EXHIBIT 10.5
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
BR HOLDING, INC., CAPITAL SPORTS PROPERTIES, INC., HOST COMMUNICATIONS, INC.
(FOR ITSELF AND AS SUCCESSOR BY MERGER TO UNIVERSAL SPORTS AMERICA, INC.) AND
DATASOUTH COMPUTER CORPORATION, AS BORROWERS,
BULL RUN CORPORATION, AS A GUARANTOR
THE LENDERS SIGNATORY HERETO,
BANK OF AMERICA, N.A. AND BANK ONE, KENTUCKY, NA, AS ISSUING BANKS
FIRST UNION NATIONAL BANK, AS SYNDICATION AGENT FOR THE ISSUING BANKS AND
THE LENDERS
AND
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT FOR THE ISSUING BANKS AND
THE LENDERS
AS OF JULY 27, 2001
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
BR HOLDING, INC., CAPITAL SPORTS PROPERTIES, INC., HOST COMMUNICATIONS, INC.
(FOR ITSELF AND AS SUCCESSOR BY MERGER TO UNIVERSAL SPORTS AMERICA, INC.), AND
DATASOUTH COMPUTER CORPORATION, AS BORROWERS,
BULL RUN CORPORATION, AS A GUARANTOR
THE LENDERS SIGNATORY HERETO,
BANK OF AMERICA, N.A. AND BANK ONE, KENTUCKY, NA, AS ISSUING BANKS
FIRST UNION NATIONAL BANK, AS SYNDICATION AGENT FOR THE ISSUING BANKS AND
THE LENDERS
AND
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT FOR THE ISSUING BANKS AND
THE LENDERS
dated as of the 27th day of July, 2001:
WITNESSETH:
WHEREAS, BR Holding, Inc., a Georgia corporation ("Bull Run"), Capital
Sports Properties, Inc., a Delaware corporation ("Capital"), Host
Communications, Inc., a Kentucky corporation ("Host"), for itself and as
successor by merger to Universal Sports America, Inc., 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 (as defined in
the Prior Credit Agreement) signatory thereto (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") are parties to that certain Credit Agreement dated
as of December 17, 1999, as amended by that certain First Amendment to Credit
Agreement dated as of June 14, 2000, as amended by that certain Second Amendment
to Credit Agreement dated as of September 28, 2000, as amended by that certain
Third Amendment to Credit Agreement dated as of September 29, 2000, as amended
by that certain Fourth Amendment to Credit Agreement dated as of November 13,
2000, as amended by that certain Fifth Amendment to Credit Agreement dated as of
December 15, 2000 and as amended by that certain Sixth Amendment to Credit
Agreement dated as of May 24, 2001 (as amended, the "Prior Credit Agreement");
and
WHEREAS, the Borrowers, the Parent, the Lenders, the Issuing Banks, the
Syndication Agent and the Administrative Agent have agreed to amend and restate
the Prior Credit Agreement in its entirety as, and in accordance with and
subject to the terms and conditions, set forth herein; and
WHEREAS, each of the Borrowers and the Parent acknowledges and agrees
that the security interest granted to the Administrative Agent, in its capacity
as administrative agent for the Issuing Banks and the Lenders, pursuant to the
Prior Credit Agreement and the other Loan Documents (as defined in the Prior
Credit Agreement), shall remain outstanding and in full force and effect in
accordance with the Prior Credit Agreement and shall continue to secure the
Obligations (as defined herein); and
WHEREAS, each of the Borrower, the Parent, the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent acknowledges and
agrees that (a) the Obligations (as defined herein) represent, among other
things, the amendment, restatement, renewal, extension, consolidation and
modification of the Obligations (as defined in the Prior Credit Agreement)
arising in connection with the Prior Credit Agreement and other Loan Documents
(as defined in the Prior Credit Agreement) executed in connection therewith; (b)
the Borrowers, the Parent, the Lenders, the Issuing Banks, the Syndication Agent
and the
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Administrative Agent intend that the Prior Credit Agreement and the other Loan
Documents (as defined in the Prior Credit Agreement) executed in connection
therewith and the collateral pledged thereunder shall secure, without
interruption or impairment of any kind, all existing Indebtedness (as defined in
the Prior Credit Agreement) under the Prior Credit Agreement and the other Loan
Documents (as defined in the Prior Credit Agreement) executed in connection
therewith as they may be amended, restated, renewed, extended, consolidated and
modified hereunder, together with all other obligations hereunder; (c) all Liens
(as defined in the Prior Credit Agreement) created by the Prior Credit Agreement
and the other Loan Documents (as defined in the Prior Credit Agreement) executed
in connection therewith are hereby ratified, confirmed and continued; and (d)
the Loan Documents (as defined herein) are intended to restate, renew, extend,
consolidate, amend and modify the Prior Credit Agreement and the other Loan
Documents (as defined in the Prior Credit Agreement) executed in connection
therewith; and
WHEREAS, each of the Borrowers, the Parent, the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent intend that (a) the
provisions of the Prior Credit Agreement and the other Loan Documents (as
defined in the Prior Credit Agreement) executed in connection therewith, to the
extent restated, renewed, extended, consolidated, amended and modified hereby,
be hereby superseded and replaced by the provisions hereof and of the other Loan
Documents (as defined herein); (b) the Notes (as defined herein) restate, renew,
extend, consolidate, amend, modify, replace, are substituted for and supersede
in its entirety, but do not extinguish, the Indebtedness (as defined in the
Prior Credit Agreement) arising under the Notes (as defined in the Prior Credit
Agreement) issued pursuant to the Prior Credit Agreement; and (c) by entering
into and performing their respective obligations hereunder, this transaction
shall not constitute a novation.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements 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 hereby amend and restate in its entirety the Prior
Credit Agreement as follows:
ARTICLE 1 DEFINITIONS
For the purposes of this Agreement:
"Account Debtor" shall mean any Person who is obligated under an Account.
"Accounts" shall mean all accounts, contract rights, chattel paper, instruments,
drafts, acceptances and documents of each Borrower arising from the sale or
lease of goods or the provision of services by each Borrower in the ordinary
course of its business, whether secured or unsecured, billed or unbilled and
whether now existing or hereafter created or arising, and "Account" shall mean
any one of the foregoing.
"Adjusted EBITDA" shall mean, with respect to the Borrowers and their respective
Subsidiaries on a consolidated basis for any period, EBITDA for such period,
plus, without duplication and to the extent not included in EBITDA for such
period, (a) cash option income received during such period (b) cash interest
income received during such period, (c) cash dividend income received during
such period, and (d) to the extent treated as an operating expense for such
period, non-cash stock compensation expense.
"Administrative Agent" shall mean Bank of America, N.A., acting as agent for the
Issuing Banks and the Lenders, and any successor agent appointed pursuant to
Section 9.12.
"Administrative Agent's Office" shall mean the office of the Agent located at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
office as may be designated pursuant to the provisions of Section 10.1 of this
Agreement.
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"Advance" or "Advances" shall mean amounts of the Loans advanced by the Lenders
to any of the Borrowers pursuant to Section 2.2 hereof on the occasion of any
borrowing.
"Affiliate" shall mean any Person directly or indirectly controlling, controlled
by, or under common control with any Borrower, and any Person who is a director,
officer or partner of any Borrower. For purposes of this definition, "control",
when used with respect to any Person, includes, without limitation, the direct
or indirect beneficial ownership of ten percent (10%) or more of the outstanding
voting securities or voting equity of such Person or the power to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.
"Agents" shall mean, collectively, the Administrative Agent and the Syndication
Agent.
"Agreement" shall mean this Agreement.
"Agreement Date" shall mean the date as of which this Agreement is dated.
"Aggregate Commitment Ratios" shall mean the percentage in which the Lenders are
severally bound to make Advances to the Borrowers under the Revolving Loan
Commitment and the Term Loan Commitments, which, as of the Agreement Date, are
set forth (together with dollar amounts thereof) on Schedule 1 attached hereto.
"Aggregate Revolving Credit Obligations" shall mean, as of any particular time,
the sum of (a) the aggregate principal amount of all Revolving Loans then
outstanding, plus (b) the aggregate stated amount of all Letter of Credit
Obligations then outstanding.
"AMT" shall mean Advanced Matrix Technology, Inc., a California corporation. ---
"AMT Note" shall mean that certain Subordinated Promissory Note dated September
27, 2000, issued by AMT in favor of Datasouth in the original principal amount
of $4,285,074.18.
"Applicable Advance Percentage" shall mean one hundred percent (100%).
"Applicable Law" shall mean, in respect of any Person, all provisions of
constitutions, laws, statutes, rules, regulations, and orders of governmental
bodies or regulatory agencies applicable to such Person, and all orders and
decrees of all courts and arbitrators in proceedings or actions to which the
Person in question is a party or by which it is bound.
"Assignment and Assumption Agreement" shall mean a form of Assignment and
Assumption Agreement in form and substance satisfactory to the Administrative
Agent, pursuant to which each Lender may, as further provided in Section 10.5
hereof, sell or participate a portion of its Loans or Commitments.
"Assignment of Note" shall mean that certain Assignment of Note dated as of
September 27, 2000, from Datasouth in favor of the Administrative Agent, on its
behalf and on behalf of the Issuing Banks, the Syndication Agent and the
Lenders, in form and substance acceptable to the Administrative Agent.
"Authorized Signatory" shall mean as to any Person, such senior personnel of
such Person as may be duly authorized and designated in writing by such Person
to execute documents, agreements, and instruments on behalf of such Person.
"Available Letter of Credit Amount" shall mean, as of any particular time, an
amount equal to the lesser of (a) the Letter of Credit Commitment then in effect
and (b) the Available Revolving Loan Commitment.
"Available Revolving Loan Commitment" shall mean, as of any particular time, (a)
the amount of the Revolving Loan Commitment minus (b) the Aggregate Revolving
Credit Obligations then outstanding.
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"Availability Reserves" shall mean the amount of reserves which the
Administrative Agent shall have established, in its reasonable discretion, as
the Administrative Agent shall have determined necessary, including, without
limitation, for (i) price adjustments and damages; (ii) unpaid rent or other
charges due and owing to any landlord, bailee, or warehouseman of any leased
premises where Collateral is located; and (iii) accrued but unpaid ad valorem
and personal property tax liability.
"Avoidance Provisions" shall have the meaning ascribed thereto in Section
2.14(a) hereof.
"Bankruptcy Code" shall mean the United States Bankruptcy Code (11 U.S.C.
Section 101 et seq.), as now or hereafter amended, and any successor statute.
"Base Rate" shall mean, at any time, a fluctuating and floating rate per annum
equal to the higher of: (a) 0.50% per annum above the latest Federal Funds Rate;
and (b) the rate of interest announced publicly by the Administrative Agent from
time to time, as its "prime rate" for the determination of interest rate loans
of varying maturities in United States dollars to United States residents of
varying degrees of credit worthiness. Such "prime rate" is not necessarily the
lowest rate of interest charged to borrowers of the Administrative Agent, and
the Administrative Agent may make commercial loans or other loans at rates of
interest at, above, or below such "prime rate". Each change in the prime rate
announced by the Administrative Agent shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Advance" shall mean an Advance which a Borrower requests to be made
as a Base Rate Advance or which is converted to a Base Rate Advance, in
accordance with the provisions of Section 2.2 hereof.
"Borrower Pledge Agreement" shall mean that certain Amended and Restated
Borrower Pledge Agreement of even date herewith executed by the Borrowers in
favor of the Administrative Agent, in substantially the form attached hereto as
Exhibit A, pursuant to which each of the Borrowers pledges to the Administrative
Agent, for its benefit and for the benefit of the Issuing Banks and the Lenders,
all of the Capital Stock, whether now owned or hereafter acquired, of their
respective Subsidiaries (and, with respect to any wholly-owned foreign
Subsidiary, 65% of such Capital Stock) and all other Capital Stock owned or
hereafter acquired by any Borrower (other than the Tranche A Collateral), as the
same may be amended, restated, supplemented or otherwise modified from time to
time hereafter.
"Borrowers" shall mean, collectively, Bull Run, Datasouth, Capital and Host, and
"Borrower" shall mean any one of the foregoing.
"Borrowing Base" shall mean, at any particular time, the sum of (a) (i) Eligible
Accounts, multiplied by (ii) the Applicable Advance Percentage; minus (b)
Availability Reserves.
"Borrowing Base Certificate" shall mean a certificate of an Authorized Signatory
substantially in the form of Exhibit B attached hereto.
"Borrowing Base Deficiencies" shall mean any condition wherein the Aggregate
Revolving Credit Obligations exceed the Borrowing Base as set forth on the most
recent Borrowing Base Certificate delivered to the Administrative Agent and the
Lenders or as otherwise determined by the Administrative Agent.
"Bull Run" shall mean BR Holding, Inc., a Georgia corporation.
"Business Day" shall mean any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the State of Georgia or is a day on which
banking institutions located in such state are closed; provided, however, that
when used with reference to a Eurodollar Advance (including the making,
continuing, prepaying or repaying of any Eurodollar Advance), the term "Business
Day" shall also exclude any day on which banks are not open for dealings in
deposits of United States dollars on the London interbank market.
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"Call Option" shall have the meaning set forth in the ▇▇▇▇▇▇▇▇ Guaranty.
"Capital" shall mean Capital Sports Properties, Inc., a Delaware corporation.
"Capital Expenditures" shall mean, for any period, on a consolidated basis for
the Borrowers and their respective Subsidiaries, the aggregate of all
expenditures made by any Borrower or any Subsidiary of any Borrower during such
period that, in conformity with GAAP, are required to be included in or
reflected on the consolidated balance sheet as a capital asset of such Borrower
or such Subsidiary, excluding Capitalized Lease Obligations.
"Capital Stock" shall mean, as applied to any Person, any capital stock, general
or limited partnership interests, limited liability company interests or other
equivalents of such Person, regardless of class or designation, and all
warrants, options, purchase rights, conversion or exchange rights, voting
rights, calls or claims of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any obligation of a
Person as lessee under a lease which at the time would be required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"Change in Control" shall mean (a) with respect to the Parent, approval by the
stockholders of the Parent of a merger, reorganization, consolidation, exchange
of shares, recapitalization, restructuring or other business combination which
would result in (i) ownership of more than fifty percent (50%) of the voting
Capital Stock of the Parent being acquired by any Person other than ▇▇▇▇▇▇▇▇,
the ▇▇▇▇▇▇▇▇ Affiliates or management of the Borrowers as of the Agreement Date,
or (ii) a change in the majority of the Board of Directors of the Parent; or (b)
with respect to Bull Run, the Parent ceasing to own and control, free of any
lien or encumbrance other than liens in favor of the Administrative Agent and
the Lenders, one hundred percent (100%) of the outstanding capital stock
thereof; or (c) with respect to each of Capital, Host and Datasouth, Bull Run
ceasing to own and control, directly or indirectly, free of any Lien or
encumbrance other than Liens in favor of the Administrative Agent and the
Lenders, one hundred percent (100%) of the outstanding Capital Stock thereof; or
(d) any Borrower sells all or substantially all of its assets.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" shall mean all property pledged as collateral security for the
Obligations pursuant to the Security Documents or otherwise, and all other
property of any Borrower that is now or hereafter in the possession or control
of the Administrative Agent, the Issuing Banks or any Lender or on which the
Administrative Agent, the Issuing Banks or any Lender has been granted a Lien.
"Commitments" shall mean, collectively, the Revolving Loan Commitment and the
Term Loan Commitments.
"Contributing Borrower" shall have the meaning set forth in Section 2.14(d)
hereof.
"Customer Dispute" shall mean all instances in which (i) a customer of any
Borrower has rejected or returned the goods and such return or rejection has
been accepted by any Borrower as a valid return or rejection, or (ii) any
customer of a Borrower has otherwise affirmatively asserted grounds for
nonpayment of an Account, including, without limitation, any repossession of
goods by any Borrower, or any claim by an Account Debtor of total or partial
failure of delivery, set-off, counterclaim, breach of warranty or the
performance of services.
"Datasouth" shall mean Datasouth Computer Corporation, a Delaware corporation.
"Datasouth Real Property" shall mean that certain parcel of real property owned
by Datasouth and comprised of approximately eight (8) acres located in
Charlotte, Mecklenburg County, North Carolina, and more particularly described
as ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ 271, Book 145
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in the Mecklenburg County Tax Records and lying at the intersection of ▇▇▇▇▇▇▇
▇▇▇▇▇ Drive and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard.
"Date of Issue" shall mean the date on which an Issuing Bank issues a Letter of
Credit pursuant to Section 2.16 hereof.
"Default" shall mean any Event of Default, and any of the events specified in
Section 8.1 hereof regardless of whether there shall have occurred any passage
of time or giving of notice (or both) that would be necessary in order to
constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to, (a) with
respect to outstanding principal, the sum of (i) the applicable Interest Rate
Basis, plus (ii) the applicable Interest Rate Margin, plus (iii) two percent
(2%), and (b) with respect to all other Obligations, the sum of (i) the Base
Rate, plus (ii) the Interest Rate Margin, plus (iii) two percent (2%).
"Dividends" shall mean, any direct or indirect distribution, dividend, or
payment to any Person on account of any Capital Stock of a Borrower or any
Subsidiary of a Borrower.
"EBITDA" shall mean, with respect to the Parent and its Subsidiaries on a
consolidated basis for any period, Operating Income for such period, plus,
without duplication and to the extent deducted from Operating Income for such
period in the statement of operations, the sum of (a) Interest Expense, (b)
income taxes, (c) depreciation and amortization expense, (d) equity in losses in
Affiliates in which the Parent has a direct or indirect ownership interest in
less than 100% of such Affiliate, and (e) the ▇▇▇▇▇▇▇▇ Compensation Amount to
the extent deducted from Operating Income or included in Interest Expense; less,
without duplication, to the extent included in Operating Income, equity in
earnings in Affiliates in which the Parent has a direct or indirect ownership
interest in less than 100% of such Affiliate.
"Eligible Accounts" shall mean, at any particular date, all Accounts of the
Borrowers on a consolidated basis, but excluding each of the following Accounts:
(a) Accounts (other than Accounts from corporate partners) with
respect to which more than ninety (90) days have elapsed since the due
date of the original invoice therefor or more than one hundred twenty
(120) days have elapsed since the date of the original invoice therefor
and Accounts from corporate partners with respect to which more than
sixty (60) days have elapsed since the due date of the original invoice
therefor or more than one hundred fifty (150) days have elapsed since
the date of the original invoice therefor;
(b) with respect to which any of the representations, warranties,
covenants, and agreements contained in Section 4.2 are not or have
ceased to be complete and correct or have been breached;
(c) with respect to which, in whole or in part, a check,
promissory note, draft, trade acceptance or other instrument for the
payment of money has been received, presented for payment and returned
uncollected for any reason;
(d) as to which such Borrower has not performed, as of the
applicable calculation date, all of its obligations then required to
have been performed, including, without limitation, the delivery of
merchandise or rendition of services applicable to such Account;
(e) as to which any one or more of the following events has
occurred with respect to the Account Debtor on such Account: death or
judicial
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declaration of incompetency of an Account Debtor who is an individual;
the filing by or against the Account Debtor of a request or petition
for liquidation, reorganization, arrangement, adjustment of debts,
adjudication as a bankrupt, winding-up, or other relief under the
bankruptcy, insolvency, or similar laws of the United States, any state
or territory thereof, or any foreign jurisdiction, now or hereafter in
effect; the making of any general assignment by the Account Debtor for
the benefit of creditors; the appointment of a receiver or trustee for
the Account Debtor or for any of the assets of the Account Debtor,
including, without limitation, the appointment of or taking possession
by a "custodian," as defined in Title 11 of the United States Code; the
institution by or against the Account Debtor of any other type of
insolvency proceeding (under the bankruptcy laws of the United States
or otherwise) or of any formal or informal proceeding for the
dissolution or liquidation of, settlement of claims against, or winding
up of affairs of, the Account Debtor; the sale, assignment, or transfer
of all or substantially all of the assets of the Account Debtor; the
nonpayment generally by the Account Debtor of its debts as they become
due; or the cessation of the business of the Account Debtor as a going
concern;
(f) (i) those Accounts (other than Accounts covered under item (i)
of this definition below) of Account Debtors for whom fifty percent
(50%) or more of the aggregate dollar amount of such Account Debtor's
outstanding Accounts are classified as ineligible under the other
criteria other than this subsection set forth herein; or (ii) Accounts
owed by any single Account Debtor the aggregate dollar amount of which
exceeds twenty-five percent (25%) of the aggregate amount of all
Accounts at such time, but only to the extent of such excess;
(g) owed by an Account Debtor which: (i) does not maintain its
chief executive office in the United States; or (ii) is not organized
under the laws of the United States or any state or province thereof;
or (iii) is the government of any foreign country or sovereign state,
or of any state, province, municipality, or other political subdivision
thereof, or of any department, agency, public corporation, or other
instrumentality thereof;
(h) owed by an Account Debtor which is an Affiliate or employee of
any Borrower;
(i) which is owed by an Account Debtor to which any Borrower is
indebted in any way, or which is subject to any right of setoff by the
Account Debtor, unless the Account Debtor has entered into an agreement
acceptable to the Administrative Agent to waive setoff rights;
(j) which is subject to any Customer Dispute, but only to the
extent of such Customer Dispute;
(k) which are owed by the government of the United States, or any
department, agency, public corporation, or other instrumentality
thereof, unless all required procedures for the effective collateral
assignment of the Account under the Federal Assignment of Claims Act of
1940 and any other steps necessary to perfect the Administrative
Agent's security interest in such Account have been complied with to
the Administrative Agent's reasonable satisfaction with respect to such
Account;
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(l) which is owed by any state, municipality, or other political
subdivision of the United States, or any department, agency, public
corporation, or other instrumentality thereof and as to which the
Administrative Agent reasonably determines that its security interest
therein is not or cannot be perfected;
(m) which represent a sale (i) on a ▇▇▇▇-and-hold basis, or (ii)
on a guaranteed sale, sale and return, sale on approval, consignment,
or other repurchase or return basis;
(n) which is evidenced by a promissory note or other instrument or
by chattel paper;
(o) if the Account Debtor thereunder is located in West Virginia,
New Jersey or Minnesota unless if, at the time the Account was created
and at all times thereafter, (a) such Borrower has filed and has
maintained effective a current Notice of Business Activities Report
with the appropriate office or agency of the State of West Virginia,
New Jersey or Minnesota, as applicable, or (b) such Borrower was and
has continued to be exempt from the filing of such Report and has
provided the Administrative Agent with satisfactory evidence thereof;
(p) as to which the applicable Account Debtor has not been sent an
invoice and the eventual due date is greater than one hundred eighty
(180) days from the date when the Account is first counted in the
Borrowing Base;
(q) which is not a bona fide, valid and, to the best of the
Borrowers' knowledge, enforceable obligation of the Account Debtor
thereunder;
(r) which are owed by an Account Debtor with whom any Borrower has
any agreement or understanding for deductions from the Account, except
for discounts or allowances which are made in the ordinary course of
business for prompt payment or volume purchases and which discounts or
allowances are reflected in the calculation of the face value of each
invoice related to such Account;
(s) which are not subject to a valid and continuing first priority
Lien in favor of the Administrative Agent pursuant to the Security
Documents as to which all action necessary or desirable to perfect such
security interest shall have been taken, and to which such Borrower has
good and marketable title, free and clear of any Liens (other than
Liens in favor of the Administrative Agent);
(t) as to which the applicable Account Debtor has been invoiced
more than ninety (90) days preceding the due date for such invoice; or
(u) as to which a security agreement, financing statement,
equivalent security or Lien instrument or continuation statement is on
file or of record in any public office, except as may have been filed
in favor of the Administrative Agent pursuant to the Security
Documents.
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"Environmental Laws" shall mean any and all applicable federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental protection
matters, including without limitation, Hazardous Materials, as now or may at any
time during the term hereof be in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as in
effect on the Agreement Date and as such Act may be amended thereafter from time
to time.
"ERISA Affiliate" shall mean any "affiliate" of any Borrower within the meaning
of Section 414 of the Code.
"Eurodollar Advance" shall mean an Advance which a Borrower requests to be made
as a Eurodollar Advance or which is continued as or converted to a Eurodollar
Advance, in accordance with the provisions of Section 2.2 hereof.
"Eurodollar Advance Period" shall mean, for each Eurodollar Advance, each one,
two, three, or six month period, as selected by the Borrowers pursuant to
Section 2.2 hereof, during which the applicable Eurodollar Rate shall remain
unchanged. Notwithstanding the foregoing, however: (i) any applicable Eurodollar
Advance Period which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day, unless such Business Day
falls in another calendar month, in which case such Eurodollar Advance Period
shall end on the next preceding Business Day; (ii) any applicable Eurodollar
Advance Period which begins on a day for which there is no numerically
corresponding day in the calendar month during which such Eurodollar Advance
Period is to end shall (subject to clause (i) above) end on the last day of such
calendar month; and (iii) no Eurodollar Advance Period shall extend beyond the
Maturity Date or such earlier date as would interfere with the repayment
obligations of the Borrowers under Section 2.6 hereof. Interest shall be due and
payable with respect to any Advance as provided in Section 2.3 hereof.
"Eurodollar Basis" shall mean a simple per annum interest rate equal to the
quotient of (i) the Eurodollar Rate divided by (ii) one minus the Eurodollar
Reserve Percentage, stated as a decimal. The Eurodollar Basis shall be rounded
upward to the nearest one sixteenth of one percent (1/16%) and, once determined,
shall remain unchanged during the applicable Eurodollar Advance Period, except
for changes to reflect adjustments in the Eurodollar Reserve Percentage.
"Eurodollar Rate" shall mean, for any Eurodollar Advance, the average (rounded
upward to the nearest one sixteenth of one percent (1/16%)) of the interest
rates per annum determined by the Administrative Agent as the offered rate for
deposits in U.S. dollars for a period comparable to the Eurodollar Advance
Period for such Eurodollar Advance appearing on the Telerate Page 3750 as of
11:00 a.m. London time, on the day that is two (2) London banking days prior
making of such Eurodollar Advance. If at least two such rates appear on Telerate
Page 3750, the rate for such Eurodollar Advance Period will be the arithmetic
average of such rates, rounded to the fourth decimal place.
"Eurodollar Reserve Percentage" shall mean the percentage which is in effect
from time to time under Regulation D of the Board of Governors of the Federal
Reserve System, as such regulation may be amended from time to time, as the
maximum reserve requirement applicable with respect to Eurocurrency Liabilities
(as that term is defined in Regulation D), whether or not any Lender has any
Eurocurrency Liabilities subject to such reserve requirement at that time. The
Eurodollar Basis for any Eurodollar Advance shall be adjusted as of the
effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" shall mean any of the events specified in Section 8.1 hereof,
provided that any requirement for notice or lapse of time, or both, has been
satisfied.
10
"Federal Funds Rate" shall mean, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Administrative Agent of the rates for the last transaction
in overnight Federal funds arranged prior to 12:00 noon (Eastern time) on that
day by each of three leading brokers of Federal funds transactions in New York,
New York selected by the Administrative Agent.
"Fee Letters" shall mean those certain fee letters of even date herewith
executed by the Borrowers and addressed to each of the Agents and the Lenders.
"Funded Debt" shall mean, with respect to the Parent and its Subsidiaries on a
consolidated basis and without duplication, (i) all then currently outstanding
obligations, liabilities and indebtedness of the types described in subsections
(a) through (g) of the definition of Indebtedness set forth herein, including,
but not limited to, all such obligations under the Loan Documents.
"Funding Borrower" shall have the meaning set forth in Section 2.14(d) hereof.
"GAAP" shall mean, as in effect from time to time, United States generally
accepted accounting principles consistently applied.
"Governmental Authority" shall mean any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantors" shall mean, collectively, the Parent, ▇▇▇▇▇▇▇▇ and each Subsidiary
of any Borrower that guarantees payment of the Obligations hereunder and under
the other Loan Documents.
"Guaranty" or "guaranteed," as applied to an obligation (each a "primary
obligation"), shall mean and include (a) any guaranty, direct or indirect, in
any manner, of any part or all of such primary obligation, and (b) any
agreement, direct or indirect, contingent or otherwise, the practical effect of
which is to assure in any way the payment or performance (or payment of damages
in the event of non-performance) of any part or all of such primary obligation,
including, without limiting the foregoing, any reimbursement obligations as to
amounts drawn down by beneficiaries of outstanding letters of credit, and any
obligation of any Person, whether or not contingent, (i) to purchase any such
primary obligation or any property or asset constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of such primary obligation or (2) to maintain working capital, equity
capital or the net worth, cash flow, solvency or other balance sheet or income
statement condition of any other Person, (iii) to purchase property, assets,
securities or services primarily for the purpose of assuring the owner or holder
of any primary obligation of the ability of the primary obligor with respect to
such primary obligation to make payment thereof or (iv) otherwise to assure or
hold harmless the owner or holder of such primary obligation against loss in
respect thereof.
"Hazardous Materials" shall mean any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum products
(including crude oil or any fraction thereof), friable asbestos containing
materials defined or regulated as such in or under any Environmental Law.
"Host" shall mean Host Communications, Inc., a Kentucky corporation, for itself
and as successor by merger to Universal Sports America, Inc.
"Host Pledge Agreement" shall mean that certain Amended Restated Host Pledge
Agreement of even date herewith executed by ▇. ▇▇▇▇▇ Host in favor of the
Administrative Agent, in
11
substantially the form attached hereto as Exhibit C, pursuant to which ▇▇▇▇▇
Host pledges to the Administrative Agent, for its benefit and for the benefit of
the Issuing Banks and the Lenders, 1,113,067 shares of common stock of the
Parent and warrants, options or purchase rights with respect to the purchase of
53,600 shares of common stock of the Parent, as the same may be amended,
restated, supplemented or otherwise modified from time to time hereafter.
"Indebtedness" shall mean, with respect to the Parent and its Subsidiaries and
without duplication, (a) any obligation for borrowed money; (b) any obligation
evidenced by bonds, debentures, notes or other similar instruments (including,
without limitation, the NCAA Performance Bond); (c) any obligation to pay the
deferred purchase price of property or for services (other than in the ordinary
course of business); (d) any Capitalized Lease Obligation; (e) any obligation or
liability of others secured by a Lien on property owned by any Borrower or any
such Subsidiary, whether or not such obligation or liability is assumed, the
amount of liability to be the fair market value of the property pledged; (f) any
letter of credit issued for the account of any Borrower or any such Subsidiary;
(g) any net payment obligation under any Interest Hedge Agreement; (h) any
Guaranty; and (i) any other obligation or liability which is required by GAAP to
be shown as a liability on a consolidated balance sheet of the Borrowers and
their Subsidiaries (except items of shareholders' equity or Capital Stock or
surplus or general contingency or deferred tax reserves or any other reserves
required under GAAP).
"Insolvency Proceeding" shall have the meaning set forth in Section 2.17.
"Interest Expense" shall mean, for any period, interest expense of the Parent
and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP, and including capitalized and non-capitalized interest and the interest
component of Capitalized Lease Obligations.
"Interest Hedge Agreements" shall mean the obligations of any Person pursuant to
any arrangement with any other Person whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.
"Interest Rate Basis" shall mean the Base Rate or the Eurodollar Basis, as
appropriate.
"Interest Rate Margin" shall mean, (a) with respect to Base Rate Advances under
the Revolving Loan Commitment, one percent (1.00%), (b) with respect to
Eurodollar Advances under the Revolving Loan Commitment, three and one-half
percent (3.50%), (c) with respect to Base Rate Advances of the Term Loans, one
and one-half percent (1.50%), and (d) with respect to Eurodollar Advances of the
Term Loans, four percent (4.00%).
