0000950144-01-507835.txt : 20011019
0000950144-01-507835.hdr.sgml : 20011019
ACCESSION NUMBER: 0000950144-01-507835
CONFORMED SUBMISSION TYPE: 10-K405
PUBLIC DOCUMENT COUNT: 8
CONFORMED PERIOD OF REPORT: 20010630
FILED AS OF DATE: 20011015
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BULL RUN CORP
CENTRAL INDEX KEY: 0000319697
STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577]
IRS NUMBER: 911117599
STATE OF INCORPORATION: GA
FISCAL YEAR END: 0630
FILING VALUES:
FORM TYPE: 10-K405
SEC ACT: 1934 Act
SEC FILE NUMBER: 000-09385
FILM NUMBER: 1759509
BUSINESS ADDRESS:
STREET 1: 4370 PEACHTREE RD NE
CITY: ATLANTA
STATE: GA
ZIP: 30319
BUSINESS PHONE: 4042668333
MAIL ADDRESS:
STREET 1: 4310 PEACHTREE ROAD N.E.
CITY: ATLANTA
STATE: GA
ZIP: 30319
FORMER COMPANY:
FORMER CONFORMED NAME: BULL RUN GOLD MINES LTD
DATE OF NAME CHANGE: 19920703
10-K405
1
g71872e10-k405.txt
BULL RUN CORPORATION
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
for the fiscal year ended JUNE 30, 2001
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
for the transition period from to
------------------ --------------
Commission File Number 0-9385
BULL RUN CORPORATION
(Exact name of registrant as specified in its charter)
GEORGIA 58-2458679
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4370 PEACHTREE ROAD, N.E., ATLANTA, GA 30319
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (404) 266-8333
Securities registered pursuant to Section 12(b) of the Act:
Title of each class: None Name of each exchange on which registered: N/A
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.01 PAR VALUE
(Title of class)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. [ X ] Yes [ ] No
Indicate by check mark if disclosure of delinquent filers in response
to Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. [ X ]
The aggregate market value of the voting and non-voting common equity
held by non-affiliates as of August 31, 2001 was $29,109,542 based on the
closing price thereof on The Nasdaq Stock Market.
The number of shares outstanding of the registrant's Common Stock, par
value $.01 per share, as of August 31, 2001, was 36,024,126.
DOCUMENTS INCORPORATED BY REFERENCE
Documents
Definitive Proxy Statement for the 2001 Annual Meeting of Shareholders
Form 10-K Reference
Part III, Items 10, 11, 12 and 13
BULL RUN CORPORATION
FORM 10-K INDEX
PART I
PAGE
----
ITEM 1. Business............................................................ 3
ITEM 2. Properties.......................................................... 9
ITEM 3. Legal Proceedings................................................... 9
ITEM 4. Submission of Matters to a Vote of Security Holders................. 10
PART II
ITEM 5. Market for Registrant's Common Equity and Related Stockholder
Matters........................................................ 11
ITEM 6. Selected Financial Data............................................. 12
ITEM 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.......................................... 14
ITEM 7A. Quantitative and Qualitative Disclosures About Market Risk.......... 27
ITEM 8. Financial Statements and Supplementary Data......................... 28
ITEM 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure........................................... 60
PART III
ITEM 10. Directors and Executive Officers of the Registrant.................. 61
ITEM 11. Executive Compensation.............................................. 61
ITEM 12. Security Ownership of Certain Beneficial Owners and Management...... 61
ITEM 13. Certain Relationships and Related Transactions...................... 61
PART IV
ITEM 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.... 62
Signatures.......................................................... 65
2
PART I
ITEM 1. BUSINESS
GENERAL
Bull Run Corporation (the "Company" or "Bull Run"), a Georgia
corporation based in Atlanta, is a sports, affinity marketing and management
company through its primary operating subsidiary, Host Communications, Inc.
("Host"), acquired in December 1999. Host's "Collegiate Marketing and Production
Services" business segment provides sports marketing and production services
primarily to a number of collegiate conferences and universities and the
National Collegiate Athletic Association (the "NCAA"). Host's "Affinity Events"
business segment produces and manages individual events and several events
series, including the "Hoop-It-Up(R)" (the National Basketball Association's
official 3-on-3 basketball tour), the "Got Milk? 3v3 Soccer Shootout" (Major
League Soccer's official 3-on-3 soccer tour) and NCAA Football's "Let-It-Fly"
4-on-4 flag football tour. Host's "Affinity Management Services" business
segment provides associations, such as the National Tour Association, Quest (the
J.D. Edwards users group association) and the National Thoroughbred Racing
Association, with services ranging from member communication, recruitment and
retention, to conference planning, Internet web site management, marketing,
sales representation and administration.
Effective December 17, 1999, the Company acquired (the "Host-USA
Acquisition") the stock of Host, Universal Sports America, Inc. ("USA") and
Capital Sports Properties, Inc. ("Capital") not then owned, directly or
indirectly, by the Company. In January 2000, Host's executive management team
assumed executive management responsibilities for USA, and many administrative
and operating functions of the two companies were combined. Effective July 1,
2000, USA was merged into Host. Capital was solely an investor in Host and has
no operating business.
The Company also has significant investments in other sports, media and
marketing companies, including Gray Communications Systems, Inc. ("Gray"), the
owner and operator of 13 television stations, four newspapers and other media
and communications businesses; Sarkes Tarzian, Inc. ("Tarzian"), the owner and
operator of two television stations and four radio stations; Rawlings Sporting
Goods Company, Inc. ("Rawlings"), a supplier of team sports equipment; and
iHigh, Inc. ("iHigh"), an Internet and marketing company focused on high school
students. The Company provides consulting services to Gray in connection with
Gray's acquisitions and dispositions.
As of June 30, 2001, the Company owned approximately 13.0% of the
outstanding common stock of Gray (representing 26.1% of the voting rights), in
addition to non-voting preferred stock and warrants to purchase additional Gray
common stock; 33.5% of the total outstanding common stock of Tarzian both in
terms of the number of shares of common stock outstanding and in terms of voting
rights (representing 73% of the equity of Tarzian for purposes of dividends, as
well as distributions in the event of any liquidation, dissolution or other
termination of Tarzian); 10.1% of the outstanding common stock of Rawlings, in
addition to warrants for the purchase of additional shares of Rawlings common
stock; and 35.1% of the outstanding common stock of iHigh.
COLLEGIATE MARKETING AND PRODUCTION SERVICES SEGMENT
NCAA GROUP - Host has had a contractual relationship with the NCAA
since 1975. It began as an agreement to administer radio rights and form a
national NCAA Radio Network for the men's Final Four(R) and has expanded to
publishing, Internet and corporate marketing representation, including the
exclusive licensing of various NCAA trademarks.
3
In 1984, Host and the NCAA initiated the NCAA Corporate Partner Program
that currently includes 14 nationally prominent corporations, including
Gillette, which was the first corporate partner, signed 17 years ago. Under the
NCAA Corporate Partner Program, the Company partners with an exclusive group of
corporations to link their target markets to, and implement promotions around,
NCAA championships through a variety of advertising and promotional
opportunities. The opportunities include the NCAA Radio Network, co-produced
with CBS Radio, for the men's and women's Final Fours and the College World
Series. Host's current contract with the NCAA expires in 2002. In July 2001,
Host executed an 11-year agreement with CBS Sports for certain marketing,
licensing and media rights, including the administration of the NCAA Corporate
Partner Program. Under the agreement Host was awarded, among other rights: (a)
exclusive worldwide rights to administer the NCAA Corporate Partner Program; (b)
exclusive right to produce, distribute and sell NCAA Championship game programs
and publications; (c) rights to engage in merchandise licensing utilizing
registered marks of the NCAA and its championships; (d) television rights for
certain NCAA Championships that will not be otherwise aired by CBS or ESPN, and
other sports-related television programming; (e) video streaming rights and home
video rights to all NCAA championships except the Men's Final Four; and (f)
exclusive rights to the "Hoop City Experience" interactive event at both the
Men's and Women's Final Four. Host's contract with CBS will run concurrently
with CBS's agreement with the NCAA, which begins with the fall academic calendar
in 2002 and extends through the spring championships season in 2013.
COLLEGIATE SPORTS - The Company, through Host, provides sports and
marketing services for a number of NCAA Division I universities and conferences.
The agreements relating to the services rendered by the Company vary by school
or conference, but typically provide for some or all of the following: (a) the
production of radio and television broadcasts of certain athletic events and
coaches' shows; (b) sale of advertising during radio and television broadcasts
of games and coaches' shows; (c) sale of media advertising and venue signage;
(d) sale of "official sponsorship" rights to corporations; (e) publishing,
printing and vending of game-day and other programs; (f) creative design of
materials; video production; construction and management of Internet web sites;
and (g) coaches' endorsements and pay-per-view telecasts. Universities with
which the Company has agreements are Boston College, Eastern Kentucky, Florida
State, Kentucky, Michigan, Mississippi State, Notre Dame, Purdue, South
Carolina, Southern Methodist, Tennessee and Texas. The Company currently has
marketing agreements with the Metro Atlantic Athletic, Horizon (formerly
Midwestern Collegiate), Ohio Valley, Southeastern and Southern Conferences. The
Company also helped form the Historically Black Collegiate Coalition (HBCCTM)
and has marketing rights to the Southwestern Bell Red River Shootout featuring
the University of Texas and University of Oklahoma's annual football rivalry,
and the Lone Star Showdown football game featuring Texas and Texas A&M
University.
The Company publishes Dave Campbell's Texas Football Magazine and has
marketing rights to two interstate high school football all-star games, the "Oil
Bowl" game featuring high school all-stars from Texas playing those from
Oklahoma, and the Shriner's California versus Texas all-star game. In addition,
the Company has the rights to the HEB Classic, an annual series of football
games that features six prominent Texas high school teams. The Company also
partners with the Texas Radio Network and Fox SportsNet to broadcast and
televise key high school championship events.
INTEGRATED MEDIA GROUP - The Company produces more than 700
publications annually for a variety of clients, including the NCAA, college
football conferences, universities, and various collegiate associations. The
Company's publications include game programs, media guides, posters and
marketing brochures, including more than 60 NCAA championship programs in 21
sports and specialty publications, such as the official NCAA Basketball
Championship Guide. The Company also provides high quality printing services for
corporations and non-profit
4
organizations nationwide, consisting of directories, annual reports, brochures,
posters, programs and catalogs.
The Company produces television programs, videos, radio broadcasts,
commercial audio and Internet related services. Radio broadcast programs
created, produced, syndicated and/or distributed by the Company include: (a) the
NCAA Men's Basketball Network, carried on approximately 400 radio stations
involving all of the top 100 markets; (b) the NCAA Division I Women's Basketball
Network; (c) the College World Series championship game carried on more than 100
radio stations, in conjunction with Westwood One and CBS; (d) "March to March,"
a nationally syndicated call-in radio show; (e) the 42-game college football and
44-game basketball games of the week; and (f) in a collaborative effort with the
Premiere Radio Network, the Breeders Cup and the three Triple Crown horse racing
events. The Company administers the regional radio networks of 11 NCAA Division
I universities and three conferences. The Company's digital recording studios
handle network quality soundtracks for radio, television and multi-image
presentations.
The Company collaborates with NCAA On-line, and until April 2001, with
Quokka Sports, Inc. ("Quokka," an affiliated company further discussed below),
on www.finalfour.net, the official site for the NCAA Division I Men's and
Women's Basketball Championships, and the College World Series' official site.
Over the three weeks of the 2001 men's tournament, www.finalfour.net received
over 3.6 million visits. Other web sites developed and managed by Host include
those for the Breeder's Cup, Quest (the J.D. Edwards software user group
association), Rawlings, the International SPA Association and the National Tour
Association.
AFFINITY EVENTS SEGMENT
The Company's Affinity Events division produces and manages large
participatory sporting events throughout the United States and internationally.
In connection with these events, the Company provides professional marketing and
management services to corporations looking to supplement their own sales and
promotional activities with sports-based events that target specific
participating audiences and demographics. "Hoop-It-Up(R)", held in approximately
40 U.S. cities each year, is the official 3-on-3 basketball tournament of the
National Basketball Association and NBC Sports. The 2000 Tour involved
approximately 110,000 paid participants and one million spectators. Hoop-It-Up's
Germany extension, the "TD-1 Basketball Challenge," is managed by the Company's
Paris, France office in collaboration with NBA Europe. The 2001 Tour, held in 9
cities, involved approximately 10,000 players and 250,000 spectators.
In September 2000, the Company acquired Summit Sports & Events, Inc.
("Summit"), which operates participatory soccer and basketball tours. Summit's
"Got Milk? 3v3 Soccer Shootout" is Major League Soccer's official 3-on-3 soccer
tour. The 2000-01 Tour, held in 70 U.S. cities, including a series of "national
championship" matches held at Disney World in Orlando, Florida, involved
approximately 70,000 paid participants and 450,000 spectators. Summit also
administers the "Roundball Ruckus" 3-on-3 basketball tour, which involved
approximately 30,000 participants and 180,000 spectators in 35 U.S. cities in
2000. On June 30, 2000, Summit was merged into Host.
The Company oversees the management and production for other sports
ventures, including the "Let-It-Fly" 4-on-4 flag football tour and the "Toyota
Golf Skills Challenge."
The Company also produces and manages a variety of programs and
made-for-television events such as the "Quarterback Challenge," "Battle of the
Gridiron" and "Lineman Challenge." Additionally, the Company creates and
executes events for corporate clients, including the "SBC Cotton Bowl Fanfest,"
the "Mobil Speedpass" credit card program, the
5
"NCAA Football Campus Tour" and the "Sony TechPit" mobile marketing unit, which
travels to NASCAR's Winston Cup races.
The Company capitalizes on developing and implementing customized event
marketing platforms for corporations looking to reach certain affinity groups.
In 1994, Host created the HBCC, that provides seamless marketing and sponsorship
opportunities between historically black colleges and universities and prominent
corporations. For example, the Company helped create and is managing the "Tampax
Total You Tour" for the Procter & Gamble brand. In 2000, the tour traveled to 10
HBCC campuses and ten off-campus city locations to effectively reach the brand's
core target audience, African-American females, ages 18 - 24. This tour was
awarded a Silver Anvil by the Public Relations Society of America for having the
best multicultural public relations program in 1999.
AFFINITY MANAGEMENT SERVICES SEGMENT
The Affinity Management Services segment, doing business as Affinity
Management International, provides a full range of management services to a
number of associations, including the National Tour Association (which has been
a client since 1974), Quest (the J.D. Edwards software user group association),
the National Thoroughbred Racing Association, the National Athletic Trainers'
Association, the International SPA Association and the U.S. Team Roping
Championships, Professional Rodeo Cowboys Association and the American Bicycle
Association. The Company's services include association management, financial
reporting, accounting, marketing, publishing, government lobbying, education,
event management, Internet web site management and membership growth activities.
CONSULTING SEGMENT
The Company provides consulting services to Gray from time to time in
connection with Gray's acquisitions, dispositions and acquisition financing. As
a result of the Company's 13.0% equity investment in Gray, approximately 13.0%
of consulting fees charged to Gray is deferred and recognized as consulting fee
income over 40 years. Consulting services include, but are not limited to,
transaction search, analysis, due diligence, negotiation and closing. Fees are
generally based on a rate of 1% of transaction value.
INVESTMENT IN AFFILIATED COMPANIES
The Company currently owns approximately 13.0% of the total outstanding
common stock (representing approximately 26.1% of the voting power) of Gray. The
Company also owns warrants to purchase additional shares of Gray common stock.
Parties affiliated with the Company, including officers and directors of the
Company and companies of which they are principal stockholders and/or executive
officers, currently own approximately an additional 13.0% of Gray common stock
(representing approximately an additional 18.7% of the voting power in Gray).
Gray is a communications company headquartered in Atlanta, Georgia,
which currently operates:
(a) three NBC-affiliated television stations -- WEAU-TV in Eau
Claire-La Crosse, Wisconsin; WJHG-TV in Panama City, Florida; and WITN-TV, in
the Greenville-Washington-New Bern, North Carolina market;
(b) ten CBS-affiliated television stations -- WCTV-TV in
Tallahassee, Florida; WVLT-TV in Knoxville, Tennessee; WKYT-TV in Lexington,
Kentucky; WYMT-TV in Hazard, Kentucky; WRDW-TV in Augusta, Georgia; KOLN-TV in
Lincoln, Nebraska; KGIN-TV in Grand Island,
6
Nebraska; KWTX-TV in Waco, Texas; KBTX-TV, a satellite station of KWTX-TV
located in Bryan, Texas; and KXII-TV in the Sherman, Texas / Ada, Oklahoma
market.
(c) four daily newspapers, The Albany Herald in Albany,
Georgia; The Rockdale Citizen and The Newton Citizen in Conyers, Georgia; the
Gwinnett Daily Post in Lawrenceville, Georgia; and The Goshen News in Goshen,
Indiana;
(d) Lynqx Communications, a satellite transmission and
production services business based in the southeastern United States; and
(e) GrayLink, a communications and paging business in the
Southeast.
J. Mack Robinson, the Company's Chairman of the Board, Hilton H.
Howell, Jr., the Company's Vice President, Secretary and a director, and Robert
S. Prather, Jr., the Company's President and Chief Executive Officer and a
director, are members of Gray's board of directors. Mr. Robinson is President
and the Chief Executive Officer of Gray, and Mr. Prather and Mr. Howell are
executive vice presidents of Gray.
In January 1999, the Company acquired 33.5% of the outstanding common
stock of Tarzian, which owns and operates two television stations and four radio
stations: WRCB-TV in Chattanooga, Tennessee, an NBC affiliate; KTVN-TV in Reno,
Nevada, a CBS affiliate; WGCL-AM and WTTS-FM in Bloomington, Indiana; and
WAJI-FM and WLDE-FM in Fort Wayne, Indiana. In March 1999, the Company executed
an option agreement with Gray, whereby Gray was granted an option to purchase
the Company's investment in Tarzian for an amount equal to the Company's
purchase price for the Tarzian investment, plus related costs. In connection
with the option agreement, Gray granted to the Company warrants to purchase
additional shares of Gray's class B common stock.
In November 1997, the Company entered into an Investment Purchase
Agreement with Rawlings. Pursuant to this agreement, the Company acquired
warrants to purchase 925,804 shares of Rawlings common stock, and has the right,
under certain circumstances, to purchase additional warrants. The warrants have
a four-year term and an exercise price of $12.00 per share, but are exercisable
only if Rawlings common stock closes at or above $16.50 for 20 consecutive
trading days during the four-year term. In addition, under the terms of the
agreement, from November 1997 through January 1998, the Company purchased shares
of Rawlings common stock in the open market, and such shares currently represent
10.1% of Rawlings outstanding common stock. The Company and Rawlings are parties
to a standstill agreement, which terminates in July 2003, and which restricts
the Company from acquiring additional shares of Rawlings common stock or
participating in corporate events relating to Rawlings, including proxy contests
and tender offers, subject to specified exceptions. Rawlings, headquartered near
St. Louis, Missouri, is a supplier of team sports equipment in North America,
and operates manufacturing facilities throughout the United States, Canada and
Latin America, as well as distribution centers in the United States and Canada.
In August 1998 and January 1999, the Company acquired series C and
series C1 preferred stock of Total Sports, Inc. ("Total Sports"). Host also
owned Total Sports common stock at the time of the Host-USA Acquisition. In
November 2000, Total Sports was sold to Quokka. In exchange for its investment
in preferred and common stock of Total Sports, the Company received Quokka
common stock and warrants to purchase Quokka common stock. Quokka's common stock
was publicly traded on the Nasdaq Stock Market, until April 2001, when Quokka
announced its intention to seek protection under the Federal Bankruptcy Code and
soon thereafter, ceased all operations. Quokka operated a sports-oriented web
site and provided web site services for amateur and professional sports
organizations and conferences, college athletic departments, and selected
corporations.
7
At the time of the Host-USA Acquisition, Host owned shares of iHigh
common stock and as of June 30, 2001, the Company, through Host, owned
approximately 35.1% of the outstanding common stock of iHigh.
As of June 30, 2001, the Company's investment in Gray represented
approximately 19% of the Company's total assets; the investment in Tarzian
represented approximately 5% of the Company's total assets; the investment in
Rawlings represented approximately 4% of the Company's total assets; and the
investment in iHigh represented approximately 1% of the Company's total assets.
SALES AND MARKETING
The Company provides sponsorship opportunities to a variety of
corporate clients ranging from consumer products companies to financial services
companies and currently has sponsorship contracts with some of the largest
companies in the United States and abroad. Corporate sponsorship contracts have
historically been three years in length, however the Company has signed several
sponsors to five-year contracts and intends to continue to seek longer-term
sponsorship agreements.
The Company employs a full-time national sales and marketing staff and
has dedicated a senior group of sales and marketing executives to identify
potential client relationship opportunities and promote the Company's expertise
and range of services. The Company solicits prospective clients through its
managers responsible for business development and through personal contacts by
members of the Company's senior management. When a new account is established,
the Company immediately assigns a sales executive to the client to ensure that
the client's needs are met and to seek out further opportunities to expand the
relationship. Generally, account managers are assigned several different
clients, which may be comprised of a number of businesses or divisions,
departments or groups within the same business. In addition, the personnel that
staff the Company's offices on university campuses and at athletic conference
locations are responsible for soliciting local sponsors and advertisers.
COMPETITION
As a provider of marketing services, the Company competes with
suppliers of traditional advertising in broadcast and print media as well as
with other marketing service producers and internal marketing programs. The
competition for brand marketing expenditures is very competitive and highly
fragmented. The Company believes that certain of its competitors have
capabilities and resources comparable to and in several respects greater than
those of the Company. The Company's success will depend on its ability to create
unique value-added marketing opportunities that attract corporate sponsorship.
SEASONALITY
The Company's Collegiate Marketing and Production Services business is
seasonal, in that the majority of the revenue and operating profit is derived
during the fiscal quarters ending December 31 and March 31, since much of the
revenue derived in this segment is related to events and promotions held during
the collegiate football and basketball seasons.
The Company's Affinity Events business is seasonal, in that the
majority of the revenue and operating profit is derived during the fiscal
quarters ending June 30 and September 30, since much of the revenue derived in
this segment is currently generated during the Hoop-It-Up 3-on-3 basketball
tour, which begins in March and runs through October each year.
8
EMPLOYEES
The Company has approximately 500 employees, of whom, approximately 250
are employed by Host at its Lexington, Kentucky facilities and approximately 90
are employed at Host's Dallas, Texas facility. The Company is not a party to any
collective bargaining agreements and believes its relations with its employees
are satisfactory.
EXECUTIVE OFFICERS
The information contained in Item 10 hereof is incorporated herein by
reference.
DISCONTINUED SEGMENT - DATASOUTH
The Company formerly marketed and sold heavy-duty dot matrix and
thermal printers under the "Datasouth" name. The Company decided to discontinue
its Datasouth business segment as a result of the strategic decision to focus on
the sports and affinity marketing and management businesses following the
Host-USA Acquisition. The Company consummated a sale of Datasouth's business on
September 29, 2000. For additional information with respect to this business
segment, see "Management's Discussion and Analysis - Results of Discontinued
Operations" and Note 5 to the Company's Consolidated Financial Statements.
ITEM 2. PROPERTIES
The Company's executive offices are located in Atlanta, Georgia in
approximately 2,000 square feet of office space leased from Delta Life Insurance
Company, an affiliate of J. Mack Robinson, the Company's Chairman of the Board.
The lease expires in December 2002, subject to several renewal options on the
part of the Company.
The Company owns six acres of land and a building with approximately
25,000 square feet of production, office and storage space in Lexington,
Kentucky for Host's Printing and Publishing Divisions. Host also has
approximately 50,500 square feet of office space under three leases in Lexington
expiring beginning in June 2002; and approximately 41,500 square feet of office
space under lease in Dallas, Texas through December 2005. Host also has small
regional and local field offices primarily located close to the universities and
conferences with which it has contracts.
ITEM 3. LEGAL PROCEEDINGS
On February 12, 1999, Tarzian filed a complaint in the United States
District Court for the Southern District of Indiana against the Company and U.S.
Trust Company of Florida Savings Bank as Personal Representative of the Estate
of Mary Tarzian (the "Estate"). On May 3, 1999, the action was dismissed without
prejudice against the Company, leaving the Estate as the sole defendant. The
suit involves the Company's acquisition of 301,119 shares of Tarzian common
stock, $4.00 par value, from the Estate for $10 million on January 28, 1999.
Tarzian claims that it had a binding and enforceable contract to purchase the
Tarzian shares from the Estate prior to the Company's purchase of such shares,
and requests judgment providing that the contract be enforced. The Company
contends that a binding contract between Tarzian and the Estate did not exist
prior to the Company's purchase of the Tarzian shares from the Estate. The
Company does not believe that a judgment in favor of Tarzian in this litigation
would materially adversely affect the Company, because, among other reasons, the
Company's purchase agreement with the Estate provides that if a court of
competent jurisdiction awards title to the shares to a person or entity other
than the Company, the
9
purchase agreement will be rescinded and the Estate will be required to pay the
Company the full $10 million purchase price, plus interest.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company did not submit any matter to a vote of security holders
during the quarter ended June 30, 2001.
