Exhibit 10.12
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CREDIT AGREEMENT
among
DOVER DOWNS ENTERTAINMENT, INC.
and
THE BANKS PARTY HERETO
and
PNC BANK, DELAWARE
as Agent
DATED AS OF FEBRUARY 20, 2002
$105,000,000
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS........................................................1
1.1 Defined Terms....................................................1
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1.2 Other Definitional Provisions...................................19
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SECTION 2. THE CREDITS.......................................................20
2.1 Revolving Credit Loans..........................................20
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2.2 Revolving Credit Loan Procedures................................20
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2.3 Swing Line Loans................................................21
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2.4 General Provisions Regarding Loans..............................22
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2.5 Letters of Credit...............................................23
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2.6 Fees............................................................27
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2.7 Notes; Repayment of Revolving Credit Loans......................28
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2.8 Interest on Revolving Credit Loans..............................28
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2.9 Default Rate; Inability to Determine Interest Rate..............28
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2.10 Termination, Reduction and Extension of Commitments.............29
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2.11 Optional and Mandatory Prepayments of Revolving Credit Loans....30
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2.12 Illegality......................................................31
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2.13 Requirements of Law.............................................31
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2.14 Taxes...........................................................32
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2.15 Indemnity.......................................................34
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2.16 Pro Rata Treatment, etc.........................................34
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2.17 Payments........................................................34
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2.18 Conversion and Continuation Options.............................35
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2.19 Use of Proceeds.................................................35
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SECTION 3. REPRESENTATIONS AND WARRANTIES....................................36
3.1 Financial Condition.............................................36
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3.2 No Adverse Change...............................................36
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3.3 Corporate Existence; Compliance with Law........................36
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3.4 Corporate Power; Authorization; Enforceable Obligations.........37
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3.5 No Legal Bar....................................................37
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3.6 No Material Litigation..........................................37
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3.7 No Default......................................................37
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3.8 Taxes...........................................................37
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3.9 Federal Regulations.............................................38
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3.10 ERISA...........................................................38
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3.11 Investment Company Act; Public Utility Holding Company Act......39
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3.12 Purpose of Loans; Letters of Credit. ...........................39
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3.13 Environmental Matters...........................................39
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3.14 No Burdensome Restrictions......................................40
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3.15 Ownership of Borrower and Subsidiaries..........................40
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3.16 Patents, Trademarks, etc........................................40
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3.17 Ownership of Property...........................................40
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3.18 Licenses, etc...................................................40
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3.19 Labor Matters...................................................40
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3.20 Material Contracts..............................................41
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3.21 Insurance.......................................................41
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3.22 Senior Debt Status..............................................41
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3.23 No Material Misstatements.......................................41
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SECTION 4. CONDITIONS PRECEDENT..............................................41
4.1 Conditions to Effectiveness.....................................41
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4.2 Conditions to Each Extension of Credit..........................43
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SECTION 5. AFFIRMATIVE COVENANTS.............................................44
5.1 Financial Statements............................................44
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5.2 Certificates; Other Information.................................45
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5.3 Payment of Obligations..........................................46
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5.4 Conduct of Business and Maintenance of Existence................46
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5.5 Maintenance of Property; Insurance..............................46
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5.6 Inspection of Property; Books and Records; Discussions..........46
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5.7 Notices.........................................................47
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5.8 Environmental Laws..............................................47
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5.9 Management Changes..............................................48
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SECTION 6. NEGATIVE COVENANTS................................................48
6.1 Financial Condition Covenants...................................48
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6.2 Limitation on Debt. At any time incur, create, assume, or
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suffer to exist any Debt except:................................49
6.3 Limitation on Liens.............................................49
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6.4 Limitations on Fundamental Changes..............................50
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6.5 Limitation on Sale of Assets....................................50
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6.6 Limitations on Acquisitions, Investments, Loans and Advances....51
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6.7 Limitation on Distributions.....................................51
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6.8 Transactions with Affiliates....................................51
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6.9 Fiscal Year.....................................................52
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6.10 Change in Business..............................................52
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6.11 Change of Control...............................................52
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6.12 Sale and Leaseback..............................................52
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6.13 Limitation on Negative Pledge Clauses...........................52
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6.14 Interest Hedge Agreements.......................................52
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SECTION 7. EVENTS OF DEFAULT.................................................52
7.1 Events of Default...............................................52
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SECTION 8. THE AGENT.........................................................55
8.1 Appointment.....................................................55
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8.2 Delegation of Duties............................................55
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8.3 Exculpatory Provisions..........................................56
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8.4 Reliance by Agent...............................................56
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8.5 Notice of Default...............................................56
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8.6 Non-Reliance on Agent and Other Banks...........................57
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8.7 Indemnification.................................................57
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8.8 Agent in its Individual Capacity................................57
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8.9 Successor Agent.................................................58
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8.10 Beneficiaries..................................................58
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SECTION 9. MISCELLANEOUS.....................................................58
9.1 Amendments and Waivers..........................................58
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9.2 Notices.........................................................59
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9.3 No Waiver; Cumulative Remedies..................................60
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9.4 Survival of Representations and Warranties......................60
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9.5 Payment of Expenses and Taxes...................................60
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9.6 Successors and Assigns..........................................61
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9.7 Disclosure of Information.......................................64
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9.8 Adjustments; Set-off............................................64
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9.9 Counterparts....................................................65
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9.10 Severability....................................................65
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9.11 Integration.....................................................65
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9.12 GOVERNING LAW...................................................66
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9.13 Submission To Jurisdiction; Waivers.............................66
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9.14 Acknowledgements................................................66
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9.15 WAIVERS OF JURY TRIAL...........................................67
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of February 20, 2002, among DOVER DOWNS
ENTERTAINMENT, INC. (the "Borrower"), the several banks and other financial
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institutions from time to time parties hereto (the "Banks"), and PNC BANK,
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DELAWARE, a Delaware state chartered bank, as agent (in such capacity, the
"Agent").
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BACKGROUND
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In consideration of the mutual covenants and agreements herein set
forth and for other consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby covenant and agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
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terms shall have the following meanings:
"Affiliate": as to any Person, any other Person which, directly or
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indirectly, through one or more intermediaries, controls, or is controlled
by, or is under common control with, such Person and any member, director,
officer or employee of any such Person. For purposes of this definition,
"control" shall mean the power, directly or indirectly, either to (a) vote
10% or more of the ordinary voting power for the election of directors of
such Person or (b) direct or in effect cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented or
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otherwise modified from time to time.
"Applicable Margin": for any Base Rate Loan or LIBOR Loan on any
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date, the percentage per annum set forth below, as applicable, opposite the
Leverage Ratio shown on the last Compliance Certificate delivered by the
Borrower to the Agent pursuant to subsection 5.2(a) prior to such date:
Level Leverage Ratio Base Rate Loan Eurodollar Loan
----- -------------- -------------- ---------------
I Less than or equal to 0% 1.25%
2.0 to 1.0
II Greater than 2.0 0% 1.50%
to 1.0 but less than or
equal to 2.5 to 1.0
III Greater than 2.5 to 1.0 0% 1.75%
but less than or
equal to 3.0 to 1.0
IV Greater than 3.0 to 1.0 0% 2.00%
but less than or
equal to 3.25 to 1.0
V Greater than 3.25 to 1.0 0.25% 2.25%
but less than or
equal to 3.50 to 1.0
VI Greater than 3.50 to 1.0 0.50% 2.50%
; provided, however, that (a) adjustments, if any, to the Applicable
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Margin resulting from a change in the Leverage Ratio shall be effective
five Business Days after the Agent has received a Compliance Certificate,
(b) in the event that no Compliance Certificate has been delivered for a
fiscal quarter prior to the last date on which it can be delivered without
violation of subsection 5.2(a), the Applicable Margin from such date until
such Compliance Certificate is actually delivered shall be that applicable
under Level VI, (c) in the event that the actual Leverage Ratio for any
fiscal quarter is subsequently determined to be greater than that set
forth in the Compliance Certificate for such fiscal quarter, the
Applicable Margin shall be recalculated for the applicable period based
upon such actual Leverage Ratio and (d) anything in this definition to the
contrary notwithstanding, until receipt by the Agent of the Compliance
Certificate for the fiscal quarter ending June 30, 2002, the Applicable
Margin shall be that applicable under Level VI. Any additional interest
on the Loans resulting from the operation of clause (c) above shall be
payable by the Borrower to the Banks within five (5) days after receipt of
a written demand therefor from the Agent.
"Application": an application in such form as the Issuing Bank
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may specify from time to time, requesting the Issuing Bank to open a
Letter of Credit.
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"Assignment and Acceptance": an assignment and acceptance entered
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into by a Bank and an assignee, and acknowledged by the Agent,
substantially in the form of Exhibit D or such other form as shall be
approved by the Agent.
"Base Rate": for any day, a rate per annum (rounded upwards, if
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necessary, to the next 1/100th of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate
in effect on such day plus 1/2%. If for any reason the Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Federal Funds Effective Rate for any
reason, including the inability of the Agent to obtain sufficient
quotations in accordance with the terms thereof, the Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no longer
exist. Any change in the Base Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective on the effective date
of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"Base Rate Borrowing": a Borrowing comprised of Base Rate Loans.
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"Base Rate Loans": Revolving Credit Loans bearing interest at any
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time under the Base Rate Option.
"Base Rate Option": as defined in Section 2.8(a).
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"Borrowing": a Swing Line Loan made by the Swing Line Bank or group
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of Loans of a single Type made by the Banks on a single date and, in the
case of Eurodollar Loans, as to which a single Interest Period is in
effect.
"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in Wilmington, Delaware are authorized or required
by law to close; provided, however, that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in the London interbank market.
"Capital Lease": at any time, a lease with respect to which the
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lessee is required to recognize the acquisition of an asset and the
incurrence of a liability in accordance with GAAP.
"Capital Lease Obligations": at any time, the amount of the
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obligations of the Borrower and its Subsidiaries under Capital Leases
which would be shown at such time as a liability on a consolidated balance
sheet of the Borrower and its consolidated Subsidiaries prepared in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
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"Change of Control": an event or series of events by which (a) any
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"person" or "group" (as such terms are defined in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder) other than the Xxxxxxx Family (or
their heirs or trusts for any of their benefit or the benefit of any of
their family members, is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under such Exchange Act, except that a Person shall
be deemed to have "beneficial ownership" of all shares that any such
Person has the right to acquire without condition, other than passage of
time, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 25% of the total
voting power of the then outstanding Voting Stock of the Company, or (b)
from and after the date hereof, individuals who on the date hereof
constitute the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination
for election by the shareholders of the Company was approved by a vote of
a majority of the directors then still in office who were either directors
on the date hereof or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors of the Company then in office.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Commitment": as to any Bank, the obligation of such Bank to make
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Loans to and/or issue or participate in Letters of Credit issued on behalf
of the Borrower hereunder in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Bank's name
on Schedule I under the caption "Commitments" or in the Assignment and
Acceptance pursuant to which such Bank becomes a party to this Agreement,
as the same may be permanently terminated, reduced and extended from time
to time pursuant to the provisions of Section 2.10 or changed by
subsequent assignments pursuant to Section 9.6(b).
"Commitment Fee": as defined in Section 2.6(a).
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"Commitment Fee Rate": on any date, the percentage per annum set
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forth below, as applicable, opposite the Leverage Ratio shown on the last
Compliance Certificate delivered by the Borrower to the Agent pursuant to
subsection 5.2(a) prior to such date:
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Level Leverage Ratio Commitment Fee Rate
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I Less than or equal to 0.25%
2.0 to 1.0
II Greater than 2.0 0.25%
to 1.0 but less than or
equal to 2.5 to 1.0
III Greater than 2.5 to 1.0 0.375%
but less than or
equal to 3.0 to 1.0
IV Greater than 3.0 to 1.0 0.375%
but less than or
equal to 3.25 to 1.0
V Greater than 3.25 to 1.0 0.375%
but less than or
equal to 3.50 to 1.0
VI Greater than 3.50 to 1.0 0.50%
; provided, however, that, (a) adjustments, if any, to the Commitment Fee
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Rate resulting from a change in the Leverage Ratio shall be effective five
Business Days after the Agent has received a Compliance Certificate, (b)
in the event that no Compliance Certificate has been delivered for a
fiscal quarter prior to the last date on which it can be delivered without
violation of subsection 5.2(a), the Commitment Fee Rate from such date
until such Compliance Certificate is actually delivered shall be that
applicable under Level VI, (c) in the event that the actual Leverage Ratio
for any fiscal quarter is subsequently determined to be greater than that
set forth in the Compliance Certificate for such fiscal quarter, the
Commitment Fee Rate shall be recalculated for the applicable period based
upon such actual Leverage Ratio and (d) anything in this definition to the
contrary notwithstanding, until receipt by the Agent of the Compliance
Certificate for the fiscal quarter ending June 30, 2002, the Commitment
Fee Rate shall be that applicable under Level VI. Any additional
Commitment Fee that is due to the Banks resulting from the operation of
clause (c) above shall be payable by the Borrower within five (5) days
after receipt of a written demand therefor from the Agent.
"Commitment Percentage": as to any Bank at any time, the proportion
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(expressed as a percentage) that such Bank's Commitment bears to the Total
Commitment at such time (or, at any time after the Commitments shall have
expired or been terminated, the percentage that such Bank's Exposure bears
to the Total Exposure at such time).
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"Commitment Period": the period from and including the Effective
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Date to but not including the Termination Date, or such earlier date on
which the Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
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incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Compliance Certificate": has the meaning assigned to such term in
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subsection 5.2(a).
"Consolidated EBITDA": for any period of four consecutive fiscal
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quarters, Consolidated Net Income for such period, plus the amount of
income taxes (if any), depreciation and amortization expense, and interest
expense deducted from earnings in determining such Consolidated Net
Income, in each case determined on a consolidated basis for the Borrower
and its Subsidiaries in accordance with GAAP; provided, that there shall
be excluded therefrom (a) any addition for non-operating gains (including,
without limitation, extraordinary or unusual gains, gains from
discontinuance of operations or gains arising from the sale of capital
assets) and (b) any subtraction for non-operating losses during such
period (including, without limitation, extraordinary or unusual losses,
losses from the discontinuance of operations or losses arising from the
sale of capital assets).
"Consolidated Funded Debt": at any time, without duplication, the
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aggregate of all indebtedness of the Borrower and its Subsidiaries for
borrowed money including Capitalized Lease Obligations and Contingent
Obligations but excluding the obligations, in an amount not to exceed
$26,326,000, of the Borrower and its Subsidiaries in respect of the
outstanding letter of credit issued in connection with the Xxxxxx County
Tax Exempt Revenue Bond in the original principal amount of $_________
and the amount of cash contained in the sinking fund designated for debt
service in respect of the Southwestern Illinois Development Authority
Taxable Sports Facility Revenue Bonds, Series 1996, all determined on a
consolidated basis in accordance with GAAP as of such date.
"Consolidated Net Income": for any fiscal period of four consecutive
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fiscal quarters, net earnings (or loss) after income taxes (if any) for
such period determined on a consolidated basis in accordance with GAAP.
"Consolidated Debt Service": for any period of four consecutive
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fiscal quarters, the amount of cash interest expense and payments of
principal (excluding payments of principal made on any Loans or on account
of principal under any other revolving credit facilities) made by the
Borrower and its Subsidiaries during such period, all determined on a
consolidated basis in accordance with GAAP.
6
"Consolidated Tangible Net Worth": as of any date of determination,
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(a) the aggregate amount of all assets of the Borrower and its
Subsidiaries on a consolidated basis at such date as may be properly
classified as such in accordance with GAAP, excluding such other assets as
are properly classified as intangible assets under GAAP, minus (b) the
aggregate amount of all liabilities of the Borrower and its Subsidiaries
on a consolidated basis at such date, as may be properly classified as
such in accordance with GAAP.
"Contingent Obligation": as to any Person, any guarantee of payment
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or performance by such Person of any Debt or other obligation of any other
Person, or any agreement to provide financial assurance with respect to
the financial condition, or the payment of the obligations of, such other
Person (including, without limitation, purchase or repurchase agreements,
reimbursement agreements with respect to letters of credit or acceptances,
indemnity arrangements, grants of security interests to support the
obligations of another Person, keepwell agreements and take-or-pay or
through-put arrangements) which has the effect of assuring or holding
harmless any third Person against loss with respect to one or more
obligations of such third Person; provided, however, the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Contingent Obligation of any Person shall be deemed to be the lower of
(a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made and
(b) the maximum amount for which such contingently liable Person may be
liable pursuant to the terms of the instrument embodying such Contingent
Obligation, unless such primary obligation and the maximum amount for
which such contingently liable Person may be liable are not stated or
determinable, in which case the amount of such Contingent Obligation shall
be such contingently liable Person's maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith.