"Inventory" shall mean all goods, merchandise and other personal property owned
and held for sale, and all raw materials, materials and supplies of every nature
which contribute to the finished products of the Borrowers in the ordinary
course of their business, whether now owned or hereafter acquired by any
Borrower.
"Investment" shall have the meaning set forth in Section 7.5 hereof.
"Issuing Banks" shall mean Bank of America, N.A., Bank One, Kentucky, NA, and
any other Person who hereafter may be designated as an Issuing Bank pursuant to
an Assignment and Assumption Agreement or otherwise; and "Issuing Bank" shall
mean any one of the foregoing.
"Lenders" shall mean those lenders whose names are set forth on the signature
pages hereof under the heading "Lenders" and any assignees of the Lenders who
hereafter become
12
parties hereto pursuant to and in accordance with Section 10.5 hereof; and
"Lender" shall mean any one of the foregoing Lenders.
"Letter of Credit Commitment" shall mean the several obligations of the Issuing
Banks to issue Letters of Credit in an aggregate face amount from time to time
not to exceed the lesser of (a) $15,100,000 and (b) the Revolving Loan
Commitment.
"Letter of Credit Obligations" shall mean, at any time, the sum of (a) an amount
equal to the aggregate undrawn and unexpired amount (including the amount to
which any such Letter of Credit can be reinstated pursuant to the terms hereof)
of the then outstanding Letters of Credit and (b) an amount equal to the
aggregate drawn, but unreimbursed drawings of any Letters of Credit.
"Letter of Credit Reserve Account" shall mean any account maintained by the
Administrative Agent for the benefit of any Issuing Bank, the proceeds of which
shall be applied as provided in Section 8.2(d) hereof.
"Letters of Credit" shall mean letters of credit issued to support obligations
of the Borrowers in the ordinary course of its business issued by an Issuing
Bank on behalf of the Borrowers from time to time in accordance with Section
2.16 hereof.
"Lien" shall mean, with respect to any property, any mortgage, lien, pledge,
negative pledge agreement, assignment, charge, security interest, title
retention agreement, levy, execution, seizure, attachment, garnishment, or other
encumbrance of any kind in respect of such property, whether or not ▇▇▇▇▇▇,
vested, or perfected.
"Loan Account" shall have the meaning set forth in Section 2.7 hereof.
"Loan Documents" shall mean this Agreement, the Notes, the Security Documents,
the Fee Letters, all Requests for Advance, all Borrowing Base Certificates,
Interest Hedge Agreements between the Borrowers, on the one hand, and the
Administrative Agent (or an affiliate of the Administrative Agent), one or more
of the Issuing Banks (or an affiliate of an Issuing Bank) or one or more of the
Lenders (or an affiliate of a Lender), on the other hand, and all other
documents, instruments, certificates, and agreements executed or delivered in
connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, the amounts advanced by the Lenders to the
Borrowers under the Commitments, not to exceed the amount of the Commitments,
and evidenced by the Notes, and shall include the Revolving Loans, the Tranche A
Loan and the Tranche B Loan.
"Materially Adverse Effect" shall mean any materially adverse effect (a) upon
the business, assets, liabilities, condition (financial or otherwise), or
results of operations of the Borrowers and their Subsidiaries taken as a whole,
or (b) upon the Collateral, or (c) upon the ability of the Borrowers and their
Subsidiaries taken as a whole to perform under this Agreement or any other Loan
Document, or (d) upon the rights, benefits or interests of the Administrative
Agent, the Issuing Banks or the Lenders in or to this Agreement, any other Loan
Document or the Collateral, in each case, resulting from any act, omission,
situation, status, event, or undertaking, either singly or taken together.
"Maturity Date" shall mean July 1, 2002, or such earlier date as payment of the
Loans shall be due (whether by acceleration or otherwise) in accordance with the
terms hereof.
"Maximum Borrower Liability" shall have the meaning assigned thereto in Section
2.14(a) hereof.
"Mortgage" shall mean any mortgage, deed to secure debt, deed of trust or other
instrument encumbering or transferring title (in fee simple or leasehold) to
real property, in form and substance satisfactory to the Administrative Agent,
by which any Borrower or any of its Subsidiaries grants a mortgage to the
Administrative Agent for its benefit and the benefit of
13
the Issuing Banks and the Lenders, in real estate owned or leased by such
Borrower or such Subsidiary.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3) of
ERISA.
"NCAA Contract" shall mean that certain Corporate Partner License Agreement
(herein so called) of September 1, 1997, by and among Host and the National
Collegiate Athletic Association, and that certain Letter Agreement dated as of
July 2, 2001, by and between Host and CBS Sports, a division of CBS
Broadcasting, Inc., the term of which commences on September 1, 2002, executed
by Host and CBS Sports in replacement of the Corporate Partner License
Agreement.
"NCAA Performance Bond" shall mean that certain performance bond, a copy of
which is attached hereto as Exhibit D, issued by Fidelity and Deposit Company of
Maryland and Georgia Casualty and Surety Company in the amount of $5,000,000 to
provide credit support for the obligations of Host pursuant to the NCAA
Contract, including any amendments, extensions, renewals, supplements or
replacements thereof.
"Necessary Authorizations" shall mean all material authorizations, consents,
permits, approvals, licenses, and exemptions from, and all filings and
registrations with, and all reports to, any Governmental Authority whether
federal, state, local, and all agencies thereof, which are required for the
conduct of the businesses and the ownership (or lease) of the properties and
assets of the Borrowers and the sale of their Inventory.
"Net Cash Proceeds" shall mean, with respect to any sale, lease, transfer or
other disposition of assets by any Borrower or any issuance by any Borrower of
any Capital Stock or the incurrence by any Borrower of any Funded Debt (other
than the Obligations), the aggregate amount of cash received for such assets or
Capital Stock, or as a result of such Funded Debt, net of (i) reasonable and
customary transaction costs, (ii) taxes, in each case properly attributable to
such transaction and payable by such Borrower or its shareholders in connection
with such sale, lease, transfer or other disposition of assets or the issuance
of any Capital Stock or the incurrence of any Funded Debt, including, without
limitation, sales commissions and underwriting discounts payable to Persons who
are not Affiliates of any Borrower, and (iii) in the case of a sale, transfer or
other disposition of assets, net of all payments required to be made by the
Borrowers as a result of such event to repay Indebtedness (other than the Loans)
secured by such asset.
"Net Income" shall mean, for any period, the consolidated net income (or
deficit) of the Borrowers and their respective Subsidiaries for such period,
determined in accordance with GAAP.
"Net Worth" shall mean, as of any date and with respect to any Person, the sum
of (a) such Person's total shareholders' equity (including capital stock,
additional paid-in capital and retained earnings, after deducting treasury
stock) which would appear as such on a balance sheet of such Person as of such
date prepared on a consolidated basis, plus (b) in the case of the Borrowers,
$10,832,280 (which amount the parties have agreed represents the one-time,
non-cash charges associated with the write-off of Datasouth goodwill and
write-down of the Borrowers' Investment in ▇▇▇▇▇▇▇ Sporting Good Company, Inc.).
"Notes" shall mean, collectively, the Term Loan Notes and the Revolving Loan
Notes.
"Notice of Conversion/Continuation" shall mean a notice in substantially the
form of Exhibit E attached hereto.
"Obligations" shall mean (a) all payment and performance obligations of each
Borrower to the Lenders, the Issuing Banks and the Agents under this Agreement
and the other Loan Documents (including all Letters of Credit Obligations and
including any interest, fees and expenses that, but for the provisions of the
Bankruptcy Code, would have accrued), as they may be amended from time to time,
or as a result of making the Loans or issuing the Letters
14
of Credit, (b) the obligation to pay an amount equal to the amount of any and
all damages which the Agents, the Issuing Banks and the Lenders, or any of them,
may suffer by reason of a breach by any Borrower of any obligation, covenant, or
undertaking with respect to this Agreement or any other Loan Document, and (c)
any obligations of any Borrower to the Agents (or an affiliate of the Agents) or
any Lender (or an affiliate of a Lender) under any Interest Hedge Agreement
permitted hereunder.
"Operating Income" shall mean for any period, the consolidated net income (or
deficit) from operations of the Borrowers and their respective Subsidiaries for
such period, determined in accordance with GAAP.
"Other Debtor Relief Law" shall have the meaning set forth in Section 2.14(a)
hereof.
"Parent" shall mean Bull Run Corporation, a Delaware corporation.
"Parent Pledge Agreement" shall mean that certain Amended and Restated Parent
Pledge Agreement of even date herewith executed by the Parent in favor of the
Administrative Agent, in substantially the form attached hereto as Exhibit F,
pursuant to which the Parent pledges to the Administrative Agent, for its
benefit and for the benefit of the Issuing Banks and the Lenders, all of the
capital stock, whether now owned or hereafter acquired, of Bull Run, as the same
may be amended, restated, supplemented or otherwise modified from time to time
hereafter.
"Partnership Pledge Agreement" shall mean that certain Amended and Restated
Partnership Pledge Agreement of even date herewith executed by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Partnership in favor of the Administrative Agent, in
substantially the form attached hereto as Exhibit G, pursuant to which the
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Partnership pledges to the Administrative Agent, for its
benefit and for the benefit of the Issuing Banks and the Lenders, 1,284,000
shares of Capital Stock of the Parent, as the same may be amended, restated,
supplemented or otherwise modified from time to time hereafter.
"Payment Date" shall mean the last day of each Eurodollar Advance Period for a
Eurodollar Advance.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent, the Issuing
Banks or the Lenders given to secure the Obligations;
(b) Liens on real estate for real estate taxes not yet delinquent
and (ii) Liens for taxes, assessments, judgments, governmental charges
or levies, or claims (other than any Lien imposed pursuant to any of
the provisions of ERISA) not yet delinquent or the non-payment of which
is being diligently contested in good faith by appropriate proceedings
and for which adequate reserves have been set aside on such Person's
books, but only if such Lien would not reasonably be expected to have a
Materially Adverse Effect either on the rights of the Administrative
Agent, or the Administrative Agent's Lien, in any of the Collateral;
(c) Liens of carriers, warehousemen, mechanics, laborers,
suppliers, workers and materialmen incurred in the ordinary course of
business for sums not yet due or being diligently contested in good
faith, if such reserve or appropriate provision, if any, as shall be
required by GAAP shall have been made therefor, but only if such Liens
are junior in priority to the Liens in favor of the Administrative
Agent;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance or
other types of social security benefits;
15
(e) Easements, rights-of-way, restrictions, and other similar
encumbrances on the use of real property which in the reasonable
opinion of the Administrative Agent do not interfere with the ordinary
conduct of the business of such Person or materially affect the value
of any Collateral;
(f) Purchase money security interests and liens arising in
connection with Capitalized Lease Obligations provided that any such
Lien attaches only to the asset so purchased or leased by such Person
and secures only Indebtedness incurred by such Person in order to
purchase or lease such asset, but only to the extent permitted by
Section 7.1(d) hereof;
(g) Deposits to secure the performance of bids, trade contracts,
tenders, sales, leases, statutory obligations, surety and appeal bonds,
performance bonds (other than the NCAA Performance Bond) and other
obligations of a like nature incurred in the ordinary course of
business;
(h) Liens on assets of the Borrowers existing on the Agreement
Date which are set forth on Schedule 2 attached hereto; and
(i) At any time after exercise of the Call Option and payment of
the Purchase Price (as defined in the ▇▇▇▇▇▇▇▇ Guaranty), Liens in
favor of ▇▇▇▇▇▇▇▇ with respect to the Call Option Collateral (as
defined in the ▇▇▇▇▇▇▇▇ Guaranty).
"Person" shall mean an individual, corporation, partnership, trust, joint stock
company, limited liability company, unincorporated organization, or a government
or any agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan within the meaning of Section 3(3) of
ERISA or any other plan maintained for employees of any Person or any Affiliate
of such Person.
"Pledge Agreements" shall mean, collectively, the Borrower Pledge Agreement, the
Purpose Credit Borrower Pledge Agreement, the Parent Pledge Agreement, the
Partnership Pledge Agreement, the Subsidiary Pledge Agreement, the Host Pledge
Agreement and the ▇▇▇▇▇▇▇▇ Pledge Agreement.
"Prior Credit Agreement" shall have the meaning ascribed to such term in the
Recitals to this Agreement.
"Property" shall mean any real property or personal property, plant, building,
facility, structure, underground storage tank or unit, equipment, Inventory or
other asset owned, leased or operated by any Borrower or any Subsidiary of any
Borrower (including, without limitation, any surface water thereon or adjacent
thereto, and soil and groundwater thereunder).
"Purpose Credit Borrower Pledge Agreement" shall mean that certain Amended and
Restated Purpose Credit Borrower Pledge Agreement of even date herewith executed
by the Borrowers in favor of the Administrative Agent, in substantially the form
attached hereto as Exhibit H, pursuant to which each of the Borrowers pledges to
the Administrative Agent for its benefit and for the benefit of the Issuing
Banks and the Lenders, the Tranche A Collateral, as the same may be amended,
restated, supplemented or otherwise modified from time to time hereafter.
"Reimbursement Obligations" shall mean the payment obligations of the Borrowers
under Section 2.16(d) hereof.
"Replacement Event" shall have the meaning ascribed thereto in Section 10.16
hereof.
16
"Replacement Lender" shall have the meaning ascribed thereto in Section 10.16
hereof.
"Reportable Event" shall have the meaning set forth in Section 4043(c) of ERISA
and the regulations thereunder, but shall not include any event which is not
subject to the thirty (30) day notice requirement of such regulations other than
29 Code of Federal Regulations Sections 2615.11, 2615.12 and 2615.19.
"Request for Advance" shall mean any certificate signed by an Authorized
Signatory requesting on behalf of a Borrower an Advance hereunder which will
increase the aggregate amount of the Loans outstanding, which certificate shall
be denominated a "Request for Advance," and shall be in substantially the form
of Exhibit I attached hereto. Each Request for Advance shall, among other
things, specify the date of the Advance, which shall be a Business Day, the
amount of the Advance, and the type of Advance.
"Request for Issuance of Letter of Credit" shall mean any certificate signed by
an Authorized Signatory of a Borrower requesting that an Issuing Bank issue a
Letter of Credit hereunder, which certificate shall be in substantially the form
of Exhibit J attached hereto, and shall, among other things, specify (a) the
stated amount of the Letter of Credit (which shall be in United States Dollars),
(b) the effective date (which shall be a Business Day) for the issuance of such
Letter of Credit, (c) the date on which such Letter of Credit is to expire
(which shall be a Business Day and which shall be subject to Section 2.16(a)
hereof), (d) the Person for whose benefit such Letter of Credit is to be issued,
(d) other relevant terms of such Letter of Credit, and (f) the Available Letter
of Credit Amount as of the scheduled date of issuance of such Letter of Credit.
"Restricted Payment" shall mean (a) Dividends, (b) any payment of management,
consulting or similar fees payable by any Borrower or any Subsidiary of any
Borrower to any Affiliate, excluding payments made to any other Borrower, (c)
any direct or indirect payment to any Person on account of the Indebtedness
evidenced by the Summit Subordinated Notes, and (d) payment or other
distribution made by any Borrower or any Subsidiary of any Borrower to the
Parent, including, without limitation, any such payment or other distribution to
the Parent for the purpose of making any payment (including any payment of
principal or interest) on the Subordinated Debt.
"Restricted Purchase" shall mean any payment on account of the purchase,
redemption, or other acquisition or retirement of any shares of Capital Stock of
any Borrower or any Subsidiary of any Borrower or of the Parent.
"Revolving Commitment Ratios" shall mean the percentages in which the Lenders
are severally bound to make Advances to the Borrowers under the Revolving Loan
Commitment, which, as of the Agreement Date, are set forth (together with dollar
amounts thereof) on Schedule 1 attached hereto.
"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 February 28, 2002 $20,000,000
March 1, 2002 and thereafter $15,000,000
Each reference to the `Revolving Loan Commitment' contained in this Agreement
shall be deemed to refer to the Revolving Loan Commitment then in effect.
17
"Revolving Loan Notes" shall mean those certain amended and restated promissory
notes of even date in the aggregate principal amount of $25,000,000, issued by
the Borrowers to each of the Lenders and substantially in the form of Exhibit K
attached hereto, and any extensions, renewals or amendments to, or replacements
of, the foregoing.
"Revolving Loans" shall mean, collectively, the amounts advanced from time to
time by the Lenders to the Borrowers under the Revolving Loan Commitment, not to
exceed the amount of the Revolving Loan Commitment, and evidenced by the
Revolving Loan Notes.
"▇▇▇▇▇▇▇▇" shall mean J. ▇▇▇▇ ▇▇▇▇▇▇▇▇, a Georgia resident, and his heirs, legal
representatives, successors and assigns.
"▇▇▇▇▇▇▇▇ Affiliates" shall mean the ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ Partnership and those
other Persons set forth on Schedule 4.1(d) under the heading "Capital Stock of
the Parent owned by ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Affiliates."
"▇▇▇▇▇▇▇▇ Compensation Amount" shall mean the amount of any non-cash
compensation, in the form of shares of common stock of the Parent, paid to
▇▇▇▇▇▇▇▇ in exchange for the ▇▇▇▇▇▇▇▇ Guaranty.
"▇▇▇▇▇▇▇▇ Equity Contribution" shall mean any Investment of cash received from
and after June 1, 2001 by the Parent, any Borrower or any Subsidiary of any
Borrower from ▇▇▇▇▇▇▇▇ or any ▇▇▇▇▇▇▇▇ Affiliate.
"▇▇▇▇▇▇▇▇ Guaranty" shall mean that certain Amended and Restated Guaranty and
Call Agreement of even date herewith between ▇▇▇▇▇▇▇▇ and the Administrative
Agent, on its behalf, and on behalf of the Lenders and the Issuing Banks,
substantially in the form of Exhibit L attached hereto, as the same may be
amended, restated, supplemented or otherwise modified from time to time
hereafter.
"▇▇▇▇▇▇▇▇ Pledge Agreement" shall mean that certain Amended and Restated
▇▇▇▇▇▇▇▇ Pledge Agreement of even date herewith executed by ▇▇▇▇▇▇▇▇ in favor of
the Administrative Agent, substantially in the form of Exhibit M attached
hereto, pursuant to which ▇▇▇▇▇▇▇▇ pledges to the Administrative Agent, for its
benefit and for the benefit of the Issuing Banks and the Lenders the shares of
Capital Stock set forth on Schedule 1 thereto, as the same may be amended,
restated, supplemented or otherwise modified from time to time hereafter.
"Security Agreement" shall mean that certain Amended and Restated Security
Agreement of even date herewith among the Borrowers and the Administrative
Agent, on its behalf and on behalf of the Lenders and the Issuing Banks,
substantially in the form of Exhibit N hereto, as the same may be amended,
restated, supplemented or otherwise modified from time to time hereafter.
"Security Documents" shall mean, collectively, the Security Agreement, the
Subsidiary Security Agreement, the Trademark Security Agreement, the Pledge
Agreements, the Mortgages, the Assignment of Note, all UCC-1 financing
statements and any other document, instrument or agreement granting Collateral
for the Obligations, as the same may be amended, restated, supplemented or
otherwise modified from time to time hereafter.
"Settlement Date" shall have the meaning ascribed thereto in Section 2.2(g)
hereof.
"Subordinated Debt" shall mean Indebtedness evidenced by the Subordinated Note.
"Subordinated Note" shall mean, collectively, those certain Subordinated Notes
dated as of December 17, 1999, issued by the Parent in favor of the former
shareholders of Host and Capital identified on Schedule 3, in the original
principal amounts as listed on Schedule 3, not to exceed $20,000,000 in the
aggregate, and the agreements, instruments and documents related thereto.
18
"Subsidiary" shall mean, as applied to any Person, (a) any corporation of which
fifty percent (50%) or more of the outstanding stock (other than directors'
qualifying shares) having ordinary voting power to elect a majority of its board
of directors, regardless of the existence at the time of a right of the holders
of any class or classes of securities of such corporation to exercise such
voting power by reason of the happening of any contingency, or any partnership
or limited liability company of which fifty percent (50%) or more of the
outstanding partnership or limited liability company interests having ordinary
voting power to elect the general partner or a majority of the managers, members
or other governing board, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such entity to exercise
such voting power by reason of the happening of any contingency is at the time
owned by such Person, or by one or more Subsidiaries of such Person, or by such
Person and one or more Subsidiaries of such Person, and (b) any other entity
which is controlled or capable of being controlled by such Person, or by one or
more Subsidiaries of such Person, or by such Person and one or more Subsidiaries
of such Person. Notwithstanding anything to the contrary contained herein,
Players Communication Network, LLC, shall not constitute a Subsidiary of the
Parent or any Borrower for purposes of this Agreement and the other Loan
Documents.
"Subsidiary Guaranty" shall mean that certain Amended and Restated Subsidiary
Guaranty among certain direct and indirect Subsidiaries of the Borrowers (other
than foreign Subsidiaries) and the Administrative Agent, on its behalf, and on
behalf of the Lenders and the Issuing Banks, substantially in the form of
Exhibit O attached hereto, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"Subsidiary Pledge Agreement" shall mean any Subsidiary Pledge Agreement
executed by direct or indirect Subsidiaries of the Borrowers (other than foreign
Subsidiaries) having any Subsidiaries in favor of the Administrative Agent, in
substantially the form attached hereto as Exhibit P, pursuant to which each of
such Subsidiaries shall pledge to the Administrative Agent, for its benefit and
for the benefit of the Issuing Banks and the Lenders, all of the Capital Stock,
whether now owned or hereafter acquired, of its Subsidiaries (and, with respect
to any wholly-owned foreign Subsidiary, 65% of such Capital Stock), as the same
may be amended, restated, supplemented or otherwise modified from time to time.
"Subsidiary Security Agreement" shall mean that certain Amended and Restated
Subsidiary Security Agreement among certain direct and indirect Subsidiaries of
the Borrowers (other than foreign Subsidiaries) and the Administrative Agent, on
its behalf and on behalf of the Lenders and the Issuing Banks, substantially in
the form of Exhibit Q hereto, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"Summit Subordinated Notes" shall mean, collectively, (i) that certain
Promissory Note issued by Streetball Partners International, Inc. in favor of
▇▇▇▇ ▇▇▇▇▇▇▇ in an original principal amount of $590,000, and (ii) that certain
Promissory Note issued by Streetball Partners International, Inc., in favor of
▇▇▇ ▇▇▇▇▇▇ in an original principal amount of $590,000, and the agreements,
instruments and documents related to each of such Promissory Notes.
"Syndication Agent" shall mean First Union National Bank.
"Term Loan Obligations" shall mean, collectively, any and all Obligations of the
Borrowers to pay to the Administrative Agent and the Lenders the principal of,
interest or fees on, collection costs for, or any other sums owing in respect of
the Term Loans or the Term Loan Notes.
"Term Loan Notes" shall mean, collectively, the Tranche A Loan Notes and the
Tranche B Loan Notes.
"Term Loans" shall mean, collectively, the Tranche A Loan and the Tranche B
Loan.
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"Term Commitment Ratios" shall mean the percentages in which the Lenders are
severally bound to make Advances to the Borrowers under the Term Loan
Commitment, which, as of the Agreement Date, are set forth (together with dollar
amounts thereof) on Schedule 1 attached hereto.
"Term Loan Commitments" shall mean, collectively, the Tranche A Loan Commitment
and the Tranche B Loan Commitment.
"Term Loan Notes" shall mean, collectively, the Tranche A Loan Notes and the
Tranche B Loan Notes.
"Total Sports" shall mean Total Sports, Inc., a Delaware corporation.
"Trademark Security Agreement" shall mean, collectively, any Trademark Security
Agreement among the Borrowers or any Subsidiaries of the Borrowers and the
Administrative Agent, on its behalf and on behalf of the Issuing Banks and the
Lenders, substantially in the form of Exhibit R, as any such agreement shall be
modified, amended or restated from time to time hereafter.
"Tranche A Collateral" shall mean the collateral pledged to the Administrative
Agent for the benefit of itself, the Issuing Banks and the Lenders pursuant to
the Purpose Credit Borrower Pledge Agreement.
"Tranche A Loan" shall mean, collectively, the amounts advanced by the Lenders
to the Borrowers on the Agreement Date under the Tranche A Loan Commitment, not
to exceed the amount of the Tranche A Loan Commitment, and evidenced by the
Tranche A Loan Notes.
"Tranche A Loan Commitment" shall mean the several obligations of the Lenders to
advance the sum of $28,250,000 on the Agreement Date, in accordance with their
respective Term Commitment Ratios, to the Borrowers pursuant to the terms
hereof.
"Tranche A Loan Notes" shall mean those certain Tranche A Promissory Notes of
even date herewith in the aggregate principal amount of $28,250,000, in
substantially the form of Exhibit S attached hereto, and any amendments,
replacements, extensions or renewals thereof.
"Tranche A Loan Obligations" shall mean, collectively, any and all Obligations
of the Borrowers to pay to the Administrative Agent and the Lenders the
principal of, interest or fees on, collection costs for, or any other sums owing
in respect of the Tranche A Loan or the Tranche A Loan Notes.
"Tranche B Loan" shall mean, collectively, the amounts advanced by the Lenders
to the Borrowers on the Agreement Date under the Tranche B Loan Commitment, not
to exceed the amount of the Tranche B Loan Commitment, and evidenced by the
Tranche B Loan Notes.
"Tranche B Loan Commitment" shall mean the several obligations of the Lenders to
advance the sum of $65,705,821, on the Agreement Date, in accordance with their
respective Term Commitment Ratios, to the Borrowers pursuant to the terms
hereof.
"Tranche B Loan Notes" shall mean those certain Tranche B Promissory Notes of
even date herewith in the aggregate principal amount of $65,705,821, in
substantially the form of Exhibit T attached hereto, and any amendments,
replacements, extensions or renewals thereof.
"Uniform Customs" shall mean the Uniform Customs and Practice for Documentary
Credits (1994 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time.
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Each definition of an agreement in this Article 1 shall include such instrument
or agreement as modified, amended, supplemented or otherwise modified from time
to time with, if required, the prior written consent of all of the Lenders,
except as provided in Section 10.12 hereof, and except where the context
otherwise requires, definitions imparting the singular shall include the plural
and vice versa. Except where otherwise specifically restricted, reference to a
party to a Loan Document includes that party and its successors and assigns. An
Event of Default shall "exist", "continue" or be "continuing" until such Event
of Default has been waived in writing in accordance with Section 10.12 hereof.
All terms used herein which are defined in Article 9 of the Uniform Commercial
Code in effect in the State of Georgia on the date hereof and which are not
otherwise defined herein shall have the same meanings herein as set forth
therein. All accounting terms used herein without definition shall be used as
defined under GAAP. All financial calculations hereunder shall, unless otherwise
stated, be determined for the Borrowers on a consolidated basis with their
respective Subsidiaries.
ARTICLE 2 THE LOANS, THE LETTERS OF CREDIT AND THE GUARANTY
Section 2.1 Extension of Credit. Subject to the terms and
conditions of, and in reliance upon the representations and warranties made in,
this Agreement and the other Loan Documents, the Lenders have extended and
agree, severally in accordance with their respective Revolving Commitment Ratios
and Term Commitment Ratios, and not jointly, to extend credit to the Borrowers
in an aggregate principal amount not to exceed One Hundred Eighteen Million Nine
Hundred Fifty-Five Thousand Eight Hundred Twenty-One Dollars ($118,955,821).
(a) The Revolving Loans. The Lenders agree, severally in
accordance with their respective Revolving Commitment Ratios and not jointly,
upon the terms and subject to the conditions of this Agreement, to lend and
relend to the Borrowers, prior to the Maturity Date, amounts which in the
aggregate at any one time outstanding do not exceed the lesser of (i) the
Borrowing Base and (ii) the Available Revolving Loan Commitment. Subject to the
terms and conditions hereof and prior to the Maturity Date, Advances under the
Revolving Loan Commitment may be repaid and reborrowed from time to time on a
revolving basis.
(b) The Tranche A Loan. The Lenders agree, severally in
accordance with their respective Term Commitment Ratios and not jointly, upon
the terms and subject to the conditions of this Agreement, to lend to the
Borrowers on the Agreement Date, an amount not to exceed, in the aggregate, the
amount of the Tranche A Loan Commitment. After the Agreement Date, Loans under
the Tranche A Loan Commitment may be continued or converted pursuant to a Notice
of Conversion/Continuation as provided in Section 2.2(b)(ii) and Section
2.2(c)(ii) below in order to reborrow Base Rate Advances or Eurodollar Advances
for new Eurodollar Advance Periods; provided, however, there shall be no
increase in the aggregate principal amount outstanding under the Tranche A Loan
Commitment at any time after the Agreement Date.
(c) The Tranche B Loan. The Lenders agree, severally in
accordance with their respective Term Commitment Ratios relating to the Tranche
B Loan Commitment and not jointly, upon the terms and subject to the conditions
of this Agreement, to lend to the Borrowers on the Agreement Date, an amount not
to exceed, in the aggregate, the amount of the Tranche B Loan Commitment. After
the Agreement Date, Loans under the Tranche B Loan Commitment may be continued
or converted pursuant to a Notice of Conversion/Continuation as provided in
Section 2.2(b)(ii) and Section 2.2(c)(ii) below in order to reborrow Base Rate
Advances or Eurodollar Advances for new Eurodollar Advance
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Periods; provided, however, there shall be no increase in the aggregate
principal amount outstanding under the Tranche B Loan Commitment at any time
after the Agreement Date.
(d) The Letters of Credit. Subject to the terms and
conditions hereof, each Issuing Bank agrees to issue Letters of Credit for the
account of the Borrowers pursuant to Section 2.16 hereof in an aggregate
outstanding face amount for all Issuing Banks, not to exceed the Letter of
Credit Commitment at any time.
(e) Borrowing Base Deficiencies. If at any time the
Aggregate Revolving Credit Obligations exceed the Borrowing Base, the Revolving
Loan Commitment or any other applicable limitation set forth in this Agreement,
such Aggregate Revolving Credit Obligations shall nevertheless constitute
Obligations that are secured by the Collateral and are entitled to all benefits
thereof. In no event, however, shall the Borrowers have any right whatsoever to
(i) receive any Revolving Loan; or (ii) request the issuance of any Letter of
Credit, if, before or after giving effect thereto, there shall exist a Default
or a Borrowing Base Deficiency. In the event that (i) the Lenders, in their sole
and absolute discretion, shall make any Revolving Loans, or (ii) any Issuing
Bank shall, in its sole and absolute discretion (subject to the terms and
conditions set forth in this Agreement), agree to the issuance of any Letter of
Credit, which in any such case give rise to a Borrowing Base Deficiency, the
Borrowers shall make a payment on the Obligations to be applied to the Revolving
Loans or to the Letter of Credit Reserve Account, as appropriate, within five
(5) Business Days in an aggregate principal amount equal to such Borrowing Base
Deficiency. Additionally, in no event shall the Borrowers have the right to
receive any Advance of a Revolving Loan in an amount which exceeds the lesser of
(i) the Borrowing Base and (ii) the Available Revolving Loan Commitment.
Section 2.2 Manner of Borrowing and Disbursement of Loans.
