Page 1 of 10
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
/ X / QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1999
OR
/___/ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-11929
DOVER DOWNS ENTERTAINMENT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0357525
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1131 North DuPont Highway, Dover, Delaware 19901
(Address of principal executive offices) (Zip Code)
(302) 674-4600
(Registrant's telephone number, including area code)
(Former name of registrant)
Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Sections 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such
reports), and (2) has been subject to such filing requirements for the
past 90 days.
Yes X No
As of September 30, 1999, the number of shares of each class
of the registrant's common stock outstanding is as follows:
Common stock - 11,697,184 shares
Class A common stock - 24,204,010 shares
FORM 10-Q Page 2 of 10
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
DOVER DOWNS ENTERTAINMENT, INC.
CONSOLIDATED STATEMENT OF EARNINGS
Dollars in Thousands, Except Per Share Amounts
(Unaudited)
Quarter Ended
September 30,
1999 1998
Revenues:
Motorsports $ 28,610 $ 21,155
Gaming (including win) 42,691 33,499
71,301 54,654
Expenses:
Operating 46,368 35,338
Depreciation and amortization 1,965 1,796
General and administrative 3,323 3,054
51,656 40,188
Operating earnings 19,645 14,466
Interest expense, net 426 389
Earnings before income taxes 19,219 14,077
Income taxes 7,975 5,799
Net earnings $ 11,244 $ 8,278
Earnings per common share
- Basic $ .31 $ .23
- Diluted $ .31 $ .23
Average shares outstanding (000)
- Basic 35,803 35,538
- Diluted 36,696 36,620
Dividends paid per common share $ .045 $ .04
The Notes to the Consolidated Financial Statements are an integral part
of these statements.
<PAGE>
FORM 10-Q Page 3 of 10
DOVER DOWNS ENTERTAINMENT, INC.
CONSOLIDATED BALANCE SHEET
Dollars in Thousands, Except Per Share Amounts
(Unaudited)
September 30, June 30,
ASSETS 1999 1999
Current assets:
Cash and cash equivalents $ 14,247 $ 10,847
Accounts receivable 7,039 6,706
Due from State of Delaware 7,640 2,932
Inventories 605 581
Prepaid expenses and other 3,600 4,456
Deferred income taxes 334 327
Total current assets 33,465 25,849
Property, plant and equipment, net 181,759 173,913
Other assets, net 1,427 1,453
Goodwill, net 53,635 53,997
Total assets $270,286 $255,212
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 4,581 $ 4,629
Purses due horsemen 7,990 3,147
Accrued liabilities 8,552 9,407
Income taxes payable 8,933 2,726
Current portion of long-term debt 335 235
Deferred revenue 6,285 15,906
Total current liabilities 36,676 36,050
Long-term debt 41,125 36,725
Other liabilities 165 172
Deferred income taxes 9,825 9,607
Commitments (see Part II Legal Proceedings)
Shareholders' equity:
Preferred stock, $.10 par value;
1,000,000 shares authorized; issued and
outstanding: none
Common stock, $.10 par value;
75,000,000 shares authorized; issued and
outstanding: September - 11,697,184;
June - 11,403,684 1,170 1,140
Class A common stock, $.10 par value;
55,000,000 shares authorized; issued
and outstanding: September - 24,204,010;
June - 24,262,510 2,420 2,426
Additional paid-in capital 99,865 99,683
Retained earnings 79,040 69,409
Total shareholders' equity 182,495 172,658
Total liabilities and shareholders' equity $270,286 $255,212
The Notes to the Consolidated Financial Statements are an integral part
of these statements.
FORM 10-Q Page 4 of 10
DOVER DOWNS ENTERTAINMENT, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
Dollars in Thousands
(Unaudited)
Three Months Ended
September 30,
1999 1998
Cash flows from operating activities:
Net earnings $11,244 $ 8,278
Adjustments to reconcile net earnings
to net cash provided by operating
activities:
Depreciation and amortization 1,965 1,796
(Increase) decrease in assets:
Accounts receivable (333) 258
Due from State of Delaware (4,708) (3,719)
Inventories (24) 103
Prepaid expenses and other 856 (181)
Increase (decrease) in liabilities:
Accounts payable (48) 478
Purses due horsemen 4,843 3,806
Accrued liabilities (855) (1,978)
Current and deferred income taxes 6,418 3,339
Deferred revenue (9,621) (5,204)
Net cash provided by operating activities 9,737 6,976
Cash flows from investing activities:
Capital expenditures (9,423) (4,574)
Cash acquired in business acquisition - 1,490
Net cash used in investing activities (9,423) (3,084)
Cash flows from financing activities:
Dividends paid (1,613) (1,413)
Borrowings on revolving debt, net 4,500 -
Repayment of long-term debt - (72)
Proceeds of stock options exercised and other 199 -
Net cash provided by (used in)
financing activities 3,086 (1,485)
Net increase in cash and cash equivalents 3,400 2,407
Cash and cash equivalents, beginning of period 10,847 18,694
Cash and cash equivalents, end of period $14,247 $21,101
Supplemental information:
Interest paid $ 1,095 $ 1,048
Income taxes paid $ 1,557 $ 2,460
Non-cash investing activities:
Stock issued for business acquisition - $80,241
The Notes to the Consolidated Financial Statements are an integral part
of these statements.
FORM 10-Q Page 5 of 10
DOVER DOWNS ENTERTAINMENT, INC.
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
A. Basis of Presentation
The accompanying unaudited consolidated financial statements have
been prepared in accordance with the instructions to Form 10-Q and
generally accepted accounting principles, but do not include all of the
information and footnotes required for complete financial statements.
The statements should be read in conjunction with the consolidated
financial statements and notes thereto included in the latest annual
report on Form 10-K for Dover Downs Entertainment, Inc. and its wholly
owned subsidiaries (the "Company"). In the opinion of management, all
adjustments (consisting of normal recurring accruals) considered
necessary for a fair presentation have been included. Operating
results for the quarter ended September 30, 1999 are not necessarily
indicative of the results that may be expected for the fiscal year
ending June 30, 2000.
B. Revenue Recognition
For the video lottery operations, the difference between the amount
wagered by bettors and the amount paid out to bettors is referred to as
the win. The win is included in the amount recorded in the Company's
financial statements as gaming revenue. The Delaware State Lottery
Office sweeps the winnings from the video lottery operations, collects
the State's share of the winnings and the amount due to the vendors
under contract with the State who provide the video lottery machines
and associated computer systems, collects the amount allocable to
purses for harness horse racing and remits the remainder to the Company
as its commission for acting as a Licensed Agent. Operating expenses
include the amounts collected by the State (i) for the State's share of
the winnings, (ii) for remittance to the providers of the video lottery
machines and associated computer systems, and (iii) for harness horse
racing purses.
C. Earnings Per Share
Pursuant to the provisions of Statement of Financial Accounting
Standards No. 128, "Earnings Per Share," the number of weighted average
shares used in computing basic and diluted earnings per share (EPS) are
as follows (in thousands):
Three Months Ended
September 30,
1999 1998
Basic EPS 35,803 35,538
Effect of Options 893 1,082
Diluted EPS 36,696 36,620
No adjustments to net income available to common shareholders were
required during the periods presented.
<PAGE>
FORM 10-Q Page 6 of 10
D. Business Segment Information
The Company has two reportable segments, motorsports and gaming.
The business is operated and defined based on the products and services
provided by these segments. Certain operations within the motorsports
segment have been aggregated for purposes of the following disclosures:
Motorsports Gaming Consolidated
Quarter ended
September 30, 1999
Revenue $ 28,610,000 $42,691,000 $ 71,301,000
Operating earnings 10,339,000 9,306,000 19,645,000
Identifiable assets
at quarter-end $216,966,000 $53,320,000 $270,286,000
Quarter ended
September 30, 1998
Revenue $ 21,155,000 $33,499,000 $ 54,654,000
Operating earnings 7,228,000 7,238,000 14,466,000
Identifiable assets
at quarter-end $182,763,000 $40,165,000 $222,928,000
Item 2.Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations: Three Months Ended September 30, 1999 vs. Three
Months Ended September 30, 1998
Revenues increased by $16,647,000 to $71,301,000 as a result of
growth in the historical business of the Company. Gaming revenues
increased by $9,192,000 or 27.4% to $42,691,000, primarily the result
of expanding the casino facility and restaurant space and increasing
the number of video lottery (slot) machines from an average of 1,032 in
the first quarter of fiscal 1999 to 1,568 during the first quarter of
fiscal 2000, and also from the results of expanded marketing and
promotional activities related to the Company's video lottery casino.
Motorsports revenues increased by $7,455,000 or 35.2%. Approximately
$1,280,000 resulted from increased attendance, $573,000 from increased
ticket prices, and $3,021,000 from increased sponsorship, concession
and broadcast revenues for the Company's Fall NASCAR weekend at Dover
Downs International Speedway. Approximately $3,935,000 of the increase
is due to the scheduling of the Busch Grand National Division event at
Gateway International Raceway in the first quarter of fiscal 2000
compared with the second quarter of fiscal 1999. The aforementioned
increases in motorsports revenue were offset somewhat by decreases in
revenues related to the Indy Racing League event at Dover Downs
International Speedway.
Operating expenses increased by $11,030,000 reflecting the higher
revenues. Amounts retained by the State of Delaware, fees to the
manager who operates the video lottery (slot) machine operation, and
the amount collected by the State of Delaware for payment to the
vendors under contract with the State who provide the video lottery
machines and associated computer systems increased by $3,887,000 in the
first quarter of fiscal 2000. Amounts allocated from the video lottery
FORM 10-Q Page 7 of 10
operation for harness horse racing purses were $4,742,000 in the first
quarter of fiscal 2000 compared with $3,725,000 in the first quarter of
fiscal 1999.
Motorsports operating expenses increased primarily due to a
$1,069,000 increase in the purse obligation related to the Fall NASCAR
weekend at Dover Downs International Speedway and from the scheduling
of the Busch Grand National Division event at Gateway International
Raceway discussed above.
Depreciation and amortization increased by $169,000 due to capital
expenditures related to the Company's video lottery casino and
motorsports facilities expansion.
General and administrative expenses increased by $269,000 to
$3,323,000 from $3,054,000 in the first quarter of 1999 due to an
increase in wages and related employee benefits.
The Company's effective income tax rates for the three-month periods
ended September 30, 1999 and 1998 were 41.5% and 41.2%, respectively.
Net earnings increased by $2,966,000 as a result of increased play
in the casino, higher attendance and related revenues as well as an
increase in the broadcast rights fees for the Fall race at the
Company's motorsports events at Dover Downs International Speedway, and
the scheduling of the Busch Grand National event at Gateway
International Raceway.
Liquidity and Capital Resources
Cash flows from operations for the three months ended September,
1999 and 1998 were $9,737,000 and $6,976,000, respectively. The reason
for the increase in operating cash flows was primarily the increase in
earnings before depreciation and amortization, the timing of certain
tax payments and the timing of payments for harness horse racing
purses, offset in part by the timing of the receipt of amounts due from
the State of Delaware, and a decrease in deferred revenue.