"Contractual Obligation": as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Cross-Default Indebtedness": as defined in Section 7.1(f).
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"Debt": of any Person at any date means (without duplication):
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(a) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and payable
in accordance with customary practices);
(b) any other indebtedness which is evidenced by a note, bond,
debenture or similar instrument;
(c) all Capital Lease Obligations of such Person;
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(d) all liabilities secured by any Lien on any property owned
by such Person whether or not such Person has assumed or otherwise become
liable for the payment thereof;
(e) all obligations of such Person with respect to Interest
Hedge Agreements (calculated on a basis satisfactory to the Agent and in
accordance with accepted practice);
(f) all Contingent Obligations of such Person, including all
obligations of such Person in respect of outstanding letters of credit,
acceptances and similar obligations created for the account of such
Person;
(g) all obligations of such Person under "synthetic" or
similar leases; and
(h) withdrawal liabilities of such Person or any Commonly
Controlled Entity under a Plan.
The Debt of any Person shall include any Debt of any partnership in which
such person is a general partner, unless such Debt is nonrecourse to such
Person.
"Default": any of the events specified in Section 7, whether or not
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any requirement for the giving of notice, the lapse of time, or both, or
any other condition precedent therein set forth, has been satisfied.
"Distribution": in respect of any corporation, (a) dividends or
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other distributions on Capital Stock of the corporation (except
distributions in common stock of such corporation); (b) the redemption or
acquisition of Capital Stock of the corporation or of warrants, rights or
other options to purchase such stock (except when solely in exchange for
common stock of such corporation); and (c) any payment on account of, or
the setting apart of any assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of
any share of any class of Capital Stock of such corporation or any
warrants or options to purchase any such stock.
"Dollars" and "$": dollars in lawful currency of the United States
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of America.
"Effective Date": the date that all of the conditions of Section 4.1
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have been met to the satisfaction of the Agent.
"Environmental Laws": any and all applicable foreign, Federal,
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state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees or binding requirements of any Governmental
Authority, or binding Requirement of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning protection of the environment, as now or may at any time
hereafter be in effect.
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"ERISA": the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"Euro-Rate Reserve Percentage": the maximum effective percentage in
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effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements
(including, without limitation, supplemental, marginal and emergency
reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate shall be
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adjusted with respect to any Eurodollar Loan that is outstanding on the
effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Agent shall give prompt notice to the Borrower of
the Eurodollar Rate as determined or adjusted in accordance herewith,
which determination shall be conclusive absent manifest error.
"Eurodollar Borrowing": a Borrowing comprised of Eurodollar Loans.
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"Eurodollar Loan": any Revolving Credit Loan bearing interest at any
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time under a Eurodollar Rate Option.
"Eurodollar Rate": with respect to any Eurodollar Loan for any
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Interest Period, the interest rate per annum determined by the Agent by
dividing (the resulting quotient rounded upwards, if necessary, to the
nearest 1/100th of 1% per annum) (i) the rate of interest determined by
the Agent in accordance with its usual procedures (which determination
shall be conclusive absent manifest error) to be the average of the London
interbank offered rates for U.S. Dollars quoted by the British Bankers'
Association as set forth on Dow Xxxxx Markets Service (formerly known as
Telerate) (or appropriate successor or, if British Bankers' Association or
its successor ceases to provide such quotes, a comparable replacement
determined by the Agent) display page 3750 (or such other display page on
the Dow Xxxxx Markets Service system as may replace display page 3750) two
(2) Business Days prior to the first day of such Interest Period for an
amount comparable to the principal amount of such Eurodollar Loan and
having a borrowing date and a maturity comparable to such Interest Period
by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.
The Eurodollar Rate may also be expressed by the following formula:
Average of London interbank offered rates quoted by BBA
as shown on Dow Xxxxx Markets Service display page 3750
Eurodollar Rate = or appropriate successor
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1.00 - Euro-Rate Reserve Percentage
"Eurodollar Rate Option": as defined in Section 2.8(b).
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"Event of Default": any of the events specified in Section 7,
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provided, that any requirement for the giving of notice, the lapse of
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time, or both, or any other condition, has been satisfied.
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"Existing Credit Agreements": that certain Amended and Restated
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Credit Agreement dated as of November 1, 1999 among the Borrower, certain
banks and financial institutions from time to time parties thereto and the
Agent, and that certain Credit Agreement dated as of September 14, 2001
among the Borrower, certain banks and financial institutions from time to
time parties thereto and the Agent, in each case as the same have been
amended, supplemented or otherwise modified from time to time.
"Existing Letters of Credit": each of the unexpired Letters of
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Credit issued on behalf of the Borrower by the Issuing Bank which are
outstanding on the Effective Date, as described on Schedule II hereto.
"Exposure": as to any Bank at any date, an amount equal to the sum
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of (a) the aggregate principal amount of all Loans made by such Bank then
outstanding, (b) such Bank's pro rata share of L/C Obligations then
--- ----
outstanding based on its Revolving Credit Commitment Percentage, and (c)
the principal amount of such Bank's pro rata share of Swing Line Loans
--- ----
then outstanding based on its Revolving Credit Commitment Percentage.
"Extensions of Credit": the collective reference to Loans made and
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Letters of Credit issued under this Agreement.
"Federal Funds Effective Rate": for any day, the weighted average of
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the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"Fixed Charge Coverage Ratio": at any date of determination, the
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ratio of (i) Consolidated EBITDA less dividends less cash income tax
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expense less capital expenditures, in such case for the comparable twelve
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month period, to (ii) Consolidated Debt Service.
"GAAP": at any time with respect to the determination of the
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character or amount of any asset or liability or item of income or
expense, or any consolidation or other accounting computation, generally
accepted accounting principles as in effect on the date of, or at the end
of the period covered by, the financial statements from which such asset,
liability, item of income, or item of expense, is derived, or, in the case
of any such computation, as in effect on the date when such computation is
required to be determined; provided, however, that in the event of any
-------- -------
change in GAAP which would affect the calculation of the Borrower's
compliance with any of the covenants contained in Section 6.1, either
favorably or unfavorably, the Agent, the Banks and the Borrower will make
appropriate adjustments to such covenants.
10
"Governmental Authority": 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.
"Guarantor": each of Dover International Speedway, Inc., a Delaware
---------
corporation, Dover Downs Properties, Inc., a Delaware corporation, Gateway
International Motorsports Corporation, an Illinois corporation, Gateway
International Services Corporation, an Illinois corporation, Grand Prix
Association of Long Beach, Inc., a California corporation, Memphis
International Motorsports Corporation, a Tennessee corporation, M & N
Services Corp., a Tennessee corporation, and Nashville Speedway, USA,
Inc., a Tennessee corporation, each of which is a direct or indirect
wholly-owned Subsidiary of the Borrower, and "Guarantors" shall mean all
----------
such Persons collectively.
"Guaranty Agreement": the Guaranty and Suretyship Agreement
------------------
substantially in the form of Exhibit C hereto, executed by the Guarantors
---------
in favor of the Agent for the ratable benefit of the Banks.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Interest Hedge Agreement": any interest rate swap agreement,
------------------------
interest rate cap agreement, interest rate collar agreement, interest rate
insurance or any other agreement which is not speculative in nature with
all extensions, renewals, amendments, substitutions and replacements to
and any of the foregoing, documentation of all of which shall conform to
International Swap Dealers Association, Inc. standards.
"Interest Payment Date": (a) as to any Base Rate Loan or Swing Line
---------------------
Loan, the last day of each March, June, September and December, (b) as to
any Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period, and (c) as to any Eurodollar Loan having
an Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
---------------
(a) initially the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar Loan
and ending one, two, three or six months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, given with
respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Agent
11
not less than three Business Days prior to the last day of the then
current Interest Period with respect thereto;
provided that, the foregoing provisions relating to Interest Periods are
-------- ----
subject to the following:
(i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, with respect to Eurodollar Loans
only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the
next preceding Business Day;
(ii) with respect to Eurodollar Loans, any Interest Period
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(iii) an Interest Period that otherwise would extend beyond
the Termination Date shall end on the Termination Date; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"ISP98": the International Standby Practices 1998 (ISP98) published
-----
by the Institute of International Banking Law & Practice, Inc., as the
same may be amended, supplemented or otherwise modified from time to time.
"Issuing Bank": PNC Bank, Delaware, as issuer of Letters of Credit
------------
hereunder.
"L/C Commitment": the lower of (a) $35,000,000 and (b) the Total
--------------
Commitment at such time.
"L/C Coverage Requirement": with respect to each Letter of Credit at
------------------------
any time, 100% of the maximum amount available to be drawn thereunder at
such time (determined without regard to whether any conditions to drawing
could be met at such time).
"L/C Obligations": at any time, an amount equal to the sum of (a)
---------------
100% of the maximum amount available to be drawn under all Letters of
Credit outstanding at such time (determined without regard to whether any
conditions to drawing could be met at such time) and (b) the aggregate
amount of drawings under Letters of Credit which have not then been
reimbursed pursuant to Section 2.5(e).
"L/C Participant": in respect of each Letter of Credit, each Bank
---------------
other than the Issuing Bank) in its capacity as the holder of a
participating interest in such Letter of Credit.
12
"L/C Payment Date": the last day of each March, June, September and
----------------
December.
"Letters of Credit": as defined in Section 2.5(a).
-----------------
"Leverage Ratio": at any date of determination, the ratio of
--------------
Consolidated Funded Debt on such date to Consolidated EBITDA for the four
consecutive fiscal quarters of the Borrower most recently ended prior to
such date.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Capital Lease having substantially the same economic
effect as any of the foregoing).
"Loans": the collective reference to the Revolving Credit Loans and
-----
the Swing Line Loans.
"Loan Documents": this Agreement, the Applications, the Notes and
--------------
the Guaranty Agreement.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
validity or enforceability of this Agreement or any other Loan Document or
the rights or remedies of the Agent or the Banks hereunder or thereunder,
b) the business, property, assets, financial condition, results of
operations or prospects of the Borrower and its Subsidiaries taken as a
whole or (c) the ability of the Borrower to duly and punctually pay its
Debts and perform its obligations under the Loan Documents.
"Materials of Environmental Concern": any gasoline or petroleum
----------------------------------
including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated
as such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls, and ureaformaldehyde insulation.
"Moody's": Xxxxx'x Investors Services, Inc.
-------
"Multiemployer Plan": a Plan which is a multiemployer plan as
------------------
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds": with respect to the sale or issuance of any Capital
------------
Stock by the Borrower or its Subsidiary, the net amount equal to (a) the
aggregate amount received in cash in connection with such sale or issuance
minus (b) the fees, commissions and other out-of-pocket expenses incurred
-----
by the Borrower or its Subsidiary in connection with such sale or issuance.
13
"Notes": the Revolving Credit Notes and the Swing Line Note.
-----
"Participant" as defined in Section 9.6(f).
-----------
"PBGC": the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Acquisition": an acquisition by the Borrower of the
---------------------
Capital Stock or assets of a Person (or of any segment or division of a
Person) (a) that (i) is in the motorsports industry, if the gross purchase
price for such acquisition is less than $15,000,000, and (ii) has a
positive total of Consolidated Net Income plus income tax expense,
depreciation and amortization expense and interest expense deducted from
earnings in determining such Consolidated Net Income for the twelve month
period ending on the last day of the most recently completed fiscal
quarter or (b) which is otherwise approved by the Required Banks;
provided, that at the time that any definitive agreement is entered into
--------
in respect of any such acquisition, no Default or Event of Default shall
exist or would exist if such acquisition were consummated on such date
assuming for purposes of the covenants contained in Section 6.1 that pro
---
forma adjustments are made to the financial statements of the Borrower
-----
giving effect to such acquisition as if it had occurred on the last day of
the Borrower's most recently completed fiscal quarter); provided further,
-------- -------
that the prior approval of the Required Banks shall be required for any
acquisition, the gross purchase price of which equals or exceeds
$10,000,000, proposed to be made by the Borrower during a fiscal year in
which the aggregate gross purchase price of Permitted Acquisitions
previously made by the Borrower during such fiscal year equals or exceeds
$20,000,000.
"Permitted Investments":
---------------------
(a) direct obligations of the United States of America or
any agency thereof or obligations guaranteed by the United States of
America or any agency thereof, provided that such obligations mature
within one (1) year from the date of acquisition thereof;
(b) certificates of deposit, time deposits or banker's
acceptances, maturing within one (1) year from the date of acquisition,
with (i) any Bank or (ii) any other bank or trust company organized under
the laws of the United States, the unsecured long-term debt obligations of
which are rated "A3" or higher by Moody's or "A-" or higher by S&P, and
issued, or in the case of banker's acceptance, accepted, by a bank or
trust company having capital, surplus and undivided profits aggregating at
least Two Hundred Fifty Million Dollars ($250,000,000);
(c) commercial paper given the highest rating by either S&P
or Moody's maturing not more than two hundred seventy (270) days from the
date of creation thereof;
14
(d) mutual funds registered with the Securities and Exchange
Commission under the Investment Company Act of 1940 that hold themselves
out as "money market funds;"
(e) marketable general obligations issued by any state of
the United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year from
the date of acquisition, having one of the two highest ratings generally
obtainable from either S&P or Moody's;
(f) commercial paper maturing no more than six months from
the date of acquisition thereof and issued by the holding company of
(i) any Bank or (ii) any other bank that has (A) combined capital, surplus
and undivided profits (less any undivided losses) of not less than $250
million, (B) a Xxxxx Bank Watch Rating of C or better and (C) commercial
paper having a rating of A-2 (or the equivalent) or higher from S&P or
P-2 (or the equivalent) or higher from Moody's; and
(g) fully collateralized repurchase agreements with a term
of not more than ninety days for underlying securities of the type
described in paragraphs (a) and (e) of this definition.
"Permitted Liens" shall mean:
---------------
(a) Liens for taxes, assessments, or similar charges,
incurred in the ordinary course of business and which are not yet due and
payable;
(b) Pledges or deposits made in the ordinary course of
business to secure payment of workmen's compensation, or to participate in
any fund in connection with workmen's compensation, unemployment
insurance, old-age pensions or other social security programs;
(c) Liens of mechanics, materialmen, warehousemen, carriers,
or other like Liens, securing obligations incurred in the ordinary course
of business that are not yet due and payable and Liens of landlords
securing obligations to pay lease payments that are not yet due and
payable or in default;
(d) Good faith pledges or deposits made in the ordinary
course of business to secure performance of bids, tenders, contracts
(other than for the repayment of borrowed money) or leases, not in excess
of the aggregate amount due thereunder, or to secure statutory
obligations, or surety, appeal, indemnity, performance or other similar
bonds required in the ordinary course of business;
(e) Encumbrances consisting of zoning restrictions,
easements or other restrictions on the use of real property, none of which
materially impairs the use of such property or the value thereof, and none
of which is violated in any material respect by existing or proposed
structures or land use;
15
(f) Any Lien existing on the date of this Agreement and
described on Schedule III hereto provided that the principal amount
------------
secured thereby is not hereafter increased and no additional assets
become subject to such Lien;
(g) Purchase Money Security Interests or Liens created
pursuant to Capital Leases; provided, that (x) such Liens shall be created
--------
simultaneously with the acquisition of the property which is subject to
such Lien, (y) such Liens do not at any time encumber any property other
than such property and (z) the Liens are not modified to secure any Debt
other than that used to acquire such property;
(h) Liens relating to the Debt of the Borrower described in
Section 6.2(d) hereof;
(i) the following, if the validity or amount thereof is
being contested in good faith by appropriate and lawful proceedings
diligently conducted so long as levy and execution thereon have been
stayed and continue to be stayed:
(i) claims or Liens for taxes, assessments or charges
due and payable and subject to interest or penalty, provided that the
Borrower establishes and maintains such reserves or other appropriate
provisions as shall be required by GAAP and pays all such taxes,
assessments or charges forthwith upon the commencement of proceedings
to foreclose any such Lien; and
(ii) claims or Liens of mechanics, materialmen,
warehousemen, carriers, or other statutory nonconsensual Liens; and
(j) Liens relating to judgments which do not constitute an
Event of Default under Section 7.1(e).
"Person": an individual, partnership, corporation, business trust,
------
joint stock company, limited liability company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prime Rate": the rate of interest per annum announced from time to
----------
time by PNC Bank, Delaware as its prime rate in effect at its principal
office in Wilmington, Delaware, each change in the Prime Rate shall be
effective on the date such change is announced as effective.
"Properties": the collective reference to the facilities and
----------
properties owned, leased or operated by the Borrower or any of its
Subsidiaries.
16
"Purchase Money Security Interest": shall mean Liens upon tangible
--------------------------------
personal property securing loans to the Borrower or any Subsidiary thereof
or deferred payments by the Borrower or any Subsidiary thereof for the
purchase of such tangible personal property.