(a) Choice of Interest Rate, etc. Any Advance shall, at
the option of the Borrowers, be made either as a Base Rate Advance or as a
Eurodollar Advance (except for the first two (2) Business Days after the
Agreement Date, during which period the Loans shall bear interest as a Base Rate
Advance); provided, however, that (i) if the Borrowers fail to give the
Administrative Agent written notice specifying whether a Eurodollar Advance is
to be repaid, continued or converted on a Payment Date, such Eurodollar Advance
shall be converted to a Base Rate Advance on the Payment Date, and (ii) the
Borrowers may not select a Eurodollar Advance (A) with respect to an Advance,
the proceeds of which are to reimburse an Issuing Bank pursuant to Section 2.16
hereof, or (B) if, at the time of such Advance, a Default or an Event of Default
has occurred and is continuing. Any notice given to the Administrative Agent in
connection with a requested Advance hereunder shall be given to the
Administrative Agent prior to 11:00 a.m. (Eastern time) in order for such
Business Day to count toward the minimum number of Business Days required.
(b) Base Rate Advances.
(i) Initial and Subsequent Advances. A Borrower
shall give the Administrative Agent, in the case of Base Rate Advances, not
later than 11:00 a.m. (Eastern time) on the Business Day of a proposed Advance,
irrevocable prior notice by telephone or telecopy and shall confirm any such
telephone notice with a written Request for Advance; provided, however, that the
failure by a Borrower to confirm any notice by telephone or telecopy with a
Request for Advance shall not invalidate any notice so given.
(ii) Repayments and Conversions. A Borrower may
(a) at any time repay or prepay a Base Rate Advance, or (b) upon at least three
(3) Business Days'
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irrevocable prior written notice to the Administrative Agent
in the form of a Notice of Conversion/Continuation, convert all or a portion of
the principal thereof to one or more Eurodollar Advances. Upon the date
indicated by such Borrower, such Base Rate Advance shall be so repaid or
converted, as applicable.
(iii) Miscellaneous. Notwithstanding any term or
provision of this Agreement which may be construed to the contrary, each Base
Rate Advance shall be in a principal amount of no less than $100,000 and in an
integral multiple of $50,000 in excess thereof.
(c) Eurodollar Advances.
(i) Initial and Subsequent Advances. A Borrower
shall give the Administrative Agent in the case of Eurodollar Advances at least
three (3) Business Days' irrevocable prior notice by telephone or telecopy and
shall immediately confirm any such telephone notice with a written Request for
Advance; provided, however, that the failure by a Borrower to confirm any notice
by telephone or telecopy with a Request for Advance shall not invalidate any
notice so given.
(ii) Repayments, Continuations and Conversions.
At least three (3) Business Days prior to each Payment Date for a Eurodollar
Advance, a Borrower shall give the Administrative Agent written notice in the
form of a Notice of Continuation/Conversion specifying whether all or a portion
of any Eurodollar Advance outstanding on such Payment Date (a) is to be
continued in whole or in part as a new Eurodollar Advance, in which case such
notice shall also specify the Eurodollar Advance Period which such Borrower
shall have selected for such new Eurodollar Advance, (b) is to be converted in
whole or in part to a Base Rate Advance, or (c) is to be repaid and not
continued or converted. Upon such Payment Date, such Eurodollar Advance will,
subject to the provisions hereof, be so repaid, continued or converted, as
applicable.
(iii) Miscellaneous. Notwithstanding any term or
provision of this Agreement which may be construed to the contrary, each
Eurodollar Advance shall be in a principal amount of no less than $500,000 and
in an integral multiple of $100,000 in excess thereof, and at no time shall the
aggregate number of all Eurodollar Advances then outstanding exceed one (1)
under each of the Revolving Loan Commitment, the Tranche A Loan Commitment and
the Tranche B Loan Commitment.
(d) Notification of Lenders. Upon receipt of a (i)
Request for Advance or a telephone or telecopy request for Advance, or (ii)
notification from an Issuing Bank that a draw has been made under any Letter of
Credit, or (iii) notice from a Borrower with respect to any outstanding Advance
prior to the Payment Date for such Advance, the Administrative Agent shall
promptly notify each Lender by telephone or telecopy of the contents thereof and
the amount of each Lender's portion of any such Advance. Each Lender shall, not
later than 12:00 noon (Eastern time) on the date specified for such Advance in
such notice, make available to the Administrative Agent at the Administrative
Agent's office, or at such account as the Administrative Agent shall designate,
the amount of such Lender's portion of the Advance in immediately available
funds.
(e) Disbursement. Prior to 1:00 p.m. (Eastern time) on
the date of an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse the
amounts made available to the Administrative Agent by the Lenders to the
Borrowers. Unless the Administrative Agent shall have received notice from a
Lender prior to 12:30 p.m. (Eastern time) on the date of
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any Advance that such Lender will not make available to the Administrative Agent
such Lender's ratable portion of such Advance, the Administrative Agent may
assume that such Lender has made or will make such portion available to the
Administrative Agent on the date of such Advance and the Administrative Agent
may, in its sole discretion and in reliance upon such assumption, make available
to the Borrowers on such date a corresponding amount. If and to the extent such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender agrees to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrowers until
the date such amount is repaid to the Administrative Agent, at the Federal Funds
Rate. If such Lender shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Lender's portion of the
applicable Advance for purposes of this Agreement and if both such Lender and
the Borrowers shall pay and repay such corresponding amount, the Administrative
Agent shall promptly relend to the Borrowers such corresponding amount. If such
Lender does not repay such corresponding amount immediately upon the
Administrative Agent's demand therefor, the Administrative Agent shall notify
the Borrowers and the Borrowers shall immediately pay such corresponding amount
to the Administrative Agent. The failure of any Lender to fund its portion of
any Advance shall not relieve any other Lender of its obligation, if any,
hereunder to fund its respective portion of the Advance on the date of such
borrowing, but no Lender shall be responsible for any such failure of any other
Lender. In the event that a Lender for any reason fails or refuses to fund its
portion of an Advance in violation of this Agreement, then, until such time as
such Lender has funded its portion of such Advance, or all other Lenders have
received payment in full (whether by repayment or prepayment) of the principal
and interest due in respect of such Advance, such non-funding Lender shall (i)
have no right to vote regarding any issue on which voting is required or
advisable under this Agreement or any other Loan Document, and such non-funding
Lender's Aggregate Commitment Ratios shall be excluded from the calculation of
the required percentages for the definition of Majority Lenders, and (ii) shall
not be entitled to receive any payments of principal, interest or fees from the
Administrative Agent (or the other Lenders) in respect of its Loans.
(f) Deemed Request for Advance. Unless payment is
otherwise timely made by the Borrowers, the becoming due of any amount required
to be paid under this Agreement or any of the other Loan Documents as principal,
accrued interest, fees or other charges shall be deemed irrevocably to be a
Request for Advance on the due date of, and in an aggregate amount required to
pay, such principal, accrued interest, fees or other charges, and the proceeds
of a Revolving Loan made pursuant thereto may be dispersed by way of direct
payment of the relevant Obligation and shall bear interest as a Base Rate
Advance. The Administrative Agent and the Lenders shall have no obligation to
any of the Borrowers to honor any deemed Request for Advance, but may do so in
their sole discretion and without regard to the existence of, and without being
deemed to have waived, any Default or Event of Default and without regard to the
existence or creation of a Borrowing Base Deficiency.
Section 2.3 Interest.
(a) On Loans. Interest on Advances under the Revolving
Loans and interest on the Term Loans, subject to Section 2.3(b) and (c) hereof,
shall be payable as follows:
(i) On Base Rate Advances. Interest on each Base
Rate Advance shall be computed for the actual number of days elapsed on the
basis of a hypothetical year of 360 days and shall be payable monthly in arrears
on the first day of
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each month for the prior month. Interest on Base Rate Advances then outstanding
shall also be due and payable on the Maturity Date. Interest shall accrue and be
payable on each Base Rate Advance made with respect to the Revolving Loans and
the Term Loans at the simple per annum interest rate equal to the sum of (i) the
Base Rate, plus (ii) the applicable Interest Rate Margin.
(ii) On Eurodollar Advances. Interest on each
Eurodollar Advance shall be computed on the basis of a hypothetical 360-day year
for the actual number of days elapsed and shall be payable in arrears on (x) the
Payment Date for such Advance, and (y) if the Eurodollar Advance Period for such
Advance is greater than one (1) months, on each one (1) month anniversary of
such Advance. Interest on Eurodollar Advances then outstanding shall also be due
and payable on the Maturity Date. Interest shall accrue and be payable on each
Eurodollar Advance made with respect to the Revolving Loans and the Term Loans
at a rate per annum equal to the sum of (i) the Eurodollar Basis applicable to
such Eurodollar Advance, and (ii) the applicable Interest Rate Margin.
(iii) If No Notice of Selection of Interest Rate.
If a Borrower fails to give the Administrative Agent timely notice of the
selection of a Eurodollar Basis, or if the Administrative Agent is unable to
timely determine a Eurodollar Basis for any Advance, the Base Rate shall apply
to such Advance. If a Borrower fails to elect to reborrow any Eurodollar Advance
then outstanding prior to the last Payment Date applicable thereto in accordance
with the provisions of Section 2.2 hereof, as applicable, the Base Rate shall
apply to such Advance commencing on and after such Payment Date.
(b) Intentionally Omitted.
(c) Upon Default. Upon the occurrence of an Event of
Default, interest on the outstanding Obligations shall accrue at the Default
Rate from the date of such Event of Default. Interest accruing at the Default
Rate shall be payable on demand and in any event on the Maturity Date and shall
accrue until the earliest to occur of (i) waiver of the applicable Event of
Default in accordance with Section 10.12 hereof, (ii) agreement by all of the
Lenders to rescind the charging of interest at the Default Rate, or (iii)
payment in full of the Obligations. The Lenders shall not be required to (i)
accelerate the maturity of the Loans, (ii) terminate the Commitments, or (iii)
exercise any other rights or remedies under the Loan Documents in order to
charge interest hereunder at the Default Rate.
(d) Computation of Interest. In computing interest on any
Advance, the date of making the Advance shall be included and the date of
payment shall be excluded; provided, however, that if an Advance is repaid on
the date that it is made, one (1) day's interest shall be due with respect to
such Advance.
Section 2.4 Fees.
(a) Fee Letter. The Borrowers, jointly and severally,
agree to pay to the Agents and the Lenders such fees as are set forth in the Fee
Letters.
(b) Unused Line Fee. The Borrowers, jointly and
severally, agree to pay to the Administrative Agent for the account of the
Lenders, in accordance with the Lenders' Revolving Commitment Ratios, an unused
line fee on the amount of (i) the Revolving Loan Commitment, minus (ii) the
Aggregate Revolving Credit Obligations then outstanding, for each day from the
Agreement Date through the Maturity Date (or the date of any earlier prepayment
in full of the Obligations), at a rate of one-quarter of one percent (0.25%) per
25
annum. Such unused line fee shall be computed on the basis of a hypothetical
year of 360 days for the actual number of days elapsed, shall be payable
quarterly in arrears for each fiscal quarter on the first (1st ) day of each
fiscal quarter for the immediately preceding fiscal quarter, and if then unpaid,
on the Maturity Date (or the date of any earlier prepayment in full of the
Obligations), and shall be fully earned when due and non-refundable when paid.
(c) Letter of Credit Fees.
(i) The Borrowers shall pay to the Lenders, in
accordance with the Lenders' respective Revolving Commitment Ratios, a fee on
the stated amount of any outstanding Letters of Credit for each day from the
Date of Issue through the expiration date of each Letter of Credit (or the date
of any earlier prepayment in full of the Obligations) at a rate per annum on the
amount of the Letter of Credit Obligations equal three and one-half percent
(3.50%). Such Letter of Credit fee shall be computed on the basis of a
hypothetical year of 360 days for the actual number of days elapsed, shall be
payable quarterly in arrears for each fiscal quarter on the first day of each
quarter for the immediately preceding calendar quarter, and if then unpaid, on
the Maturity Date (or the date of any earlier prepayment in full of the
Obligations), and shall be fully earned when due and non-refundable when paid.
(ii) The Borrowers shall also pay to each Issuing
Bank (A) a fee on the stated amount of each Letter of Credit issued by such
Issuing Bank for each day from the Date of Issue through the expiration date of
each such Letter of Credit (or any earlier prepayment in full of the
Obligations) at a rate of one-eighth of one percent (.125%) per annum, which fee
shall be computed on the basis of a hypothetical year of 360 days for the actual
number of days elapsed, shall be payable quarterly in arrears on the first day
of each fiscal quarter for the immediately preceding fiscal quarter, and, if
unpaid on the Maturity Date (or any earlier prepayment in full of the
Obligations) and (B) any customary fees charged by the Issuing Banks for
issuance and administration of such Letters of Credit. The foregoing fees shall
be fully earned when due, and non-refundable when paid.
Section 2.5 Prepayment/Reduction of Commitment.
(a) The principal amount of any Base Rate Advance may be prepaid
in full or in part at any time, without penalty, and without notice, and the
principal amount of any Eurodollar Advance may be prepaid prior to the
applicable Payment Date, upon three (3) Business Days' prior written notice to
the Administrative Agent, provided that the Borrowers shall reimburse the
Lenders and the Administrative Agent, on the earlier of demand or the Maturity
Date, for any loss or out-of-pocket expense incurred by the Lenders or the
Administrative Agent in connection with such prepayment, as set forth in Section
2.9 hereof. Each notice of prepayment shall be irrevocable, and each such
prepayment shall include the accrued interest on the amount so prepaid. Upon
receipt of any notice of prepayment or, in the case of Base Rate Advances, the
receipt of such payment, the Administrative Agent shall promptly notify each
Lender of the contents thereof by telephone or telecopy and of such Lender's
portion of the prepayment. Other than with respect to amounts required to be
applied to the Loans pursuant to Section 5.15 hereof, prepayments of principal
hereunder shall be in minimum amounts of $500,000 and integral multiples of
$100,000 in excess thereof. Each such prepayment of Advances outstanding under
the Tranche A Loan shall permanently reduce the Tranche A Loan Commitment by a
corresponding amount and shall be applied to the amount of principal payments
due under Section 2.6(c) hereof, and each such prepayment of Advances
outstanding under the Tranche B Loan shall permanently reduce the Tranche B Loan
Commitment by a
26
corresponding amount and shall also be applied to the amount of principal
payments due under Section 2.6(c) hereof; provided, however, that the Borrowers
shall not make any prepayment of amounts outstanding under the Tranche A Loan
(other than prepayments made with the proceeds of the Tranche A Collateral)
until the Tranche B Loan has been paid in full. Any prepayment of Advances
outstanding under the Revolving Loan Commitment shall not reduce the Revolving
Loan Commitment.
(b) The Borrowers shall have the right, at any time and
from time to time after the Agreement Date and prior to the Maturity Date, upon
at least five (5) Business Days' prior written notice to the Administrative
Agent, without premium or penalty except as may be set forth herein, to cancel
or reduce permanently all or a portion of the Revolving Loan Commitment on a pro
rata basis among the Lenders in accordance with the Revolving Commitment Ratios,
provided that any such partial reduction shall be made in an amount not less
than $1,000,000 and in integral multiples of $500,000 in excess thereof. As of
the date of cancellation or reduction set forth in such notice, the Revolving
Loan Commitment shall be permanently reduced to the amount stated in the
Borrowers' notice for all purposes herein, and the Borrowers shall pay to the
Administrative Agent for the account of the Lenders the amount necessary to
reduce the principal amount of the Revolving Loans then outstanding to not more
than the amount of the Revolving Loan Commitment as so reduced, together with
accrued interest on the amount so prepaid and the unused line fee set forth in
Section 2.4(b) accrued through the date of the reduction with respect to the
amount reduced, and shall reimburse the Agents and the Lenders for any loss or
out-of-pocket expense incurred by any of them in connection with such payment as
set forth in Section 2.9.
Section 2.6 Repayment.
(a) Intentionally Omitted.
(b) The Revolving Loans. All unpaid principal and accrued
interest on the Revolving Loans shall be due and payable in full on the Maturity
Date. Notwithstanding the foregoing, however, in the event that at any time and
for any reason there shall exist a Borrowing Base Deficiency, the Borrowers
shall immediately pay to the Administrative Agent an amount equal to the
Borrowing Base Deficiency, which payment shall constitute a mandatory payment of
the Revolving Loans hereunder.
(c) The Term Loans. As of the dates set forth below, the
aggregate amount of all payments of the outstanding principal balance of the
Term Loans made after the Agreement Date shall be equal to or greater than the
amounts as set forth below for such dates:
Minimum Aggregate
Date Prepayment Amount
---------------- -----------------
October 15, 2001 $10,000,000
December 1, 2001 $20,000,000
Additionally, the Term Loans shall be repaid as may be required by Section
2.6(d) hereof. Any remaining unpaid principal and interest on the Term Loans
shall be due and payable in full on the Maturity Date. Any prepayments of the
Term Loans hereunder shall be applied first to the payment of the outstanding
principal balance of the Tranche B Term Loan and second to the payment of the
outstanding principal amount of the Tranche A Loan.
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Notwithstanding the foregoing, to the extent any prepayment received hereunder
consists of proceeds from the sale of the Tranche A Collateral, such amount
shall be applied to the principal amount of the Tranche A Loan.
(d) Other Mandatory Repayments.
(i) In the event that after the Agreement Date,
the Parent or any Borrower or any Subsidiary of any Borrower shall issue any
Capital Stock (other than in connection with the ▇▇▇▇▇▇▇▇ Equity Contribution to
the extent set forth below), one hundred percent (100%) of the Net Cash Proceeds
received by the Parent, such Borrower or such Subsidiary from such issuance
shall be paid on the date of receipt thereof by the Parent, such Borrower, or
such Subsidiary to the Lenders as a mandatory payment of the Loans. Subject to
the provisions of Section 8.2(d) hereof, the payment due hereunder shall be
applied to reduce the outstanding principal balance of the Tranche B Loan and
the excess, after full repayment of the Tranche B Loan, shall be applied to
reduce the outstanding principal balance of the Tranche A Loan, and any surplus
shall be applied to repay outstanding Revolving Loans. In the event that, after
the Agreement Date, the Parent or any Borrower or any Subsidiary of any Borrower
shall receive any Net Cash Proceeds in connection with the ▇▇▇▇▇▇▇▇ Equity
Contribution, one hundred percent (100%) of such Net Cash Proceeds up to
$5,000,000 in the aggregate (inclusive of any Net Cash Proceeds received prior
to the Agreement Date in connection with the ▇▇▇▇▇▇▇▇ Equity Contribution) shall
be paid on the date of receipt thereof to the Lenders as a mandatory payment of
the Loans to be applied to repay outstanding Revolving Loans. In the event the
Parent or any Borrower or any Subsidiary of any Borrower shall receive any Net
Cash Proceeds in connection with the ▇▇▇▇▇▇▇▇ Equity Contribution in excess of
such $5,000,000, such Net Cash Proceeds shall be applied as a mandatory payment
of the Loans as otherwise required pursuant to this Section 2.6(d)(i). Nothing
in this Section shall authorize any Borrower to issue any Capital Stock or incur
any Funded Debt except as expressly permitted by this Agreement. The Revolving
Loan Commitment shall not be permanently reduced by the amount of any payment of
the Revolving Loans due under this Section 2.6(d)(i).
(ii) In the event any Borrower or any Subsidiary
of any Borrower shall sell any of its assets (other than (x) sales of Inventory
in the ordinary course of business, (y) sales of other assets for a sales price
of less than $250,000 in the aggregate during any fiscal year, and (z) sales of
obsolete equipment with a sale value not greater than $500,000 in the aggregate
for all such assets that may be sold during any year), one hundred percent
(100%) of the Net Cash Proceeds received by such Borrower or such Subsidiary
from such sale shall be paid on the date of receipt thereof by such Borrower as
a mandatory payment of the Loans. The Net Cash Proceeds shall be applied to the
Revolving Loans to the extent that such proceeds result from the sale or loss of
any asset which (a) has been replaced by a similar or comparable asset purchased
prior to the date of such sale, or (b) is being replaced or will be replaced
within one hundred eighty (180) days after the receipt of such Net Cash Proceeds
with an asset useful or necessary in the business of the Borrowers; provided,
however, that the Borrowers shall (A) notify the Administrative Agent in writing
on or before the earlier of (I) the date the replacement asset is purchased or
(II) the date of applicable sale of its intention to replace the asset to be
sold or sold, as the case may be, and (B) (I) with respect to any replacement
asset purchased prior to the sale of the asset to be replaced, notify the
Administrative Agent in writing on or before the 180th day following the
purchase of the replacement asset that the asset to be replaced has been sold or
(II) with respect to any asset sold that is to be replaced, notify the
Administrative Agent in writing on or before the 180th day following such asset
sale that the replacement asset has been acquired. If (x) the Borrowers do not
give the requisite notice of its intention to replace the asset to be sold, (y)
the replacement asset has not been acquired within such one hundred eighty (180)
day period or (z) any excess Net Cash Proceeds exist after
28
payment on the Revolving Loans as provided above, then in each such event the
applicable Net Cash Proceeds shall be applied first to the outstanding principal
amount of the Tranche B Loan, and the excess, if any, shall be applied to the
outstanding principal amount of the Tranche A Loan, and the excess, if any,
shall be applied to the principal on the Revolving Loans then outstanding. In
the event that the payment due hereunder exceeds the Loans then outstanding,
such amount received by the Administrative Agent shall be applied to any other
Obligations, and any surplus shall be returned to the Borrowers. Notwithstanding
the foregoing, any Net Cash Proceeds from the sale of the Tranche A Collateral,
to the extent permitted hereunder, shall be applied to reduce the outstanding
principal amount of the Tranche A Loan and any excess shall be applied to reduce
the outstanding principal amount of the Tranche B Loan, and the excess, if any,
shall be applied to the principal on the Revolving Loans then outstanding.
Nothing in this Section shall authorize any Borrower to sell, lease, abandon,
transfer, trade or otherwise dispose of any assets except as expressly permitted
by this Agreement. The Revolving Loan Commitment shall not be permanently
reduced by the amount of any payment of the Revolving Loans due under the second
sentence of this Section 2.6(d)(ii), but will be permanently reduced by the
amount of any payment of the Revolving loans due under the third sentence of
this Section 2.6(d)(ii).
Section 2.7 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein, and shall be evidenced by the Notes. One
each of the Revolving Loan Notes shall be payable to the order of each Lender in
accordance with the respective Revolving Commitment Ratio of such Lender. One
each of the Tranche A Loan Notes and Tranche B Loan Notes shall be payable to
the order of each Lender in accordance with the respective Term Commitment Ratio
of such Lender. The Notes shall be issued by the Borrowers to the Lenders and
shall be duly executed and delivered by Authorized Signatories.
(b) The Administrative Agent shall open and maintain on
its books in the name of the Borrowers a loan account with respect to the Loans
and interest thereon (the "Loan Account"). The Administrative Agent shall debit
such Loan Account for the principal amount of each Advance made by it on behalf
of the Lenders, accrued interest thereon, and all other amounts which shall
become due from the Borrowers pursuant to this Agreement and shall credit the
Loan Account for each payment which the Borrowers shall make in respect to the
Obligations. The records of the Administrative Agent with respect to such Loan
Account shall be conclusive evidence of the Loans and accrued interest thereon,
absent manifest error.
Section 2.8 Manner of Payment.
(a) When Payments Due.
(i) Each payment (including any prepayment) by the
Borrowers on account of the principal of or interest on the Loans, fees, and any
other amount owed to the Lenders, the Issuing Banks or the Administrative Agent
under this Agreement, the Notes, or the other Loan Documents shall be made not
later than 1:00 p.m. (Eastern time) on the date specified for payment under this
Agreement or any other Loan Document to the Administrative Agent at the
Administrative Agent's Office, for the account of the Lenders, the Issuing Banks
or the Administrative Agent, as the case may be, in lawful money of the United
States of America in immediately available funds. Any payment received by the
Administrative Agent after 1:00 p.m. (Eastern time) shall be deemed received on
the next Business Day; provided, however, that payments received after 1:00 p.m.
(Eastern time) but
29
before 3:00 p.m. (Eastern time) shall be deemed received on the next Business
Day for purposes of calculating interest but shall not give rise to an Event of
Default under Section 8.1(b) hereof. In the case of a payment for the account of
a Lender, the Administrative Agent will promptly thereafter distribute the
amount so received in like funds to such Lender. If the Administrative Agent
shall not have received any payment from the Borrowers as and when due, the
Administrative Agent will promptly notify the Lenders accordingly.
(ii) If any payment under this Agreement or any
of the Notes shall be specified to be made upon a day which is not a Business
Day, it shall be made on the next succeeding day which is a Business Day, and
such extension of time shall in such case be included in computing interest and
fees, if any, in connection with such payment.
(b) No Deduction.
(i) The Borrowers, jointly and severally, agree
to pay principal, interest, fees, and all other amounts due hereunder or under
the Notes without set-off or counterclaim or any deduction whatsoever. If any
Borrower shall hereafter be required by law to deduct any taxes from or in
respect of any sum payable hereunder or under any Note to any Lender, any
Issuing Bank or the Administrative Agent, (A) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.8(b)),
such Lender, Issuing Bank or the Administrative Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (B) the Borrowers shall make such deductions and (C) the
Borrowers shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with Applicable Law.
(ii) Each Lender agrees to deliver to the
Borrowers and the Administrative Agent from time to time, a true and correct
certificate executed in duplicate by a duly authorized officer of such Lender
before or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Borrowers and the
Administrative Agent pursuant to this Section 2.8(b). The execution and delivery
hereof by a Lender shall be deemed to be a certification that such Lender falls
within subsection (A) below, and no further certificates need to be delivered by
such Lender until the occurrence of one of the events set forth in the preceding
sentence. Each certificate required to be delivered pursuant to this Section
2.8(b) shall certify as to one of the following:
(A) that such Lender shall continue to receive
payments hereunder without deduction or withholding of United States
federal income tax;
(B) that such Lender cannot continue to receive
payments hereunder without deduction or withholding of United States
federal income tax as specified therein but does not require additional
payments because it is entitled to recover the full amount of any such
deduction or withholding from a source other than the Borrowers or from
a tax credit or exemption; or
(C) that such Lender is no longer capable of
receiving payments hereunder without deduction or withholding of United
States federal income tax as specified therein by reason of a change in
law (including the Code or applicable tax treaty) after the later of
the Agreement Date or the date on which a Lender became a Lender
pursuant to Section 10.5 hereof and that it is not capable of
recovering the full amount of the same from a source other than the
Borrowers or from a tax credit or exemption.
30
(c) Inadequate Payments. If on the date on which any
amount shall be due and payable by the Borrowers in regard to the Obligations,
the amount received by the Administrative Agent from the Borrowers shall not be
adequate to pay the amount which shall be so due and payable, then the
Administrative Agent shall be authorized, but shall not be obligated, to make a
Base Rate Advance under the Revolving Loan Commitment on behalf of the Lenders
to the Borrowers by crediting the amount of such Base Rate Advance to the Loan
Account thereof pursuant to the provisions of Section 2.7(b) hereof, whereupon
the Administrative Agent shall debit the Loan Account hereof in a like amount in
payment of the part of the Obligations which shall then be due and payable. No
further authorization, direction or approval by the Borrowers shall be required
to be given by the Borrowers for the Administrative Agent to take the action
described in this Section 2.8(c).
Section 2.9 Reimbursement. Whenever any Lender shall sustain or
incur any losses or out-of-pocket expenses in connection with (i) failure by any
Borrower to borrow or continue any Eurodollar Advance, or convert any Advance to
a Eurodollar Advance, in each case, after having given notice of its intention
to borrow, continue or convert, as applicable, in accordance with Section 2.2
hereof (whether by reason of the election of any Borrower not to proceed or the
non-fulfillment of any of the conditions set forth in Article 3), or (ii)
prepayment of any Eurodollar Advance in whole or in part, the Borrowers, jointly
and severally, agree to pay to such Lender, upon the earlier of such Lender's
demand or the Maturity Date, an amount sufficient to compensate such Lender for
all such losses and reasonable out-of-pocket expenses. Such Lender's good faith
determination of the amount of such losses and reasonable out-of-pocket
expenses, absent manifest error, shall be binding and conclusive. Losses subject
to reimbursement hereunder shall include, without limiting the generality of the
foregoing, expenses actually incurred by any Lender or any participant of such
Lender permitted hereunder in connection with the re-employment of funds
prepaid, repaid, not borrowed, or paid, as the case may be, and any lost profit
of such Lender or any participant of such Lender over the remainder of the
Eurodollar Advance Period for such prepaid Advance.
Section 2.10 Pro Rata Treatment.
(a) Advances. Each Advance with respect to the Term Loans
and the Revolving Loans from the Lenders under this Agreement shall be made pro
rata on the basis of their respective Revolving Commitment Ratios and Term
Commitment Ratios, as applicable.
(b) Payments. Each payment and prepayment of the
principal of the Term Loans and the Revolving Loans and each payment of interest
on the Term Loans and the Revolving Loans received from the Borrowers shall be
made by the Administrative Agent to the Lenders pro rata on the basis of their
respective unpaid principal amounts thereof outstanding immediately prior to
such payment or prepayment (except in cases when a Lender's right to receive
payments is restricted pursuant to Section 2.2(e) hereof). If any Lender shall
obtain any payment (whether involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Term Loans or the Revolving Loans in
excess of its ratable share of the Loans under its Aggregate Commitment Ratio
(or in violation of any restriction set forth in Section 2.2(e) hereof), such
Lender shall forthwith purchase from the other Lenders such participation in the
Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery without interest thereon unless the Lender obligated to repay such
amount is required to pay
31
interest. Each Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.10(b) may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of such Borrower in the amount of such participation.
Section 2.11 Application of Payments Prior to Acceleration.
(a) Application of Payments Prior to Acceleration and
Prior to Exercise of the Call Option. Prior to the acceleration of the
Obligations under Section 8.2 hereof and prior to exercise of the Call Option,
and other than with respect to payments required to be made pursuant to Section
2.6 hereof (which shall be applied as set forth in Section 2.6 hereof), if some
but less than all amounts due from the Borrowers are received by the
Administrative Agent, the Administrative Agent shall distribute such amounts in
the following order of priority: FIRST, to the payment of interest then due and
payable on the Revolving Loans and the Term Loans, on a pro-rata basis; SECOND,
to the payment of principal then due and payable on the Tranche B Loan; THIRD,
to the payment of principal then due and payable on the Tranche A Loan; FOURTH,
to the payment of principal then due and payable on the Revolving Loans; FIFTH,
to the payment of any fees then due and payable to the Administrative Agent
hereunder or under any other Loan Document; SIXTH, to the payment of any fees
then due and payable to the Lenders and the Issuing Banks hereunder or under any
other Loan Documents; SEVENTH, to the extent of any Letter of Credit Obligations
then outstanding, to the Letter of Credit Reserve Account; EIGHTH, to the
payment of all other Obligations not otherwise referred to in this Section 2.11
then due and payable hereunder or under the other Loan Documents; and NINTH, to
the costs and expenses (including attorneys' fees and expenses), if any,
incurred by the Administrative Agent or any Lender in the collection of such
amounts under this Agreement or any of the other Loan Documents. Notwithstanding
the foregoing, to the extent any amount received hereunder consists of proceeds
from the sale of the Tranche A Collateral, such amount shall be applied to
reduce the outstanding amount of the Tranche A Loan Obligations.
