Exhibit 10.1
FIRST AMENDMENT TO LOAN AGREEMENT
---------------------------------
THIS FIRST AMENDMENT TO LOAN AGREEMENT is made as of September 14,
2001, by and among DOVER DOWNS ENTERTAINMENT, INC., a Delaware corporation (the
"Borrower"), the several banks which are parties to this Agreement (each a
"Bank" and collectively, the "Banks") and PNC BANK, DELAWARE in its capacity as
agent for Banks (in such capacity, the "Agent").
BACKGROUND
----------
A. The Banks, the Borrower and the Agent entered into an Amended and
Restated Credit Agreement dated as of November 1, 1999 (the "Credit Agreement"),
pursuant to which the Banks agreed to make revolving credit loans to, and issue
letters of credit for the benefit of, the Borrower in an aggregate outstanding
amount of up to One Hundred Twenty Five Million Dollars ($125,000,000) (the
"Credit Facility"). The Borrower's obligations under the Credit Facility are
evidenced by the Borrower's Revolving Credit Notes in the aggregate principal
amount of $125,000,000 (the "Notes").
B. The Notes are secured by a Guaranty and Suretyship Agreement from
the Guarantors dated as of November 1, 1999 (the "Guaranty", and together with
the Credit Agreement and the Notes, the "Loan Documents").
C. The Agent, the Banks and the Borrower desire to amend the Credit
Agreement, to modify one of the covenants therein, all on the terms and subject
to the conditions herein set forth.
NOW THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
AGREEMENT
---------
1. Terms. Capitalized terms used herein and not otherwise defined
-----
herein shall have the meanings given to such terms in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is hereby
------------------------------
amended as follows:
(a) Section 6.2(d) is hereby amended to read in full as follows:
"(d) other guarantees made by and loans or advances made to the
Borrower in the ordinary course of business which shall not exceed an
aggregate of $27,000,000 outstanding at any time."
(b) Section 6.9 is hereby amended to read in full as follows:
"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."
3. Loan Documents. Except where the context clearly requires
--------------
otherwise, all references to the Credit Agreement in any of the Loan Documents
or any other document delivered to the Banks or the Agent in connection
therewith shall be to the Credit Agreement, as amended by this Agreement.
4. Borrower's Ratification. The Borrower agrees that it has no
-----------------------
defenses or set-offs against the Banks or the Agent or their respective
officers, directors, employees, agents or attorneys, with respect to the Loan
Documents, all of which are in full force and effect, and that all of the terms
and conditions of the Loan Documents not inconsistent herewith shall remain in
full force and effect unless and until modified or amended in writing in
accordance with their terms. The Borrower hereby ratifies and confirms its
obligations under the Loan Documents and agrees that the execution and delivery
of this Agreement does not in any way diminish or invalidate any of its
obligations thereunder.
5. Representations and Warranties. The Borrower hereby represents
------------------------------
and warrants to the Agent and the Banks that:
(a) Except as otherwise previously disclosed to the Agent and
the Banks, the representations and warranties made in the Credit Agreement, as
amended by this Agreement, are true and correct as of the date hereof;
(b) No Default or Event of Default under the Credit Agreement
exists on the date hereof; and
(c) This Agreement has been duly authorized, executed and
delivered so as to constitute the legal, valid and binding obligation of the
Borrower, enforceable in accordance with its terms.
All of the above representations and warranties shall survive the
making of this Agreement.
6. Conditions Precedent. The effectiveness of the amendments set
--------------------
forth herein is subject to the fulfillment, to the satisfaction of the Agent and
its counsel, of the following conditions precedent:
(a) The Borrower shall have delivered to the Agent, with copies
or counterparts for each of the Banks, the following, all of which shall be in
form and substance satisfactory to the Agent and shall be duly completed and
executed:
(i) This Agreement;
(ii) Copies, certified by the Secretary or an Assistant
Secretary of the Borrower of resolutions of the board of directors of
the Borrower in effect on the date hereof authorizing the execution,
delivery and performance of this Agreement and the other documents and
transactions contemplated hereby;
(iii) Copies, certified by its corporate secretary of the
articles of incorporation and by-laws of the Borrower as in effect, or
a certificate stating that
2
there have been no changes to any such documents since the most recent
date true and correct copies thereof were delivered to the Agent; and
(iv) Such additional documents, certificates and information
as the Agent or the Banks may require pursuant to the terms hereof or
otherwise reasonably request.