"Register": as defined in Section 9.6(d).
--------
"Regulation U": Regulation U of the Board of Governors of the
------------
Federal Reserve System as from time to time in effect, and all official
rulings and interpretations thereunder or thereof.
"Regulation X": Regulation X of the Board of Governors of the
------------
Federal Reserve System as from time to time in effect, and all official
rulings and interpretations thereunder or thereof.
"Reimbursement Obligation": in respect of each Letter of Credit, the
------------------------
obligation of the Borrower to reimburse the Issuing Bank for all drawings
made thereunder in accordance with Section 2.5(e) and the Application
related to such Letter of Credit for amounts drawn under such Letter of
Credit.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Sections 4043(c)
----------------
(1), (2), (4), (5), (6), (10) and (13) of ERISA.
"Required Banks": at any time, (a) if there are one (1) or two (2)
--------------
Banks, Required Banks shall mean all of the Banks and (b) if there are
more than two (2) Banks, Required Banks shall mean Banks the Commitment
Percentages of which at such time aggregate at least 66.67%.
"Requirement of Law": as to any Person, the certificate of
------------------
incorporation, by-laws, operating agreement or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case binding upon such Person or any of
its property or to which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, president or
-------------------
chief financial officer of the Borrower.
"Revolving Credit Borrowing": a Borrowing consisting of concurrent
--------------------------
Revolving Credit Loans from the Banks.
"Revolving Credit Borrowing Request": a request by the Borrower for
----------------------------------
the making of Revolving Credit Loans pursuant to Section 2.2 in the form
of Exhibit A hereto.
---------
17
"Revolving Credit Commitment Percentage": as to any Bank at any
--------------------------------------
time, the proportion (expressed as a percentage) that such Bank's
Commitment bears to the Total Commitment at such time (or, at any time
after the Commitments shall have expired or been terminated, the
percentage which the principal amount of such Bank's Revolving Credit
Loans then outstanding bears to the aggregate principal amount of all
Revolving Credit Loans then outstanding).
"Revolving Credit Loans": as defined in Section 2.1. Each Revolving
----------------------
Credit Loan shall be a Eurodollar Loan or a Base Rate Loan.
"Revolving Credit Note": a promissory note of the Borrower in the
---------------------
form of Exhibit B-1, as the same may be amended, supplemented or otherwise
-----------
modified from time to time.
"Xxxxxxx Family": the individuals listed on Schedule IV hereto.
-------------- -----------
"S&P": Standard & Poor's Rating Group, a division of XxXxxx-Xxxx
---
Corporation.
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, (i) any corporation, company or
----------
trust of which 50% or more (by number of shares or number of votes) of the
outstanding Capital Stock, interests, shares or similar items of
beneficial interest normally entitled to vote for the election of one or
more directors, members or trustees (regardless of any contingency which
does or may suspend or dilute the voting rights) is at such time owned
directly or indirectly by such person or one or more of such Person's
Subsidiaries, or any partnership of which such Person is a general partner
or of which 50% or more of the partnership interests is at the time
directly or indirectly owned by such Person or one or more of such
Person's Subsidiaries, and (ii) any corporation, company, trust,
partnership or other entity which is controlled or capable of being
controlled by such Person or one or more of such Person's subsidiaries.
Unless otherwise indicated, all references to a "Subsidiary" or to
Subsidiaries" in this Agreement shall refer to a Subsidiary of the
Borrower but shall not include Dover Downs, Inc. or Dover Downs Gaming &
Entertainment, Inc.
"Swing Line Bank": PNC Bank, Delaware, or any other Bank to which
---------------
the Swing Line Commitment is assigned pursuant to the terms of Section 9.6.
"Swing Line Commitment": the amount set forth opposite the Swing
---------------------
Line Bank's name under the heading "Swing Line Commitment" on Schedule I
----------
hereto, as such amount may be reduced pursuant to Section 2.3(f).
"Swing Line Loans": has the meaning given to such term in Section
----------------
2.3(a).
18
"Swing Line Note": has the meaning given to such term in Section 2.3
---------------
(c), as the same may be amended, supplemented or otherwise modified from
time to time.
"Swing Line Repayment Date": has the meaning given to such term in
-------------------------
Section 2.3(b).
"Taxes": as defined in Section 2.14.
-----
"Termination Date": the earlier of (a) February 19, 2005, or such
----------------
later date to which the Termination Date shall have been extended pursuant
to Section 2.10(d) and (b) the date the Commitments are terminated as
provided herein.
"Total Commitment": at any time, the aggregate amount of the Banks'
----------------
Commitments, as in effect at such time.
"Total Commitment Percentage": as to any Bank at any time, the
---------------------------
proportion (expressed as a percentage) that such Bank's Commitment bears
to the Total Commitment.
"Total Exposure": at any time, the aggregate amount of the Banks'
--------------
Exposures at such time.
"Tranche": the collective reference to (a) Loans, other than Base
-------
Rate Loans, of the same type whose Interest Periods begin on the same date
and end on the same later date (whether or not such Loans originally were
made on the same date) and (b) Base Rate Loans, which shall constitute one
Tranche.
"Type": when used in respect of any Loan or Borrowing, shall refer
----
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate"
shall include the Eurodollar Rate and the Base Rate.
"Voting Stock": Capital Stock of any class or classes of a Person
------------
the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the directors (or Persons performing
similar functions).
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes or any certificate or other document made
or delivered pursuant hereto.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
19
(c) As used herein and in the Notes, and any certificate or
other document made or delivered pursuant hereto or thereto, accounting terms
relating to the Borrower and its Subsidiaries not defined in Section 1.1
and accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(d) The meanings given to terms defined in this Agreement shall
be equally applicable to both the singular and plural forms of such terms.
SECTION 2. THE CREDITS
2.1 Revolving Credit Loans. (a) Subject to the terms and conditions
----------------------
hereof, each Bank, severally and not jointly, agrees to make revolving
credit loans in Dollars (the "Revolving Credit Loans") to the Borrower
----------------------
from time to time during the Commitment Period, in an aggregate principal
amount at any time outstanding which, when added to such Bank's Commitment
Percentage of (i) the L/C Obligations then outstanding and (ii) the
principal amount of Swing Line Loans then outstanding, does not exceed
such Bank's Commitment; provided, that at no time shall the sum of (x) the
--------
aggregate principal amount of all Loans made by the Banks then outstanding
plus (y) the L/C Obligations then outstanding exceed the Total Commitment.
The Commitments may be terminated or reduced from time to time pursuant to
Section 2.10. Within the foregoing limits, the Borrower may during the
Commitment Period borrow, repay and reborrow under the Commitment, subject
to the terms, provisions and limitations set forth herein.
(b) The Revolving Credit Loans may from time to time be
(i) Eurodollar Loans, (ii) Base Rate Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Agent in accordance with
Sections 2.2 and 2.18; provided, that no Loan shall be made as a Eurodollar
--------
Loan after the date that is one month prior to the Termination Date.
(c) The failure of any Bank to make any Revolving Credit Loan
shall not in itself relieve any other Bank of its obligation to lend hereunder
(it being understood, however, that no Bank shall be responsible for the
failure of any other Bank to make any Loan required to be made by such other
Bank). The Loans comprising any Revolving Credit Borrowing shall be (i) with
respect to a Base Rate Borrowing, in a minimum aggregate principal amount of
$100,000 or a whole multiple thereof or (ii) with respect to a Eurodollar
Borrowing, in a minimum aggregate principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof (or, in either case, an aggregate
principal amount equal to the remaining balance of the available Commitments).
2.2 Revolving Credit Loan Procedures. In order to request a
--------------------------------
Revolving Credit Borrowing, the Borrower shall hand deliver or telecopy (or
notify by telephone and promptly confirm by hand delivery or telecopy) to the
Agent the information requested by the form of Revolving Credit Borrowing
Request attached as Exhibit A hereto (a) in the case of a Eurodollar Borrowing,
---------
not later than 12:00 noon, Wilmington time, three Business Days before a
proposed
20
Borrowing and (b) in the case of a Base Rate Borrowing, not later than 12:00
noon, Wilmington time, on the day of a proposed Borrowing. Such notice shall
be irrevocable and shall in each case specify (i) whether the Borrowing then
being requested is to be a Eurodollar Borrowing or a Base Rate Borrowing; (ii)
the date of such Revolving Credit Borrowing (which shall be a Business Day);
(iii) the principal amount of such Borrowing; and (iv) if such Borrowing is to
be a Eurodollar Borrowing, the Interest Period with respect thereto. If no
election as to the Type of Revolving Credit Borrowing is specified in any such
notice, then the requested Revolving Credit Borrowing shall be a Base Rate
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Agent shall promptly
advise the Banks of any notice given pursuant to this Section 2.2 and of each
Bank's portion of the requested Borrowing.
2.3 Swing Line Loans. (a) Subject to the terms and conditions
----------------
hereof, the Swing Line Bank may in its discretion make swing line loans
(the "Swing Line Loans") to the Borrower from time to time during the
----------------
Commitment Period in the aggregate up to the amount of the Swing Line
Commitment for periods requested by the Borrower and agreed to by the Swing
Line Bank; provided, that, no Swing Line Loan shall be made if, after giving
-------- ----
effect to the making of such Loan and the simultaneous application of the
proceeds thereof, (i) the Total Exposure would exceed the Total Commitment or
(ii) a Default or Event of Default shall exist or be continuing. Within the
foregoing limits, the Borrower may during the Commitment Period borrow, repay
and reborrow under the Swing Line Commitment, subject to and in accordance with
the terms and limitations hereof.
(b) The Borrower may request a Swing Line Loan to be made on any
Business Day. Swing Line Loans shall bear interest at the Base Rate Option.
Each request for a Swing Line Loan shall be in writing (or by telephone
promptly confirmed in writing) and delivered to the Swing Line Bank not later
than 1:00 p.m., Wilmington time, on the Business Day such Swing Line Loan is to
be made, specifying in each case (i) the amount to be borrowed, (ii) the
requested borrowing date, and (iii) the date such Swing Line Loan is to be
repaid, if applicable (the "Swing Line Repayment Date"). The request for such
-------------------------
Swing Line Loan shall be irrevocable. Provided that all applicable conditions
precedent contained in Section 4.2 hereof have been satisfied, the Swing Line
Bank shall, not later than 4:00 p.m., Wilmington time, on the date specified in
the Borrower's request for such Swing Line Loan, make such Swing Line Loan by
crediting the Borrower's deposit account with the Swing Line Bank.
(c) The obligation of the Borrower to repay the Swing Line Loans
shall be evidenced by a promissory note of the Borrower dated the date hereof,
payable to the order of the Swing Line Bank in the principal amount of the
Swing Line Commitment and substantially in the form of Exhibit B-2 (as amended,
-----------
supplemented or otherwise modified from time to time, the "Swing Line Note").
---------------
(d) Interest shall accrue on the outstanding principal balance
of a Swing Line Loan at the Base Rate Option and shall be payable on each
applicable Interest Payment Date and upon the repayment of such Swing Line
Loan.
21
(e) A Swing Line Loan shall be repaid on the earlier of (i) the
Termination Date and (ii) the Swing Line Repayment Date for such Swing Line
Loan, if any.
(f) In the event the Commitments are terminated in accordance
with Section 2.10 hereof, the Swing Line Commitment shall also be terminated
automatically. In the event the Borrower reduces the Total Commitment to less
than the Swing Line Commitment, the Swing Line Commitment shall immediately be
reduced to an amount equal to the Total Commitment. In the event the Borrower
reduces the Total Commitment to less than the outstanding principal amount of
the Swing Line Loans, the Borrower shall immediately repay the amount by which
the outstanding Swing Line Loans exceed the Swing Line Commitment as so
reduced plus accrued interest thereon.
(g) At no time shall there be more than one outstanding Swing
Line Loan.
(h) Each Swing Line Loan shall be in an original principal
amount of $100,000 or a whole multiple thereof.
(i) The Borrower shall have the right at any time and from time
to time to prepay any Swing Line Loan, in whole or in part, without premium or
penalty, upon prior written, telecopy or telephonic notice to the Swing Line
Bank given no later than 1:00 p.m., Wilmington time, on the date of any
proposed prepayment. Each notice of prepayment shall specify the Swing Line
Loan to be prepaid and the amount to be prepaid, shall be irrevocable and shall
commit the Borrower to prepay such amount on such date, with accrued interest
thereon.
2.4 General Provisions Regarding Loans. (a) Subject to Section 2.4
----------------------------------
(b), each Bank shall make each Revolving Credit Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds to
the Agent in Pittsburgh, Pennsylvania not later than 3:00 p.m., Wilmington
time, and the Agent shall by 4:00 p.m., Wilmington time, credit the amounts so
received to the general deposit account of the Borrower with the Agent or, if a
Borrowing shall not occur on such date because any condition precedent herein
specified shall not have been met, return the amounts so received to the
respective Banks. Revolving Credit Loans shall be made by the Banks pro rata in
--- ----
accordance with Section 2.16. Unless the Agent shall have received notice from
a Bank prior to the date of any Borrowing that such Bank will not make
available to the Agent such Bank's portion of such Borrowing, the Agent may
assume that such Bank has made such portion available to the Agent on the date
of such Borrowing in accordance with this paragraph (a) and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have made
such portion available to the Agent, such Bank and the Borrower severally agree
to repay to the Agent forthwith on demand such corresponding amount together
with interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Agent at (i) in the
case of the Borrower, the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Bank, the Federal Funds
Effective Rate; provided, that if such Bank shall not pay such amount within
--------
three Business Days of the date of such Borrowing, such overdue amount shall,
at
22
the expiration of such three-Business Day period, bear interest at the Base
Rate Option. If such Bank repays to the Agent such corresponding amount, such
amount shall constitute such Bank's Loan as part of such Borrowing for purposes
of this Agreement.
(b) The Borrower may refinance all or any part of any Borrowing
with any other Borrowing subject to the conditions and limitations set forth
herein and elsewhere in this Agreement. Any Borrowing or part thereof so
refinanced shall be deemed to be repaid in accordance with Section 2.3 or 2.7
with the proceeds of a new Borrowing hereunder and the proceeds of the new
Borrowing, to the extent they do not exceed the principal amount of the
Borrowing being refinanced, shall not be paid by the Banks to the Agent or by
the Agent to the Borrower; provided, however, that (i) if the principal amount
-------- -------
extended by a Bank in a refinancing is greater than the principal amount that
was extended by such Bank in the Borrowing being refinanced, then such Bank
shall pay such difference to the Agent for distribution to the Banks described
in (ii) below, (ii) if the principal amount extended by a Bank in the Borrowing
being refinanced is greater than the principal amount agreed to be extended by
such Bank in the refinancing, the Agent shall return the difference to such
Bank out of amounts received pursuant to (i) above, and (iii) to the extent any
Bank fails to pay the Agent amounts due from it pursuant to (i) above, any Loan
or portion thereof being refinanced with such amounts shall not be deemed
repaid in accordance with Section 2.3 or 2.7 and shall be payable by the
Borrower without prejudice to the Borrower's rights against any such Bank.
(c) Each Bank may at its option fulfill its Commitment
hereunder with respect to any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Bank to make such Loan; provided, however,
-------- -------
that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of the Agreement and
the applicable Note.
(d) All Borrowings, conversions and continuations of Revolving
Credit Loans hereunder and all selections of Interest Periods hereunder shall
be in such amounts and be made pursuant to such elections that, after giving
effect thereto, (A) the aggregate principal amount of the Loans comprising each
Tranche of Eurodollar Loans shall be equal to $500,000 or a whole multiple of
$100,000 in excess thereof and (B) the Borrower shall not have outstanding at
any one time more than in the aggregate eight (8) separate Tranches of Loans
(including the Base Rate Tranche).
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Termination Date.
2.5 Letters of Credit.
-----------------
(a) L/C Commitment. (i) Subject to the terms and conditions
--------------
hereof, the Issuing Bank, in reliance on the agreements of the other Banks set
forth in Section 2.5(d), agrees to issue letters of credit (together with the
Existing Letters of Credit, collectively referred to as the "Letters of
----------
Credit") for the account of the Borrower on any Business Day during the
------
23
Commitment Period in such form as may be approved from time to time by the
Issuing Bank; provided, that no Letter of Credit shall be issued if, after
--------
giving effect thereto (A) the amount of the Total Exposure would exceed the
amount of the Total Commitment in effect at such time (B) the aggregate amount
of the L/C Obligations at such time would exceed the L/C Commitment in effect
at such time or (C) a Default or Event of Default shall exist or be continuing.