10
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS
MARKET INFORMATION
The Company's common stock, par value $.01 per share (the "Common
Stock"), trades on The Nasdaq Stock Market under the symbol "BULL." The
following table sets forth for each period indicated the high and low sale
prices for the Common Stock as reported by The Nasdaq Stock Market. Such prices
reflect interdealer prices without adjustments for retail markups, markdowns or
commissions.
HIGH LOW
---- ---
SIX MONTHS ENDED JUNE 30, 1999
First Quarter $ 5.50 $ 3.25
Second Quarter 4.63 3.50
FISCAL YEAR ENDED JUNE 30, 2000
First Quarter $ 4.19 $ 3.53
Second Quarter 7.88 3.38
Third Quarter 6.00 3.75
Fourth Quarter 4.38 1.88
FISCAL YEAR ENDED JUNE 30, 2001
First Quarter $ 3.13 $ 2.00
Second Quarter 2.50 1.25
Third Quarter 2.34 1.13
Fourth Quarter 1.70 1.00
HOLDERS
As of September 14, 2001, there were 2,400 holders of record of Common
Stock.
DIVIDENDS
Since its inception, the Company has not declared or paid a cash dividend
on its Common Stock. It is the present policy of the Company's Board of
Directors to retain all earnings to finance the development and growth of the
Company's business. The Company's future dividend policy will depend upon its
earnings, capital requirements, financial condition and other relevant
circumstances existing at that time. The Company's bank credit agreement also
contains restrictions on the Company's ability to declare and pay dividends on
the Common Stock.
11
ITEM 6. SELECTED FINANCIAL DATA
Set forth below are certain selected historical consolidated financial
data of the Company. This information should be read in conjunction with the
audited consolidated financial statements of the Company and related notes
thereto appearing elsewhere herein, as well as "Management's Discussion and
Analysis." The selected consolidated financial data as of and for the fiscal
years ended June 30, 2001 and 2000, as of and for the six months ended June 30,
1999, as of December 31, 1998, 1997 and 1996 and for each of the three years in
the period ended December 31, 1998 are derived from the audited consolidated
financial statements of the Company. The selected consolidated financial data as
of and for the six months ended June 30, 1998 are derived from unaudited
condensed consolidated financial statements of the Company.
SELECTED FINANCIAL DATA
(Dollar and share amounts in thousands, except per share amounts)
OPERATING RESULTS: YEAR ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED DECEMBER 31,
---------------------- ---------------------- -----------------------------------
2001 2000 1999 1998 1998 1997 1996
--------- --------- --------- --------- --------- --------- ---------
(UNAUDITED)
Total revenue $ 120,337 $ 72,000 $ 609 $ 652 $ 1,618 $ 681 $ 844
Direct operating costs (81,421) (49,437)
Selling, general and administrative (38,527) (21,891) (693) (691) (1,312) (1,039) (1,022)
Amortization of acquisition intangibles (4,267) (2,602)
--------- --------- --------- --------- --------- --------- ---------
Income (loss) from operations (3,878) (1,930) (84) (39) 306 (358) (178)
Equity in earnings (losses) of
affiliated companies (4,235) (2,533) (910) (61) 6,337 (428) 1,742
Correction of purchase price allocation (11,330)
Other income (expense) derived from
investments in affiliates, net (6,796) (2,360) 1,680 2,213
Interest expense and other, net (8,903) (7,909) (1,858) (1,547) (3,162) (1,614) (1,250)
--------- --------- --------- --------- --------- --------- ---------
Income (loss) from continuing
operations before income taxes,
extraordinary item and cumulative
effect of accounting change (23,812) (26,062) (2,852) (1,647) 5,161 (2,400) 2,527
Income tax benefit (provision) 6,228 5,077 911 509 (2,094) 966 (1,057)
--------- --------- --------- --------- --------- --------- ---------
Income (loss) from continuing
operations before extraordinary
item and cumulative effect of
accounting change (17,584) (20,985) (1,941) (1,138) 3,067 (1,434) 1,470
Extraordinary loss (295)
Cumulative effect of accounting
change (1,120) (274)
--------- --------- --------- --------- --------- --------- ---------
Income (loss) from continuing
operations (18,704) (20,985) (1,941) (1,138) 3,067 (1,434) 901
Income (loss) from discontinued
operations, net of tax (6,839) (266) (92) 81 (234) 744
--------- --------- --------- --------- --------- --------- ---------
Net income (loss) $ (18,704) $ (27,824) $ (2,207) $ (1,230) $ 3,148 $ (1,668) $ 1,645
========= ========= ========= ========= ========= ========= =========
See Notes to the Selected Financial Data on the following page.
12
SELECTED FINANCIAL DATA, CONTINUED
EARNINGS (LOSS) PER YEAR ENDED SIX MONTHS ENDED
SHARE: JUNE 30, JUNE 30, YEAR ENDED DECEMBER 31,
------------------------ ------------------------ -------------------------------------
2001 2000 1999 1998 1998 1997 1996
---------- ---------- ---------- ---------- ---------- ---------- ----------
(UNAUDITED)
Earnings (loss) per share - Basic:
Income (loss) from continuing
operations before extraordinary
item and cumulative effect of
accounting change $ (0.50) $ (0.72) $ (0.09) $ (0.05) $ 0.14 $ (0.07) $ 0.07
Income (loss) from continuing
operations $ (0.53) $ (0.72) $ (0.09) $ (0.05) $ 0.14 $ (0.07) $ 0.04
Income (loss) from discontinued
operations, net of tax $ 0.00 $ (0.24) $ (0.01) $ (0.01) $ 0.00 $ (0.01) $ 0.03
Net income (loss) $ (0.53) $ (0.96) $ (0.10) $ (0.06) $ 0.14 $ (0.08) $ 0.07
Weighted average shares
outstanding - Basic 35,307 29,044 22,330 22,098 22,189 21,302 22,013
Earnings (loss) per share - Diluted:
Income (loss) from continuing
operations before extraordinary
item and cumulative effect of
accounting change $ (0.50) $ (0.72) $ (0.09) $ (0.05) $ 0.14 $ (0.07) $ 0.06
Income (loss) from continuing
operations $ (0.53) $ (0.72) $ (0.09) $ (0.05) $ 0.14 $ (0.07) $ 0.04
Income (loss) from discontinued
operations, net of tax $ 0.00 $ (0.24) $ (0.01) $ (0.01) $ 0.00 $ (0.01) $ 0.03
Net income (loss) $ (0.53) $ (0.96) $ (0.10) $ (0.06) $ 0.14 $ (0.08) $ 0.07
Weighted average shares
outstanding - Diluted 35,307 29,044 22,330 22,098 23,182 21,302 22,945
FINANCIAL POSITION:
AS OF JUNE 30, AS OF DECEMBER 31,
-------------------------------------- -------------------------------------
2001 2000 1999 1998 1997 1996
--------- --------- --------- --------- --------- ---------
Working capital $ (16,951) $ 5,449 $ (61,595) $ 4,074 $ 2,913 $ 4,262
Investment in affiliated companies 50,399 64,782 73,994 63,361 50,284 40,894
Total assets 206,538 222,306 99,903 90,694 70,618 60,256
Long-term obligations 107,693 122,794 -- 51,848 41,998 31,364
Stockholders' equity 37,604 51,864 25,279 27,022 21,499 24,656
Current ratio 0.7 1.1 0.1 2.4 1.7 3.4
Book value per share $ 1.05 $ 1.48 $ 1.13 $ 1.21 $ 1.01 $ 1.13
NOTES TO THE SELECTED FINANCIAL DATA
The changes from year to year are primarily a result of the following items:
2001 - Includes full year of operating results for subsidiaries acquired in
December 1999; $9.0 million pretax charge recognized to reduce book value
of certain equity investments; certain derivatives reported in the balance
sheet at fair value of $8.2 million as of June 30, 2001, with net change in
fair value of $3.0 million recognized as income in 2001 and the fair value
as of July 1, 2000 of $(1.1) million (net of tax) as the cumulative effect
of an accounting change; bank credit agreement modified in July 2001 to
extend the maturity date to July 1, 2002 and require a $10 million in
principal payment by October 15, 2001 and an additional $10 million
principal payment by December 1, 2001.
2000 - Acquisition of Host, USA and Capital effective December 17, 1999 financed
with common stock, options to acquire common stock and long-term debt. (See
Note 4 to the consolidated financial statements.)
1999 - Investment in Tarzian, financed with short-term debt; all amounts
outstanding under long-term debt agreements were classified as current
liabilities until December 17, 1999, when the obligations were refinanced.
1998 - Equity in the earnings attributable to Gray's gain on disposal of a
television station; additional investments in Rawlings; and investment in
Total Sports.
1997 - Initial investments in Rawlings.
1996 - Increase in the investment in Gray of $2.2 million resulting from Gray's
public offering of its class B common stock.
No dividends were declared or paid during the periods presented.
Amounts presented for all periods prior to the year ended June 30, 2001 have
been restated where applicable to reflect the correction of errors discussed in
Note 2 to the consolidated financial statements.
13
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS
OVERVIEW
Bull Run Corporation ("Bull Run" or the "Company"), based in Atlanta, Georgia,
is a sports and affinity marketing and management company through its primary
operating business, Host Communications, Inc. ("Host"), acquired in December
1999. Host's "Collegiate Marketing and Production Services" business segment
provides sports marketing and production services to a number of collegiate
conferences and universities, and the National Collegiate Athletic Association
("NCAA"). Host's "Affinity Events" business segment produces and manages
individual events and several events series, including "Hoop-It-Up(R)" (the
National Basketball Association's official 3-on-3 basketball tour), the "Got
Milk? 3v3 Soccer Shootout" (Major League Soccer's official 3-on-3 soccer tour)
and NCAA Football's "Let-It-Fly" 4-on-4 flag football tour. Host's "Affinity
Management Services" business segment provides associations such as the National
Tour Association, Quest (the J.D. Edwards users group association) and the
National Thoroughbred Racing Association, with services ranging from member
communication, recruitment and retention, to conference planning, Internet web
site management, marketing and administration.
The Company also has significant investments in other sports, media and
marketing companies, including Gray Communications Systems, Inc. ("Gray"), the
owner and operator of 13 television stations, four newspapers and other media
and communications businesses; Sarkes Tarzian, Inc. ("Tarzian"), the owner and
operator of two television stations and four radio stations; Rawlings Sporting
Goods Company, Inc. ("Rawlings"), a supplier of team sports equipment; and
iHigh, Inc. ("iHigh"), an Internet and marketing company focused on high school
students. The Company provides consulting services to Gray in connection with
Gray's acquisitions and dispositions.
As of June 30, 2001, the Company owned approximately 13.0% of the outstanding
common stock of Gray (representing 26.1% of the voting rights), in addition to
non-voting preferred stock and warrants to purchase additional Gray common
stock; 33.5% of the total outstanding common stock of Tarzian both in terms of
the number of shares of common stock outstanding and in terms of voting rights
(representing 73% of the equity of Tarzian for purposes of dividends, as well as
distributions in the event of any liquidation, dissolution or other termination
of Tarzian); 10.1% of the outstanding common stock of Rawlings, in addition to
warrants to purchase additional shares of Rawlings common stock; and 35.1% of
the outstanding common stock of iHigh. The Gray preferred stock owned by the
Company as of June 30, 2001 was sold on September 28, 2001.
RESTATEMENT OF FINANCIAL STATEMENTS
In September 2001, the Company became aware that certain gains reported by the
Company in the year ended December 31, 1996 and the fiscal year ended June 30,
2000 in connection with the issuance of common stock by Gray were not calculated
as prescribed by the Securities and Exchange Commission's Staff Accounting
Bulletin No. 51. The calculations failed to consider the fact that the carrying
value of the investment in Gray exceeded the Company's allocable share of Gray's
underlying equity. In October 2001, the Company also became aware that certain
transactions involving the redemption of the Company's investment in Gray
preferred stock in the year ended December 31, 1998 and the fiscal year ended
June 30, 2001 resulted in previously unreported gains, and the cumulative effect
of an accounting change as of July 1, 2001 was inaccurately reported. These
errors resulted from the Company's failure to allocate any cost to the
detachable warrants to acquire Gray common stock acquired in 1996 with the Gray
preferred stock, allocating instead, all of the acquisition cost to the Gray
preferred stock. In addition, a similar adjustment was made by
14
Gray which decreased (increased) Gray's income (loss) available to common
stockholders in Gray's fiscal years ended December 31, 1998 and 2000. These
adjustments by Gray changed the Company's equity in Gray's results for the
Company's fiscal years ended December 31, 1998 and June 30, 2001. As a result,
the accompanying consolidated financial statements as of and for the fiscal year
ended June 30, 2000 and all information presented herein for all fiscal periods
prior to the year ended June 30, 2000 have been restated for the correction of
these errors.
HOST-USA ACQUISITION
On December 17, 1999, the Company acquired the stock of Host, Universal Sports
America, Inc. ("USA") and Capital Sports Properties, Inc. ("Capital") not
previously owned, directly or indirectly, by the Company (the "Host-USA
Acquisition"). Aggregate consideration (net of cash acquired) was approximately
$116.9 million, which included Common Stock (totaling 11,687,000 shares) and
stock options (for a total of 2,819,000 shares of Common Stock) valued at
approximately $52.3 million, 8% subordinated notes having a face value of
approximately $18.6 million, cash (net of approximately $9.7 million in cash
acquired) of $44.8 million and transaction expenses of approximately $1.2
million. The Company allocated $24.5 million of the Host-USA Acquisition
purchase price to identifiable intangible assets and recorded goodwill in the
amount of $62.7 million. As of June 30, 2001, goodwill and acquired intangibles,
net of accumulated amortization, were approximately 40% of the Company's total
assets.
Prior to the Host-USA Acquisition, the Company accounted for its investment in
Host and Capital under the equity method, and for its investment in USA under
the cost method. Beginning December 17, 1999, the financial results of Host, USA
and Capital have been consolidated with those of the Company.
DISPOSAL OF COMPUTER PRINTER OPERATIONS
In July 2000, the Company's Board of Directors authorized the sale of Datasouth
Computer Corporation ("Datasouth"), the Company's wholly owned computer printer
manufacturing business segment. The Company's decision to discontinue its
Datasouth segment was attributable to the strategic decision to focus on the
sports and affinity marketing and management businesses following the Host-USA
Acquisition. The Company consummated a sale of Datasouth's operating assets in
September 2000. Accordingly, the operating results and net assets associated
with Datasouth's computer printer manufacturing business as of and for the year
ended June 30, 2001 and all prior periods presented herein have been reflected
as discontinued operations in the accompanying consolidated financial
statements.
An estimated loss on the sale of Datasouth of $6,522,000, including a $350,000
pretax provision for estimated operating losses during the disposal period, was
combined with Datasouth's operating results and presented as discontinued
operations in the consolidated financial statements for the year ended June 30,
2000. The proceeds realized on the sale of Datasouth's assets were based on
management's estimates of the most likely outcome, considering, among other
things, the terms of the Company's sale of certain operating assets to a
computer printer company. These terms included deferred payments under a note
issued by the purchaser. Actual amounts ultimately realized on the sale could
differ materially from the amounts assumed in arriving at the loss on disposal.
To the extent actual proceeds differ from the estimates that are reflected as of
June 30, 2000, or as management's estimates are revised, the variance will be
reported in discontinued operations in future periods.
15
RESULTS OF CONTINUING OPERATIONS
FISCAL YEAR ENDED JUNE 30, 2001 COMPARED TO FISCAL YEAR ENDED JUNE 30, 2000
Total revenues for the year ended June 30, 2001 were $120,337,000 compared to
$72,000,000 for the prior year. Prior year total revenues included revenues of
companies acquired in the Host-USA Acquisition only for the period from December
17, 1999 (date of acquisition) through June 30, 2000. Total revenues derived
from the Collegiate Marketing and Production Services business segment was
$85,019,000 in fiscal 2001 and $54,443,000 in fiscal 2000. Total revenues
derived from the Affinity Events segment was $24,177,000 in fiscal 2001 and
$11,312,000 in fiscal 2000, total revenues derived from the Affinity Management
Services segment was $11,117,000 in fiscal 2001 and $4,934,000 in fiscal 2000.
The Collegiate Marketing and Production Services segment, the Affinity Events
segment and the Affinity Management Services segment represent the businesses
acquired in the Host-USA Acquisition, and therefore fiscal 2000 operating
results only include the results for the period December 17, 1999 through June
30, 2000. Consulting fee income on services provided to Gray was $24,000 for the
fiscal year ended June 30, 2001 compared to $1,311,000 for the prior fiscal
year. There were no significant transactions consummated by Gray during the
fiscal year ended June 30, 2001. As a result of the Company's 13.0% equity
investment in Gray, approximately 13.0% of consulting fees charged to Gray is
deferred and recognized as consulting fee income over 40 years. There can be no
assurance that the Company will recognize any consulting fees in the future,
other than recognition of currently deferred fees.
Operating costs and expenses were $124,215,000 for the fiscal year ended June
30, 2001 compared to $73,930,000 for the prior fiscal year. Prior year operating
costs and expenses included those of the companies acquired in the Host-USA
Acquisition only for the period from December 17, 1999 through June 30, 2000.
Operating costs and expenses attributable to companies acquired in the Host-USA
Acquisition were $117,769,000 for the fiscal year ended June 30, 2001 and
$68,320,000 in the prior fiscal year. Amortization of acquisition intangibles,
primarily attributable to the Host-USA Acquisition, were $4,267,000 in fiscal
2001 compared to $2,602,000 in fiscal 2000. Operating costs and expenses for the
prior fiscal year ended June 30, 2000 included nonrecurring expenses of
$1,460,000 in connection with a potential transaction involving one of the
Company's investments.
Operating income (loss) for the fiscal year ended June 30, 2001 derived from the
Collegiate Marketing and Production Services, Affinity Events and Affinity
Management Services business segments was $4,795,000, $(3,837,000) and
$1,681,000, respectively. Operating income (loss) for the period December 17,
1999 (date of acquisition) to June 30, 2000 derived from the Collegiate
Marketing and Production Services, Affinity Events and Affinity Management
Services business segments was $4,354,000, $(2,551,000) and $568,000,
respectively. A significant portion of the Collegiate Marketing and Production
Services operating income is historically generated in the fiscal quarter ended
March 31, due to the timing of events in connection from which revenues of this
segment are generated. Likewise, the Affinity Events business segment
historically generates most of its revenue during the fiscal quarters ended June
30 and September 30, the periods in which the majority of the events are held.
Operating results for the Collegiate Marketing and Production Services segment
and the Affinity Events segment were both unfavorably impacted in the fiscal
year ended June 30, 2001 by the economic downturn and the resulting decline in
corporate advertising and sponsorships.
Equity in earnings (losses) of affiliated companies, totaling $(4,235,000) for
the fiscal year ended June 30, 2001 and $(2,533,000) for the fiscal year ended
June 30, 2000 included (a) the Company's proportionate share of the earnings or
losses of (i) Gray; (ii) Rawlings; (iii)
16
subsequent to December 17, 1999, iHigh and certain other equity investments; and
(iv) prior to December 17, 1999, Host and Capital, net of (b) amortization
charges totaling $684,000 in 2001 and $699,000 in 2000.
In January 1999, USA sold its investment in broadcast.com, inc., recognizing a
gain of approximately $40 million. As a result of Host's equity investment in
USA and the Company's equity investment in Host reported on a six-month lag
basis, the Company recognized approximately $1.9 million in equity in earnings
of affiliates in the fiscal year ended June 30, 2000 due to USA's gain on the
sale.
Rawlings recognized an after-tax charge of approximately $12.8 million
associated with its decision to sell its Vic hockey business in its fiscal
quarter ended May 31, 2000. As a result, the Company's pretax equity in earnings
(losses) of Rawlings was negatively impacted in the fiscal year ended June 30,
2000 by approximately $1.3 million.
In November 2000, Total Sports, Inc. ("Total Sports") was sold to Quokka Sports
Inc. ("Quokka"). In exchange for its investment in preferred and common stock of
Total Sports, the Company received Quokka common stock and warrants to purchase
Quokka common stock. On the effective date of the exchange, the Company reduced
the book value of its investment in Total Sports to the current fair market
value of the Quokka common stock received in the exchange, recognizing a pretax
loss of approximately $6.2 million as of the effective date of the exchange. In
March 2001, the Company further reduced the book value of its investment in
Quokka to zero, recording an additional non-cash charge of approximately $1.8
million.
Effective July 1, 2000, the Company adopted Financial Accounting Standards
Board's Statement No. 133, "Accounting for Derivative Instruments and Hedging
Activities" ("FAS 133"). FAS 133 requires the Company to recognize all
derivatives, consisting of warrants to purchase common stock of affiliated
companies and interest rate swap agreements, on the balance sheet at fair value.
As a result of adopting FAS 133, the Company recognized the cumulative effect of
the accounting change of $(1,120,000), representing the value of the derivatives
as of July 1, 2000 of $(1,807,000), less a deferred tax provision of $687,000.
Changes in the value of these derivatives are recognized as earnings or losses.
As a result of adopting FAS 133, the aggregate fair market value of derivatives
as of June 30, 2001 of $8,218,000 is included in the balance sheet as a
component of "Other assets." The valuation of warrants is predominantly based on
an independent appraisal, and the values of interest rate swaps are based on
estimated market values.
The net appreciation in the value of derivatives, consisting of warrants to
purchase common stock of affiliated companies and interest rate swap agreements,
was $2,988,000 for the fiscal year ended June 30, 2001, based primarily on an
increase in the value of the Company's warrants to purchase Gray common stock,
net of reductions in the values of the Company's interest rate swap agreement.
In the fiscal year ended June 30, 2000, the Company recognized an expense of
$2,850,000 associated with the impairment in the value of the Company's
investment in a warrant for Rawlings common stock. The determination to reduce
the carrying value of the Company's investment in the Rawlings warrant was made
based on management's assessment that the likelihood that the warrant would vest
prior to its expiration date, in accordance with the present terms of the
warrant, was remote. As a result of this assessment, management believes its
ability to recover any of the carrying value of the investment in the warrant is
remote.
17
In December 2000, Gray redeemed a portion of the Company's investment in Gray
series A preferred stock for $5,000,000, resulting in a gain to the Company of
$2,160,000.
As a result of Gray's issuance of shares of its class B common stock in October
1999 in connection with consideration paid in the acquisition of three
television stations, the Company's common equity ownership of Gray was reduced
from 16.9% to 13.1%, resulting in a pretax gain for the Company of $490,000 in
the fiscal year ended June 30, 2000. This share issuance also reduced the
Company's common equity voting power in Gray from 27.5% to 26.2%. There can be
no assurance that such sales or such gains of a material nature will occur in
the future.
As a result of accounting errors discovered by the Company in the financial
statements of USA subsequent to the Host-USA Acquisition, the Company recorded a
charge of $11,330,000 in December 1999, reflecting the extent to which USA's net
tangible current assets as of the date of the Host-USA Acquisition were
overstated. The errors resulted from inaccurate computations of prepaid costs
and expenses, sponsor contract receivables and deferred revenue associated with
the Company's (and prior to the Host-USA Acquisition, USA's) Affinity Events
business.
Interest and dividend income of $810,000 and $958,000 for the fiscal years ended
June 30, 2001 and 2000, respectively, was primarily derived from dividends paid
on the Company's investment in Gray's series A and series B preferred stock.
Dividend income decreased from the prior fiscal year due to the redemption by
Gray of a portion of its series B preferred stock in December 2000. Interest
expense was $11,545,000 and $8,746,000 for the fiscal years ended June 30, 2001
and 2000, respectively, increasing over the prior fiscal year due to increased
borrowing in order to effect the Host-USA Acquisition in December 1999. During
the fiscal years ended June 30, 2001 and 2000, the Company issued approximately
874,000 shares and 305,000 shares, respectively, of common stock to a director
of the Company who personally guaranteed up to $100 million of the Company's
debt under its bank credit agreement. The value of the shares issued,
approximately $1,449,000 in fiscal 2001 and $1,219,000 in fiscal 2000, is
amortized over one year, and approximately $1,262,000 and $610,000 is included
in debt issue cost amortization for the fiscal years ended June 30, 2001 and
2000, respectively.
Other income for the fiscal years ended June 30, 2001 and 2000 consisted
primarily of income from an option agreement with Gray whereby Gray has the
right to acquire the Company's investment in Tarzian.
As of June 30, 2001, the Company had a net operating loss carryforward for tax
purposes of approximately $30.3 million to reduce Federal taxable income in the
future, an alternative minimum tax credit carryforward of $357,000 and a
business credit carryforward of $142,000, to reduce regular Federal tax
liabilities in the future. The principal differences between the federal
statutory tax rate of 34% and the effective tax rate are nondeductible goodwill
amortization and state income taxes, and in the fiscal year ended June 30, 2000
only, correction of purchase price. As of June 30, 2001, the Company had a net
deferred tax asset of $9,312,000, primarily due to net operating loss
carryforwards for federal tax purposes that expire beginning in 2018. The
Company believes it will generate adequate taxable income from operations or the
sale or other disposition of appreciated nonoperating assets in an amount
sufficient to realize the deferred tax asset.
