Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT ( this "Amendment"), dated as of March
31, 2002, among DOVER DOWNS ENTERTAINMENT, INC. (the "Borrower"), the several
banks and other financial institutions parties to the Credit Agreement (as
hereinafter defined) (individually, a "Bank"; collectively, the "Banks") and PNC
BANK, NATIONAL ASSOCIATION, as administrative agent for the Banks (in such
capacity, the "Agent").
WHEREAS, the Borrower, the Banks and the Agent are parties to a Credit
Agreement dated as of February 20, 2002 (as so amended, supplemented or
otherwise modified, the "Credit Agreement");
WHEREAS, pursuant to Section 4.1(l) of the Credit Agreement, the agreement
of each Bank to make the initial Extension of Credit is conditioned upon the
completion by the Borrower of the spin off of its gaming operations in
accordance with the transactions referred to in Section 6.4(c) of the Credit
Agreement (the "Spinoff");
WHEREAS, simultaneously with and after giving effect to the Spinoff, the
Borrower desires to change its name to Dover Motorsports, Inc (the "Name
Change"); and
WHEREAS, the Borrower, the Agent, and the Banks have agreed to modify the
Credit Agreement to reflect (i) the change in the Borrower's name to Dover
Motorsports, Inc., and (ii) the termination of the Swing Line Commitment
therefrom, all on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein as therein defined.
2. Amendment to Credit Agreement. The Credit Agreement is hereby amended
as follows effective as of the effective date of the Name Change:
(a) Any reference to the Borrower as Dover Downs Entertainment, Inc.
is hereby modified to reflect the change in the Borrower's name to Dover
Motorsports, Inc. The Swing Line Commitment is hereby terminated and any
reference thereto or to the terms the "Swing Line Bank", "Swing Line
Commitment", "Swing Line Loan", the "Swing Line Note", and "Swing Line Repayment
Date" shall not be given any effect. The revised Schedule I attached hereto,
which reflects the termination of the Swing Line Commitment, shall be
substituted for the Schedule I now attached to the Credit Agreement.
(b) Section 2.3 is hereby amended and restated to read in full as
follows:
"2.3 Intentionally Deleted."
3. Amended. The Borrower shall execute and deliver to the Agent amended
and restated revolving credit notes (the "Amended Notes") for each Bank
reflecting the Borrower's name change to Dover Motorsports, Inc. The Agent shall
deliver the Amended Notes to each Bank in exchange for the existing Notes of
such Bank which shall thereafter, and together with the Swing Line Note, be
returned by the Agent to the Borrower for cancellation.
4. Representations and Warranties. The Borrower hereby represents and
warrants to the Banks and the Agent that:
(a) There exists no Default or Event of Default under the Credit
Agreement as amended hereby;
(b) The representations and warranties made in the Credit Agreement
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 after giving effect to the revised Schedules
attached hereto;
(c) The Spinoff has been completed;
(d) Other than the Name Change, there have been no changes to either
of the certificate of incorporation or by-laws of the Borrower as in effect
since the most recent date true and correct copies were delivered to the Agent;
and
(e) The execution and delivery of this Amendment and the Amended Notes
by and on behalf of the Borrower, has been duly authorized by all requisite
action on behalf of the Borrower and this Amendment and the Amended Notes
constitute the legal, valid and binding obligations of the Borrower, enforceable
against it in accordance with their respective 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).
5. Conditions Precedent. The effectiveness of the amendments set forth
herein is subject to the fulfillment, to the satisfaction of the Agent and its
counsel, of the following conditions precedent:
(a) The Borrower shall have delivered to the Agent the following, all
of which shall be in form and substance satisfactory to the Agent and shall be
duly completed and executed:
(i) This Amendment;
(ii) The Amended Notes;
(iii) Evidence of the Borrower's name change filed with the
Delaware Secretary of State; and
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(iv) Such additional documents, certificates, and information as
the Agent may require pursuant to the terms hereof or otherwise reasonably
request.
