FOURTH AMENDMENT
to
$250,000,000 REVOLVING CREDIT FACILITY
CREDIT AGREEMENT
by and among
CHURCHILL DOWNS INCORPORATED, as the Borrower,
and
THE GUARANTORS PARTY HERETO
and
THE BANKS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION, As Agent,
and
CIBC OPPENHEIMER CORP., As Syndication Agent.
and
BANK ONE, KENTUCKY, N.A., As Documentation Agent
Dated as of May 12, 2000
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THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (the "Fourth Amendment") dated
as of May 12, 2000, by and among CHURCHILL DOWNS INCORPORATED, as the Borrower
(the "Borrower"), the GUARANTORS party to the Credit Agreement (as hereinafter
defined), the BANKS party to the Credit Agreement (as hereinafter defined) and
PNC BANK, NATIONAL ASSOCIATION, as the Agent (the "Agent"), and CIBC OPPENHEIMER
CORP., as Syndication Agent.and BANK ONE, KENTUCKY, N.A., as Documentation Agent
WHEREAS, reference is made to the Credit Agreement dated April 23, 1999,
as amended prior to the date hereof (the "Credit Agreement") described above;
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement; and
WHEREAS, the parties to the Credit Agreement desire to amend the Credit
Agreement as set forth herein.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Amendments to Credit Agreement Relating to Working Cash Line.
The following amendments to the Credit Agreement are effective on
the date hereof and shall remain in force until the Termination Date (as defined
below).
A. Definitions (Section 1.1)
------------------
(i) Existing Definitions.
---------------------
The following definition contained in Section 1.1 is hereby
amended and restated to read as follows:
Settlement Date shall mean with respect to each Swing
----------------
Loan, any Business Day on which the Agent elects to effect settlement pursuant
to Section 4.6."
(ii) New Definitions.
----------------
Section 1.1 of the Credit Agreement is hereby amended to include
the following new definition:
"Money Management Arrangements shall have the meaning
--------------------------------
assigned to such term in Section 2.5.2."
B. Swing Loan Requests (Section 2.4.2)
--------------------------
Section 2.4.2 (Swing Loan Requests) is hereby deleted and
the words
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"Intentionally Omitted" are inserted in lieu thereof.
The defined term, "Swing Loan Request" and all references
thereto are hereby deleted.
C. Making Swing Loans (Section 2.5.2)
-------------------------
Section 2.5.2 [Making Swing Loans] of the Credit Agreement is
hereby amended and restated to read as follows:
"2.5.2 Making Swing Loans.
------------------
"If at any time on any Business Day the target balance of
cash to be held in the Borrower's accounts with PNC Bank maintained in
connection with the money management services provided by the PNC Bank
for the Borrower (the "Money Management Arrangements") as agreed upon by
the Borrower and PNC Bank shall exceed the actual balance in such
accounts (such excess shall be referred to as the "Deficit Balance"),
PNC Bank may, on behalf of the Borrower and without the requirement that
the Borrower deliver any written request therefor, make a Swing Loan to
the Borrower in an amount which shall not exceed the lesser of (i) the
Deficit Balance, and (ii) the amount, if any, available under the Swing
Loan Commitment, which amount shall be deposited in an account under the
Money Market Arrangements. The aggregate amount of all disbursements of
Swing Loans made and shown on the PNC Bank's electronic data processing
equipment, over all of the payments of principal made by the Borrower
and recorded on PNC Bank's electronic data processing equipment shall be
prima facie evidence of the outstanding principal balance due under the
Swing Loan Note absent manifest error.
D. Borrowings to Repay Swing Loans (Section 2.9)
--------------------------------------
Section 2.9 [Borrowings to Repay Swing Loans] of the Credit
Agreement is hereby amended and restated to read as follows:
"2.9 Borrowings to Repay Swing Loans.