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO SIX MONTHS ENDED JUNE 30, 1998
Total revenue for the six months ended June 30, 1999, representing consulting
fees earned from services rendered to Gray in connection with Gray's
acquisitions and dispositions, was
18
$609,000 compared to $652,000 for the same period in 1998. Operating expenses of
$693,000 for the six months ended June 30, 1999 were comparable to operating
expenses of $691,000 for the six months ended June 30, 1998.
Equity in losses of affiliated companies, totaling $(910,000) and $(61,000) for
the six months ended June 30, 1999 and 1998, respectively, included the
Company's proportionate share of the aggregate earnings or losses of Gray, Host,
Capital and Rawlings, and amortization charges totaling $462,000 and $304,000,
respectively.
Interest and dividend income of $453,000 and $562,000 for the six months ended
June 30, 1999 and 1998, respectively, was primarily derived from dividends paid
on the Company's investment in Gray's series A and series B preferred stock.
Interest expense, totaling $2,529,000 and $2,101,000 for the six months ended
June 30, 1999 and 1998, respectively, was incurred primarily in connection with
bank term loans and notes payable, the proceeds of which were used to finance
(a) the Company's investments in Gray, Host, Capital, USA and Rawlings, and (b)
the acquisition of a computer printer business in January 1998 (the "CodeWriter
Acquisition"); and, for the six months ended June 30, 1999 only, (x) the
Company's investments in Total Sports in August 1998 and January 1999, and (y)
the Company's investment in Tarzian in January 1999.
The Company's effective tax rate was 31.9% and 30.9% for the six months ended
June 30, 1999 and 1998, respectively.
YEAR ENDED DECEMBER 31, 1998
Total revenue for 1998, representing consulting fees earned from services
rendered to Gray in connection with Gray's acquisitions and dispositions, was
$1,618,000. Operating expenses of $1,312,000 in 1998 represented a 26.3%
increase from 1997, due primarily to an increase in professional fees of
approximately $80,000, an increase in insurance costs of approximately $75,000
and an increase in travel expenses of approximately $66,000.
Equity in earnings (losses) of affiliated companies, totaling $6,337,000 in
1998, included the Company's proportionate share of the earnings of Gray, Host,
Capital and Rawlings, net of amortization charges totaling $608,000. In 1998,
Gray disposed of WALB-TV, its NBC affiliate in Albany, Georgia, fulfilling a
Federal Communications Commission divestiture order. As a result of the gain on
the disposition of WALB-TV, the Company's equity in Gray's earnings was
favorably impacted by approximately $6.9 million.
In 1998, Gray redeemed a portion of the Company's investment in Gray series A
preferred stock for $3,805,000, resulting in a gain to the Company of
$1,680,000.
Interest and dividend income of $1,085,000 in 1998 was primarily derived from
dividends paid on the Company's investment in Gray's series A and series B
preferred stock. Interest expense, totaling $4,247,000 in 1998, was incurred
primarily in connection with bank term loans, the proceeds of which were used to
finance (a) the Company's investments in Gray, Host, Capital and USA during
1998; (b) the Company's investment in Rawlings; (c) the CodeWriter Acquisition
in January 1998; and (d) the Company's investment in Total Sports in August
1998.
The Company's effective tax rate was 40.6% for the year ended December 31, 1998.
19
RESULTS OF DISCONTINUED OPERATIONS
FISCAL YEAR ENDED JUNE 30, 2001
Revenue from Datasouth's computer printer operations was $4,406,000 for the
period July 1, 2000 to September 29, 2000, the date on which the operating
business was sold to another computer printer company. Gross profit from printer
operations was 23.2% for the period. Operating expenses associated with
discontinued operations for the period July 1, 2000 to September 29, 2000 of
$1,221,000 represent 27.7% or revenue. Estimated operating losses during the
disposal period were accrued as of June 30, 2000 and included as a component of
the estimated loss on the disposal of the discontinued segment. Under the terms
of the sale, Datasouth continued to employ personnel and operate Datasouth's
manufacturing and administration facility on behalf of the purchaser during a
transition period subject to a transition services agreement. The purchaser
reimbursed Datasouth for substantially all personnel and operating costs
incurred during the transition period. The transition period terminated on June
30, 2001, at which time all remaining employees of Datasouth became employees of
the purchaser.
FISCAL YEAR ENDED JUNE 30, 2000 COMPARED TO SIX MONTHS ENDED JUNE 30, 1999
Revenue from Datasouth's computer printer operations of $24,959,000 for the
fiscal year ended June 30, 2000, compared to $13,626,000 for the six months
ended June 30, 1999, reflect a decline in sales to The Sabre Group, Inc.,
Datasouth's largest customer, to $4.2 million in fiscal 2000, compared to $2.8
million for the six months ended June 30, 1999. Short-term revenue trends in the
Company's computer printer business fluctuated due to variable ordering patterns
of large customers. Gross profit from printer operations was 24.8% for the
fiscal year ended June 30, 2000 compared to 26.6% for the six months ended June
30, 1999, due to an increase in overhead costs per manufactured unit sold during
the fiscal year resulting from a decline in manufactured unit volume, primarily
caused by the decline in sales to Sabre.
Operating expenses associated with discontinued operations of $6,507,000 for the
fiscal year ended June 30, 2000 represent 26.1% of revenue compared to 19.1% for
the six months ended June 30, 1999. Operating expenses included non-cash
goodwill amortization expense of $555,000 and $266,000 for the fiscal year ended
June 30, 2000 and for the six months ended June 30, 1999, respectively.
The Company allocated an income tax benefit to the discontinued segment of
$10,000 and $72,000 for the fiscal year ended June 30, 2000 and the six months
ended June 30, 1999, respectively, representing an effective tax rate of 3.0%
and 21.3%, respectively. The change was due entirely to the impact of
nondeductible goodwill amortization in each period, as was the differences
between the effective tax rate and the statutory federal tax rate of 34%.
SIX MONTHS ENDED JUNE 30, 1999 COMPARED TO SIX MONTHS ENDED JUNE 30, 1998
Revenue from Datasouth's computer printer operations was $13,636,000 for the six
months ended June 30, 1999, compared to $14,158,000 for the same period in 1998,
due to a decrease in printer sales to Sabre. Printer sales to this customer were
$2.8 million for the six months ended June 30, 1999, compared to $4.3 million
for the six months ended June 30, 1998. Gross profit from printer operations of
26.6% for the six months ended June 30, 1999 increased from the 24.9% realized
for the same period in 1998, primarily due to a different mix of products sold
and initial production costs associated with the introduction of a new printer
line in 1998, which collectively increased gross profit 2.1% of revenue.
20
Operating expenses associated with discontinued operations of $3,964,000 for the
six months ended June 30, 1999 represented a 10.8% increase from the same period
in 1998, due primarily to (a) a $181,000 increase in research and development
costs attributable to software development activities for an airline
ticket/boarding pass printer (the marketing rights for which were acquired in
September 1998) and (b) expenses of $244,000 associated with the Company's
European sales office established in October 1998. Operating expenses included
non-cash goodwill amortization expense of $266,000 and $241,000 for the six
months ended June 30, 1999 and 1998, respectively.
The Company allocated an income tax benefit to the discontinued segment of
$72,000 for the six months ended June 30, 1999 and a $36,000 income tax
provision for the six months ended June 30, 1998, representing an effective tax
rate of 21.3% and (65.2)%, respectively. The change from 1998 to 1999, as well
as the difference between the effective tax rate and the federal statutory tax
rate of 34%, was due primarily to the impact of nondeductible goodwill
amortization in each period.
YEAR ENDED DECEMBER 31, 1998
Revenue from Datasouth's computer printer operations was $29,848,000 in 1998,
including printer sales to Sabre of approximately $9.2 million. Gross profit
from printer operations of 25.9% for 1998 was unfavorably impacted by (a) the
costs incurred by the Company immediately following the CodeWriter Acquisition
prior to the integration of manufacturing operations into the Company's existing
product manufacturing facility, which decreased gross profit by 0.1% of revenue;
and (b) an increase in freight costs and increases in inventory reserves, offset
by some manufacturing overhead efficiencies gained as a result of higher unit
volumes, which collectively reduced gross profit by 2.3% of revenue.
Operating expenses associated with discontinued operations of $7,282,000 in 1998
included (a) expenses of $245,000 associated with an increase in sales and
marketing personnel attributable to the Company's expanded printer line; (b)
expenses of $75,000 associated with the Company's European sales office opened
in October 1998; (c) a $175,000 increase in advertising expenses relating to the
introduction of new products in 1998; (d) an increase in personnel and
administrative costs of $560,000 resulting from the CodeWriter Acquisition; and
(e) goodwill amortization expense and certain nonrecurring post-acquisition
transition costs of $225,000 in 1998 associated with the CodeWriter Acquisition.
Operating expenses included non-cash goodwill amortization expense of $488,000
in 1998 associated with the acquisition of Datasouth and the CodeWriter
Acquisition.
The Company allocated an income tax provision to the discontinued segment of
$255,000 for the year ended December 31, 1998, representing an effective tax
rate of 75.9%. The difference between the effective tax rate and the federal
statutory tax rate of 34% was due primarily to the impact of nondeductible
goodwill amortization.
LIQUIDITY AND CAPITAL RESOURCES
Cash used in operating activities of continuing operations was $1,758,000 for
the fiscal year ended June 30, 2001. In the fiscal year ended June 30, 2001,
accounts receivable increased $1,409,000 primarily due to changes in the timing
of billings for contracts in place as of June 30, 2001 compared to June 30,
2000; prepaid costs and expenses decreased $572,000 due to decreases in event
management costs of the 2001 event tours compared to those during the 2000 event
tours; and accounts payable and accrued expenses increased $4,271,000 due
primarily to the deferred payment of certain operating expenses at June 30, 2001
compared to June 30, 2000. Interest payments increased to $11,907,000 for the
fiscal year ended June 30, 2001 from $8,329,000 for the prior fiscal year due to
an increase in long
21
term debt resulting from the Host-USA Acquisition. During the fiscal year ended
June 30, 2001, the Company received income tax refunds, net of payments, of
$2,015,000, compared to income tax payments, net of refunds, of $397,000 in the
prior fiscal year.
Cash used in operating activities of continuing operations was $117,000 for the
fiscal year ended June 30, 2000. In the fiscal year ended June 30, 2000,
accounts receivable and prepaid costs and expenses decreased $15,527,000 due to
decreases (subsequent to the date of the Host-USA Acquisition) in prepaid costs
under various contracts and accounts receivable, and accounts payable and
accrued expenses decreased $11,585,000 due primarily to decreases (subsequent to
the date of the Host-USA Acquisition) in the accruals for guaranteed rights
payments and incurred unbilled costs under various contracts.
Cash used in operating activities of continuing operations was $1,120,000 for
the six months ended June 30, 1999, compared to $1,388,000 for the same period
in 1998, and cash used in operating activities of continuing operations was
$2,091,000 for the year ended December 31, 1998. In the six months ended June
30, 1999, receivables, net of payables and accruals, decreased $898,000,
compared to an increase of $90,000 in the six months ended June 30, 1999. In the
year ended December 31, 1998, interest of $4,404,000 was paid and consulting
fees of approximately $1.6 million were received.
Cash provided by operating activities of discontinued operations was $2,126,000
for the fiscal year ended June 30, 2001, reflecting a decrease in inventories
prior to the sale of Datasouth in September 2000, and a decrease in accounts
receivable, net of accounts payable and accrued expenses, during the period
subsequent to the sale. Accounts receivable, accounts payable and certain
accrued expenses were retained by the Company to be liquidated and were not
included in the sale of the Datasouth assets. Cash provided by operating
activities of discontinued operations was $676,000 for the fiscal year ended
June 30, 2000, reflecting a decrease in accounts receivable and inventories, net
of accounts payable and accrued expenses, of $376,000. Cash provided by
operating activities of discontinued operations was $1,958,000 for the six
months ended June 30, 1999, whereas cash used in operating activities of
discontinued operations for the six months ended June 30, 1998 was $488,000, and
was $533,000 for the year ended December 31, 1998. In the six months ended June
30, 1999, accounts receivable and inventories, net of payables and accruals,
decreased $1,587,000, compared to an increase of $813,000 in the six months
ended June 30, 1998. In the year ended December 31, 1998, accounts receivable
and inventories, net of accounts payable and accrued expenses, increased
$1,739,000.
In 1984, Host and the National Collegiate Athletic Association ("NCAA")
initiated the NCAA Corporate Partner Program. Under this program, Host partners
with an exclusive group of corporations to link their target markets to and
implement promotions around the NCAA and its championship events through a
variety of advertising and promotional opportunities. Host's current contract
with the NCAA expires in 2002. In July 2001, Host executed an agreement with CBS
Sports for the exclusive right to continue administering the NCAA Corporate
Partner Program, along with other NCAA marketing programs, beginning in
September 2002 and terminating in 2013. Guaranteed rights fee expense under the
current NCAA contract was $16,167,000 for the fiscal year ended June 30, 2001,
and will be $19,417,000 and $3,333,000 for the fiscal years ending June 30, 2002
and 2003, respectively. The guaranteed rights fee payable to CBS Sports for the
initial contract year beginning September 1, 2002 will be $40 million, with
gradual annual increases throughout the 11-year period of the contract, for an
aggregate guaranteed rights fee of $575 million. The increase in rights fees, as
compared to the Company's earlier NCAA agreement, primarily results from the
increased marketing, licensing and media rights provided under the new contract
with CBS Sports compared to the Company's earlier NCAA agreement.
22
The Company also commits under certain other contracts, which expire at varying
times through 2005, to the payment of guaranteed rights fees. Future guaranteed
rights fee commitments as of June 30, 2001 totaled approximately $38.3 million
for the fiscal year ending June 30, 2002 and approximately $70 million over the
term of such contracts.
Cash provided by investing activities of continuing operations was $2,695,000
for the fiscal year ended June 30, 2001, due primarily to Gray's redemption of
$5,000,000 of its series B preferred stock owned by the Company, net of
approximately $1.2 million paid by the Company to acquire certain operating
assets. Cash used in investing activities of continuing operations for the
fiscal year ended June 30, 2000 was $46,072,000, of which, $45,315,000 was
associated with the Host-USA Acquisition.
Cash used in investing activities of continuing operations was $12,226,000 for
the six months ended June 30, 1999, of which $10,000,000 was associated with the
Company's investment in Tarzian, $1,000,000 was a result of an additional
investment in Total Sports preferred stock and approximately $600,000
represented deferred acquisition costs of the Host-USA Acquisition. Cash used in
investing activities of continuing operations was $5,043,000 for the six months
ended June 30, 1998, of which $4,961,000 was associated with Company investments
in Rawlings common stock.
Cash used in investing activities of continuing operations was $4,886,000 for
the year ended December 31, 1998, as a result of Company's investments in
Rawlings totaling $4,961,000, the Company's initial investment in Total Sports
capital stock of $2,500,000 and investments in Host totaling $1,263,000. Also
during 1998, the Company received proceeds of $3,805,000 from Gray on the
redemption of shares of its series B preferred stock.
Cash provided by investing activities of discontinued operations was $2,347,000
for the fiscal year ended June 30, 2001 as a result of cash provided by the sale
of certain operating assets of Datasouth of approximately $2.4 million. Cash
used in investing activities of discontinued operations was $642,000 for the
fiscal year ended June 30, 2000; $323,000 and $2,231,000 for the six months
ended June 30, 1999 and 1998, respectively; and $3,268,000 for the year ended
December 31, 1998. Cash used for the CodeWriter Acquisition was $558,000 in the
fiscal year ended June 30, 2000, $100,000 in the six months ended June 30, 1999
and approximately $2.0 million in the six months ended June 30, 1998, and
approximately $2.3 million for the year ended December 31, 1998. Cash used for
other acquisitions attributable to discontinued operations was $660,000 in the
year ended December 31, 1998. Capital expenditures of discontinued operations
for the fiscal years ended June 30, 2001 and 2000 were $4,000 and $84,000,
respectively; $223,000 in each of the six months ended June 30, 1999 and 1998;
and $353,000 for the year ended December 31, 1998.
Cash used in financing activities of continuing operations was $3,392,000 for
the fiscal year ended June 30, 2001 resulted from net repayments on long term
debt of approximately $5.7 million and the payment of debt issue costs of
$718,000, less the aggregate proceeds of $3.0 million from the issuance by the
Company of preferred stock to the Company's chairman of the board and companies
affiliated with the Company's chairman. Cash provided by financing activities of
continuing operations was $46,451,000 for the fiscal year ended June 30, 2000 as
a result of borrowings utilized for the Host-USA Acquisition. Cash provided by
financing activities of $11,976,000 for the six months ended June 30, 1999 was
primarily as a result of financing the $10,000,000 investment in Tarzian in
January 1999.
Cash provided by financing activities of continuing operations was $7,096,000
for the six months ended June 30, 1998 and $7,534,000 for the year ended
December 31, 1998 primarily as a result of financing Company investments in
Rawlings and Total Sports.
23
Cash provided by financing activities of discontinued operations of $2,500,000
for the six months ended June 30, 1998 and $3,160,000 for the year ended
December 31, 1998 was a result of financing the CodeWriter Acquisition in
January 1998 and an acquisition of product rights in September 1998.
In connection with the Host-USA Acquisition, the Company entered into a credit
agreement with a group of banks on December 17, 1999. As of June 30, 2001, the
Company was not in compliance with certain financial covenants and other
provisions considered to be events of default under the terms of its bank credit
agreement; however, the Company obtained a waiver of these events of default,
and effective July 27, 2001 and as modified October 5, 2001, the Company and its
lenders amended certain provisions of the credit agreement. As amended and
restated, the Company's credit agreement provides for (a) two term loans for
borrowings totaling $93,956,000, bearing interest at either the banks' prime
rate plus 1.5% or the London Interbank Offered Rate ("LIBOR") plus 4.0%,
requiring a minimum aggregate principal payment of $10,000,000 by October 15,
2001 and an additional $10,000,000 by December 1, 2001, with all amounts
outstanding under the term loans due on July 1, 2002; and (b) a revolving loan
commitment (the "Revolver") for maximum borrowings of $25,000,000 until December
1, 2001, $20,000,000 from December 1, 2001 until March 1, 2002 and $15,000,000
from March 1, 2002 until maturity on July 1, 2002, bearing interest at either
the banks' prime rate plus 1.0% or LIBOR plus 3.5%. Borrowings under the
Revolver are limited to an amount not to exceed 100% of eligible accounts
receivable and such borrowings may include up to $15,100,000 in outstanding
letters of credit. As of July 27, 2001, borrowings of $14,375,000 and letters of
credit totaling $25,000 were outstanding under the Revolver, and additional
available borrowing capacity under the Revolver was $600,000 at that date.
In connection with the Company's bank credit facilities, the Company's chairman
of the board entered into a guarantee agreement in favor of the banks, for which
he received compensation from the Company during the fiscal years ended June 30,
2001 and 2000 in the form of 874,000 and 305,000 restricted shares of the
Company's common stock valued at $1,449,000 and $1,219,000, respectively. In
connection with the waiver and amendment on July 27, 2001, the chairman's
personal guarantee of the Company's debt under its bank credit agreement was
increased to $93,956,000, which was the amount outstanding under the two term
loans as of that date. The guaranteed amount reduces dollar for dollar, subject
to certain limitations, as the aggregate outstanding amount of the term loans is
reduced. The guarantee agreement provides that if the Company defaults on its
bank loan, the chairman will repay the amount of such loan to the banks up to
the amount of his personal guarantee. The Company's investments in Gray and
Tarzian serve as collateral for the guarantee, if and when the chairman is
required to repay the amount of such loan.
Also in connection with the Host-USA Acquisition the Company issued subordinated
notes on December 17, 1999, the Company issued subordinated notes bearing
interest at 8% and having an aggregate face value of $18,594,000. Interest is
payable quarterly until maturity on January 17, 2003. Payment of interest and
principal is subordinate to the bank credit agreement. The new bank credit
agreement and the subordinated notes provided the necessary financing for the
Host-USA Acquisition, and refinanced all existing bank indebtedness of the
Company, Host and USA.
The Company is a party to two interest rate swap agreements, which effectively
modify the interest characteristics of $45,000,000 of its outstanding long-term
debt. The first agreement, terminating on December 31, 2002, involves the
exchange of interest at a fixed rate of 6.08% for interest at a variable rate,
determined quarterly, equal to the 90-day LIBOR
24
rate, without an exchange of the $20,000,000 notional amount upon which the
payments are based. The second agreement, terminating on December 31, 2002 (or
December 31, 2004, at the bank's option), involves the exchange of interest at a
fixed rate of 6.71% for interest at a variable rate, determined quarterly, equal
to the 90-day LIBOR rate, without an exchange of the $25,000,000 notional amount
upon which the payments are based. The differential paid or received as interest
rates change is settled quarterly and is accrued and recognized as an adjustment
of interest expense related to the debt. The estimated amount to be received on
terminating the swap agreements as of June 30, 2001, if the Company elected to
do so, was approximately $1,897,000.
Dividends on the series B preferred stock of Gray owned by the Company are
payable in cash at an annual rate of $600 per share or, at Gray's option,
payable in additional shares of series B preferred stock. During 1998, Gray
redeemed 435.94 shares of its series B preferred stock owned by the Company,
including 110.94 shares previously issued in-kind as dividends on the series B
preferred stock, for a total of $3,805,000. On September 28, 2001, all shares of
series A and series B preferred stock of Gray owned by the Company were sold to
certain companies of which the Company's chairman of the board is an executive
officer and/or principal stockholder.
The Company anticipates that its current working capital, funds available under
its current credit facilities, quarterly cash dividends on the Gray equity
securities owned by the Company, and cash flow from operations will be
sufficient to fund its working capital requirements, capital spending
requirements and debt service requirements, for at least the next 12 months. The
Company's bank credit agreement requires a $10,000,000 principal payment by
October 15, 2001 and an additional $10,223,000 principal payment by December 1,
2001. The Company has met the October 15, 2001 commitment as a result of
principal payments totaling $10,323,000 having been made through October 12,
2001, of which, $6,803,000 was funded by the sale of the shares of Gray series A
and series B preferred stock owned by the Company. The remainder of the
principal payments due by December 1, 2001 are expected primarily to be paid
from the proceeds from (a) the sale of certain investments held by the Company
and/or (b) the issuance and sale of equity securities of the Company, which may
include the Company's preferred stock. Although there can be no assurance that
the Company will be able to effect the foregoing transactions or as to the terms
thereof, the Company has had discussions with Gray and potential investors
regarding these potential transactions. If the Company is unable to effect these
transactions, it will be required to renegotiate or otherwise replace its
current credit facility. Borrowings that remain outstanding under the existing
credit facility will become due on July 1, 2002 and will require refinancing by
the Company. The Company's capital expenditures are expected to total
approximately $600,000 for the fiscal year ending June 30, 2002.
INTEREST RATE AND MARKET RATE RISK
The Company is exposed to changes in interest rates due to the Company's
financing of its acquisitions, investments and operations. Interest rate risk is
present with both fixed and floating rate debt. The Company uses interest rate
swap agreements (as described in "Liquidity and Capital Resources" above) to
manage its debt profile.
Interest rate swap agreements generally involve exchanges of underlying face
(notional) amounts of designated hedges. The Company continually evaluates the
credit quality of counterparties to interest rate swap agreements and does not
believe there is a significant risk of nonperformance by any of the
counterparties to the agreements.
25
Based on the Company's debt profile as of each fiscal year end (or,
alternatively, the six month period ended June 30, 1999 and 1998), a 1% increase
in market interest rates would increase interest expense and decrease the income
before income taxes (or alternatively, increase interest expense and increase
the loss before income taxes) by $668,000 and $538,000 for the fiscal years
ended June 30, 2001 and 2000, respectively; $216,000 and $254,000 for the six
months ended June 30, 1999 and 1998, respectively; and $517,000 for the year
ended December 31, 1998. These amounts were determined by calculating the effect
of the hypothetical interest rate on the Company's floating rate debt, after
giving effect to the Company's interest rate swap agreements. These amounts do
not include the effects of certain potential results of increased interest
rates, such as a reduced level of overall economic activity or other actions
management may take to mitigate the risk. Furthermore, this sensitivity analysis
does not assume changes in the Company's financial structure that could occur if
interest rates were higher.
The Company holds investments in certain common stocks, preferred stocks and
options to purchase common stock. The Company is exposed to changes in market
values of these investments, some of which are publicly traded common stocks. In
each case where there exists a quoted market price for a publicly-traded
security in which the Company holds investments, the investment is accounted for
under the equity method, whereby changes in the quoted market price of the
security do not impact the carrying value of the investment. However,
fluctuations in market prices of investments could ultimately affect the amounts
the Company might realize upon a disposal of some or all of its investments.
Based on management's estimates of the aggregate fair value of the Company's
investments in affiliated companies (as described in Note 14 to the consolidated
financial statements), a 10% change in the aggregate market value of such
investments would increase or decrease such aggregate market value by
approximately $7.7 million as of June 30, 2001 and $6.3 million as of June 30,
2000.