(b) The representations and warranties set forth in the Credit
Agreement shall be true and correct in all material respects on and as of the
date hereof after giving effect to the updated Schedules attached hereto.
6. Ratification; References; No Waiver. Except as the provisions thereof
have been expressly amended or waived by this Amendment, the Credit Agreement
shall continue to be, and shall remain, unaltered and in full force and effect
in accordance with its terms. All references in the Credit Agreement and the
other Loan Documents to the Credit Agreement shall be to the Credit Agreement as
amended by this Amendment and all references in the Credit Agreement and the
other Loan Documents to the Notes shall include the Amended Notes. This
Amendment does not and shall not be deemed to constitute a waiver by the Agent
or the Banks of any Default or Event of Default or of any of the Agent's or the
Banks' other rights or remedies.
7. Release and Indemnity. Recognizing and in consideration of the Banks'
and the Agent's agreement to the waivers and amendments set forth herein, the
Borrower hereby waives and releases the Banks and the Agent and their respective
officers, attorneys, agents, and employees from any liability, suit, damage,
claim, loss or expense of any kind or nature whatsoever and howsoever arising
that such Borrower ever had or now has against any of them arising out of or
relating to any Bank's or the Agent's acts or omissions with respect to this
Amendment, the Credit Agreement, the other Loan Documents or any other matters
described or referred to herein or therein. The Borrower further hereby agrees
to indemnify and hold the Agent and the Banks and their respective officers,
attorneys, agents and employees harmless from any loss, damage, judgment,
liability or expense (including counsel fees) suffered by or rendered against
the Banks or the Agent or any of them on account of anything arising out of this
Amendment, the Credit Agreement, the other Loan Documents or any other document
delivered pursuant thereto up to and including the date hereof; provided that,
no Borrower shall have any obligation hereunder to any Bank or the Agent with
respect to indemnified liabilities arising from the gross negligence or willful
misconduct of such Bank or the Agent.
8. Miscellaneous.
(a) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
(b) Successor and Assigns. The terms and provisions of this Amendment
shall be binding upon and shall inure to the benefit of the Borrower, the Agent
and the Banks and their respective successors and assigns.
(c) Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one and the same instrument.
(d) Headings. The headings of any paragraph of this Amendment are for
convenience only and shall not be used to interpret any provision hereof.
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(e) Modifications. No modification hereof or any agreement
referred to herein shall be binding or enforceable unless in writing and signed
on behalf of the party against whom enforcement is sought.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
DOVER DOWNS ENTERTAINMENT,
INC.
By: /s/ Xxxxx XxXxxxx
---------------------------------
Name: Xxxxx XxXxxxx
Title: President
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PNC BANK, DELAWARE, as Agent and
as a Bank
By: /s/ Xxxxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY, as
a Bank
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
ALLFIRST BANK, as a Bank
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
WILMINGTON SAVINGS FUND
SOCIETY, FSB, as a Bank
By: /s/ M. Xxxxx Xxxxxx
-------------------------------------
Name: M. Xxxxx Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK, as a
Bank
By: /s/ Xxxxxx XxXxxxxxxx
--------------------------------------
Name: Xxxxxx XxXxxxxxxx
Title: Vice President
NATIONAL CITY BANK, as a Bank
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
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SCHEDULE I
BANK AND COMMITMENT INFORMATION
Bank and Address Commitment
---------------- ----------
PNC Bank, Delaware $35,000,000
000 Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxxx
Wilmington Trust Company $15,000,000
000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Allfirst Bank $10,000,000
00 X. Xxxxxxx Xx.
X/X 000-000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Wilmington Savings Fund Society, FSB $5,000,000
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xx 00000
Attn: M. Xxxxx Xxxxxx
First Union National Bank $25,000,000
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx XxXxxxxxxx
National City Bank $15,000,000
0 Xxxxx Xxxxx Xx.
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx
-------------
$105,000,000
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