(b) Application of Payments Prior to Acceleration and
After Exercise of the Call Option. Prior to the acceleration of the Obligations
under Section 8.2 hereof and after exercise of the Call Option and payment of
the Purchase Price (as defined in the ▇▇▇▇▇▇▇▇ Guaranty), and other than with
respect to payments required to be made pursuant to Section 2.6 hereof (which
shall be applied as set forth in Section 2.6 hereof), if some but less than all
amounts due from the Borrowers are received by the Administrative Agent, the
Administrative Agent shall distribute such amounts in the following order of
priority: FIRST, to the payment of interest then due and payable on the
Revolving Loans; SECOND, to the payment of principal then due and payable on the
Revolving Loans; THIRD, to the payment of any fees then due and payable to the
Administrative Agent hereunder or under any other Loan Document; FOURTH, to the
payment of any fees then due and payable to the Lenders and the Issuing Banks
hereunder or under any other Loan Documents; FIFTH, to the extent of any Letter
of Credit Obligations then outstanding, to the Letter of Credit Reserve Account;
SIXTH, to the payment of all other Obligations (other than the Term Loan
Obligations) not otherwise referred to in this Section 2.11 then due and payable
hereunder or under the other Loan Documents; and SEVENTH, to the costs and
expenses (including attorneys' fees and expenses), if any, incurred by the
Administrative Agent or any Lender in the collection of such amounts under this
Agreement or any of the other Loan Documents. Notwithstanding the foregoing, to
the extent any amount received hereunder consists of proceeds from the sale of
the Tranche A Collateral, such amount shall be applied to reduce the outstanding
amount of the Tranche A Loan Obligations and to the extent any amount received
hereunder consists of proceeds from the sale of any Collateral assigned by the
32
Administrative Agent to ▇▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇▇ Guaranty, such amount
shall be applied to reduce the outstanding amount of the Term Loan Obligations.
Section 2.12 Use of Proceeds. The proceeds of the Revolving Loans
shall be used for the Borrowers' general operating capital needs to the extent
not inconsistent with the provisions of this Agreement.
Section 2.13 All Obligations to Constitute Joint and Several
Obligations. All Obligations shall constitute joint and several obligations of
the Borrowers and shall be secured by the Administrative Agent's security
interest (on behalf of itself, the Issuing Banks and the Lenders) and Lien upon
all of the Collateral, and by all other security interests and Liens heretofore,
now or at any time hereafter granted by each Borrower to the Administrative
Agent and the Lenders, to the extent provided in the Security Documents under
which such Lien arises. Each Borrower expressly represents and acknowledges that
it is part of a common enterprise with the other Borrowers and that any
financial accommodations by the Agents and the Lenders to any other Borrower
hereunder and under the other Loan Documents are and will be of direct and
indirect interest, benefit and advantage to all Borrowers. Each Borrower
acknowledges that any Request for Advance, conversion request or other notice
given by any Borrower to the Administrative Agent or any Lender shall bind all
Borrowers, and that any notice given by the Administrative Agent or any Lender
to any Borrower shall be effective with respect to all Borrowers. Each Borrower
acknowledges and agrees that each Borrower shall be liable, on a joint and
several basis, for all of the Loans, regardless of which Borrower actually may
have received the proceeds of any of the Loans or other extensions of credit
hereunder or the amount of such Loans received or the manner in which the
Administrative Agent or any of the Lenders accounts for such Loans or other
extensions of credit on its books and records, and further acknowledges and
agrees that Loans to any Borrower inure to the mutual benefit of all of the
Borrowers and that the Agents and the Lenders are relying on the joint and
several liability of the Borrowers in extending the Loans and other financial
accommodations hereunder.
Each Borrower shall be entitled to subrogation and contribution rights
from and against the other Borrowers to the extent any Borrower is required to
pay to the Lenders any amount in excess of the Loans advanced hereunder directly
to such Borrower or as otherwise available under Applicable Law; provided,
however, that such subrogation and contribution rights are and shall be subject
to the terms and conditions of Section 2.14 hereof.
Section 2.14 Maximum Borrower Liability.
(a) It is the intent of the Borrowers, the Agents, and
the Lenders and any other Person holding any of the Obligations that each
Borrower's maximum obligations hereunder (such Borrower's "Maximum Borrower
Liability") in any case or proceeding referred to below (but only in such a case
or proceeding) shall not be in excess of:
(i) in a case or proceeding commenced by or
against such Borrower under the Bankruptcy Code on or within one (1) year from
the date on which any of the Obligations of such Borrower are incurred, the
maximum amount that would not otherwise cause the obligations of such Borrower
hereunder (or any other obligations of such Borrower to the Agents, the Issuing
Banks, the Lenders and any other Person holding any of the Obligations) to be
avoidable or unenforceable against such Borrower under (A) Section 548 of the
Bankruptcy Code or (B) any state fraudulent transfer or fraudulent
33
conveyance act or statute applied in such case or proceeding by virtue of
Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or
against such Borrower under the Bankruptcy Code subsequent to one (1) year from
the date on which any of the Obligations of such Borrower are incurred, the
maximum amount that would not otherwise cause the obligations of such Borrower
hereunder (or any other obligations of such Borrower to the Agents, the Issuing
Banks, the Lenders and any other Person holding any of the Obligations) to be
avoidable or unenforceable against such Borrower under any state fraudulent
transfer or fraudulent conveyance act or statute applied in any such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or
against such Borrower under any law, statute or regulation other than the
Bankruptcy Code relating to dissolution, liquidation, conservatorship,
bankruptcy, moratorium, readjustment of debt, compromise, rearrangement,
receivership, insolvency, reorganization or similar debtor relief from time to
time in effect affecting the rights of creditors generally (collectively, "Other
Debtor Relief Law"), the maximum amount that would not otherwise cause the
obligations of such Borrower hereunder (or any other obligations of such
Borrower to the Agents, the Issuing Banks and the Lenders and any other Person
holding any of the Obligations) to be avoidable or unenforceable against such
Borrower under such Other Debtor Relief Law, including, without limitation, any
state fraudulent transfer or fraudulent conveyance act or statute applied in any
such case or proceeding. (The substantive state or federal laws under which the
possible avoidance or unenforceability of the obligations of any Borrower
hereunder (or any other obligations of such Borrower to the Agents, the Issuing
Banks, the Lenders and any other Person holding any of the Obligations) shall be
determined in any such case or proceeding shall hereinafter be referred to as
the "Avoidance Provisions").
(b) To the extent set forth in Section 2.14(a), but only
to the extent that the Obligations of any Borrower hereunder, or the transfers
made by such Borrower under any Security Document, would otherwise be subject to
avoidance under any Avoidance Provisions if such Borrower is not deemed to have
received valuable consideration, fair value, fair consideration or reasonably
equivalent value for such transfers or obligations, or if such transfers or
obligations of any Borrower hereunder would render such Borrower insolvent, or
leave such Borrower with an unreasonably small capital or unreasonably small
assets to conduct its business, or cause such Borrower to have incurred debts
(or to have intended to have incurred debts) beyond its ability to pay such
debts as they mature, in each case as of the time any of the obligations of such
Borrower are deemed to have been incurred and transfers made under such
Avoidance Provisions, then the obligations of such Borrower hereunder shall be
reduced to that amount which, after giving effect thereto, would not cause the
Obligations of such Borrower hereunder (or any other obligations of such
Borrower to the Agents, the Issuing Banks and the Lenders or any other Person
holding any of the Obligations), as so reduced, to be subject to avoidance under
such Avoidance Provisions. This Section 2.14(b) is intended solely to preserve
the rights hereunder of the Agents, the Issuing Banks and the Lenders and any
other Person holding any of the Obligations to the maximum extent that would not
cause the obligations of the Borrowers hereunder to be subject to avoidance
under any Avoidance Provisions, and none of the Borrowers nor any other Person
shall have any right, defense, offset, or claim under this Section 2.14(b) as
against the Agents, the Issuing Banks and the Lenders or any other Person
holding any of the Obligations that would not otherwise be available to such
Person under the Avoidance Provisions.
34
(c) Each Borrower agrees that the Obligations may at any
time and from time to time exceed the Maximum Borrower Liability of such
Borrower, and may exceed the aggregate Maximum Borrower Liability of all
Borrowers hereunder, without impairing this Agreement or any provision contained
herein or affecting the rights and remedies of the Lenders, the Issuing Banks
and the Agents hereunder.
(d) In the event any Borrower (a "Funding Borrower")
shall make any payment or payments under this Agreement or shall suffer any loss
as a result of any realization upon any collateral granted by it to secure its
obligations hereunder, each other Borrower (each, a "Contributing Borrower")
shall contribute to such Funding Borrower an amount equal to such payment or
payments made, or losses suffered, by such Funding Borrower determined as of the
date on which such payment or loss was made multiplied by the ratio of (i) the
Maximum Borrower Liability of such Contributing Borrower (without giving effect
to any right to receive any contribution or other obligation to make any
contribution hereunder), to (ii) the aggregate Maximum Borrower Liability of all
Borrowers (including the Funding Borrowers) hereunder (without giving effect to
any right to receive, or obligation to make, any contribution hereunder).
Nothing in this Section 2.14(d) shall affect each Borrower's joint and several
liability to the Agents, the Issuing Banks and the Lenders for the entire amount
of its Obligations. Each Borrower covenants and agrees that its right to receive
any contribution hereunder from a Contributing Borrower shall be subordinate and
junior in right of payment to all obligations of the Borrowers to the Agents,
the Issuing Banks and the Lenders hereunder.
(e) No Borrower will exercise any rights which it may
acquire by way of subrogation hereunder or under any other Loan Document or at
law by any payment made hereunder or otherwise, nor shall any Borrower seek or
be entitled to seek any contribution or reimbursement from any other Borrower in
respect of payments made by such Borrower hereunder or under any other Loan
Document, until all amounts owing to the Agents, the Issuing Banks and the
Lenders on account of the Obligations are paid in full in cash and the
Commitments are terminated. If any amounts shall be paid to any Borrower on
account of such subrogation or contribution rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by such
Borrower in trust for the Agents, the Issuing Banks and the Lenders, segregated
from other funds of such Borrower, and shall, forthwith upon receipt by such
Borrower, be turned over to the Administrative Agent in the exact form received
by such Borrower (duly endorsed by such Borrower to the Administrative Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
as provided for herein.
Section 2.15 Maximum Rate of Interest. The Borrowers and the
Agent, the Issuing Banks and the Lenders hereby agree and stipulate that the
only charges imposed upon the Borrowers for the use of money in connection with
this Agreement are and shall be the specific interest and fees described in this
Article 2 and in any other Loan Document. Notwithstanding the foregoing, the
Borrowers and the Agents, the Issuing Banks and the Lenders further agree and
stipulate that all closing fees, upfront fees, agency fees, syndication fees,
facility fees, underwriting fees, default charges, late charges, funding or
"breakage" charges, increased cost charges, attorneys' fees and reimbursement
for costs and expenses paid by the Agents, any Issuing Bank or any Lender to
third parties or for damages incurred by the Agents, any Issuing Bank or any
Lender are charges to compensate the Agents, the Issuing Banks and the Lenders
for underwriting and administrative services and costs or losses performed or
incurred, and to be performed and incurred, by the Agents, the Issuing Banks and
the Lenders in connection with this Agreement and the other Loan Documents and
shall under no circumstances be deemed to be charges for the use of money
pursuant to Official Code of Georgia Annotated Sections 7-4-2 and 7-4-18. In no
event
35
shall the amount of interest and other charges for the use of money payable
under this Agreement exceed the maximum amounts permissible under any law that a
court of competent jurisdiction shall, in a final determination, deem
applicable. The Borrowers and the Agents, the Issuing Banks and the Lenders, in
executing and delivering this Agreement, intend legally to agree upon the rate
or rates of interest and other charges for the use of money and manner of
payment stated within it; provided, however, that, anything contained herein to
the contrary notwithstanding, if the amount of such interest and other charges
for the use of money or manner of payment exceeds the maximum amount allowable
under applicable law, then, ipso facto as of the date of this Agreement, the
Borrowers are and shall be liable only for the payment of such maximum as
allowed by law, and payment received from the Borrowers in excess of such legal
maximum, whenever received, shall be applied to reduce the principal balance of
the Obligations to the extent of such excess.
Section 2.16 Letters of Credit.
(a) Subject to the terms and conditions hereof, the
Issuing Banks, on behalf of the Lenders, and in reliance on the agreements of
the Lenders set forth in subsection (c) below, hereby agree to issue one or more
Letters of Credit up to an aggregate face amount equal to the Letter of Credit
Commitment; provided, however, that the Issuing Banks shall not issue any Letter
of Credit unless the conditions precedent to the issuance thereof set forth in
Section 3.3 hereof have been satisfied, and shall not issue any Letter of Credit
if any Default then exists or would be caused thereby or if, after giving effect
to such issuance, the Available Revolving Loan Commitment would be less than
zero or there would exist a Borrowing Base Deficiency; and provided further,
however, that at no time shall the total Letter of Credit Obligations
outstanding hereunder exceed the Letter of Credit Commitment. Each Letter of
Credit shall (1) be denominated in U.S. dollars, and (2) expire no later than
the earlier to occur of (A) the Maturity Date, and (B) 365 days after its date
of issuance (but may contain provisions for automatic renewal provided that no
Default or Event of Default exists on the renewal date or would be caused by
such renewal). Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of Georgia.
The Issuing Banks shall not at any time be obligated to issue, or cause to be
issued, any Letter of Credit if such issuance would conflict with, or cause such
Issuing Bank to exceed any limits imposed by, any Applicable Law.
(b) The Borrowers may from time to time request that an
Issuing Bank issue a Letter of Credit. The Borrowers shall execute and deliver
to the Administrative Agent and applicable Issuing Bank a Request for Issuance
of Letter of Credit for each Letter of Credit to be issued by such Issuing Bank,
not later than 12:00 noon (Eastern time) on the fifth (5th) Business Day
preceding the date on which the requested Letter of Credit is to be issued, or,
such shorter notice as may be acceptable to the Issuing Bank and the
Administrative Agent. Upon receipt of any such Request for Issuance of Letter of
Credit, subject to satisfaction of all conditions precedent thereto as set forth
in Section 3.3 hereof, the Issuing Bank shall process such Request for Issuance
of Letter of Credit and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby. The Issuing Bank shall furnish a copy of such Letter of Credit to the
Borrowers and the Administrative Agent following the issuance thereof. The
Borrowers shall pay or reimburse the Issuing Bank for normal and customary costs
and expenses incurred by such Issuing Bank in issuing, effecting payment under,
amending or otherwise administering the Letters of Credit.
(c) Immediately upon the issuance by an Issuing Bank of a
Letter of Credit, and in accordance with the terms and conditions of this
Agreement, such Issuing
36
Bank shall be deemed to have sold and transferred to each Lender, and each
Lender shall be deemed irrevocably and unconditionally to have purchased and
received from such Issuing Bank, without recourse or warranty, an undivided
interest and participation, to the extent of such Lender's Revolving Commitment
Ratio, in such Letter of Credit and the obligations of the Borrowers with
respect thereto (including, without limitation, all Letter of Credit Obligations
with respect thereto). At such time as the Administrative Agent shall be
notified by the Issuing Bank that the beneficiary under any Letter of Credit has
drawn on the same, the Administrative Agent shall promptly notify the Borrowers
and each Lender, by telephone or telecopy, of the amount of the draw and, in the
case of each Lender, such Lender's portion of such draw amount as calculated in
accordance with its Revolving Commitment Ratio.
(d) The Borrowers hereby agree to immediately reimburse
an Issuing Bank for amounts paid by such Issuing Bank in respect of draws under
a Letter of Credit. In order to facilitate such repayment, the Borrowers hereby
irrevocably request the Lenders, and the Lenders hereby severally agree, on the
terms and conditions of this Agreement (other than as provided in Article 2
hereof with respect to the amounts of, the timing of requests for, and the
repayment of Advances hereunder and in Article 3 hereof with respect to
conditions precedent to Advances hereunder), with respect to any drawing under a
Letter of Credit, to make a Base Rate Advance on each day on which a draw is
made under any Letter of Credit and in the amount of such draw, and to pay the
proceeds of such Advance directly to the Issuing Bank to reimburse the Issuing
Bank for the amount paid by it upon such draw. Each Lender shall pay its share
of such Base Rate Advance by paying its portion of such Advance to the
Administrative Agent in accordance with Section 2.2(e) hereof and its Revolving
Commitment Ratio, without reduction for any set-off or counterclaim of any
nature whatsoever and regardless of whether any Default or Event of Default then
exists or would be caused thereby. The disbursement of funds in connection with
a draw under a Letter of Credit pursuant to this Section hereunder shall be
subject to the terms and conditions of Section 2.2(e) hereof. The obligation of
each Lender to make payments to the Administrative Agent, for the account of the
Issuing Bank, in accordance with this Section 2.16 shall be absolute and
unconditional and no Lender shall be relieved of its obligations to make such
payments by reason of noncompliance by any other Person with the terms of the
Letter of Credit or for any other reason (other than the gross negligence of the
Issuing Bank in paying such Letter of Credit, as determined by a final
non-appealable judgment of a court of competent jurisdiction). The
Administrative Agent shall promptly remit to the Issuing Bank the amounts so
received from the other Lenders. Any overdue amounts payable by the Lenders to
the Issuing Bank in respect of a draw under any Letter of Credit shall bear
interest, payable on demand, (x) for the first two Business Days, at the rate on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published for such day by the Federal
Reserve Bank of New York, and (y) thereafter, at the Base Rate.
(e) The Borrowers agree that each Advance by the Lenders
to reimburse the Issuing Bank for draws under any Letter of Credit, shall, for
all purposes hereunder, be deemed to be a Base Rate Advance under the Revolving
Loan Commitment and shall be payable and bear interest in accordance with all
other Base Rate Advances of Revolving Loans.
(f) Borrower agrees that any action taken or omitted to
be taken by an Issuing Bank in connection with any Letter of Credit, except for
such actions or omissions as shall constitute gross negligence or willful
misconduct on the part of such Issuing Bank as determined by a final
non-appealable judgment of a court of competent jurisdiction, shall be binding
on the Borrowers as between the Borrowers and the Issuing Bank, and shall not
37
result in any liability of the Issuing Bank to the Borrower. The obligation of
the Borrowers to reimburse an Issuing Bank for a drawing under any Letter of
Credit or the Lenders for Advances made by them to Issuing Banks on account of
draws made under the Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances whatsoever (unless payment of such drawing
constituted gross negligence or willful misconduct on the part of the Issuing
Bank, as determined by a final non-appealable order of a court of competent
jurisdiction), including, without limitation, the following circumstances:
(i) Any lack of validity or enforceability of
any Loan Document;
(ii) Any amendment or waiver of or consent to any
departure from any or all of the Loan Documents;
(iii) Any improper use which may be made of any
Letter of Credit or any improper acts or omissions of any beneficiary or
transferee of any Letter of Credit in connection therewith;
(iv) The existence of any claim, set-off, defense
or any right which the Borrowers may have at any time against any beneficiary or
any transferee of any Letter of Credit (or Persons for whom any such beneficiary
or any such transferee may be acting), any Lender or any other Person, whether
in connection with any Letter of Credit, any transaction contemplated by any
Letter of Credit, this Agreement, or any other Loan Document, or any unrelated
transaction;
(v) Any statement or any other documents
presented under any Letter of Credit proving to be insufficient, forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(vi) The insolvency of any Person issuing any
documents in connection with any Letter of Credit;
(vii) Any breach of any agreement between the
Borrowers and any beneficiary or transferee of any Letter of Credit;
(viii) Any irregularity in the transaction with
respect to which any Letter of Credit is issued, including any fraud by the
beneficiary or any transferee of such Letter of Credit;
(ix) Any errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
wireless or otherwise, whether or not they are in code;
(x) Any act, error, neglect or default,
omission, insolvency or failure of business of any of the correspondents of the
Issuing Bank;
(xi) Any other circumstances arising from causes
beyond the control of the Issuing Bank;
(xii) Payment by the Issuing Bank under any Letter
of Credit against presentation of a sight draft or a certificate which does not
comply with the terms of such Letter of Credit, provided that such payment shall
not have constituted gross
38
negligence or willful misconduct of the Issuing Bank as determined by a final
non-appealable judgment of a court of competent jurisdiction, and
(xiii) Any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing.
(g) If any change in Applicable Law, any change in the
interpretation or administration thereof, or any change in compliance with
Applicable Law by the Issuing Bank as a result of any request or directive of
any Governmental Authority, central bank or comparable agency (whether or not
having the force of law) after the Agreement Date shall (i) impose, modify or
deem applicable any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit, capital
adequacy, assessment or other requirements or conditions against letters of
credit issued by the Issuing Bank or (ii) impose on the Issuing Bank any other
condition regarding this Agreement or any Letter of Credit or any participation
therein, and the result of any of the foregoing in the determination of the
Issuing Bank is to increase the cost to the Issuing Bank of issuing or
maintaining any Letter of Credit or purchasing or maintaining any participation
therein, then, on the earlier of the Maturity Date or a date not more than five
(5) days after demand by the Issuing Bank, the Borrowers agree to pay to the
Issuing Bank, from time to time as specified by the Issuing Bank, such
additional amount or amounts as the Issuing Bank determines will compensate it
for such increased costs, from the date such change or action is effective;
provided that the Borrowers shall not be required to compensate the Issuing Bank
pursuant to this Section 2.16(g) for any increased costs incurred more than 90
days prior to the date that the Issuing Bank notifies the Borrowers of the
change in law giving rise to such increased costs and of the Issuing Bank's
intention to claim compensation therefor; provided further that, if the change
in law giving rise to such increased costs is retroactive, then the 90-day
period referred to above shall be extended to include the period of retroactive
effect thereof. A certificate as to such increased cost incurred by the Issuing
Bank as a result of any event referred to in this paragraph submitted by the
Issuing Bank to the Borrowers shall be conclusive, absent manifest error, as to
the amount thereof.
(h) The Borrowers will indemnify and hold harmless the
Agents, each Issuing Bank and each other Lender and each of their respective
employees, representatives, officers and directors from and against any and all
claims, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including reasonable attorneys' fees) which may be imposed on,
incurred by or asserted against such Agent, such Issuing Bank or any such other
Lender in any way relating to or arising out of the issuance of a Letter of
Credit, except that the Borrowers shall not be liable to any Agent, any Issuing
Bank or any such Lender for any portion of such claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from the gross negligence or willful
misconduct of such Agent, such Issuing Bank or such Lender, as the case may be,
as determined by a final non-appealable judgment of a court of competent
jurisdiction. This Section 2.16(h) shall survive termination of this Agreement.
(i) Each Lender shall be responsible (to the extent the
Issuing Bank is not reimbursed by the Borrower) for its pro rata share (based on
such Lender's Revolving Commitment Ratio) of any and all reasonable
out-of-pocket costs, expenses (including reasonable legal fees) and
disbursements which may be incurred or made by the Issuing Bank in connection
with the collection of any amounts due under, the administration of, or the
presentation or enforcement of any rights conferred by any Letter of Credit, the
Borrower's or any guarantor's obligations to reimburse draws thereunder or
otherwise. In
39
the event the Borrowers shall fail to pay such expenses of the Issuing Bank
within fifteen (15) days of demand for payment by the Issuing Bank, each Lender
shall thereupon pay to the Issuing Bank its pro rata share (based on such
Lender's Revolving Commitment Ratio) of such expenses within ten (10) days from
the date of the Issuing Bank's notice to the Lenders of the Borrower's failure
to pay; provided, however, that if the Borrowers shall thereafter pay such
expenses, the Issuing Bank will repay to each Lender the amounts received from
such Lender hereunder.
Section 2.17 The Guaranty.
(a) Guaranty. The Parent hereby unconditionally
guarantees to the Agents, the Issuing Banks and the Lenders and their respective
permitted successors and assigns and the subsequent holders of the Obligations
(including, without limitation, any interest on the Loans accruing after the
filing of any insolvency, receivership, bankruptcy, dissolution, liquidation, or
reorganization proceeding, or in any other proceeding, whether voluntary or
involuntary, by or against the Parent, any Borrower or any of the Borrowers'
Subsidiaries, under any bankruptcy or insolvency law or laws, federal or state
relating to the relief of debtors of any jurisdiction, whether now or hereafter
in effect, and in any out-of-court composition, assignment for the benefit of
creditors, readjustment of Indebtedness, reorganization, extension or other debt
arrangement of any kind (collectively, an "Insolvency Proceeding")), whether or
not such interest accrues or is recoverable against the Borrowers after the
filing of such petition for purposes of the Bankruptcy Code or is an allowed
claim in such proceeding), irrespective of the validity and enforceability of
this Agreement, the Notes or the other Loan Documents or the Obligations of the
Borrowers or any of the other Guarantors hereunder or thereunder, the value or
sufficiency of any Collateral or any other circumstance that might otherwise
affect the liability of a guarantor, that: (i) the principal of and interest on
the Loans, the Notes and all other Obligations of the Borrowers and the other
Guarantors to the Agents, the Issuing Banks and the Lenders under this
Agreement, the Notes and the other Loan Documents shall be promptly paid in full
when due, whether at stated maturity, by acceleration or otherwise, in
accordance with the terms hereof and thereof; and (ii) in case of any extension
of time of payment or renewal of any Notes or any of such other Obligations, the
same shall be promptly paid in full when due in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The foregoing guaranty is a guaranty of payment and not of collection. Failing
payment when due of any amount so guaranteed for whatever reason, the Parent
will be obligated to pay the same immediately.
(b) Waivers and Releases. The Parent hereby waives notice
of, and consents to, any extension of time of payment, renewals, releases of
collateral, delays in obtaining or realizing upon or failures to obtain,
perfect, or maintain perfection of, or realize upon collateral or other
indulgence from time to time granted by any of the Agents, the Issuing Banks or
any of the Lenders in respect of this Agreement, the Notes or any other Loan
Document. Until the Obligations have been paid in full in cash or otherwise
satisfied to the satisfaction of the Agents, the Issuing Banks and the Lenders,
the Parent hereby releases the Borrowers from all, and agrees not to assert or
enforce (whether by or in a legal or equitable proceeding or otherwise) any,
"claims" (as defined in 11 U.S.C. ss. 101(4)), whether arising under Applicable
Law or otherwise, to which the Parent is or would be entitled by virtue of its
obligations hereunder, any payment made pursuant hereto or the exercise by the
Agents, the Issuing Banks or any of the Lenders of their rights with respect to
any Collateral, including any such claims to which the Parent may be entitled as
a result of any right of subrogation, exoneration or reimbursement. To the
extent that the Borrowers may not be released by the Parent under this Section
2.17, the Parent agrees that, until the Obligations have been paid in full in
cash or otherwise satisfied to the satisfaction of the
40
Agents, the Issuing Banks and the Lenders, it shall not be entitled to any right
of subrogation, exoneration, reimbursement or contribution in respect of any
Obligations guaranteed hereby. With respect to this Agreement and the Notes, the
Parent hereby waives presentment, protest, demand of payment, notice of dishonor
and all other notices and demands whatsoever. The Parent further agrees that, as
between the Parent, on the one hand, and the Agents, the Issuing Banks and the
Lenders, on the other hand, (i) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Section 8.2 hereof for the purposes of
this Guaranty, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Obligations guaranteed hereby,
and (ii) in the event of any declaration of acceleration of such Obligations as
provided in Section 8.2 hereof, such Obligations (whether or not otherwise due
and payable) shall forthwith become due and payable by the Parent for purposes
of this guarantee. The Obligations of the Parent under this Section 2.17 shall
be automatically reinstated if and to the extent that for any reason any payment
by or on behalf of the Borrowers is rescinded or must otherwise be restored by
any holder of any of the Obligations guaranteed hereunder, whether as a result
of any proceedings in bankruptcy or reorganization or otherwise, and the Parent
agrees that it will indemnify the Agents, the Issuing Banks and the Lenders on
demand for their out-of-pocket costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the Agents, the
Issuing Banks and the Lenders in connection with such rescission or restoration.
(c) Miscellaneous.
(i) Upon the bankruptcy or winding up or other
distribution of assets of the Borrowers or any Subsidiary of the Borrowers or of
any surety or guarantor for any of Obligations of the Borrowers to the Agents,
the Issuing Banks and the Lenders, or any of them, the rights of the Agents, the
Issuing Banks and the Lenders against the Parent shall not be affected or
impaired by the omission of any of the Agents, any Issuing Bank or any Lender to
prove its claim, or to prove its full claim, and the Administrative Agent may
prove such claims as it sees fit and may refrain from proving any claim and in
its discretion may value as it sees fit or refrain from valuing any security
held by it without in any way releasing, reducing or otherwise affecting the
liability of the Parent to any of the Agents, any Issuing Bank or any Lender.
(ii) The Parent absolutely, unconditionally and
irrevocably waives any and all right to assert any defense, set-off,
counterclaim or cross-claim of any nature whatsoever with respect to this
Section 2.17 or the obligations of the Parent hereunder or the obligations of
any other Person or party (including, without limitation, the Borrowers)
relating to this Section 2.17 or the obligations of any other guarantor with
respect to the Obligations in any action or proceeding brought by any Agent, any
Issuing Bank or any Lender to collect the Obligations or any portion thereof, or
to enforce the obligations of the Parent under this Section 2.17.
(iii) The Agents, the Issuing Banks and the
Lenders, or any of them, may from time to time, without exonerating or releasing
the Parent in any way under this Guaranty, (i) release, discharge, abandon or
otherwise deal with or fail to deal with any guarantor or surety of the
Obligations or any security or securities therefor or any part thereof now or
hereafter held by the Agents or (ii) amend, modify, extend, accelerate or waive
in any manner any of the provisions, terms, or conditions of the Loan Documents,
all as they may consider expedient or appropriate in their sole discretion or
(iii) act or fail to act in any manner referred to in this Section 2.17 without
regard to whether such action or inaction may deprive the Parent of its right to
subrogation against the Borrowers to recover full indemnity for any payments
made pursuant to this Section 2.17. Without limiting the
41
generality of this Section 2.17, it is understood that the Agents, the Issuing
Banks and the Lenders may, without exonerating or releasing the Parent, give up,
or modify or abstain from perfecting or taking advantage of any security for the
Obligations and accept or make any compositions or arrangements, and realize
upon any security for the Obligations when, and in such manner, as such Person
may deem expedient, all without notice to the Parent.
(iv) If a claim is ever made upon the Agents, the
Issuing Banks and the Lenders for the repayment or recovery of any amount or
amounts received by such Person in payment of any of the Obligations and such
Person repays all or part of such amount by reason of (i) any judgment, decree
or order of any court or administrative body having jurisdiction over such
Person or any of its property, or (ii) any settlement or compromise of any such
claim effected by such Person with any such claimant, including the Borrowers,
then in such event the Parent shall be and remain obligated to such Person
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by such Person.
(v) The Parent expressly represents and
acknowledges that any financial accommodations by the Agents, the Issuing Banks
and the Lenders, or any of them, to the Borrowers, including without limitation
the extension of the Loans and the issuance of the Letters of Credit are and
will be of direct interest, benefit and advantage to the Parent.