RECENTLY-ISSUED ACCOUNTING STANDARD
In June 2001, the Financial Accounting Standards Board issued Statement No. 142,
"Goodwill and Other Intangible Assets." Although the Company is not required to
adopt the new Statement until July 1, 2002, it currently intends to adopt the
new Statement effective July 1, 2001. The Statement will require the Company to
account for goodwill and other intangible assets differently, and in general,
will not require the Company to amortize goodwill beginning July 1, 2001, but
will require the Company to periodically assess the carrying value of goodwill
and other intangibles for every business unit to determine if an impairment in
value has occurred. The initial impairment test must be completed by December
31, 2001. If the test concludes that the carrying amount of goodwill and other
intangible assets as of July 1, 2001 for any business unit acquired in the
Host-USA Acquisition exceeds its net realizable value, the adoption of this
Statement would result in a decrease in the Company's stockholders' equity and
total assets effective July 1, 2001. If the test concludes that goodwill and
other intangible assets have not been impaired, the Statement will have no
cumulative effect on the Company's financial statements. Prospectively,
excluding the effects of any potential impairment charge taken either the
Company or Gray, the adoption of this Statement is expected to result in a
reduction in amortization expense, and therefore an increase in operating
profit, of approximately $3,500,000, increase equity in earnings of affiliates
of approximately $1,500,000 and increase net income (or decrease net loss) by
approximately $4,400,000 in the fiscal year ended June 30, 2002, compared to
amounts that would otherwise be expected to be recorded.
26
FORWARD-LOOKING STATEMENTS
This Annual Report on Form 10-K contains "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. When used in
this report, the words "believes," "expects," "anticipates," "estimates" and
similar words and expressions are generally intended to identify forward-looking
statements. Statements that describe the Company's future strategic plans, goals
or objectives are also forward-looking statements. Readers of this Report are
cautioned that any forward-looking statements, including those regarding the
intent, belief or current expectations of the Company or management, are not
guarantees of future performance, results or events, and involve risks and
uncertainties. The forward-looking statements included in this report are made
only as of the date hereof. The Company undertakes no obligation to update such
forward-looking statements to reflect subsequent events or circumstances. Actual
results and events may differ materially from those in the forward-looking
statements as a result of various factors including, but not limited to the
following: (i) the Company's and Gray's leverage may adversely affect their
ability to obtain financing, thereby impairing their ability to withstand
economic downturns or competitive pressures; (ii) Gray's business depends on its
relationships with, and success of, its national network affiliates; (iii) the
Company's and Rawlings' businesses are seasonal; (iv) adverse events affecting
baseball, such as negative publicity or strikes, may adversely affect Rawlings'
business; (v) the Company's and Rawlings' businesses depend on short term
contracts and the inability to renew or extend these contracts could adversely
affect their businesses; (vi) the Company may lose money on some of its
contracts, because it guarantees certain payments thereunder; (vii) war or acts
of terrorism or a continued domestic economic downturn or recession could
materially adversely impact corporate discretionary spending, such as
sponsorship and advertising sold by the Company.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
See "Interest Rate and Market Rate Risk" in Item 7 "Management's Discussion and
Analysis."
27
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Consolidated Financial Statements of Bull Run Corporation:
PAGE
----
Reports of Independent Accountants 29
Consolidated Balance Sheets at June 30, 2001 and 2000 31
Consolidated Statements of Operations for the years ended June 30,
2001 and 2000, the six months ended June 30, 1999 and June 30,
1998 (unaudited), and the year ended December 31, 1998 32
Consolidated Statements of Stockholders' Equity for the years ended
June 30, 2001 and 2000, the six months ended June 30, 1999 and
the year ended December 31, 1998 33
Consolidated Statements of Cash Flows for the years ended June 30,
2001 and 2000, the six months ended June 30, 1999 and June 30,
1998 (unaudited), and the year ended December 31, 1998 34
Notes to Consolidated Financial Statements 35
Selected Quarterly Financial Data (Unaudited) 58
Report of Independent Auditors on the Consolidated Financial Statements of Gray
Communications Systems, Inc. as of December 31, 2000 and for
the year then ended F-1
Report of Independent Public Accountants on the Consolidated Financial
Statements of Rawlings Sporting Goods Company, Inc. as of August 31,
2001 and 2000, and for each of the three years in the period ended
August 31, 2000 F-2
28
REPORT OF INDEPENDENT ACCOUNTANTS
BOARD OF DIRECTORS AND STOCKHOLDERS OF BULL RUN CORPORATION:
We have audited the accompanying consolidated balance sheet of Bull Run
Corporation as of June 30, 2001, and the related consolidated statements of
operations, stockholders' equity and cash flows for the year then ended. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit. We did not audit the financial statements of Gray Communications
Systems, Inc. (a corporation in which the Company has a 13% interest), as of
December 31, 2000 and for the year then ended, and the financial statements of
Rawlings Sporting Goods Company, Inc. (a corporation in which the Company has a
10% interest), as of August 31, 2000 and for the year then ended. Those
statements were audited by other auditors whose reports thereon have been
furnished to us, and our opinion expressed herein, insofar as it relates to the
amounts for the periods ended December 31, 2000 and August 31, 2000 included for
Gray Communications Systems, Inc. and Rawlings Sporting Goods Company, Inc.,
respectively, is based solely on their reports.
We conducted our audit in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit and the reports of
other auditors provide a reasonable basis for our opinion.
In our opinion, based on our audit and the reports of other auditors, the
consolidated financial statements referred to above present fairly, in all
material respects, the consolidated financial position of Bull Run Corporation
at June 30, 2001, and the consolidated results of its operations and its cash
flows for the year then ended, in conformity with accounting principles
generally accepted in the United States of America.
/s/ PRICEWATERHOUSECOOPERS LLP
Atlanta, Georgia
October 12, 2001
29
REPORT OF INDEPENDENT AUDITORS
BOARD OF DIRECTORS AND STOCKHOLDERS OF BULL RUN CORPORATION:
We have audited the accompanying consolidated balance sheet of Bull Run
Corporation as of June 30, 2000, and the related consolidated statements of
operations, stockholders' equity and cash flows for the year ended June 30,
2000, the six months ended June 30, 1999 and the year ended December 31, 1998.
These financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements based
on our audits. The financial statements of Rawlings Sporting Goods Company,
Inc., (a corporation in which the Company has a 10% interest), as of August 31,
1999 and 1998 and for the years then ended, have been audited by other auditors
whose report has been furnished to us; insofar as our opinion relates to data
included for Rawlings Sporting Goods Company, Inc., it is based solely on their
report.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits and the report of other auditors
provide a reasonable basis for our opinion.
In our opinion, based on our audits and the report of other auditors, the
consolidated financial statements referred to above present fairly, in all
material respects, the consolidated financial position of Bull Run Corporation
at June 30, 2000, and the consolidated results of its operations and its cash
flows for the year ended June 30, 2000, the six months ended June 30, 1999 and
the year ended December 31, 1998, in conformity with accounting principles
generally accepted in the United States.
As more fully described in Note 2, the Company restated certain amounts
previously reported as of June 30, 2000, and for the year ended June 30, 2000,
the six months ended June 30, 1999 and the year ended December 31, 1998.
/s/ ERNST & YOUNG LLP
Charlotte, North Carolina
September 28, 2000, except for Note 4 as to which the date is
July 26, 2001 and Notes 2 and 10 as to which the date is
October 11, 2001
30
BULL RUN CORPORATION
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands)
JUNE 30,
----------------------------
2001 2000
--------- ---------
ASSETS
Current assets:
Cash and cash equivalents $ 2,637 $ 619
Accounts receivable, net of allowance of $545 and
$1,155 as of June 30, 2001 and 2000, respectively 29,547 30,384
Inventories 494 648
Prepaid costs and expenses 3,117 3,710
Income taxes receivable 4,626 3,148
Deferred income taxes 121 3,516
Net current assets of discontinued segment 6,286
--------- ---------
Total current assets 40,542 48,311
Property and equipment, net 6,623 6,868
Investment in affiliated companies 50,399 64,782
Goodwill 57,862 64,506
Customer base and trademarks 25,026 23,836
Deferred income taxes 9,191
Other assets 14,313 9,618
Net noncurrent assets of discontinued segment 2,582 4,385
--------- ---------
$ 206,538 $ 222,306
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes payable and current portion of long-term debt $ 20,590 $ 10,000
Accounts payable 6,060 2,690
Accrued and other liabilities 30,831 30,172
Net current liabilities of discontinued segment 11
--------- ---------
Total current liabilities 57,492 42,862
Long-term debt 107,693 122,794
Deferred income taxes 1,518
Other liabilities 3,749 3,268
--------- ---------
Total liabilities 168,934 170,442
--------- ---------
Commitments and contingencies
Stockholders' equity:
Series A preferred stock, $.01 par value (authorized 100 shares;
issued and outstanding 3 shares; $3,000 aggregate
liquidation value) 2,178
Common stock, $.01 par value (authorized 100,000 shares; issued 36,526 and
35,627 shares as of June 30, 2001 and
2000, respectively) 365 356
Additional paid-in capital 78,380 76,123
Treasury stock, at cost (542 shares) (1,393) (1,393)
Retained earnings (accumulated deficit) (41,926) (23,222)
--------- ---------
Total stockholders' equity 37,604 51,864
--------- ---------
$ 206,538 $ 222,306
========= =========
The accompanying notes are an integral part of these consolidated financial
statements.
31
BULL RUN CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(Amounts in thousands, except per share data)
YEAR ENDED SIX MONTHS ENDED YEAR ENDED
JUNE 30, JUNE 30, DECEMBER 31,
------------------------ ------------------------ ------------
2001 2000 1999 1998 1998
--------- --------- --------- --------- ---------
(UNAUDITED)
Revenue from services rendered $ 120,337 $ 72,000 $ 609 $ 652 $ 1,618
--------- --------- --------- --------- ---------
Operating costs and expenses:
Direct operating costs of services rendered 81,421 49,437
Selling, general and administrative 38,527 21,891 693 691 1,312
Amortization of acquisition intangibles 4,267 2,602
--------- --------- --------- --------- ---------
124,215 73,930 693 691 1,312
--------- --------- --------- --------- ---------
Operating income (loss) (3,878) (1,930) (84) (39) 306
Other income (expense):
Equity in earnings (losses) of affiliated companies (4,235) (2,533) (910) (61) 6,337
Gain on issuance of shares by affiliate 490
Gain on disposition of preferred stock investment 2,160 1,680
Reduction in valuation of investment in affiliate (8,956) (2,850)
Correction of purchase price allocation (11,330)
Net appreciation in value of derivative instruments 2,988
Interest and dividend income 810 958 453 562 1,085
Interest expense (11,545) (8,746) (2,529) (2,101) (4,247)
Debt issue cost amortization (2,410) (953)
Other income (expense) 1,254 832 218 (8)
--------- --------- --------- --------- ---------
Income (loss) from continuing operations before
income taxes and cumulative effect (23,812) (26,062) (2,852) (1,647) 5,161
Income tax benefit (provision) 6,228 5,077 911 509 (2,094)
--------- --------- --------- --------- ---------
Income (loss) from continuing operations before
cumulative effect (17,584) (20,985) (1,941) (1,138) 3,067
Cumulative effect of accounting change, net of
tax benefit of $687 (1,120)
--------- --------- --------- --------- ---------
Income (loss) from continuing operations (18,704) (20,985) (1,941) (1,138) 3,067
Income (loss) on operations of discontinued
segment, net of tax (317) (266) (92) 81
Estimated loss on disposal of discontinued segment,
net of tax (6,522)
--------- --------- --------- --------- ---------
Net income (loss) $ (18,704) $ (27,824) $ (2,207) $ (1,230) $ 3,148
========= ========= ========= ========= =========
Earnings (loss) per share, basic:
Income (loss) from continuing operations
before cumulative effect adjustment $ (0.50) $ (0.72) $ (0.09) $ (0.05) $ 0.14
Cumulative effect of accounting change (0.03)
Income (loss) from discontinued segment (0.24) (0.01) (0.01) 0.00
--------- --------- --------- --------- ---------
Net income (loss) $ (0.53) $ (0.96) $ (0.10) $ (0.06) $ 0.14
========= ========= ========= ========= =========
Earnings (loss) per share, diluted:
Income (loss) from continuing operations
before cumulative effect adjustment $ (0.50) $ (0.72) $ (0.09) $ (0.05) $ 0.14
Cumulative effect of accounting change (0.03)
Income (loss) from discontinued segment (0.24) (0.01) (0.01) 0.00
--------- --------- --------- --------- ---------
Net income (loss) $ (0.53) $ (0.96) $ (0.10) $ (0.06) $ 0.14
========= ========= ========= ========= =========
Weighted average number of common shares outstanding:
Basic 35,307 29,044 22,330 22,098 22,189
Diluted 35,307 29,044 22,330 22,098 23,182
The accompanying notes are an integral part of these consolidated financial
statements.
32
BULL RUN CORPORATION
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(Amounts in thousands)
RETAINED
COMMON STOCK ADDITIONAL EARNINGS TOTAL
PREFERRED ---------------------- PAID-IN TREASURY (ACCUMULATED STOCKHOLDERS'
STOCK SHARES AMOUNT CAPITAL STOCK DEFICIT) EQUITY
-------- -------- -------- -------- -------- -------- --------
BALANCES, JANUARY 1, 1998 22,583 $ 226 $ 20,800 $ (3,188) $ 3,661 $ 21,499
Issuance of treasury stock 555 1,945 2,500
Purchase of treasury stock (150) (150)
Exercise of stock options 202 2 23 25
Net income 3,148 3,148
-------- -------- -------- -------- -------- --------
BALANCES, DECEMBER 31, 1998 22,785 228 21,378 (1,393) 6,809 27,022
Exercise of stock options 198 2 462 464
Net loss (2,207) (2,207)
-------- -------- -------- -------- -------- --------
BALANCES, JUNE 30, 1999 22,983 230 21,840 (1,393) 4,602 25,279
Issuance of common stock 11,992 120 44,657 44,777
Issuance of nonqualified stock
options 8,700 8,700
Exercise of stock options 652 6 776 782
Tax benefit from exercise of
nonqualified stock options 150 150
Net loss (27,824) (27,824)
-------- -------- -------- -------- -------- --------
BALANCES, JUNE 30, 2000 35,627 356 76,123 (1,393) (23,222) 51,864
Issuance of preferred stock and
common stock warrants $ 2,178 822 3,000
Issuance of common stock 874 9 1,440 1,449
Exercise of stock options 25 0 17 17
Tax expense from exercise of
nonqualified stock options (22) (22)
Net loss (18,704) (18,704)
-------- -------- -------- -------- -------- -------- --------
BALANCES, JUNE 30, 2001 $ 2,178 36,526 $ 365 $ 78,380 $ (1,393) $(41,926) $ 37,604
======== ======== ======== ======== ======== ======== ========
The accompanying notes are an integral part of these consolidated financial
statements.
33
BULL RUN CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
YEARS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED
-------------------- -------------------- DECEMBER 31,
2001 2000 1999 1998 1998
-------- -------- -------- -------- --------
(UNAUDITED)
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $(18,704) $(27,824) $ (2,207) $ (1,230) $ 3,148
Loss (income) from discontinued segment 6,839 266 92 (81)
Adjustments to reconcile net income (loss) to net cash used in
continuing operations:
Cumulative effect of accounting change 1,120
Other expense (income) derived from investment in affiliates, net 6,796 2,423 (1,680)
Net appreciation in value of derivative instruments (2,988)
Correction of purchase price allocation 11,330
Provision for bad debts 576 267
Depreciation and amortization 8,438 4,669 17 17 35
Equity in (earnings) losses of affiliated companies 4,235 2,533 910 61 (6,337)
Deferred income taxes (5,594) (5,347) (981) (363) 2,471
Accrued preferred stock dividend income (78) (150) (175)
Change in operating assets and liabilities:
Accounts receivable (1,409) 12,497 860 (280) (64)
Inventories 185 270
Prepaid costs and expenses 572 3,030 (25) (33)
Accounts payable and accrued expenses 4,271 (11,585) 38 370 230
Deferred income and other long-term liabilities 822 781 2 128 362
-------- -------- -------- -------- --------
Net cash used in continuing operations (1,758) (117) (1,120) (1,388) (2,091)
Net cash provided by (used in) discontinued operations 2,126 676 1,958 (488) (533)
-------- -------- -------- -------- --------
Net cash provided by (used in) operating activities 368 559 838 (1,876) (2,624)
-------- -------- -------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (1,383) (1,146) (10)
Investment in affiliated companies (223) (11,623) (5,071) (8,812)
Proceeds on sale of investment 330 267
Acquisition of businesses, net of cash acquired (1,232) (45,315) (674)
Redemption of preferred stock investment 5,000 3,805
Other investing activities 203 122 81 28 121
-------- -------- -------- -------- --------
Net cash provided by (used in) continuing operation investing activities 2,695 (46,072) (12,226) (5,043) (4,886)
Net cash provided by (used in) discontinued operation investing activities 2,347 (642) (323) (2,231) (3,268)
-------- -------- -------- -------- --------
Net cash provided by (used in) investing activities 5,042 (46,714) (12,549) (7,274) (8,154)
-------- -------- -------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings from notes payable and revolving lines of credit 23,625 32,702 18,648 8,466 18,798
Repayments on notes payable and revolving lines of credit (18,450) (33,698) (7,988) (8,146) (19,418)
Proceeds from long-term debt 95,000 1,352 7,625 9,815
Repayments on long-term debt (10,866) (47,165) (500) (864) (1,536)
Debt issue costs (718) (1,170)
Exercise of stock options 17 782 464 17 25
Issuance of preferred stock and common stock warrants 3,000
Repurchase of common stock (2) (150)
-------- -------- -------- -------- --------
Net cash provided by (used in) continuing operation financing activities (3,392) 46,451 11,976 7,096 7,534
Net cash provided by discontinued operation financing activities 2,500 3,160
-------- -------- -------- -------- --------
Net cash provided by (used in) financing activities (3,392) 46,451 11,976 9,596 10,694
-------- -------- -------- -------- --------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 2,018 296 265 446 (84)
Cash and cash equivalents, beginning of year 619 323 58 142 142
-------- -------- -------- -------- --------
CASH AND CASH EQUIVALENTS, END OF YEAR $ 2,637 $ 619 $ 323 $ 588 $ 58
======== ======== ======== ======== ========
The accompanying notes are an integral part of these consolidated financial
statements.
34
BULL RUN CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except per share data)
1. DESCRIPTION OF BUSINESS
Bull Run Corporation ("Bull Run," and collectively with its subsidiaries, the
"Company") provides media and marketing services to universities, athletic
conferences and various associations and, in addition, market, and operate,
amateur participatory sporting events through its wholly owned subsidiary, Host
Communications, Inc. ("Host"). Effective December 17, 1999, Bull Run acquired
the capital stock of Host, Universal Sports America, Inc. ("USA") and Capital
Sports Properties, Inc. ("Capital") not then owned, directly or indirectly, by
Bull Run (the "Host-USA Acquisition"). Effective July 1, 2000, USA was merged
into Host.
In July 2000, the Company made a strategic decision to sell the computer printer
manufacturing business segment operated by its wholly owned subsidiary,
Datasouth Computer Corporation ("Datasouth"). Datasouth is reported as a
discontinued operation (see Note 5).
The Company also holds significant investments in sports and media companies,
including Gray Communications Systems, Inc. ("Gray"), an owner and operator of
13 television stations, four daily newspapers and other media and communications
businesses; Sarkes Tarzian, Inc. ("Tarzian"), owner and operator of two
television stations and four radio stations; Rawlings Sporting Goods Company,
Inc. ("Rawlings"), a leading supplier of team sports equipment in North America;
and iHigh, Inc. ("iHigh"), a company developing a network of Internet web sites
focused on high school sports and activities.
Effective June 30, 1999, Bull Run changed its fiscal year end from December 31
to June 30. All amounts appearing in the consolidated financial statements and
accompanying notes for the six months ended June 30, 1998 are unaudited.
Unless otherwise indicated, amounts provided in these notes to the consolidated
financial statements pertain to continuing operations.
2. RESTATEMENT OF FINANCIAL STATEMENTS
In September 2001, the Company became aware that certain gains reported by the
Company in the year ended December 31, 1996 and the fiscal year ended June 30,
2000, in connection with the issuance of common stock by Gray, were not
calculated as prescribed by the Securities and Exchange Commission's Staff
Accounting Bulletin No. 51. The calculations failed to consider the fact that
the carrying value of the investment in Gray exceeded the Company's allocable
share of Gray's underlying equity. In October 2001, the Company also became
aware that certain transactions involving the redemption of the Company's
investment in Gray preferred stock in the year ended December 31, 1998 and the
fiscal year ended June 30, 2001 resulted in previously unreported gains, and the
cumulative effect of an accounting change as of July 1, 2001 was inaccurately
reported. These errors resulted from the Company's failure to allocate any cost
to the detachable warrants to acquire Gray common stock acquired in 1996 with
the Gray preferred stock, allocating instead, all of the acquisition cost to the
Gray preferred stock. In addition, a similar adjustment was made by Gray which
decreased (increased) Gray's income (loss) available to common stockholders in
Gray's fiscal years ended December 31, 1998 and
35
2000. These adjustments by Gray changed the Company's equity in Gray's net
results for the Company's fiscal years ended December 31, 1998 and June 30,
2001. As a result, the accompanying consolidated financial statements as of and
for the fiscal year ended June 30, 2000 and all information presented herein for
all fiscal periods prior to the year ended June 30, 2000 have been restated for
the correction of these errors.
The errors did not affect the Company's previously reported revenues, operating
income (loss), current assets or current liabilities. A comparison of the
Company's consolidated results of operations and financial position prior to and
following the restatement is set forth below:
SIX MONTHS ENDED
YEAR ENDED JUNE 30, YEAR ENDED
JUNE 30, ------------------------- DECEMBER 31,
2000 1999 1998 1998
-------- --------- --------- ---------
(unaudited)
PREVIOUSLY REPORTED:
Equity in earnings (losses) of affiliates $ (2,698) $ (997) $ (146) $ 6,734
Gain on issuance of shares by affiliate 2,492
Gain on disposition of preferred stock investment 0
Income tax benefit (provision) 4,368 944 542 (1,599)
Income (loss) from continuing operations (19,857) (1,995) (1,190) 2,279
Net income (loss) (26,696) (2,261) (1,282) 2,360
Earnings (loss) per share - basic:
Income (loss) from continuing operations $ (0.68) $ (0.09) $ (0.05) $ 0.10
Net income (loss) $ (0.92) $ (0.10) $ (0.06) $ 0.11
Earnings (loss) per share - diluted:
Income (loss) from continuing operations $ (0.68) $ (0.09) $ (0.05) $ 0.10
Net income (loss) $ (0.92) $ (0.10) $ (0.06) $ 0.10
RESTATED:
Equity in earnings (losses) of affiliates $ (2,533) $ (910) $ (61) $ 6,337
Gain on issuance of shares by affiliate 490
Gain on disposition of preferred stock investment 1,680
Income tax benefit (provision) 5,077 911 509 (2,094)
Income (loss) from continuing operations (20,985) (1,941) (1,138) 3,067
Net income (loss) (27,824) (2,207) (1,230) 3,148
Earnings (loss) per share - basic:
Income (loss) from continuing operations $ (0.72) $ (0.09) $ (0.05) $ 0.14
Net income (loss) $ (0.96) $ (0.10) $ (0.06) $ 0.14
Earnings (loss) per share - diluted:
Income (loss) from continuing operations $ (0.72) $ (0.09) $ (0.05) $ 0.14
Net income (loss) $ (0.96) $ (0.10) $ (0.06) $ 0.14
PREVIOUSLY
REPORTED RESTATED
---------- ---------
AS OF JUNE 30, 2000:
Investment in affiliated companies $ 77,935 $ 64,782
Other assets 2,714 9,618
Deferred income tax asset (liability), net (408) 1,998
Total assets 228,555 222,306
Retained earnings (accumulated deficit) (19,379) (23,222)
Stockholders' equity 55,707 51,864
36
The amounts presented in the Company's consolidated statements of stockholders'
equity for retained earnings and total stockholders' equity as of January 1,
1998 were previously reported to be $7,218 and $25,056, respectively.
3. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF CONSOLIDATION - The accompanying consolidated financial statements
include the accounts of Bull Run and its wholly owned subsidiaries, after
elimination of intercompany accounts and transactions. Host, USA and Capital are
included as wholly owned subsidiaries beginning December 17, 1999.
USE OF ESTIMATES - The preparation of the consolidated financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those
estimates.
REVENUE RECOGNITION AND RIGHTS FEE EXPENSES - Revenue from services are
recognized as the services are rendered. Corporate sponsor license fee revenue
that is not related to specific events is recognized ratably over the term of
the sponsorship. In certain circumstances, the Company enters into contractual
arrangements with associations or institutions it represents in various
capacities which involve payment of guaranteed rights fees. Guaranteed rights
fee expense that is not related to specific events is recognized ratably over
the term specified in the contract. The Company's contractual arrangements with
associations or institutions may also involve net profit sharing arrangements
("profit splits") based on the net profit associated with services rendered
under the contract. Profit split expense is accrued over the contract period,
based on estimates, and is adjusted at the end of the contract term in order to
reflect the actual profit split.