Capital expenditures for the first quarter of fiscal 2000 were
$9,423,000. Approximately $5,285,000 related to the expansion of and
improvements to the auto racing facilities in Dover, Delaware;
Millington, Tennessee (near Memphis, Tennessee); and Madison, Illinois
(near St. Louis, Missouri), approximately $1,690,000 to the expansion
of the casino facility and construction of a hotel in Dover, Delaware,
and approximately $2,435,000 for the acquisition of land and other
construction costs related to the Nashville Superspeedway Complex.
At September 30, 1999, the Company had a $50,000,000 unsecured
revolving line of credit to provide for seasonal funding needs, capital
improvements and other general corporate purposes. There was
$20,000,000 outstanding under the credit facility at September 30,
1999. On November 1, 1999, the Company closed on a $125,000,000
amended and restated revolving line of credit agreement with several
banks. The terms of the new agreement are essentially the same as
those contained in the $50,000,000 agreement.
FORM 10-Q Page 8 of 10
In September of 1999, the Sports Authority of the County of Wilson,
Tennessee issued its Variable Rate Tax Exempt Infrastructure Revenue
Bonds, Series 1999 (the "Bonds") in the aggregate amount of
$25,900,000. The proceeds will be used to acquire, construct and
develop certain public infrastructure improvements in Wilson County,
Tennessee which will be beneficial to the operation of the
Superspeedway Complex the Company is developing through its wholly
owned subsidiary, Nashville Speedway, USA. Interest only payments are
required until September 1, 2002 and will be made from a Capitalized
Interest Fund established from Bond proceeds. Subsequent to the
opening of the Superspeedway Complex, the Bonds will be payable solely
from certain sales and incremental property taxes generated from the
Superspeedway Complex (the "Revenues"). In the event the Revenues are
insufficient to cover the payment of principal and interest on the
Bonds, payments will be made under a $26,326,000 irrevocable direct-pay
letter of credit issued by several banks (the "Banks") pursuant to a
Reimbursement and Security Agreement between Dover Downs Entertainment,
Inc. (the "Company") and the Banks whereby the Company has agreed to
reimburse the Banks for drawings made under the letter of credit.
Management believes that cash flows from operations and funds
expected to be available under its bank credit facility will satisfy
the Company's cash requirements for the remainder of fiscal 2000.
Year 2000 Issues
Aware that the Year 2000 (Y2K) information technology programming
issue could have a significant potential impact on its future
operations and financial reporting, the Company began its assessment
and remediation processes in 1998 regarding its primary financial and
operating systems. The Company's assessment activities have included
(1) identifying all software and operating systems - both information
technology (IT) systems and non-IT systems with embedded technology -
which are critical to operations and/or financial reporting, (2)
testing of such software and systems for Y2K compliance, (3) obtaining
assurances from the Company's vendors, and (4) assigning a manager for
Y2K compliance and establishing a readiness reporting process to ensure
that top management will be aware of each area and step remaining to be
done in order for the Company to become fully Y2K compliant.
Based on its assessment and remediation activities to date, the
Company believes that its critical internal software and operating
systems are Y2K compliant.
Based on assurances to date from the majority of its vendors, the
Company does not anticipate any material Y2K impact on its operations
or financial reporting at this time.
The Company expects to have contingency plans in place by the end of
1999 that address potential short-term business disruptions resulting
from losses of electricity and system malfunctions.
FORM 10-Q Page 9 of 10
Forward-Looking Statements
The Company may make forward-looking statements relating to
anticipated financial performance, business prospects, acquisitions or
divestitures, new products, market forces, commitments and other
matters. The Private Securities Litigation Reform Act of 1995 provides
a safe harbor for forward-looking statements. In order to comply with
the terms of the safe harbor, the Company notes that a variety of
factors could cause the Company's actual results and experience to
differ materially from the anticipated results or other expectations
expressed in the Company's forward-looking statements. Forward-looking
statements typically contain such words as "anticipates," "believes,"
"estimates," "expects," "forecasts," "predicts," or "projects," or
variations of these words, suggesting that future outcomes are
uncertain.
Various risks and uncertainties may affect the operation,
performance, development and results of the Company's business and
could cause future outcomes to differ materially from those set forth
in forward-looking statements, including the following factors:
general economic conditions, the Company's ability to finance its
future business requirements through outside sources or internally
generated funds, the availability of adequate levels of insurance,
success or timing of completion of ongoing or anticipated capital or
maintenance projects, the ability to successfully integrate recently
acquired companies, management retention and development, changes in
Federal, State, and local laws and regulations, including environmental
regulations, weather, relationships with sponsors, broadcast media and
sanctioning bodies as well as the risks, uncertainties and other
factors described from time to time in the Company's SEC filings and
reports.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
A group purportedly made up of Wilson County and Rutherford County,
Tennessee residents has filed a complaint in the Chancery Court for
Wilson County, Tennessee contesting the rezoning of the land upon which
the Nashville Superspeedway complex will be situated. The litigation,
if successful, would prevent, or at least significantly postpone, the
development of the facility. The Company believes the rezoning was
done properly. It is vigorously contesting the litigation and, based
on the advice of counsel, believes that the litigation is unlikely to
succeed on its merits.
Additionally, there are various routine claims and legal actions
pending against the Company incidental to the ordinary operation of its
business. The Company is of the opinion, based on the advice of
counsel, that it is only remotely likely that the ultimate resolution
of these claims and actions will be material.
Item 2. Changes in Securities and Use of Proceeds
None.
FORM 10-Q Page 10 of 10
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information
None.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit 10.1 - Amended and Restated Credit Agreement Among Dover
Downs Entertainment, Inc., the Several Banks and
Other Financial Institutions Party Thereto and PNC
Bank, Delaware as Agent Dated as of November 1,
1999
Exhibit 10.2 - Reimbursement and Security Agreement Between Dover
Downs Entertainment, Inc., Nashville Speedway USA,
Inc. and PNC Bank, Delaware Dated as of September
1, 1999
Exhibit 27 - Financial Data Schedule
(b) Reports on Form 8-K
A Form 8-K was filed by the Company on August 2, 1999 to disclose
the appointment of Klaus M. Belohoubek, Esquire, to the position of
Vice President-General Counsel and Secretary. Michael B. Kinnard,
Esquire, formerly Vice President-General Counsel and Secretary,
resigned to accept the positions of President and Chief Operating
Officer of Matlack Systems, Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
DATE: November 5, 1999 Dover Downs Entertainment, Inc.
(Registrant)
/s/ Denis McGlynn
Denis McGlynn
President and Chief Executive Officer
/s/ Timothy R. Horne
Timothy R. Horne
Vice President-Finance
Chief Financial Officer
(Principal Financial and Accounting Officer)
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE DOVER
DOWNS ENTERTAINMENT, INC. CONSOLIDATED STATEMENT OF EARNINGS FOR THE THREE
MONTHS ENDED SEPTEMBER 30, 1999, AND THE DOVER DOWNS ENTERTAINMENT, INC.
CONSOLIDATED BALANCE SHEET AS OF SEPTEMBER 30, 1999, AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-2000
<PERIOD-END> SEP-30-1999
<CASH> 14,247
<SECURITIES> 0
<RECEIVABLES> 14,679
<ALLOWANCES> 0
<INVENTORY> 605
<CURRENT-ASSETS> 33,465
<PP&E> 207,357
<DEPRECIATION> 25,598
<TOTAL-ASSETS> 270,286
<CURRENT-LIABILITIES> 36,676
<BONDS> 41,125
0
0
<COMMON> 3,590
<OTHER-SE> 178,905
<TOTAL-LIABILITY-AND-EQUITY> 270,286
<SALES> 71,301
<TOTAL-REVENUES> 71,301
<CGS> 0
<TOTAL-COSTS> 48,333
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 426
<INCOME-PRETAX> 19,219
<INCOME-TAX> 7,975
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,244
<EPS-BASIC> .31
<EPS-DILUTED> .31
</TABLE>
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 1, 1999,
among DOVER DOWNS ENTERTAINMENT, INC. (the "Borrower"), the several
banks and other financial institutions from time to time parties
hereto (the "Banks"), and PNC BANK, DELAWARE, a Delaware state
chartered bank, as agent (in such capacity, the "Agent").
BACKGROUND
The Borrower, certain financial institutions (the "Existing
Banks") and the Agent are parties to that certain credit agreement
dated as of March 31, 1999 (as amended, restated or otherwise
modified prior to the date hereof, the "Existing Credit Agreement")
under the terms of which the Existing Lenders provided the Borrower
with a $50,000,000 revolving credit facility. The Borrower, the
Banks and the Agent now desire to amend and restate the provisions of
the Existing Credit Agreement to (a) provide for the assignment by
the Existing Banks of a portion of their existing Loans (as defined
in the Existing Credit Agreement) to First American National Bank and
Wells Fargo Bank (the "New Banks"); (b) provide for an increase in
the aggregate commitments under such revolving credit facility; (c)
extend the maturity date of such revolving credit facility; and (d)
make certain other changes in the covenants and other terms
applicable to such revolving credit facility, in each case, pursuant
and subject to the terms hereof.
In consideration of the foregoing and 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 that the Existing Credit Agreement shall be
amended and restated to read in full as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms . As used in this Agreement, the
following terms shall have the following meanings:
"Affiliate": as to any Person, any other Person which,
directly or 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 Amended and Restated Credit Agreement,
as amended, supplemented or otherwise modified from time to time.
"Application": an application in such form as the Issuing
Bank may specify from time to time, requesting the Issuing Bank
to open a Letter of Credit.
"Assignment and Acceptance": an assignment and acceptance
entered 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 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.
"Base Rate Loans": Revolving Credit Loans bearing interest
at any time under the Base Rate Option.
"Base Rate Option": as defined in Section 2.8(a).
"Borrowing": a Swing Line Loan made by the Swing Line Bank
or group 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 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 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 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 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.
"Change of Control": any transaction or occurrence or
series of transactions or occurrences which results at any time
in the Rollins Family (or their heirs or trusts for any of their
benefit or the benefit of any of their family members) and the
Borrower's principal executive officers and directors as of the
date of this Agreement (or principal executive officers and
directors elected or appointed after the date of this Agreement
with the support of existing management) ceasing to have, in the
aggregate, whether directly or indirectly, voting control of the
Capital Stock of the Borrower.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment": as to any Bank, the obligation of such Bank
to make 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).
"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 that such Bank's Exposure bears to
the Total Exposure at such time).
"Commitment Period": the period from and including the
date hereof 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
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.
"Consolidated EBIT": for any period of four consecutive
fiscal quarters, Consolidated Net Income for such period, plus
the amount of income taxes (if any) 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 EBITDA": for any period of four consecutive
fiscal quarters, Consolidated EBIT for such period, plus the
amount of depreciation and amortization expense deducted from
earnings in determining such Consolidated EBIT, in each case
determined on a consolidated basis for the Borrower and its
Subsidiaries in accordance with GAAP.
"Consolidated Funded Debt": at any time, without
duplication, the aggregate of all indebtedness of the Borrower
and its Subsidiaries for borrowed money, determined on a
consolidated basis in accordance with GAAP as of such date.
"Consolidated Interest Expense": for any period of four
consecutive fiscal quarters, the amount of cash interest expense
deducted from earnings of the Borrower and its Subsidiaries in
determining Consolidated Net Income for such period in
accordance with GAAP.