-------------------------------
Any aggregate positive balance of cash over the targeted
amount of cash in the applicable accounts under the Money Market
Arrangements shall, to the extent available at the end of a Business
Day, be automatically applied to the repayment of the outstanding
balance of the Swing Loans. In addition to the repayments referred to in
the preceding sentence, PNC may at its option at any time demand
repayment of the Swing Loans (including any such times as are specified
in the Agent's Letter as amended from time to time), and upon any such
demand each Bank shall make a Revolving Credit Loan in an amount equal
to such Bank's Ratable Share of the aggregate principal amount of such
outstanding Swing Loan, plus, if PNC so requests, accrued interest
thereon, provided that no Bank shall be obligated in any event to make
Revolving Credit Loans in excess of its Revolving Credit Commitment.
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Revolving Credit Loans made pursuant to the preceding sentence shall
bear interest at the Base Rate Option and shall be deemed to have been
properly requested in accordance with Section 2.4.1 without regard to
any of the requirements of that provision or other provisions of the
Agreement. PNC shall provide notice to the Banks (which may be
telephonic or written notice by letter, facsimile or telex) that such
Revolving Credit Loans are to be made under this Section 2.9 and of the
apportionment among the Banks, and the Banks shall be unconditionally
obligated to fund such Revolving Credit Loans (whether or not the
conditions specified in Section 6 are then satisfied) by the time PNC so
requests, which may be on the Business Day that the Banks receive such
notice from PNC.
E. Revolving Credit Interest Rate Options.(Section 3.1)
---------------------------------------------
The first sentence in Section 3.1 (Revolving Credit Interest Rate
Options) is hereby amended to read as follows:
"Swing Loans shall bear interest at the interest rate set
forth in the Agent's Letter as amended on the date of the Fourth Amendment to
this Agreement and as amended thereafter."
F. Restrictions on Indebtedness (Section 7.2.1).
---------------------------------------------------
A new clause (xii) is hereby added to Section 7.2.1
(Indebtedness) to read as set forth below. Such clause (xii) shall follow
immediately after clause (xi) of such Section 7.2.1 and the period at the end of
such clause (xi) is hereby deleted and the following is inserted in lieu
thereof: ", and".
"(xii) Loans incurred by the Loan Parties under the Money
Market Arrangements which are required to be repaid on the same Business Day as
that on which such loans are incurred, provided that the aggregate amount of
such loans shall not exceed $10,000,000 in principal amount.
G. Termination Date.
-----------------------
All of the amendments to the Credit Agreement set forth in this
Section 1 shall terminate and be of no further force and effect on the date on
which both of the following events shall have occurred (such date shall be
referred to as the "Termination Date"): (i) the Money Management Agreements (as
defined in the Credit Agreement as amended by this Fourth Amendment) shall have
been terminated by the parties thereto in accordance with the termination
provisions therein and (ii) all obligations due to the Agent under Money
Management Agreements shall have been repaid in full, including repayment of any
Deficit Balance (as defined in the Credit Agreement as amended by this Fourth
Amendment) and any expenses, fees or other amounts owing to the Agent. On and
after the Termination Date, all provisions of the Credit Agreement in effect
prior to the date hereof which are being terminated, amended or restated by this
Fourth Amendment (including the right to request Swing Loans contained in
Section 2.5.2) shall be in force and effect again without giving effect to such
termination, amendment or restatement.
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2. Amendments to Credit Agreement and Waivers Relating to Financial
Covenants
The following amendments to the Credit Agreement and waivers are
effective as of March 31, 2000:
A. Amendment to Section 7.2.21 (Minimum Fixed Charge Coverage
-----------------------------------------------------------------
Ratio) and Waiver
-------------------
(i) Amendment to Section 7.2.21. The parties hereto
hereby amend and restate Section 7.2.21 (Minimum Fixed Charge Coverage Ratio) to
read as follows:
7.2.21 Minimum Fixed Charge Coverage Ratio.
-----------------------------------
The Loan parties shall not permit the Fixed Charge
Coverage Ratio for the four fiscal quarters ending on the last day of each
fiscal quarter to be less than the applicable ratios set forth on Schedule 7.2
as of the dates set forth on such Schedule under column (4) (titled "Minimum
Fixed Charge Coverage Ratio"). For purposes of this covenant, ConsolidatedEBITDA
shall include the rolling four quarter EBITDA of any entity which has been or is
being acquired by the Loan Parties if such entity is or will become a Loan Party
hereunder.