BARTER TRANSACTIONS - The Company provides advertising and licensing rights to
certain customers or sub-licensees in exchange for services. The estimated fair
value of the services to be received is recognized as accounts receivable and
deferred revenue. As these services are used, an amount is charged to operating
expense. Advertising revenue is recognized as the advertising is used by the
customer and license fee revenue is recognized ratably over the term of the
sub-license agreement. Net revenues included approximately $2,400 and operating
expenses include approximately $2,500 for barter transactions for the year ended
June 30, 2001. Net revenues included approximately $1,800 and operating expenses
included approximately $1,100 for barter transactions for the year ended June
30, 2000. The Company had no barter transactions prior to the year ended June
30, 2000.
CASH AND CASH EQUIVALENTS - Cash equivalents are composed of all highly liquid
investments with an original maturity of three months or less.
ACCOUNTS RECEIVABLE AND CREDIT RISK - In certain situations, the Company may
invoice certain customers up to 90 days in advance. Accounts receivable
pertaining to advance billings are also included as deferred income until such
time as the revenue is earned. The Company performs ongoing credit evaluations
of its customers' financial condition and generally requires no collateral from
its customers.
The Company has a significant amount of revenue generated from sub-licensing
National Collegiate Athletic Association ("NCAA") corporate sponsorship rights
to major corporations. The Company's current contract with the NCAA, which gives
the Company the sole rights to sub-license NCAA corporate partners, expires
August 31, 2002. In July 2001, the Company entered in to a new agreement with
CBS Sports under which the same sub-licensing rights
37
(among other rights) will be sub-licensed from CBS Sports for the period
September 1, 2002 through 2013. Approximately 26% of the Company's revenues from
continuing operations for the year ended June 30, 2001 and approximately 36% of
the Company's revenues from continuing operations for the year ended June 30,
2000 arose from sub-licensing NCAA corporate sponsor rights. Accounts receivable
included approximately $10,537 and $9,286 as of June 30, 2001 and 2000,
respectively, due from NCAA corporate sponsors.
INVENTORIES - Inventories, stated at cost, consist primarily of materials and
supplies associated with the Company's printing operations.
PROPERTY AND EQUIPMENT - Property and equipment is stated at cost less
depreciation computed on the straight-line method over the estimated useful life
of the asset, generally from three to 10 years. Leasehold improvements and
equipment held under capital leases are amortized over the lesser of the lease
term or the estimated useful life of the asset. Depreciation expense for
continuing operations was $1,650 and $1,054 for the years ended June 30, 2001
and 2000, respectively; $2 for each of the six months ended June 30, 1999 and
1998; and $4 for the year ended December 31, 1998. Depreciation expense for
discontinued operations was $76 for the year ended June 30, 2001; $426 in the
year ended June 30, 2000; $219 and $332 in the six months ended June 30, 1999
and 1998, respectively; and $588 for the year ended December 31, 1998.
INVESTMENT IN AFFILIATED COMPANIES - The Company accounts for its investments in
Gray, Rawlings, iHigh and prior to December 17, 1999, Host and Capital, by the
equity method, and its investment in Quokka Sports, Inc. ("Quokka," which was
initially an investment in Total Sports, Inc., prior to the sale of Total Sports
to Quokka in September 2000), Tarzian and prior to the date of the Host-USA
Acquisition, USA, by the cost method. The unamortized difference between the
Company's carrying value of the investment and the Company's allocable share of
the affiliate's underlying equity of the Company's equity method investments,
totaling approximately $14,100 and $15,200 as of June 30, 2001 and 2000,
respectively, was amortized over 10 to 40 years until June 30, 2001, and such
amortization (totaling $684 and $699 in the years ended June 30, 2001 and 2000,
respectively, $462 and $304 in the six months ended June 30, 1999 and 1998,
respectively, and $608 in the year ended December 31, 1998) resulted in a
reduction in the Company's equity in earnings of affiliated companies. Effective
July 1, 2001, the Company intends to adopt Financial Accounting Standards Board
Statement No. 142, "Accounting for Goodwill and Other Intangible Assets," ("FASB
Statement No. 142") which eliminates the requirement to amortize the excess of
the Company's investment over the underlying equity of the Company's equity
method investments; therefore, as a result of the proposed adoption by the
Company of FASB Statement No. 142 effective July 1, 2001, no such amortization
will be recorded subsequent to June 30, 2001.
The Company has accounted for its investments in Host (prior to the date of the
Host-USA Acquisition) and Rawlings by the equity method on a six-month and
one-month lag basis, respectively.
The Company recognizes a gain or loss on the issuance of shares by an investee
company resulting in dilution of the Company's interest in the investee. The
gain or loss is determined based on the difference between (a) the Company's
post-issuance allocable share of the investee's underlying equity, as compared
to the Company's allocable share of the investee's underlying equity immediately
prior to the issuance, and (b) a pro rata reduction of the unamortized
difference between the Company's carrying value of the investment and the
Company's allocable share of the investee's underlying equity immediately prior
to the issuance. Deferred taxes are provided on recognized gains or losses.
38
GOODWILL AND OTHER LONG-LIVED ASSETS - Goodwill and purchased intangibles (i.e.,
customer relationships and trademarks) associated with the Company's acquisition
of Host, USA and Capital were amortized over 20 years until June 30, 2001.
Accumulated amortization of acquisition intangibles was $6,867 and $2,602 as of
June 30, 2001 and 2000, respectively, including $4,885 and $1,939 associated
with goodwill, respectively. In accordance with FASB Statement No. 142, the
Company does not expect to amortize FASB unamortized amount of goodwill and
trademarks beginning July 1, 2001, assuming the Company adopts FASB Statement
No. 142 effective July 1, 2001, but the Company would be required to
periodically assess the carrying value of goodwill and trademarks associated
with each of five distinct business units that comprise three business segments
of the Company to determine if an impairment in value has occurred. Assuming
adoption of FASB Statement No. 142 effective July 1, 2001, the initial
impairment test must be completed by December 31, 2001. If the test concludes
that the carrying amount of goodwill and trademarks as of July 1, 2001 for each
business unit acquired in the Host-USA Acquisition exceeds its net realizable
value, there would be a decrease in goodwill and/or trademarks and a decrease in
stockholders' equity effective July 1, 2001. If the test concludes that goodwill
and trademarks have not been impaired, the adoption of FASB Statement No. 142
will have no cumulative effect on the Company's financial statements. The value
assigned to customer relationships will continue to be amortized over 20 years.
INCOME TAXES - Deferred income tax liabilities or assets at the end of each
period are determined using the tax rate expected to be in effect when the taxes
are actually paid or recovered. A valuation allowance is recognized on certain
deferred tax assets if it is more likely than not that some or all of these
deferred tax assets will not be realized.
STOCK-BASED COMPENSATION - Except for stock options granted to former Host and
USA optionholders in connection with the Host-USA Acquisition, the Company
grants stock options for a fixed number of shares to employees with an exercise
price equal to the fair value of the shares at the date of grant. In accordance
with APB Opinion No. 25, "Accounting for Stock Issued to Employees," no
compensation expense is recognized for such grants. The value of stock options
issued by the Company in connection with the Host-USA Acquisition, having an
exercise price which was less than the fair value of the shares of Bull Run
common stock as of the date of the Host-USA Acquisition, was included as a
component of the Host-USA Acquisition price (see Note 4).
DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES - Effective July 1, 2000, the
Company adopted Financial Accounting Standards Board Statement No. 133,
"Accounting for Derivative Instruments and Hedging Activities." As a result, as
of July 1, 2000, the Company recognizes all derivatives, which include the value
of interest rate swap agreements and the value of the Company's warrants to
purchase Gray common stock, on the balance sheet at fair value. The Company's
adoption of this Statement resulted in a decrease in Stockholders' Equity and
Total Assets of $1,120 as of July 1, 2000, and resulted in net appreciation in
the value of its derivatives of $2,988 for the year ended June 30, 2001.
EARNINGS (LOSS) PER SHARE - Basic earnings per share excludes any dilutive
effects of stock options. In periods where they are anti-dilutive, dilutive
effects of stock options are excluded from the calculation of dilutive earnings
(loss) per share.
4. HOST-USA ACQUISITION
Aggregate consideration paid in connection with the Host-USA Acquisition (net of
cash acquired) was approximately $116,900, which included common stock (totaling
11,687 shares) and stock options (for 2,819 shares of common stock) valued at
approximately
39
$52,300, 8% subordinated notes having a face value of approximately $18,600,
cash (net of approximately $9,700 in cash acquired) of $44,800 and transaction
expenses of approximately $1,200.
Prior to the Host-USA Acquisition, the Company accounted for its investment in
Host and Capital under the equity method, and for its investment in USA under
the cost method. Beginning December 17, 1999, the date of the Host-USA
Acquisition, the financial results of Host, USA and Capital have been
consolidated with those of the Company. Effective July 1, 2000, USA was merged
into Host. The Host-USA Acquisition has been accounted for under the purchase
method of accounting, whereby the assets and liabilities of the acquired
businesses have been included as of December 17, 1999 based on an allocation of
the purchase price. The excess of the purchase price over assets acquired (i.e.,
goodwill) of approximately $62.7 million has been amortized on a straight-line
basis over 20 years.
The estimated fair values of assets and liabilities acquired are summarized as
follows:
Receivables $ 42,218
Inventories 918
Prepaid costs and expenses 6,740
Income taxes receivable 3,689
Property and equipment 7,112
Investment in affiliated companies 11,320
Goodwill 62,747
Customer base and trademarks 24,500
Deferred income taxes 2,738
Other assets 1,075
Current liabilities assumed (42,862)
Other liabilities assumed (330)
---------
119,865
Less: Investment in Host, Capital and USA
immediately prior to the acquisition (14,339)
---------
105,526
Purchase price in excess of fair value of
assets and liabilities acquired 11,330
---------
$ 116,856
=========
Subsequent to the Host-USA Acquisition, the Company discovered errors in the
financial statements of USA at the acquisition date. These errors involved an
overstatement of net current assets as of the acquisition date of $11,330. The
errors were a result of incorrect computations of prepaid costs and expenses,
sponsor contract receivables and deferred revenues associated with the Company's
(and prior to the Host-USA Acquisition, USA's) Affinity Events business. As a
result, the Company recorded an expense of $11,330 in December 1999, reflecting
the extent to which USA's net current assets as of the date of the Host-USA
Acquisition were overstated.
As a result of the anticipated reorganization immediately following the Host-USA
Acquisition, the Company accrued approximately $195 for costs to close certain
duplicative office facilities and accrued approximately $1,500 in severance
costs for approximately 50 terminated employees of the acquired companies,
primarily in the Collegiate Marketing and Production Services and the Affinity
Events business segments. These costs were accrued as part of the preliminary
allocation of the purchase price. The facility consolidation and employee
terminations resulted primarily from combining certain office facilities and
duplicative functions, including management functions, of Host and USA. Although
the Company has effected the planned reduction and relocation of employees, it
has not yet completed
40
consolidation of its facilities. Through June 30, 2001, the Company had charged
$1,307 (which consisted of cash expenditures) against the reserve, and the
accrual for future costs to be incurred was $388 as of June 30, 2001.
Pro forma operating results, assuming the Host-USA Acquisition had been
consummated as of January 1, 1998 would have been as follows:
YEAR ENDED SIX MONTHS ENDED YEAR ENDED
JUNE 30, JUNE 30, DECEMBER 31,
2000 1999 1998
--------- --------- ---------
(UNAUDITED) (UNAUDITED) (UNAUDITED)
Net revenue $ 129,711 $ 53,974 $ 113,289
Operating loss (3,317) (9,898) (4,315)
Loss from continuing operations (14,952) (10,922) (5,186)
Net loss (21,791) (10,922) (5,186)
Loss per share:
Basic $ (0.63) $ (0.32) $ (0.15)
Diluted $ (0.63) $ (0.32) $ (0.15)
The pro forma operating loss includes amortization of acquisition intangibles of
$4,545 for the years ended June 30, 2000 and December 31, 1998, and $2,318 for
the six months ended June 30, 1999. The pro forma results do not include the
$11,330 expense related to the overstatement of net current assets acquired from
USA. These pro forma results are not necessarily indicative of actual results
that might have occurred had the operations and management of the Company and
the acquired companies been combined in prior years.
5. DISCONTINUED OPERATION
The Company consummated the sale of Datasouth's computer printer manufacturing
operation on September 29, 2000. Accordingly, the operating results and net
assets associated with Datasouth's computer printer manufacturing business have
been reported as discontinued operations in the accompanying financial
statements.
The loss on the sale of Datasouth of $6,522, including a $350 pretax provision
for operating losses during the disposal period, were combined with Datasouth's
operating results and presented as discontinued operations in the financial
statements for the year ended June 30, 2000. Certain of the proceeds to be
realized on the sale of Datasouth's assets are deferred over a period through
and including September 2002. To the extent actual proceeds during this period
differ from the estimates that are reported as of June 30, 2001, such
differences will be reported as discontinued operations in future periods.
Proceeds from the sale were used to reduce outstanding debt under the Company's
bank credit agreement. Transaction expenses of the sale were less than $100.
Assets and liabilities of the discontinued operations have been reflected in the
consolidated balance sheets as current or noncurrent based on the original
classification of the accounts, except that current assets are presented net of
current liabilities and noncurrent assets are presented net of noncurrent
liabilities. As of June 30, 2000, net noncurrent assets were reduced by a
provision for estimated loss on the disposal of discontinued operations of
$7,419.
41
The following is a summary of assets and liabilities of these discontinued
operations:
JUNE 30,
-----------------------
2001 2000
------- -------
Current assets:
Accounts receivable, net $ 168 $ 3,166
Inventories 5,501
Other current assets 328
Current liabilities:
Accounts payable and accrued expenses (179) (2,709)
------- -------
$ (11) $ 6,286
======= =======
Noncurrent assets:
Property, plant and equipment, net of
accumulated depreciation $ 700 $ 2,254
Goodwill 7,419
Other assets 4 38
Deferred income taxes 1,878 2,093
Provision for estimated loss on disposal of
discontinued operations (7,419)
------- -------
$ 2,582 $ 4,385
======= =======
The following summarizes revenues and operating results from these discontinued
operations:
YEAR ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED
------------------------ ------------------------- DECEMBER 31,
2001 2000 1999 1998 1998
-------- -------- -------- -------- --------
(unaudited)
Revenue from printer operations $ 4,406 $ 24,959 $ 13,636 $ 14,157 $ 29,848
Income (loss) from operations 0 (326) (338) (56) 464
Revenue from printer operations for the year ended June 30, 2001 represented
revenue generated from July 1, 2000 to September 29, 2000, the date Datasouth
was sold. No interest expense has been allocated to discontinued operations.
There are no material contingent liabilities related to discontinued operations,
such as product or environmental liabilities or litigation, which remain with
the Company after the disposal of Datasouth.
42
6. SUPPLEMENTAL CASH FLOW DISCLOSURES
YEARS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEARS ENDED
------------------------- ------------------------ DECEMBER 31,
2001 2000 1999 1998 1998
-------- -------- -------- -------- --------
(unaudited)
Interest paid $ 11,907 $ 8,323 $ 2,346 $ 2,050 $ 4,404
Income taxes paid (recovered), net (2,015) 397 3 (25)
Noncash investing and financing activities:
Treasury stock issued in business acquisition 2,500 2,500
Common stock and stock options issued in
Host-USA Acquisition 52,258
Issuance of subordinated notes in Host-USA
Acquisition 18,594
Issuance of common stock in connection with
debt issuance costs 1,449 1,219
7. INVESTMENT IN AFFILIATED COMPANIES
The Company's investment in affiliated companies consists of the following:
JUNE 30, 2001 JUNE 30, 2000
-------------------- ---------------------
AFFILIATE AMOUNT VOTING % AMOUNT VOTING %
--------- ------- -------- ------- --------
Gray common $24,515 26.1% $26,352 26.2%
Gray preferred 3,738 6,552
Tarzian 10,000 33.5% 10,000 33.5%
Rawlings 8,184 10.1% 8,071 10.2%
Quokka 0 1.2%
Total Sports 7,151 10.6%
iHigh 2,802 35.1% 5,416 35.1%
Other 1,160 1,240
------- -------
Total $50,399 $64,782
======= =======
Equity in earnings (losses) of affiliated companies consists of the following:
YEARS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED
----------------------- ----------------------- DECEMBER 31,
AFFILIATE 2001 2000 1999 1998 1998
--------- ------- ------- ------- ------- -------
(unaudited)
Gray $(1,661) $(1,661) $ (670) $ (370) $ 5,730
Rawlings 113 (1,770) 164 501 237
iHigh (2,614) (706)
Host 492 (149) (53) 124
Capital 1,091 (255) (139) 246
Other (73) 21
------- ------- ------- ------- -------
Total $(4,235) $(2,533) $ (910) $ (61) $ 6,337
======= ======= ======= ======= =======
43
INVESTMENT IN GRAY AND GAIN ON ISSUANCE OF COMMON SHARES - As of June 30, 2001,
the Company owned approximately 13.0% of Gray's outstanding common stock, shares
of series A and series B preferred stock having an aggregate face value of
$6,803 and warrants to purchase additional shares of Gray's class A and class B
common stock. In September 2001, the Company sold its shares of Gray series A
and series B preferred stock for $6,803 to certain companies of which the
Company's chairman of the board is an executive officer and/or principal
stockholder, the proceeds from which were used to reduce the Company's long term
debt. Gray is a communications company that operates 13 network affiliated
television stations, four daily newspapers, and other media properties. Certain
executive officers of the Company are also executive officers of Gray.
In October 1999, Gray acquired three television stations for consideration that
included 3,436 shares of Gray's class B common stock valued at approximately
$49,500. As a result of such issuance, the Company's common equity ownership of
Gray was reduced from 16.9% to 13.1% (resulting in a reduction in the Company's
voting interest in Gray from 27.5% to 26.2%). As a result of this dilution, the
Company recognized a $490 pretax gain on Gray's issuance of shares in the year
ended June 30, 2000. In July 1998, Gray disposed of a television station and
recognized an after-tax gain of approximately $43,000 in connection with the
disposition. As a result, the Company's equity in Gray's earnings was favorably
impacted by approximately $6,900 in 1998.
The Company provides consulting services to Gray from time to time in connection
with Gray's acquisitions (including acquisition financing) and dispositions. As
a result of the Company's 13.0% equity investment in Gray, approximately 13.0%
of the consulting fees charged to Gray is deferred and recognized as consulting
fee income over 40 years. The Company recognized consulting fee income from Gray
of $24 and $1,311 for the years ended June 30, 2001 and 2000, respectively; $609
and $652 for the six months ended June 30, 1999 and 1998, respectively; and
$1,618 for the year ended December 31, 1998 for services rendered in connection
with certain of Gray's acquisitions and dispositions. As of June 30, 2001 and
2000, income from additional consulting fees of $674 and $699, respectively, has
been deferred and will be recognized as Gray amortizes intangible assets
associated with its acquisitions.
Until it was sold on September 28, 2001, the Company owned all of the
outstanding shares of Gray's series A preferred stock entitling the holder
thereof to annual cumulative cash dividends of $800 per share, payable
quarterly, and 50% of Gray's series B preferred stock entitling the holder
thereof to annual cumulative dividends of $600 per share, payable quarterly.
Dividends on the series B preferred stock were payable in cash or in additional
shares of series B preferred stock, at Gray's option. Total dividend income on
Gray series A and B preferred stock recognized by the Company was $695 and $905
for the years ended June 30, 2001 and 2000, respectively; $452 and $550 for the
six months ended June 30, 1999 and 1998, respectively; and $1,072 for the year
ended December 31, 1998. Gray redeemed series A preferred stock held by the
Company during the year ended June 30, 2001 at its redemption value of $5,000,
and series B preferred stock during the year ended December 31, 1998 at its
redemption value of $3,805, resulting in gains of $2,160 and $1,680,
respectively.
In connection with the Company's purchases of Gray's series A and series B
preferred stock in 1996, the Company acquired warrants to purchase up to 731
shares of Gray's class A common stock at $11.92 per share and warrants to
purchase up to 375 shares of Gray's class A common stock at $16.00 per share.
All of the warrants owned by the Company to purchase 1,106 shares of Gray's
class A common stock are fully vested and exercisable, and all such warrants
expire in 2006. The Company's warrants for 100 shares of Gray's class B common
stock are described under "Investment in Tarzian" below. The aggregate carrying
44
value of all warrants, amounting to $10,116 and $6,904 as of June 30, 2001 and
2000, respectively, are included in "other assets". Gray's class A and class B
common stock is publicly traded on The New York Stock Exchange (symbols: GCS and
GCS.B, respectively). The aggregate market value of Gray common stock owned by
the Company was $38,593 on June 30, 2001 and $19,913 on June 30, 2000, based on
the closing price per share as quoted on The New York Stock Exchange as of those
dates.
INVESTMENT IN TARZIAN - In January 1999, the Company acquired shares of the
outstanding common stock of Tarzian for $10,000. The acquired shares represented
33.5% of the total outstanding common stock of Tarzian as of June 30, 2001, both
in terms of the number of shares of common stock outstanding and in terms of
voting rights, but such investment represents 73% of the equity of Tarzian for
purposes of dividends, as well as distributions in the event of any liquidation,
dissolution or other termination of Tarzian. Tarzian filed a complaint with the
United States District Court for the Southern District of Indiana, claiming that
it had a binding contract with the seller to purchase the shares from the seller
prior to the Company's purchase of the shares, and requests judgment providing
that the seller be required to sell the shares to Tarzian. The Company believes
that a binding contract between Tarzian and the seller did not exist prior to
the Company's purchase of the shares, and in any case, the Company's purchase
agreement with the seller provides that in the event that a court of competent
jurisdiction awards title to a person or entity other than the Company, the
purchase agreement is rescinded, and the seller is required to pay the Company
the full $10,000 purchase price, plus interest. Tarzian owns and operates two
television stations and four radio stations: WRCB-TV Channel 3 in Chattanooga,
Tennessee, an NBC affiliate; KTVN-TV Channel 2 in Reno, Nevada, a CBS affiliate;
WGCL-AM and WTTS-FM in Bloomington, Indiana; and WAJI-FM and WLDE-FM in Fort
Wayne, Indiana.
In March 1999, the Company executed an option agreement with Gray, whereby Gray
has the option of acquiring the Tarzian investment from the Company for $10,000,
plus related costs. In addition, Gray agreed to pay the Company a finder's fee
of $1,000. Gray has the ability to extend the option period in 30-day increments
at a fee of $67 per 30-day extension, and as of June 30, 2001, has extended this
option period through December 31, 2001. The Company recognized option and
finders fee income from Gray of $1,289 and $810 for the years ended June 30,
2001 and 2000, respectively, and $222 for the six months ended June 30, 1999. As
of June 30, 2001 and 2000, option and finder fee income of $747 and $152,
respectively, has been deferred as a result of the Company's 13.0% equity
investment position in Gray, and will be recognized as Gray records expense
associated with these fees.
The Company received from Gray warrants to acquire 100 shares of Gray's class B
common stock at $13.625 per share, in connection with the option agreement. The
warrants will vest immediately upon Gray's exercise of the option. The warrants
expire 10 years following the date on which Gray exercises its option.
INVESTMENT IN RAWLINGS - In November 1997, the Company entered into an
Investment Purchase Agreement with Rawlings (the "Purchase Agreement"), a
supplier of team sports equipment based near St. Louis, Missouri. Pursuant to
the Purchase Agreement, the Company acquired warrants to purchase approximately
10% of Rawlings' common stock, and has the right, under certain circumstances,
to acquire additional warrants. The Company's total cost to purchase the
warrants pursuant to this agreement (excluding the additional warrants) was
$2,842. Fifty percent of the purchase price, or $1,421, was paid to Rawlings
upon execution of the Purchase Agreement in November 1997. The remaining fifty
percent, plus interest at 7% per annum from November 21, 1997 until the date of
payment, is payable by the expiration date of the warrants, which is November
21, 2001. Based on the conditions for
45
vesting of the warrants, the Company's management believes that it is highly
unlikely that the warrants will vest prior to their expiration date. During the
year ended June 30, 2000, the Company reduced the book value of its investment
in the Rawlings warrants to zero,recognizing a $2,850 expense. Under the terms
of the Purchase Agreement, the Company also acquired approximately 10.3%
(representing 10.1% as of June 30, 2001) of Rawlings' outstanding common stock
in the open market from November 1997 through January 1998. The Company has two
members on Rawlings' board of directors, which currently has a total of eight
members.
The Company and Rawlings also entered into a Standstill Agreement, which, among
other things, provides that, for a specified period, the Company will be
restricted in acquiring additional shares of Rawlings' common stock or
participating in certain types of corporate events relating to Rawlings,
including proxy contests and tender offers, subject to certain exceptions.