(ii) Each Letter of Credit:
(A) shall be denominated in Dollars and shall be a
standby letter of credit; and
(B) shall be for the account of the Borrower and for
the benefit of the Borrower and/or one or more of the Guarantors;
(C) shall have an expiration date no later than the
Termination Date; and
(D) may during the Commitment Period be extended at
the sole discretion of the Issuing Bank for additional periods of up to
one year each (but in no event to expire later than the Termination Date)
upon written request from the Borrower to the Issuing Bank at least 20
days (or such other time period as agreed by the Borrower and the Agent)
before the date upon which notice of extension is otherwise required by
the terms thereof.
(iii) Each Letter of Credit shall be subject to ISP98 and,
to the extent not inconsistent therewith, the laws of the State of Delaware.
(b) Procedure for Issuance of Letters of Credit. The Borrower
-------------------------------------------
may from time to time request that the Issuing Bank issue a Letter of Credit by
delivering to the Issuing Bank at its office for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Bank, and
such other certificates, documents and other papers and information as the
Issuing Bank may reasonably request. Upon receipt by the Issuing Bank of any
Application, the Issuing Bank will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall,
after determining from the Agent that issuance of the Letter of Credit
requested thereby will be within the limits imposed by Section 2.5(a)(i), issue
such Letter of Credit not later than ten (10) Business Days after its receipt
of the Application therefor and all such other certificates, documents and
other papers and information relating thereto (but in no event shall the
Issuing Bank be required to issue any Letter of Credit earlier than five (5)
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Bank and the Borrower. The Issuing Bank
shall promptly after issuing a Letter of Credit furnish copies thereof to the
Borrower.
24
(c) L/C Fees, Commissions and Other Charges.(i) The Borrower
---------------------------------------
shall pay to the Agent, for the account of the Banks (including the Issuing
Bank) pro rata according to their respective Commitment Percentages, a letter
--- ----
of credit fee with respect to the aggregate face amount of all Letters of
Credit outstanding, computed at the rate equal to the Applicable Margin for
LIBOR Loans in effect from time to time (computed on the basis of the actual
number of days each Letter of Credit is outstanding in a year of 360 days). The
Borrower shall also pay to the Issuing Bank, in respect of each Letter of
Credit issued by the Issuing Bank, a fronting fee in an amount not to exceed
$250. The fees described in the preceding sentences shall be due and payable
quarterly in arrears on each L/C Payment Date and on the Termination Date or
such earlier date as the Commitments are terminated, and shall be nonrefundable.
(ii) In addition to the foregoing fees, the Borrower shall
pay or reimburse the Issuing Bank for such normal and customary costs and
expenses as are incurred or charged by the Issuing Bank in issuing, effecting
payment under, amending or otherwise administering any Letter of Credit, in
accordance with the schedule of such costs attached hereto as Schedule V.
----------
(iii) The Agent shall, promptly following its receipt
thereof, distribute to the Issuing Bank and the Banks all fees and commissions
received by the Agent for their respective accounts pursuant to this subsection.
(d) L/C Participations. (i) The Issuing Bank irrevocably agrees
------------------
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Bank to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Bank, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk, an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage in the Issuing Bank's
obligations and rights under each Letter of Credit issued by the Issuing Bank
hereunder and the amount of each draft paid by the Issuing Bank thereunder.
Each L/C Participant unconditionally and irrevocably agrees with the Issuing
Bank that, if a draft is paid under any Letter of Credit issued by the Issuing
Bank for which the Issuing Bank is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Issuing Bank upon demand at the Issuing Bank's address for notices
specified herein an amount equal to such L/C Participant's Revolving Credit
Commitment Percentage of the amount of such draft or any part thereof, which is
not so reimbursed. Any action taken or omitted by the Issuing Bank under or in
connection with a Letter of Credit, if taken or omitted in the absence of gross
negligence or willful misconduct, shall neither create for the Issuing Bank any
resulting liability to any L/C Participant nor constitute a defense to an L/C
Participant's obligation to make the payments to the Issuing Bank required by
the immediately preceding sentence.
(ii) If any amount required to be paid by any L/C
Participant to the Issuing Bank pursuant to Section 2.5(d) in respect of any
unreimbursed portion of any
25
payment made by the Issuing Bank under any Letter of Credit is not paid to the
Issuing Bank on the date such payment is due from such L/C Participant, such
L/C Participant shall pay to the Issuing Bank on demand an amount equal to the
product of (A) such amount, times (B) the daily average Federal Funds Effective
Rate, as quoted by the Issuing Bank, during the period from and including the
date such payment is required to the date on which such payment is immediately
available to the Issuing Bank, times (C) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which
is 360. A certificate of the Issuing Bank submitted to any L/C Participant with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error.
(iii) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C Participant
its pro rata share of such payment in accordance with Section 2.5(d)(i), the
--------
Issuing Bank receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise, including by way of set-off or
proceeds of collateral applied thereto by the Issuing Bank), or any payment of
interest on account thereof, the Issuing Bank will distribute to such L/C
Participant its pro rata share thereof; provided, however, that in the event
-------- -------- -------
that any such payment received by the Issuing Bank shall be required to be
returned by the Issuing Bank, such L/C Participant shall return to the Issuing
Bank the portion thereof previously distributed by the Issuing Bank to it.
(e) Reimbursement Obligation of the Borrower. (i) The Borrower
----------------------------------------
agrees to reimburse the Issuing Bank in respect of a Letter of Credit on each
date on which the Issuing Bank notifies the Borrower of the date and amount of
a draft presented under such Letter of Credit and paid or to be paid by the
Issuing Bank for the amount of (A) such draft so paid and (B) any taxes, fees,
charges or other direct out of pocket costs or expenses incurred by the Issuing
Bank in connection with such payment. Each such payment shall be made to the
Issuing Bank at its office listed in Section 9.2 in Dollars and in immediately
available funds.
(ii) Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this subsection from the date such
amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the per annum rate of the Base Rate Option
plus 2.0% and shall be payable on demand by the Issuing Bank.
(f) Obligations Absolute. (i) The obligations of the Borrower
--------------------
under this Section 2.5 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Bank or any
beneficiary of a Letter of Credit or any other Person.
(ii) The Borrower agrees with the Issuing Bank that the
Issuing Bank shall not be responsible for, and the Borrower's Reimbursement
Obligations under
26
Section 2.5(e) shall not be affected by, among other things, (A) the
validity or genuineness of any documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent
or forged, provided, that reliance upon such documents by the Issuing Bank
--------
shall not have constituted gross negligence or willful misconduct
by the Issuing Bank or (B) any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other Person to which such
Letter of Credit may be transferred or (C) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee.
(iii) The Issuing Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by the Issuing Bank's gross
negligence or willful misconduct.
(iv) The Borrower agrees that any action taken or omitted
by the Issuing Bank under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct, shall be binding on the Borrower and shall neither result
in any liability of the Issuing Bank to the Borrower nor constitute a defense
to the Borrower's obligation to reimburse the Issuing Bank.
(g) Letter of Credit Payments. If any draft shall be presented
-------------------------
for payment to the Issuing Bank under any Letter of Credit, the Issuing Bank
shall promptly notify the Borrower of the date and amount thereof. The
responsibility of the Issuing Bank to the Borrower in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit.
(h) Application. To the extent that any provision of any
-----------
Application related to any Letter of Credit is inconsistent with the provisions
of this Agreement, the provisions of this Agreement shall apply.
2.6 Fees. (a) The Borrower agrees to pay to the Agent for the
----
account of each Bank a commitment fee (a "Commitment Fee") for the period from
--------------
and including the first day of the Commitment Period to the Termination Date,
computed at a rate per annum equal to the applicable Commitment Fee Rate in
effect from time to time, calculated on the basis of a 360 day year for the
actual days elapsed, on the average daily amount of the difference between the
Commitment of such Bank and its Exposure during the period for which payment is
made, payable quarterly in arrears on the last day of each March, June,
September and December and on the Termination Date or such earlier date as the
Total Commitment shall be permanently reduced or terminated as provided herein,
commencing on the first of such dates to occur after the Effective Date. Each
payment by the Borrower on account of the Commitment Fee shall be made pro rata
--- ----
according to the Banks' respective Revolving Credit Commitment Percentages.
27
(b) All fees shall be paid on the dates due, in immediately
available funds, to the Agent for distribution, if and as appropriate, among
the Banks. Once paid, none of the fees shall be refundable under any
circumstances.
2.7 Notes; Repayment of Revolving Credit Loans. The Revolving
------------------------------------------
Credit Loans made by each Bank shall be evidenced by a single Revolving Credit
Note duly executed on behalf of the Borrower, dated the Effective Date, in
substantially the form attached hereto as Exhibit B-1 with the blanks
-----------
appropriately filled, payable to such Bank in a principal amount equal to the
Commitment of such Bank. Each Note shall bear interest from the date thereof on
the outstanding principal balance thereof as set forth in Section 2.8. The
outstanding principal balance of each Revolving Credit Loan, as evidenced by
the relevant Note, shall be payable on the Termination Date. The Borrower
hereby authorizes the Agent to charge any deposit account of the Borrower
maintained with the Agent for any payment when due hereunder or under the Notes.
2.8 Interest on Revolving Credit Loans. (a) Subject to the
----------------------------------
provisions of Section 2.9, each Base Rate Loan shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be) at a rate per annum equal to the Base Rate plus the
----
Applicable Margin (the "Base Rate Option").
(b) Subject to the provisions of Section 2.9, each Eurodollar
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal to the Eurodollar
Rate for the Interest Period in effect for such Loan plus the Applicable Margin
----
(the "Eurodollar Rate Option").
(c) Interest on each Revolving Credit Loan shall be payable on
each Interest Payment Date applicable to such Loan; provided, that interest
--------
accruing on overdue amounts pursuant to Section 2.9 shall be payable on demand.
The Agent's calculation of the Eurodollar Rate and the Base Rate shall be
conclusive absent manifest error.
2.9 Default Rate; Inability to Determine Interest Rate. (a) Upon
--------------------------------------------------
the occurrence of and during the continuance of an Event of Default under
Section 7.1(a) or (g), the outstanding principal amount of the Loans and, to
the extent permitted by law, accrued and unpaid interest thereon and any other
amount payable hereunder shall bear interest from the date of such occurrence
until paid in full (after as well as before judgment) at a rate per annum which
is equal to two percent (2%) in excess of the Base Rate Option. Upon the
occurrence of and during the continuance of an Event of Default other than
under Section 7.1(a) or (g), the outstanding principal amount of the Loans and,
to the extent permitted by law, accrued and unpaid interest thereon and any
other amount payable hereunder shall bear interest from the date that the Agent
shall send notice to the Borrower of the application of the default rate until
paid in full (after as well as before judgment) at a rate per annum which is
equal to two percent (2%) in excess of the Base Rate Option. The Borrower
acknowledges that such increased interest rate reflects, among other things,
the fact that such loans or other amounts have become a substantially greater
risk given its default status and that the Banks are entitled to additional
compensation for such risk.
28
(b) In the event, and on each occasion, that prior to the
commencement of any Interest Period for a Eurodollar Loan, the Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that dollar deposits in the principal amount of such Eurodollar Loan
are not generally available in the London interbank market, or that the rate at
which such dollar deposits are being offered will not adequately and fairly
reflect the cost to the Banks of making or maintaining the principal amount of
such Eurodollar Loan during such Interest Period, or that reasonable means do
not exist for ascertaining the Eurodollar Rate, the Agent shall, as soon as
practicable thereafter, give written, telegraphic or telephonic notice of such
determination to the Borrower and the Banks. After such notice shall have been
given and until the circumstances giving rise to such notice no longer exist,
each request for a Eurodollar Loan or for conversion to or maintenance of a
Eurodollar Loan pursuant to the terms of this Agreement shall be deemed to be a
request for a Base Rate Loan.
2.10 Termination, Reduction and Extension of Commitments. (a) The
---------------------------------------------------
Total Commitment shall be automatically terminated on the Termination Date.
(b) Subject to the last sentence of this paragraph, upon at
least five Business Days' prior irrevocable written or telecopy notice to the
Agent, the Borrower may at any time in whole permanently terminate, or from
time to time permanently reduce, the Total Commitment. Each partial reduction
of the Total Commitment shall be in a minimum principal amount of $5,000,000 or
in whole multiples thereof, and no such termination or reduction shall be made
which would, after giving effect to any prepayments of Revolving Credit Loans
on such date reduce the Total Commitment to an amount less than the amount of
the Total Exposure.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Banks in accordance with their respective Commitment
Percentages. The Borrower shall pay to the Agent for the account of the
relevant Banks, on the date of each termination or reduction, the Commitment
Fees on the amount of the Commitments so terminated or reduced accrued to the
date of such termination or reduction. In connection with any reduction of the
Total Commitment, the Borrower shall make any prepayment required under Section
2.11(b).
(d) During the period beginning ninety days prior to the then
effective Termination Date and ending sixty (60) days prior to such Termination
Date, the Borrower may deliver to the Agent (which shall promptly transmit to
each Bank) a notice requesting that the Commitments be extended for an
additional nine months beyond the Termination Date then in effect. Within
forty-five days after its receipt of any such notice, each Bank shall notify
the Agent of its willingness or unwillingness to extend its Commitment. Any
Bank that shall fail to notify the Agent within such period shall be deemed to
have declined to extend its Commitment. If each (but only if each) Bank agrees
to extend its Commitment, the Agent shall so notify the Borrower and each Bank,
whereupon (i) the respective Commitments of the Banks shall without further act
by any party hereto, be extended to the date nine months after the Termination
Date then in effect and (ii) the term "Termination Date" shall thereafter mean
such date. Any such extension shall be evidenced by a written agreement among
the Agent, the Banks and the
29
Borrower, such agreement to be in form and substance acceptable to the Agent
and the Banks. In the event that one or more Banks (each a "Non-Electing Bank")
-----------------
shall have declined or been deemed to have declined to extend its or their
Commitment and Banks holding a majority in amount of the Commitments shall have
notified the Agent of their desire to extend their Commitments, the Borrower
shall have the right, but not the obligation, at its own expense, upon notice
to each such Non-Electing Bank and the Agent, to replace all (but not less than
all) such Non-Electing Banks (in accordance with and subject to the
restrictions contained in Section 9.6) at any time before the thirtieth (30th)
day prior to the Termination Date with one or more assignees (each a
"Replacement Bank") willing to purchase all of the Non-Electing Banks'
----------------
interests hereunder and to agree to extend its or their Commitment in
accordance with the notice referred to in the first sentence of this paragraph
(d). In such event, each Non-Electing Bank shall promptly upon request transfer
and assign without recourse (in accordance with and subject to the restrictions
contained in Section 9.6) all its interests, rights and obligations under this
Agreement to the applicable Replacement Bank; provided, however, that (i) no
-----------------
such assignment shall conflict with any law or any rule, regulation or order of
any Governmental Authority, (ii) the applicable Replacement Bank shall pay to
the applicable Non-Electing Bank in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Non-Electing Bank hereunder and all other amounts
accrued for such Non-Electing Bank's account or owed to it hereunder (including
Commitment Fees and any unpaid costs or expenses), and (iii) a Non-Electing
Bank shall not be required to sell its interests hereunder unless the Borrower
has arranged for one or more Replacement Banks to acquire the interests of all
other Non-Electing Banks. If, as a result of the foregoing, each Bank
(including Replacement Banks, but excluding Non-Electing Banks whose interests
have been purchased as provided above) has agreed to extend its Commitment, the
Commitments shall be extended as provided in clause (i) of the fourth sentence
of this paragraph and the term Termination Date shall have the meaning set
forth in clause (ii) in such fourth sentence of this paragraph (d).
2.11 Optional and Mandatory Prepayments of Revolving Credit Loans
------------------------------------------------------------
(a) The Borrower shall have the right at any time and from time to time to
prepay any Revolving Credit Borrowing, in whole or in part, without premium or
penalty (but in any event subject to Section 2.15), upon prior written,
telecopy or telephonic notice to the Agent given no later than 10:30 a.m.,
Wilmington time, one Business Day before any proposed prepayment; provided,
--------
however, that each such partial prepayment shall be in the principal amount of
-------
at least (x) with respect to Base Rate Loans, $100,000 or in whole multiples
thereof and (y) with respect to Eurodollar Loans, $500,000 or in whole
multiples of $100,000 in excess thereof or, in either case, the entire amount
outstanding, whether or not divisible by $100,000.
(b) On the date of any reduction of the Total Commitment
pursuant to Section 2.10, the Borrower shall pay or prepay so much of the
Revolving Credit Borrowings as shall be necessary in order that, after giving
effect to such reduction and any such payments, the Total Exposure at such time
will not exceed the Total Commitment.
(c) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing of Revolving Credit Loans to be
prepaid, shall be
30
irrevocable and shall commit the Borrower to prepay such Borrowing (or portion
thereof) by the amount stated therein. All prepayments on Eurodollar Loans
under this Section shall be accompanied by accrued interest on the principal
amount being prepaid to the date of prepayment.