ARTICLE 3 CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Closing. The obligations of
the Lenders to undertake the Commitments and to fund the Tranche A Loan and the
Tranche B Loan, and to make the initial Advance of the Revolving Loans hereunder
and the obligation of the Issuing Banks to issue the initial Letter of Credit
hereunder, are subject to the prior fulfillment of each of the following
conditions:
(a) The Administrative Agent or the Lenders, as
appropriate, shall have received each of the following, in form and substance
satisfactory to the Administrative Agent and the Lenders:
(i) This duly executed Agreement;
(ii) A duly executed Tranche A Loan Note to the
order of each Lender in the amount of such Lender's pro rata share of the
Tranche A Loan Commitment, and a duly executed Tranche B Loan Note to the order
of each Lender in the amount of such Lender's pro rata share of the Tranche B
Loan Commitment;
(iii) A duly executed Revolving Loan Note to the
order of each Lender in the amount of such Lender's pro rata share of the
Revolving Loan Commitment;
(iv) The Security Agreement duly executed by each
of the Borrowers;
(v) The Trademark Security Agreement duly
executed by each of the Borrowers and each of the Subsidiaries of the Borrowers
which own trademarks;
(vi) The Pledge Agreements duly executed by the
pledgors party thereto, together with original stock certificates, warrants,
limited liability company interest
42
certificates or limited partnership interest certificates and appropriate
transfer powers executed in blank with respect to all collateral pledged
thereunder;
(vii) The Subsidiary Security Agreement duly
executed by all direct and indirect Subsidiaries of the Borrowers (other than
foreign Subsidiaries);
(viii) The Subsidiary Guaranty duly executed by all
direct and indirect Subsidiaries of the Borrowers (other than foreign
Subsidiaries);
(ix) The ▇▇▇▇▇▇▇▇ Guaranty duly executed by
▇▇▇▇▇▇▇▇;
(x) The legal opinions of ▇▇▇▇▇▇ & Bird LLP,
counsel to the Parent, Bull Run, Capital and Datasouth, and ▇▇▇▇▇▇▇▇ & Shohl
LLP, counsel to Host, each with respect to this Agreement in form and substance
satisfactory to the Administrative Agent;
(xi) A duly executed Borrowing Base Certificate
dated as of June 30, 2001;
(xii) A loan certificate as to each Borrower
signed by an Authorized Signatory of such Borrower in substantially the form of
Exhibit U attached hereto, including a certificate of incumbency with respect to
each Authorized Signatory of such Borrower, together with appropriate
attachments which shall include, without limitation, the following: (A) a copy
of the Certificate or Articles of Incorporation of such Borrower certified to be
true, complete and correct by the Secretary of State for the jurisdiction of
such Borrower's incorporation, (B) a true, complete and correct copy of the
By-Laws of such Borrower, (C) a true, complete and correct copy of the
resolutions of such Borrower authorizing the borrowing hereunder and the
execution, delivery and performance by such Borrower of the Loan Documents, (D)
certificates of good standing from each jurisdiction in which such Borrower is
qualified to do business, (E) true, correct and complete copies of any
employment agreements of such Borrower, and (F) true, correct and complete
copies of any shareholder or voting trust agreements with respect to such
Borrower;
(xiii) A loan certificate as to each direct or
indirect Subsidiary of any Borrower (other than foreign Subsidiaries) signed by
an Authorized Signatory of such Subsidiary in substantially the form of Exhibit
V attached hereto, including a certificate of incumbency with respect to each
Authorized Signatory of such Subsidiary, together with appropriate attachments
which shall include, without limitation, the following: (A) a copy of the
Certificate or Articles of Incorporation or other organizational document of
such Subsidiary certified to be true, complete and correct by the Secretary of
State for the jurisdiction of such Subsidiary's organization, (B) a true,
complete and correct copy of the By-Laws, Partnership Agreement or Limited
Liability Company Agreement of such Subsidiary, (C) a true, complete and correct
copy of the resolutions of such Subsidiary authorizing the execution, delivery
and performance by such Subsidiary of the Loan Documents to which it is a party,
(D) certificates of good standing from each jurisdiction in which such
Subsidiary is qualified to do business, and (E) true, correct and complete
copies of any shareholder or voting trust agreements with respect to such
Subsidiary; and
(xiv) A loan certificate of the Parent signed by
an Authorized Signatory of the Parent in substantially the form of Exhibit W
attached hereto, including a certificate of incumbency with respect to each
Authorized Signatory of the Parent, together with appropriate attachments which
shall include, without limitation, the following: (A) a
43
copy of the Articles of Incorporation of the Parent certified to be true,
complete and correct by the Secretary of State of Georgia, (B) a true, complete
and correct copy of the By-Laws of the Parent, (C) a true, complete and correct
copy of the resolutions of the Parent authorizing the execution, delivery and
performance by the Parent of the Loan Documents, and (D) certificates of good
standing from each jurisdiction in which the Parent is qualified to do business;
(xv) A Solvency Certificate of the Parent a
consolidated basis with its Subsidiaries executed by the Chief Financial Officer
of Bull Run, regarding the solvency and financial condition of the Parent and
its Subsidiaries and the accuracy of all internally prepared financial
statements and business plans, in form and substance satisfactory to the
Administrative Agent;
(xvi) A statement of ▇▇▇▇▇▇▇▇'▇ Unrestricted
Investments (as defined in the ▇▇▇▇▇▇▇▇ Guaranty) as of the Agreement Date, with
values thereon determined as of the Business Day immediately preceding the
Agreement Date;
(xvii) Updated personal financial statements of
▇▇▇▇▇▇▇▇ for the period ended June 30, 2001, which financial statements shall
include such detail of assets, liabilities, contingent liabilities and income as
shall be reasonably requested by the Agent;
(xviii) Copies of certificates of insurance and the
related insurance policies with respect to the Borrowers and meeting the
requirements of Section 5.5 hereof;
(xix) Since June 30, 2000, except with respect to
the restatement of certain assets of Universal Sports America, Inc., as
disclosed in filings by the Parent with the Securities and Exchange Commission,
(i) no change in the business, assets, management, operations, financial
condition, projections, or prospects of the Borrowers or any of their
Subsidiaries or Affiliates, or in the Collateral, shall have occurred, which
change, in the judgment of the Administrative Agent and the Lenders, may have a
Materially Adverse Effect, (ii) there shall have been no material increase in
the liabilities (absolute or contingent) of the Borrowers or any of their
Subsidiaries or Affiliates, whether or not disclosed or required to be reserved
against on any pro forma balance sheet, and (iii) there shall have been no
material decrease in the assets of the Borrowers or their Subsidiaries or
Affiliates, nor shall any of the Borrowers have made any distributions (other
than to any other Borrower), either by dividends or otherwise, other than in the
ordinary course of business;
(xx) Payment of all fees and expenses payable to
the Agents, the affiliates of the Agents, the Issuing Banks and the Lenders in
connection with the execution and delivery of this Agreement, including, without
limitation, fees and expenses of counsel to the Administrative Agent, any
appraisal and audit related fees and expenses.
(b) The Administrative Agent and the Lenders shall be
satisfied that the Loans and the use of proceeds thereof, comply in all respects
with Regulations T, U and X of the Board of governors of the Federal Reserve
System.
(c) The Administrative Agent and the Lenders shall have
received evidence satisfactory to each of them that all Necessary Authorizations
are in full force and effect and are not subject to any pending or threatened
reversal or cancellation, and that no Default or Event of Default exists, after
giving effect to the initial Advance, hereunder, and the Administrative Agent
and the Lenders shall have received a certificate of an Authorized Signatory so
stating.
44
(d) The Administrative Agent shall have received
confirmation that the original Uniform Commercial Code financing statements
signed by each of the Borrowers and the Parent as debtor and naming the
Administrative Agent as secured party have been duly filed in all appropriate
jurisdictions, in such form as shall be satisfactory to the Administrative
Agent.
Section 3.2 Conditions Precedent to Each Advance. The obligation
of the Lenders to make each Advance, including the initial Advance, hereunder is
subject to the fulfillment of each of the following conditions immediately prior
to or contemporaneously with such Advance:
(a) All of the representations and warranties of the
Borrowers under this Agreement, which, pursuant to Section 4.3 hereof, are made
at and as of the time of such Advance, shall be true and correct at such time,
both before and after giving effect to the application of the proceeds of the
Advance, and the Administrative Agent shall have received a certificate (which
may be a Request for Advance) to that effect signed by an Authorized Signatory
of the Borrowers and dated the date of such Advance;
(b) The incumbency of the Authorized Signatories shall be
as stated in the certificate of incumbency contained in the certificate of the
Borrowers delivered pursuant to Section 3.1(a) or as subsequently modified and
reflected in a certificate of incumbency delivered to the Administrative Agent
and the Lenders;
(c) The most recent Borrowing Base Certificate which
shall have been delivered to the Administrative Agent pursuant to Section 6.6(a)
hereof shall demonstrate that, after giving effect to the making of such
Advance, no Borrowing Base Deficiency shall exist; and
(d) There shall not exist on the date of such Advance and
after giving effect thereto, a Default or an Event of Default hereunder.
The Borrowers hereby agree that the delivery of any Request for Advance
hereunder shall be deemed to be the certification of the Authorized Signatory
thereof that there does not exist, on the date of the making of the Advance and
after giving effect thereto, a Default or an Event of Default hereunder.
Section 3.3 Conditions Precedent to Each Letter of Credit. The
obligation of the Issuing Banks to issue each Letter of Credit (including the
first Letter of Credit issued on or after the Agreement Date) hereunder is
subject to the fulfillment of each of the following conditions immediately prior
to or contemporaneously with the issuance of such Letter of Credit:
(a) All of the representations and warranties of the
Borrowers under this Agreement, which, pursuant to Section 4.3 hereof, are made
at and as of the time of the issuance of such Letter of Credit, shall be true
and correct at such time, both before and after giving effect to the issuance of
the Letter of Credit, and the Administrative Agent shall have received a
certificate (which may be a Request for Issuance of Letter of Credit) to that
effect signed by an Authorized Signatory of the Borrowers and dated the date of
the issuance of such Letter of Credit;
(b) The incumbency of the Authorized Signatories shall be
as stated in the certificate of incumbency contained in the certificate of the
Borrowers delivered
45
pursuant to Section 3.1(a) or as subsequently modified and reflected in a
certificate of incumbency delivered to the Administrative Agent and the Lenders;
(c) The most recent Borrowing Base Certificate which
shall have been delivered to the Administrative Agent pursuant to Section 6.6(a)
hereof shall demonstrate that, after giving effect to the making of such Letter
of Credit, no Borrowing Base Deficiency shall exist;
(d) There shall not exist on the date of issuance of such
Letter of Credit, and after giving effect thereto, a Default or an Event of
Default.
The Borrowers hereby agree that the delivery of any Request for Issuance of a
Letter of Credit hereunder shall be deemed to be the certification of the
Authorized Signatory thereof that there does not exist, on the date of issuance
of the Letter of Credit and after giving effect thereto, a Default or an Event
of Default hereunder.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
Section 4.1 General Representations and Warranties. In order to
induce the Administrative Agent, the Lenders and the Issuing Banks to enter into
this Agreement and to extend the Loans to the Borrowers, each of the Borrowers
hereby represents and warrants that:
(a) Organization; Power; Qualification. Each of the
Borrowers and each of their respective Subsidiaries is a corporation, limited
liability company or limited partnership duly organized, validly existing, and
in good standing under the laws of its state of organization, has the power and
authority to own or lease and operate its properties and to carry on its
business as now being and hereafter proposed to be conducted, and is duly
qualified and is in good standing as a foreign corporation, limited liability
company or limited partnership, and authorized to do business, in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization and where failure to be so
qualified or authorized would not result in a Materially Adverse Effect.
(b) Authorization; Enforceability. Each of the Borrowers
and each of their respective Subsidiaries has the power and has taken all
necessary corporate, limited liability company or partnership action to
authorize it to execute, deliver, and perform this Agreement and each of the
other Loan Documents to which it is a party in accordance with the terms thereof
and to consummate the transactions contemplated hereby and thereby. This
Agreement and each of the other Loan Documents to which any Borrower or any of
their Subsidiaries is a party has been duly executed and delivered by such
Borrower or such Subsidiary, and is, and each of the other Loan Documents to
which any Borrower or any of their Subsidiaries is a party is, a legal, valid
and binding obligation of such Borrower or such Subsidiary, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditor's rights generally.
(c) Partnerships; Joint Ventures; Subsidiaries. None of
the Borrowers nor any of their respective Subsidiaries is a partner or joint
venturer in any partnership or joint venture other than (i) the Subsidiaries
listed on Schedule 4.1(c) and (ii) the partnerships and joint ventures listed on
Schedule 4.1(c). Schedule 4.1(c) sets forth, for each partnership or joint
venture that is not a Subsidiary of a Borrower, a complete and accurate
statement of (A) the percentage ownership of each such partnership or joint
venture by each Borrower or any Subsidiary of any Borrower, (B) the state or
other jurisdiction of formation or incorporation, as appropriate, of each such
partnership or joint venture, and (C) all of each
46
such partnership's or joint venture's trade names, trade styles or doing
business forms on the date of this Agreement. Except as set forth on Schedule
4.1(c), none of the Borrowers nor any of their Subsidiaries has any
Subsidiaries.
(d) Capital Stock and Related Matters. The authorized
Capital Stock of the Parent owned by ▇▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇▇ Affiliates as of
the Agreement is set forth, as of the Agreement Date, on Schedule 4.1(d)
attached hereto. The authorized Capital Stock of each Borrower is as set forth
on Schedule 4.1(d) attached hereto, and all of the shares of such Capital Stock
were issued and outstanding as of the Agreement Date and are fully paid and
non-assessable. As of the Agreement Date, the Capital Stock of each Borrower is
owned by the parties listed on Schedule 4.1(d) in the amounts set forth on such
schedule. None of the Borrowers has outstanding any stock or securities
convertible into or exchangeable for any shares of its Capital Stock, nor are
there any preemptive or similar rights to subscribe for or to purchase, or any
other rights to subscribe for or to purchase, or any options for the purchase
of, or any agreements providing for the issuance (contingent or otherwise) of,
or any calls, commitments, or claims of any character relating to, any Capital
Stock or any stock or securities convertible into or exchangeable for any
Capital Stock. None of the Borrowers is subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any shares of its
Capital Stock or to register any shares of its Capital Stock, and there are no
agreements restricting the transfer of any shares of any Borrower's Capital
Stock.
(e) Compliance with Laws, Other Loan Documents, and
Contemplated Transactions. The execution, delivery, and performance of this
Agreement and each of the other Loan Documents in accordance with the terms
thereof and the consummation of the transactions contemplated hereby and thereby
do not and will not (i) violate any material provisions of Applicable Law, (ii)
conflict with, result in a breach of, or constitute a default under the
certificate of incorporation or by-laws of any Borrower or any Subsidiary of any
Borrower or under any indenture, material agreement, or other material
instrument 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, or (iii) result in or require the creation
or imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by any Borrower or any Subsidiary of any Borrower except
Permitted Liens.
(f) Necessary Authorizations. Each Borrower and each
Subsidiary of a Borrower has obtained all Necessary Authorizations, and all such
Necessary Authorizations are in full force and effect. None of said Necessary
Authorizations is the subject of any pending or, to the best of any Borrower's
knowledge, threatened attack or revocation, by the grantor of the Necessary
Authorization. None of the Borrowers nor any Subsidiary of any Borrower is
required to obtain any additional Necessary Authorizations in connection with
the execution, delivery, and performance, in accordance with the terms of this
Agreement or any other Loan Document, and the borrowing hereunder.
(g) Title to Properties. Each Borrower and each
Subsidiary of a Borrower has marketable, and legal title to, or a valid
leasehold interest in, all of its properties and assets, and none of such
properties or assets is subject to any Liens (other than Permitted Liens).
(h) Material Contracts; Labor Matters. Schedule 4.1(h)
contains a complete list, as of the Agreement Date, of each contract or
agreement to which any Borrower or any Subsidiary of any Borrower is a party
which, if expired, terminated or canceled, would have a Materially Adverse
Effect and, upon the request of the
47
Administrative Agent or any Lender, the Borrowers will provide the
Administrative Agent or such Lender, as applicable, with a copy of any such
contract or agreement. Except as disclosed on Schedule 4.1(h): (i) material no
labor contract to which any Borrower or any Subsidiary of any Borrower is a
party or is otherwise subject is scheduled to expire prior to the Maturity Date;
(ii) none of the Borrowers nor any of their respective Subsidiaries has, within
the two (2) year period immediately preceding the Agreement Date, taken any
action which would have constituted or resulted in a "plant closing" or "mass
layoff" within the meaning of the Federal Worker Adjustment and Retraining
Notification Act of 1988 or any similar applicable federal, state or local law,
and none of the Borrowers has any reasonable expectation that any such action is
or will be required at any time prior to the Maturity Date; and (iii) on the
Agreement Date (A) none of the Borrowers nor any of their respective
Subsidiaries is a party to any labor dispute (other than any immaterial disputes
with such Borrower's or such Subsidiary's employees as individuals and not
affecting such Borrower's or such Subsidiary's relations with any labor group or
its workforce as a whole) and (B) there are no pending or, to any Borrower's
knowledge, threatened strikes or walkouts relating to any material labor
contracts to which any Borrower or any Subsidiary of any Borrower is a party or
is otherwise subject. None of the employees of any Borrower or any Subsidiary of
any Borrower is a party to any collective bargaining agreement with any Borrower
or any Subsidiary of any Borrower.
(i) Taxes. Except as set forth on Schedule 4.1(i)
attached hereto, all federal, state, and other tax returns of each of the
Borrowers and each of their respective Subsidiaries required by law to be filed
have been duly filed, and all federal, state, and other taxes, assessments, and
other governmental charges or levies upon each of the Borrowers and each of
their respective Subsidiaries and any of their respective properties, income,
profits, and assets, which are due and payable, have been paid, except any
payment of any of the foregoing which any Borrower or any Subsidiary of any
Borrower, as applicable, are currently contesting in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of such Borrower or such Subsidiary, as the case may be.
The charges, accruals, and reserves on the books of each of the Borrowers and
each of their respective Subsidiaries in respect of taxes are, in the reasonable
judgement of the Borrowers, adequate. None of the Borrowers nor any of their
respective Subsidiaries are being audited, or have knowledge of any pending
audit, by the Internal Revenue Service or any other taxing authority.
(j) Financial Statements. The Borrowers have furnished,
or caused to be furnished, to the Administrative Agent and the Lenders financial
statements for the Borrowers on a consolidated basis which are complete and
correct in all material respects and present fairly in accordance with GAAP the
financial position of the Borrowers on a consolidated basis as at May 31, 2001,
and the results of operations for the periods then ended. Except as disclosed in
such financial statements, none of the Borrowers nor any of their respective
Subsidiaries has any material liabilities, contingent or otherwise, and there
are no material unrealized or anticipated losses of any Borrower or any
Subsidiary of any Borrower which have not heretofore been disclosed in writing
to the Administrative Agent and the Lenders. Each of the Borrowers has a fiscal
year ending on June 30.
(k) No Adverse Change. Except with respect to the
restatement of certain assets of Universal Sports America, Inc., as disclosed in
filings by the Parent with the Securities and Exchange Commission, since June
30, 2000, there has occurred no event which could reasonably be expected to have
a Materially Adverse Effect.
(l) Investments and Guaranties. As of the Agreement Date,
none of the Borrowers owns the Capital Stock, partnership interests or other
securities of or equity
48
interests in, or have outstanding loans or advances to, or guaranties of the
obligations of, any Person, except as disclosed on Schedule 4.1(c) or Schedule
4.1(l).
(m) Liabilities, Litigation. Except for liabilities
incurred in the normal course of business, none of the Borrowers nor any of
their respective Subsidiaries has any material (individually or in the
aggregate) liabilities, direct or contingent, except as disclosed or referred to
in the financial statements referred to in Section 4.1(j) above or with respect
to the Obligations. As of the Agreement Date, except as described on Schedule
4.1(m) and Schedule 4.1(x) attached hereto, there is no litigation, legal or
administrative proceeding, investigation, or other similar action of any nature
pending or, to the knowledge of any Borrower, threatened against or affecting
any Borrower or any Subsidiary of any Borrower or any of their respective
properties which could reasonably be expected to result in any judgment against
or liability of such Borrower or such Subsidiary in excess of $100,000, or the
loss of any certification or license material to the operation of any Borrower's
business. None of such litigation disclosed on Schedule 4.1(m) and Schedule
4.1(x), individually or collectively, could reasonably be expected to have a
Materially Adverse Effect. None of the Borrowers knows of any unusual or unduly
burdensome restriction, restraint, or hazard relative to the business or
properties of any Borrower or any Subsidiary of any Borrower that is not
customary for or generally applicable to similarly situated businesses in the
same industry as such Borrower or such Subsidiary.
(n) ERISA. Each Borrower and each ERISA Affiliate and
each of their respective Plans are in substantial compliance with ERISA and the
Code and none of the Borrowers nor any of their ERISA Affiliates incurred any
accumulated funding deficiency with respect to any such Plan within the meaning
of ERISA or the Code. The Borrowers and each of their ERISA Affiliates have
complied with all material requirements of ERISA Sections 601 through 608 and
Code Section 4980B. None of the Borrowers nor, to the best of the Borrowers'
knowledge, any of their ERISA Affiliates has made any promises of retirement or
other benefits to employees, except as set forth in the Plans. None of the
Borrowers nor any of their respective Subsidiaries has incurred any material
liability to the Pension Benefit Guaranty Corporation in connection with any
such Plan. The assets of each such Plan which is subject to Title IV of ERISA
are sufficient to provide the benefits under such Plan, the payment of which the
Pension Benefit Guaranty Corporation would guarantee if such Plan were
terminated, and such assets are also sufficient to provide all other "benefit
liabilities" (as defined in ERISA Section 4001(a)(16)) due under the plan upon
termination. No Reportable Event has occurred and is continuing with respect to
any such Plan. No such Plan or trust created thereunder, or party in interest
(as defined in Section 3(14) of ERISA, or any fiduciary (as defined in Section
3(21) of ERISA), has engaged in a "prohibited transaction" (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) which would subject
such Plan or any other Plan of any Borrower or any ERISA Affiliate of any
Borrower, any trust created thereunder, or any such party in interest or
fiduciary, or any party dealing with any such Plan or any such trust to any
material penalty or tax on "prohibited transactions" imposed by Section 502 of
ERISA or Section 4975 of the Code. None of the Borrowers nor any of their ERISA
Affiliates is a participant in or is obligated to make any payment to a
Multiemployer Plan.
(o) Intellectual Property; Licenses; Certifications.
Except as set forth on Schedule 4.1(o), none of the Borrowers nor any of their
respective Subsidiaries owns any material registered patents, trademarks,
service marks or copyrights, and has no pending registration applications with
respect to any of the foregoing. No other material patents, trademarks, service
marks or copyrights are necessary for the operation of the business of any
Borrower or its Subsidiaries. The Borrowers have all material licenses or
certifications necessary for the operation of any Borrower's business.
49
(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) a default by the Parent under the Subordinated
Debt, 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.
(q) Casualties; Taking of Properties. Since June 30,
2000, neither the business nor the properties of any Borrower or any Subsidiary
of any Borrower has been materially and adversely affected as a result of any
fire, explosion, earthquake, flood, drought, windstorm, accident, strike or
other labor disturbance, embargo, requisition or taking of property or
cancellation of contracts, permits or concessions by any domestic or foreign
government or any agency thereof, riot, activities of armed forces, or acts of
God or of any public enemy.
(r) Accuracy and Completeness of Information. All
information, reports, and other papers and data relating to any Borrower or any
Subsidiary of any Borrower furnished to the Administrative Agent and the Lenders
were, at the time the same were so furnished, (i) to the extent prepared by
third parties, to the best of each Borrower's knowledge, and (ii) to the extent
prepared by any Borrower, complete and correct in all material respects in light
of all such information, reports and other papers and data taken as a whole at
such time. No fact is currently known to any Borrower which has, or could
reasonably be expected to have, a Materially Adverse Effect. With respect to
projections, estimates and forecasts given to the Administrative Agent and the
Lenders, such projections, estimates and forecasts are based on the Borrowers'
good faith assessment of the future of the business at the time made. The
Borrowers had a reasonable basis for such assessments at the time made.
(s) Compliance with Regulations T, U, and X. None of the
Borrowers nor any of their respective Subsidiaries is engaged principally or as
one of its important activities in the business of extending credit for the
purpose of purchasing or carrying, any "margin security" or "margin stock" as
defined in Regulations T, U, and X (12 C.F.R. Parts 221 and 224) of the Board of
Governors of the Federal Reserve System (herein called "margin stock"). None of
the proceeds of the Revolving Loans or the Tranche B Loan will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute the making of the Revolving Loans or the Tranche B Loan a "purpose
credit" within the meaning of said Regulations T, U, and X. None of the
Borrowers nor any bank acting on any Borrower's behalf has taken or will take
any action which might cause this Agreement or the Notes to violate Regulation
T, U, or X or any other regulation of the Board of Governors of the Federal
Reserve System or to violate the Securities Exchange Act of 1934, in each case
as now in effect or as the same may hereafter be in effect. If so requested by
the Administrative Agent, the Borrowers will furnish the Administrative Agent
with (i) a statement or statements in conformity with the requirements of
Federal Reserve Form U-1 referred to in Regulation U of said Board of Governors
and (ii) other documents evidencing its compliance with the margin regulations,
including, without limitation, an opinion of counsel in form and substance
satisfactory to the Administrative Agent. Neither the making of the Loans nor
the
50
use of proceeds thereof will violate, or be inconsistent with, the provisions of
Regulation T, U, or X of said Board of Governors.
(t) Solvency. As of the Agreement Date and after giving
effect to the transactions contemplated by the Loan Documents: (i) the property
of each Borrower, at a fair valuation on a going concern basis, will exceed its
debt; (ii) the capital of each Borrower will not be unreasonably small to
conduct its business; and (iii) none of the Borrowers will have incurred debts,
or have intended to incur debts, beyond its ability to pay such debts as they
mature. For purposes of this Section, "debt" means any liability on a claim, and
"claim" means (i) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (ii) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
(u) Insurance. Each Borrower and each of its Subsidiaries
has insurance meeting the requirements of Section 5.5 hereof, and such insurance
policies are in full force and effect.
(v) Broker's or Finder's Commissions. No broker's or
finder's fee or commission will be payable with respect to the issuance of the
Notes, and no other similar fees or commissions will be payable by any Borrower
for any other services rendered to any Borrower ancillary to the transactions
contemplated herein.
(w) Real Property. All real property owned or leased by
any Borrower or any Subsidiary of any Borrower, and, with respect to any leased
property of a material nature, the name of the lessor of such real property, is
set forth in Schedule 4.1(w). True, correct and complete copies of each of the
material leases of the Borrowers or their respective Subsidiaries have been
delivered to the Administrative Agent, and each such lease is valid, enforceable
and in full force and effect, and has not been modified or amended, except as
otherwise set forth in Schedule 4.1(w). Each Borrower or Subsidiary of a
Borrower, as applicable, is the sole holder of the lessee's interests under each
lease to which it is a party. None of the Borrowers nor any of their respective
Subsidiaries has made any pledge or assignment of any of it rights under any
such leases except as set forth in Schedule 4.1(w) and there is no default or
condition which, with the passage of time or the giving of notice, or both,
would constitute a material default on the part of any party under such leases.
As of the Agreement Date, none of the Borrowers nor any of their respective
Subsidiaries owns, leases or uses any real property other than as set forth in
Schedule 4.1(w). Each Borrower and each of such Borrower's Subsidiaries owns
good and marketable fee simple title to all of its owned real property, and none
of its real property is subject to any Liens (other than Permitted Liens). None
of the Borrowers nor any of their respective Subsidiaries owns or holds, or is
obligated under or a party to, any option, right of first refusal or any other
contractual right to purchase, acquire, sell, assign or dispose of any real
property leased by it.
(x) Environmental Matters. Except as is described in
Schedule 4.1(x) attached hereto:
(i) The Property does not contain, in, on or
under, including, without limitation, the soil and groundwater thereunder, any
Hazardous Materials in violation of Environmental Laws or in amounts that could
give rise to any material liability under Environmental Laws.
51
(ii) Each Borrower and each Subsidiary of a
Borrower is in compliance with all applicable Environmental Laws, and there is
no contamination or violation of any Environmental Law which could materially
interfere with the continued operation of any of the Property or impair the
financial condition of the Borrowers and their Subsidiaries on a consolidated
basis.
(iii) None of the Borrowers nor any of their
respective Subsidiaries has received from any Governmental Authority any
complaint, or notice of violation, alleged violation, investigation or advisory
action or notice of potential liability regarding matters of environmental
protection or permit compliance under applicable Environmental Laws with regard
to the Property, nor is any Borrower aware that any such notice is pending.
(iv) Hazardous Materials have not been generated,
treated, stored, disposed of, at, on or under any of the Property in violation
of any Environmental Laws or in a manner that could give rise to any material
liability under Environmental Laws nor have any Hazardous Materials been
transported or disposed of from any of the Property to any other location in
violation of any Environmental Laws or in a manner that could give rise to
liability under Environmental Laws.
(v) None of the Borrowers nor any of their
respective Subsidiaries is a party to any governmental administrative actions or
judicial proceedings pending under any Environmental Law with respect to any of
the Property, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to
any of the Property.
(vi) There has been no release or threat of
release of Hazardous Materials into the environment at or from any of the
Property, or arising from or relating to the operations of the Borrowers, in
material violation of Environmental Laws or in amounts that could give rise to
any material liability under Environmental Laws.
(y) OSHA. All of the operations of the Borrowers and
their respective Subsidiaries are conducted in all material respects in
compliance with all applicable rules and regulations promulgated by the
Occupational Safety and Health Administration of the United States Department of
Labor.
(z) Name of Borrowers. Except as set forth in Schedule
4.1(z), none of the Borrowers nor any of their respective Subsidiaries has
changed its name within the preceding five (5) years from the Agreement Date,
nor has any Borrower or any Subsidiary of a Borrower transacted business under
any other name or trade name.
(aa) Investment Company Act. None of the Borrowers nor any
of their respective Subsidiaries is required to register under the provisions of
the Investment Company Act of 1940, as amended, and neither the entering into or
performance by any Borrower of this Agreement nor the issuance of the Notes
violates any provision of such Act or requires any consent, approval, or
authorization of, or registration with, any governmental or public body or
authority pursuant to any of the provisions of such Act.
(bb) Holding Company Status. The Parent does not own or
lease, directly or indirectly, any real, personal, intangible or tangible
property of any nature, other than such Capital Stock of Bull Run, and the
Parent does not conduct, transact or otherwise
52
engage in any business or operations other than those incidental to the
ownership of such Capital Stock of Bull Run. Datasouth does not own any material
assets other than the Datasouth Real Property, the AMT Note and Capital Stock of
▇▇▇▇ Communications System, Inc.
Section 4.2 Representations and Warranties Relating to Accounts.
With respect to all Accounts which are identified or included on any Schedule,
Borrowing Base Certificate or other report as Eligible Accounts, each Borrower
hereby warrants and represents to the Administrative Agent and the Lenders to
the best of their knowledge that:
(a) They are genuine and in all respects what they
purport to be, and they are not evidenced by judgments;
(b) They arise out of completed, bona fide sales of goods
or rendition of services by the Borrowers in the ordinary course of their
business and in accordance with the terms and conditions of all purchase orders,
contracts or other documents relating thereto and forming a part of the contract
between the Borrowers and the Account Debtors;
(c) They are for liquidated amounts maturing as stated in
the duplicate invoice covering such sale or rendition of services, copies of
which have been furnished or are available to the Administrative Agent;
(d) None of the Borrowers has made an agreement with any
Account Debtor thereunder for any deduction therefrom, except discounts or
allowances which are granted by the Borrowers in the ordinary course of their
business for prompt payment or volume purchases and which are reflected in the
calculation of the net amount of each respective invoice related thereto;
(e) There are no facts, events or occurrences of which
the Borrowers have knowledge which in any way impair the validity or
enforceability thereof or which will reduce the amount payable thereunder from
the face amount of the invoice and statements delivered to the Administrative
Agent with respect thereto;
(f) To the best of the Borrowers' knowledge, the Account
Debtors thereunder (i) had the capacity to contract at the time any contract or
other document giving rise to the Accounts were executed and (ii) such Account
Debtors are solvent; and
(g) None of the Borrowers has knowledge of any fact or
circumstance which would impair the validity or collectibility of the Accounts,
and to the best of the Borrowers' knowledge, there are no proceedings or actions
which are threatened or pending against any Account Debtor thereunder which
might result in any material adverse change in such Account Debtor's financial
condition or the collectibility of such Account.
