Borrowers and
their Subsidiaries shall not make or incur in the aggregate any Capital
Expenditures, during the period from the First Amendment Date to the
Maturity Date, in excess of $600,000.
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Section 2.5.3. There is hereby added to Article 7 a new
Section 7.17, which shall read in its entirety as follows:
Section 7.17 Interest Coverage Ratio. The Borrower
shall not permit the ratio of the sum of (a) Adjusted EBITDA (excluding
from Adjusted EBITDA for purposes of this Section only any
extraordinary gains or losses) for the relevant Measurement Period (as
defined below), and (b) the aggregate Additional Investments made
during the relevant Measurement Period to Interest Expense for the
relevant Measurement Period to be less than the ratio indicated below
as of the fiscal quarter ending date set forth below:
FISCAL QUARTER ENDING DATE RATIO
-------------------------- -----
November 30, 2003 1.25 to 1.00
February 29, 2004 1.00 to 1.00
May 31, 2004 1.25 to 1.00
August 31, 2004 1.50 to 1.00
As used herein, "Measurement Period" shall mean, with respect to any
fiscal quarter ending date set forth above, that portion of the fiscal
year ended on such fiscal quarter ending date.
SECTION 2.6. Amendments to Article 8. Article 8 is hereby amended as
follows:
Section 2.6.1. Paragraph (c) of Section 8.1 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(c) The Parent, any Borrower or Xxxxxxxx shall default in the
performance or observance of any agreement or covenant in Section 5.1,
5.5, 5.7, 5.19, 5.22, 5.23 or 5.24, or in Article 6 or Article 7
hereof, in the Xxxxxxxx Guaranty or in any Security Document;
Section 2.6.2. Paragraph (a) of Section 8.2 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
With the exception of an Event of Default specified in Section 8.1(g)
or (h), the Administrative Agent, at the direction of the Requisite
Lenders, shall (i) terminate the Commitments and the Letter of Credit
Commitment, or (ii) declare the principal of and interest on the Loans
and the Notes and all other Obligations to be forthwith due and payable
without presentment, demand, protest, or notice of any kind, all of
which are hereby expressly waived, anything in this Agreement or in the
Notes to the contrary notwithstanding, or both.
Section 2.6.3. Paragraph (c) of Section 8.2 of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
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(c) The Administrative Agent, with the concurrence of the
Requisite Lenders, shall exercise all of the post-default rights
granted to it and to them under the Loan Documents or under Applicable
Law. The Administrative Agent, for the benefit of itself, the Issuing
Banks and the Lenders, shall have the right to the appointment of a
receiver for the Property of the Borrowers, and each of the Borrowers
hereby consents to such rights and such appointment and hereby waives
any objection such Borrower may have thereto or the right to have a
bond or other security posted by the Administrative Agent or the
Lenders in connection therewith.
SECTION 2.7. Amendments to Article 9. Article 9 is hereby amended as
follows:
Section 2.7.1. Paragraphs (a) and (b) of Section 9.7 of the
Credit Agreement are hereby amended and restated in their entirety to read as
follows:
(a) The Administrative Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, and with respect to taking or
refraining from taking any action or actions which it may be able to
take under or in respect of, this Agreement and the other Loan
Documents, unless the Administrative Agent shall have been instructed
by the Requisite Lenders to exercise or refrain from exercising such
rights or to take or refrain from taking such action. The
Administrative Agent shall incur no liability under or in respect of
this Agreement or the other Loan Documents with respect to anything
which it may do or refrain from doing in the reasonable exercise of its
judgment or which may seem to it to be necessary or desirable in the
circumstances.
(b) The Administrative Agent shall not be liable to the
Lenders or to any Lender in acting or refraining from acting under this
Agreement or the other Loan Documents in accordance with the
instructions of the Requisite Lenders, and any action taken or failure
to act pursuant to such instructions shall be binding on all Lenders,
unless this Agreement or the other Loan Documents specifically requires
the consent of all Lenders to such action or inaction.
Section 2.7.2. Section 9.8 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
Section 9.8 Notice of Default or Event of Default. In the
event that the Administrative Agent or any Lender shall acquire actual
knowledge, or shall have been notified in writing, of any Default or
Event of Default, the Administrative Agent or such Lender shall
promptly notify the Lenders and the Administrative Agent, and the
Administrative Agent shall take such action and assert such rights
under this Agreement and the other Loan Documents as the Requisite
Lenders shall request in writing, and the Administrative Agent shall
not be subject to any liability by reason of its acting pursuant to any
such request. If the Requisite Lenders shall fail to request the
Administrative Agent to take action or to assert rights under this
Agreement and the other Loan Documents in respect of any Default or
Event of Default within ten (10) days after their receipt of the notice
of any Default or Event of Default from the Administrative Agent, or
shall request inconsistent action with respect to such Default or Event
of Default, the Administrative Agent may, but shall not be required to,
take such action and assert such rights (other than rights under
Article 8 hereof) as it deems in its discretion to be advisable for the
protection of the
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Lenders, except that, if the Requisite Lenders have instructed the
Administrative Agent not to take such action or assert such right, in
no event shall the Administrative Agent act contrary to such
instructions.