2.12 Illegality. Notwithstanding any other provision herein, if any
----------
change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Bank to make or maintain Eurodollar
Loans as contemplated by this Agreement, (a) the commitment of such Bank
hereunder to make or refinance Eurodollar Loans, continue Eurodollar Loans as
such and convert or refinance Base Rate Loans to Eurodollar Loans shall
forthwith be cancelled and (b) such Bank's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Bank such amounts, if any, as may be required pursuant to Section 2.15.
2.13 Requirements of Law. (a) In the event that any change in any
-------------------
Requirement of Law or in the interpretation, or application thereof or
compliance by any Bank with any request or directive (whether or not having the
force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of Credit,
any Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Bank in respect thereof (except for taxes
covered by Section 2.14 and changes in the rate of tax on the overall net
income, gross receipts or revenue of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special deposit or similar requirement against assets held by, deposits or
other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office
of such Bank which is not otherwise included in the determination of the
interest rate on such Eurodollar Loan hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount which such Bank deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof then, in any such case, the Borrower shall as promptly as practicable
pay such Bank, upon its demand, any additional amounts necessary to compensate
such Bank for such increased cost or reduced amount receivable; provided, that
--------
the Borrower shall not be liable for any such amounts incurred by such Bank
more than 90 days prior to the date of such Bank's notification to the
Borrower. If any Bank becomes entitled to claim any additional amounts pursuant
to this subsection, it shall as promptly as practicable notify the
31
Borrower, through the Agent, of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Bank, through the Agent, to the Borrower shall be
reasonably detailed and include supporting documentation, and shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
(b) In the event that any Bank shall have determined that any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Bank's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Bank or such corporation could have achieved but
for such change or compliance (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, after submission by such Bank
to the Borrower (with a copy to the Agent) of a written request therefor, which
shall be reasonably detailed and include supporting documentation, the Borrower
shall pay to such Bank such additional amount or amounts as will compensate
such Bank for such reduction; provided, that the Borrower shall not be liable
--------
for any such amounts incurred by such Bank more than 90 days prior to the date
of such Bank's notification to the Borrower.
(c) Each Bank agrees that it will use reasonable efforts in
order to avoid or to minimize, as the case may be, the payment by the Borrower
of any additional amount under Section 2.13(b); provided, however, that no Bank
-----------------
shall be obligated to incur any expense, cost or other amount in connection
with utilizing such reasonable efforts.
(d) Notwithstanding the foregoing Section 2.13(a), (b) and
(c), the Borrower shall not be required to pay any additional amounts to any
Bank that is not incorporated under the laws of the United States or a state
thereof as a result of any change in any Requirement of Law or compliance by
such Bank with any request or directive from any central bank or Governmental
Authority to the extent that such additional amounts exceed the amounts that
would have been payable by the Borrower under Section 2.13(a), (b) or (c) to a
Bank incorporated under the laws of the United States or a state thereof.
2.14 Taxes. (a) All payments made by the Borrower under this
-----
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority (excluding, net income taxes and franchise or
gross receipts taxes imposed in lieu of net income taxes imposed on the Agent
or any Bank as a result of a present or former connection between the
jurisdiction of the government or taxing authority imposing such tax and the
Agent or such Bank (excluding a connection arising solely from the Agent or
such Bank having executed, delivered or performed its obligations or received a
32
payment under, or enforced, this Agreement or the Notes)) (all such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
-----
withheld from any amounts payable to the Agent or any Bank hereunder or under
the Notes, the amounts so payable to the Agent or such Bank shall be increased
to the extent necessary to yield to the Agent or such Bank (after payment of
all Taxes) interest or any such other amounts payable hereunder at the rates or
in the amounts specified in this Agreement and the Notes. Whenever any Taxes
are payable by the Borrower, as promptly as possible thereafter the Borrower
shall send to the Agent for its own account or for the account of such Bank, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any Taxes
when due to the appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Banks for any incremental taxes, interest or
penalties that may become payable by the Agent or any Bank as a result of any
such failure. The agreements in this subsection shall survive the termination
of this Agreement and the payment of the Notes and all other amounts payable
hereunder.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the
Borrower and the Agent (i) two duly completed copies of United States Internal
Revenue Service Form W-8ECI or W-8BEN or successor applicable form, as the case
may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form. Each such Bank also agrees to deliver to the Borrower and the
Agent two further copies of the said Form W-8ECI or W-8BEN and Form W-8 or W-9,
or successor applicable forms or other manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, and such extensions or renewals
thereof as may reasonably be requested by the Borrower or the Agent, unless in
any such case an event (including, without limitation, any change in treaty,
law or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or which
would prevent such Bank from duly completing and delivering any such form with
respect to it and such Bank so advises the Borrower and the Agent. Such Bank
shall certify (i) in the case of a Form W-8ECI or W-8BEN, that it is entitled
to receive payments under this Agreement without deduction or withholding of
any United States federal income taxes and (ii) in the case of a Form W-8 or
W-9, that it is entitled to an exemption from United States backup withholding
tax.
(c) Notwithstanding the foregoing Section 2.14(a) or (b), the
Borrower shall not be required to pay any additional amounts pursuant to such
Sections (i) to any Bank in respect of United States withholding tax if (A) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Bank to comply with the requirements of Section 2.14(b) or (B)
such Bank shall not have furnished the Borrower with such forms listed in
Section 2.14(b) and shall not have taken such other steps as reasonably may be
available to it under applicable tax laws and any applicable tax treaty or
convention to obtain an exemption from, or reduction (to the lowest applicable
rate) of, such United States withholding tax or (ii) to any Bank that is not
incorporated under the laws of the United States or a state thereof to the
extent that such additional amounts exceed the amounts that would have been
payable by the Borrower
33
under Section 2.14(a) or (b) to a Bank incorporated under the laws of the
United States or a state thereof.
2.15 Indemnity. (a) The Borrower agrees to indemnify each Bank and to
---------
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (i) default by the Borrower in payment when due of
the principal amount of or interest on any Eurodollar Loan, (ii) default by the
Borrower in making a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (iii) default by the Borrower
in making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (iv) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an
Interest Period with respect thereto. This covenant shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
(b) For the purpose of calculation of all amounts payable to a
Bank under this subsection, each Bank shall be deemed to have actually funded
its relevant Eurodollar Loan through the purchase of a deposit bearing interest
at the Eurodollar Rate in an amount equal to the amount of that Eurodollar Loan
and having a maturity comparable to the relevant Interest Period; provided,
--------
however, that each Bank may fund each of its Eurodollar Loans in any manner it
-------
sees fit, and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this subsection. This covenant shall
survive the termination of this Agreement and the payment of the Notes and all
other amounts payable hereunder.
2.16 Pro Rata Treatment, etc. Except as required under Section
-----------------------
2.12, each Revolving Credit Borrowing, each payment or prepayment of principal
of any Revolving Credit Borrowing, each payment of interest on the Revolving
Credit Loans, each payment of Letter of Credit fees (other than fees for the
account of the Issuing Bank), each reduction of the Commitments, each
refinancing of any Borrowing with a Revolving Credit Borrowing of any Type,
each payment of Commitment Fees and each conversion of Revolving Credit Loans,
shall be made pro rata among the Banks in accordance with their respective
--- ----
Commitment Percentages. Each Bank agrees that in computing such Bank's portion
of any Borrowing to be made hereunder, the Agent may, in its discretion, round
each Bank's percentage of such Borrowing to the next higher or lower whole
dollar amount.
2.17 Payments. The Borrower shall make each payment (including
--------
principal of or interest on any Loan or any fees or other amounts) hereunder
not later than 12:00 (noon), Wilmington time, on the date when due in Dollars
to the Agent at its offices specified in Section 9.2 or at such other place as
may be designated by the Agent, in immediately available funds. Such payments
shall be made without set off or counterclaim of any kind. The Agent shall
distribute to the Banks any payments received by the Agent on the date received
in like funds as received.
(b) Whenever any payment (including principal of or interest
on any Loan or any fees or other amounts) hereunder shall become due, or
otherwise would occur, on a
34
day that is not a Business Day, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, if applicable.
2.18 Conversion and Continuation Options. The Borrower shall have
-----------------------------------
the right at any time upon prior irrevocable notice to the Agent (i) not later
than 12:00 noon, Wilmington time, on the Business Day of conversion, to convert
any Eurodollar Loan to a Base Rate Loan, (ii) not later than 12:00 noon,
Wilmington time, three Business Days prior to conversion or continuation, to
(y) convert any Base Rate Loan into a Eurodollar Loan, or (z) to continue any
Eurodollar Loan as a Eurodollar Loan for any additional Interest Period and
(iii) not later than 12:00 noon, Wilmington time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurodollar Loan
to another permissible Interest Period, subject in each case to the following:
-------
(a) a Eurodollar Loan may not be converted at a time other
than the last day of the Interest Period applicable thereto;
(b) any portion of a Loan maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Loan;
(c) no Eurodollar Loan may be continued as such and no Base
Rate Loan may be converted to a Eurodollar Loan when any Default or Event of
Default has occurred and is continuing and the Agent or the Required Banks have
determined that such a continuation is not appropriate;
(d) any portion of a Eurodollar Loan that cannot be converted
into or continued as a Eurodollar Loan by reason of Section 2.18(b) or (c)
automatically shall be converted at the end of the Interest Period in effect
for such Loan to a Base Rate Loan; and
(e) on the last day of any Interest Period for Eurodollar
Loans if the Borrower shall have failed to give notice of conversion or
continuation as described in this subsection or if such conversion or
continuation is not permitted pursuant to this Section 2.18, such Loans shall
be converted to Base Rate Loans on the last day of such then expiring Interest
Period.
Accrued interest on a Loan (or portion thereof) being converted shall be paid
by the Borrower at the time of conversion.
2.19 Use of Proceeds. The Letters of Credit and the proceeds of the
---------------
Loans shall be used by the Borrower for working capital and general corporate
purposes in the ordinary course of business (including, but not limited to,
refinancing existing working capital-related indebtedness and, subject to the
other provisions of this Agreement, acquisition financing).
35
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Banks to enter into this Agreement, and
to make the Loans and to issue and/or participate in Letters of Credit, the
Borrower hereby represents and warrants to the Agent and each Bank that:
3.1 Financial Condition. (a) Audited Financials. The consolidated
------------------- ------------------
balance sheet of the Borrower and its consolidated Subsidiaries as at December
31, 2000 and the related consolidated statements of income and of cash flows
for the fiscal year ended on such date, copies of which have heretofore been
furnished to each Bank, present fairly the consolidated financial condition of
the Borrower and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash flows for
the fiscal year then ended. All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved. Neither the Borrower nor
any of its consolidated Subsidiaries had, as of December 31, 2000, any material
Contingent Obligation, liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without limitation, any Interest
Hedge Agreement, which is not reflected in the financial statements contained
in the Borrower's Annual Report on Form 10-K for the period ended December 31,
2000 or the notes thereto.
(b) No Sales. During the period from December 31, 2000, to and
--------
including the date of this Agreement there has been no sale, transfer or other
disposition by the Borrower or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any Capital Stock of any other Person)
material in relation to the financial condition of the Borrower and its
consolidated Subsidiaries at December 31, 2000 except for the transaction
referred to in Section 6.4(c) hereof.
3.2 No Adverse Change. Since December 31, 2000, there has been no
-----------------
development or event nor any prospective development or event which has had or
could reasonably be expected individually or in the aggregate to have a
Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each of the Borrower
----------------------------------------
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to be so
qualified and/or in good standing could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
36
3.4 Corporate Power; Authorization; Enforceable Obligations. The
-------------------------------------------------------
Borrower has the corporate power, authority, and legal right, to make, deliver
and perform this Agreement, the Notes and the other Loan Documents to which it
is a party and to borrow hereunder and has taken all necessary corporate action
to authorize the borrowings on the terms and conditions of this Agreement and
the Notes and to authorize the execution, delivery and performance of this
Agreement, the Notes and the other Loan Documents to which it is a party. No
consent or authorization of, filing with or other act by or in respect of, any
Governmental Authority or any other Person (including stockholders and
creditors of the Borrower) is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement, the Notes or the other Loan Documents. This
Agreement has been, and each Note and other Loan Document will be, duly
executed and delivered on behalf of the Borrower. This Agreement constitutes,
and each Note and other Loan Document when executed and delivered will
constitute, a legal, valid and binding obligation of the Borrower enforceable
against the Borrower in accordance with its 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).
3.5 No Legal Bar. The execution, delivery and performance of this
------------
Agreement, the Notes and the other Loan Documents by the Borrower, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of the Borrower or of any of its
Subsidiaries and will not result in, or require, the creation or imposition of
any Lien on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to this Agreement, the Notes or the other Loan Documents or
any of the transactions contemplated hereby, or (b) as to which there is a
reasonable likelihood of an adverse determination and which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
3.7 No Default. Neither the Borrower nor any of its Subsidiaries is
----------
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
3.8 Taxes. Each of the Borrower and its Subsidiaries has filed or
-----
caused to be filed all tax returns which, to its knowledge, are required to be
filed and has paid all taxes shown to be due and payable on said returns or on
any assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any Governmental
Authority (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
Borrower or its Subsidiaries, as
37
the case may be); no tax Lien has been filed against the Borrower or any of its
Subsidiaries, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charges.
3.9 Federal Regulations. No part of the proceeds of any Loans
-------------------
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U or for any
purpose which violates the provisions of Regulation U. If requested by any Bank
or the Agent, the Borrower will furnish to the Agent and each Bank a statement
to the foregoing effect in conformity with the requirements of FR Form U-l
referred to in said Regulation U. No part of the proceeds of the loans
hereunder will be used for any purpose which violates, or which is inconsistent
with, the provisions of Regulation X.
3.10 ERISA. (a) Neither a Reportable Event nor an "accumulated
-----
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan, and each Single Employer Plan has compiled in all material
respects with the applicable provisions of ERISA and the Code. No termination
of a Single Employer Plan has occurred and no lien in favor of the PBGC or a
Plan has arisen during the five-year period prior to the date as of which this
representation is made or deemed made. No other event or condition has occurred
or exists with respect to any Plan that could reasonably be expected
individually or in the aggregate to have a Material Adverse Effect.
(b) The present value of all accrued benefits under
each Single Employer Plan in which the Borrower or any Commonly Controlled
Entity is a participant (based on those assumptions used to fund the Plans)
Did not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by an amount in excess of ten percent
(10%) of Consolidated Net Worth as of the end of the most recent fiscal year of
the Borrower for which financial statements have been delivered to the Banks
pursuant to this Agreement.
(c) Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan,
and neither the Borrower nor any Commonly Controlled Entity would become
subject to any liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as
of the valuation date most closely preceding the date on which this
representation is made or deemed made, in any such case which could reasonably
be expected individually or in the aggregate to have a Material Adverse Effect.
(d) To the Borrower's knowledge, no such Multiemployer
Plan is in "reorganization" or "insolvent," within the meaning of such terms as
used in ERISA.
(e) The present value (determined using actuarial and
other assumptions which are reasonable in respect of the benefits provided and
the employees participating) of the liability of the Borrower and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are
38
welfare benefit plans (as defined in Section 3(1) of ERISA) does not, in the
aggregate, exceed the assets under all such Plans allocable to such benefits by
an amount in excess of ten percent (10%) of the Borrower's consolidated net
worth as of the end of the most recent fiscal year of the Borrower for which
financial statements have been delivered to the Banks pursuant to this
Agreement.
3.11 Investment Company Act; Public Utility Holding Company Act.
----------------------------------------------------------
Neither the Borrower nor any of its Subsidiaries is (a) an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended; (b) a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a "holding company" or a "subsidiary company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, or (c) subject to any
other federal or state law or regulation which purports to restrict or regulate
its ability to borrow money.
3.12 Purpose of Loans; Letters of Credit. The proceeds of the
-----------------------------------
Loans and the Letters of Credit shall only be used by the Borrower for the
purposes permitted under Section 2.19.
3.13 Environmental Matters. To the best knowledge of the Borrower,
---------------------
each of the representations and warranties set forth in paragraphs (a) through
(e) of this subsection is true and correct with respect to each parcel of real
property owned or operated by the Borrower or any of its Subsidiaries (the
"Properties"), except to the extent that the facts and circumstances giving
----------
rise to any such failure to be so true and correct could not reasonably be
expected to have a Material Adverse Effect:
(a) The Properties do not contain, and have not previously
contained, in, on, or under, including, without limitation, the soil and
groundwater thereunder, any Materials of Environmental Concern in
concentrations which violate Environmental Laws.
(b) The Properties and all operations and facilities at
the Properties are in compliance with Environmental Laws, and there is no
Materials of Environmental Concern contamination or violation of any
Environmental Law which would materially interfere with the continued operation
of any of the Properties or materially impair the fair saleable value of any
thereof.