(b) This Agreement shall have been executed and delivered by
Banks constituting Required Banks under the Credit Agreement.
(c) The representations and warranties set forth in the Credit
Agreement shall be true and correct on and as of the date hereof.
(d) No Default or Event of Default shall have occurred and be
continuing as of the date hereof.
(e) The Borrower shall have paid to the Agent for the benefit of
each Bank executing this Agreement on or before September 14, 2001, a
modification fee equal to .05% multiplied by the Commitment of such Bank.
7. Miscellaneous.
-------------
(a) All terms, conditions, provisions and covenants in the Loan
Documents and all other documents delivered to the Agent and the Banks in
connection therewith shall remain unaltered and in full force and effect except
as modified or amended hereby. To the extent that any term or provision of this
Agreement is or may be deemed expressly inconsistent with any term or provision
in any Loan Document or any other document executed in connection therewith, the
terms and provisions hereof shall control.
(b) The execution, delivery and effectiveness of this Agreement
shall neither operate as a waiver of any right, power or remedy of the Agent or
the Banks under any of the Loan Documents nor constitute a waiver of any Default
or Event of Default thereunder.
(c) In consideration of the Agent's and the Banks' agreement to
amend the existing credit facility, the Borrower hereby waives and releases the
Agent and the Banks and their respective officers, attorneys, agents and
employees from any liability, suit, damage, claim, loss or expense of any kind
or failure whatsoever and howsoever arising that it ever had up until, or has as
of, the date of this Agreement.
(d) This Agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior and
contemporaneous understandings and agreements.
(e) In the event any provisions of this Agreement shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision hereof.
3
(f) This Agreement shall be governed by and construed according
to the laws of the State of Delaware.
(g) This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective successors and assigns and may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
(h) The headings used in this Agreement are for convenience of
reference only, do not form a part of this Agreement and shall not affect in any
way the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the Borrower, the Agent and the Banks have caused
this Agreement to be executed by their duly authorized officers as of the date
first above written.
(CORPORATE SEAL) DOVER DOWNS ENTERTAINMENT,
INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: Vice President - Finance
-----------------------------
PNC BANK, DELAWARE, as a Bank and
as Agent
By: /s/ Xxxxx Xxxxxx
--------------------------------
Title: Vice President & Secretary
-----------------------------
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Title: Sr. Vice President/Director
-----------------------------
XXXXX FARGO BANK
By: /s/ Xxxxx Xxxxxx
-------------------------------
Title: Vice President
4
ACKNOWLEDGMENT AND AGREEMENT
----------------------------
Each of the undersigned hereby acknowledges the provisions of the
foregoing First Amendment to Credit Agreement (the "First Amendment") and
confirms and agrees that its obligations under that certain Guaranty and
Suretyship Agreement dated as of November 1, 1999 from the undersigned in favor
of the Banks referred to in the First Amendment shall be unimpaired by the First
Amendment and are hereby ratified and confirmed in all respects.
DOVER DOWNS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Vice President - Finance
-------------------------
DOVER DOWNS INTERNATIONAL
SPEEDWAY, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Vice President - Finance
-------------------------
DOVER DOWNS PROPERTIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Vice President - Finance
-------------------------
GATEWAY INTERNATIONAL MOTORSPORTS
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Treasurer & CFO
-------------------------
GATEWAY INTERNATIONAL SERVICES
CORPORATION
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
---------------------------
Title: Treasurer & Secretary
-------------------------
GRAND PRIX ASSOCIATION OF LONG
BEACH, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Treasurer & CFO
-------------------------
5
MEMPHIS INTERNATIONAL MOTORSPORTS
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Treasurer & CFO
-------------------------
MOTORSPORTS SERVICES CORPORATION
OF MEMPHIS
By: /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
----------------------------
Title: Treasurer & Secretary
--------------------------
NASHVILLE SPEEDWAY, USA, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: Treasurer
-------------------------
6