SECTION 2.8. Amendments to Article 10. Article 10 is hereby amended as
follows:
Section 2.8.1. Section 10.5(b) of the Credit Agreement is hereby
amended by inserting a new clause (3) immediately following the existing clause
(2) (and renumbering the existing clause (3) to read "(4)"), with such new
clause (3) to read in its entirety as follows: "(3) the sale of an assignment or
participation to a Lender shall not be permitted if such sale shall result in
the purchasing Lender having a Total Exposure (as such term is defined in the
definition of "Requisite Lenders" in Section 1.01 of this Agreement) in excess
of 49% of the Total Obligations (as such term is defined in the definition of
"Requisite Lenders" in Section 1.01 of this Agreement),".
Section 2.8.2. The last sentence of Section 10.12(b) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
"The Administrative Agent (1) may assign its purchase rights hereunder to any
assignee if such assignment complies with the requirements of Section
10.5(b)(i), (ii), (vi), (vii) and (ix) and (2) will assign its purchase rights
hereunder to the extent necessary to comply with clause (3) of Section 10.5(b)."
SECTION 3. Conditions to Effectiveness. The effectiveness of this
Amendment is subject to satisfaction of the following conditions and the
provisions of Section 10:
(a) receipt by the Administrative Agent from each of the parties hereto
of a duly executed counterpart of this Amendment signed by such party;
(b) the fact that the representations and warranties of each of the
Borrowers contained in Article 4 of the Credit Agreement and Section 6 of this
Amendment shall be true on and as of the date hereof;
(c) receipt by the Administrative Agent from each of the parties
thereto of a duly executed counterpart of the First Amendment to Second Amended
and Restated Xxxxxxxx Pledge Agreement (the "Xxxxxxxx Pledge Amendment") in form
and substance satisfactory to the Administrative Agent;
(d) receipt by the Administrative Agent of legal opinions of Xxxxxx &
Bird LLP, counsel to the Guarantors, Bull Run, Capital and Datasouth, and
Xxxxxxxx & Shohl LLP, counsel to Host, each with respect to this Amendment in
form and substance satisfactory to the Administrative Agent;
(e) receipt by the Administrative Agent with respect to each Borrower
of (i) a true, correct and complete certified copy of the resolutions of such
Borrower authorizing the execution, delivery and performance by such Borrower of
this Amendment, (ii) a certificate of incumbency with respect to each officer
executing this Amendment on behalf of such Borrower, (iii) a certificate of good
standing from the Secretary of State for the jurisdiction of such Borrower's
incorporation, and (iv) a closing certificate executed by an Authorized
Signatory of such Borrower in form and substance satisfactory to the
Administrative Agent;
(f) receipt by the Administrative Agent of evidence satisfactory to it
that (i) 2,017,647 shares of the Class A Common Stock of Xxxx Television, Inc.
(the "Xxxx Class A Shares") and
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11,750 shares of the Common Stock of Xxxx Television, Inc. (the "Xxxx Common
Shares"; the Xxxx Class A Shares and the Xxxx Common Shares being hereinafter
referred to as the "Xxxx Shares") have been sold at a minimum price of $16.90
per share, generating at least $34,296,809 of proceeds (the "Xxxx Proceeds"),
(ii) the purchasers of the Xxxx Shares are duly authorized to purchase the Xxxx
Shares, and (iii) the Borrowers will not incur tax liability exceeding $250,000
in the aggregate in connection with such sale of the Xxxx Shares;
(g) receipt by the Administrative Agent of a certificate in the form
attached hereto as Exhibit A, executed by the Borrowers, certifying, among other
things, that, upon the effectiveness of this Amendment, the Borrowers and the
Lenders shall be in full compliance with Regulations T, U and X of the Board and
containing calculations showing that the sum of the aggregate principal amount
of the Loans plus the Letter of Credit Obligations will not exceed an amount
equal to the sum of (i) 100% of the then current fair market value of all
Collateral (other than Collateral constituting Margin Stock) plus (ii) 50% of
the then current market value of all Collateral constituting Margin Stock;
(h) receipt by the Administrative Agent, on behalf of the Lenders, of
an upfront fee in an amount equal to twenty-five basis points (0.25%) of the sum
of the outstanding principal amount of the Term Loans (after giving effect to
the prepayment of the Term Loans required by Section 10) plus the Revolving Loan
Commitment; and
(i) payment by the Borrowers of all fees and expenses owing to the
Administrative Agent and the Lenders in connection with the preparation,
negotiation and execution of this Amendment, as well as in connection with the
transactions contemplated herein, including, without limitation, all reasonable
fees and expenses of counsel to the Administrative Agent.