(c) Neither the Borrower nor any of its Subsidiaries has
received or is aware of any claim, notice of violation, alleged violation,
non-compliance, investigation or advisory action or potential liability
regarding environmental matters or compliance of Environmental Law with regard
to the Properties which has not been satisfactorily resolved by the Borrower or
such Subsidiary, nor is the Borrower or any of its Subsidiaries aware or have
reason to believe that any such action is being contemplated, considered or
threatened.
(d) Materials of Environmental Concern have not been
generated, treated, stored, disposed of, at, on or under any of the Properties
in violation of Environmental Laws, nor have any Materials of Environmental
Concern been transferred from the Properties to
39
any other location except in either case in the ordinary course of business of
the Borrower and its Subsidiaries and in material compliance with all
Environmental Laws.
(e) There are no governmental, administrative actions or
judicial proceedings pending or, to the best knowledge of the Borrower,
contemplated under any Environmental Laws to which the Borrower or any of its
Subsidiaries is or will be named as a party with respect to the Properties, 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 Properties.
3.14 No Burdensome Restrictions. No Requirement of Law or
--------------------------
Contractual Obligation of the Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
3.15 Ownership of Borrower and Subsidiaries. The beneficial
--------------------------------------
ownership of the Capital Stock of the Borrower by its executive officers,
directors and 5% shareholders has not changed materially from that set forth in
the Borrower's most recent proxy statement as filed with the Securities and
Exchange Commission. The Borrower owns all of the issued and outstanding
capital stock of each of the Guarantors and, as of the date of this Agreement,
the Borrower owns all of the issued and outstanding Capital Stock of each of
its Subsidiaries.
3.16 Patents, Trademarks, etc. Each of the Borrower and its
------------------------
Subsidiaries has obtained and holds in full force and effect or is licensed to
use all patents, trademarks, servicemarks, trade names, copyrights and other
such rights, free from burdensome restrictions, which are necessary for the
operation of its business as presently conducted. To the Borrower's best
knowledge, no material product, process, method, substance, part or other
material presently sold by or employed by the Borrower or any Subsidiary in
connection with such business infringes any patent, trademark, service xxxx,
trade name, copyright, license or other right owned by any other Person. There
is not pending or, to the Borrower's knowledge, overtly threatened any claim or
litigation against or affecting the Borrower or any Subsidiary contesting its
right to sell or use any such product, process, method, substance, part or
other material which could reasonably be expected to have a Material Adverse
Effect.
3.17 Ownership of Property. Each of the Borrower and its
---------------------
Subsidiaries has good and marketable fee simple title to or valid leasehold
interests in all real property owned or leased by it, and good title to all of
its personal property subject to no Lien of any kind except Permitted Liens.
3.18 Licenses, etc. Each of the Borrower and its Subsidiaries
-------------
has obtained and holds in full force and effect, all franchises, licenses,
permits, certificates, authorizations, qualifications, easements, rights of way
and other rights, consents and approvals which are necessary for the operation
of its business as presently conducted.
3.19 Labor Matters. Except as set forth on Schedule 3.19, as of
------------- -------------
the Effective Date, there are no collective bargaining agreements or
Multiemployer Plans covering the employees of the Borrower, and the Borrower
has not suffered any strikes, walkouts, work
40
stoppages or other material labor difficulty within the last five years and to
the best knowledge of the Borrower, there are none now threatened.
3.20 Material Contracts. All material contracts relating to the
------------------
business operations of the Borrower are valid, binding and enforceable upon the
Borrower and, to the Borrower's knowledge, each of the parties thereto in
accordance with their respective terms, and there is no material default
thereunder, to the Borrower's knowledge, with respect to parties other than the
Borrower.
3.21 Insurance. The Borrower currently maintains insurance which
---------
meets or exceeds the requirements of Section 5.5. Except as set for on Schedule
3.21, no notice has been given or claim made and no grounds exist to cancel or
avoid any insurance policies or other bonds to which the Borrower is a party or
to reduce the coverage provided thereby or any replacements thereof. Such
policies and bonds or any replacements thereof provide adequate coverage from
reputable and financially sound insurers in amounts sufficient to insure the
assets and risks of the Borrower in accordance with prudent business practice
in the industry of the Borrowers.
3.22 Senior Debt Status. The obligations of the Borrower under
------------------
this Agreement and the Notes do rank and will rank at least pari passu in
---- -----
priority of payment with all other indebtedness of the Borrower except
indebtedness of the Borrower to the extent secured by Permitted Liens. There is
no Lien upon or with respect to any of the properties or income of the Borrower
which secures indebtedness or other obligations of any Person except for
Permitted Liens.
3.23 No Material Misstatements. To the best of the Borrower's
-------------------------
knowledge, no information furnished by or on behalf of the Borrower or any
Subsidiary to the Agent or any Bank in this Agreement or any Schedule or
Exhibit attached hereto, contains any misstatement of fact, or omitted or omits
to state any fact necessary to make the statements therein not misleading,
where such misstatement or omission would be material to the interests of the
Banks with respect to the Borrower's performance of its obligations hereunder.
Any projections, forecasts or budgets provided by the Borrower to the Agent or
any Bank (other than the financial projections delivered pursuant to Section
5.2(b) hereof) are expressly excluded from this Section and the Borrower makes
no representation or warranty as to their accuracy or reliability. With regard
to the financial projections delivered pursuant to Section 5.2(b), the Borrower
shall be entitled to a cross-reference therein to the forward-looking
statements disclaimers contained in its filings with the Securities and
Exchange Commission and the benefits of the safe harbor afforded under the
Private Securities Litigation Reform Act of 1995.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The effectiveness of this
----------------------------
Agreement and the agreement of each Bank to make the initial Extension of
Credit is subject to the satisfaction of
41
the following conditions precedent immediately prior to or concurrently with
such Extension of Credit:
(a) Loan Documents. The Agent shall have received (i)
--------------
this Agreement, executed and delivered by a duly authorized officer of the
Borrower, with a counterpart for each Bank, (ii) for the account of each Bank,
a Revolving Credit Note conforming to the requirements hereof and executed by a
duly authorized officer of the Borrower, (iii) for the account of the Swing
Line Bank, the Swing Line Note conforming to the requirements hereof and
executed by a duly authorized officer of the Borrower and (iv) the Guaranty
Agreement, executed and delivered by a duly authorized officer of each
Guarantor.
(b) Corporate Proceedings of the Borrower and the
---------------------------------------------
Guarantors. The Agent shall have received a copy of the resolutions or other
----------
corporate proceedings or action, in form and substance satisfactory to the
Agent, (i) taken on behalf of the Borrower authorizing (A) the execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which it is a party, and (B) the borrowings contemplated
hereunder, and (ii) taken on behalf of each Guarantor authorizing the
execution, delivery and performance of the Guaranty Agreement, in each case
certified by the secretary or assistant secretary of the Borrower or such
Guarantor as of the Effective Date, which certificates shall state that such
resolutions, or other corporate proceedings or action thereby certified have
not been amended, modified, revoked or rescinded and shall be in form and
substance satisfactory to the Agent.
(c) Representations and Warranties True; No Default. The
-----------------------------------------------
representations and warranties of the Borrower contained in Section 3 hereof
shall be true and accurate on and as of the Effective Date with the same effect
as though such representations and warranties had been made on and as of such
date (except representations and warranties which relate solely to an earlier
date or time, which representations and warranties shall be true and correct on
and as of the specific dates or times referred to therein), and the Borrower
shall have performed and complied with all covenants and conditions hereof; and
no Event of Default or Default under this Agreement shall have occurred and be
continuing or shall exist; and the Borrower shall have delivered to the Agent a
certificate to that effect signed by a Responsible Officer.
(d) Corporate Documents. The Agent shall have received
-------------------
true and complete copies of the articles or certificate of incorporation and
bylaws of the Borrower, certified as of the Effective Date as complete and
correct copies thereof by the secretary or assistant secretary of the Borrower,
or a certificate from the secretary or assistant secretary of the Borrower to
the effect that there have been no changes in the articles or certificate of
incorporation and bylaws of the Borrower from the copies most recently
delivered to the Agent, and a good standing certificate recently issued by the
Secretary of State (or the equivalent thereof) of the jurisdiction of
incorporation of the Borrower and each Guarantor and of each state in which the
Borrower is required to be qualified to transact business.
(e) Incumbency. The Agent shall have received (i) a
----------
written certificate dated the Effective Date by the secretary or assistant
secretary of the Borrower as to
42
the names and signatures of the officers of the Borrower authorized to sign
this Agreement and the other Loan Documents and (ii) a written certificate
dated the Effective Date by the secretary or assistant secretary of each
Guarantor as to the names and signatures of the officers of such Guarantor
authorized to sign the Guaranty Agreement. The Agent may conclusively rely on
such certificates until it shall receive a further certificate by the secretary
or assistant secretary of the Borrower or any Guarantor amending such prior
certificate.
(f) Fees and Expenses. The Borrower shall pay or cause to
-----------------
be paid to the Agent the fees to be received on the Effective Date referred to
herein and the reasonable costs and expenses for which the Agent and the Banks
are entitled to be reimbursed.
(g) Legal Opinion. The Agent shall have received the
-------------
executed legal opinion of Xxxxx X. Xxxxxxxxxx, Esquire, General Counsel to the
Borrower and the Guarantors, substantially in the form of Exhibit E hereto.
---------
Such opinion shall be addressed to the Banks and the Agent and cover such other
matters incident to the transactions contemplated by this Agreement as the
Agent may reasonably require.
(h) Leverage Ratio. On the Effective Date, and after
--------------
giving effect to the spin off of the Borrower's gaming operations in the
transactions referred to in Section 6.4(c), the Leverage Ratio shall not exceed
3.75 to 1.00, and the Borrower shall have delivered to the Agent evidence
thereof satisfactory to the Agent.
(i) UCC Filing and Other Searches. The Agent shall have
-----------------------------
received the results of such additional Uniform Commercial Code searches made
with respect to the Borrower and its Subsidiaries, if any, as the Agent shall
require, together with copies of financing statements disclosed by such
searches, and the foregoing searches shall disclose no Liens, except for
Permitted Liens or, if unpermitted Liens are disclosed, the Agent shall have
received satisfactory evidence of the release of such Liens.
(j) Further Investigation. The Agent shall have completed
---------------------
all investigations or other due diligence regarding the spin off of the
Borrower's gaming operations in the transactions referred to in Section 6.4(c)
as the Agent deems necessary in its sole discretion.
(k) Existing Credit Agreements. On or before the
--------------------------
Effective Date, the Existing Credit Agreements shall have been terminated and
all Debt thereunder shall have been repaid in full which repayment may be made
simultaneously from advances of the Loans as permitted by Section 2.19 hereof.
4.2 Conditions to Each Extension of Credit. The agreement of each
--------------------------------------
Bank to make any Extension of Credit requested to be made by it on any date
(including, without limitation, the first such Extension of Credit hereunder)
is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
------------------------------
representations and warranties (i) made by the Borrower herein or (ii) which
are contained in any certificate,
43
document or financial or other statement furnished at any time under or in
connection herewith or therewith shall be true and correct in all material
respects on and as of such date as if made on and as of such date (except
representations and warranties which expressly relate solely to an earlier date
or time, which representations and warranties shall be true and correct on and
as of the specific dates or times referred to therein and subject as to any
representations or warranties referred to in subsection (ii) above to the
exclusions and qualifications referred to in the last two sentences of Section
3.23).
(b) No Default. No Default or Event of Default shall have
----------
occurred and be continuing on such date or after giving effect to the
Extensions of Credit requested to be made on such date.
(c) Additional Matters. All corporate and other
------------------
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and the other
Loan Documents shall be satisfactory in form and substance to the Agent, and
the Agent shall have received such other documents in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
Each borrowing by the Borrower hereunder or request for the issuance of a
Letter of Credit shall constitute a representation and warranty by the Borrower
as of the date of such Loan or issuance of such Letter of Credit that the
conditions contained in this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid, any Letter of Credit remains
outstanding or any other amount is owing to any Bank or the Agent hereunder,
the Borrower shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Bank:
--------------------
(a) as soon as available, but in any event not later than
100 days after the close of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its consolidated
Subsidiaries, including therein the consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such fiscal year, and
related consolidated statement of income, retained earnings and cash flow of
the Borrower and its consolidated Subsidiaries for such fiscal year, setting
forth in each case in comparative form the corresponding figures for the
preceding fiscal year, all in reasonable detail, prepared in accordance with
GAAP applied on a basis consistently maintained throughout the period involved
and with the prior year with such changes therein as shall be approved by the
Borrower's independent certified public accountants, such consolidated
financial statements to be certified by independent certified public
accountants selected by the Borrower from among the five largest accounting
firms in the United States on the date of this Agreement or their successors,
or otherwise acceptable to the Agent, without a "going concern" or like
qualification
44
or any exception or qualification arising out of the restricted or
limited nature of the examination made by such accountants; and
(b) as soon as available, but in any event not later than
55 days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated financial statements of
the Borrower and its consolidated Subsidiaries, including therein (i) the
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at the end of such fiscal quarter, (ii) the related consolidated statement of
income, retained earnings and cash flow of the Borrower and its consolidated
Subsidiaries, and (iii) the related consolidated statement of changes in
financial position of the Borrower and its consolidated Subsidiaries all for
the period from the beginning of such fiscal year to the end of such fiscal
quarter, setting forth in each case in comparative form the corresponding
figures for the like period of the preceding fiscal year; all in reasonable
detail, prepared in accordance with GAAP applied on a basis consistently
maintained throughout the period involved and with prior periods.
5.2 Certificates; Other Information. Furnish to each Bank:
-------------------------------
(a) concurrently with the delivery of the financial
statements referred to in Sections 5.1(a) and (b), a certificate of a
Responsible Officer (each a "Compliance Certificate"), in the form of Exhibit F
---------- ----------- ---------
hereto, showing in detail the calculations demonstrating compliance with
Section 6.1 and stating that, to the best of his or her knowledge, the Borrower
during such period has kept, observed, performed and fulfilled each and every
covenant and condition contained in this Agreement and in the Notes and the
other Loan Documents applicable to it and that he or she obtained no knowledge
of any Default or Event of Default except as specifically indicated;
(b) as soon as available, but in any event not later than
100 days after the end of each fiscal year, (i) detailed capital expenditure
budgets of the Borrower and each of its Subsidiaries by quarter and (ii) a
forecasted consolidated balance sheet, statement of income and statement of
cash flows for the Borrower and its Subsidiaries by quarter in each case for
the following fiscal year;
(c) promptly upon their becoming available, but in any
event not later than 100 days after the end of each fiscal year, any reports
including management letters submitted to the Borrower or any Subsidiary by
independent accountants in connection with any annual, interim or special audit;
(d) financial statements, reports, notices or proxy
statements distributed by the Borrower to its stockholders on a date no later
than three Business Days after the date supplied to such stockholders; and
(e) promptly, such additional financial and other
information as any Bank or the Agent may from time to time reasonably request.
45
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy
----------------------
at or before maturity or before they become delinquent, as the case may be, all
its obligations of whatever nature, except (a) when the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or a Subsidiary, as the case may be, and (b) where
the failure so to pay such indebtedness could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.4 Conduct of Business and Maintenance of Existence. Continue to
------------------------------------------------
engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges, trademarks,
trade names, licenses, franchises and other authorizations necessary or
desirable in the normal conduct of its business; comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not reasonably be expected to have, in the aggregate, a
Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Maintain in good repair,
----------------------------------
working order and condition (ordinary wear and tear excepted) in accordance
with the general practice of other businesses of similar character and size,
all of those properties material or necessary to its business, and from time to
time make or cause to be made all appropriate repairs, renewals or replacements
thereof.
(b) Insure its properties and assets against loss or
damage by fire and such other insurable hazards as such assets are commonly
insured (including fire, extended coverage, property damage, worker's
compensation, public liability and business interruption insurance) and against
other risks (including errors and omissions) in such amounts as similar
properties and assets are insured by prudent companies in similar circumstances
carrying on similar businesses, and with reputable and financially sound
insurers, including self-insurance to the extent customary. The Borrower shall
deliver at the request of the Agent from time to time a summary schedule
indicating all insurance then in force with respect to the Borrower.
5.6 Inspection of Property; Books and Records;Discussions.(a)
----------------------------------------------------
Permit any of the officers or authorized employees or representatives of the
Agent or any of the Banks to visit and inspect during normal business hours any
of its properties and to examine and make excerpts from its books and records
and discuss its business affairs, finances and accounts (including those of its
Affiliates) with its officers, all in such detail and at such times and as
often as any of the Banks may reasonably request, provided, that each Bank
--------
shall provide the Borrower and the Agent with reasonable notice prior to any
visit or inspection.
