FOURTH AMENDMENT, WAIVER AND CONSENT
FOURTH AMENDMENT, WAVIER AND CONSENT (this "Amendment"), dated as of
October 30, 1997, among PENN NATIONAL GAMING, INC. ("the Borrower"), the lenders
party to Credit Agreement referred to below (the "Banks"), CORESTATES BANK,
N.A., as Co-Agent (the "Co-Agent"). And BANKERS TRUST COMPANY, as Agent (the
"Agent"). All capitalized terms used herein and not otherwise defined herein
shall have the respective meanings provided such terms in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the Banks, the Co-Agent, and the Agent are
parties to a Credit Agreement, dated as of November 27, 1996 (as amended,
modified or supplemented through, but not including the date hereof, the "Credit
Agreement");
WHEREAS, the parties hereto wish to further modify the Credit Agreement
as herein provided ; and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTIONS 4.02
(a) 10.02 and 10.07 (b) of the Credit Agreement, the Banks hereby agree that (I)
the Borrower may sell and leaseback its airplane that is currently owns and that
the Net Sale Proceeds from such sale shall not be required to be applied as
provided in Section 4.02(e) of the Credit Agreement, so long as (x) the Net Sale
Proceeds therefrom equal at least $890,000 and (y) the annual lease payments
made in connection with the lease of such airplane do not exceed $100,272.12.
2. Section 10.08(d) of the Credit Agreement is hereby amended by
deleting the amount "$6,000,000" appearing therein and inserting the amount
"$24,000,000" in lieu thereof.
3. The Banks hereby waive any Default or Event of Default that has
arisen under the Credit Agreement solely as a result of the Borrower failing to
comply with Section 10.12(b) of the Credit Agreement for the Test Period ending
September 30, 1997.
4. The Banks hereby agree that, on the Fourth Amendment Effective Date
(as defined below), the Total Revolving Loan Commitment shall be increased by
$5,000,000, and in connection therewith, Section I to the Credit Agreement is
hereby replaced in its entirety with the new Schedule I attached hereto and with
the amount of each Bank's Revolving Loan Commitment and/or such bank's
outstanding Terms Loans after giving effect to this Amendment to be as set forth
thereon. In connection with such increase in the Total Revolving Loan
Commitment, the Banks hereby agree that the borrower and the Agent may take all
such actions as may be necessary to ensure that all Banks continue to
participate in each Borrowing of Revolving Loans on a pro rata basis (based on
the Revolving Loan Commitment of each Bank after giving effect to the
Amendment), and it is hereby further agreed that to the extent any existing
Borrowings of Revolving Loans that are maintained as Eurodollar Loans are broken
as a result thereof, any breakage costs of the type described in Section 1.11 of
the Credit Agreement incurred by such Banks in
connection therewith shall be for the account of the borrower. In addition, it
is hereby further agreed that at the time of such increase in the Total
Revolving Loan Commitment, with respect to all outstanding Letters of Credit,
there shall be an automatic adjustment to the participations by the Banks after
giving effect to this Amendment.
5. The Borrower agrees that on or promptly after the Fourth Amendment
Effective Date, and at its own expense, the Borrower will issue new Revolving
Notes to those Banks whose Revolving Loan Commitments were increased as a result
of this Amendment, which Revolving Notes shall be in conformity with the
requirements of Sections 1.05(d) of the Credit Agreement after giving effect tot
this Amendment and shall replace the existing Revolving Notes of such Banks.
6. Each Credit Party hereby agrees that, on or promptly after the
Fourth Amendment Effective Date and upon the request of the Agent, such Credit
Party will execute such amendments to the Mortgages as the Agent shall
reasonably require in connection with the transactions contemplated by Section 4
of the Amendment.