SECTION 4. Consent, Waiver and Release; Other Agreements.
(a) Upon the satisfaction of the conditions contained in Section 3, but
with effect on and after the date hereof, the Lenders hereby consent to the sale
of the Xxxx Shares and the application of the Xxxx Proceeds as described in
Sections 3(f) and 10 hereof (the "Transactions"), and to the extent that the
Transactions violate the provisions of Section 2.6(d) or 7.7 of the Credit
Agreement, the Lenders hereby waive compliance with, and consent to the
variation from, the provisions thereof but only to the extent necessary to
permit the consummation of the Transactions as described herein.
(b) The Lenders hereby consent to the dissolution of Host Insurance
Agency, Inc. on May 5, 2003 (the "Dissolution") and to the extent that the
Dissolution violated the provisions of Section 7.7(a) of the Credit Agreement,
the Lenders hereby waive compliance with, and consent to the variation from, the
provisions thereof but only to the extent necessary to permit the Dissolution as
described herein.
(c) The consents and waivers granted in clauses (a) and (b) above are
limited solely to the Transactions and the Dissolution. The parties hereto
hereby agree that the Transactions shall be consummated specifically as
described, and the Dissolution shall be limited to Host Insurance Agency, Inc.,
and any variation therefrom shall constitute an immediate Event of Default under
the Credit Agreement and permit the exercise of all rights and remedies of the
Administrative Agent and the Lenders as a result of such Event of Default. The
Administrative Agent and the Lenders expressly reserve all of their rights and
remedies with respect to any other present or future Default arising under the
Credit Agreement.
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(d) The sale of the Xxxx Shares and the application of the Xxxx
Proceeds shall not be included in calculating compliance with Section
7.7(b)(iii) in determining consent requirements in connection with future
dispositions.
(e) The Lenders shall release, and the Lenders hereby authorize the
Administrative Agent to release, all liens and security interests created
pursuant to the relevant Security Documents in (i) the Xxxx Shares, subject to a
continuing lien on the proceeds thereof (other than the proceeds used to effect
the transaction described in Section 10(ii) hereof), (ii) 111,367 shares of the
Capital Stock of Bull Run Corporation pledged by X. Xxxxx Host, (iii) options to
purchase 5,360 shares of the Capital Stock in Bull Run Corporation pledged by X.
Xxxxx Host, and (iv) 738,194 shares of the Common Stock of Atlantic American
Corporation pledged by J. Xxxx Xxxxxxxx.
(f) The Lenders hereby release, and the Lenders hereby authorize the
Administrative Agent to release, Host Insurance Agency, Inc. from any and all
obligations that Host Insurance Agency, Inc. has, or in the future may have,
under the Subsidiary Guaranty.
(g) The parties hereto acknowledge that (x) as of the date hereof and
after giving effect to this Amendment, the current Interest Rate Margin is equal
to (i) with respect to Base Rate Advances, zero percent (0.00%) and (ii) with
respect to Eurodollar Advances and Letter of Credit Obligations, two and
three-quarters percent (2.75%) and (y) the Interest Rate Margin is subject to
change pursuant to the definition thereof in the Credit Agreement.
SECTION 5. No Other Amendment. Except for the amendments set forth
above, the text of the Credit Agreement shall remain unchanged and in full force
and effect. This Amendment is not intended to effect, nor shall be construed as,
a novation. The Credit Agreement and this Amendment shall be construed together
as a single agreement. Nothing herein contained shall waive, annul, vary or
affect any provision, condition, covenant or agreement contained in the Credit
Agreement, except as herein amended, nor affect or impair any rights, powers or
remedies under the Credit Agreement as hereby amended. The Lenders and the
Administrative Agent do hereby reserve all of their rights and remedies
against all parties who may be or may hereafter become secondarily liable for
the repayment of the Notes or the Obligations. Each of the Borrowers promises
and agrees to perform all of the requirements, conditions, agreements and
obligations under the terms of the Credit Agreement, as heretofore and hereby
amended, the Credit Agreement, as amended, being hereby ratified and affirmed.