(b) Maintain and keep proper books of record and account
which enable the Borrower and its Subsidiaries to issue financial statements in
accordance with GAAP and as otherwise required by applicable Requirements of
Law, and in which full, true and correct entries shall be made in all material
respects of all its dealings and business and financial affairs.
46
5.7 Notices. Promptly give notice to the Agent and each Bank of:
-------
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Borrower or any of the Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time between the
Borrower or any of the Subsidiaries and any Governmental Authority, which in
either case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) commencement of any litigation or proceeding
affecting the Borrower or any of the Subsidiaries in which the amount involved
is $1,000,000 or more and not covered by insurance or in which injunctive or
similar relief is sought;
(d) the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence of any Reportable Event with respect to any Plan, any Lien
in favor of PBGC or any Plan, or any withdrawal from, or the termination,
Reorganization or Insolvency of any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any
Single Employer Plan in a distress termination under Section 4041(c) of ERISA
or Multiemployer Plan; and
(e) an event which has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
5.8 Environmental Laws. (a) Comply with, and require compliance
------------------
by all tenants and to the extent possible, all subtenants, if any, with, all
Environmental Laws and obtain and comply with and maintain, and require that
all tenants and to the extent possible, all subtenants obtain and comply with
and maintain, any and all licenses, approvals, registrations or permits
required by Environmental Laws except to the extent that failure to so comply
or obtain or maintain such documents could not reasonably be expected to have a
Material Adverse Effect.
(b) Comply with all lawful and binding orders and
directives of all Governmental Authorities respecting Environmental Laws except
to the extent that failure to so comply could not reasonably be expected to
have a Material Adverse Effect.
(c) Defend, indemnify and hold harmless the Agent and the
Banks, and their respective employees, agents, officers, directors, successors
and assigns from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to any violation of or noncompliance with or liability under any
47
Environmental Laws, or any orders, requirements or demands of Governmental
Authorities related thereto which in each case relate to or arise in connection
with the Borrower or any Subsidiary, any property or assets thereof or any
activities relating to any other property or business of a Borrower or any
Subsidiary thereof or the enforcement of any rights provided herein or in the
other Loan Documents, including, without limitation, attorneys' and
consultants' fees, response costs, investigation and laboratory fees, court
costs and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of any of the foregoing
enumerated parties. This indemnity shall continue in full force and effect
regardless of the termination of this Agreement and the payment of the Notes.
5.9 Management Changes. Notify the Agent in writing within thirty
------------------
(30) days after any change of its executive officers.
5.10 Name Change. Following the completion of the transactions
-----------
referred to in Section 6.4(c) and the change of the Borrower's name to Dover
Motorsports, Inc., the Borrower shall take such action from time to time
(including, filing executing and delivering such amendments and other
instruments) as shall be reasonably requested by the Agent to give effect to
such name change in the Loan Documents.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid, any Letter of Credit remains
outstanding or any other amount is owing to any Bank or the Agent hereunder,
the Borrower shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, without the prior written consent of the Required Banks:
6.1 Financial Condition Covenants.
-----------------------------
(a) Leverage Ratio. Permit as of the end of any fiscal
--------------
quarter during the periods specified below the Leverage Ratio to exceed that
set forth opposite such periods:
48
-------------------------------------------------------
Period Ratio
------ -----
-------------------------------------------------------
March 31, 2002 through June 29, 2002 3.65 to 1
-------------------------------------------------------
June 30, 2002 through September 29, 2002 3.50 to 1
-------------------------------------------------------
September 30, 2002 through December 30, 2002 3.25 to 1
-------------------------------------------------------
December 31, 2002 through March 30, 2003 3.00 to 1
-------------------------------------------------------
March 31, 2003 and thereafter 2.75 to 1
-------------------------------------------------------
(b) Fixed Charge Coverage Ratio. Permit as of the end of
---------------------------
any fiscal quarter the Fixed Charge Coverage Ratio to be less than 1.25 to 1.
(c) Maintenance of Tangible Net Worth. Permit
---------------------------------
Consolidated Tangible Net Worth on any day to be less than (i) ninety percent
(90%) of the Consolidated Tangible Net Worth after giving effect to the spin
off of the Borrower's gaming operations in the transaction referred to in
Section 6.4(c), plus (ii) an amount equal to 25% of the consolidated net income
(if positive) of the Borrower and its Subsidiaries for each fiscal quarter
ending after March 31, 2002, calculated on a cumulative basis plus (iii) 100%
of the Net Proceeds from the issuance after the date hereof of Capital Stock of
the Borrower or any Subsidiary thereof, other than to the Borrower or any
Subsidiary thereof.
6.2 Limitation on Debt. At any time incur, create, assume, or
------------------
suffer to exist any Debt except:
(a) amounts outstanding hereunder or under the other
Loan Documents;
(b) Debt under Capital Leases or secured by Purchase
Money Security Interests (including those in existence on the date hereof) in
an aggregate principal amount not exceeding $5,000,000 in any fiscal year;
(c) any Debt relating to a Lien identified on Schedule
III; and
(d) other guarantees, loans or advances made in the
ordinary course of business which shall not exceed an aggregate of $2,000,000.
6.3 Limitation on Liens. Create, incur, assume or suffer to exist
-------------------
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for Permitted Liens.
49
6.4 Limitations on Fundamental Changes. Enter into any merger,
----------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets except:
(a) any Subsidiary of the Borrower, may be merged or
consolidated with or into the Borrower (provided, that the Borrower shall be
the continuing or surviving corporation) or with or into any one or more
wholly-owned Subsidiaries of the Borrower (provided, that the wholly-owned
--------
Subsidiary or Subsidiaries shall be the continuing or surviving corporation);
(b) any wholly-owned Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any wholly-owned Subsidiary of the Borrower; and
(c) the transactions described in the Registration
Statement on Form 10, filed by the Borrower and bearing SEC File No. 001-16791;
provided, that immediately after each such transaction and after giving effect
--------
thereto, the Borrower is in compliance with this Agreement and no Default or
Event of Default shall be in existence or result from such transaction.
6.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
----------------------------
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, accounts receivables and leasehold interests),
whether now owned or hereafter acquired, except:
(a) any sale, transfer or lease of assets in the ordinary
course of business which are no longer necessary or required in the conduct of
the Borrower's or any Subsidiary's business;
(b) transactions involving the sale, license or lease of
assets in the ordinary course of business;
(c) the sale or discount without recourse of accounts
receivable only in connection with the compromise thereof or the assignment of
past-due accounts receivable for collection;
(d) as permitted by Section 6.4;
(e) transfers between the Borrower and its Subsidiaries or
between one Subsidiary and another Subsidiary; and
(f) in addition to the above Sections 6.5(a) through
6.5(e) inclusive, sales of assets of the Borrower and its Subsidiaries for fair
market value, provided, that the aggregate amount of such sales, determined in
--------
accordance with GAAP, in any fiscal year does
50
not exceed ten percent (10%) of the Borrower's consolidated assets as at the
end of the immediately preceding fiscal quarter.
6.6 Limitations on Acquisitions, Investments, Loans and Advances.
------------------------------------------------------------
Purchase, hold or acquire beneficially any stock, other securities or evidences
of indebtedness of, make or permit to exist any loans or advances to, or make
or permit to exist any investment or acquire any interest whatsoever in, any
other Person, except:
(a) extensions of trade credit to customers in the
ordinary course of business;
(b) Permitted Investments;
(c) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the ordinary
course of business;
(d) Capital Stock of any Subsidiary;
(e) loans and advances by the Borrower to its wholly-owned
Subsidiaries; and
(f) Permitted Acquisitions.
6.7 Limitation on Distributions. Declare or pay any Distribution
---------------------------
(whether in cash or property or obligations of the Borrower or any Subsidiary
thereof) in respect of the Borrower or any Subsidiary thereof except:
(a) Any wholly-owned Subsidiary may declare and pay
dividends or other distributions to the Borrower or any other wholly-owned
Subsidiary; and
(b) So long as no Default or Event of Default exists or
would be caused thereby, the Borrower (i) may declare and pay dividends on its
Capital Stock in the ordinary course of business consistent with past practice
and (ii) may declare and pay dividends on its Capital Stock in excess of those
paid historically; provided, that the amount of any such increase in dividends
--------
paid during any fiscal year does not exceed, in the aggregate, 50% of
Consolidated Net Income for the previous fiscal year.
6.8 Transactions with Affiliates. Except as expressly permitted
----------------------------
in this Agreement, directly or indirectly enter into any transaction or
arrangement whatsoever or make any payment to or otherwise deal with any
Affiliate, except, as to all of the foregoing in the ordinary course of and
pursuant to the reasonable requirements of the Borrower's or its Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower
or such Subsidiary than would be obtained in a comparable arm's length
transaction with a Person not an Affiliate of the Borrower.
51
6.9 Fiscal Year. Permit its fiscal year to end on a day other than
-----------
December 31 unless prior written notice thereof has been given to the Agent
and the Banks.
6.10 Change in Business. Engage in any business either directly or
------------------
through any Subsidiary except for businesses in which the Borrower or any
Subsidiary is engaged in on the date of this Agreement and any businesses
related to such existing businesses.
6.11 Change of Control. Permit any Change of Control.
-----------------
6.12 Sale and Leaseback. Enter into any arrangement with any Person
------------------
providing for the leasing by the Borrower or any Subsidiary thereof of real or
personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations thereof.
6.13 Limitation on Negative Pledge Clauses. Enter into any agreement
-------------------------------------
with any Person other than the Banks which prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its properties, assets or revenues, whether now
owned or hereafter acquired; provided, that the Borrower or any Subsidiary
--------
thereof may enter into such an agreement in connection with a Purchase Money
Security Interest or Capital Lease permitted hereunder, provided that such
prohibition or limitation is by its terms effective only against the assets
subject to such Lien.
6.14 Interest Hedge Agreements. Enter into any interest hedge
-------------------------
agreement other than an Interest Hedge Agreement, which in any event will be
unsecured, and with respect to which the prior approval of the Agent, which
shall not be unreasonably withheld, shall have been obtained.
SECTION 7. EVENTS OF DEFAULT
7.1 Events of Default. If any of the following events shall occur
-----------------
and be continuing:
(a) The Borrower shall fail to pay any principal of any Note or
any Reimbursement Obligation when due in accordance with the terms thereof or
hereof; or the Borrower shall fail to pay any interest on any Note, or any
other amount payable hereunder, within five (5) days after any such interest or
other amount becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty (i) made or deemed made by
the Borrower herein or (ii) which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection with
this Agreement or any other Loan Document shall prove to have been incorrect in
any material respect on or as of the date made or
52
deemed made (subject as to any representation or warranty referred to in
subsection (ii) above to the exclusions and qualifications contained in the
last two sentences of Section 3.23); or
(c) The Borrower shall default in the observance or performance
of any agreement contained in Section 5.7 or Section 6; or
(d) The Borrower or any Subsidiary thereof shall collectively
fail to secure an annual franchise from the National Association for Stock Car
Auto Racing, Inc. ("NASCAR") for at least two Winston Cup Series events (or at
least two events in a comparable successor series if the Winston Cup Series is
discontinued); or
(e) The Borrower shall default in the observance or performance
of any other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (d) of this Section 7.1) or any other Loan Document, and
such default shall continue unremedied for a period of 30 days; or
(f) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance, subject to any customary deductible,
and under which the applicable insurance carrier has acknowledged such full
coverage in writing) of $500,000 or more and all such judgments or decrees
shall not have been vacated, discharged, settled, satisfied or paid, or stayed
or bonded pending appeal, within 60 days from the entry thereof; or
(g) A Borrower or any Subsidiary thereof shall (i) default in
the payment of any principal of or interest on or any other amount payable on
any indebtedness for borrowed money (other than the Notes), beyond the period
of grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such indebtedness was created and the aggregate amount of
such indebtedness in respect of which such default or defaults shall have
occurred is at least $100,000 (the "Cross-Default Indebtedness"); or (ii)
--------------------------
default in the observance or performance of any other agreement or condition
relating to any such Cross-Default Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, with the giving of notice if required, such
Cross-Default Indebtedness to become due and payable prior to its stated
maturity; or
(h) (i) The Borrower or any Subsidiary shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or
the Borrower or any Subsidiary shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower or any
Subsidiary any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the
53
entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower or any Subsidiary any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Borrower or any Subsidiary
shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Borrower or any Subsidiary shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(i) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Single Employer Plan, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of
the Borrower or any Commonly Controlled Entity in favor of the PBGC or a Plan,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable Event or
institution of proceedings or appointment of a trustee is, in the reasonable
opinion of the Required Banks, likely to result in the termination of such Plan
for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist in regard to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition, together with
all other such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect; or
(j) Any Change of Control shall occur; or
(k) Any other event shall have occurred which could reasonably
be expected to have a Material Adverse Effect.
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (g) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement, the Notes and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall automatically and immediately become due and
payable, and (B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the Required Banks,
the Agent may, or upon the written request of the Required Banks, the Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Required Banks, the Agent may, or upon the written request
of the Required Banks, the Agent shall, by notice of
54
default to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement, the Notes and the
other Loan Documents (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Agent an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit. The Borrower
hereby grants to the Agent, for the benefit of the Issuing Bank, the L/C
Participants and the Banks and the Agent, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Amounts held in such cash collateral account shall be
applied by the Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the Notes and the other Loan
Documents. 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 of the Borrower hereunder and under the Notes and the other
Loan Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower. The Borrower shall
execute and deliver to the Agent, for the account of the Issuing Bank, the L/C
Participants, the Banks and the Agent, such further documents and instruments
as the Agent may request to evidence the creation and perfection of the within
security interest in such cash collateral account.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints PNC Bank, Delaware as the Agent of such Bank under this Agreement.
Each such Bank irrevocably authorizes the Agent, as the agent for such Bank to
take such action on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent. The Agent agrees to act as the
Agent on behalf of the Banks to the extent provided in this Agreement.
8.2 Delegation of Duties. The Agent may execute any of its duties
--------------------
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to engage and pay for
55
the advice and services of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible to the Banks for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
8.3 Exculpatory Provisions. Neither the Agent nor any of its
----------------------
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (a) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement or the other Loan
Documents (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement, any other Loan Document or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or the
other Loan Documents or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, the Notes or the other Loan
Documents or for any failure of the Borrower to perform its obligations
hereunder or thereunder. The Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or the other Loan
Documents, or to inspect the properties, books or records of the Borrower or
any Subsidiary.
8.4 Reliance by Agent. The Agent shall be entitled to rely, and
-----------------
shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower or any Subsidiary),
independent accountants and other experts selected by the Agent. The agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Agent. The Agent shall be fully justified in failing
or refusing to take any action under this Agreement unless it shall first
receive such advice or concurrence of the Required Banks as they deem
appropriate or they shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement, the Notes and the other Loan Documents in accordance with a request
of the Required Banks, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks and all future holders of
the Notes.
8.5 Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless it has received notice from a Bank or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Agent receives
such a notice, the Agent shall give notice thereof to the Banks. The Agent
shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Banks; provided, that unless and
--------
until the Agent shall have received such
56
directions, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Banks.
8.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
------------
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank represents to
the Agent that it has, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Bank also represents that it will, independently and
without reliance upon the Agent or any other Bank, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required
to be furnished to the Banks by the Agent hereunder, the Agent shall not have
any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower or its
Subsidiaries which may come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Banks agree to indemnify the Agent in its
---------------
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against the Agent in any way relating to
or arising out of this Agreement, the other Loan Documents, or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided, that no Bank shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Agent's gross negligence or willful
misconduct. The agreements in this Section 8.7 shall survive the payment of
the Notes and all other amounts payable hereunder.
8.8 Agent in its Individual Capacity. The Agent and its Affiliates
--------------------------------
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrower as though it was not the Agent hereunder. With
respect to its Loans made or renewed by it and any Note issued to it and with
respect to any Letter of Credit issued or participated in it by it, the
57
Agent shall have the same rights and powers under this Agreement as any Bank
and may exercise the same as though it were not the Agent, and the terms "Bank"
and "Banks" shall include the Agent in its individual capacity.