"Consolidated Net Income": for any fiscal period of four
consecutive fiscal quarters, net earnings (or loss) after income
taxes (if any) for such period determined on a consolidated
basis in accordance with GAAP.
"Consolidated Tangible Net Worth": as of any date of
determination, (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, determined in accordance with
GAAP.
"Contingent Obligation": as to any Person, any guarantee
of payment 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 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).
"Debt": of any Person at any date means (without
duplication):
(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;
(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 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 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 of America.
"Effective Date": the date that all of the conditions of
Section 4.1 have been met to the satisfaction of the Agent.
"Environmental Laws": any and all applicable foreign,
Federal, 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.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Euro-Rate Reserve Percentage": the maximum effective
percentage in 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 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.
"Eurodollar Loan": any Revolving Credit Loan bearing
interest at any time under a Eurodollar Rate Option.
"Eurodollar Rate": with respect to any Eurodollar Loan for
any 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 Jones 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 Jones
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
Eurodollar Rate = on Dow Jones Markets Service display page 3750
or appropriate successor
1.00 - Euro-Rate Reserve Percentage
"Eurodollar Rate Option": as defined in Section 2.8(b).
"Event of Default": any of the events specified in Section
7, provided, that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been
satisfied.
"Existing Credit Agreement": as defined in the Background
Section hereof.
"Existing Letters of Credit": those letters of credit
issued and outstanding under the Existing Credit Agreement and
described on Schedule V hereto, as the same may be renewed,
extended or modified from time to time.
"Exposure": as to any Bank at any date, an amount equal to
the sum 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 Letters of Credit issued under this Agreement.
"Federal Funds Effective Rate": for any day, the weighted
average of 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.
"GAAP": at any time with respect to the determination of
the 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.
"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 Downs, Inc., a Delaware
corporation, Dover Downs 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,
Motorsports Services Corporation of Memphis, 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 Amended and Restated 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 Coverage Ratio": at any date of determination,
the ratio of Consolidated EBITDA to Consolidated Interest
Expense.
"Interest Hedge Agreement": any interest rate swap
agreement, interest rate cap agreement, interest rate collar
agreement, interest rate insurance or any other agreement 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, six, nine or twelve
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, six, nine or twelve
months thereafter, as selected by the Borrower by irrevocable
notice to the Agent 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) $28,000,000 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.
"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": Moody's Investors Services, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"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 is in the gaming or motorsports
industry, if the gross purchase price for such acquisition is
less than $50,000,000, (b) that is in an industry other than
gaming or motorsports, if the gross purchase price for such
acquisition is less than $10,000,000 or (c) 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 $50,000,000.
"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;
(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 Keefe
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;
(f) Any Lien existing on the date of this Agreement
and described on Schedule II 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.
"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%.
"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.
"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.
"Rollins Family": the individuals listed on Schedule III
hereto.
"S&P": Standard & Poor's Rating Group, a division of
McGraw-Hill 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.
"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).
"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) September 30, 2002,
or any anniversary of such 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.
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.
(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
(a) 2.1. Revolving Credit Loans . 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.
(a) 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.
(a) 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
$500,000 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).
(b)
(c) 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
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.
(d)
(e) 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, the Total Exposure would exceed the Total Commitment.
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.
(f)
(g) (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 12:00 noon,
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.
(h)
(i) (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").
(j)
(k) (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.
(l)
(m) (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.
(n)
(o) (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.
(p)
(q) (g) At no time shall there be more than one
outstanding Swing Line Loan.
(r)
(s) (g) Each Swing Line Loan shall be in an original
principal amount of $100,000 or a whole multiple thereof.
(t)
(u) (h) 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.
(v)
(w) 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 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.
(x)
(y) (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.
(z)
(aa) (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.
(bb)
(cc) (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).
(dd)
(ee) (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.
(ff)
(gg) 2.5. Letters of Credit .
(hh)
(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 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 or (B) the aggregate
amount of the L/C Obligations at such time would exceed the L/C
Commitment in effect at such time.
(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.
(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 of three quarters of one
percent (.75%) (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 IV.
(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 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 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
1/4%, 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.
(b) The Borrower agrees to pay to the Agent for the
account of each Bank pro rata in accordance with Section 2.16 a
closing fee in the amount of $125,000, payable on the Effective Date.
(c) The Borrower agrees to pay to the Agent for its
own account an annual administrative fee in the amount of $10,000,
payable annually in advance commencing October 1, 2000.
(d) 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 minus 1% (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 .75% (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.
(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 first and any subsequent anniversary of the Effective Date and
ending on such anniversary, the Borrower may deliver to the Agent
(which shall promptly transmit to each Bank) a notice requesting that
the Commitments be extended to the first anniversary of 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 first anniversary of the Termination Date then in effect and
(ii) the term "Termination Date" shall thereafter mean such first
anniversary of the then existing Termination Date. Any such
extension shall be evidenced by a written agreement among the Agent,
the Banks and the 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 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 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 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 1001 or 4224 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 1001 or 4224 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 1001 or 4224, 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 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, except any such loss as may result from the partial
prepayment of Eurodollar Loans pursuant to Section 4.1(k). 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 . (a) 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. 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 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.
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 June 30, 1999 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 June 30, 1999, 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 June 30, 1999 or the notes thereto.
(b) No Sales. During the period from June 30, 1999,
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 June 30, 1999.
3.2. No Adverse Change . Since June 30, 1999, 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.
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 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 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 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 mark, 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 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 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, or in the Borrower's
financial projections delivered pursuant to Section 4.1(k) hereof,
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 4.1(k) 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
4.1(k), 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.
3.24. Year 2000 Compliance . The Borrower and its
Subsidiaries have reviewed the areas within their business and
operations which could be adversely affected by, and have developed
or are developing a program to address on a timely basis, the risk
that certain computer applications, as well as embedded microchips in
noncomputing devices, used by the Borrower or its Subsidiaries (or
any of their respective material suppliers, customers or vendors) may
be unable to recognize and perform properly date-sensitive functions
involving dates prior to and after December 31, 1999 (the "Year 2000
Problem"). The Year 2000 Problem will not result in a Material
Adverse Effect.
SECTION 4. CONDITIONS PRECEDENT
4.1. Conditions to Effectiveness . The effectiveness of
this Agreement and the agreement of each Bank to make the next
Extension of Credit is subject to the satisfaction of the following
conditions precedent:
(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 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, subject, in the case of legal and other fees of the Agent
in connection with the preparation of this Agreement and the other
instruments and documents delivered in connection herewith, to the
$25,000 limitation previously agreed upon by the Borrower, the Agent
and the Agent's counsel.
(g) Legal Opinion. The Agent shall have received the
executed legal opinion of Klaus M. Belohoubek, 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) Intentionally omitted.
(i) No Material Adverse Change. Since June 30, 1999
there shall have been no material adverse change in the financial
condition or prospects of the Borrower and its Subsidiaries taken as
a whole, and the Borrower shall have delivered to the Agent a
certificate to that effect signed by a Responsible Officer.
(j) 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.
(k) On the Effective Date, (i) all outstanding loans
under the Existing Credit Agreement ("Existing Loans") shall be
deemed Loans hereunder and the Existing Banks shall be deemed to have
assigned to the New Banks such portions of the Existing Loans, and
the Banks shall make such advances and transfers of funds as are
necessary (at the direction of the Agent), in order that the
outstanding balance of such Existing Loans, together with any Loans
funded on the Effective Date, are Loans of the Banks in proportion to
their respective Commitments hereunder; (ii) there shall have been
paid in cash in full all accrued but unpaid interest due on the
Existing Loans to but excluding the Effective Date; and (iii) there
shall have been paid in cash in full all accrued but unpaid fees
under the Existing Credit Agreement due to but excluding the
Effective Date and all other amounts, costs and expenses then owing
to any of the Existing Banks and/or the Agent under the Existing
Credit Agreement for which the Borrower has been invoiced at least
one Business Day prior to the Effective Date.
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 made by the Borrower herein or which
are contained in any certificate, 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).
(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 90 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 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 45 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, 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 90 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 two fiscal
years;
(c) promptly upon their becoming available, but in
any event not later than 90 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.
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 . (a) 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.
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 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.
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 the Leverage Ratio to exceed 2.5 to 1.
(b) Interest Coverage Ratio. Permit as of the end of
any fiscal quarter the Interest Coverage Ratio to be less than 5.0 to
1.
(c) Maintenance of Tangible Net Worth. Permit
Consolidated Tangible Net Worth on any day to be less than (i)
$100,000,000 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 June 30, 1999, calculated on a cumulative
basis.
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 II; and
(d) other guarantees, loans or advances made in the
ordinary course of business which shall not exceed an aggregate of
$3,000,000 at any time.
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.
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); and
(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;
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 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.
6.9. Fiscal Year . Permit its fiscal year to end on a day
other than June 30 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 made or deemed
made by the Borrower herein or 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 deemed made; or
(c) The Borrower shall default in the observance or
performance of any agreement contained in Section 6; or
(d) 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 (c) of this Section 7.1)
or any other Loan Document, and such default shall continue
unremedied for a period of 30 days; or
(e) 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
(f) 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
(g) (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 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
(h) (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
(i) Any Change of Control shall occur; or
(j) 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 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 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 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 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 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 telecopy), 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 with
electronic confirmation or otherwise when received, 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:
The Borrower: Dover Downs Entertainment, Inc.
1131 N. duPont Highway
Dover, DE 19903
Attention: Mr. Timothy Horne
Telecopy: (302) 734-3142
with a copy to: Dover Downs Entertainment, Inc.
2200 Concord Pike
Wilmington, DE 19803
Attention: Klaus M. Belohoubek, Esquire
Telecopy: (302) 426-3555
The Agent, the PNC Bank, Delaware
Swing Line Bank 3 The Plaza
or the Issuing Bank: Dover, DE 19901
Attention: Mr. Jeffrey C. Allen
Vice President
Telecopy: (302) 735-3430
with a copy to: PNC Agency Services
PNC Bank, National Association
One PNC Plaza
22nd Floor
Pittsburgh, PA 15222
Attention: Arlene M. Ohler
Telecopy: (412) 762-8672
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 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 $10,000,000 (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 $2,000, (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 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
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.
(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 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.
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
judgement 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 sue 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.
9.15. Restatement of Existing Credit Agreement . The
parties hereto agree that, on the Effective Date, after all of the
conditions precedent set forth in Section 4.1 have been satisfied or
waived: (i) the Commitments and Loans (as each is defined herein)
represent, among other things, the restatement, renewal, amendment,
extension and continuation of the "Commitments" and "Loans" (as each
is defined in the Existing Credit Agreement); (ii) this Agreement is
intended to, and does hereby, restate, consolidate, renew, extend,
amend, modify, supersede and replace the Existing Credit Agreement in
its entirety; and (iii) the Notes executed pursuant to this Agreement
amend, renew, extend, modify, replace, restate, consolidate,
substitute for, and supersede in their entirety (but do not
extinguish the Debt arising under) the promissory notes issued
pursuant to the Existing Credit Agreement which existing promissory
notes shall be returned to the Agent promptly after the Effective
Date, marked "cancelled and replaced," and, thereafter, delivered by
the Agent to the Borrower.