(ii) Waiver with Respect to Section 7.2.21. The
---------------------------------------------
Banks hereby waive any violation of Section 7.2.21 during the period from March
31, 2000 through the date hereof.
B. Amendment to Definition of Interest Coverage Ratio.
---------------------------------------------------------
The parties hereto hereby amend and restate the definition of
Interest Coverage Ratio contained in Section 1.1 of the Credit Agreement to read
as follows:
Interest Coverage Ratio shall mean the ratio of Consolidated EBIT
to the sum of Consolidated Interest Expense, in each instance computed as of the
end of each quarter for the four quarters then ended.
C. Amendment to Schedule 7.2 (Financial Covenant Levels).
------------------------------------------------------------
The parties hereto hereby amend Schedule 7.2 (Financial Covenant
Levels) by
(i) deleting the figure of "2.00" under column
(5) for the Fiscal Quarter Ended 3/31/00 and
substituting the figure "1.90" in its place;
(ii) deleting each figure of "2.50" under Column
(5) for the Fiscal Quarters Ended 3/31/02,
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6/30/02, 9/30/02 and 12/31/02 and
substituting the figure "2.25" in place of
each deleted figure;
(iii) deleting each figure of "2.75" under column
(5) for the Fiscal Quarters Ended 3/31/03,
6/30/03, 9/30/03 and 12/31/03 and
substituting the figure "2.50" in place of
each deleted figure;
(iv) amending and restating the heading of column
(5) to read "Minimum Interest Coverage
Ratio"; and
(v) deleting column (6) entirely.
D. Amendment to Section 7.2.19 (Minimum Interest Coverage
-----------------------------------------------------------------
Ratio) and Waiver.
-----------------
(i) Amendment to Section 7.2.19. The parties
----------------------------------
hereto hereby amend and restate Section
7.2.19 to read as follows:
7.2.19 Minimum Interest Coverage Ratio.
-------------------------------
The Loan Parties shall not permit the Interest Coverage Ratio
for the four fiscal quarters ending on the last day of each fiscal
quarter to be ess than the ratio set forth on Schedule 7.2 under column
(5) (titled "Minimum Interest Coverage Ratio") and as of the dates set
forth on such schedule.
(ii) Waiver with Respect to Section 7.2.19. The
---- -------------------------------------
Banks hereby waive any violation of Section
7.2.19 during the period from March 31, 2000
through the date hereof.
3. Warranties
A. Warranties Under the Credit Agreement
--------------------------------------------
The representations and warranties of Loan Parties contained in
the Credit Agreement, after giving effect to the amendments thereto on the date
hereof, are true and correct on and as of the date hereof with the same force
and effect as though made by the Loan Parties on such date, except to the extent
that any such representation or warranty expressly relates solely to a previous
date. The Loan Parties are in compliance with all terms, conditions, provisions,
and covenants contained in the Credit Agreement.
B. Power and Authority; Validity and Binding Effect; No
-----------------------------------------------------------------
Conflict.
--------
Each Loan Party has full power to enter into, execute, deliver
and carry out this Fourth Amendment, and such actions have been duly authorized
by all necessary proceedings on its part. This Fourth Amendment has been duly
and validly executed and delivered by each Loan Party. This Fourth Amendment
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constitutes the legal, valid and binding obligation of each Loan Party which is
enforceable against such Loan Party in accordance with its terms. Neither the
execution and delivery of this Fourth Amendment nor the consummation of the
transactions herein contemplated will conflict with, constitute a default under
or result in any breach of (i) the terms and conditions of any organizational
documents of any Loan Party or (ii) any Law or any material agreement or
instrument or other obligation to which any Loan Party or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound, or
result in the creation or enforcement of any Lien upon any property of any Loan
Party or any of its Subsidiaries other than as set forth herein.
C. Consents and Approvals; No Event of Default.
--------------------------------------------------
No consent, approval, exemption, order or authorization of
any Person other than the parties hereto is required by any Law or any agreement
in connection with the execution, delivery and carrying out of this Fourth
Amendment. No event has occurred and is continuing and no condition exists or
will exist after giving effect to this Fourth Amendment which constitutes an
Event of Default or Potential Default.