Section 4.3 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to be
made, and shall be true and correct, at and as of the Agreement Date and the
date of each Advance or issuance of a Letter of Credit hereunder, except to the
extent previously fulfilled in accordance with the terms hereof and to the
extent subsequently inapplicable. All representations and warranties made under
this Agreement shall survive, and not be waived by, the execution hereof by the
Lenders, the Issuing Banks and the Agents, any investigation or inquiry by any
Lender or the Administrative Agent or the making of any Advance or issuance of a
Letter of Credit under this Agreement.
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ARTICLE 5 GENERAL COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Borrowers shall have the right to borrow, or to have a Letter of Credit issued,
hereunder (whether or not the conditions to borrowing have been or can be
fulfilled), and unless all of the Lenders shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Each
Borrower will, and will cause each of its Subsidiaries to, (i) preserve and
maintain its existence, rights, franchises, licenses, and privileges in its
jurisdiction of incorporation, including, without limitation, all Necessary
Authorizations material to its business, and (ii) qualify and remain qualified
and authorized to do business in each jurisdiction in which the character of its
properties or the nature of their respective business requires such
qualification or authorization.
Section 5.2 Compliance with Applicable Law. Each Borrower will
comply, and will cause each of its Subsidiaries to comply, in all material
respects with the requirements of all Applicable Laws.
Section 5.3 Maintenance of Properties. Each Borrower will
maintain, and will cause each of its Subsidiaries to maintain, or cause to be
maintained in the ordinary course of business in good repair, working order, and
condition, normal wear and tear and disposal of obsolete equipment excepted, all
properties used or useful in their respective businesses (whether owned or held
under lease), and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments, and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. Each
Borrower will maintain, and will cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with GAAP, and
will keep, and will cause each of its Subsidiaries to keep, adequate records and
books of account in which complete entries will be made in accordance with such
accounting principles consistently applied and reflecting all transactions
required to be reflected by such accounting principles.
Section 5.5 Insurance. Each Borrower will maintain, and will cause
each of its Subsidiaries to maintain, insurance including, but not limited to,
public liability, product liability, business interruption, and fidelity
coverage insurance, in such amounts and against such risks as would be customary
for companies in the same industry and of comparable size as such Borrower from
responsible companies having and maintaining an A.M. Best rating of "A minus" or
better and being in a size category of VI or larger or otherwise acceptable to
the Administrative Agent. In addition to the foregoing, each Borrower further
agrees to maintain and pay for insurance upon all goods constituting Collateral
wherever located, in storage or in transit in vehicles, including goods
evidenced by documents, covering casualty, hazard, public liability, and such
other risks and in such amounts as would be customary for companies in the same
industry and of comparable size as such Borrower, from responsible companies
having and maintaining an A.M. Best rating of "A minus" or better and being in a
size category of VI or larger or otherwise acceptable to the Administrative
Agent to insure its interest and the interest of the Lenders in such Collateral.
All such property insurance policies shall name the Administrative Agent as loss
payee and all liability insurance policies shall name the Administrative Agent
as additional insured. Each Borrower shall deliver the original certificates of
insurance evidencing that the required insurance is in force together with
satisfactory lender's loss payable and additional insured, as applicable,
endorsements. Each policy of insurance or endorsement shall contain a clause
54
requiring the insurer to give not less than thirty (30) days' prior written
notice to the Administrative Agent in the event of cancellation or modification
of the policy for any reason whatsoever and a clause that the interest of the
Administrative Agent shall not be impaired or invalidated by any act or neglect
of any Borrower or owner of the Collateral nor by the occupation of the premises
for purposes more hazardous than are permitted by said policy. If any Borrower
fails to provide and pay for such insurance, the Administrative Agent may, at
the Borrowers' expense, procure the same, but shall not be required to do so.
Each Borrower agrees to deliver to the Administrative Agent, promptly as
rendered, true copies of all reports made in any reporting forms to insurance
companies.
Section 5.6 Payment of Taxes and Claims. Each Borrower will pay
and discharge, and will cause each of its Subsidiaries to pay and discharge, all
taxes, assessments, and governmental charges or levies imposed upon it or upon
its incomes or profits or upon any properties belonging to it prior to the date
on which penalties attach thereto, and all lawful claims for labor, materials
and supplies which have become due and payable and which by law have or may
become a Lien upon any of its Property, except that, no such tax, assessment,
charge, levy, or claim need be paid which is being contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on the appropriate books, but only so long as such tax, assessment,
charge, levy, or claim does not become a Lien or charge other than a Permitted
Lien, and no foreclosure, distraint, sale, or similar proceedings shall have
been commenced and remain unstayed for a period thirty (30) days after such
commencement. Each Borrower shall timely file and shall cause each of its
Subsidiaries timely to file, all information returns required by federal, state,
or local tax authorities.
Section 5.7 Visits and Inspections. Each Borrower will permit,
and will cause each of its Subsidiaries to permit, representatives of the
Administrative Agent, the Issuing Banks and the Lenders, upon at least 24 hours
notice to the Borrowers, or, upon the occurrence of a Default, without notice,
to (a) visit and inspect the properties of such Borrower and each of such
Borrower's Subsidiaries, (b) inspect and make extracts from and copies of its
books and records, and (c) discuss with its principal officers its businesses,
assets, liabilities, financial positions, results of operations, and business
prospects relating to the Borrowers. In addition to the foregoing, the Lenders
and their respective officers, employees and agents shall have the right, from
time to time in their sole discretion and at the sole expense of the Borrowers,
to conduct field audits with respect to the Collateral.
Section 5.8 Conduct of Business. Each Borrower shall continue,
and shall cause each of its Subsidiaries to continue, to engage in business of
the same general type as now respectively conducted by it.
Section 5.9 ERISA. Each Borrower shall at all times make, or
cause to be made, prompt payment of contributions required to meet the minimum
funding standards set forth in ERISA with respect to its and its ERISA
Affiliates' Plans; furnish to the Administrative Agent, promptly upon the
Administrative Agent's request therefor, copies of any annual report required to
be filed pursuant to ERISA in connection with each such Plan of it and its ERISA
Affiliates; notify the Administrative Agent as soon as practicable of any
Reportable Event and of any additional act or condition arising in connection
with any such Plan which such Borrower believes might constitute grounds for the
termination thereof by the Pension Benefit Guaranty Corporation or for the
appointment by the appropriate United States District Court of a trustee to
administer such Plan; and furnish to the Administrative Agent, promptly upon the
Administrative Agent's request therefor, such additional information concerning
any such Plan as may be requested by the Administrative Agent.
55
Section 5.10 Lien Perfection. Each Borrower agrees to execute or
cause the Subsidiaries to execute all Uniform Commercial Code financing
statements, and amendments and continuation statements thereto, provided for by
Applicable Law, together with any and all other instruments, assignments, or
documents, and shall take such other action as may be required to perfect or
continue the perfection of the Administrative Agent's (on its behalf and on
behalf of the Issuing Banks and the Lenders) security interest in the
Collateral. Each Borrower hereby authorizes the Administrative Agent to execute
and file any such financing statement on such Borrower's or such Subsidiary's
behalf to the extent permitted by Applicable Law.
Section 5.11 Location of Collateral; Consignment of Inventory. All
tangible Collateral, other than Inventory in-transit and Inventory sold in the
ordinary course of business, will at all times be kept by the Borrowers at one
or more of the business locations of the Borrowers set forth in Schedule 5.11.
The Inventory shall not, without the prior written approval of the
Administrative Agent, be moved therefrom except (a) as permitted in the
immediately preceding sentence and (b) prior to an Event of Default, (i) sales
or other dispositions of assets permitted pursuant to Section 7.7 hereof and
(ii) the storage of Inventory at locations within the continental United States
other than those specified in the first sentence of this Section 5.11 if (A) the
Borrowers give the Administrative Agent written notice of the new storage
location at least thirty (30) days prior to storing Inventory at such location,
(B) the Administrative Agent's (on behalf of itself and on behalf of the Issuing
Banks and the Lenders) security interest in such Inventory is and continues to
be a duly perfected, first priority Lien thereon, (C) neither the Borrowers' nor
the Administrative Agent's right of entry upon the premises where such Inventory
is stored or its right to remove the Inventory therefrom, is in any way
restricted, (D) the owner of such premises, and any bailee, warehouseman or
similar party that will be in possession of such Inventory, shall have executed
and delivered to the Administrative Agent an agreement, in form and substance
reasonably acceptable to the Administrative Agent, waiving any landlord's,
bailee's, warehouseman's or other Lien in respect of the Inventory for unpaid
rent or storage charges, and (E) all negotiable documents and receipts in
respect of any Collateral maintained at such premises are promptly delivered to
the Administrative Agent.
Section 5.12 Protection of Collateral. All insurance expenses and
expenses of protecting, storing, warehousing, insuring, handling, maintaining
and shipping the Collateral (including, without limitation, all rent payable by
any Borrower to any landlord of any premises where any of the Collateral may be
located), and any and all excise, property, sales, and use taxes imposed by any
state, federal, or local authority on any of the Collateral or in respect of the
sale thereof, shall be borne and paid by the Borrowers. If any Borrower fails to
promptly pay any portion thereof when due, the Lenders may, at their option, but
shall not be required to, make a Base Rate Advance for such purpose and pay the
same directly to the appropriate Person. The Borrowers agree to reimburse the
Lenders promptly therefor with interest accruing thereon daily at the Default
Rate provided in this Agreement. All sums so paid or incurred by the Lenders for
any of the foregoing and all reasonable costs and expenses (including attorneys'
fees, legal expenses, and court costs) which the Lenders may incur in enforcing
or protecting the Lien on or rights and interest in the Collateral or any of its
rights or remedies under this or any other agreement between the parties hereto
or in respect of any of the transactions to be had hereunder until paid by the
Borrowers to the Lenders with interest at the Default Rate, shall be considered
Obligations owing by the Borrowers to the Lenders hereunder. Such Obligations
shall be secured by all Collateral (other than the Tranche A Collateral) and by
any and all other collateral, security, assets, reserves, or funds of any
Borrower in or coming into the hands or inuring to the benefit of the Lenders
and such Obligations incurred with respect to the Tranche A Collateral shall be
secured by the Tranche A Collateral. Neither the Administrative Agent nor the
Lenders shall
56
be liable or responsible in any way for the safekeeping of any of the Collateral
or for any loss or damage thereto (except for reasonable care in the custody
thereof while any Collateral is in the Administrative Agent's or the Lenders'
actual possession) or for any diminution in the value thereof, or for any act or
default of any warehouseman, carrier, forwarding agency, or other person
whomsoever, but the same shall be at the Borrowers' sole risk.
Section 5.13 Assignments and Records of Accounts. If so requested
by the Administrative Agent following an Event of Default, each Borrower shall
execute and deliver to the Administrative Agent formal written assignments of
all of the Accounts daily, which shall include all Accounts that have been
created since the date of the last assignment, together with copies of invoices
or invoice registers related thereto. Each Borrower shall keep accurate and
complete records of the Accounts and all payments and collections thereon.
Section 5.14 Administration of Accounts.
(a) The Administrative Agent retains the right after the
occurrence of an Event of Default to notify the Account Debtors that the
Accounts have been assigned to the Administrative Agent and to collect the
Accounts directly in its own name and to charge the collection costs and
expenses, including, without limitation, attorneys' fees, to the Borrowers. The
Administrative Agent has no duty to protect, insure, collect or realize upon the
Accounts or preserve rights in them. Each Borrower hereby irrevocably makes,
constitutes, and appoints the Administrative Agent as such Borrower's true and
lawful attorney and agent-in-fact to endorse such Borrower's name on any checks,
notes, drafts or other payments relating to, the Accounts which come into the
Administrative Agent's possession or under the Administrative Agent's control as
a result of its taking any of the foregoing actions. Additionally, the
Administrative Agent shall have the right to collect and settle or adjust all
disputes and claims directly with the Account Debtor and to compromise the
amount or extend the time for payment of the Accounts upon such terms and
conditions as the Administrative Agent may deem advisable, and to charge the
deficiencies, reasonable costs, and expenses thereof, including, without
limitation, attorney's fees, to the Borrowers.
(b) If an Account includes a charge for any tax payable
to any governmental taxing authority, the Lenders are authorized, in their sole
discretion, to pay the amount thereof to the proper taxing authority for the
account of the Borrowers and to make a Base Rate Advance to the Borrowers to pay
therefor. The Borrowers shall notify the Administrative Agent if any Account
includes any tax due to any governmental taxing authority and, in the absence of
such notice, the Administrative Agent shall have the right to retain the full
proceeds of the Account and shall not be liable for any taxes to any
governmental taxing authority that may be due by any Borrower by reason of the
sale and delivery creating the Account.
(c) After a Default or an Event of Default has occurred,
any of the Administrative Agent's officers, employees or agents shall have the
right, at any time or times hereafter, in the name of the Lenders, or any
designee of the Lenders or the Borrowers, to verify the validity, amount or
other matter relating to any Accounts by mail, telephone, telegraph or
facsimile. Each Borrower shall cooperate fully with the Administrative Agent and
the Lenders in an effort to facilitate and promptly conclude any such
verification process.
Section 5.15 Bank Accounts. All bank accounts of the Borrowers are
listed on Schedule 5.15 and such schedule designates which such accounts are
deposit accounts.
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After the Agreement Date, none of the Borrowers shall open any other deposit
account without the written consent of the Administrative Agent.
Section 5.16 Further Assurances. Each Borrower will promptly cure,
or cause to be cured, defects in the creation and issuance of any of the Notes
and the execution and delivery of the Loan Documents (including this Agreement),
resulting from any act or failure to act by any Borrower or any Subsidiary of
any Borrower or any employee or officer thereof. The Borrowers, at their sole
expense, will promptly execute and deliver to the Administrative Agent and the
Lenders, or cause to be executed and delivered to the Administrative Agent and
the Lenders, all documents necessary to pledge to the Administrative Agent for
its benefit and the benefit of the Issuing Banks and the Lenders, any assets of
the Borrowers and their Subsidiaries hereafter acquired or which hereafter
become unencumbered, and all such other and further documents, agreements, and
instruments in compliance with or accomplishment of the covenants and agreements
of the Borrowers in the Loan Documents, including, without limitation, this
Agreement, or to correct any omissions in the Loan Documents, or more fully to
state the obligations set out herein or in any of the Loan Documents, or to
obtain any consents, all as may be reasonably necessary or appropriate in
connection therewith or as may be reasonably requested.
Section 5.17 Broker's Claims. Each Borrower hereby indemnifies and
agrees to hold each of the Agents, the Issuing Banks and each of the Lenders
harmless from and against any and all losses, liabilities, damages, costs, and
expenses which may be suffered or incurred by the Agents, the Issuing Banks or
any of the Lenders in respect of any claim, suit, action or cause of action now
or hereafter asserted by a broker or any Person acting in a similar capacity
arising from or in connection with the execution and delivery of this Agreement
or any other Loan Document or the consummation of the transactions contemplated
herein or therein.
Section 5.18 Indemnity. Each Borrower will indemnify and hold
harmless each of the Agents, the Issuing Banks and each of the Lenders and each
of their respective employees, representatives, officers and directors from and
against any and all claims, liabilities, investigations, losses, damages,
actions, and demands by any party against the Agents, the Issuing Banks and the
Lenders, or any of them, resulting from any breach or alleged breach by any
Borrower of any representation or warranty made hereunder, or otherwise arising
out of the Commitments or the making, administration or enforcement of the Loan
Documents and the Loans, unless, with respect to any of the above, the Agents,
the Issuing Banks and the Lenders, or any of them, are finally judicially
determined to have acted or failed to act with gross negligence or willful
misconduct. This Section 5.18 shall survive termination of this Agreement.
Section 5.19 Environmental Matters. The conduct of each of the
Borrowers' and their respective Subsidiaries' business operations will not
violate any Environmental Laws in any material respect, and none of the
Borrowers will use, or permit any other party to use, any Hazardous Materials at
any of its places of business except such materials as are incidental to such
Borrower's or such Subsidiary's normal course of business, maintenance and
repairs, and then only in compliance with all applicable Environmental Laws.
Each Borrower shall apply for and/or timely renew all permits required for the
business operations at its places of business or otherwise. The Borrowers shall
promptly notify the Administrative Agent in writing of (i) any and all
enforcement, cleanup, remedial, removal, or other governmental or regulatory
actions instituted, completed or threatened in writing pursuant to any
applicable Environmental Law; and (ii) all claims made or threatened by any
third party against any Borrower or any Subsidiary of any Borrower relating to
damages, contribution, cost recover compensation, loss or injury resulting from
any Hazardous
58
Materials which, in either case, could reasonably be expected to result in
liability under Environmental Laws in excess of $50,000. The Borrowers shall
promptly notify the Administrative Agent of any remedial action taken by any
Borrower or any Subsidiary of any Borrower pursuant to Environmental Laws with
respect to such Borrower's or such Subsidiary's business operations. Upon the
request of the Administrative Agent, the Borrowers shall arrange to have
conducted by auditors, reasonably acceptable to the Administrative Agent,
environmental audits with respect to the Property of the Borrowers and shall
provide to the Administrative Agent copies of such environmental audits, which
shall be satisfactory to the Administrative Agent in all respects.
Section 5.20 Interest Rate Hedging. On or before the Agreement
Date, the Borrowers shall have entered into an Interest Hedge Agreement which
results in the fixing of a limit on the Borrowers' interest obligations on an
aggregate principal amount of not less than $45,000,000 of the principal amount
of the Loans which Interest Hedge Agreement shall provide interest rate
protection on terms acceptable to the Administrative Agent for a period through
at least the Maturity Date.
Section 5.21 Formation of Subsidiaries. At the time of the
formation of any direct or indirect Subsidiary of any Borrower or the
acquisition of any Subsidiary of any Borrower after the Agreement Date to the
extent permitted by this Agreement, such Borrower and its Subsidiaries, as
appropriate, shall (a) with respect to any new domestic Subsidiary of the
Borrower, provide to the Administrative Agent a Subsidiary Guaranty, Subsidiary
Security Agreement, and such other security documents or supplements to existing
security documents, together with appropriate UCC-1 financing statements, all in
form and substance reasonably satisfactory to the Administrative Agent, (b) with
respect to each new Subsidiary of any Borrower, a pledge agreement, together
with original stock certificates or other instruments and appropriate transfer
powers and UCC-1 financing statements, pledging such Borrower's and any
Subsidiary of such Borrower's direct or beneficial ownership interest in such
Subsidiary, in form and substance reasonably satisfactory to the Administrative
Agent (and with respect to foreign Subsidiaries limited to 65% of the capital
stock or other ownership interest in any foreign Subsidiary), and (c) with
respect to each new Subsidiary of any Borrower, provide all other documentation,
including one or more opinions of counsel satisfactory to the Administrative
Agent which in its reasonable opinion is appropriate with respect to such
formation and the execution and delivery of the applicable documentation
referred to above. Any such document, agreement or instrument executed or issued
pursuant to this Section 5.21 shall be a "Loan Document" for purposes of this
Agreement.
Section 5.22 Margin Call.
(a) At all times during the term of this Agreement, the
total market value (or in the case of any shares of preferred stock of ▇▇▇▇
Communications Systems, Inc., the face value) of (i) all shares of Class A and B
common stock of ▇▇▇▇ Communications Systems, Inc., (ii) all warrants to purchase
shares of Class A and Class B common stock of ▇▇▇▇ Communications Systems, Inc.,
(iii) all shares of preferred stock of ▇▇▇▇ Communications Systems, Inc., (iv)
all shares of common stock of Rawlings Sporting Goods Company, Inc., (v) all
warrants to purchase shares of common stock of Rawlings Sporting Goods Company,
Inc., (vi) all shares of common Capital Stock of Quokka Sports, and (vii) fifty
percent (50%) of all shares of the Parent pledged by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Partnership, in each case which have been pledged to the Administrative Agent
for its benefit and for the benefit of the Issuing Banks and the Lenders
pursuant to the Pledge Agreements, shall be equal to or greater than one hundred
fifteen percent (115%) of the then outstanding principal amount of the Tranche A
Loan.
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(b) If at any time, the condition set forth in Section
5.22(a) is not satisfied, then the Borrowers shall, within ten (10) days of such
date, either (i) prepay the Loans or (ii) pledge to the Administrative Agent for
its benefit and the benefit of the Issuing Banks and the Lenders such additional
collateral as shall be satisfactory to the Lenders.
ARTICLE 6 INFORMATION COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Borrowers have a right to borrow, or to have Letters of Credit issued, hereunder
(whether or not the conditions to borrowing have been or can be fulfilled) and
unless all of the Lenders shall otherwise consent in writing, the Borrowers will
furnish or cause to be furnished to each Lender and to the Administrative Agent
at their respective offices:
Section 6.1 Monthly Financial Statements and Information. Within
thirty (30) days after the last day of each fiscal month in each fiscal year of
the Borrowers (except September, December, March and June), the balance sheet of
the Borrowers as at the end of such fiscal month, and the related statement of
income and retained earnings for such fiscal month and for the elapsed portion
of the year ended with the last day of such fiscal month, which financial
statements shall set forth in comparative form such figures as at the end of
such month during the previous fiscal year and for such month during the
previous fiscal year, all of which shall be certified by an Authorized Signatory
to be, in his or her opinion, complete and correct in all material respects and
to present fairly in accordance with GAAP the financial position of the
Borrowers, as at the end of such period and the results of operations for such
period, and for the elapsed portion of the fiscal year ended with the last day
of such period, subject only to normal year-end adjustments.
Section 6.2 Quarterly Financial Statements and Information.
Within forty-five (45) days after the last day of each fiscal quarter in each
fiscal year of the Borrowers, the balance sheet of the Borrowers as at the end
of such fiscal quarter, and the related statement of income and retained
earnings and related statement of cash flows for such fiscal quarter and for the
elapsed portion of the year ended with the last day of such fiscal quarter,
which financial statements shall set forth in comparative form such figures as
at the end of such fiscal quarter during the previous fiscal year and for such
fiscal quarter during the previous fiscal year, all of which shall be on a
consolidated and consolidating basis with the Borrowers' Subsidiaries and shall
be certified by an Authorized Signatory to be, in his or her opinion, complete
and correct in all material respects and to present fairly in accordance with
GAAP the financial position of the Borrowers, as at the end of such period and
the results of operations for such period, and for the elapsed portion of the
fiscal year ended with the last day of such period, subject only to normal
year-end adjustments.
Section 6.3 Annual Financial Statements and Information;
Certificate of No Default. Within ninety (90) days after the end of each fiscal
year of the Borrowers, the audited balance sheet of the Borrowers as at the end
of such year, all of which shall be on a consolidated basis with the Borrowers'
Subsidiaries, and the related audited statements of income and retained earnings
and related audited statements of cash flows for such year, which financial
statements shall set forth in comparative form such figures as at the end of and
for the previous year, and shall be accompanied by an opinion of independent
certified public accountants of recognized standing satisfactory to the
Administrative Agent, stating that such financial statements are unqualified and
prepared without deviation from GAAP, without any explanatory paragraphs,
together with consolidating statements prepared by the Borrowers and a statement
of the chief financial officer of Bull Run certifying that no Default or Event
of Default, including, without limitation, any Default under Sections 7.8, 7.9,
7.10 and 7.11 hereof, was detected during the examination of the Borrowers.
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Section 6.4 Performance Certificates. At the time the financial
statements are furnished pursuant to Section 6.2 with respect to each fiscal
quarter end and Section 6.3 with respect to each fiscal year end, a certificate
of an Authorized Signatory of the Parent, in the form of Exhibit X attached
hereto:
(a) Setting forth as at the end of such quarter or year,
as the case may be, the arithmetical calculations required to establish whether
or not the Borrowers were in compliance with the requirements of Sections 7.8,
7.9 and 7.10 hereof; and
(b) Stating that, to the best of his or her knowledge, no
Default or Event of Default has occurred as at the end of such quarter or year,
as the case may be, or, if a Default or an Event of Default has occurred,
disclosing each such Default or Event of Default and its nature, when it
occurred, whether it is continuing, and the steps being taken by the Borrowers
with respect to such Default or Event of Default.
Section 6.5 Access to Accountants. Each of the Borrowers hereby
authorizes the Administrative Agent to communicate with the Borrowers'
independent public accountants through requests made through the chief financial
officer of Bull Run and authorizes these accountants to disclose to the
Administrative Agent any and all financial statements and other supporting
financial data, including matters relating to the annual audit and copies of any
arrangement letter with respect to its business, financial condition and other
affairs. On or before the Agreement Date, the Borrowers shall deliver to their
independent public accountants a letter authorizing such accountants to comply
with the provisions of this Section 6.5.
Section 6.6 Additional Reports.
(a) Promptly after preparation thereof, but no later than
fifteen (15) days after the end of each month, the Borrowers shall deliver to
the Administrative Agent and to any Lender requesting the same, a Borrowing Base
Certificate as of the last day of the preceding month, which shall be in such
form as shall be satisfactory to the Administrative Agent, setting forth the
Eligible Accounts and a categorical breakdown of all Accounts as of such last
day of such month.
(b) Within five (5) days after the end of each month, the
Borrowers shall deliver to the Administrative Agent and to any Lender requesting
the same, in form acceptable to the Administrative Agent, a detailed aged trial
balance of all Accounts existing as of the last day of the preceding month,
specifying the names, addresses, face value, dates of invoices and due dates for
each Account Debtor obligated on an Account so listed and all other information
necessary to calculate Eligible Accounts as of such last day of the preceding
month and, within fifteen (15) days of the Administrative Agent's request
therefor (but no sooner than fifteen (15) days following the end of any month),
copies of proof of delivery and the original copy of all documents, including,
without limitation, repayment histories and present status reports relating to
the Accounts so scheduled and such other matters and information relating to the
status of then existing Accounts as the Administrative Agent shall request.
(c) Promptly upon receipt thereof, the Borrowers shall
deliver to the Administrative Agent and the Lenders copies of all final reports,
if any, submitted to any Borrower by its independent public accountants in
connection with any annual or interim audit of any of the Borrowers or any of
their respective Subsidiaries, including, without
61
limitation, any final management report prepared in connection with the annual
audit referred to in Section 6.3 hereof.
(d) Within sixty (60) days after the commencement of each
of the Borrowers' fiscal years, the Borrowers shall deliver to the
Administrative Agent and the Lenders the annual operating plan for the Borrowers
and their Subsidiaries, which plan has been approved by the Borrowers' board of
directors, including, without limitation, an annual budget for the Borrowers and
their Subsidiaries, including forecasts of the income statement, the balance
sheet and an operating profit and cash flow statement for the immediately
succeeding year on a month by month basis.
(e) To the extent not covered elsewhere in this Article
6, promptly after the sending thereof, the Borrowers shall deliver to the
Administrative Agent and the Lenders copies of all financial statements, reports
and other information which any of the Parent, the Borrowers or any of their
respective Subsidiaries sends to any holder of its Indebtedness (including the
Subordinated Debt) or its securities or which any of the Parent, the Borrowers
or any of their respective Subsidiaries files with the Securities and Exchange
Commission or any national securities exchange.
(f) From time to time and promptly upon each request, the
Borrowers shall deliver to the Administrative Agent, on behalf of itself and on
behalf of the Lenders, such data, certificates, reports, statements, opinions of
counsel, documents, or further information regarding the business, assets,
liabilities, financial position, projections, results of operations, or business
prospects of the Parent, any of the Borrowers or any of their respective
Subsidiaries as the Administrative Agent may reasonably request.
Section 6.7 Notice of Litigation and Other Matters.
(a) Within fifteen (15) Business Days of the Parent's or
any Borrower's obtaining knowledge of the institution of, or written threat of,
any action, suit, governmental investigation or arbitration proceeding against
the Parent, any of the Borrowers or any of their respective Subsidiaries or any
Property, which action, suit, governmental investigation or arbitration
proceeding exposes, in the Borrowers' reasonable judgment, the Parent, any
Borrower or any Subsidiary of any Borrower to liability in an aggregate amount
in excess of $200,000, the Parent and the Borrowers shall notify the
Administrative Agent and the Lenders of the occurrence thereof, and the Parent
and the Borrowers shall provide such additional information with respect to such
matters as the Administrative Agent or the Lenders may reasonably request.
(b) Promptly upon, but in no event later than two (2)
Business Days after, the occurrence of any default (whether or not the Parent or
any Borrower has received notice thereof from any other Person) on Indebtedness
of the Parent, any Borrower or any Subsidiary of any Borrower which singly, or
in the aggregate exceeds $200,000, the Parent and the Borrowers shall notify the
Administrative Agent and the Lenders of the occurrence thereof.
(c) Promptly upon, but in no event later than two (2)
Business Days after, the occurrence of any default on any Indebtedness of any
Person owed to the Parent or any Borrower, which singly or in the aggregate
exceeds $200,000, the Parent and the Borrowers shall notify the Administrative
Agent and the Lenders of the occurrence thereof.
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(d) Promptly upon, but in no event later than two (2)
Business Days after, any Borrower's receipt of notice or the pendency of any
proceeding for the condemnation or other taking of any real property of any
Borrower or any Subsidiary of any Borrower, the Borrowers shall notify the
Administrative Agent and the Lenders of the occurrence thereof.
(e) Promptly upon, but in no event later than two (2)
Business Days after, any Borrower's receipt of notice of any material adverse
change with respect to the business, assets, liabilities, financial position, or
results of operations of the Borrowers and their Subsidiaries taken as a whole,
other than changes in the ordinary course of business which have not had and are
not likely to have a Materially Adverse Effect, the Borrowers shall notify the
Administrative Agent and the Lenders of the occurrence thereof.
(f) Promptly following, but in no event later than two
(2) Business Days after, any material amendment or change to the budget
submitted to the Administrative Agent and the Lenders pursuant to Section 6.6(d)
hereof, the Borrowers shall notify the Administrative Agent and the Lenders of
the occurrence thereof.
(g) Promptly following, but in no event later than two
(2) Business Days after, any (i) Default under any Loan Document, or default by
the Parent under the Subordinated Debt, or (ii) default under any other
agreement (other than those referenced in 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.
(h) Promptly following, but in no event later than two
(2) Business Days after, the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) with respect to any Plan of any Borrower or any of its ERISA
Affiliates or the institution or threatened institution by the Pension Benefit
Guaranty Corporation of proceedings under ERISA to terminate or to partially
terminate any such Plan or the commencement or threatened commencement of any
litigation regarding any such Plan or naming it or the trustee of any such Plan
with respect to such Plan (other than claims for benefits in the ordinary course
of business), the Borrowers shall notify the Administrative Agent and the
Lenders of the occurrence thereof.
(i) Promptly upon, but in no event later than two (2)
Business Days after, the receipt by any Borrower of a notice under that certain
Subordination Agreement dated September 27, 2000, executed by Datasouth in favor
of LaSalle Business Credit, Inc., with respect to the AMT Note, the Borrowers
shall deliver a copy of such notice to the Administrative Agent.