9.16. 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.
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:
Name: Denis McGlynn
Title: President
PNC BANK, DELAWARE, as Agent and as a
Bank
By:
Name: Jeffrey C. Allen
Title: Vice President
FIRST UNION NATIONAL BANK
By:
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By:
Name:
Title:
WELLS FARGO BANK
By:
Name:
Title:
SCHEDULE I
BANK AND COMMITMENT INFORMATION
Bank and Address Commitment Swing Line Commitment
PNC Bank, Delaware $50,000,000 $2,000,000
3 The Plaza
Dover, DE 19901
Attn: Jeffrey C. Allen
First Union National Bank $25,000,000 N/A
123 South Broad Street
Philadelphia, PA 19101
Mailcode: PA1202
(Attn: Robert Dite)
First American National Bank $25,000,000 N/A
4th and Union
Nashville, TN 37238
Wells Fargo Bank $25,000,000 N/A
P.O. Box 300
Mailstop 4611-031mac
Reno, NV 89504
SCHEDULE II
EXISTING LIENS
Southwestern Illinois Development Authority Loan secured by
first mortgage lien on all real property owned and a security
interest in all property leased at Gateway International Raceway.
SCHEDULE III
ROLLINS FAMILY
John W. Rollins Sr.
John W. Rollins Jr.
Jeffrey W. Rollins
R. Randall Rollins
Gary W. Rollins
Michele Rollins
SCHEDULE IV
LETTER OF CREDIT FEES
(see attached)
SCHEDULE V
EXISTING LETTERS OF CREDIT
Outstanding under the Existing Credit Agreement
Amount Origination Expiration
Date Date In Favor Of
$26,325,754 09/29/99 09/01/01 First Union National Bank,
Trustee for The Sports
Authority of Wilson County.
80,000 08/24/99 04/15/01 Wilson County Building
Inspector related to erosion
control for the Tennessee
project.
100,000 12/12/95 01/31/00 State of Delaware, Department
of Finance, State Lottery
Office
SCHEDULE 3.19
LABOR MATTERS
1. Grand Prix Association of Long Beach and Laborers Local 507
dated 5/13/92.
2. Gateway International Motorsports Corporation and
Teamsters, Automotive, Petroleum and Allied Trades Local 50
dated 10/13/98.
AMENDED AND RESTATED
CREDIT AGREEMENT
among
DOVER DOWNS ENTERTAINMENT, INC.
and
THE BANKS PARTY HERETO
and
PNC BANK, DELAWARE
as Agent
DATED AS OF NOVEMBER 1, 1999
$125,000,000
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1. Defined Terms 1
1.2. Other Definitional Provisions 17
SECTION 2. THE CREDITS 18
2.1. Revolving Credit Loans 18
2.2. Revolving Credit Loan Procedures 18
2.3. Swing Line Loans 19
2.4. General Provisions Regarding Loans 20
2.5. Letters of Credit 21
2.6. Fees 25
2.7. Notes; Repayment of Revolving Credit Loans 26
2.8. Interest on Revolving Credit Loans 26
2.9. Default Rate; Inability to Determine Interest Rate 26
2.10. Termination, Reduction and Extension of Commitments 27
2.11. Optional and Mandatory Prepayments of Revolving Credit
Loans 28
2.12. Illegality 29
2.13. Requirements of Law 29
2.14. Taxes 31
2.15. Indemnity 32
2.16. Pro Rata Treatment, etc. 32
2.17. Payments 33
2.18. Conversion and Continuation Options 33
2.19. Use of Proceeds 34
SECTION 3. REPRESENTATIONS AND WARRANTIES 34
3.1. Financial Condition 34
3.2. No Adverse Change 35
3.3. Corporate Existence; Compliance with Law 35
3.4. Corporate Power; Authorization; Enforceable Obligations 35
3.5. No Legal Bar 35
3.6. No Material Litigation 35
3.7. No Default 36
3.8. Taxes 36
3.9. Federal Regulations 36
3.10. ERISA 36
3.11. Investment Company Act; Public Utility Holding Company
Act 37
3.12. Purpose of Loans; Letters of Credit 37
3.13. Environmental Matters 37
3.14. No Burdensome Restrictions 38
3.15. Ownership of Borrower and Subsidiaries 38
3.16. Patents, Trademarks, etc. 38
3.17. Ownership of Property 39
3.18. Licenses, etc. 39
3.19. Labor Matters 39
3.20. Material Contracts 39
3.21. Insurance 39
3.22. Senior Debt Status 39
3.23. No Material Misstatements 40
3.24. Year 2000 Compliance 40
SECTION 4. CONDITIONS PRECEDENT 40
4.1. Conditions to Effectiveness 40
4.2. Conditions to Each Extension of Credit 42
SECTION 5. AFFIRMATIVE COVENANTS 43
5.1. Financial Statements 43
5.2. Certificates; Other Information 44
5.3. Payment of Obligations 44
5.4. Conduct of Business and Maintenance of Existence 45
5.5. Maintenance of Property; Insurance 45
5.6. Inspection of Property; Books and Records; Discussions 45
5.7. Notices 45
5.8. Environmental Laws 46
5.9. Management Changes 47
SECTION 6. NEGATIVE COVENANTS 47
6.1. Financial Condition Covenants 47
6.2. Limitation on Debt 47
6.3. Limitation on Liens 48
6.4. Limitations on Fundamental Changes 48
6.5. Limitation on Sale of Assets 48
6.6. Limitations on Acquisitions, Investments, Loans and
Advances 49
6.7. Limitation on Distributions 49
6.8. Transactions with Affiliates 50
6.9. Fiscal Year 50
6.10. Change in Business 50
6.11. Change of Control 50
6.12. Sale and Leaseback 50
6.13. Limitation on Negative Pledge Clauses 50
6.14. Interest Hedge Agreements 50
SECTION 7. EVENTS OF DEFAULT 50
7.1. Events of Default 50
SECTION 8. THE AGENT 53
8.1. Appointment 53
8.2. Delegation of Duties 54
8.3. Exculpatory Provisions 54
8.4. Reliance by Agent 54
8.5. Notice of Default 55
8.6. Non-Reliance on Agent and Other Banks 55
8.7. Indemnification 55
8.8. Agent in its Individual Capacity 56
8.9. Successor Agent 56
8.10. Beneficiaries 56
SECTION 9. MISCELLANEOUS 56
9.1. Amendments and Waivers 56
9.2. Notices 57
9.3. No Waiver; Cumulative Remedies 58
9.4. Survival of Representations and Warranties 58
9.5. Payment of Expenses and Taxes 58
9.6. Successors and Assigns 59
9.7. Disclosure of Information 62
9.8. Adjustments; Set-off 63
9.9. Counterparts 63
9.10. Severability 63
9.11. Integration 64
9.12. GOVERNING LAW 64
9.13. Submission To Jurisdiction; Waivers 64
9.14. Acknowledgements 65
9.15. Restatement of Existing Credit Agreement 65
9.16. WAIVERS OF JURY TRIAL 65
<PAGE>
SCHEDULES
SCHEDULE I Bank and Commitment Information
SCHEDULE II Existing Liens
SCHEDULE III Rollins Family
SCHEDULE IV Letter of Credit Fees
SCHEDULE V Existing Letters of Credit
SCHEDULE 3.19 Labor Matters
EXHIBITS
EXHIBIT A Form of Revolving Credit Borrowing Request
EXHIBIT B-1 Form of Revolving Credit Note
EXHIBIT B-2 Form of Swing Line Note
EXHIBIT C Form of Amended and Restated Guaranty Agreement
EXHIBIT D Form of Assignment and Acceptance
EXHIBIT E Form of Opinion of Counsel to Borrower and Guarantors
EXHIBIT F Form of Compliance Certificate
EXHIBIT A
FORM OF REVOLVING CREDIT BORROWING REQUEST
PNC Bank, Delaware
3 The Plaza
Dover, DE 19901
Attention: Jeffrey C. Allen, Vice President
Gentlemen:
The undersigned, Dover Downs Entertainment, Inc. refers to
the Amended and Restated Credit Agreement dated as of November 1,
1999 (the "Credit Agreement") (capitalized terms being used herein as
therein defined), among the undersigned, the banks and other
financial institutions party thereto and PNC Bank, Delaware, as
Agent, and hereby gives you notice, irrevocably, pursuant to Section
2.2 of the Credit Agreement that the undersigned hereby requests
[Revolving Credit Loans] [the renewal of a Eurodollar Rate Option]
[the conversion of an interest rate option] as follows:
1. The proposed borrowing date is _______________, 19__.
2. The aggregate amount of Revolving Credit Loans
comprising the Borrowing is $______________.
3. The [Eurodollar Rate Option] [Base Rate Option] shall
apply to the Revolving Credit Loans comprising the Borrowing.
4. The Interest Period for the Revolving Credit Loans
comprising the Borrowing is _________ [months].
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
borrowing date:
(a) each of the representations and warranties made
by the undersigned in the Credit Agreement or which are contained
herein are true and correct in all material respects on and as of the
date hereof as if made on and as of the date hereof (except
representations and warranties which expressly relate solely to an
earlier date or time); and
(b) no Default or Event of Default has occurred and
is continuing on the date hereof or will occur after giving effect to
the Extensions of Credit requested hereby.
Very truly yours,
DOVER DOWNS ENTERTAINMENT, INC.
By:_________________________________
Name: ______________________________
Title: _______________________________
EXHIBIT B-1
FORM OF REVOLVING CREDIT NOTE
$_______________ Dated as of ________, 1999
Dover, DE
FOR VALUE RECEIVED, DOVER DOWNS ENTERTAINMENT, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _______________ (the "Bank"), in accordance with the terms
of the Credit Agreement, as hereinafter defined, the lesser of the
principal sum of $__________ or the aggregate unpaid principal amount
of all Revolving Credit Loans as defined in the Credit Agreement made
by the Bank to the Borrower pursuant to the Credit Agreement,
together with all unpaid interest accrued thereon and all other
costs, fees and expenses as provided in the Credit Agreement.
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal
amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America at the office of the Agent (as
hereinafter defined) at 3 The Plaza, Dover, DE 19901, in immediately
available funds.
This Revolving Credit Note is one of the Revolving Credit
Notes referred to in, and is entitled to the benefits of, the Amended
and Restated Credit Agreement dated as of ________, 1999 (said
Agreement, as it may hereafter be amended or otherwise modified from
time to time, being the "Credit Agreement") among the Borrower, the
Bank, the other banks and financial institutions from time to time
party thereto, and PNC Bank, Delaware, as agent (the "Agent"). The
Credit Agreement, among other things, (i) provides for the making of
Revolving Credit Loans by the Bank to the Borrower in an aggregate
amount not to exceed at any time outstanding the dollar amount first
above mentioned, the indebtedness of the Borrower resulting from each
such Revolving Credit Loan being evidenced by this Revolving Credit
Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
[This Revolving Credit Note is an amendment, restatement,
renewal and modification (but not a novation) of, the Revolving
Credit Note (as the same may have been amended and replaced to the
date hereof, the "Former Revolving Credit Note"), executed and
delivered by the Borrower, and payable to the order of the Bank,
pursuant to the Credit Agreement between the Borrower, the several
banks and other financial institutions from time to time parties
thereto and the Agent dated as of March 31, 1999. This Revolving
Credit Note is being issued in substitution of, and supercedes and
replaces, the Former Revolving Credit Note.]