Pursuant to a Registration Rights Agreement, Rawlings has also granted the
Company rights to have shares issuable upon the exercise of the warrants (and
additional warrants, if any) registered under the Securities Act of 1933 under
certain circumstances.
In its fiscal quarter ended May 31, 2000, Rawlings recognized an after tax
charge of $12,800 associated with its decision to sell its Vic hockey business.
As a result, the Company's pretax equity in losses of Rawlings was negatively
impacted in the year ended June 30, 2000 by approximately $1,300.
Rawlings' common stock is publicly traded on the Nasdaq Stock Market. The
aggregate market value of Rawlings common stock owned by the Company was $3,726
and $5,437 on June 30, 2001 and 2000, respectively, based on the closing price
per share as quoted on the Nasdaq Stock Market as of those dates.
INVESTMENT IN QUOKKA / TOTAL SPORTS - In 1998, the Company acquired shares of
Total Sports series C convertible preferred stock for $2,500. In January 1999,
the Company invested an additional $1,000 for shares of series C1 convertible
preferred stock. In December 1999 in connection with the Host-USA Acquisition,
the Company acquired Total Sports common stock owned by Host valued at $3,651.
In November 2000, Total Sports was sold to Quokka. In exchange for its
investment in preferred and common stock of Total Sports, the Company received
Quokka common stock and warrants to purchase Quokka common stock. Quokka's
common stock was publicly traded on the Nasdaq Stock Market until April 2001,
when Quokka announced its intention to seek protection under the Federal
Bankruptcy Code and soon thereafter, ceased all operations. On the effective
date of the exchange, the Company reduced the book value of its investment in
Total Sports to the fair market value of the Quokka common stock received in the
exchange, recognizing a pretax loss of approximately $6,200 as of the effective
date of the exchange. In March 2001, the Company further reduced the book value
of its investment in Quokka to zero, recording an additional non-cash charge of
approximately $1,800. Quokka operated a sports-oriented web site and provided
web site services for amateur and professional sports organizations and
conferences, college athletic departments, and selected corporations.
INVESTMENT IN IHIGH - In connection with the Host-USA Acquisition, the Company
acquired 39.4% (currently, approximately 35.1%) of the then outstanding common
stock of iHigh valued at $6,122 as of the acquisition date.
INVESTMENTS IN HOST, USA AND CAPITAL - Prior to the Host-USA Acquisition, the
Company was effectively Host's largest stockholder, owning directly or
indirectly approximately 32.5% of Host common stock and 51.5% of Host preferred
stock. The Company's indirect ownership
46
of Host's common stock and Host's preferred stock was owned by Capital, in which
the Company owned 51.5% of the common stock. The Company and Host together were
the largest stockholders of USA, with the Company owning approximately 3% of USA
capital stock and Host owning approximately 33.8% of USA capital stock.
Capital's assets consisted solely of investments in Host common stock and all of
Host 8% series B preferred stock.
The Company recognized its equity in earnings of Host on a six-month lag basis.
In January 1999, USA sold its investment in broadcast.com, inc., a marketable
security, recognizing an after-tax gain of approximately $40,000. As a result of
Host's equity investment in USA and the Company's equity investment in Host
reported on a six-month lag basis, the Company recognized approximately $1,900
as equity in earnings of affiliates in the year ended June 30, 2000 due to USA's
gain on the disposal of broadcast.com, inc.
SUMMARIZED AGGREGATE FINANCIAL INFORMATION (unaudited) -
The aggregate financial position of affiliated companies accounted for by the
equity method (reflecting Gray, combined with iHigh and certain other equity
investments as of June 30, 2001 and 2000, combined with Rawlings as of May 31,
2001 and 2000) is as follows:
JUNE 30,
------------------------
2001 2000
-------- --------
Current assets $117,644 $124,272
Property and equipment 75,616 90,124
Total assets 731,131 769,437
Current liabilities 92,510 100,099
Long-term debt 372,520 382,434
Total liabilities 546,771 568,274
Stockholders' equity 184,360 201,163
The aggregate operating results of affiliated companies accounted for by the
equity method (reflecting Gray for the years ended June 30, 2001 and 2000, the
six months ended June 30, 1999 and 1998, and the year ended December 31, 1998;
combined with iHigh and certain other equity investments for the years ended
June 30, 2001 and 2000; combined with Rawlings for the years ended May 31, 2001
and 2000, the six months ended May 31, 1999 and 1998, and the year ended
November 30, 1998) is as follows:
YEARS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED
--------------------------- --------------------------- DECEMBER 31,
2001 2000 1999 1998 1998
--------- --------- --------- --------- ---------
Operating revenue $ 343,309 $ 331,087 $ 170,443 $ 168,068 $ 301,513
Income from operations 29,170 26,052 16,358 24,353 35,788
Net income (loss) (12,122) (25,500) (276) 5,500 45,760
Due to aggregate cumulative net losses reported by affiliated companies during
the period in which the Company has had its investment in each affiliate, there
are no aggregate undistributed earnings of investments accounted for by the
equity method as of June 30, 2001.
47
8. PROPERTY AND EQUIPMENT
The Company's property and equipment consist of the following:
JUNE 30,
--------------------
2001 2000
------ ------
Land $ 448 $ 448
Building 962 950
Leasehold and building improvements 851 560
Machinery & equipment 2,598 2,274
Office furniture and equipment 4,166 3,700
------ ------
9,025 7,932
Accumulated depreciation and amortization 2,402 1,064
------ ------
$6,623 $6,868
====== ======
9. ACCRUED AND OTHER LIABILITIES
Accrued and other liabilities consist of the following:
JUNE 30,
----------------------
2001 2000
------- -------
Incurred unbilled costs $ 3,156 $ 2,279
Guaranteed rights fees and profit splits 7,583 6,879
Deferred income 16,889 15,581
Interest 1,040 1,030
Other 2,163 4,403
------- -------
$30,831 $30,172
======= =======
10. LONG-TERM DEBT AND NOTES PAYABLE
In connection with the Host-USA Acquisition, the Company entered into a credit
agreement with a group of banks on December 17, 1999, as modified in 2000 and
2001. As most recently amended and restated on July 27, 2001 and October 5,
2001, the Company's credit agreement provides for (a) two term loans for
borrowings totaling $93,956, bearing interest at either the banks' prime rate
plus 1.5% or the London Interbank Offered Rate ("LIBOR") plus 4.0% payable
monthly, requiring a minimum aggregate principal payment of $10,000 by October
15, 2001 and an additional $10,000 by December 1, 2001, with all amounts
outstanding under the term loans due on July 1, 2002; and (b) a revolving loan
commitment (the "Revolver") for maximum borrowings of up to $25,000 until
December 1, 2001, $20,000 from December 1, 2001 until March 1, 2002 and $15,000
from March 1, 2002 until maturity on July 1, 2002, bearing interest, payable
monthly, at either the banks' prime rate plus 1.0% or LIBOR plus 3.5%. The
credit agreement contains certain financial covenants, the most restrictive of
which requires the maintenance of minimum profitability thresholds determined
quarterly. Long-term debt is collateralized by all of the Company's assets,
including all of its investments in affiliated companies. Borrowings under the
Revolver are limited to an amount not to exceed 100% of eligible accounts
receivable and such borrowings may include up to $15,100 in outstanding letters
of credit. As of July 27, 2001, borrowings of $14,375 and letters of credit
totaling $25 were outstanding under the Revolver, and additional available
48
borrowing capacity under the Revolver was $600 at that date. As of June 30,
2001, the Company was not in compliance with certain financial covenants and
other provisions considered to be events of default under the terms of its bank
credit agreement; however, the Company obtained waivers of these events of
default, and effective July 27, 2001, and as further modified October 5, 2001,
the Company and its lenders amended the credit agreement to include the
aforementioned provisions.
As of June 30, 2001, borrowings of $24,375 and letters of credit totaling $25
were outstanding under the Revolver, and borrowings of $84,134 were outstanding
under the Term Loans. As of June 30, 2001, all borrowings under the Term Loans
were subject to the banks' prime rate-based rate of 7.75% and all borrowings
under the Revolver were subject to the banks' prime rate-based rate of 7.25%.
As of June 30, 2000, borrowings of $19,200 and letters of credit totaling $3,835
were outstanding under the Revolver, and borrowings of $95,000 were outstanding
under the Term Loans. As of June 30, 2000, borrowings totaling $99,900 under the
Term Loans and the Revolver were subject to a LIBOR-based rate of 9.31% and
borrowings of $14,300 were subject to the banks' prime rate of 9.5%.
In connection with the Company's bank credit facilities, the Company's chairman
of the board entered into a guarantee agreement in favor of the banks, for which
he received compensation from the Company during the years ended June 30, 2001
and 2000 in the form of 874,000 and 305,000 restricted shares of the Company's
common stock valued at $1,449 and $1,219, respectively. In connection with the
waiver and amendment in July 2001, the chairman's personal guarantee of the
Company's debt under its bank credit agreement was increased from $75,000 to
$93,956, which was the amount outstanding under the two term loans as of that
date. The guaranteed amount reduces dollar for dollar, subject to certain
limitations, as the aggregate outstanding amount of the term loans is reduced.
The guarantee agreement provides that if the Company defaults on its bank loan,
the chairman will repay the amount of such loan to the banks up to the amount of
his personal guarantee. The Company's investments in Gray and Tarzian serve as
collateral for the guarantee, if and when the chairman is required to repay the
amount of such loan.
Also in connection with the Host-USA Acquisition, the Company issued
subordinated notes on December 17, 1999, bearing interest at 8% and having an
aggregate face value of $18,594. Interest is payable quarterly until maturity on
January 17, 2003. In connection with the acquisition of certain business
operations, the Company also issued subordinated notes in September 2000,
bearing interest at 9%, having an aggregate face value of $1,180, due in annual
installments of $590 with interest in each of the years ended June 30, 2002 and
2003. Payment of interest and principal on all of the subordinated notes is
subordinate to the Company's bank credit agreement.
The Company is a party to two interest rate swap agreements, which effectively
modify the interest characteristics of $45,000 of its outstanding long-term
debt. The first agreement, terminating on December 31, 2002, involves the
exchange of interest at a fixed rate of 6.08% for interest at a variable rate,
determined quarterly, equal to the 90-day LIBOR rate, without an exchange of the
$20,000 notional amount upon which the payments are based. The second agreement,
terminating on December 31, 2002 (or December 31, 2004, at the bank's option),
involves the exchange of interest at a fixed rate of 6.71% for interest at a
variable rate, determined quarterly, equal to the 90-day LIBOR rate, without an
exchange of the $25,000 notional amount upon which the payments are based. The
differential paid or received as interest rates change is settled quarterly and
is accrued and recognized as an adjustment of interest expense related to the
debt.
49
11. INCOME TAXES
The Company's income tax benefit (provision) attributable to continuing
operations consists of the following:
YEAR ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED
----------------------- ---------------------- DECEMBER 31,
2001 2000 1999 1998 1998
------- ------- ------- ------- -------
(UNAUDITED)
Current:
Federal $ $ $ $ $
State (271)
-------
(271)
Deferred 6,228 5,348 911 509 (2,094)
------- ------- ------- ------- -------
$ 6,228 $ 5,077 $ 911 $ 509 $(2,094)
======= ======= ======= ======= =======
The principal differences between the federal statutory tax rate and the
effective tax rate applicable to continuing operations are as follows:
YEAR ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED
------------------ ------------------ DECEMBER 31,
2001 2000 1999 1998 1998
----- ----- ----- ----- ----
(UNAUDITED)
Federal statutory tax rate 34.0 % 34.0 % 34.0 % 34.0 % 34.0 %
Non-deductible goodwill amortization (6.0) (3.3)
Correction of purchase price allocation (14.8)
State income taxes, net of federal
benefit 2.0 1.4
Other, net (3.8) 2.1 (2.1) (3.1) 6.6
----- ----- ----- ----- ----
Effective tax rate 26.2 % 19.4 % 31.9 % 30.9 % 40.6 %
===== ===== ===== ===== ====
Deferred tax liabilities (assets) associated with continuing operations are
comprised of the following:
JUNE 30,
-------------------------
2001 2000
-------- --------
Prepaid costs and expenses $ 397 $ 668
Investment in affiliated companies 4,471
Property and equipment 608 749
Valuation of derivative financial instruments 1,933
Other, net 841
-------- --------
Gross deferred tax liabilities 2,938 6,729
-------- --------
Allowance for doubtful accounts (204) (809)
Investment in affiliated companies (194)
Accrued expenses (338) (727)
Deferred income (714) (570)
Nonqualified stock options outstanding (1,395) (1,293)
Net operating loss carryforward (8,913) (4,838)
Alternative Minimum Tax credit carryforward (357) (490)
Other, net (135)
-------- --------
Gross deferred tax assets (12,250) (8,727)
-------- --------
Total deferred tax liability (asset), net $ (9,312) $ (1,998)
======== ========
50
Income (loss) on the operations of the discontinued segment is presented net of
a tax (provision) benefit of $0, $10, $72, $(36) and $(255) for the years ended
June 30, 2001 and 2000, the six months ended June 30, 1999 and 1998, and the
year ended December 31, 1998, respectively. The loss on disposal of the
discontinued segment for the year ended June 30, 2000 is presented net of an
income tax benefit of $1,247.
As of June 30, 2001, the Company has a net operating loss carryforward for tax
purposes of approximately $30,300 expiring beginning in 2018 to reduce Federal
taxable income in the future. The Company also has as of June 30, 2001 an
Alternative Minimum Tax credit carryforward of $357, and a business credit
carryforward of $142, to reduce regular Federal tax liabilities in the future.
12. PREFERRED STOCK
The Company issued shares of its series A preferred stock in June 2001 to the
Company's chairman of the board and companies of which the chairman is an
executive officer and/or principal stockholder. The preferred stock includes
detachable warrants to purchase 1,304 shares of the Company's common stock for
$2.30 per share. Of these warrants, 783 were vested upon issuance, with the
remaining warrants vesting in five equal annual installments commencing June 30,
2002, providing the preferred stock remains outstanding. The holder of the
preferred stock is entitled to receive dividends at an annual rate of $90.00 per
share in cash, except that, until the second anniversary of the date of issuance
of the preferred stock, the Company may, at its option, pay such dividends in
cash or in additional shares of preferred stock. The liquidation and redemption
price of the preferred stock is $1,000 per share.
13. STOCK OPTIONS
The Company's 1994 Long Term Incentive Plan (the "1994 Plan") reserves 7,200
shares of Company common stock for issuance of stock options, restricted stock
awards and stock appreciation rights. Certain options granted under the 1994
Plan are fully vested at the date of grant, and others vest over three to five
year periods. Options granted under the 1994 Plan have terms ranging from five
to ten years. In connection with the Host-USA Acquisition, options for an
aggregate of 2,819 exercisable shares were granted to former holders of options
for Host and USA shares, at exercise prices ranging from $.34 to $4.06 per
share. As of June 30, 2001 and 2000, there were 1,221 and 2,207 shares available
for future option grants under the 1994 Plan, respectively.
The Company's Non-Employee Directors' 1994 Stock Option Plan (the "1994
Directors' Plan") reserves 350 shares of the Company's common stock for issuance
of stock options. Options under the 1994 Directors' Plan are fully vested when
granted. Shares available for future option grants under the 1994 Directors'
Plan were 150 as of June 30, 2001 and 160 as of June 30, 2000.
51
Information with respect to the Company's stock option plans follows:
OPTION OPTION
SHARES PRICE RANGE
------ -------------
OUTSTANDING AS OF JANUARY 1, 1998 1,882 $0.75 - $2.68
Grants 50 $3.19 - $4.38
Exercised (254) $0.88 - $0.96
-----
OUTSTANDING AS OF DECEMBER 31, 1998 1,678 $0.75 - $4.38
Grants 50 $3.69
Exercised (198) $0.88 - $2.68
-----
OUTSTANDING AS OF JUNE 30, 1999 1,530 $0.75 - $4.38
Grants 3,004 $0.34 - $4.25
Exercised (652) $0.34 - $4.06
Forfeited (24) $2.31 - $2.41
----
OUTSTANDING AS OF JUNE 30, 2000 3,858 $0.34 - $4.38
Grants 1,360 $1.35 - $2.06
Exercised (25) $0.69
Forfeited (364) $0.69 - $4.06
-----
OUTSTANDING AS OF JUNE 30, 2001 4,829 $0.34 - $4.38
======
EXERCISABLE AS OF:
DECEMBER 31, 1998 1,387 $0.75 - $4.38
JUNE 30, 1999 1,363 $0.75 - $4.38
JUNE 30, 2000 3,594 $0.34 - $4.38
JUNE 30, 2001 3,359 $0.34 - $4.38
The weighted average per share fair value of options granted was $.83 for the
year ended June 30, 2001, $1.85 for the year ended June 30, 2000, $1.98 for the
six months ended June 30, 1999, and $1.59 for the year ended December 31, 1998.
As of June 30, 2001, the number of outstanding shares under option, weighted
average option exercise price and weighted average remaining option contractual
life was as follows: 75 exercisable shares at $.75 per share, expiring in 1.3
years; 526 exercisable shares at $.88 per share, expiring in 3.0 years; 150
exercisable shares at $1.50 per share, expiring in 3.3 years; 80 exercisable
shares at $2.44 per share, expiring in 4.8 years; 45 exercisable shares at $2.40
per share, expiring in 5.5 years; 35 exercisable shares at $3.77 per share,
expiring in 7.0 years; 60 shares at $3.73 per share expiring in 7.7 years (40
shares of which were exercisable); 2,341 exercisable shares at $1.00 per share
expiring in 4.4 years; 175 shares at $4.25 per share expiring in 8.8 years (57
shares of which were exercisable); and 1,342 shares at $1.49 per share expiring
in 8.4 years (10 shares of which were exercisable).
Pro forma net income and earnings per share required by FASB Statement No. 123,
"Accounting for Stock-Based Compensation" ("FAS 123") has been determined as if
the Company had accounted for its employee stock options under the fair value
method of that Statement. The fair values for these options were estimated at
the time of grant using a Black-Scholes option pricing model assuming a weighted
average risk-free interest rate of 5.49%, dividend yield of 0.0%, a weighted
average volatility factor of .472, and a weighted average expected life for the
options of 6.8 years. Had compensation cost been measured based on the fair
value based accounting of FAS 123, net income (loss) would have been $(18,901),
or $(.54) per share (basic and diluted), for the year ended June 30, 2001;
$(27,974), or $(.96) per share (basic and diluted), for the year ended June 30,
2000; $(2,249), or $(.10) per share (basic and diluted), for the six months
ended June 30, 1999; and $3,012, or $.14 per share and $.13 per share (basic and
diluted, respectively), for the year ended December 31, 1998. Since FAS 123 is
applicable only to options granted
52
subsequent to December 31, 1994, its pro forma effect is not fully reflected
until the year ended June 30, 2001.
14. FAIR VALUE OF FINANCIAL INSTRUMENTS
The aggregate fair value of the Company's investment in affiliated companies was
approximately $77,000, compared to the carrying value of $50,399, as of June 30,
2001, and $63,000, compared to the carrying value of $64,782, as of June 30,
2000. The estimate of fair value was based on, in the case of publicly-traded
Gray and Rawlings, quoted market prices on The New York Stock Exchange and the
Nasdaq Stock Market as of June 30, 2001 and 2000; in the case of Tarzian,
acquisition cost; in the case of Total Sports as of June 2000, the estimated
value of Quokka shares to be received in the merger of Total Sports and Quokka;
and in the case of iHigh, the value attributed to iHigh at the date of the
Host-USA Acquisition less the Company's equity in iHigh's net losses since the
Host-USA Acquisition; and management estimates.
The fair value of the Company's interest rate swap agreements, having an
aggregate notional amount of $45,000 as of June 30, 2001 and 2000, is recognized
in the financial statements effective July 1, 2000 as a result of the adoption
of FAS 133 (see "Derivative Instruments and Hedging Activities" in Note 3). The
estimated amount to be received (paid) on terminating the swap agreements, if
the Company had elected to do so, was approximately $(1,897) and $511 as of June
30, 2001 and 2000, respectively. The aggregate fair value of warrants to acquire
the common stock of Gray was $10,116 and $4,586 as of June 30, 2001 and 2000,
respectively, compared to the carrying value of $10,116 and $6,904,
respectively. The fair value of the warrants were determined based on a
Black-Scholes option pricing model as of June 30, 2000 and an independent
appraisal as of June 30, 2001.
All other financial instruments, including cash, cash equivalents, receivables,
payables and variable rate bank debt are estimated to have a fair value which
approximates carrying value in the financial statements.
53
15. EARNINGS (LOSS) PER SHARE
The following table sets forth the computation of basic and diluted earnings
(loss) per share:
YEAR ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED
-------------------------- -------------------------- DECEMBER 31,
2001 2000 1999 1998 1998
---------- ---------- ---------- ---------- ----------
(UNAUDITED)
Income (loss) from continuing operations
before cumulative effect of accounting change $ (17,584) $ (20,985) $ (1,941) $ (1,138) $ 3,067
Cumulative effect of accounting change (1,120)
---------- ---------- ---------- ---------- ----------
Income (loss) from continuing operations (18,704) (20,985) (1,941) (1,138) 3,067
Income (loss) from discontinued operations (6,839) (266) (92) 81
---------- ---------- ---------- ---------- ----------
Net income (loss) $ (18,704) $ (27,824) $ (2,207) $ (1,230) $ 3,148
========== ========== ========== ========== ==========
Weighted average number of common shares
outstanding for basic earnings (loss) per share 35,307 29,044 22,330 22,098 22,189
Effect of dilutive employee stock options 993
---------- ---------- ---------- ---------- ----------
Adjusted weighted average number of common
shares and assumed conversions for diluted
earnings (loss) per share 35,307 29,044 22,330 22,098 23,182
========== ========== ========== ========== ==========
Basic earnings (loss) per share:
Income (loss) from continuing operations
before cumulative effect of accounting change $ (0.50) $ (0.72) $ (0.09) $ (0.05) $ 0.14
Cumulative effect of accounting change (0.03)
---------- ---------- ---------- ---------- ----------
Income (loss) from continuing operations (0.53) (0.72) (0.09) (0.05) 0.14
Loss from discontinued operations (0.24) (0.01) (0.01) 0.00
---------- ---------- ---------- ---------- ----------
Net income (loss) $ (0.53) $ (0.96) $ (0.10) $ (0.06) $ 0.14
========== ========== ========== ========== ==========
Diluted earnings (loss) per share:
Income (loss) from continuing operations
before cumulative effect of accounting change $ (0.50) $ (0.72) $ (0.09) $ (0.05) $ 0.14
Cumulative effect of accounting change (0.03)
---------- ---------- ---------- ---------- ----------
Income (loss) from continuing operations (0.53) (0.72) (0.09) (0.05) 0.14
Loss from discontinued operations (0.24) (0.01) (0.01) 0.00
---------- ---------- ---------- ---------- ----------
Net income (loss) $ (0.53) $ (0.96) $ (0.10) $ (0.06) $ 0.14
========== ========== ========== ========== ==========
The number of potentially dilutive employee stock options not considered above
because they were anti-dilutive was 1,813 and 1,831 shares for the years ended
June 30, 2001 and 2000, respectively; and 927 shares and 1,084 shares for the
six months ended June 30, 1999 and 1998, respectively.
16. RETIREMENT PLANS
The Company has three 401(k) defined contribution benefit plans, whereby
employees of the Company may contribute a portion of their gross pay to the plan
subject to limitations set forth by the Internal Revenue Service. The Company
may make matching and/or discretionary contributions to the employees' accounts
in amounts based on criteria set forth in the plan agreements. Total Company
contributions to the plans were $1,163 and $349 for the years ended June 30,
2001 and 2000 (including contributions made to the Host and USA plans
54
subsequent to the date of the Host-USA Acquisition), $163 and $140 for the six
months ended June 30, 1999 and 1998, respectively, and $252 for the year ended
December 31, 1998.
17. COMMITMENTS AND CONTINGENCIES
The Company is obligated under its contract with the NCAA expiring August 31,
2002 to issue an irrevocable letter of credit in contractually determined
amounts to guarantee the Company's payments to the NCAA for each contract
period. The Company arranges for insurance companies to issue performance bonds
on behalf of the Company in lieu of a portion of the irrevocable letter of
credit as part of the guarantee to the NCAA. As of June 30, 2001, there was a
$5,000 performance bond issued for the benefit of the NCAA and no outstanding
letters of credit. The letter of credit contractual requirement for the contract
year ending August 31, 2002 is $20,000. In July 2001, the Company announced that
it had reached an agreement with CBS Sports for the exclusive right to
administer the NCAA Corporate Partner Program, along with other NCAA marketing
programs, beginning in September 2002 and expiring in 2013. The new agreement
with CBS Sports likewise requires the Company to issue an irrevocable letter of
credit to guarantee each of the Company's annual guaranteed rights fee payments
to CBS Sports. The guaranteed rights fee for the initial year of the contract is
$40,000, with gradual annual increases throughout the 11-year period of the
contract, for an aggregate guaranteed rights fee of $575,000. The increase in
rights fees, as compared to the Company's earlier NCAA agreement, primarily
results from the increased marketing, licensing and media rights provided under
the new contract with CBS Sports compared to the earlier NCAA agreement.