7. This Amendment shall become effective on the date (the "Fourth
Amendment Effective Date") when each of the following conditions have been met:
(A) each Credit Party , the Agent, the Required Banks and each bank
whose Revolving Loan Commitment has been increased pursuant to this Amendment
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Agent at the Notice Office;
(B) the Agent shall have receives from Xxxxxx, Xxxxx & Xxxxxxx LLP,
counsel to the Credit Parties, an opinion addressed to the Agent and each of the
Banks and dated the Fourth Amendment Effective Date, in from and substance
reasonably satisfactory to the Agent, and covering such matters incident to this
Amendment and the transactions contemplated herein ad the Agent may reasonably
request;
(C) to the extent required, the Agent shall have received resolutions
of the Board of Directors of each Credit Party, which resolutions shall be
certified by the Secretary or any Assistant Secretary of such Credit Party of
this Amendment and the consummation of the transactions contemplated hereby, and
foregoing shall be reasonably acceptable to the Agent; and
(D) the Borrower shall have paid to the Agent for the pro rata
distribution to each of the Banks (based on the amount of each Bank's
outstanding Term Loans and Revolving Loan Commitment (after giving effect to
this Amendment), an amendment fee equal to $100,000.
8. In order to induce the Banks to enter on the Fourth Amendment, each
Credit Party hereby represents and warrants that:
(A) no Default or Event of Default exists on the Fourth Amendment
Effective Date, after giving to this Amendment; and
(B) on the Fourth Amendment Effective Date, and after giving effect to
this Amendment, all representations and warranties contained in the Credit
Agreement and in the other Credit Documents are true and correct in all material
respects ad though such representations and warranties were made on the Fourth
Amendment Effective.
9. By executing and delivering a counterpart hereof, each Subsidiary
Guarantor hereby agrees that all Loans (including, without limitation, the
additional Revolving Loans which may be incurred pursuant to the Total Revolving
Loan Commitment after giving effect to this Amendment) shall be fully guaranteed
pursuant to the Subsidiary Guaranty in accordance with the terms and provisions
thereof and shall be fully secured pursuant to the Security Documents.
10. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be ab original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be delivered to the Borrower and the Agent.
11. THIS AMENDMENT AND THE RIGHT AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
12. From and after the Fourth Amendment Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
13. This Amendment is limited as specified and hall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
PENN NATIONAL GAMING, INC.
By /s/ Xxxxxxx X. Xxxx
Title: President
MOUNTAINVIEW THOROUGHBRED
RACING ASSOCIATION
By /s/ Xxxxx X. Xxxxxxx
Title: President
PENNSYLVANIA NATIONAL TURF
CLUB, INC.
By /s/ Xxxxx X. Xxxxxxx
Title: President
PENN NATIONAL SPEEDWAY, INC.
By /s/ Xxxxxx X. Xxxxxxxx
Title: Secretary
STERLING AVIATION, INC.
By /s/ Xxxxx X. Xxxxxxx
Title: President
PENN NATIONAL HOLDING COMPANY
By /s/ Xxxxxxx X. Xxxx
Title: President
PENN NATIONAL GAMING OF
WEST VIRGINIA, INC.
By /s/ Xxxxxxx X. Xxxx
Title: President
PENN NATIONAL GAMING OF INDIANA
By /s/ Xxxxxxx X. Xxxx
Title: President
PNGI POCONO, INC.
By /s/ Xxxxxxx X. Xxxx
Title: President
THE PLAINS COMPANY
By /s/ Xxxxxxx X. Xxxx
Title: President
POCONO DOWNS, INC.
By /s/ Xxxxxxx X. Xxxx
Title: President
NORTHEAST CONCESSIONS, INC.
By /s/ Xxxxxxx X. Xxxx
Title: President
AUDIO VIDEO CONCEPTS, INC.
By /s/ Xxxxxxx X. Xxxx
Title: President
BACKSIDE, INC.
By /s/ Xxxxxxx X. Xxxx
Title: President
THE DOWNS OFF-TRACK
WAGERING, INC.
By /s/ Xxxxxxx X. Xxxx
Title: President
MILL CREEK LAND, INC
By /s/ Xxxxxxx X. Xxxx
Title: President
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Xxxxx X. Xxxx
Title: Vice President
CORESTATES BANK, N.A.,
Individually and as Co-Agent
By /s/Xxxxxxx Xxxxxxx
Title: Vice President
SUMMIT BANK
By /s/Xxxxxx XxXxxxx
Title: Senior Vice President
THE CAPTIAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By: ING CAPTIAL ADVISORS, INC., as
Investment Advisor
By /s/ Xxxxxxx X. Xxxxxx
Title: Vice President &
Portfolio Manager