Each of the Borrowers hereby expressly agrees that the Credit Agreement, as
amended, and the Notes are in full force and effect. To the extent that any of
the other Loan Documents shall conflict with or otherwise contradict the Credit
Agreement, as amended by this Amendment (including any consents and waivers
herein provided), the terms of the Credit Agreement, as amended hereby, shall
control.
SECTION 6. Representations and Warranties. The Parent and each of the
Borrowers hereby represents and warrants to each of the Lenders as follows:
(a) No Default under the Credit Agreement, nor any other event or
condition constituting a default under any other Loan Document, has occurred and
is continuing unwaived by the Lenders on the date hereof.
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(b) The Parent and each of the Borrowers has the power and authority to
enter into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it.
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of each of the Borrowers and the
Parent and constitutes the legal, valid and binding obligation of each of the
Borrowers and the Parent, enforceable against each of the Borrowers and the
Parent in accordance with its terms, provided that such enforceability is
subject to general principles of equity.
(d) The execution and delivery of this Amendment and the performance by
each of the Borrowers and the Parent of its obligations hereunder do not and
will not require the consent or approval of any regulatory authority or
governmental authority or agency having jurisdiction over any Borrower or the
Parent, nor be in contravention of or in conflict with the certificate of
incorporation or bylaws of any Borrower or the Parent, or the provision of any
statute, or any judgment, order, indenture, instrument, agreement or
undertaking, to which any Borrower or the Parent is party or by which any
Borrower's or the Parent's assets or properties are or may become bound.
(e) Host Insurance Agency had no material assets at the time of its
dissolution on May 5, 2003.
SECTION 7. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 8. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Georgia, without regard
to the conflict of laws principles thereof, except to the extent otherwise
provided in the Loan Documents.
Section 9. Joinder of Existing Guarantors and Pledgors. Each Guarantor
and Pledgor confirms, acknowledges and agrees that each Loan Document to which
it is a party is and remains in full force and effect and shall cover the Loans
as amended and modified by this Amendment and the Xxxxxxxx Pledge Amendment. No
Loan Document shall in any way be impaired, discharged, diminished, or released
by this Amendment, the Xxxxxxxx Pledge Amendment or the documents and
instruments contemplated hereby. Except as amended and modified hereby, or by
the Xxxxxxxx Pledge Amendment, the Loan Documents shall be, and remain, in full
force and effect.
SECTION 10. Effectiveness of Amendment. This Amendment shall be
effective as of the date of this Amendment, subject to the following conditions
subsequent: (i) $23,000,000 of the Xxxx Proceeds shall have been applied as a
principal prepayment of the Term Loans within three (3) Business Days after the
First Amendment Date, and (ii) $5,000,000 of the Xxxx Proceeds shall have been
applied to the repayment of the subordinated note dated July 15, 2003, issued by
BR Holding, Inc. and payable to the order of Delta Life Insurance Company within
three (3) Business Days after the First Amendment Date. If the conditions
contained in the preceding sentence are not satisfied within the time stated,
without any requirement of notice to, or any other action by, any party hereto,
this Amendment (including any consents and waivers herein provided) shall be
immediately and automatically null and void and no provision hereof shall have
any continuing force or effect.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered, or
have caused their respective duly authorized officers or representatives to
execute and deliver, this Amendment as of the day and year first above written.
BORROWERS:
BR HOLDING, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
-------------------------------
Title: Vice President - Finance
----------------------------
CAPITAL SPORTS PROPERTIES, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
--------------------------------
Title: Vice President
-----------------------------
HOST COMMUNICATIONS, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
--------------------------------
Title: Vice President
-----------------------------
DATASOUTH COMPUTER CORPORATION
By: /s/ XXXXXXXXX X. XXXXXXXX
-------------------------------------------
Title: Executive VP - Finance & Administration
----------------------------------------
PARENT:
BULL RUN CORPORATION, as a Guarantor
By: /s/ XXXXXXXXX X. XXXXXXXX
---------------------------------
Title: Vice President - Finance
------------------------------
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LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Lender
By: /s/ XXX XXXXXX
-----------------------------------
Title: Director
---------------------------------
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ XXXXXXX XXXXXXX
------------------------------------
Title: Director
---------------------------------
BANK OF AMERICA, N.A.
By: /s/ XXXX XXXXXXXX
------------------------------------
Title: Assistant Vice President
---------------------------------
BANK ONE, KENTUCKY, N.A.
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Title: First Vice President
---------------------------------
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