The Borrower hereby waives presentment, demand, protest and
notice of any kind, other than as set forth in the Credit Agreement.
No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver
of such rights.
This Revolving Credit Note shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
DOVER DOWNS ENTERTAINMENT, INC.
By:__________________________________
Name:
Title:
EXHIBIT B-2
FORM OF SWING LINE NOTE
$2,000,000 Dated as of _________, 1999
Dover, DE
FOR VALUE RECEIVED, DOVER DOWNS ENTERTAINMENT, INC., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of PNC BANK, DELAWARE (the "Bank"), in accordance with the
terms of the Credit Agreement, as hereinafter defined, the lesser of
the principal sum of $2,000,000 or the aggregate unpaid principal
amount of all Swing Line Loans as defined in the Credit Agreement
made by the Bank to the Borrower pursuant to the Credit Agreement,
together with all unpaid interest accrued thereon and all other
costs, fees and expenses as provided in the Credit Agreement.
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal
amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of
the United States of America at the office of the Agent (as
hereinafter defined) at 3 The Plaza, Dover, DE 19901, in immediately
available funds.
This Swing Line Note is the Swing Line Note referred to in,
and is entitled to the benefits of, the Amended and Restated Credit
Agreement dated as of _________, 1999 (said Agreement, as it may
hereafter be amended or otherwise modified from time to time, being
the "Credit Agreement") among the Borrower, the banks and financial
institutions from time to time party thereto, and PNC Bank, Delaware,
as agent (the "Agent"). The Credit Agreement, among other things,
(i) provides for the making of Swing Line Loans by the Bank to the
Borrower in an aggregate amount not to exceed at any time outstanding
the dollar amount first above mentioned, the indebtedness of the
Borrower resulting from each such Swing Line Loan being evidenced by
this Swing Line Note, and (ii) contains provisions for acceleration
of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
[This Swing Line Note is an amendment, restatement, renewal
and modification (but not a novation) of, the Swing Line Note (as the
same may have been amended and replaced to the date hereof, the
"Former Swing Line Note"), executed and delivered by the Borrower,
and payable to the order of the Bank, pursuant to the Credit
Agreement between the Borrower, the several banks and other financial
institutions from time to time parties thereto and the Agent dated as
of March 31, 1999. This Swing Line Note is being issued in
substitution of, and supersedes and replaces, the Former Swing Line
Note.]
The Borrower hereby waives presentment, demand, protest and
notice of any kind, other than as set forth in the Credit Agreement.
No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver
of such rights.
This Swing Line Note shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
DOVER DOWNS ENTERTAINMENT, INC.
By:__________________________________
Name:
Title:
<PAGE>
MOTORSPORTS SERVICES CORPORATION
OF MEMPHIS
Attest:______________________________
By:________________________________
Print Name:_________________________ Print
Name:_________________________
Title:_______________________________
Title:_______________________________
NASHVILLE SPEEDWAY, USA, INC.
Attest:______________________________
By:________________________________
Print Name:_________________________ Print
Name:_________________________
Title:_______________________________
Title:_______________________________
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Amended and Restated Credit
Agreement dated as of November 1, 1999 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"), among DOVER DOWNS ENTERTAINMENT, INC., a Delaware
corporation (the "Borrower"), the banks and other financial
institutions from time to time party thereto (the "Banks") and PNC
Bank, Delaware, as Agent (in such capacity, the "Agent"). Unless
otherwise defined herein, terms defined in the Credit Agreement are
used herein with the same meanings.
_____________________ (the "Assignor") and _________________ (the
"Assignee") hereby agree as follows:
1. The Assignor hereby sells and assigns, without
recourse and without representation or warranty (other than as
expressly provided herein), to the Assignee, and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective
as of the Effective Date set forth on Schedule A attached hereto (the
"Effective Date"), the interests set forth on Schedule A (the
"Assigned Interest") in the Assignor's rights and obligations under
the Credit Agreement; provided, however, that such assignment shall
be in an amount not less than $10,000,000 (or such lesser amount as
the Borrower and the Agent shall agree in their sole discretion).
2. From and after the Effective Date hereof, (A) such
Assignee shall be a party to the Credit Agreement and, to the extent
of the interest assigned by this Assignment and Acceptance Agreement,
have the rights and obligations of a Bank under the Credit Agreement
and under the other Loan Documents, and (B) the Assignor shall, to
the extent of the interest assigned by this Assignment and Acceptance
Agreement, relinquish its rights and be released from its obligations
under the Credit Agreement and the other Loan Documents (and, in the
case of an Assignment and Acceptance Agreement covering all or the
remaining portion of the Assignor's rights and obligations under the
Credit Agreement and the other Loan Documents, such Assignor shall
cease to be a party to the Credit Agreement 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 Assignor's entitlement to such benefits
arose out of its position as a Bank prior to this Assignment and
Acceptance Agreement) of the Credit Agreement, as well as to any
Commitment Fees accrued for its account and not yet paid). As
provided in Section 9.6 of the Credit Agreement and notwithstanding
any other provision of this Assignment and Acceptance Agreement, 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.
3. The Assignor (i) warrants that it is the legal and
beneficial owner of the interest being assigned hereunder, free and
clear of any adverse claim, and (ii) except as set forth in (i)
above, makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or
the other Loan Documents, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement, the other Loan Documents or any other instrument or
document furnished pursuant thereto, or the financial condition of
the Borrower or the performance or observance by the Borrower of any
of its obligations under the Credit Agreement or the other Loan
Documents or any other instrument or document furnished pursuant
thereto.
4. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance
Agreement, (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial
statements delivered pursuant to Sections 5.1(a) and (b) of the
Credit Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance Agreement, (iii) will
independently and without reliance upon the Agent, the Assignor or
any other Bank and based on such documents and information as it
shall deem appropriate at the time, make its own credit decisions in
taking or not taking action under the Credit Agreement and the other
Loan Documents, (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, and (v) agrees that it will perform in
accordance with their terms all the obligations which by the terms of
the Credit Agreement and the other Loan Documents are required to be
performed by it as a Bank.
5. Following the execution of this Assignment and
Acceptance Agreement by the Assignor and Assignee, the following will
be delivered to the Agent's offices: (i) an executed original hereof
(together with all attachments), (ii) the Notes evidencing the Loans
included in the Assigned Interest, (iii) if the Assignee is organized
under the laws of any jurisdiction other than the United States or
any state thereof, the forms prescribed by the Internal Revenue
Service of the United States certifying as to the Assignee's
exemption from withholding taxes with respect to all payments to be
made to the Assignee under the Credit Agreement or such other
documents as are necessary to indicate that all such payments are
subject to such tax at a rate reduced by an applicable tax treaty,
all duly completed and executed by such Assignee, and (iv) a
processing and recordation fee of $2,000.
6. Upon acceptance and recording of this Assignment and
Acceptance Agreement in accordance with the Credit Agreement, the
Agent shall, from and after the Effective Date, make all payments in
respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) (other than on account of
Commitment Fees accrued and not yet paid) to the Assignee whether
such amounts have accrued prior to the Effective Date or accrue
subsequent to the Effective Date. The Assignor and the Assignee
shall make all appropriate adjustments in payments by the Agent for
periods prior to the Effective Date or with respect to the making of
this assignment directly between themselves.
7. This Assignment and Acceptance Agreement shall be
governed by and construed in accordance with the laws of the State of
Delaware.
The terms set forth above and on Schedule A attached hereto are
hereby agreed to as of the date hereof.
______________________, as Assignor
By:________________________________
Name:
Title:
______________________, as Assignee
By:___________________________
Name:
Title:
Accepted:
PNC BANK, DELAWARE,
as Agent
By:___________________________
Name:
Title:
Consented to:
DOVER DOWNS ENTERTAINMENT, INC.
By:____________________________
Title:
Schedule A
to
Assignment and Acceptance
Agreement
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
______________________________
______________________________
Attention: ______________________
Telecopy: _____________________
Effective Date of Assignment
(may not be fewer than five Business
Days after the date that the Assignment
and Assumption Agreement is delivered
to the Agent): ____________________
Principal Amount of Percentage of Loans
Outstanding Loans and Commitment
Assigned Assigned
$ %
EXHIBIT E
FORM OF OPINION OF COUNSEL TO BORROWER AND GUARANTORS
November 1, 1999
PNC Bank, Delaware, as Agent for the
banks and other financial institutions
party to the Credit Agreement referred to below
3 The Plaza
Dover, Delaware 19901
Ladies and Gentlemen:
We have acted as counsel to Dover Downs Entertainment,
Inc., a Delaware corporation (the "Borrower"), Dover Downs, Inc.,
a Delaware corporation, Dover Downs 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, Motorsports Services
Corporation of Memphis, a Tennessee corporation, and Nashville
Speedway USA, Inc., a Tennessee corporation (each, a "Guarantor"
and collectively, the "Guarantors") in connection with the
execution and delivery of the Amended and Restated Credit
Agreement dated as of November 1, 1999 (the "Credit Agreement"),
among the Borrower, the banks and other financial institutions
party thereto and PNC Bank, Delaware, as agent, and the
transactions contemplated thereby. This opinion is delivered to
you pursuant to Section 4.1(g) of the Credit Agreement. Terms
defined in the Credit Agreement and not otherwise defined herein
shall have the meanings assigned to them in the Credit Agreement.
In so acting, we have examined executed originals or
counterparts of the following documents, each dated the date
hereof (the "Loan Documents"):
(a) the Credit Agreement;
(b) the Notes; and
(c) the Amended and Restated Guaranty Agreement (the
"Guaranty Agreement").
We have also examined the articles or certificate of
incorporation and bylaws, each as amended to date, of the
Borrower and each Guarantor and such other documents and
instruments and have made such further inquiries as we have
deemed appropriate for purposes of this opinion. As to certain
issues of fact, we have, where such facts were not independently
known to us, relied with your consent and without independent
investigation upon the representations and warranties made by the
Borrower in the Credit Agreement and upon certificates of
representatives of the Borrower dated November 1, 1999.
On the basis of the foregoing, we are of the opinion
that:
1. The Borrower is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction where the
business conducted by it requires such qualification.
2. The Borrower has the corporate or other power and
authority to own or lease and operate its properties and assets,
to conduct the business in which it is now engaged, and to
execute and deliver and perform its obligations under the Loan
Documents to which it is a party. The execution, delivery and
performance of the Loan Documents to which it is a party by the
Borrower have been duly authorized by all necessary action on the
part of the Borrower.
3. Each Guarantor is a corporation duly incorporated,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and
authority to own or lease and operate its properties and assets,
to conduct the business in which it is now engaged, and to
execute the Guaranty Agreement.
4. The Loan Documents to which the Borrower is a
party delivered on the Closing Date have each been duly executed
and delivered by or on behalf of the Borrower and are valid and
binding obligations of the Borrower enforceable against the
Borrower in accordance with their respective terms, except as the
same may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws or
equitable principles affecting the enforcement of creditors'
rights generally.