ARTICLE 7 NEGATIVE COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Borrowers have a right to borrow, or to have Letters of Credit issued, hereunder
(whether or not the conditions to borrowing have been or can be fulfilled) and
unless all of the Lenders shall otherwise give their prior consent in writing:
Section 7.1 Indebtedness. None of the Parent or the Borrowers
will create, assume, incur, or otherwise become or remain obligated in respect
of, or permit to be outstanding, or permit any of their respective Subsidiaries
to create, assume, incur, or
63
otherwise become obligated in respect of, or permit to be outstanding, any
Indebtedness except:
(a) Indebtedness under this Agreement and the other Loan
Documents;
(b) the Subordinated Debt;
(c) Trade or accounts payable and/or similar obligations,
and accrued expenses, incurred in the ordinary course of business, other than
for borrowed money;
(d) Indebtedness secured by Permitted Liens described in
clause (f) of the definition of Permitted Liens set forth in Article 1 hereof
and Capitalized Lease Obligations, collectively, not to exceed the aggregate
principal amount of $300,000 at any time;
(e) Guaranties permitted by Section 7.2;
(f) Obligations under Interest Hedge Agreements with
respect to notional amounts not to exceed the outstanding principal amount of
the Loans;
(g) Other unsecured Indebtedness incurred by any Borrower
not to exceed $200,000 in the aggregate for all Borrowers outstanding from time
to time;
(h) Indebtedness (i) of any Borrower to any other
Borrower or to any Subsidiary of any Borrower which has executed a Subsidiary
Security Agreement and a Subsidiary Guaranty and (ii) of any Subsidiary to any
Borrower or any other Subsidiary of any Borrower which has executed a Subsidiary
Security Agreement and a Subsidiary Guaranty;
(i) At any time after exercise of the Call Option and
payment of the Purchase Price (as defined in the ▇▇▇▇▇▇▇▇ Guaranty),
Indebtedness in favor of ▇▇▇▇▇▇▇▇ resulting from the exercise of the Call
Option;
(j) (A) Extensions, renewals and replacements of
Indebtedness permitted under paragraphs (b), (g) and (h) that do not, in any
case, (i) increase the outstanding principal amount thereof or (ii) result in an
earlier maturity date or decreased weighted average life thereof, and (B)
extensions, renewals and replacements of Indebtedness permitted under paragraph
(i);
(k) Indebtedness evidenced by the Summit Subordinated
Notes;
(l) Indebtedness evidenced by the NCAA Performance Bond;
and
(m) Indebtedness under that certain Investment Purchase
Agreement dated November 21, 1997, between Bull Run and Rawlings Sporting Goods
Company, Inc., in an aggregate principal amount not to exceed $1,421,109.14.
Section 7.2 Guaranties. None of the Parent or the Borrowers will
at any time guarantee or enter into or assume any Guaranty, or be obligated with
respect to, or permit to be outstanding, any Guaranty, or permit any of their
respective Subsidiaries at any time to guarantee or enter into or assume any
Guaranty, or be obligated with respect to, or permit to be outstanding, any
Guaranty, in each case other than (a) obligations under
64
repurchase agreements of the Borrowers entered into in connection with the sale
of products in the ordinary course of business of the Borrowers, (b) obligations
under agreements of the Borrowers entered into in connection with the
acquisition of services, supplies, and equipment in the ordinary course of
business of the Borrowers, (c) endorsements of instruments in the ordinary
course of business, (d) guaranties of Indebtedness of the Borrowers and their
Subsidiaries to the extent permitted under Section 7.1, and (e) obligations
identified on Schedule 7.2.
Section 7.3 Liens. None of the Parent or the Borrowers will
create, assume, incur, or permit to exist or to be created, assumed, or
permitted to exist, directly or indirectly, or permit any of their respective
Subsidiaries to create, assume, incur, or permit to exist or to be created,
assumed, or permitted to exist, directly or indirectly, any Lien on any of its
property, real or personal, now owned or hereafter acquired, except for
Permitted Liens.
Section 7.4 Restricted Payments and Purchases. None of the
Borrowers shall directly or indirectly declare or make, or permit any of their
respective Subsidiaries to directly or indirectly make, any Restricted Payment
or Restricted Purchase, or set aside any funds for any such purpose; provided,
however, (a) any Subsidiary of a Borrower may make Restricted Payments to such
Borrower; (b) so long as no Default then exists or would be caused thereby, Bull
Run may make distributions to the Parent (i) for the purpose of making regularly
scheduled interest payments due under the Subordinated Debt to the extent
permitted by the Subordinated Note and (ii) to pay (A) taxes and (B) other
administrative expenses not to exceed $100,000 in the aggregate in any fiscal
year; and (c) any Borrower may make Restricted Payments to any other Borrower
provided that the Administrative Agent shall have received all supplements to
the Security Documents, original stock certificates and stock powers and such
other documents, instruments and agreements necessary to maintain the
Administrative Agent's Lien on the Collateral; and (d) so long as (i) no Default
or Event of Default then exists or would be caused thereby and (ii) the
Borrowers shall provide to the Administrative Agent and the Lenders calculations
demonstrating proforma compliance with Section 7.8 hereof after giving effect to
such payment, Streetball Partners International, Inc. may make a payment with
respect to the first installment of principal and interest due under each of the
Summit Subordinated Notes on the first anniversary of the date thereof.
Section 7.5 Investments. None of the Parent or the Borrowers will
make, or permit any of their respective Subsidiaries to make, any loan or
advance to, or otherwise acquire for consideration evidences of Indebtedness,
Capital Stock, partnership interests or other securities of or equity interests
in any third party (each, an "Investment"), except that (a) the Borrowers may
purchase or otherwise acquire and own and may permit any of their respective
Subsidiaries to purchase or otherwise acquire and own, (i) marketable, direct
obligations of the United States of America and its agencies maturing within
three hundred sixty-five (365) days of the date of purchase, (ii) commercial
paper issued by corporations, each of which shall (A) have a consolidated net
worth of at least $250,000,000, and (B) conduct substantially all of its
business in the United States of America, which commercial paper will mature
within one hundred eighty (180) days from the date of the original issue thereof
and is rated "P-1" or better by ▇▇▇▇▇'▇ Investors Service, Inc., or "A-1+" or
better by Standard & Poor's Corporation, (iii) certificates of deposit maturing
within three hundred sixty-five (365) days of the date of purchase and issued by
a United States national or state bank having deposits totaling more than
$250,000,000, and whose short-term debt is rated "P-1" or better by ▇▇▇▇▇'▇
Investors Service, Inc. or "A-1+" or better by Standard & Poor's Corporation,
and (iv) up to $100,000 per institution and up to $1,000,000 in the aggregate in
(A) short-term obligations issued by any local commercial bank or trust company
located
65
in those areas where the Borrowers conduct their business, whose deposits are
insured by the Federal Deposit Insurance Corporation, or (B) commercial
bank-insured money market funds, or any combination of investments described in
clauses (A) and (B); (b) the Borrowers may hold the Investments in existence on
the Agreement Date and described on Schedule 4.1(l), provided that advances due
from NCAA Football, Inc. in the ordinary course of business shall not exceed the
offsetting account payable to NCAA Football, Inc. by $500,000 at any time; (c)
the Borrowers may hold the Capital Stock of their respective Subsidiaries in
existence on the Agreement Date and Capital Stock or other assets permitted
pursuant to Section 7.7(d) hereof; (d) the Borrowers may make loans to employees
of the Borrowers in an aggregate amount not to exceed $300,000 at any one time
outstanding; (e) the Borrowers may make payments in respect of Indebtedness
permitted under Section 7.1 hereof; and (f) the Borrowers may make Investments
in an amount not to exceed $300,000 in the aggregate during any fiscal year
period provided that, to the extent applicable, the Administrative Agent shall
have received all supplements to the Security Documents, original stock
certificates and stock powers and such other documents, instruments and
agreements necessary to maintain the Administrative Agent's Lien on the
Collateral.
Section 7.6 Affiliate Transactions. Except as set forth on
Schedule 7.6, none of the Borrowers shall enter into or be a party to, or permit
any of their respective Subsidiaries to enter into or be a party to, any
agreement or transaction with any Affiliate except in the ordinary course of and
pursuant to the reasonable requirements of such Borrower's or such Subsidiary's
business and upon fair and reasonable terms that are no less favorable to such
Borrower or to such Subsidiary than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate thereof, and on terms consistent with
the business relationship of such Borrower or such Subsidiary and such Affiliate
prior to the Agreement Date, if any.
Section 7.7 Liquidation; Change in Ownership, Name, or Year;
Disposition or Acquisition of Assets. None of the Borrowers shall, or permit any
of their respective Subsidiaries to, at any time:
(a) Liquidate or dissolve itself (or suffer any
liquidation or dissolution) or otherwise wind up its business;
(b) Sell, lease, abandon, transfer, trade or otherwise
dispose of, in a single transaction or a series of related transactions, any
assets (including any Capital Stock owned by such Borrower or such Subsidiary),
property or business except for the sale of Inventory in the ordinary course of
business at the fair market value thereof and for cash or cash equivalents and
except for physical assets used, consumed or otherwise disposed of in the
ordinary course of business; provided, however, that (i) the Borrowers may sell
or otherwise dispose of obsolete equipment with a sale value not greater than
$500,000 in the aggregate for all such assets that may be sold during any year,
so long as the Net Cash Proceeds from such sale in excess of $250,000 in value
are applied to the Loans as required by Section 2.6(d) and any non-cash proceeds
shall be pledged to the Administrative Agent pursuant to the Security Agreement
or other document or agreement in form and substance reasonably satisfactory to
the Administrative Agent, (ii) so long as no Default or Event of Default then
exists or would be caused thereby and so long as the Net Cash Proceeds from any
such disposition are applied to the Loans as required by Section 2.6(d), (A)
Datasouth may dispose of the Datasouth Real Property for cash, (B) Bull Run may
transfer all or any portion of the preferred Capital Stock of ▇▇▇▇
Communications Systems, Inc., owned by it to ▇▇▇▇ Communications Systems, Inc.,
in connection with the redemption of such shares by ▇▇▇▇ Communications Systems,
Inc., for a cash redemption price of not less than $10,000 per share, and (C)
Bull Run may dispose of all or any portion of the Capital Stock in
66
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc., owned by it pursuant to a certain Option Agreement between
Bull Run and ▇▇▇▇ Communications Systems, Inc., for an aggregate cash purchase
price of not less than $10,000,000, and (iii) the Borrowers may transfer assets
amongst themselves;
(c) Become a partner or joint venturer with any third
party, or form any Subsidiary requiring cash investments of greater than
$1,000,000 in the aggregate;
(d) Acquire (i) all or any substantial part of the
assets, property or business of, or (ii) any assets that constitute a division
or operating unit of the business of, any other Person;
(e) Merge or consolidate with any other Person other than
another Borrower;
(f) Change its corporate, partnership or limited
liability company name without giving the Administrative Agent thirty (30) days'
prior written notice of its intention to do so and complying with all
requirements of the Lenders in regard thereto;
(g) Change its year-end for accounting purposes from the
fiscal year ending June 30;
(h) Enter into any new business or make any material
change in any of such Borrower's business objectives, purposes and operations;
or
(i) Transfer its principal place of business or chief
executive office, or maintain warehouses or records with respect to Accounts or
Inventory, to or at any locations other than those at which the same are
presently kept or maintained, as set forth on Schedule 4.1(w) hereto, without
giving the Administrative Agent thirty (30) days' prior written notice of its
intention to do so and complying with all requirements of the Lenders in regard
thereto.
Section 7.8 Capital Expenditures. The Borrowers and their
Subsidiaries shall not make or incur in the aggregate any Capital Expenditures,
during the term of this Agreement, in excess of $600,000.
Section 7.9 Minimum Adjusted EBITDA. The Borrowers shall not
permit, with respect to the fiscal quarter ending June 30, 2001 and for each
fiscal quarter thereafter, Adjusted EBITDA for the immediately preceding four
(4) fiscal quarter period to be less than the amount specified below for such
period:
Quarters Endings Minimum Adjusted EBITDA
---------------- -----------------------
June 30, 2001 $4,500,000
September 30, 2001 $4,800,000
December 31, 2001 $4,400,000
March 31, 2002 $7,000,000
Section 7.10 Minimum Net Worth. The Borrowers shall not permit, at
any time, the Net Worth of the Parent, on a consolidated basis with its
Subsidiaries, to be less than $53,000,000.
67
Section 7.11 Sales and Leasebacks. None of the Borrowers will
enter into, or permit any of their respective Subsidiaries to enter into, any
arrangement, directly or indirectly, with any third party whereby such Borrower
or such Subsidiary shall sell or transfer any property, real or personal,
whether now owned or hereafter acquired, and whereby such Borrower or such
Subsidiary shall then or thereafter rent or lease as lessee such property or any
part thereof or other property which such Borrower or such Subsidiary intends to
use for substantially the same purpose or purposes as the property sold or
transferred.
Section 7.12 Amendment and Waiver. None of the Parent or any
Borrower shall, without the prior written consent of all of the Lenders, enter
into any amendment of, or agree to or accept any waiver of (a) its certificate
of incorporation and by-laws, if such amendment or waiver would adversely affect
the rights of the Borrowers, the Administrative Agent, the Issuing Banks and the
Lenders, or any of them, (b) the Subordinated Note, (c) the AMT Note, or (d) the
Summit Subordinated Notes.
Section 7.13 ERISA Liability. None of the Borrowers nor any of
their respective Subsidiaries shall fail to meet all of the applicable minimum
funding requirements of ERISA and the Code, without regard to any waivers
thereof, and, to the extent that the assets of any of their respective Plans
would be less than an amount sufficient to provide all accrued benefits payable
under such Plans, shall make the maximum deductible contributions allowable
under the Code. None of the Borrowers nor any of their respective Subsidiaries
shall (a) become a participant in any Multiemployer Plan after the Agreement
Date, or (b) withdraw from any Multiemployer Plan if such withdrawal would
result in material liability to any Borrower or any Subsidiary of a Borrower.
Section 7.14 Prepayments. None of the Borrowers shall prepay,
redeem, defease or purchase in any manner, or deposit or set aside funds for the
purpose of any of the foregoing, make any payment in respect of principal of, or
make any payment in respect of interest on, any Funded Debt, except the
Borrowers may (i) make regularly scheduled payments of principal or interest
required in accordance with the terms of the instruments governing any Funded
Debt permitted hereunder, and (ii) make payments with respect to the
Obligations; provided, however, that the Borrowers shall not make any payments
or distributions to the Parent to be used, directly or indirectly, to make
payments or prepayments with respect to principal on the Subordinated Note, or
(b) except as permitted under Section 7.4 hereof, make any direct or indirect
payments or prepayments to any Person with respect to principal on the
Indebtedness evidenced by the Summit Subordinated Notes.
Section 7.15 Negative Pledge. None of the Parent or the Borrowers
shall, directly or indirectly, or permit any of their respective Subsidiaries
to, enter into any agreement (other than the Loan Documents) with any Person
that prohibits or restricts or limits the ability of the Parent, any Borrower or
any Subsidiary of any Borrower to create, incur, pledge, or suffer to exist any
Lien upon any of its respective assets except with respect to purchase money
liens, Capitalized Lease Obligations and operating leases but only as to the
assets so purchased or leased, or restricts the ability of any Subsidiary to pay
Dividends to any Borrower.
Section 7.16 Holding Company Status. The Parent shall not conduct,
transact or otherwise engage in any business or operations other than those
incidental to the ownership of the Capital Stock of Bull Run.
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ARTICLE 8 DEFAULT
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule, or regulation
of any governmental or non-governmental body:
(a) Any representation or warranty made under this
Agreement shall prove incorrect or misleading in any material respect when made
or deemed to have been made pursuant to Section 4.4 hereof;
(b) Any payment of any principal under any Note, any
reimbursement obligations with respect to any Letter of Credit payable
hereunder, or any fees payable hereunder or under the other Loan Documents,
shall not be received by the Administrative Agent on the date such payment is
due, or any payment of any interest under any Note shall not be received by the
Administrative Agent within two (2) days of the date such payment is due;
(c) The Parent, any Borrower or ▇▇▇▇▇▇▇▇ shall default in
the performance or observance of any agreement or covenant contained in Section
5.1, 5.5, 5.7, 5.19, or 5.22 or in Article 6 or Article 7 hereof, in the
▇▇▇▇▇▇▇▇ Guaranty or in any Security Document;
(d) The Parent or any Borrower shall default in the
performance or observance of any other agreement or covenant contained in this
Agreement not specifically referred to elsewhere in this Section 8.1, and such
default, if curable, shall not be cured to all of the Lenders' satisfaction
within a period of thirty (30) days from the earlier of (i) the date the Parent
or any Borrower knew or should have known of such default or (ii) written notice
thereof having been given to the Borrowers;
(e) There shall occur any default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the other Loan Documents (other than this Agreement
or the Security Documents or as otherwise provided in this Section 8.1) which
shall not be cured to all of the Lenders' satisfaction within the applicable
cure period, if any, provided for in such Loan Document, or, if there is no
applicable cure period set forth in such Loan Document, within a period of
fifteen (15) days from the date of such default;
(f) There shall occur any Change of Control;
(g) There shall be entered a decree or order for relief
in respect of the Parent, any Borrower, or any of their respective Subsidiaries,
under the Bankruptcy Code, or any other applicable federal or state bankruptcy
law or other similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator, or similar official of any of the Parent, any
Borrower, or any of their respective Subsidiaries, or of any substantial part of
their respective properties, or ordering the winding-up or liquidation of the
affairs of any of the Parent, any Borrower, or any of their respective
Subsidiaries, or an involuntary petition shall be filed against any of the
Parent, any Borrower, or any of their respective Subsidiaries, and a temporary
stay entered, and (i) such petition and stay shall not be diligently contested,
or (ii) any such petition and stay shall continue undismissed for a period of
thirty (30) consecutive days;
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(h) Any of the Parent, any Borrower or any of their
respective Subsidiaries shall file a petition, answer, or consent seeking relief
under the Bankruptcy Code, or any other applicable federal or state bankruptcy
law or other similar law, or any of the Parent, any Borrower, or any of their
respective Subsidiaries, shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment or taking
of possession of a receiver, liquidator, assignee, trustee, custodian,
sequestrator, or other similar official of the Parent, any of the Borrowers, or
any of their respective Subsidiaries, or of any substantial part of their
respective properties, or any of the Parent, any Borrower, or any of their
respective Subsidiaries, shall fail generally to pay their respective debts as
they become due, or any of the Parent, any Borrower, or any of their respective
Subsidiaries, shall take any action in furtherance of any such action;
(i) A final judgment (other than a money judgment fully
covered by insurance as to which the insurance company has acknowledged coverage
within thirty (30) days after notice thereof) shall be entered by any court
against any of the Borrowers or any of their respective Subsidiaries for the
payment of money which exceeds $200,000, or a warrant of attachment or execution
or similar process shall be issued or levied against property of any of the
Borrowers or any of their respective Subsidiaries pursuant to a final judgment
which, together with all other such property of any of the Borrowers, or any of
their respective Subsidiaries, subject to other such process, exceeds in value
$200,000 in the aggregate, and if, within forty-five (45) days after the entry,
issue, or levy thereof, such judgment, warrant, or process shall not have been
paid or discharged or stayed pending appeal, or if, after the expiration of any
such stay, such judgment, warrant, or process shall not have been paid or
discharged;
(j) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan maintained by any of the Borrowers and their respective ERISA
Affiliates, or to which any of the Borrowers or any of their respective ERISA
Affiliates has any liabilities, or any trust created thereunder; or a trustee
shall be appointed by a United States District Court to administer any such
Plan; or the Pension Benefit Guaranty Corporation shall institute proceedings to
terminate any such Plan; or any of the Borrowers and their respective ERISA
Affiliates shall incur any liability to the Pension Benefit Guaranty Corporation
in connection with the termination of any such Plan; or any Plan or trust
created under any Plan of any Borrower and its ERISA Affiliates shall engage in
a non-exempt "prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) which would subject any such Plan, any trust
created thereunder, any trustee or administrator thereof, or any party dealing
with any such Plan or trust to any material tax or penalty on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code or any
of the Borrowers or any of their respective ERISA Affiliates shall enter into or
become obligated after the Agreement Date to contribute to a Multiemployer Plan;
(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, (y)
any default or event of default under the Subordinated Note, or (z) a
cancellation of or default (after the expiration of any applicable cure period)
under the NCAA Contract; or
(l) All or any portion of any Security Document shall at
any time and for any reason be declared to be null and void, or a proceeding
shall be commenced by any of the Borrowers or any of their respective
Affiliates, or by any governmental authority having jurisdiction over any of the
Borrowers or any of their respective Affiliates, seeking to
70
establish the invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or any of the Borrowers or any of
their respective Affiliates shall deny that it has any liability or obligation
for the payment of principal or interest purported to be created under any Loan
Document.
Section 8.2 Remedies. If an Event of Default shall have occurred
and shall be continuing, in addition to the rights and remedies set forth
elsewhere in this Agreement and the Loan Documents:
(a) With the exception of an Event of Default specified
in Section 8.1(g) or (h), the Administrative Agent, at the direction of all of
the 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.
(b) Upon the occurrence and continuance of an Event of
Default specified in Sections 8.1(g) or (h), such principal, interest, and other
Obligations shall thereupon and concurrently therewith become due and payable,
and the Commitments and the Letter of Credit Commitment shall forthwith
terminate, all without any action by the Administrative Agent or the Lenders or
the holders of the Notes and without presentment, demand, protest, or other
notice of any kind, all of which are expressly waived, anything in this
Agreement or in the Notes to the contrary notwithstanding.
(c) The Administrative Agent, with the concurrence of all
of the 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.
(d) Application of Payments After Acceleration.
(i) Application of Payments After Acceleration
and Prior to Exercise of the Call Option. Subsequent to the acceleration of the
Obligations under this Section 8.2 and prior to exercise of the Call Option,
payments and prepayments with respect to the Obligations made to the
Administrative Agent, the Issuing Banks or the Lenders, or otherwise received by
the Administrative Agent, any Issuing Bank or any Lender (from realization on
Collateral or otherwise) shall be distributed in the following order of priority
(subject, as applicable, to Section 2.10 hereof): FIRST, to the costs and
expenses (including, without limitation, attorneys' fees and expenses), if any,
incurred by the Administrative Agent, any Issuing Bank or any Lender in the
collection of such amounts under this Agreement or of the Loan Documents,
including, without limitation, any costs incurred in connection with the sale or
disposition of any Collateral; SECOND, to any fees then due and payable to the
Administrative Agent under this Agreement or any other Loan Document; THIRD, to
any fees then due and payable to the Lenders and the Issuing Banks under this
Agreement or any other Loan Document; FOURTH, to the payment of interest then
due and payable on the Revolving Loans and the Term Loans; FIFTH, to the payment
of the principal of the Tranche B Loans then outstanding; SIXTH, to the payment
of the principal of the Tranche A Loans then outstanding; SEVENTH, to the
payment of principal of
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the Revolving Loans then outstanding; EIGHTH, pro rata to the payment of any
obligation under any Interest Hedge Agreement between any Borrower, on the one
hand, and the Administrative Agent (or an affiliate of the Administrative Agent)
or one or more Lenders (or an affiliate of a Lender), on the other hand; NINTH,
to the extent of any Letter of Credit Obligations then outstanding, to the
Letter of Credit Reserve Account; TENTH, to any other Obligations not otherwise
referred to in this Section 8.2(d); ELEVENTH, to damages incurred by the
Administrative Agent, any Issuing Bank or any Lender by reason of any breach
hereof or of any other Loan Document; and TWELFTH, upon satisfaction in full of
all Obligations to the Borrowers or as otherwise required by law.
Notwithstanding the foregoing, to the extent any amount received hereunder
consists of proceeds from the sale of the Tranche A Collateral, such amount
shall be applied to reduce the outstanding amount of the Tranche A Loan
Obligations.
(ii) Application of Payments After Acceleration
and After Exercise of the Call Option. Subsequent to the acceleration of the
Obligations under this Section 8.2 and after the exercise of the Call Option and
payment of the Purchase Price (as defined in the ▇▇▇▇▇▇▇▇ Guaranty), payments
and prepayments with respect to the Obligations made to the Administrative
Agent, the Issuing Banks or the Lenders, or otherwise received by the
Administrative Agent, any Issuing Bank or any Lender (other than from
realization on the Tranche A Collateral or Collateral that has been assigned by
the Administrative Agent to ▇▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇▇ Guaranty) shall be
distributed in the following order of priority (subject, as applicable, to
Section 2.10 hereof): FIRST, to the costs and expenses (including, without
limitation, attorneys' fees and expenses), if any, incurred by the
Administrative Agent, any Issuing Bank or any Lender in the collection of such
amounts under this Agreement or of the Loan Documents, including, without
limitation, any costs incurred in connection with the sale or disposition of any
Collateral; SECOND, to any fees then due and payable to the Administrative Agent
under this Agreement or any other Loan Document; THIRD, to any fees then due and
payable to the Lenders and the Issuing Banks under this Agreement or any other
Loan Document; FOURTH, to the payment of interest then due and payable on the
Revolving Loans; FIFTH, to the payment of principal of the Revolving Loans then
outstanding; SIXTH, pro rata to the payment of any obligation under any Interest
Hedge Agreement between any Borrower, on the one hand, and the Administrative
Agent (or an affiliate of the Administrative Agent) or one or more Lenders (or
an affiliate of a Lender), on the other hand; SEVENTH, to the extent of any
Letter of Credit Obligations then outstanding, to the Letter of Credit Reserve
Account; EIGHTH, to any other Obligations not otherwise referred to in this
Section 8.2(d); NINTH, to damages incurred by the Administrative Agent, any
Issuing Bank or any Lender by reason of any breach hereof or of any other Loan
Document; and TENTH, upon satisfaction in full of all Obligations to the
Borrowers or as otherwise required by law. Notwithstanding the foregoing, to the
extent any amount received hereunder consists of proceeds from the sale of the
Tranche A Collateral, such amount shall be applied to reduce the outstanding
amount of the Tranche A Loan Obligations, and to the extent any amount received
hereunder consists of proceeds from the sale of any Collateral assigned by the
Administrative Agent to ▇▇▇▇▇▇▇▇ pursuant to the ▇▇▇▇▇▇▇▇ Guaranty, such amount
shall be applied to reduce the outstanding amount of the Term Loan Obligations.
(e) In regard to all Letters of Credit with respect to
which presentment for honor shall not have occurred at the time of any
acceleration of the Obligations pursuant to the provisions of this Section 8.2,
the Borrowers shall promptly upon demand by the Administrative Agent deposit in
a Letter of Credit Reserve Account opened by Administrative Agent for the
benefit of the Issuing Banks an amount equal to one hundred and two percent
(102%) of the aggregate then undrawn and unexpired amount of such Letter of
Credit Obligations. Amounts held in such Letter of Credit Reserve Account shall
be
72
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after such Letters of Credit
shall have expired or been fully drawn upon, if any, shall be applied to repay
other obligations of the Borrowers hereunder and under the Notes in the manner
set forth in Section 2.11 hereof. Pending the application of such deposit to the
payment of the Reimbursement Obligations, the Administrative Agent shall, to the
extent reasonably practicable, invest such deposit in an interest bearing open
account or similar available savings deposit account and all interest accrued
thereon shall be held with such deposit as additional security for the
Reimbursement Obligations. After all such Letters of Credit shall have expired
or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied, and all other Obligations shall have been paid in full, the balance,
if any, in such Letter of Credit Reserve Account shall be returned to the
Borrower. Except as expressly provided hereinabove, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by the Borrower.
(f) The rights and remedies of the Agents, the Issuing
Banks and the Lenders hereunder shall be cumulative, and not exclusive.
ARTICLE 9 THE AGENTS
Section 9.1 Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its Loans and in its Notes irrevocably to
appoint and authorize, the Administrative Agent to take such actions as its
agent on its behalf and to exercise such powers hereunder as are delegated by
the terms hereof, together with such powers as are reasonably incidental
thereto. Other than with respect to the Lenders' right to receive payments
received by the Administrative Agent on behalf of the Lenders in accordance with
this Agreement, neither the Administrative Agent nor any of its directors,
officers, employees, or agents shall be liable for any action taken or omitted
to be taken by it hereunder or in connection herewith, except for its own gross
negligence or willful misconduct as determined by a final non-appealable order
of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat
each Lender, or the Person designated in the last notice filed with the
Administrative Agent under this Section 9.2, as the holder of all of the
interests of such Lender in its Loans and in its Notes until written notice of
transfer, signed by such Lender (or the Person designated in the last notice
filed with the Administrative Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent
may consult with legal counsel selected by it and shall not be liable to any
Lender or any Issuing Bank for any action taken or suffered by it in good faith
in reliance on the advice of such counsel.
Section 9.4 Documents. The Administrative Agent shall not be
under any duty to examine, inquire into, or pass upon the validity,
effectiveness, or genuineness of this Agreement, any Note, or any instrument,
document, or communication furnished pursuant hereto or in connection herewith,
and the Administrative Agent shall be entitled to assume that they are valid,
effective, and genuine, have been signed or sent by the proper parties, and are
what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to
the Commitments and Loans, the Administrative Agent shall have the same rights
and powers hereunder as any other Lender, and the Administrative Agent and its
affiliates may accept
73
deposits from, lend money to, and generally engage in any kind of business with
the Borrowers or any Affiliates of, or Persons doing business with, any
Borrower, as if it were not the Administrative Agent or affiliated with the
Administrative Agent and without any obligation to account therefor. The Lenders
and the Issuing Banks acknowledge that the Administrative Agent and its
affiliates have other lending and investment relationships with the Borrowers
and their Affiliates and in the future may enter into additional such
relationships.
Section 9.6 Responsibility of the Administrative Agent. The
duties and obligations of the Administrative Agent under this Agreement are only
those expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified by the
Borrowers, of such fact, or has been notified by a Lender that such Lender
considers that a Default or an Event of Default has occurred and is continuing,
and such Lender shall specify in detail the nature thereof in writing. The
Administrative Agent shall provide each Lender with copies of such documents
received from the Borrowers.
Section 9.7 Action by Administrative Agent.
(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, unless the Administrative Agent shall have been instructed
by all of the Lenders to exercise or refrain from exercising such rights or to
take or refrain from taking such action, provided that the Administrative Agent
shall not exercise any rights under Section 8.2(a) of this Agreement without the
approval of all of the Lenders. The Administrative Agent shall incur no
liability under or in respect of this Agreement 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 in accordance with the instructions of all of the Lenders, and any
action taken or failure to act pursuant to such instructions shall be binding on
all Lenders, unless this Agreement specifically requires the consent of all
Lenders to such action or inaction.
(c) The Administrative Agent, without the concurrence of
all of the Lenders, shall not (i) consent to the receipt of any payment in
respect of the Subordinated Debt by the Parent otherwise prohibited hereunder,
or (ii) consent to the amendment of the Subordinated Note, or any other
agreement, instrument or document relating thereto, or the granting of
collateral to secure the Subordinated Debt.
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 as all of the 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, unless such action requires
the consent of all Lenders. If the Lenders shall fail to request the
Administrative Agent to take action or to assert rights under this Agreement in
respect of any Default or Event of Default within ten (10) days after their
receipt of the notice of any Default or Event
74
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 Lenders, except that, if all of the 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 9.9 Responsibility Disclaimed. The Administrative Agent
shall not be under any liability or responsibility whatsoever as Administrative
Agent:
(a) To any Borrower or any other Person or entity as a
consequence of any failure or delay in performance by or any breach by, any
Lender or Lenders of any of its or their obligations under this Agreement;
(b) To any Lender or Lenders, as a consequence of any
failure or delay in performance by, or any breach by, any Borrower or any other
obligor of any of its obligations under this Agreement or the Notes or any other
Loan Document; or
(c) To any Lender or Lenders for any statements,
representations, or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability, or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement.
Section 9.10 Indemnification. The Lenders agree to indemnify the
Agents (to the extent not reimbursed by the Borrowers) pro rata in accordance
with their Aggregate Commitment Ratios from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
investigations, costs, expenses (including fees and expenses of experts, agents,
consultants, and counsel), or disbursements of any kind or nature (whether or
not such Agent is a party to any such action, suit or investigation) whatsoever
which may be imposed on, incurred by, or asserted against such Agent in any way
relating to or arising out of this Agreement, any other Loan Document, or any
other document contemplated by this Agreement or any action taken or omitted by
such Agent under this Agreement, any other Loan Document, or any other document
contemplated by this Agreement, except that no Lender shall be liable to any
Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements
resulting from the gross negligence or willful misconduct of such Agent as
determined by a final non-appealable order of a court of competent jurisdiction.