The Company commits under certain other contracts, which expire at varying times
through 2005, to the payment of guaranteed rights fees. Future guaranteed rights
fee commitments as of June 30, 2001 totaled approximately $38,300 for the fiscal
year ending June 30, 2002 and approximately $70,000 over the term of such
contracts.
Bull Run's executive offices are leased from a company affiliated with a
principal stockholder and director of the Company under an operating lease
expiring in December 2002. Host and USA have various operating leases for
facilities and equipment expiring in 2001 through 2006. The Company's total
rental expense was $2,505 and $1,843 for the years ended June 30, 2001 and 2000,
respectively, $226 and $263 for the six months ended June 30, 1999 and 1998,
respectively, and $481 for the year ended December 31, 1998. The minimum annual
rental commitments under these and other leases with an original lease term
exceeding one year are $2,498, $1,866, $1,409, $1,215 and $1,213 for the years
ending June 30, 2002, 2003, 2004, 2005 and 2006, respectively, and $1,279
thereafter.
The Company is involved in various claims and legal actions arising in the
ordinary course of business. In the opinion of management, the ultimate
disposition of these matters will not have a significant effect on the Company's
consolidated financial position or results of operations.
55
18. SEGMENT DATA (UNAUDITED)
Following the Host-USA Acquisition, the Company had four business segments
associated with its continuing operations that provide different products or
services: (a) marketing and production services, which primarily includes
services rendered in connection with college athletics ("Collegiate Marketing
and Production Services"); (b) event management and marketing services
("Affinity Events"); (c) association management services ("Affinity Management
Services"); and (d) consulting services ("Consulting"). A fifth business
segment, associated with computer printer manufacturing and related sales and
services, has been classified as a discontinued segment. Information for each of
the Company's segments associated with continuing operations is presented below.
Operating results for the Collegiate Marketing and Production Services, Affinity
Events and Affinity Management Services segments presented for the year ended
June 30, 2000 only include results for the period December 17, 1999 (the date of
the Host-USA Acquisition) through June 30, 2000.
YEARS ENDED SIX MONTHS ENDED
June 30, June 30, YEAR ENDED
------------------------ ----------------------- December 31,
2001 2000 1999 1998 1998
--------- --------- --------- --------- ---------
Net revenues, continuing
operations:
Collegiate Marketing and
Production Services $ 85,019 $ 54,443 $ $ $
Affinity Events 24,177 11,312
Affinity Management Services 11,117 4,934
Consulting 24 1,311 609 652 1,618
--------- --------- --------- --------- ---------
$ 120,337 $ 72,000 $ 609 $ 652 $ 1,618
========= ========= ========= ========= =========
Operating income (loss):
Collegiate Marketing and
Production Services $ 4,795 $ 4,354 $ $ $
Affinity Events (3,837) (2,551)
Affinity Management Services 1,681 568
Consulting 24 1,311 609 652 1,618
Amortization of acquisition
intangibles (4,267) (2,602)
Unallocated general and
administrative costs (2,274) (3,010) (693) (691) (1,312)
--------- --------- --------- --------- ---------
$ (3,878) $ (1,930) $ (84) $ (39) $ 306
========= ========= ========= ========= =========
56
YEAR ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30, YEAR ENDED
----------------- ------------------ DECEMBER 31,
2001 2000 1999 1998 1998
------ ------ ------ ------- -------
Depreciation expense, continuing operations:
Collegiate Marketing and
Production Services $ 901 $ 692 $ $ $
Affinity Events 634 176
Affinity Management Services 109 181
Unallocated general and
administrative costs 6 5 2 2 4
------ ------ ------ ------- -------
$1,650 $1,054 $ 2 $ 2 $ 4
====== ====== ====== ======= =======
Capital expenditures, continuing operations:
Collegiate Marketing and
Production Services $ 647 $ 910 $ $ $
Affinity Events 656 47
Affinity Management Services 77 182
Unallocated general and
administrative expenditures 3 7 10
------ ------ ------ ------- -------
$1,383 $1,146 $ 10 $ 0 $ 0
====== ====== ====== ======= =======
JUNE 30,
---------------------
2001 2000
-------- --------
Total assets, continuing operations:
Collegiate Marketing and Production Services $ 27,852 $ 31,811
Affinity Events 11,499 7,151
Affinity Management Services 7,603 9,917
Investments in affiliated companies 50,399 64,782
Goodwill, customer base and trademarks 82,888 88,342
Net assets of discontinued segment 2,582 10,671
Other 23,715 9,632
-------- --------
$206,538 $222,306
======== ========
57
SUPPLEMENTARY DATA
SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
(Dollars and shares in thousands, except per share amounts)
QUARTERS ENDED
--------------------------------------------------
SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30,
2000 2000 2001 2001
-------- -------- -------- --------
Revenue from services rendered $ 23,983 $ 35,905 $ 35,645 $ 24,804
Operating income (loss) (3,947) 2,180 (1,136) (975)
Income (loss) from continuing operations
before cumulative effect of accounting change (5,710) (33) (5,726) (6,115)
Cumulative effect of accounting change (1,120)
Income (loss) from continuing operations (6,830) (33) (5,726) (6,115)
Income (loss) from discontinued operations 0 0 0 0
Net income (loss) (6,830) (33) (5,726) (6,115)
Income (loss) from continuing operations before
cumulative effect per share:
Basic $ (0.16) $ (0.00) $ (0.16) $ (0.17)
Diluted $ (0.16) $ (0.00) $ (0.16) $ (0.17)
Income (loss) from continuing operations per share:
Basic $ (0.19) $ (0.00) $ (0.16) $ (0.17)
Diluted $ (0.19) $ (0.00) $ (0.16) $ (0.17)
Earnings (loss) per share:
Basic $ (0.19) $ (0.00) $ (0.16) $ (0.17)
Diluted $ (0.19) $ (0.00) $ (0.16) $ (0.17)
Weighted average number of shares:
Basic 35,085 35,085 35,213 35,844
Diluted 35,085 35,085 35,213 35,844
SEPTEMBER 30, DECEMBER 31, MARCH 31, JUNE 30,
1999 1999 2000 2000
-------- -------- -------- --------
Revenue from services rendered $ 670 $ 6,720 $ 39,426 $ 25,184
Operating income (loss) 270 (354) 1,088 (2,934)
Income (loss) from continuing operations 48 (12,481) (1,910) (6,642)
Income (loss) from discontinued operations 460 (56) (141) (7,102)
Net income (loss) 508 (12,537) (2,051) (13,744)
Income (loss) from continuing operations per share:
Basic $ 0.00 $ (0.52) $ (0.06) $ (0.19)
Diluted $ 0.00 $ (0.52) $ (0.06) $ (0.19)
Earnings (loss) per share:
Basic $ 0.02 $ (0.52) $ (0.06) $ (0.39)
Diluted $ 0.02 $ (0.52) $ (0.06) $ (0.39)
Weighted average number of shares:
Basic 22,467 24,080 34,700 34,928
Diluted 23,310 25,321 34,700 34,928
The selected quarterly financial data presented above for each of the quarters
in the year ended June 30, 2001 have been restated for the effects of the
correction of errors discussed in Note 2. For the quarter ended September 30,
2000, the previously reported cumulative effect of accounting change was $3,120.
For each of the quarters ended September 30, 2000, December 31, 2000, March 31,
2001 and June 30, 2001, the previously reported amounts of income (loss) from
continuing operations and net income (loss) was $(2,550), $(1,188), $(5,726) and
$(6,115), respectively, or $(.16), $(.03), $(.16) and $(.17) per share (basic
and diluted), respectively. The selected quarterly financial data presented
above for
58
each of the quarters in the year ended June 30, 2000 have been restated for the
effects of the correction of errors discussed in Note 2. For each of the
quarters ended September 30, 1999, December 31, 1999, March 31, 2000 and June
30, 2000, the previously reported amounts of income (loss) from continuing
operations was $23, $(11,278), $(1,935) and $(6,667), respectively, or $.00,
$(.47), $(.06) and $(.19) per share (basic and diluted), respectively; and the
previously reported net income (loss) was $483, $(11,334), $(2,076) and
$(13,709), respectively, or $.02, $(.47), $(.06) and $(.39) per share (basic and
diluted), respectively.
59
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
(a) Previous independent accountants
(i) On August 7, 2001 Ernst & Young LLP was dismissed as the
Company's principal accountant.
(ii) The reports of Ernst & Young LLP on the Company's financial
statements for the year ended June 30, 2000, the six months
ended June 30, 1999 and the year ended December 31, 1998 did
not contain an adverse opinion or a disclaimer of opinion, and
were not qualified or modified as to uncertainty, audit scope
or accounting principles, except for the reference to the
reports of Arthur Andersen LLP on the financial statements of
Rawlings Sporting Goods Company, Inc. ("Rawlings," a
corporation in which the Company has a 10% interest), which
reports were furnished to Ernst & Young LLP. Insofar as Ernst
& Young's opinion on the Company's consolidated financial
statements related to data included for Rawlings, Ernst &
Young's opinion was based solely on the report of Rawlings'
auditors, Arthur Andersen LLP.
(iii) The decision to change accountants was recommended by the
Company's Audit Committee and approved by the Company's Board
of Directors.
(iv) During the year ended June 30, 2000, the six months ended June
30, 1999 and the year ended December 31, 1998 and through
August 7, 2001, there were no disagreements with Ernst & Young
LLP on any matter of accounting principles or practices,
financial statement disclosures or audit scope or procedure,
which disagreements if not resolved to the satisfaction of
Ernst & Young LLP would have caused them to make reference
thereto in their reports on the financial statements for such
periods.
(v) During the year ended June 30, 2000, the six months ended June
30, 1999 and the year ended December 31, 1998 and through
August 7, 2001, there have occurred none of the "reportable
events" listed in Item 304(a)(1)(v) of Regulation S-K.
(b) New independent accountants
The Company has retained PricewaterhouseCoopers LLP as its principal
independent accountants, effective August 7, 2001.
60
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Except for the information stated below, the information required by the
item is set forth under the caption "Election of Directors - Nominees" in the
Company's Proxy Statement to be dated on or about October 19, 2001, which is
incorporated by reference herein.
In addition to Messrs. Robinson, Prather and Howell, who are listed in the
Company's Proxy Statement to be dated on or about October 19, 2001, which is
incorporated by reference herein, the Company has the following executive
officer:
FREDERICK J. ERICKSON, 42, has been Vice President - Finance, Treasurer
and Chief Financial Officer of the Company since 1994; Executive Vice President
- Finance & Administration of Datasouth since 1997; and Vice President - Finance
& Administration of Datasouth since 1993. He was interim Chief Financial Officer
of Gray from March to September 1998, and was employed by Coopers & Lybrand from
1981 to 1993 as a certified public accountant.
ITEM 11. EXECUTIVE COMPENSATION
The information required by the item is set forth under the caption
"Management Compensation" in the Company's Proxy Statement to be dated on or
about October 19, 2001, which is incorporated by reference herein.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by the item is set forth under the caption
"Principal Stockholders" in the Company's Proxy Statement to be dated on or
about October 19, 2001, which is incorporated by reference herein.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by the item is set forth under the caption
"Certain Transactions" in the Company's Proxy Statement to be dated on or about
October 19, 2001, which is incorporated by reference herein.
61
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) List of documents filed as part of this report:
(1) Financial Statements and Related Independent Accountants'
Reports:
The following consolidated financial statements of the Company
and Report of Independent Accountants are included in Item 8:
Reports of Independent Accountants
Consolidated Balance Sheets at June 30, 2001 and 2000
Consolidated Statements of Operations for the years ended
June 30, 2001 and 2000, the six months ended June 30,
1999 and 1998 (unaudited), and the year ended
December 31, 1998
Consolidated Statements of Stockholders' Equity for the
years ended June 30, 2001 and 2000, the six months
ended June 30, 1999 and the year ended December 31,
1998
Consolidated Statements of Cash Flows for the years ended
June 30, 2001 and 2000, the six months ended June 30,
1999 and 1998 (unaudited) and the year ended December
31, 1998
Notes to Consolidated Financial Statements
Supplementary Data, Selected Quarterly Financial Data
(Unaudited)
The report of independent auditors on the consolidated
financial statements of Gray Communications Systems, Inc. dated
January 29, 2001, except as to Restatement of Financial
Statements of Note E as to which the date is October 10, 2001,
filed on page F-1 of this Form 10-K Annual Report.
The report of independent public accountants on the
consolidated financial statements of Rawlings Sporting Goods
Company, Inc. dated November 15, 2000, filed on page F-2 of
this Form 10-K Annual Report.
(2) The following consolidated financial statement schedule of Bull
Run Corporation is included in Item 14(d):
Schedule II - Valuation and qualifying accounts
All other schedules for which provision is made in the
applicable accounting regulation of the Securities and Exchange
Commission are not required under the related instructions or
are inapplicable and therefore have been omitted.
(b) Reports on Form 8-K
None
62
(c) Exhibits
Exhibit
Numbers Description
------- -----------
(2.1) Restated Agreement and Plan of Merger, dated as of February
15, 1999, by and among Bull Run Corporation (formerly, BR
Holding, Inc.), BR Holding, Inc. (formerly, Bull Run
Corporation), Capital Sports Properties, Inc., Host
Communications, Inc., Universal Sports America, Inc., Capital
Merger Sub, Inc., Host Merger Sub, Inc., and USA Merger Sub,
Inc. (g)
(2.2) Form of Agreement and Plan of Merger, by and among Bull Run
Corporation (formerly, BR Holding, Inc.), BR Holding, Inc.
(formerly, Bull Run Corporation) and a wholly owned subsidiary
of Bull Run Corporation (formerly, BR Holding, Inc.) (g)
(3.1) Articles of Incorporation (a)
(3.2) Certificate of Amendment to Articles of Incorporation, filed
November 29, 1994 (a)
(3.3) Bylaws of the Registrant (a)
(3.4) Articles of Incorporation of Bull Run Corporation (formerly,
BR Holding, Inc.) (g)
(3.5) Bylaws of Bull Run Corporation (formerly, BR Holding, Inc.)
(g)
(10.1) Amended and Restated 1994 Long Term Incentive Plan (g)
(10.2) Non-Employee Directors' 1994 Stock Option Plan (a)
(10.3) 1987 Non-Qualified Stock Option Plan (b)
(10.4) Form of Stockholders' Agreement, by and among Hilton H.
Howell, Jr., Douglas L. Jarvie, Robinson-Prather Partnership,
W. James Host and Charles L. Jarvie (g)
(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, and Bank of
America, N.A. and Bank One, Kentucky, N.A., 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 July 27, 2001 (x)
(10.6) First Amendment to Amended and Restated Credit Agreement,
dated October 5, 2001 (x)
(10.7) Gray Communications Systems, Inc. Warrant dated September 24,
1996 (731,250 shares of Gray class A common stock) (c)
(10.8) Gray Communications Systems, Inc. Warrant dated September 24,
1996 (375,000 shares of Gray class A common stock) (c)
(10.9) Investment Purchase Agreement dated November 21, 1997 by and
between Rawlings Sporting Goods Company, Inc. and Bull Run
Corporation (d)
(10.10) Common Stock Purchase Warrant dated November 21, 1997 issued
by Rawlings Sporting Goods Company, Inc. to Bull Run
Corporation (d)
(10.11) Standstill Agreement dated November 21, 1997 by and between
Rawlings Sporting Goods Company, Inc. and Bull Run Corporation
(d)
(10.12) Amendment Number One to Standstill Agreement dated April 23,
1999 by and between Rawlings Sporting Goods Company, Inc. and
Bull Run Corporation (f)
(10.13) Registration Rights Agreement dated November 21, 1997 by and
between Rawlings Sporting Goods Company, Inc. and Bull Run
Corporation (d)
63
Exhibit
Numbers Description
------- -----------
(10.14) Stock Purchase Agreement dated January 28, 1999 by and between
U.S. Trust Company of Florida Savings Bank, as Personal
Representative of the Estate of Mary Tarzian and Bull Run
Corporation (e)
(21) List of Subsidiaries of Registrant (x)
(23.1) Consent of PricewaterhouseCoopers LLP - Bull Run Corporation
(x)
(23.2) Consent of Ernst & Young LLP - Bull Run Corporation (x)
(23.3) Consent of Ernst & Young LLP - Gray Communications Systems,
Inc. (x)
(23.4) Consent of Arthur Andersen LLP - Rawlings Sporting Goods
Company, Inc. (x)
(a) Filed as an exhibit to Registration Statement on Form S-4 (Registration No.
33-81816), effective November 3, 1994 and incorporated by reference herein
(b) Filed as an exhibit to Form 10-K Annual Report for the year ended December
31, 1988 and incorporated by reference herein
(c) Filed as an exhibit to Form 10-KSB Annual Report for the year ended December
31, 1996 and incorporated by reference herein
(d) Filed as an exhibit to Form 8-K Current Report dated as of November 21, 1997
and incorporated by reference herein
(e) Filed as an exhibit to Form 8-K Current Report dated as of January 28, 1999
and incorporated by reference herein
(f) Filed as an exhibit to Form 8-K Current Report dated as of April 23, 1999
and incorporated by reference herein
(g) Filed as an exhibit to Registration Statement on Form S-4 (Registration No.
333-84833), effective August 11, 1999 and incorporated by reference herein
(x) Filed herewith
(d) Financial Statement Schedules
The response to this section is submitted as part of Item 14(a)(1) and
Item 14(a)(2).
64
SIGNATURES
Pursuant to the requirements of Section 13 of 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized, on October 12, 2001.
BULL RUN CORPORATION
by: /s/ ROBERT S. PRATHER, JR.
--------------------------------------
Robert S. Prather, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ ROBERT S. PRATHER, JR. President, Chief October 12, 2001
----------------------------- Executive Officer and
Robert S. Prather, Jr. Director
(Principal Executive
Officer)
/s/ GERALD N. AGRANOFF Director October 12, 2001
-----------------------------
Gerald N. Agranoff
/s/ JAMES W. BUSBY Director October 12, 2001
-----------------------------
James W. Busby
/s/ FREDERICK J. ERICKSON Vice President - Finance October 12, 2001
----------------------------- and Treasurer
Frederick J. Erickson (Principal Accounting and
Financial Officer)
/s/ W. JAMES HOST Director October 12, 2001
-----------------------------
W. James Host
/s/ HILTON H. HOWELL, JR. Vice President, Secretary October 12, 2001
----------------------------- and Director
Hilton H. Howell, Jr.
/s/ MONTE C. JOHNSON Director October 12, 2001
-----------------------------
Monte C. Johnson
/s/ J. MACK ROBINSON Chairman of the Board October 12, 2001
-----------------------------
J. Mack Robinson
65
REPORT OF INDEPENDENT ACCOUNTANTS
We have audited the consolidated financial statements of Bull Run Corporation as
of June 30, 2001 and for the year then ended, and have issued our report thereon
dated October 12, 2001, included elsewhere in this Form 10-K. Our audit also
included the financial statement schedule of Bull Run Corporation listed in Item
14(a) as to information provided as of and for the year ended June 30, 2001.
This schedule is the responsibility of the Company's management. Our
responsibility is to express an opinion based on our audit. We did not audit the
financial statements of Gray Communications Systems, Inc. (a corporation in
which the Company has a 13% interest), as of December 31, 2000 and for the year
then ended, and the financial statements of Rawlings Sporting Goods Company,
Inc. (a corporation in which the Company has a 10% interest), as of August 31,
2000 and for the year then ended. Those statements were audited by other
auditors whose reports thereon have been furnished to us, and our opinion
expressed herein, insofar as it relates to the amounts for the periods ended
December 31, 2000 and August 31, 2000 included for Gray Communications Systems,
Inc. and Rawlings Sporting Goods Company, Inc., respectively, is based solely on
their reports.
In our opinion, based on our audit and the reports of other auditors, the
financial statement schedule referred to above, when considered in relation to
the basic financial statements taken as a whole, presents fairly in all material
respects the information set forth therein.
/s/ PRICEWATERHOUSECOOPERS LLP
Atlanta, Georgia
October 12, 2001
66
REPORT OF INDEPENDENT AUDITORS
We have audited the consolidated financial statements of Bull Run Corporation as
of and for the year ended June 30, 2000, for the six months ended June 30, 1999
and for the year ended December 31, 1998, and have issued our report thereon
dated September 28, 2000 (except for Note 4 as to which the date is July 26,
2001 and Notes 2 and 10 as to which the date is October 11, 2001), included
elsewhere in this Form 10-K. Our audits also included the financial statement
schedule of Bull Run Corporation listed in Item 14(a) as to information provided
as of and for the year ended June 30, 2000. This schedule is the responsibility
of the Company's management. Our responsibility is to express an opinion based
on our audits. The financial statements of Rawlings Sporting Goods Company,
Inc., (a corporation in which the Company has a 10% interest), as of August 31,
1999 and 1998 and for the years then ended, have been audited by other auditors
whose report has been furnished to us; insofar as our opinion relates to data
included for Rawlings Sporting Goods Company, Inc., it is based solely on their
report.
In our opinion, based on our audits and the report of other auditors, the
financial statement schedule referred to above, when considered in relation to
the basic financial statements taken as a whole, presents fairly in all material
respects the information set forth therein.
/s/ ERNST & YOUNG LLP
Charlotte, North Carolina
September 28, 2000
67
BULL RUN CORPORATION
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
Additions
---------------------------
Balance at Charged to Charged to Balance at
Beginning Costs and Other End of
Description Of Period Expenses Accounts(1) Deductions(2) Period
----------- ---------- ---------- ----------- ----------- ------------
YEAR ENDED JUNE 30, 2001
Allowance for
doubtful accounts $1,155,000 $ 576,000 $ 0 $1,186,000 $ 545,000
YEAR ENDED JUNE 30, 2000
Allowance for
doubtful accounts $ 0 $ 267,000 $1,999,000 $1,111,000 $1,155,000
There was no allowance for doubtful accounts reported for continuing operations
prior to the year ended June 30, 2000.
(1) Represents amounts recorded in connection with the Host-USA Acquisition
during the year ended June 30, 2000.
(2) "Deductions" represent write-offs of amounts not considered collectible.
68
REPORT OF INDEPENDENT AUDITORS
Board of Directors and Stockholders
Gray Communications Systems, Inc.
We have audited the consolidated balance sheet of Gray Communications
Systems, Inc., as of December 31, 2000 and the related consolidated statements
of operations, stockholders' equity and cash flows for the year then ended (not
presented separately herein). These financial statements are the responsibility
of the Company's management. Our responsibility is to express an opinion on
these financial statements based on our audit.
We conducted our audit in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Gray
Communications Systems, Inc., at December 31, 2000, and the consolidated results
of its operations and its cash flows for the year then ended, in conformity with
accounting principles generally accepted in the United States.
As more fully described in Restatement of Financial Statements of Note E,
the Company restated certain amounts previously reported as of December 31,
2000, 1999 and 1998, and for the years ended December 31, 2000 and 1998.
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
January 29, 2001, except as to Restatement of Financial Statements of Note E
as to which the date is October 10, 2001
F-1
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
TO THE STOCKHOLDERS OF RAWLINGS SPORTING GOODS COMPANY, INC.:
We have audited the consolidated balance sheets of Rawlings Sporting Goods
Company, Inc. (a Delaware corporation) and subsidiaries (the Company) as of
August 31, 2000 and 1999 and the related consolidated statements of income,
stockholders' equity and cash flows for each of the three years in the period
ended August 31, 2000, not presented separately herein. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Rawlings Sporting Goods
Company, Inc. and subsidiaries as of August 31, 2000 and 1999, and the results
of their operations and their cash flows for each of the three years in the
period ended August 31, 2000, in conformity with accounting principles generally
accepted in the United States.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
St. Louis, Missouri
November 15, 2000
F-2
EX-10.5
3
g71872ex10-5.txt
AMENDED & RESTATED CREDIT AGREEMENT
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
2
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
600 Peachtree Street, N.E., 19th Floor, Atlanta, Georgia 30308, or such other
office as may be designated pursuant to the provisions of Section 10.1 of this
Agreement.
3
"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.
4
"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.
5
"Call Option" shall have the meaning set forth in the Robinson 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 Robinson,
the Robinson 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 Parcel 22, Block 271, Book 145
6
in the Mecklenburg County Tax Records and lying at the intersection of Phillip
Davis Drive and Stuart Andrew 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 Robinson 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
7
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;
8
(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 bill-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.
9
"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, Robinson 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 W. James Host in favor of the
Administrative Agent, in
11
substantially the form attached hereto as Exhibit C, pursuant to which James
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 choate,
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 Rawling 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
Robinson-Prather Partnership in favor of the Administrative Agent, in
substantially the form attached hereto as Exhibit G, pursuant to which the
Robinson-Prather 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 Robinson Guaranty), Liens in
favor of Robinson with respect to the Call Option Collateral (as
defined in the Robinson 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 Robinson 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.
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"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.
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"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.
"Robinson" shall mean J. Mack Robinson, a Georgia resident, and his heirs, legal
representatives, successors and assigns.