5. The Guaranty Agreement has been duly executed and
delivered by or on behalf of each Guarantor and is the valid and
binding obligation of each Guarantor enforceable against such
Guarantor in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws or equitable
principles affecting the enforcement of creditors' rights
generally.
6. No authorization, approval or consent of, or
filing or registration with, any governmental or regulatory body
of the United States of America or the State of Delaware is
required in connection with the execution, delivery and
performance by the Borrower or any Guarantor of the Loan
Documents to which it is a party or for any borrowings by the
Borrower under the Credit Agreement.
7. Neither the execution and delivery by the Borrower
or any Guarantor of the Loan Documents to which it is a party nor
the performance and observance by the Borrower or the Guarantors
of their respective obligations thereunder, will conflict with,
or result in any violation or breach by the Borrower or any
Guarantor of or constitute a default under (or an event which,
with or without due notice or lapse of time or both, would
constitute a default under), or accelerate the performance
required by, or result in the creation of any Lien upon any of
the properties or assets of the Borrower or any Guarantor under
any of the terms, conditions or provisions of or require any
filing or consent under (i) the Borrower's or any Guarantor's
articles or certificate of incorporation or bylaws, (ii) any
existing law, statute or governmental regulation applicable to
the Borrower or any Guarantor, or (iii) to our knowledge, any
judgment, order, decree, writ or injunction of any court,
arbitrator or governmental department, commission, agency or
instrumentality or any indenture, contract, guaranty or other
agreement or instrument to which the Borrower or any Guarantor is
a party or by which it or its properties may be bound or
affected.
8. To our knowledge, there is no action, suit,
proceeding or investigation at law or in equity, before any
court, public board or body, pending or threatened against or
affecting the Borrower wherein an unfavorable decision, ruling or
finding would, individually or collectively, have a material
adverse effect on the business or financial condition of the
Borrower.
9. The borrowing on the date hereof under the Credit
Agreement and the Notes and the application of the proceeds
thereof as contemplated by the Credit Agreement and the other
Loan Documents do not violate any of the provisions of Regulation
U or X of the Board of Governors of the Federal Reserve System.
<PAGE>
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
This Compliance Certificate is executed and delivered
by Dover Downs Entertainment, Inc. (the "Borrower") in connection
with the Amended and Restated Credit Agreement dated as of
November 1, 1999 (together with all exhibits, schedules,
extensions, renewals, amendments, substitutions and replacements
thereof and thereto, the "Credit Agreement") entered into by and
among the Borrower, the banks and other financial institutions
party thereto (the "Banks") and PNC Bank, Delaware, as agent (the
"Agent"). All capitalized terms used in this Compliance
Certificate as defined terms shall have the meanings given them
in the Credit Agreement.
The undersigned, [insert name], [insert title] of the
Borrower, hereby attests on behalf of the Borrower to the Agent
and the Banks, with respect to the fiscal [quarter] [year] ended
____________, ____ (the "Fiscal Period"), as follows:
1. As of the date of this Compliance Certificate, and
since the date of the most recent Compliance Certificate
submitted to the Agent and the Banks by the Borrower, (i) to the
best of the undersigned's knowledge, the Borrower has kept,
observed, performed and fulfilled each and every covenant and
condition contained in the Credit Agreement, the Notes and the
other Loan Documents applicable to it and (ii) the undersigned
has obtained no knowledge of any Default or Event of Default.
2. The Leverage Ratio as of the end of the Fiscal
Period, for the four fiscal quarters then ended, is ________, as
detailed below:
(a) Consolidated Funded Debt $__________
(b) Consolidated EBITDA $__________
(c) Leverage Ratio (a divided by b) __________
3. The Interest Coverage Ratio as of the end of the
Fiscal Period, for the four fiscal quarters then ended, is
__________, as detailed below:
(a) Consolidated EBITDA $__________
(b) Consolidated Interest Expense $__________
(c) Interest Coverage Ratio (a divided by b) __________
4. The Borrower's Consolidated Tangible Net Worth
Fixed as of the end of the Fiscal Period is $________. Required
Consolidated Tangible Net Worth as of the end of the Fiscal
Period ($100,000,000 plus 25% of quarterly consolidated net
income (if positive) since June 30, 1999 is $__________.
IN WITNESS WHEREOF, I have signed this Certificate as
of the ____ day of __________, ____.
DOVER DOWNS ENTERTAINMENT, INC.
By___________________________
Name:
Title:
REIMBURSEMENT AND SECURITY AGREEMENT
THIS REIMBURSEMENT AND SECURITY AGREEMENT ("this Agreement"), made as
of September 1, 1999, between DOVER DOWNS ENTERTAINMENT, INC. (the
"Borrower"), NASHVILLE SPEEDWAY, U.S.A., INC. (the "Company") and PNC
BANK, DELAWARE (the "Bank").
RECITALS:
A. The Sports Authority of the County of Wilson (the "Issuer") has
issued its Variable Rate Tax Exempt Infrastructure Revenue Bonds,
Series 1999 in the aggregate principal amount of $25,900,000 (the
"Bonds") under an Indenture of Trust dated as of September 1, 1999
(the "Indenture") between the Issuer, the County of Wilson, Tennessee
(the "County") and First Union National Bank, as Trustee (including
any successor trustee, the "Trustee").
B.
C. Pursuant to the Indenture, the proceeds of the Bonds will be
applied (i) to acquire, construct, improve and install for the use of
the general public and as a supporting system or facility for the
Motor Sports Speedway (the "Speedway Facility") being developed by
the Company, a wholly-owned subsidiary of the Borrower, certain
roads, streets, highways, curbs, bridges, flood control facilities
and utility services, including water, sanitary sewer, electricity,
gas and natural gas and telecommunications (collectively, the
"Infrastructure Improvements") and (ii) to pay a portion of the costs
of issuing the Bonds (collectively, the "Project").
D.
E. In order to provide funds for the payment of principal of and
interest on the Bonds and the purchase price of Bonds which have been
tendered pursuant to the mandatory tender provisions thereof and of
the Indenture, the Company is required pursuant to the Indenture to
cause an irrevocable letter of credit is to be issued to the Trustee.
F.
G. The Borrower, the Bank and certain other banks party thereto
(collectively, the "Banks") and PNC Bank, Delaware, as agent for the
Banks, have entered into a Credit Agreement dated as of March 31,
1999 (as the same may hereafter be modified, amended, restated or
supplemented, the "Credit Agreement") pursuant to which the Banks
have agreed to make certain credit facilities available to the
Borrower, including the issuance of Letters of Credit for the benefit
of the Borrower and its subsidiaries. The Bank is the Issuing Bank
under the Credit Agreement and is authorized to issue Letters of
Credit thereunder. Pursuant to the Credit Agreement, the Borrower
has asked the Bank to issue a Letter of Credit under the Credit
Agreement as the Letter of Credit required by the Indenture. Subject
to the terms and conditions of the Credit Agreement and this
Agreement, the Bank is willing to issue its Irrevocable Letter of
Credit (together with any substitute letter of credit issued pursuant
to the terms hereof, the "Letter of Credit") to the Trustee for the
account of the Borrower and the Company authorizing the Trustee to
make one or more draws on the Bank up to an aggregate of $26,325,754
(as reduced and reinstated from time to time in accordance with the
provisions of the Letter of Credit, the "Letter of Credit Amount"),
of which originally (i) $25,900,000 shall be in respect of principal
of the Bonds, and (ii) $425,754 shall be in respect of accrued
interest on the Bonds.
H.
I. NOW THEREFORE, in consideration of the foregoing and the
undertakings herein set forth and intending to be legally bound, the
Borrower and the Bank hereby agree as follows:
J.
K.
ARTICLE I DEFINITIONS
Section 1.01. Definitions . In this Agreement (except as
otherwise expressly provided for or unless the context otherwise
requires), the following terms have the meanings specified in the
foregoing recitals:
Bank Letter of Credit
Banks Indenture
Bonds Infrastructure Improvements
Borrower Issuer
Company Letter of Credit Amount
County Project
Credit Agreement Trustee
In addition, the following terms shall have the meanings specified
in this Article, unless the context otherwise requires. All other
capitalized terms not otherwise defined herein shall have the meaning
given to them in the Credit Agreement.
"Bond Documents" means the Bonds, the Indenture and any other
agreements or instruments relating thereto.
"Date of Issuance" means the date on which the Letter of Credit is
issued upon request of the Borrower pursuant to Section 2.01.
"Event of Default" shall have the meaning assigned to such term
in Section 6.01.
"Interest Component" has the meaning ascribed to such term in the
Letter of Credit.
"Interest Draft" has the meaning ascribed to such term in the
Letter of Credit.
"Pledged Bonds" means any Bonds delivered to or for the account of
the Bank in connection with a Tender Draft under the Letter of
Credit.
"Principal Component" has the meaning ascribed to such term in the
Letter of Credit.
"Remarketing Agent" means collectively First American Capital
Markets, a division of First American National Bank, and PNC Capital
Markets, Inc., and their respective successors and assigns and any
successor remarketing agent appointed in accordance with Section
10.12 of the Indenture.
"State" means the State of Delaware.
"Stated Expiration Date" has the meaning assigned to such term in
the Letter of Credit.
"Tender Draft" has the meaning assigned to such term in the Letter
of Credit.
"Unremarketed Tendered Bonds" means Bonds which (a) have been
tendered for purchase pursuant to tender option provisions of the
Bonds and the Indenture and (b) have not been successfully remarketed
by the Remarketing Agent prior to 10:00 a.m. on the date of purchase
thereof pursuant to such tender.
Section 1.02. Rules of Construction; Time of Day . In this
Agreement, unless otherwise indicated, (i) defined terms may be used
in the singular or the plural and the use of any gender includes all
genders, (ii) the words, "hereof", "herein", "hereto", "hereby" and
"hereunder" refer to this entire Agreement, (iii) the words
"including", "includes" and "include" shall be deemed to be followed
by the words "without limitation", and (iv) all references to
particular Articles or Sections are references to the Articles or
Sections of this Agreement. References to any time of the day in
this Agreement shall refer to Eastern standard time or Eastern
daylight saving time, as in effect in the State on such day.
ARTICLE II LETTER OF CREDIT AND REIMBURSEMENT
Section 2.01. Issuance of Letter of Credit . The Borrower hereby
requests the Bank to issue the Letter of Credit to the Trustee.
Subject to the conditions precedent set forth in the Credit Agreement
and receipt of copies of the executed Bond Documents, the Bank will
issue to the Trustee, on the date of execution and delivery of this
Agreement, the Letter of Credit in the Letter of Credit Amount and
substantially in the form attached hereto as Exhibit A effective on
the Date of Issuance and expiring on the Stated Expiration Date. On
or prior to each anniversary of the Date of Issuance, the Borrower
may request that the Bank extend the Stated Expiration Date with
respect to the Letter of Credit for an additional one year period, it
being understood that the Bank shall have no obligation to grant any
such extension. Any such extension shall be subject to the terms of
the Credit Agreement and the mutual agreement of the Borrower and the
Banks. The Letter of Credit shall be a Letter of Credit issued under
the Credit Agreement and the Bank shall be entitled to all of the
rights and benefits of the Issuing Bank provided in the Credit
Agreement with respect thereto. All drawings under the Letter of
Credit will be paid with the Bank's own funds subject to all of its
rights to reimbursement hereunder and under the Credit Agreement.