The provisions of this Section 9.10 shall survive the termination of this
Agreement.
Section 9.11 Credit Decision. Each Lender represents and warrants
to each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement
and to make its Advances it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrowers and
that it has made an independent credit judgment, and that it has not relied upon
information provided by the Administrative Agent; and
75
(b) So long as any portion of the Loans remains
outstanding, it will continue to make its own independent evaluation of the
financial condition and affairs of the Borrowers.
Section 9.12 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrowers. Upon any such resignation, all of the
Lenders shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by all of the
Lenders, and shall have accepted such appointment within thirty (30) days after
the retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be any Lender or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties, and obligations of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 9.12 shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent.
Section 9.13 Administrative Agent May File Proofs of Claim. The
Administrative Agent may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent, its agents,
financial advisors and counsel), the Lenders and the Issuing Banks allowed in
any judicial proceedings relative to any Borrower or any Subsidiary of a
Borrower, or any of their respective creditors or property, and shall be
entitled and empowered to collect, receive and distribute any monies, securities
or other property payable or deliverable on any such claims and any custodian in
any such judicial proceedings is hereby authorized by each Lender and each
Issuing Bank to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the Issuing Banks, to pay to the Administrative
Agent any amount due to the Administrative Agent for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent,
its agents, financial advisors and counsel, and any other amounts due the
Administrative Agent under Section 10.2 hereof. Nothing contained in the Loan
Agreement or the Loan Documents shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
any Issuing Bank any plan of reorganization, arrangement, adjustment or
composition affecting the Notes, the Letters of Credit or the rights of any
holder thereof, or to authorize the Administrative Agent to vote in respect of
the claim of any Lender or any Issuing Bank in any such proceeding.
Section 9.14 Collateral. The Administrative Agent is hereby
authorized to hold all Collateral pledged pursuant to any Loan Document and to
act on behalf of the Lenders and the Issuing Banks, in its own capacity and
through other agents appointed by it, under the Security Documents; provided,
that the Administrative Agent shall not agree to the release of any Collateral
except in accordance with the terms hereof.
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Section 9.15 Release of Collateral.
(a) Each Lender and each Issuing Bank hereby directs, in
accordance with the terms of this Agreement, the Administrative Agent to release
or to subordinate any Lien held by the Administrative Agent for the benefit of
the Lenders and the Issuing Banks:
(i) against all of the Collateral, upon final
and indefeasible payment in full of the Obligations and termination of this
Agreement; or
(ii) against any part of the Collateral sold or
disposed of by any Borrower if such sale or disposition is permitted by Section
7.7 hereof or is otherwise consented to by all of the Lenders for such release
as set forth in Section 10.12 hereof, as certified to the Administrative Agent
by the Borrowers in a certificate of an Authorized Signatory; or
(iii) after exercise of the Call Option and
payment of the Purchase Price (as defined in the ▇▇▇▇▇▇▇▇ Guaranty), against the
Call Option Collateral (as defined in the ▇▇▇▇▇▇▇▇ Guaranty) in accordance with
the terms and conditions of the ▇▇▇▇▇▇▇▇ Guaranty.
(b) Each Lender and each Issuing Bank hereby directs the
Administrative Agent to execute and deliver or file such termination and partial
release statements and do such other things as are necessary to release Liens to
be released pursuant to this Section 9.15 promptly upon the effectiveness of any
such release. Upon request by the Administrative Agent at any time, the Lenders
and the Issuing Banks will confirm in writing the Administrative Agent's
authority to release particular types or items of Collateral pursuant to this
Section 9.15.
Section 9.16 Security Documents. The Administrative Agent is
hereby authorized to enter into each of the Security Documents on behalf itself
and on behalf of the Issuing Banks and the Lenders.
Section 9.17 Syndication Agent. The Syndication Agent shall be
subject to no duties or obligations under this Agreement or under any other Loan
Document in its capacity as Syndication Agent.
ARTICLE 10 MISCELLANEOUS
Section 10.1 Notices.
(a) All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been given five (5)
days after deposit in the mail, designated as certified mail, return receipt
requested, post-prepaid, or one (1) day after being entrusted to a reputable
commercial overnight delivery service, or when delivered to the telegraph office
or sent out by telex or telecopy addressed to the party to which such notice is
directed at its address determined as provided in this Section 10.1. All notices
and other communications under this Agreement shall be given to the parties
hereto at the following addresses:
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(i) If to any Borrower or the Parent, to it at:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President and CEO
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇ & Bird, LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President Finance
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
J. ▇▇▇▇ ▇▇▇▇▇▇▇▇
c/o Delta Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Administrative Agent, to it at:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Bank of America, N.A.
Agency Services
One Independence Center
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Lenders or the Issuing Banks, to
them at the addresses set forth on Schedule
1 hereto.
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Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof.
(b) Any party hereto may change the address to which
notices shall be directed under this Section 10.1 by giving ten (10) days'
written notice of such change to the other parties.
Section 10.2 Expenses. The Borrowers, jointly and severally, agree
to pay promptly:
(a) All reasonable out-of-pocket expenses of the Lenders
in connection with the preparation, negotiation, execution, and delivery of this
Agreement and the other Loan Documents, the transactions contemplated hereunder
and thereunder, and the making of the initial Advance hereunder, including, but
not limited to, the fees and disbursements of counsel for the Lenders;
(b) All reasonable out-of-pocket expenses of the Lenders
in connection with the administration of the transactions contemplated in this
Agreement or the other Loan Documents, and the preparation, negotiation,
execution, and delivery of any waiver, amendment, or consent by the Lenders
relating to this Agreement or the other Loan Documents, including, but not
limited to, all reasonable out-of-pocket expenses of the Lenders in connection
with field audits and the fees and disbursements of counsel for the Lenders;
(c) All reasonable out-of-pocket costs and expenses of
the Administrative Agent, the Issuing Banks and any Lender in connection with
any restructuring, refinancing, or "work out" of the transactions contemplated
by this Agreement, and of obtaining performance under this Agreement or the
other Loan Documents, and all out-of-pocket costs and expenses of collection if
default is made in the payment of the Notes, which in each case shall include
fees and out-of-pocket expenses of counsel for the Administrative Agent and any
Lender, and the fees and out-of-pocket expenses of any experts, agents, or
consultants of the Administrative Agent; and
(d) All taxes (other than taxes imposed on the income of
the Agents and the Lenders), assessments, general or special, and other charges
levied on, or assessed, placed or made against any of the Collateral, the Notes
or the Obligations.
Section 10.3 Waivers. The rights and remedies of the
Administrative Agent and the Lenders under this Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative Agent, the
Issuing Banks, or the Lenders in exercising any right shall operate as a waiver
of such right. The Administrative Agent and the Lenders expressly reserve the
right to require strict compliance with the terms of this Agreement in
connection with any funding of a request for an Advance. In the event the
Lenders decide to fund a request for an Advance at a time when the Borrowers are
not in strict compliance with the terms of this Agreement, such decision by the
Lenders shall not be deemed to constitute an undertaking by the Lenders to fund
any further requests for Advances or preclude the Lenders from exercising any
rights available to the Lenders under the Loan Documents or at law or equity.
Any waiver or indulgence granted by the Lenders shall not constitute a
modification of this Agreement, except to the extent expressly provided in such
waiver or indulgence, or constitute a course of dealing by the Lenders at
variance with the terms of the Agreement such as to require further notice by
the Lenders of the Lenders' intent to require strict adherence to the terms of
the Agreement in the future. Any such actions shall
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not in any way affect the ability of the Lenders, in their discretion, to
exercise any rights available to them under this Agreement or under any other
agreement, whether or not the Lenders are party, relating to any Borrower. Each
of the Borrowers hereby waives any right that it may have to require the
Administrative Agent, and agrees that the Administrative Agent shall not have
any obligation, to marshal the property, instruments, documents, agreements or
guaranties of any other Borrower before enforcing its rights against the
Collateral or its rights under this Agreement or any other Loan Document as
against such Borrower.
Section 10.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
except to the extent limited by Applicable Law, upon the occurrence of an Event
of Default and during the continuation thereof, the Lenders and any subsequent
holder or holders of the Notes are hereby authorized by each Borrower at any
time or from time to time, without notice to any Borrower or to any other
Person, any such notice being hereby expressly waived, to set-off and to
appropriate and apply any and all deposits (general or special, time or demand,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured, but not including any
amounts held by the Administrative Agent or any of its Affiliates in any escrow
account) and any other Indebtedness at any time held or owing by the Lenders or
such holder to or for the credit or the account of the Borrowers, against and on
account of the obligations and liabilities of the Borrowers, to the Lenders or
such holder under this Agreement, the Notes, and any other Loan Document,
including, but not limited to, all claims of any nature or description arising
out of or connected with this Agreement, the Notes, or any other Loan Document,
irrespective of whether or not (a) the Lenders or the holder of the Notes shall
have made any demand hereunder or (b) the Lenders shall have declared the
principal of and interest on the Loans and Notes and other amounts due hereunder
to be due and payable as permitted by Section 8.2 and although said obligations
and liabilities, or any of them, shall be contingent or unmatured. Any sums
obtained by any Lender or by any subsequent holder of the Notes shall be subject
to the application of payments provisions of Article 2 hereof. Upon direction by
the Administrative Agent, with the consent of all of the Lenders, each Lender
holding deposits of any Borrower shall exercise its set-off rights as so
directed.
Section 10.5 Assignment.
(a) None of the Borrowers may assign or transfer any of
its rights or obligations hereunder, under the Notes or under any other Loan
Document without the prior written consent of each Lender.
(b) Each of the Lenders may at any time enter into
assignment agreements or participations with one or more other banks or other
Persons pursuant to which each Lender may assign or participate its interest
under this Agreement and the other Loan Documents, including, its interest in
any particular Advance or portion thereof, provided, that (1) all assignments
(other than assignments described in clause (2) herein and in Section 10.12(b)
hereof) shall be in minimum principal amounts of $5,000,000, (2) each Lender may
sell assignments or participations of up to one hundred percent (100%) of its
interest hereunder to (A) one or more Affiliates of such Lender, or (B) any
Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank (no assignment under this clause (B) shall
relieve such Lender from its obligations hereunder), and (3) all assignments
(other than assignments described in clause (2) herein and in Section 10.12(b)
hereof) and participations hereunder shall be subject to the following
additional terms and conditions:
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(i) No assignment (except assignments permitted
in Section 10.5(b)(2) hereof) shall be sold without the prior consent of the
Administrative Agent, which consent shall not be unreasonably withheld or
delayed;
(ii) Any Person purchasing a participation or an
assignment of the Loans from any Lender shall be required to represent and
warrant that its purchase shall not constitute a "prohibited transaction" (as
defined in Section 4.1(n) hereof);
(iii) The Borrowers, the Lenders, and the
Administrative Agent agree that assignments permitted hereunder (including the
assignment of any Advance or portion thereof) may be made with all voting
rights, and, except with respect to the Call Option, shall be made pursuant to
an Assignment and Assumption Agreement. An administrative fee of $5,000 shall be
payable to the Administrative Agent by the assigning Lender at the time of any
assignment hereunder (other than in connection with the Call Option); provided,
however, no fee shall be due with respect to any assignment by a Lender to an
Affiliate of such Lender;
(iv) No participation agreement shall confer any
rights under this Agreement or any other Loan Document to any purchaser thereof,
or relieve any issuing Lender from any of its obligations under this Agreement,
and all actions hereunder shall be conducted as if no such participation had
been granted; provided, however, that any participation agreement may confer on
the participant the right to approve or disapprove decreases in the rate of
interest or fees to the Lenders, increases in the advance rates set forth in the
definition of "Borrowing Base" herein, increases in the principal amount of such
participant's pro rata share of the Revolving Loan Commitment and extensions of
any Maturity Date for, or the date for any scheduled payment of principal,
interest or fees on, the Loans;
(v) Each Lender agrees to provide the
Administrative Agent and the Borrowers with prompt written notice of any
issuance of participation or assignments of its interests hereunder;
(vi) No assignment, participation or other
transfer of any rights hereunder or under the Notes shall be effected that would
result in any interest requiring registration under the Securities Act of 1933,
as amended, or qualification under any state securities law;
(vii) No such assignment may be made to any bank
or other financial institution (x) with respect to which a receiver or
conservator (including, without limitation, the Federal Deposit Insurance
Corporation, the Resolution Trust Company or the Office of Thrift Supervision)
has been appointed or (y) that is not "adequately capitalized" (as such term is
defined in Section 131(b)(1)(B) of the Federal Deposit Insurance Corporation
Improvement Act as in effect on the Agreement Date);
(viii) Except with respect to the Call Option, each
assignment or participation hereunder shall be made by the assigning Lender pro
rata with respect to such assigning Lender's Revolving Loan Commitment and
Tranche A Loan and Tranche B Loan; and
(ix) If applicable, each Lender shall, and shall
cause each of its assignees to provide to the Administrative Agent on or prior
to the Agreement Date or effective date of any assignment, as the case may be,
an appropriate Internal Revenue
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Service form as required by Applicable Law supporting such Lender's position
that no withholding by any Borrower or the Administrative Agent for U.S. income
tax payable by such Lender in respect of amounts received by it hereunder is
required. For purposes of this Agreement, an appropriate Internal Revenue
Service form shall mean Form 1001 (Ownership Exemption or Reduced Rate
Certificate of the U.S. Department of Treasury), or Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a Trade
or Business in the United States), or any successor or related forms adopted by
the relevant United States taxing authorities.
(c) Except as specifically set forth in Section 10.5(b)
hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(d) Anything in this Agreement to the contrary
notwithstanding, in the case of any participation, all amounts payable by the
Borrowers under the Loan Documents shall be calculated and made in the manner
and to the parties hereto as if no such participation had been sold.
Section 10.6 Counterparts; Facsimile Transmission. This Agreement
may be executed in any number of counterparts, each of which shall be deemed to
be an original, but all such separate counterparts shall together constitute but
one and the same instrument. Delivery of an executed counterpart of this
Agreement or any other Loan Document by facsimile shall be equally as effective
as delivery of an original executed counterpart of this Agreement or such Loan
Document, as applicable. Any party delivering an executed counterpart of this
Agreement or any Loan Document by facsimile also shall deliver an original
executed counterpart of this Agreement or such Loan Document, as applicable, but
the failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Agreement or any such Loan
Document.
Section 10.7 Governing Law. This Agreement and the Loan Documents
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 10.8 Severability. Any provision of this Agreement which
is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 10.9 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 10.10 Source of Funds. Notwithstanding the use by the
Lenders of the Base Rate and the Eurodollar Rate as reference rates for the
determination of interest on the Loans, the Lenders shall be under no obligation
to obtain funds from any particular source in order to charge interest to the
Borrowers at interest rates tied to such reference rates.
Section 10.11 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement and the other documents described or
contemplated herein embody the entire Agreement and understanding among the
parties hereto and thereto and supersede all
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prior agreements, understandings, and conversations relating to the subject
matter hereof and thereof. Each Borrower represents and warrants to the
Administrative Agent and each of the Lenders that it has read the provisions of
this Section 10.11 and discussed the provisions of this Section 10.11 and the
rest of the Loan Agreement with counsel for the Borrowers, and each Borrower
acknowledges and agrees that the Administrative Agent and each of the Lenders
are expressly relying upon such representations and warranties of such Borrower
(as well as the other representations and warranties of each of the Borrowers
set forth in Section 4.1 hereof) in entering into this Agreement.
Section 10.12 Amendments and Waivers.
(a) Neither this Agreement nor any other Loan Document or
any term hereof may be amended orally, nor may any provision hereof be waived
orally but only by an instrument in writing signed by all of the Lenders and, in
the case of an amendment, also by the Borrowers.
(b) Each Lender grants to the Administrative Agent the
right to purchase all (but not less than all) of such Lender's Commitments,
Letter of Credit Commitment, and the Loans and Letter of Credit Obligations
owing to it and the Notes held by it and all of its rights and obligations
hereunder and under the other Loan Documents at a price equal to the aggregate
amount of outstanding Loans and Letter of Credit Obligations owed to such Lender
(together with all accrued and unpaid interest and fees owed to such Lender),
which right may be exercised by the Administrative Agent if such Lender refuses
to execute any amendment, waiver or consent which requires the written consent
of all of the Lenders and to which all of the Lenders, the Administrative Agent
and the Borrowers have agreed. Each Lender agrees that if the Administrative
Agent exercises its option hereunder, it shall promptly execute and deliver an
Assignment and Assumption Agreement and other agreements and documentation
necessary to effectuate such assignment. The Administrative Agent 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).
Section 10.13 Other Relationships. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of the Administrative Agent, each Issuing Bank and each Lender to enter into or
maintain business relationships with any of the Borrowers, or any of their
respective Affiliates, beyond the relationships specifically contemplated by
this Agreement and the other Loan Documents.
Section 10.14 Pronouns. The pronouns used herein shall include,
when appropriate, either gender and both singular and plural, and the
grammatical construction of sentences shall conform thereto.
Section 10.15 Disclosure. Each of the Borrowers agrees that the
Administrative Agent shall have the right to issue press releases regarding the
making of the Loans to the Borrowers pursuant to the terms of this Agreement.
Section 10.16 Replacement of Lender. In the event that a
Replacement Event occurs and is continuing with respect to any Lender, the
Borrowers may designate another financial institution (such financial
institution being herein called a "Replacement Lender") acceptable to the
Administrative Agent, and which is not a Borrower or an Affiliate of a Borrower,
to assume such Lender's Commitments hereunder, to purchase the Loans and
participations of such Lender and such Lender's rights hereunder, without
recourse to or representation or warranty by, or expense to, such Lender for a
purchase price equal to the outstanding principal amount of the Loans payable to
such Lender plus any accrued but
83
unpaid interest on such Loans and accrued but unpaid commitment fees owing to
such Lender, and upon such assumption, purchase and substitution, and subject to
the execution and delivery to the Administrative Agent by the Replacement Lender
of documentation satisfactory to the Administrative Agent (pursuant to which
such Replacement Lender shall assume the obligations of such original Lender
under this Agreement), the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder and such Lender shall no longer be a party
hereto or have any rights hereunder provided that the obligations of the
Borrowers to indemnify such Lender with respect to any event occurring or
obligations arising before such replacement shall survive such replacement.
"Replacement Event" means, with respect to any Lender, (i) the
commencement of or the taking of possession by, a receiver, custodian,
conservator, trustee or liquidator of such Lender, (ii) any Issuing Bank or any
Lender requesting compensation under Section 2.16(g), 11.3 or 11.5 as the case
may be, (iii) the declaration by the appropriate regulatory authority that such
Lender is insolvent, or (iv) the failure of such Lender to consent to a
requested waiver or amendment.
Section 10.17 Confidentiality. The Borrowers agree that the Agents,
the Issuing Banks and each Lender may use the Borrowers' names in advertising
and promotional material and in conjunction therewith disclose the general terms
of this Agreement.
Section 10.18 Amendments to Loan Documents. To the extent that any
of the Loan Documents are not being amended and restated in connection herewith,
each of such Loan Documents is hereby deemed modified and amended to the extent
necessary to reflect the amendments contained herein. Each reference to the
"Credit Agreement" contained in such Loan Documents shall be deemed to refer to
this Agreement, and each reference to the other "Loan Documents" contained in
such Loan Documents shall be deemed to include such Loan Documents as they may
be amended and restated in connection herewith.
ARTICLE 11 YIELD PROTECTION
Section 11.1 Eurodollar Rate Basis Determination. Notwithstanding
anything contained herein which may be construed to the contrary, if with
respect to any proposed Eurodollar Rate Advance for any Eurodollar Advance
Period, the Administrative Agent determines that deposits in dollars (in the
applicable amount) are not being offered to the Administrative Agent in the
relevant market for such Eurodollar Advance Period, the Administrative Agent
shall forthwith give notice thereof to the Borrowers and the Lenders, whereupon
until the Administrative Agent notifies the Borrowers that the circumstances
giving rise to such situation no longer exist, the obligations of the Lenders to
make such types of Eurodollar Rate Advances shall be suspended.
Section 11.2 Illegality. If any applicable law, rule, or
regulation, or any change therein, or any interpretation or change in
interpretation or administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender with any request or directive (whether or
not having the force of law) of any such authority, central bank, or comparable
agency, shall make it unlawful or impossible for any Lender to make, maintain,
or fund its Eurodollar Rate Advances, such Lender shall so notify the
Administrative Agent, and the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrowers. Before giving any notice to the
Administrative Agent pursuant to this Section 11.2, such Lender shall designate
a different lending office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. Upon receipt of such notice, notwithstanding
anything
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contained in Article 2 hereof, the Borrowers shall repay in full the then
outstanding principal amount of each affected Eurodollar Rate Advance of such
Lender, together with accrued interest thereon, either (a) on the last day of
the then current Eurodollar Advance Period applicable to such Eurodollar Rate
Advance if such Lender may lawfully continue to maintain and fund such
Eurodollar Rate Advance to such day or (b) immediately if such Lender may not
lawfully continue to fund and maintain such Eurodollar Rate Advance to such day.
Concurrently with repaying each affected Eurodollar Rate Advance of such Lender,
notwithstanding anything contained in Article 2 hereof, the Borrowers shall
borrow a Base Rate Advance (or the other type of Eurodollar Rate Advance, if
available) from such Lender, and such Lender shall make such Advance in an
amount such that the outstanding principal amount of the Note held by such
Lender shall equal the outstanding principal amount of such Note immediately
prior to such repayment.
Section 11.3 Increased Costs.
(a) If after the Agreement Date any applicable law, rule,
or regulation, or any change therein, or any interpretation or change in
interpretation or administration thereof by any governmental authority, central
bank, or comparable agency charged with the interpretation or administration
thereof or compliance by any Lender with any request or directive (whether or
not such governmental authority, central bank, or comparable agency has the
authority to make such request or directive):
(i) Shall subject any Lender to any tax, duty,
or other charge with respect to its obligation to make Eurodollar Rate Advances,
or its Eurodollar Rate Advances, or shall change the basis of taxation of
payments to any Lender of the principal of or interest on its Eurodollar Rate
Advances or in respect of any other amounts due under this Agreement in respect
of its Eurodollar Rate Advances or its obligation to make Eurodollar Rate
Advances (except for changes in the rate of tax on the overall net income of
such Lender imposed by the jurisdiction in which such Lender's principal
executive office is located); or
(ii) Shall impose, modify, or deem applicable any
reserve (including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System, but excluding any included in an applicable
Eurodollar Reserve Percentage), special deposit, capital adequacy, assessment,
or other requirement or condition against assets of, deposits with or for the
account of, or commitments or credit extended by any Lender, or shall impose on
any Lender or the eurodollar interbank borrowing market any other condition
affecting its obligation to make such Eurodollar Rate Advances or its Eurodollar
Rate Advances; and the result of any of the foregoing is to increase the cost to
such Lender of making or maintaining any such Eurodollar Rate Advances, or to
reduce the amount of any sum received or receivable by the Lender under this
Agreement or under its Notes with respect thereto, and such increase is not
given effect in the determination of the Eurodollar Rate then, on the earlier of
demand by such Lender or the Maturity Date, the Borrowers, jointly and
severally, agree to pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased costs. Each Lender will promptly
notify the Borrowers and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 11.3 and will designate a different
lending office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender.
(b) A certificate of any Lender claiming compensation
under this Section 11.3 and setting forth the additional amount or amounts to be
paid to it hereunder and
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calculations therefor shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods. If any Lender demands compensation under this Section 11.3,
the Borrowers may at any time, upon at least five (5) Business Days' prior
notice to such Lender, prepay in full the then outstanding affected Eurodollar
Rate Advances of such Lender, together with accrued interest thereon to the date
of prepayment, along with any reimbursement required under Section 2.9 hereof.
Concurrently with prepaying such Eurodollar Rate Advances the Borrowers shall
borrow a Base Rate Advance, or a Eurodollar Rate Advance not so affected, from
such Lender, and such Lender shall make such Advance in an amount such that the
outstanding principal amount of the Notes held by such Lender shall equal the
outstanding principal amount of such Notes immediately prior to such prepayment.
Section 11.4 Effect On Other Advances. If notice has been given
pursuant to Section 11.1 or 11.2 suspending the obligation of any Lender to make
any type of Eurodollar Rate Advance, or requiring Eurodollar Rate Advances of
any Lender to be repaid or prepaid, then, unless and until such Lender notifies
the Borrowers that the circumstances giving rise to such repayment no longer
apply, all Advances which would otherwise be made by such Lender as to the type
of Eurodollar Rate Advances affected shall, at the option of the Borrowers, be
made instead as Base Rate Advances.
Section 11.5 Capital Adequacy. If after the date hereof, any
Lender or Issuing Bank (or any affiliate thereof) shall have reasonably
determined that the adoption of any applicable law, governmental rule,
regulation or order regarding the capital adequacy of banks or bank holding
companies, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Lender or Issuing Bank (or any affiliate thereof) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on such Lender's or Issuing
Bank's (or any affiliate thereof) capital as a consequence of such Lender's or
Issuing Bank's Commitments or obligations hereunder to a level below that which
it could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or Issuing Bank's (or any affiliate thereof)
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Lender's or Issuing Bank's (or any
affiliate thereof) capital was fully utilized prior to such adoption, change or
compliance), then, upon demand by such Lender or Issuing Bank, the Borrowers
shall immediately pay to such Lender or Issuing Bank such additional amounts as
shall be sufficient to compensate such Lender or Issuing Bank for any such
reduction actually suffered; provided, however, that there shall be no
duplication of amounts paid to a Lender or Issuing Bank pursuant to this
sentence and Section 11.3 hereof. A certificate of such Lender or Issuing Bank
setting forth the amount to be paid to such Lender or Issuing Bank by the
Borrowers as a result of any event referred to in this paragraph shall, absent
manifest error, be conclusive.
ARTICLE 12 JURISDICTION, VENUE AND
WAIVER OF JURY TRIAL
Section 12.1 Jurisdiction and Service of Process. FOR PURPOSES OF
ANY LEGAL ACTION OR PROCEEDING BROUGHT BY THE ADMINISTRATIVE AGENT, THE ISSUING
BANKS OR THE LENDERS WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
THE PARENT AND EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO THE PERSONAL
JURISDICTION OF THE FEDERAL AND STATE COURTS SITTING IN THE STATE OF GEORGIA AND
HEREBY IRREVOCABLY DESIGNATES AND APPOINTS, AS ITS
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AUTHORIZED AGENT FOR SERVICE OF PROCESS IN THE STATE OF GEORGIA, BULL RUN, WHOSE
ADDRESS IS SET FORTH IN SECTION 10.1 HEREOF, OR SUCH OTHER PERSON AS THE PARENT
AND THE BORROWERS SHALL DESIGNATE HEREAFTER BY WRITTEN NOTICE GIVEN TO THE
ADMINISTRATIVE AGENT. THE CONSENT TO JURISDICTION HEREIN SHALL NOT BE EXCLUSIVE.
THE ADMINISTRATIVE AGENT, THE ISSUING BANKS AND THE LENDERS SHALL FOR ALL
PURPOSES AUTOMATICALLY, AND WITHOUT ANY ACT ON THEIR PART, BE ENTITLED TO TREAT
SUCH DESIGNEE OF THE PARENT AND THE BORROWERS AS THE AUTHORIZED AGENT TO RECEIVE
FOR AND ON BEHALF OF THE PARENT AND EACH BORROWER SERVICE OF WRITS, OR SUMMONS
OR OTHER LEGAL PROCESS IN THE STATE OF GEORGIA, WHICH SERVICE SHALL BE DEEMED
EFFECTIVE PERSONAL SERVICE ON THE PARENT OR SUCH BORROWER SERVED WHEN DELIVERED,
WHETHER OR NOT SUCH AGENT GIVES NOTICE TO THE PARENT OR SUCH BORROWER; AND
DELIVERY OF SUCH SERVICE TO ITS AUTHORIZED AGENT SHALL BE DEEMED TO BE MADE WHEN
PERSONALLY DELIVERED OR THREE (3) BUSINESS DAYS AFTER MAILING BY REGISTERED OR
CERTIFIED MAIL ADDRESSED TO SUCH AUTHORIZED AGENT. THE PARENT AND EACH BORROWER
FURTHER IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL TO
THE PARENT OR SUCH BORROWER AT THE ADDRESS SET FORTH ABOVE, SUCH SERVICE TO
BECOME EFFECTIVE THREE (3) BUSINESS DAYS AFTER SUCH MAILING. IN THE EVENT THAT,
FOR ANY REASON, SUCH AGENT OR HIS OR HER SUCCESSORS SHALL NO LONGER SERVE AS
AGENT OF THE PARENT AND THE BORROWERS TO RECEIVE SERVICE OF PROCESS IN THE STATE
OF GEORGIA, THE PARENT AND THE BORROWERS SHALL SERVE AND ADVISE THE
ADMINISTRATIVE AGENT THEREOF SO THAT AT ALL TIMES THE PARENT AND EACH BORROWER
WILL MAINTAIN AN AGENT TO RECEIVE SERVICE OF PROCESS IN THE STATE OF GEORGIA ON
BEHALF OF EACH BORROWER WITH RESPECT TO THIS AGREEMENT AND ALL OTHER LOAN
DOCUMENTS. IN THE EVENT THAT, FOR ANY REASON, SERVICE OF LEGAL PROCESS CANNOT BE
MADE IN THE MANNER DESCRIBED ABOVE, SUCH SERVICE MAY BE MADE IN SUCH MANNER AS
PERMITTED BY LAW.
Section 12.2 Consent to Venue. THE PARENT AND EACH BORROWER HEREBY
IRREVOCABLY WAIVES ANY OBJECTION IT WOULD MAKE NOW OR HEREAFTER FOR THE LAYING
OF VENUE OF ANY SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT BROUGHT IN THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA SITTING IN ATLANTA, GEORGIA, AND HEREBY IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH SUIT, ACTION, OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
Section 12.3 Waiver of Jury Trial. THE PARENT AND EACH BORROWER
AND EACH OF THE ADMINISTRATIVE AGENT, THE ISSUING BANKS AND THE LENDERS TO THE
EXTENT PERMITTED BY APPLICABLE LAW WAIVE, AND OTHERWISE AGREE NOT TO REQUEST, A
TRIAL BY JURY IN ANY COURT AND IN ANY ACTION, PROCEEDING OR COUNTERCLAIM OF ANY
TYPE IN WHICH THE PARENT OR ANY OF THE BORROWERS, ANY OF THE LENDERS, THE
ADMINISTRATIVE AGENT, ANY OF THE ISSUING BANKS OR ANY OF THEIR RESPECTIVE
SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY
OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN
DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS ARTICLE 12.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
under seal by their duly authorized officers in Atlanta, Georgia, all as of the
day and year first above written.
BORROWERS: BR HOLDING, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President - Finance
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CAPITAL SPORTS PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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HOST COMMUNICATIONS, INC.,
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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DATASOUTH COMPUTER CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Executive VP - Finance & Administration
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GUARANTOR: BULL RUN CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President - Finance
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88
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Senior Vice President
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SYNDICATION AGENT: FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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ISSUING BANKS: BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Senior Vice President
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89
BANK ONE, KENTUCKY, NA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: First Vice President
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LENDERS: BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Senior Vice President
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BANK ONE, KENTUCKY, NA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
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Title: First Vice President
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FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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WACHOVIA BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Senior Vice President
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90