"Robinson Affiliates" shall mean the Robinson-Prather Partnership and those
other Persons set forth on Schedule 4.1(d) under the heading "Capital Stock of
the Parent owned by Robinson and Robinson Affiliates."
"Robinson Compensation Amount" shall mean the amount of any non-cash
compensation, in the form of shares of common stock of the Parent, paid to
Robinson in exchange for the Robinson Guaranty.
"Robinson 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 Robinson or any Robinson Affiliate.
"Robinson Guaranty" shall mean that certain Amended and Restated Guaranty and
Call Agreement of even date herewith between Robinson 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.
"Robinson Pledge Agreement" shall mean that certain Amended and Restated
Robinson Pledge Agreement of even date herewith executed by Robinson in favor of
the Administrative Agent, substantially in the form of Exhibit M attached
hereto, pursuant to which Robinson 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.
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"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
Cris Carrico in an original principal amount of $590,000, and (ii) that certain
Promissory Note issued by Streetball Partners International, Inc., in favor of
Dan Cramer 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
21
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'
22
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
23
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 Robinson 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 Robinson 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 Robinson 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 Robinson 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 Robinson 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 Robinson pursuant to the Robinson 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 Robinson Guaranty duly executed by
Robinson;
(x) The legal opinions of Alston & Bird LLP,
counsel to the Parent, Bull Run, Capital and Datasouth, and Dinsmore & 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 Robinson's Unrestricted
Investments (as defined in the Robinson 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
Robinson 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 Robinson and the Robinson 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.
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(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
Gray 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.
53
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.
57
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 Gray
Communications Systems, Inc., the face value) of (i) all shares of Class A and B
common stock of Gray Communications Systems, Inc., (ii) all warrants to purchase
shares of Class A and Class B common stock of Gray Communications Systems, Inc.,
(iii) all shares of preferred stock of Gray 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 Robinson-Prather
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 Robinson Guaranty),
Indebtedness in favor of Robinson 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 Moody's 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 Moody's
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 Gray
Communications Systems, Inc., owned by it to Gray Communications Systems, Inc.,
in connection with the redemption of such shares by Gray 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
Sarkes Tarzian, Inc., owned by it pursuant to a certain Option Agreement between
Bull Run and Gray 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 Robinson 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
Robinson 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
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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 Robinson 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 Robinson pursuant to the Robinson 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 Robinson pursuant to the Robinson 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
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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
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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
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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
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(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 Robinson Guaranty), against the
Call Option Collateral (as defined in the Robinson Guaranty) in accordance with
the terms and conditions of the Robinson 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:
4370 Peachtree Road, N.E.
Atlanta, Georgia 30319-3099
Attn: Robert S. Prather, Jr.
President and CEO
Telecopy No.: (404) 261-9607
with copies to:
Alston & Bird, LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attn: Rick Blumen
Telecopy No.: (404) 881-4777
and
4216 Stuart Andrew Blvd.
Charlotte, North Carolina 28226
Attn: Frederick J. Erickson
Vice President Finance
Telecopy No.: (704) 525-1301
and
J. Mack Robinson
c/o Delta Life Insurance Company
4370 Peachtree Road, N.E.
Atlanta, Georgia 30319-3099
Telecopy No.: (404) 231-2123
(ii) If to the Administrative Agent, to it at:
Bank of America, N.A.
600 Peachtree Street, N.E., 19th Floor
Atlanta, Georgia 30308
Telecopy No.: (404) 607-6323
and
Bank of America, N.A.
Agency Services
One Independence Center
101 N. Tryon Street
Charlotte, North Carolina 28255-0001
Telecopy No.: (704) 409-0029
with a copy to:
Paul, Hastings, Janofsky & Walker, LLP
600 Peachtree Street, N.E., Suite 2400
Atlanta, Georgia 30308
Attn: Chris D. Molen, Esq.
Telecopy No.: (404) 815-2424
(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
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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]
87
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/ FREDERICK J. ERICKSON
--------------------------------------------
Name: Frederick J. Erickson
-------------------------------------------
Title: Vice President - Finance
------------------------------------------
CAPITAL SPORTS PROPERTIES, INC.
By: /s/ FREDERICK J. ERICKSON
--------------------------------------------
Name: Frederick J. Erickson
-------------------------------------------
Title: Vice President
------------------------------------------
HOST COMMUNICATIONS, INC.,
By: /s/ FREDERICK J. ERICKSON
--------------------------------------------
Name: Frederick J. Erickson
-------------------------------------------
Title: Vice President
------------------------------------------
DATASOUTH COMPUTER CORPORATION
By: /s/ FREDERICK J. ERICKSON
--------------------------------------------
Name: Frederick J. Erickson
-------------------------------------------
Title: Executive VP - Finance & Administration
------------------------------------------
GUARANTOR: BULL RUN CORPORATION
By: /s/ FREDERICK J. ERICKSON
---------------------------------------------
Name: Frederick J. Erickson
-------------------------------------------
Title: Vice President - Finance
------------------------------------------
88
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ SCOTT E. REED
---------------------------------------------
Name: Scott E. Reed
-------------------------------------------
Title: Senior Vice President
------------------------------------------
SYNDICATION AGENT: FIRST UNION NATIONAL BANK
By: /s/ JOHN L. THOMAS
---------------------------------------------
Name: John L. Thomas
-------------------------------------------
Title: Vice President
------------------------------------------
ISSUING BANKS: BANK OF AMERICA, N.A.
By: /s/ SCOTT E. REED
---------------------------------------------
Name: Scott E. Reed
-------------------------------------------
Title: Senior Vice President
------------------------------------------
89
BANK ONE, KENTUCKY, NA
By: /s/ MARK BOISON
---------------------------------------------
Name: Mark Boison
-------------------------------------------
Title: First Vice President
------------------------------------------
LENDERS: BANK OF AMERICA, N.A.
By: /s/ SCOTT E. REED
---------------------------------------------
Name: Scott E. Reed
-------------------------------------------
Title: Senior Vice President
------------------------------------------
BANK ONE, KENTUCKY, NA
By: /s/ MARK BOISON
---------------------------------------------
Name: Mark Boison
-------------------------------------------
Title: First Vice President
------------------------------------------
FIRST UNION NATIONAL BANK
By: /s/ JOHN L. THOMAS
---------------------------------------------
Name: John L. Thomas
-------------------------------------------
Title: Vice President
------------------------------------------
WACHOVIA BANK, N.A.
By: /s/ WILLIAM W. TEEGARDEN
---------------------------------------------
Name: William W. Teegarden
-------------------------------------------
Title: Senior Vice President
------------------------------------------
90
EX-10.6
4
g71872ex10-6.txt
1ST AMENDMENT/AMENDED & RESTATED CREDIT AGREEMENT
EXHIBIT 10.6
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AS OF OCTOBER 5, 2001
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is made as of this 5th day of October, 2001, by and among BR
HOLDING, INC., a Georgia corporation ("BR Holding"), CAPITAL SPORTS PROPERTIES,
INC., a Delaware corporation ("Capital"), HOST COMMUNICATIONS, INC., a Kentucky
corporation ("Host") and DATASOUTH COMPUTER CORPORATION, a Delaware corporation
("Datasouth" and together with BR Holding, Capital and Host, the "Borrowers"),
as Borrowers, BULL RUN CORPORATION, a Georgia corporation (the "Parent"), as a
Guarantor, THE LENDERS SIGNATORY HERETO (collectively, the "Lenders"), BANK OF
AMERICA, N.A. and BANK ONE, KENTUCKY, NA, as Issuing Banks (collectively, the
"Issuing Banks"), FIRST UNION NATIONAL BANK, as Syndication Agent for the
Issuing Banks and the Lenders (the "Syndication Agent"), and BANK OF AMERICA,
N.A., as Administrative Agent for the Issuing Banks and the Lenders (the
"Administrative Agent").
RECITALS
WHEREAS, the Borrowers, the Parent, the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent are parties to that
certain Amended and Restated Credit Agreement dated as of July 27, 2001 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), pursuant to which the Lenders have agreed to make one or
more loans from time to time to the Borrowers in accordance with the terms and
conditions thereof; and
WHEREAS, the Borrowers have informed the Administrative Agent
that the Borrowers have breached certain representations, warranties and
covenants required by the Credit Agreement as a result of the restatement of the
Borrowers' financial statements for the period from December 31, 1996 through
and including July 31, 2001 due to errors in the Parent's consolidated financial
statements resulting in an overstatement of the Parent and its Subsidiaries
consolidated investment in Gray Communications Systems, Inc. and stockholders
equity, and understatement of the deferred income tax net asset (the "Financial
Statement Defaults"); and
WHEREAS, the Borrowers have failed to deliver to the
Administrative Agent and the Lenders on or before September 30, 2001, the
monthly financial statements of the Borrowers for the month ending August 31,
2001, as required by Section 6.1 of the Credit Agreement, resulting in an Event
of Default under Section 8.1(c) of the Credit Agreement (the "Monthly Financial
Reporting Default"); and
WHEREAS, the Borrowers have failed to deliver to the
Administrative Agent and the Lenders on or before September 30, 2001, the annual
financial statements of the Borrowers for the fiscal year ending June 30, 2001,
as required by Section 6.3 of the Credit Agreement, resulting in an Event of
Default under Section 8.1(c) of the Credit Agreement (the "Annual Financial
Reporting Default"); and
WHEREAS, the Borrowers have failed to deliver to the
Administrative Agent and the Lenders on or before September 30, 2001, the
performance certificate in conjunction with the June 30, 2001 financial
statements as required by Section 6.4 of the Credit Agreement, resulting in an
Event of Default under Section 8.1(c) of the Credit Agreement (the "Performance
Certificate Default"); and
2
WHEREAS, the Borrowers have requested that the Lenders, the
Issuing Banks, the Syndication Agent and the Administrative Agent waive the
Financial Statement Defaults, the Monthly Financial Reporting Default, the
Annual Financial Reporting Default and the Performance Certificate Default
(collectively, the "Specified Events of Default") and forebear from exercising
their rights and remedies arising under the Credit Agreement and the other Loan
Documents as a result of such Specified Events of Default, and subject to the
terms and conditions set forth herein, the Lenders, the Issuing Banks, the
Syndication Agent and the Administrative Agent have agreed to grant such waiver
effective through and including October 15, 2001; and
WHEREAS, the Borrowers have further requested that the
Lenders, the Issuing Banks, the Syndication Agent and the Administrative Agent
consent to certain amendments to the Credit Agreement, and the Lenders, the
Issuing Banks, the Syndication Agent and the Administrative Agent have agreed to
do so to the extent set forth herein;
NOW, THEREFORE, in consideration of the premises, the
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto do hereby agree that all capitalized terms used herein shall have
the meanings ascribed thereto in the Credit Agreement as amended hereby (except
as otherwise expressly defined or limited herein) and do hereby further agree as
follows:
1. AMENDMENT TO SECTION 7.10. Section 7.10 of the Credit Agreement,
Minimum Net Worth, is hereby modified and amended effective July 27, 2001 by
deleting the reference to "$53,000,000" and by substituting "$40,000,000" in
lieu thereof.
2. CONSENT. Notwithstanding anything to the contrary contained in the
Credit Agreement or any other Loan Document, the Lenders hereby consent to the
making of those Advances identified in the table set forth below, which Advances
were made based on the estimate of the Borrowing Base as of August 31, 2001,
provided to the Administrative Agent and the Lenders by the Borrowers in a
Borrowing Base Certificate dated September 4, 2001:
-------------------------------------------------------------------
AMOUNT OF ADVANCE DATE OF ADVANCE
-------------------------------------------------------------------
$850,000.00 September 4, 2001
-------------------------------------------------------------------
$2,000,000.00 September 12, 2001
-------------------------------------------------------------------
$1,000,000.00 September 14, 2001
-------------------------------------------------------------------
3. WAIVER. The Lenders, the Issuing Banks, the Syndication Agent and
the Administrative Agent hereby waive (a) the Specified Events of Default and
(b) their rights and remedies under the Credit Agreement and the other Loan
Documents which may arise as a result of the Specified Events of Default, during
the period from September 30, 2001 through and including October 15, 2001, and
in the event that the Borrowers shall deliver the monthly financial statements
of the Borrowers for the month ending August 31, 2001, the annual financial
statements of the Borrowers for the fiscal year ending June 30, 2001,
3
and the performance certificate in conjunction with the June 30, 2001 financial
statements as required by Section 6.4 of the Credit Agreement on or before
October 15, 2001, the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent hereby agree that no Events of Default shall then exist in
respect of the Specified Events of Default and the Lenders, the Issuing Banks,
the Syndication Agent and the Administrative Agent shall be deemed to have
waived all of their rights and remedies under the Credit Agreement and the other
Loan Documents with respect to such Specified Events of Default from and after
October 15, 2001. The waivers contained in the foregoing sentence shall not
waive any other requirement or hinder, restrict or otherwise modify the rights
and remedies of the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent following the occurrence of any other present or future
Default or Event of Default (including, without limitation, any Specified Event
of Default continuing after the waiver period set forth above) under the Credit
Agreement or any other Loan Document.
4. ACKNOWLEDGEMENT. The Lenders, the Issuing Banks, the Syndication
Agent and the Administrative Agent hereby acknowledge and agree that the terms
and conditions of Section 6.6(d) of the Credit Agreement requiring the delivery
of an annual operating plan for the Borrowers and their Subsidiaries have been
met with respect to the current fiscal year of the Borrowers by the delivery of
that certain financial information, including a quarterly financial forecast for
the Parent and its Subsidiaries on a consolidated basis and an annual budget for
Host and its Subsidiaries, relating to the Borrowers and their Subsidiaries
which was provided to the Administrative Agent and the Lenders in connection
with the negotiation, execution and delivery of the Credit Agreement.
5. NO OTHER AMENDMENTS, CONSENTS OR WAIVERS. Except for the amendments,
consents and waivers expressly set forth and referred to above, the text of the
Credit Agreement and the other Loan Documents shall remain unchanged and in full
force and effect, and the Lenders, the Issuing Banks, the Syndication Agent and
the Administrative Agent hereby reserve the right to require strict compliance
with the terms and conditions of the Credit Agreement and the other Loan
Documents in the future. Nothing in this Amendment is intended, or shall be
construed, to constitute a novation or an accord and satisfaction of any of the
Obligations or to modify, affect or impair the perfection or continuity of the
Administrative Agent's security interests in, security titles to or other Liens
on any Collateral for the Obligations.
6. REPRESENTATIONS AND WARRANTIES. To induce the Lenders, the Issuing
Banks, the Syndication Agent and the Administrative Agent to enter into this
Amendment, each of the Borrowers hereby warrants, represents and covenants to
the Lenders, the Issuing Banks, the Syndication Agent and the Administrative
Agent that: (a) each representation or warranty of the Borrowers set forth in
the Credit Agreement is hereby restated and reaffirmed as true and correct on
and as of the date of this Amendment, and after giving effect to this Amendment,
as if such representation or warranty were made on and as of the date of, and
after giving effect to, this Amendment (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period); (b) such Borrower has the corporate power and authority to (i) enter
into this Amendment and (ii) do all acts and things as are required or
contemplated hereunder to be done, observed and performed by such Borrower; (c)
this Amendment has been duly authorized, validly executed and delivered by such
Borrower, and constitutes the legal, valid and binding obligation of such
Borrower, enforceable against it in accordance with its terms; (d) the execution
and delivery of this Amendment and performance by such Borrower under the Credit
Agreement, does not and will not require the consent or approval of any
regulatory authority or governmental
4
authority or agency having jurisdiction over such Borrower which has not already
been obtained, nor contravene or conflict with the charter documents of such
Borrower, or the provision of any statute, judgment, order, indenture,
instrument, agreement or undertaking, to which such Borrower is a party or by
which any of its properties are or may become bound; and (e) as of the date
hereof and after giving effect to the amendments, consents and waivers contained
in this Amendment, no Default or Event of Default under the Credit Agreement has
occurred and is continuing. The Borrowers, the Lenders, the Issuing Banks, the
Syndication Agent and the Administrative Agent hereby ratify and affirm all of
the terms and conditions of the Credit Agreement and the Loan Documents
applicable to each of them, including, without limitation, the Borrowers' joint
and several liability for the Obligations. The parties hereto have not entered
into a mutual disregard of the terms and provisions of the Credit Agreement or
the other Loan Documents, or engaged in any course of dealing in variance with
the terms and provisions of the Credit Agreement or the other Loan Documents,
within the meaning of any applicable law of the State of Georgia or otherwise.
7. REIMBURSEMENT OF COSTS AND EXPENSES. The Borrowers hereby jointly
and severally agree to reimburse the Lenders, the Issuing Banks, the Syndication
Agent and the Administrative Agent on demand for all costs (including, without
limitation, reasonable attorneys' fees) incurred by such parties in negotiating,
documenting and consummating this Amendment, the other documents referred to
herein, and the transactions contemplated hereby and thereby.
8. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall be effective as of the date first written above (the "Effective
Date") upon the Administrative Agent's receipt of one or more duly executed
counterparts of this Amendment signed by the Borrowers, the Parent and each of
the Lenders, and upon the occurrence of each of the following terms and
conditions:
(a) The effectiveness of this Amendment is subject to the truth and
accuracy in all respects of the representations and warranties of the Borrowers
contained in Section 6 above.
(b) No Default or Event of Default shall have occurred and be
continuing which is not waived hereby.
(c) The Administrative Agent shall have received such other
information, documents, instruments or approvals as the Administrative Agent or
its counsel may require.
9. RELEASE. Each of the Parent and the Borrowers hereby waives and
releases each of the Lenders, the Issuing Banks, the Syndication Agent and the
Administrative Agent from any and all claims and defenses with respect to the
Credit Agreement, the Notes and any and all documents, instruments,
certificates, notes, bonds, or other agreements executed in connection
therewith, except in the case of willful misconduct or gross negligence on the
part of such Person.
10. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to "the Credit
Agreement," "thereunder," "thereof" or words of like import referring to the
Credit
5
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby. This Amendment shall be deemed to be a Loan Document for all purposes.
11. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
12. GOVERNING LAW. This Amendment shall be governed by, and construed
in accordance with, the internal laws of the State of Georgia applicable to
contracts made and performed in such state.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
6
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year specified at
the beginning hereof.
BORROWERS: BR HOLDING, INC.
By: /s/ FREDERICK J. ERICKSON
---------------------------------
Name: Frederick J. Erickson
------------------------------
Title: Vice President - Finance
-----------------------------
CAPITAL SPORTS PROPERTIES,
INC.
By: /s/ FREDERICK J. ERICKSON
---------------------------------
Name: Frederick J. Erickson
------------------------------
Title: Vice President
-----------------------------
HOST COMMUNICATIONS, INC.
By: /s/ FREDERICK J. ERICKSON
---------------------------------
Name: Frederick J. Erickson
------------------------------
Title: Vice President
-----------------------------
DATASOUTH COMPUTER
CORPORATION
By: /s/ FREDERICK J. ERICKSON
---------------------------------
Name: Frederick J. Erickson
------------------------------
Title: Executive VP-Finance & Admin.
-----------------------------
GUARANTOR: BULL RUN CORPORATION
By: /s/ FREDERICK J. ERICKSON
---------------------------------
Name: Frederick J. Erickson
------------------------------
Title: Vice President - Finance
-----------------------------
7
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ NANCY S. GOLDMAN
---------------------------------
Name: Nancy S. Goldman
-------------------------------
Title: Senior Vice President
------------------------------
SYNDICATION AGENT: FIRST UNION NATIONAL BANK
By: /s/ JOHN L. THOMAS
---------------------------------
Name: John L. Thomas
-------------------------------
Title: Vice President
------------------------------
ISSUING BANKS: BANK OF AMERICA, N.A.
By: /s/ NANCY S. GOLDMAN
---------------------------------
Name: Nancy S. Goldman
-------------------------------
Title: Senior Vice President
------------------------------
BANK ONE, KENTUCKY, NA
By: /s/ MARK BOISON
---------------------------------
Name: Mark Boison
-------------------------------
Title: First Vice President
------------------------------
LENDERS: BANK OF AMERICA, N.A.
By: /s/ NANCY S. GOLDMAN
---------------------------------
Name: Nancy S. Goldman
-------------------------------
Title: Senior Vice President
------------------------------
8
BANK ONE, KENTUCKY, NA
By: /s/ MARK BOISON
---------------------------------
Name: Mark Boison
-------------------------------
Title: First Vice President
------------------------------
WACHOVIA BANK, N.A.
By: /s/ WILLIAM W. TEEGARDEN
---------------------------------
Name: William W. Teegarden
-------------------------------
Title: Senior Vice President
------------------------------
FIRST UNION NATIONAL BANK
By: /s/ JOHN L. THOMAS
---------------------------------
Name: John L. Thomas
-------------------------------
Title: Vice President
------------------------------
9
EX-21
5
g71872ex21.txt
SUBSIDIARIES
EXHIBIT 21
LIST OF SUBSIDIARIES OF REGISTRANT
BR Holding, Inc., a Georgia corporation
Host Communications, Inc., a Kentucky corporation and a subsidiary of
BR Holding, Inc.
NTA On-Line Connect, Inc., a Kentucky corporation and a subsidiary of Host
Communications, Inc.
Host Insurance Agency, Inc., a Kentucky corporation and a subsidiary of
Host Communications, Inc.
Hoop-It-Up International, Inc. (DE), a Delaware corporation and a subsidiary
of Universal Sports America, Inc.
USA International, S.A.R.L., a corporation organized under the laws of France
and a subsidiary of Universal Sports America, Inc.
Capital Sports Properties, Inc., a Delaware corporation and a subsidiary of
BR Holding, Inc.
Datasouth Computer Corporation, a Delaware corporation and a subsidiary of BR
Holding, Inc.
EX-23.1
6
g71872ex23-1.txt
CONSENT PRICEWATERHOUSECOOPERS
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statements
(Form S-8 No. 33-91296, Form S-8 No. 333-56125 and Form S-8 No. 333-39700)
pertaining to the Bull Run Corporation 1994 Long Term Incentive Plan, the
Registration Statement (Form S-8 No. 33-91298) pertaining to the Bull Run
Corporation Non-Employee Directors' 1994 Stock Option Plan, and the Registration
Statement (Form S-4 No. 333-84833) pertaining to the issuance of shares of BR
Holding, Inc. of our report dated October 12, 2001, with respect to the
consolidated financial statements and schedule of Bull Run Corporation included
in the Annual Report (Form 10-K) of Bull Run Corporation for the year ended June
30, 2001, filed with the Securities and Exchange Commission.
/s/ PRICEWATERHOUSECOOPERS LLP
Atlanta, Georgia
October 12, 2001
EX-23.2
7
g71872ex23-2.txt
CONSENT ERNST & YOUNG/BULL RUN
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statements
(Form S-8 No. 33-91296, Form S-8 No. 333-56125 and Form S-8 No. 333-39700)
pertaining to the Bull Run Corporation 1994 Long Term Incentive Plan, the
Registration Statement (Form S-8 No. 33-91298) pertaining to the Bull Run
Corporation Non-Employee Directors' 1994 Stock Option Plan, and the Registration
Statement (Form S-4 No. 333-84833) pertaining to the issuance of shares of BR
Holding, Inc. of our reports dated September 28, 2000 (except for Note 4 as to
which the date is July 26, 2001 and Notes 2 and 10 as to which the date is
October 11, 2001), with respect to the consolidated financial statements and
schedule of Bull Run Corporation included in the Annual Report (Form 10-K) of
Bull Run Corporation for the year ended June 30, 2001, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
Charlotte, North Carolina
October 11, 2001
EX-23.3
8
g71872ex23-3.txt
CONSENT ERNST & YOUNG/GRAY COMMUNICATION
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report dated January 29, 2001, except as to
Restatement of Financial Statements of Note E as to which the date is October
10, 2001, with respect to the consolidated financial statements of Gray
Communications Systems, Inc., included in this Annual Report (Form 10-K) of
Bull Run Corporation for the year ended June 30, 2001.
We also consent to the incorporation by reference in the Registration Statements
(Form S-8 No. 33-91296, Form S-8 No. 333-56125 and Form S-8 No. 333-39700)
pertaining to the Bull Run Corporation 1994 Long Term Incentive Plan, the
Registration Statement (Form S-8 No. 33-91298) pertaining to the Bull Run
Corporation Non-Employee Directors' 1994 Stock Option Plan and the Registration
Statement (Form S-4 No. 333-84833) pertaining to the issuance of shares of BR
Holding, Inc. of our reports dated January 29, 2001, except as to Restatement of
Financial Statements of Note E as to which the date is October 10, 2001,with
respect to the consolidated financial statements of Gray Communications Systems,
Inc., included herein.
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
October 12, 2001
EX-23.4
9
g71872ex23-4.txt
CONSENT ARTHUR ANDERSEN
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of our
report dated November 15, 2000 to the Stockholders of Rawlings Sporting Goods
Company, Inc. included in this Form 10-K, into Bull Run Corporation's previously
filed Form S-8 Registration Statement File Nos. 33-91296, 33-91298, 333-56125
and 333-39700, and into BR Holding, Inc.'s previously filed Form S-4
Registration Statement File No. 333-84833.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
St. Louis, Missouri
October 12, 2001