8.9 Successor Agent. The Agent may resign as Agent upon 30 days'
---------------
notice to the Banks and the Borrower. If the Agent shall resign as Agent under
this Agreement, then the Required Banks shall appoint from among the Banks a
successor agent for the Banks, which appointment shall be subject to the
approval of the Borrower (which approval shall not be unreasonably withheld)
and of such successor agent. Any rejection by the Borrower of a successor
agent shall specify the reasons for such rejection. Failure of the Borrower to
approve or reject a successor agent within ten days following request for
approval shall be deemed to constitute approval. Upon such appointment and
approval, such successor agent shall succeed to the rights, powers and duties
of the Agent, and the term "Agent" shall mean such successor agent effective
upon its appointment, and the former Agent's rights, powers and duties as Agent
shall be terminated, without any other or further act or deed on the part of
such former Agent or any of the parties to this Agreement or any holders of the
Notes. After any retiring Agent's resignation as Agent, the provisions of this
Section 8 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
8.10 Beneficiaries. Except as expressly provided herein, the
-------------
provisions of this Section 8 are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights to rely on or enforce any of
the provisions hereof. In performing its functions and duties under this
Agreement, the Agent shall act solely as agent of the Banks and does not assume
and shall not be deemed to have assumed any obligation toward or relationship
of agency or trust with or for the Borrower.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any Note or any
----------------------
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. With the written consent of the Required Banks, the Agent and the
Borrower may, from time to time, enter into written amendments, supplements or
modifications hereto and to the Notes and the other Loan Documents for the
purpose of adding any provisions to this Agreement or the Notes or the other
Loan Documents or changing in any manner the rights of the Banks or of the
Borrower hereunder or thereunder or waiving, on such terms and conditions as
the Agent may specify in such instrument, any of the requirements of this
Agreement or the Notes or the other Loan Documents or any Default or Event of
Default and its consequences; provided, however, that no such waiver and no
-------- -------
such amendment, supplement or modification shall directly or indirectly (a)
reduce the amount or extend the maturity of any Note or any installment
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any fee payable to any Bank hereunder, or change the duration or
amount of any Bank's Commitment, in each case without the consent of the Bank
affected thereby or (b) amend, modify or waive any provision of this
58
Section 9.1 or reduce the percentages specified in the definition of Required
Banks or consent to the assignment or transfer by the Borrower of any of its
rights and obligations under this Agreement, the Notes and the other Loan
Documents, in each case without the written consent of all the Banks, or (c)
amend, modify or waive any provision of Section 8 without the written consent
of the then Agent, (d) amend, modify or waive any provision of Section 2.3
without the written consent of the then Swing Line Bank or (e) amend, modify or
waive any provision of this Agreement relating to any outstanding Letter of
Credit without the written consent of the Issuing Bank. Any such waiver and
any such amendment, supplement or modification shall apply equally to each of
the Banks and shall be binding upon the Borrower, the Banks, the Agent and all
future holders of the Notes. In the case of any waiver, the Borrower, the
Banks and the Agent shall be restored to their former position and rights
hereunder and under the outstanding Notes, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
electronic transmission, telecopy transmission or posting on a secured web
site), and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or three days after being
deposited in the mail, postage prepaid, or the next Business Day if sent by
reputable overnight carrier for next day delivery, postage prepaid, or, in the
case of telecopy notice, when sent during normal business hours, or in the case
of electronic transmission, when received and in the case of posting on a
secured web site, upon receipt of (i) notice of such posting and (ii) rights to
access such web site, addressed as follows in the case of the Borrower and the
Agent, and as set forth in Schedule I in the case of the other parties hereto,
----------
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes, provided that any such notice,
request or demand to or upon the Borrower made by electronic transmission or
posting on a secured web site shall also be given by another method permitted
under this Section 9.2:
The Borrower: Dover Downs Entertainment, Inc.
0000 X. xxXxxx Xxxxxxx
Xxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy to: Dover Downs Entertainment, Inc.
0000 Xxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esquire
Telecopy: (000) 000-0000
The Agent, the PNC Bank, Delaware
Swing Line Bank 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
or the Issuing Bank: Xxxxxxxxxx, XX 00000
59
Attention: Xx. Xxxxxxxx Xxxxxxxxxx
Vice President
Telecopy: (000) 000-0000
with a copy to: PNC Agency Services
PNC Bank, National Association
Xxx XXX Xxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Telecopy: (000) 000-0000
provided that any notice, request or demand to or upon the Agent, the Banks,
--------
the Swing Line Bank or the Issuing Bank pursuant to Sections 2.2, 2.3, 2.4,
2.5, 2.6, 2.10, 2.11 or 2.18 shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement, the Notes and the other Loan Documents.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
-----------------------------
or reimburse the Agent for all of its out-of-pocket costs and expenses incurred
in connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement, the Notes, the other
Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements
of counsel to the Agent, (b) to pay or reimburse each Bank and the Agent for
all of their costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents, the
Letters of Credit and any such other documents, including, without limitation,
reasonable fees and disbursements of counsel to the Agent and to the several
Banks, and (c) to pay, indemnify, and hold each Bank and the Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
similar taxes, if any which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the Notes, the
other Loan Documents, and any
60
such other documents, and (d) to pay, indemnify, and hold each Bank and the
Agent harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, and the performance and administration (other than the
costs and expenses of administration of each Bank other than the Agent), of
this Agreement, the Notes, the other Loan Documents, the Letters of Credit and
any such other documents (all the foregoing, collectively, the "indemnified
liabilities"), provided, that the Borrower shall have no obligation hereunder
--------
to the Agent or any Bank with respect to indemnified liabilities arising from
the gross negligence or willful misconduct of the Agent or any such Bank. The
agreements in this subsection shall survive repayment of the Notes and all
other amounts payable hereunder.
9.6 Successors and Assigns. (a) Except as otherwise provided in
----------------------
Section 9.8(b), whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party, and all covenants, promises and agreements by or on
behalf of the Borrower, the Agent or the Banks that are contained in this
Agreement shall bind and inure to the benefit of their respective successors
and assigns. The Borrower may not assign or transfer any of its rights or
obligations under this Agreement or the other Loan Documents without the prior
written consent of each Bank.
(b) Each Bank may, in accordance with applicable law, sell all
or a portion of its interests, rights and obligations under this Agreement and
the other Loan Documents (including all or a portion of its Commitment or, if
an Event of Default has occurred, the Swing Line Commitment, and the Loans at
the time owing to it and the Notes held by it); provided, however, that (i)
-------- -------
each such assignment shall be to a Bank or Affiliate thereof, or, with the
consents of the Agent and the Borrower (which consents shall not be
unreasonably withheld) to one or more banks or other financial institutions,
(ii) so long as the Commitments are in effect, the amount of each such
assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Agent) shall not be less than
$5,000,000 (or, if lower, the lesser of (x) the full amount of such Bank's
Commitments and (y) such amount as the Borrower and the Agent shall agree in
their sole discretion), (iii) the parties to each such assignment shall execute
and deliver to the Agent an Assignment and Acceptance, together with the Note
or Notes subject to such assignment and a processing and recordation fee of
$3,500, (iv) in the case of the assignment of the Swing Line Commitment, may
only be made to a Bank which holds a Commitment hereunder and must be of the
entire Swing Line Commitment and (v) each such assignment of Loans and all or
any portion of a Bank's Commitment shall be of a constant, and not a varying,
percentage of the assigning Bank's Commitment and Revolving Credit Loans then
outstanding. Upon acceptance and recording pursuant to paragraph (e) of this
Section 9.6, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five Business Days after the
execution thereof (unless otherwise agreed by the Agent), (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Bank
under this Agreement and (B) the assigning Bank thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement
61
and the other Loan Documents, such Bank shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.14,
2.15 and 9.5 (to the extent that such Bank's entitlement to such benefits arose
out of such Bank's position as a Bank prior to the applicable assignment), as
well as to any Commitment Fees accrued for its account and not yet paid). Such
Assignment and Acceptance shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
assignee Bank and the resulting amounts and percentages held by the Banks
arising from the purchase by such assignee Bank of all or a portion of the
rights and obligations of such assigning Bank under this Agreement, the Notes
and the other Loan Documents. Notwithstanding any provision of this Section
9.6, the consent of the Borrower shall not be required for any assignment which
occurs at any time when an Event of Default shall have occurred and be
continuing.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Bank thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Bank warrants that it is the legal and beneficial owner of
the interest being assigned thereby, free and clear of any adverse claim, and
that its Commitment and/or Commitments and/or Swing Line Commitment, as the
case may be, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as
set forth in such Assignment and Acceptance, (ii) except as set forth in (i)
above, such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the other Loan Documents, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or the other Loan Documents, or any other instrument or
document furnished pursuant hereto or thereto, or the financial condition of
the Borrower or any Subsidiary or the performance or observance by the Borrower
or any Subsidiary of any of their obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; (iv) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 5.1 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Agent, such assigning Bank or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Loan Documents; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which
by the terms of this Agreement and the other Loan Documents are required to be
performed by it as a Bank.
(d) The Agent shall maintain at its offices a copy of each
Assignment and Acceptance and the names and addresses of the Banks, and the
Commitment and/or Swing Line Commitment of, and principal amount of the Loans
owing to, each Bank pursuant to the
62
terms hereof from time to time (the "Register"). The entries in the Register
--------
shall be conclusive in the absence of manifest error and the Borrower, the
Agent and the Banks may treat each person whose name is recorded in the
Register pursuant to the terms hereof as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
and any Bank, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Bank and an assignee together with the Note
or Notes subject to such assignment, the processing and recordation fee
referred to in paragraph (b) above, the Agent shall (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Banks. Within five Business Days
after receipt of notice, the Borrower, at its own expense, shall execute and
deliver to the Agent, in exchange for the surrendered original Note(s), (x) a
new Revolving Credit Note to the order of such assignee in an amount equal to
the portion of the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if applicable, a new Swing Line Note to the order of such
assignee in an amount equal to the Swing Line Commitment and, (y) if the
assigning Bank has retained a Commitment, a new Revolving Credit Note to the
order of such assigning Bank in a principal amount equal to the applicable
Commitment retained by it. Such new Notes shall be dated the date of the
surrendered Notes which they replace and shall otherwise be in substantially
the form of Exhibit B-1 or Exhibit B-2 hereto, as appropriate. Canceled Notes
----------- -----------
shall be returned to the Borrower.
(f) Each Bank may without the consent of the Borrower or the
Agent sell participations to one or more banks or other entities (each a
"Participant") in all or a portion of its rights and obligations under this
-----------
Agreement (including all or a portion of its Commitment or Swing Line
Commitment and the Loans owing to it and the Notes held by it); provided,
--------
however, that (i) such Bank's obligations under this Agreement shall remain
-------
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain
the holder of any such Note for all purposes under this Agreement and the other
Loan Documents, (iv) the Borrower, the Banks and the Agent shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement and the other Loan Documents, (v) in any
proceeding under the Bankruptcy Code the Bank shall be, to the extent permitted
by law, the sole representative with respect to the obligations held in the
name of such Bank, whether for its own account or for the account of any
Participant and (vi) such Bank shall retain the sole right to approve, without
the consent of any Participant, any amendment, modification or waiver of any
provision of this Agreement or the Note or Notes held by such Bank or any other
Loan Document, other than any such amendment, modification or waiver with
respect to any Loan or Commitment in which such Participant has an interest
that forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, or postpones any date
fixed for any regularly scheduled payment of principal of, or interest or fees
on, any such Loan, or releases any guarantor of such Loan or releases all or
substantially all of the collateral, if any, securing any such Loan.
63
(g) The Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.12, 2.13, 2.14, 2.15, 2.18 and 9.5 with respect
to its participation in the Commitments and the Loans and Letters of Credit
outstanding from time to time; provided, that no Participant shall be entitled
--------
to receive any greater amount pursuant to such Sections than the assigning Bank
would have been entitled to receive in respect of the amount of the
participation transferred by such assigning Bank to such Participant had no
such transfer occurred.
(h) If any Participant of a Bank is organized under the laws of
any jurisdiction other than the United States or any state thereof, the
assigning Bank, concurrently with the sale of a participating interest to such
Participant, shall cause such Participant (i) to represent to the assigning
Bank (for the benefit of the assigning Bank, the other Banks, the Agent and the
Borrower) that under applicable law and treaties no taxes will be required to
be withheld by the Agent, the Borrower or the assigning Bank with respect to
any payments to be made to such Participant in respect of its participation in
the Loans and (ii) to agree (for the benefit of the assigning Bank, the other
Banks, the Agent and the Borrower) that it will deliver the tax forms and other
documents required to be delivered pursuant to Section 2.14(b) and comply from
time to time with all applicable U.S. laws and regulations with respect to
withholding tax exemptions.
(i) Any Bank may at any time assign all or any portion of its
rights under this Agreement and the Notes issued to it to a Federal Reserve
Bank; provided that no such assignment shall release a Bank from any of its
--------
obligations hereunder.
9.7 Disclosure of Information. Unless otherwise consented to by the
-------------------------
Borrower in writing, each of the Banks and the Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with its customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower pursuant to this
Agreement; provided, that nothing herein shall limit the disclosure of any such
--------
information (a) to the extent required by statute, rule, regulation or judicial
process, (b) to counsel for any Bank or the Agent, (c) to bank examiners,
auditors or accountants, (d) to the Agent or any other Bank, (e) in connection
with any litigation to which any one or more of the Banks or the Agent is a
party involving the Borrower or any Subsidiary or its or their properties or in
any way relating to this Agreement or any other Loan Document or any Loans or
Letters of Credit or other obligations of the Borrower to the Agent or any Bank
and (f) to any Participant or assignee Bank (or prospective Participant or
assignee Bank) so long as such Participant or assignee Bank (or prospective
Participant or assignee Bank) agrees to comply with the requirements of this
Section. In the event of any disclosure pursuant to clauses (a) or (e) above,
the Agent or Bank making such disclosure, as the case may be, shall use its
reasonable best efforts to notify the Borrower prior to making such disclosure,
and shall cooperate with the Borrower, at the Borrower's expense, in obtaining
a protective order if the Borrower so chooses.
9.8 Adjustments; Set-off. (a) If any Bank (a "benefitted Bank")
--------------------
shall at any time receive any payment of all or part of its Loans or the
Reimbursement Obligation owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or
64
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7.1(g), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Bank, if any, in respect of
such other Bank's Loans or the Reimbursement Obligation owing to it, or
interest thereon, such benefitted Bank shall purchase for cash from the other
Banks such portion of each such other Bank's Loans or the Reimbursement
Obligation owing to it, or shall provide such other Banks with the benefits of
any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Bank to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Banks; provided, however, that if all or
-------- -------
any portion of such excess payment or benefits is thereafter recovered from
such benefitted Bank, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without interest.
The Borrower agrees that each Bank so purchasing a portion of another Bank's
Loans or Reimbursement Obligations may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies, of the Banks
provided by law, upon the occurrence of an Event of Default, each of the Banks
shall have the right, without prior notice to the Borrower, any such notice
being expressly waived by the Borrower to the extent permitted by applicable
law, upon any amount becoming due and payable by the Borrower hereunder or
under the Notes (whether at the stated maturity, by acceleration or otherwise)
to set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Bank to or for the credit or the account of the
Borrower. Each of the Banks agrees promptly to notify the Borrower and the
Agent after any such set-off and application made by such Bank, provided, that
--------
the failure to give such notice shall not affect the validity of such set-off
and application.
9.9 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and each of the Banks.
9.10 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.11 Integration. This Agreement represents the agreement of the
-----------
Borrower, the Agent and the Banks with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Agent or any Bank relative to subject matter hereof not expressly set forth or
referred to herein or in the Notes or the other Loan Documents.
65
9.12 GOVERNING LAW. THIS AGREEMENT, THE NOTES AND THE OTHER LOAN
-------------
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT,
THE NOTES AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE.
9.13 Submission To Jurisdiction; Waivers. The Borrower hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, the Notes or the other Loan Documents,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of Delaware, the
courts of the United States of America for the District of Delaware, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Borrower at the address set forth in Section 9.2 or at such other address of
which the Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary or punitive or
consequential damages.
9.14 Acknowledgements. The Borrower hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement, the Notes and the other Loan
Documents;
(b) neither the Agent nor any Bank has any fiduciary
relationship to the Borrower, and the relationship between the Agent and the
Banks, on one hand, and such Borrower, on the other hand, is solely that of
debtor and creditor; and
(c) no joint venture exists among the Banks or among the
Borrower and the Banks.
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9.15 WAIVERS OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND THE
---------------------
BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
DOVER DOWNS ENTERTAINMENT, INC.
By:/s/ Xxxxx XxXxxxx
---------------------------------------
Name: Xxxxx XxXxxxx
Title: President
68
PNC BANK, DELAWARE, as Agent and as a
Bank
By:/s/ Xxxxxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Vice President
69
WILMINGTON TRUST COMPANY, as a Bank
By: /s/ Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
70
ALLFIRST BANK, as a Bank
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
71
WILMINGTON SAVINGS FUND SOCIETY,
FSB, as a Bank
By: /s/ M. Xxxxx Xxxxxx
------------------------------------
Name: M. Xxxxx Xxxxxx
Title: Vice President
72
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ Xxxxxx XxXxxxxxxx
------------------------------------
Name: Xxxxxx XxXxxxxxxx
Title: Vice President
73
NATIONAL CITY BANK, as a Bank
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
74