Section 2.02. Reimbursement and Other Payments .
(a) Reimbursement. The Borrower hereby agrees to pay or cause
to be paid to the Bank a sum equal to each amount drawn under the
Letter of Credit on the Business Day such drawing is honored. All
such amounts shall be paid to the Bank at its address and in the
manner set forth in the Credit Agreement.
(b) Transaction and Transfer Charges and Expenses. The
Borrower shall pay to the Bank, all reasonable transaction charges
that the Bank may make for drawings under the Letter of Credit. In
addition, the Borrower shall pay to the Bank on demand any and all
reasonable charges and expenses which the Bank may pay or incur
relative to the Letter of Credit. The Borrower shall pay to the Bank
upon each transfer or amendment of the Letter of Credit in accordance
with its terms a transfer or amendment fee as specified by the Bank,
together with any and all costs and expenses of the Bank incurred in
connection with such transfer or amendment.
Section 2.03. Transfer; Reduction; Reinstatement .
(a) Transfer. The Letter of Credit may be transferred in
accordance with paragraph 9 of the Letter of Credit.
(b) Reduction. The Letter of Credit Amount and the respective
Principal Component and Interest Component thereof shall be
automatically reduced as specified in paragraph 5 of the Letter of
Credit. With respect to any reductions of the Letter of Credit
Amount pursuant to the terms of the Letter of Credit as a result of
Bonds ceasing to be Outstanding, the Bank shall have the right, at
its option, to require the Trustee to promptly surrender the
outstanding Letter of Credit to the Bank and to accept in
substitution therefor a letter of credit in the form of Exhibit A
attached hereto, dated the date of such substitution, for an amount
equal to the Letter of Credit Amount as so reduced, but otherwise
having terms identical to the then outstanding Letter of Credit.
(c) Reinstatement. In the event of a drawing under the Letter
of Credit with an Interest Draft, the Interest Component of the
Letter of Credit Amount shall, as provided in paragraph 6 of the
Letter of Credit and subject to the conditions therein set forth, be
automatically reinstated by an amount equal to the amount of such
drawing. In the event of a drawing under the Letter of Credit with a
Tender Draft, the Principal Component and Interest Component of the
Letter of Credit Amount shall, as provided in paragraph 7 of the
Letter of Credit, be reinstated with respect to such drawing (1) when
and to the extent that (i) the Bank has received reimbursement for
such drawing in immediately available funds (or the Trustee has
received immediately available funds which, pursuant to the
Indenture, the Trustee will immediately remit to the Bank as
reimbursement for such drawing) and (ii) the Trustee has delivered a
certificate to the Bank in respect of such reinstatement in the form
required by paragraph 7 of the Letter of Credit, or (2) when and to
the extent the Bank, at its option, upon the Borrower's or the
Company's request, advises the Trustee in writing that such
reinstatement shall occur, it being understood that the Bank shall
have no obligation to grant any such reinstatement except as set
forth in clause (1) of this sentence.
Section 2.04. Obligations Absolute . The obligations of the
Borrower under this Article shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever,
including without limitation the following circumstances: (i) any
lack of validity or enforceability of the Letter of Credit, the Bond
Documents or any other agreement or document relating thereto; (ii)
any amendment or waiver of or any consent to or departure from the
Letter of Credit, the Bond Documents or any document relating
thereto; (iii) the existence of any claim, set-off, defense or other
right which the Borrower or the Company may have at any time against
the Trustee (or any persons or entities for whom the Trustee may be
acting), the Remarketing Agent, the Bank or any other person or
entity, whether in connection with this Agreement, the transactions
described herein or any unrelated transaction; or (iv) any of the
circumstances contemplated in clauses (1) through (7), inclusive, of
Section 2.06(a). The Borrower understands and agrees that no payment
by it under any other agreement (whether voluntary or otherwise)
shall constitute a defense to its obligations hereunder, except to
the extent that the Bank has been indefeasibly paid in full.
Section 2.05. Indemnification . To the extent permitted by
applicable law, the Borrower hereby indemnifies and holds harmless
the Bank (and its directors, officers, employees and agents) from and
against any and all claims, damages, losses, liabilities, costs or
expenses (including attorneys' fees for counsel of the Bank's choice)
whatsoever which the Bank may incur (or which may be claimed against
the Bank by any person or entity whatsoever) by reason of or in
connection with (a) the issuance or a transfer of, or payment or
failure to pay under, the Letter of Credit, (b) any breach by the
Borrower or the Company of any representation, warranty, covenant,
term or condition in, or the occurrence of any default under, this
Agreement or the Bond Documents, including all fees or expenses
resulting from the settlement or defense of any claims or liabilities
arising as a result of any such breach or default, and (c)
involvement of the Bank in any legal suit, investigation, proceeding,
inquiry or action as a consequence, direct or indirect, of the Bank's
issuance of the Letter of Credit, its entering into this Agreement or
any other event or transaction contemplated by any of the foregoing;
provided the Borrower shall not be required to indemnify the Bank for
any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by (i) Bank's failure to
observe general banking usage, (ii) the gross negligence or willful
misconduct of the Bank or (iii) the Bank's willful failure to pay
under the Letter of Credit after the presentation to it by the
Trustee of a draft and certificate strictly complying with the terms
and conditions of the Letter of Credit, unless the Bank in good faith
believes that it is prohibited by law or other legal authority from
making such payment. Nothing in this Section is intended to limit
the Borrower's reimbursement obligations contained in Section
2.02(a). The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
Section 2.06. Liability of Bank .
(a) As between the Borrower and the Company and the Bank, the
Borrower and the Company assume all risks of the acts or omissions of
the Trustee with respect to the Trustee's use of the Letter of
Credit. Neither the Bank nor any of its officers or directors shall
be liable or responsible for: (1) the use which may be made of the
Letter of Credit or for any acts or omissions of the Trustee in
connection therewith; (2) the form, validity, sufficiency, accuracy
or genuineness of any documents (including without limitation any
documents presented under the Letter of Credit), or of any statement
therein or endorsement thereon, even if any such documents,
statements or endorsements should in fact prove to be in any or all
respects invalid, insufficient, fraudulent, forged, inaccurate or
untrue; (3) the payment by the Bank against presentation of documents
which do not comply with the terms of the Letter of Credit, including
failure of any documents to bear any reference or adequate reference
to the Letter of Credit, or any other failure by the Trustee to
comply fully with conditions required in order to effect a drawing
under the Letter of Credit; (4) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign the Letter of Credit or the rights or benefit thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid
or ineffective for any reason; (5) errors, omissions, interruptions,
losses or delays in transmission or delivery of any messages by mail,
cable, telegraph, telex, telephone or otherwise; (6) any loss or
delay in the transmission or otherwise of any document or draft
required in order to make a drawing under the Letter of Credit; or
(7) any other circumstances whatsoever in making or failing to make
payment under the Letter of Credit; except only that the Borrower or
the Company shall have a claim against the Bank, and the Bank shall
be liable to the Borrower and the Company, to the extent, but only to
the extent, of any direct, as opposed to consequential, damages
suffered by the Borrower or the Company which the Borrower or the
Company proves were caused solely by (i) the Bank's gross negligence
or willful misconduct or (ii) the Bank's willful failure to pay under
the Letter of Credit after the presentation to it by the Trustee of a
draft and certificate strictly complying with the terms and
conditions of the Letter of Credit, unless the Bank in good faith
believes that it is prohibited by law or other legal authority from
making such payment. In furtherance and not in limitation of the
foregoing, the Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; provided
that if the Bank shall receive written notification from both the
Trustee and either the Borrower or the Company that documents
conforming to the terms of the Letter of Credit to be presented to
the Bank are not to be honored, the Bank agrees that it will not
honor such documents.
(b) Except for the Bank's obligations under the Letter of
Credit, the Bank shall have no liability to the Borrower, the Company
or any other person as a result of any reduction of the credit rating
of the Bank or any deterioration in the Bank's financial condition,
and the Borrower hereby indemnifies and holds harmless the Bank from
any and all claims, damages, losses, liabilities, costs or expenses
relating to the Letter of Credit asserted by or on behalf of
Borrower, the Company or any affiliate or agent thereof, which the
Bank may incur in connection therewith. No reduction of the credit
rating of the Bank or deterioration in the Bank's financial condition
shall reduce or in any way diminish the obligations of the Borrower
to the Bank under this Agreement, including without limitation the
Borrower's obligation to pay Letter of Credit commitment fees to the
Bank and to reimburse the Bank for any drawing under the Letter of
Credit.
ARTICLE III SECURITY
Section 3.01. Security and Subrogation under Indenture . The
Borrower, the Company and the Bank intend that (a) the Bank will have
the security and benefit of the Bond Documents as provided in the
Indenture and (b) in the event of one or more draws under the Letter
of Credit and the application thereof to the payment of Bonds, the
Bank will be subrogated pro tanto to the rights of the Trustee and
the holders of such Bonds under the Bond Documents and in and to all
funds (except rebate funds) and security held by the Trustee under
the Indenture for the payment of the principal of and interest on
such Bonds, including without limitation all loan funds, construction
funds, project funds, escrow funds, revenue funds, operation funds,
debt service funds, reserve funds, redemption funds and other funds
(except rebate funds) and securities and other instruments comprising
investments thereof. In addition, the Bank shall have any and all
other subrogation rights available to the Bank at law and in equity.
Section 3.02. Pledge of Rights to Certain Funds and Investments .
To secure the Borrower's obligations to the Bank under this
Agreement, the Borrower and the Company hereby pledge to the Bank,
and grant to the Bank a security interest in, all of the Borrower's
and the Company's right, title and interest in and to all funds
(except rebate funds) and investments thereof now or hereafter held
by the Trustee under the Indenture as security for the payment of the
Bonds, including without limitation any and all loan funds,
construction funds, project funds, escrow funds, revenue funds,
operations funds, debt service funds, reserve funds, redemption funds
and other funds and securities and other instruments comprising
investments thereof and interest and other income derived therefrom
held as security for the payment of the Bonds; such pledge,
assignment and grant being under and subject only to the rights of
the holders of the Bonds and the Trustee under the Indenture. Each
of the Borrower and the Company covenants and agrees that it will
defend the Bank's rights and security interests created by this
Section against the claims and demands of all persons. In addition
to its other rights and remedies under this Agreement and the Bond
Documents, the Bank shall have all the rights and remedies of a
secured party under the State Uniform Commercial Code or other
applicable law with respect to the security interests created by this
Section. The Bank's rights under this Section are in addition to,
and not in lieu of, its rights described in Section 3.01.
Section 3.03. Pledged Bonds.
