Exhibit 10.2
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT ( this "Amendment"), dated as of July
30, 2002, among DOVER MOTORSPORTS, INC. (the "Borrower"), the several banks and
other financial institutions parties to the Credit Agreement (as hereinafter
defined) (individually, a "Bank"; collectively, the "Banks") and PNC BANK,
DELAWARE, as administrative agent for the Banks (in such capacity, the "Agent").
WHEREAS, the Borrower, the Banks and the Agent are parties to a Credit
Agreement dated as of February 20, 2002, as amended by a First Amendment to
Credit Agreement dated as of March 31, 2002 (as so amended, supplemented or
otherwise modified, the "Credit Agreement"); and
WHEREAS, the Borrower, the Agent, and the Banks have agreed to amend the
Credit Agreement by (i) modifying the Applicable Margin for Base Rate Loans and
Eurodollar Loans, (ii) modifying the Commitment Fee Rate, and (iii) resetting
the Leverage Ratio, all on the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined.
2. Amendment to Credit Agreement. The Credit Agreement is hereby amended
as follows effective as of June 29, 2002:
(a) The table set forth in the definition of "Applicable Margin" in
Section 1.1 is hereby amended and restated in full to read as follows:
"Level Leverage Ratio Base Rate Loan Eurodollar Loan
------ -------------- -------------- ---------------
I Less than or equal to 2.50 0% 1.75%
to 1.0
II Greater than 2.50 to 1.0 0% 2.00%
but less than or equal to
3.00 to 1.0
III Greater than 3.00 to 1.0 0.25% 2.75%
but less than or equal to
3.50 to 1.0
IV Greater than 3.50 to 1.0 0.50% 3.00%"
(b) The table set forth in the definition of "Commitment Fee Rate" in
Section 1.1 is hereby amended and restated in full to read as follows:
"Level Leverage Ratio Commitment Fee Rate
------ -------------- -------------------
I Less than or equal to 2.50 to 1.0 0.25%
II Greater than 2.50 to 1.0 but less 0.375%
than or equal to 3.00 to 1.0
III Greater than 3.00 to 1.0 but less 0.375%
than or equal to 3.50 to 1.0
IV Greater than 3.50 to 1.0 0.50%"
(c) Section 6.1(a) entitled "Leverage Ratio" is hereby amended and
restated in full to read as follows:
"(a) Leverage Ratio. Permit, as of the end of any fiscal quarter
ending during the periods specified below, the Leverage Ratio to exceed that set
forth opposite such periods:
"Period Ratio
------ -----
June 30, 2002 through December 30, 2002 4.25 to 1
December 31, 2002 through March 30, 2003 4.00 to 1
March 31, 2003 through June 29, 2003 3.25 to 1
June 30, 2003 and thereafter 2.75 to 1"
3. Representations and Warranties. The Borrower hereby represents and
warrants to the Banks and the Agent that:
(a) There exists no Default or Event of Default under the Credit
Agreement as amended hereby;
(b) The representations and warranties made in the Credit Agreement
are true and correct in all material respects on and as of the date hereof as if
made on and as of the date hereof; and
(c) The execution and delivery of this Amendment by and on behalf of
the Borrower, has been duly authorized by all requisite action on behalf of the
Borrower and this Amendment constitute the legal, valid and binding obligations
of the Borrower, enforceable
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against it in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4. Conditions Precedent. The effectiveness of the amendments set forth
herein is subject to the fulfillment, to the satisfaction of the Agent and its
counsel, of the following conditions precedent:
(a) The Borrower shall have delivered to the Agent the following, all
of which shall be in form and substance satisfactory to the Agent and shall be
duly completed and executed:
(i) This Amendment;
(ii) Copies, certified by the Secretary or an Assistant Secretary
of the Borrower, of resolutions of the Board of Directors of the Borrower in
effect on the date hereof authorizing the execution, delivery and performance of
this Amendment and the other documents and transactions contemplated hereby;
(iii) Copies, certified by one of the officers of the Borrower,
the certificate of incorporation, By-laws and fictitious name filing, if any, of
the Borrower as in effect, or a certificate stating that there have been no
changes to any such documents since the most recent date, true and correct
copies thereof were delivered to the Agent; and
(iv) Such additional documents, certificates, and information as
the Agent may require pursuant to the terms hereof or otherwise reasonably
request.
(b) The representations and warranties set forth in the Credit
Agreement shall be true and correct in all material respects on and as of the
date hereof.
(c) The Borrower shall pay to the Agent for the benefit of the Banks
an amendment and modification fee of 20 basis points (0.20%) on the amount of
each Bank's Commitment.
5. Ratification; References; No Waiver. Except as the provisions thereof
have been expressly amended or waived by this Amendment, the Credit Agreement
shall continue to be, and shall remain, unaltered and in full force and effect
in accordance with its terms. All references in the Credit Agreement and the
other Loan Documents to the Credit Agreement shall be to the Credit Agreement as
amended by this Amendment. This Amendment does not and shall not be deemed to
constitute a waiver by the Agent or the Banks of any Default or Event of Default
or of any of the Agent's or the Banks' other rights or remedies.
6. Release and Indemnity. Recognizing and in consideration of the Banks'
and the Agent's agreement to the waivers and amendments set forth herein, the
Borrower hereby waives and releases the Banks and the Agent and their respective
officers, attorneys, agents, and employees from any liability, suit, damage,
claim, loss or expense of any kind or nature whatsoever and howsoever arising
that such Borrower ever had or now has against any of them
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arising out of or relating to any Bank's or the Agent's acts or omissions with
respect to this Amendment, the Credit Agreement, the other Loan Documents or any
other matters described or referred to herein or therein. The Borrower further
hereby agrees to indemnify and hold the Agent and the Banks and their respective
officers, attorneys, agents and employees harmless from any loss, damage,
judgment, liability or expense (including counsel fees) suffered by or rendered
against the Banks or the Agent or any of them on account of anything arising out
of this Amendment, the Credit Agreement, the other Loan Documents or any other
document delivered pursuant thereto up to and including the date hereof;
provided that, no Borrower shall have any obligation hereunder to any Bank or
the Agent with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of such Bank or the Agent.
7. Miscellaneous.
(a) Expenses. The Borrower agrees to pay all of the Agent's reasonable
out-of-pocket expenses incurred in connection with the preparation, negotiation
and execution of this Amendment including, without limitation, the reasonable
fees and expenses of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP.
(b) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Delaware.
(c) Successor and Assigns. The terms and provisions of this Amendment
shall be binding upon and shall inure to the benefit of the Borrower, the Agent
and the Banks and their respective successors and assigns.
(d) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one and the same instrument.
(e) Headings. The headings of any paragraph of this Amendment are for
convenience only and shall not be used to interpret any provision hereof.
(f) Modifications. No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on behalf of
the party against whom enforcement is sought.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
DOVER MOTORSPORTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Finance
PNC BANK, DELAWARE, as Agent and as a Bank
By: /s/ Xxxxxxxx Xxxxxxxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY, as a Bank
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
ALLFIRST BANK, as a Bank
By: /s/ Xxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
WILMINGTON SAVINGS FUND SOCIETY, FSB, as a Bank
By: /s/ M. Xxxxx Xxxxxx
------------------------------------------
Name: M. Xxxxx Xxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION (formerly
known as First Union National Bank), as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
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NATIONAL CITY BANK, as a Bank
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
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