4. Conditions to Effectiveness.
The effectiveness of this Fourth Amendment is subject to
satisfaction of each of the following conditions on or before the date hereof:
A. Representations and Warranties.
-------------------------------------
Each of the representations and warranties under Section 3 hereof
are true and correct on the date hereof.
B. Execution by Required Banks, Agent and Loan Parties.
----------------------------------------------------------
This Fourth Amendment shall have been executed by all of the
Banks, the Agent and the Loan Parties on or before the date hereof.
C. Opinion of Counsel.
-------------------------
The Loan Parties shall have delivered an opinion of their counsel
(which may be "in house") confirming the warranties in Section 3 hereof.
D. Amendment Fees.
---------------------
The Borrower shall pay to the Agent for the ratable benefit of
the Banks a fee in the amount of $62,500.
5. References to Credit Agreement, Loan Documents.
Any reference to the Credit Agreement or other Loan Documents in
any document, instrument, or agreement shall hereafter mean and include the
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Credit Agreement or such Loan Document, including such schedules and exhibits,
as amended hereby. In the event of irreconcilable inconsistency between the
terms or provisions hereof and the terms or provisions of the Credit Agreement
or such Loan Document, including such schedules and exhibits, the terms and
provisions hereof shall control.
6. Force and Effect.
The Borrower reconfirms, restates, and ratifies the Credit
Agreement, the Swing Loan Note and all other documents executed in connection
therewith except to the extent any such documents are expressly modified by this
Fourth Amendment and Borrower confirms that all such documents have remained in
full force and effect since the date of their execution.
7. Governing Law.
This Fourth Amendment shall be deemed to be a contract under the
laws of the Commonwealth of Kentucky and for all purposes shall be governed by
and construed and enforced in accordance with the internal laws of the
Commonwealth of Kentucky without regard to its conflict of laws principles.
8. Counterparts; Effective Date.
This Fourth Amendment may be signed in any number of counterparts
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Fourth Amendment shall become
effective when it has been executed by the Agent, the Loan Parties and all of
the Banks and each of the other conditions set forth in Section 4 of this Fourth
Amendment has been satisfied.
[SIGNATURE PAGES TO FOLLOW]
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[SIGNATURE PAGE 1 OF 4 TO FOURTH AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Fourth Amendment as of the day and year above
written.
BORROWER:
CHURCHILL DOWNS INCORPORATED
By:
------------------------------------------
Title:
---------------------------------------
GUARANTORS:
CHURCHILL DOWNS MANAGEMENT COMPANY
By:
------------------------------------------
Title:
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CHURCHILL DOWNS INVESTMENT COMPANY
By:
------------------------------------------
Title:
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RACING CORPORATION OF AMERICA
By:
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Title:
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ELLIS PARK RACE COURSE, INC.
By:
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Title:
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[SIGNATURE PAGE 2 OF 4 TO FOURTH AMENDMENT]
CALDER RACE COURSE, INC.
By:
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Title:
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TROPICAL PARK, INC.
By:
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Title:
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CHURCHILL DOWNS CALIFORNIA COMPANY
By:
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Title:
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CHURCHILL DOWNS CALIFORNIA FALL OPERATING
COMPANY
By:
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Title:
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CHURCHILL DOWNS CALIFORNIA FOOD SERVICES
COMPANY
By:
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Title:
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[SIGNATURE PAGE 3 OF 4 TO FOURTH AMENDMENT]
BANKS AND AGENT
PNC BANK, NATIONAL ASSOCIATION, individually
and as Agent
By:
------------------------------------------
Title:
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BANK ONE, KENTUCKY, NA
By:
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Title:
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CIBC INC.
By:
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Title:
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COMERICA BANK
By:
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Title:
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FIFTH THIRD BANK
By:
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Title:
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[SIGNATURE PAGE 4 OF 4 TO FOURTH AMENDMENT]
NATIONAL CITY BANK OF KENTUCKY
By:
------------------------------------------
Title:
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FIRSTAR BANK, N.A.
By:
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Title:
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BANK OF LOUISVILLE
By:
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Title:
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CIVITAS BANK
By:
------------------------------------------
Title:
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WELLS FARGO BANK
By:
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Title:
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