(a) Pledge. To secure the Borrower's obligations to the Bank
under this Agreement, each of the Borrower and the Company hereby
pledges and assigns to the Bank, and grants to the Bank a security
interest in, all of the Borrower's and the Company's right, title and
interest, now owned or hereafter acquired, in and to any and all
Unremarketed Tendered Bonds (together with all income therefrom and
proceeds thereof) purchased pursuant to the Indenture with the
proceeds of a Tender Draft presented under the Letter of Credit for
which neither (i) full reimbursement has been made to the Bank nor
(ii) the Trustee holds sufficient funds which, pursuant to the
Indenture, the Trustee is required to apply on behalf of the Borrower
or the Company to reimburse the Bank in full for such Tender Draft on
the date such Tender Draft is paid by the Bank. Such Unremarketed
Tendered Bonds shall be pledged to the Bank, registered in its name
as pledgee of the Borrower and the Company and delivered to and held
by the Trustee as agent for the Bank under this Section 3.03 or, at
the option of the Bank by written notice to the Borrower and the
Trustee, the pledged Unremarketed Tendered Bonds specified in such
notice shall be delivered to and held by the Bank. Unremarketed
Tendered Bonds which are so pledged and held by the Trustee as agent
for the Bank or by the Bank are herein referred to as "Pledged
Bonds".
(b) Pledged Bond Payments. Any principal of, premium on and
interest on Pledged Bonds which becomes due and payable (including
any due-bills received upon purchase thereof pursuant to the record
date provisions of the Indenture or the Bonds) shall be paid to the
Bank. All sums of money so paid to the Bank in respect of Pledged
Bonds shall be credited against the obligation of the Borrower to
reimburse the Bank, with interest, under Section 2.02(a) for the
amount drawn with a Tender Draft to fund the purchase of such Pledged
Bonds pursuant to the Indenture.
(c) Release of Pledged Bonds. If the Borrower pays or causes
to be paid in full its obligation under Section 2.02(a) for the
reimbursement of the amount (or allocable portion thereof) drawn with
a Tender Draft to fund the purchase of Pledged Bonds pursuant to
Article IV of the Indenture (or if the Trustee has received
immediately available funds which, pursuant to Section 4.4 of the
Indenture, the Trustee is required to pay over promptly to the Bank
in an amount sufficient to pay the Borrower's reimbursement
obligation under Section 2.02(a) with respect to the amount drawn
with such Tender Draft to fund the purchase of such Pledged Bonds),
and provided no Event of Default has occurred and is continuing, the
Bank will release from the pledge of this Agreement and will deliver,
or cause its agent to deliver, such Pledged Bonds to such person or
persons as the Trustee or either the Borrower or the Company may
direct. An amount equal to the principal of, plus accrued interest
on, such Pledged Bonds shall be presumed (absent notice to the
contrary) to be an "amount sufficient" for purposes of this Section
3.03(c) and, upon receipt of such amount by the Trustee for payment
to the Bank as aforesaid, the Trustee shall be automatically
authorized to deliver such Pledged Bonds as aforesaid free from the
pledge of this Agreement, unless the Trustee has received from the
Bank written notice or telephonic notice (which shall thereafter be
confirmed in writing) that such release shall not occur.
(d) Liability of Bank. The Bank shall not be liable for
failure to collect or realize upon the obligations secured by the
Pledged Bonds or any collateral security or guarantee therefor, or
any part thereof, or for any delay in so doing, and the Bank shall
not be under any obligation to take any action whatsoever with regard
thereto.
(e) Representations; Rights and Remedies. The Borrower
represents and warrants to the Bank that the pledge, assignment and
delivery of Pledged Bonds pursuant to this Section 3.03 will create a
valid first lien on and a first perfected security interest in, all
right, title and interest of the Borrower and the Company in and to
the Pledged Bonds, and the proceeds thereof. Each of the Borrower
and the Company covenants and agrees that it will defend the Bank's
right, title and security interest in and to the Pledged Bonds and
the proceeds thereof against the claims and demands of all persons.
In addition to its other rights and remedies under this Agreement and
the Bond Documents, the Bank shall have all the rights and remedies
of a secured party under the Uniform Commercial Code of the State or
other applicable law with respect to the security interests created
by this Section.
ARTICLE IV REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that each of the
representations and warranties made by the Borrower in the Credit
Agreement are true and correct in all material respects as of the
date hereof and that this Agreement has been duly authorized by all
necessary action of the Borrower and the Company and constitutes the
legal, valid and binding obligation of the Borrower and the Company,
enforceable against the Borrower and the Company in accordance with
its terms, subject to general principles of equity and to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally.
ARTICLE V GENERAL COVENANTS
So long as any amount is available under the Letter of Credit or
any amount is due and owing to the Bank hereunder or under the Credit
Agreement, each of the Borrower and the Company covenants that it
will (a) perform and comply with all of the obligations and duties
binding upon it under the Bond Documents and the Credit Agreement, as
the case may be, (b) obtain the consent of the Bank whenever the
consent of the Trustee is required to be obtained under the Bond
Documents, (c) not consent to or enter into any amendment of or
supplement to the Bond Documents without the consent of the Bank, (d)
not exercise its rights under the Bond Documents to direct the Issuer
to call the Bonds for any optional redemption thereof, unless the
Borrower or the Company first demonstrates to the reasonable
satisfaction of the Bank that at the time of such redemption the Bank
will be fully reimbursed for all drawings on the Letter of Credit in
connection with such redemption, and (e) not direct or permit the
conversion or establishment of the interest rate on the Bonds to an
interest rate other than the Weekly Rate (as defined in the
Indenture), unless either (i) the Letter of Credit is being
terminated in connection therewith and the Borrower or the Company
demonstrates to the reasonable satisfaction of the Bank that at the
time of such conversion the Bank will be fully reimbursed for all
drawings on the Letter of Credit at or before such conversion or (ii)
the Bank consents in writing to such conversion or establishment.
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.01. Defaults . Each "Default" as defined in the
Indenture and each "Event of Default" as defined in the Credit
Agreement shall constitute an event of default hereunder ("Event of
Default")
Section 6.02. Remedies . If an Event of Default has occurred and
is continuing uncured, the Bank may:
(a) Notify the Trustee of such Event of Default; direct the
Trustee to declare an Event of Default, as defined in the Indenture,
and declare the principal of the outstanding Bonds, together with
interest accrued thereon, to be due and payable immediately; direct
the Trustee to draw on the Letter of Credit; and direct the Trustee
to exercise remedies under the Bond Documents;
(b) Declare the Borrower's obligations hereunder to be,
whereupon the same shall become, immediately due and payable; and
(c) Exercise, or cause to be exercised, any and all such
remedies as it may have under this Agreement, the Credit Agreement or
any other document or at law or in equity.
Section 6.03. Waivers; Consents . No waiver of, or consent with
respect to, any provision of this Agreement shall in any event be
effective unless the same shall be in writing and signed by the Bank,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was
given.
Section 6.04. No Waiver; Remedies Cumulative . No failure on the
part of the Bank to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; and no single or partial
exercise of any right hereunder shall preclude any other or further
exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies
available under any other document or at law or in equity.
ARTICLE VII MISCELLANEOUS
Section 7.01. Notices . All notices and other communications
provided for hereunder shall be in writing and given or made as
provided in the Credit Agreement and the address for notice to the
Company shall be the same as for the Borrower.
Section 7.02. Successors and Assigns . This Agreement shall
inure to the benefit of and shall be binding upon the parties hereto
and their respective successors and assigns. The Borrower may not
assign its rights under this Agreement without the prior written
consent of the Bank.
Section 7.03. Survival of Covenants . All covenants made by the
Borrower herein and in any document delivered pursuant hereto shall
survive the delivery of this Agreement and the Letter of Credit and
any advances under the Letter of Credit.
Section 7.04. Counterparts . The execution hereof by each party
hereto shall constitute a contract between them for the uses and
purposes herein set forth, and this Agreement may be executed in any
number of counterparts, with each executed counterpart constituting
an original and all counterparts together constituting one agreement.
Section 7.05. Amendments . This Agreement may be amended by an
instrument in writing executed and delivered by the Borrower and the
Bank.
Section 7.06. Severability . If any provision hereof is found by
a court of competent jurisdiction to be prohibited or unenforceable
in any jurisdiction, it shall be ineffective as to such jurisdiction
only to the extent of such prohibition or unenforceability, and such
prohibition or unenforceability shall not invalidate the balance of
such provision as to such jurisdiction to the extent it is not
prohibited or unenforceable, nor invalidate such provision in any
other jurisdiction, nor invalidate the other provisions hereof, all
of which shall be liberally construed in favor of the Bank in order
to effect the provisions of this Agreement.
Section 7.07. Complete Agreement . Taken together with the
Credit Agreement and the other instruments and documents delivered in
compliance herewith, this Agreement is a complete memorandum of the
agreement of the Borrower and the Bank. Waivers or modifications of
any provision hereof must be in writing signed by the part to be
charged with the effect thereof. In the event of any conflict
between the provisions hereof and of the Credit Agreement, the
provisions of the Credit Agreement shall govern. This Agreement
shall constitute, and be governed by and entitled to the benefits of
the provisions of the Credit Agreement applicable to, a Loan
Document.
Section 7.08. Governing Law . This Agreement and the rights and
obligations of the parties hereunder shall be governed by and
construed and interpreted in accordance with the law of the State.
<PAGE>
IN WITNESS WHEREOF, the Borrower and the Bank have caused this
Agreement to be duly executed and delivered as of the date first
above written.
DOVER DOWNS ENTERTAINMENT, INC.
By:____________________________
Title:_________________________
NASHVILLE SPEEDWAY, U.S.A., INC.
By:____________________________
Title:_________________________
PNC BANK, DELAWARE
By:____________________________
Title:_________________________
REIMBURSEMENT AND SECURITY AGREEMENT
Between
DOVER DOWNS ENTERTAINMENT, INC.,
NASHVILLE SPEEDWAY, U.S.A., INC.
and
PNC BANK, DELAWARE
Dated as of
September 1, 1999
The Sports Authority of the County of Wilson (Tennessee)
Variable Rate Tax Exempt Infrastructure Revenue Bonds,
Series 1999
<PAGE>
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE I
DEFINITIONS 2
Section 1.01. Definitions 2
Section 1.02. Rules of Construction; Time of Day 3
ARTICLE II
LETTER OF CREDIT AND REIMBURSEMENT 3
Section 2.01. Issuance of Letter of Credit 3
Section 2.02. Reimbursement and Other Payments 4
Section 2.03. Transfer; Reduction; Reinstatement 4
Section 2.04. Obligations Absolute 5
Section 2.05. Indemnification 5
Section 2.06. Liability of Bank 6
ARTICLE III
SECURITY 7
Section 3.01. Security and Subrogation under Indenture 7
Section 3.02. Pledge of Rights to Certain Funds and Investments 7
Section 3.03. Pledged Bonds 8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES 9
ARTICLE V
GENERAL COVENANTS 9
ARTICLE VI
DEFAULTS AND REMEDIES 10
Section 6.01. Defaults 10
Section 6.02. Remedies 10
Section 6.03. Waivers; Consents 10
Section 6.04. No Waiver; Remedies Cumulative 10
ARTICLE VII
MISCELLANEOUS 11
Section 7.01. Notices 11
Section 7.02. Successors and Assigns 11
Section 7.03. Survival of Covenants 11
Section 7.04. Counterparts 11
Section 7.05.
Amendments 11
Section 7.06. Severability 11
Section 7.07. Complete Agreement 11
Section 7.08. Governing Law 12
EXECUTION 12
EXHIBIT A - Form of Letter of Credit
A-1
