WAIVER AND SIXTH 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 March 15, 2001
60
THIS WAIVER AND SIXTH AMENDMENT TO $250,000,000 REVOLVING CREDIT
FACILITY CREDIT AGREEMENT (the "Sixth Amendment") dated as of March 15, 2001, 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;
WHEREAS, the Borrower and the other Loan Parties have granted to the
Agent for the benefit of the Banks a security interest in all trademarks and
other intellectual property owned by them pursuant to Patent, Trademark and
Copyright Security Agreements between the Agent as Assignee and the following
Assignors and dated as follows (the "Intellectual Property Security
Agreements"):
1. Churchill Downs Incorporated, Churchill Downs April 23, 1999
Management Company, Churchill Downs Investment
Company, Racing Corporation of America and Ellis
Park Race Course, Inc.
2. Calder Race Course, Inc. and Tropical Park, Inc. April 23, 1999
3. Churchill Downs California Company, Churchill September 10, 1999
Downs California Fall Operating Company and
Churchill Downs California Food Services Company
4. Arlington International Racecourse, Inc. September 8, 2000
Arlington Management Services, Inc., Turf Club
of Illinois, Inc., Arlington Global Services,
Inc., Arlington OTB Corp., KFI Corporation and
Quad City Downs, Inc.
WHEREAS, the Borrower has caused the following new direct and indirect
Subsidiaries to be formed (the "New Subsidiaries Formation"):
1. CDIP Holdings, LLC ("CDIP Holdings"), a Kentucky limited liability
company owned 99% by Borrower and 1% by Churchill Downs Management
Company; and
2. CDIP, LLC ("CDIP"), a Kentucky limited liability company owned 100%
by CDIP Holdings;
61
WHEREAS, for various business reasons, the Borrower and the other Loan
Parties desire to abandon the trademarks set forth on Schedule A attached hereto
(the "Trademark Abandonment") and to transfer certain of their remaining
trademarks set forth on Schedule B attached hereto to CDIP Holdings which will
in turn transfer such property to CDIP (the "Intellectual Property Transfer");
WHEREAS, CDIP will own the intellectual property transferred to it (the
"Transferred Intellectual Property") and will license its use to those Loan
Parties which need to use it (the "Intellectual Property Licensing");
WHEREAS, the Borrower and the other Loan Parties desire that CDIP
Holdings and CDIP each join the Credit Agreement and the other Loan Documents to
which the Guarantors are parties as a Guarantor pursuant to Sections 7.2.5 and
10.18 and in compliance with all other provisions of the Credit Agreement and
the other Loan Documents (the "Joinder") and in connection therewith have
requested that: (i) the Banks consent to the New Subsidiaries Formation and the
Joinder; (ii) the Agent on behalf of the Banks consent to the Trademark
Abandonment, the Intellectual Property Transfer and the Intellectual Property
Licensing pursuant to Paragraphs 4, 6, 7 and 11 of the Intellectual Property
Security Agreements and waive any prior violations thereof; (iii) the Banks
waive the application of Sections 7.2.6 and 7.2.7 of the Credit Agreement,
including any prior violations, thereof, and also waive any prior violations of
Sections 5.1.14, 5.1.15, 5.1.17, 7.2.4, 7.2.5, 7.2.8 and 10.18 to the extent
necessary to permit the New Subsidiaries Formation, the Joinder, the Trademark
Abandonment, the Intellectual Property Transfer and the Intellectual Property
Licensing, and (iv) Section 7.2.6 of the Credit Agreement be amended; and the
Agent and the Banks are willing to do so on the terms and conditions more fully
provided 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. Waivers and Consents Under Credit Agreement and Intellectual Property
Security Agreements
Subject to the conditions contained in this Sixth Amendment:
A. The Banks hereby consent to the New Subsidiaries Formation and
the Joinder;
B. The Agent on behalf of the Banks hereby consents to the
Trademark Abandonment, the Intellectual Property Transfer and the Intellectual
Property Licensing pursuant to Paragraphs 4, 6, 7 and 11 of the Intellectual
Property Security Agreements and waives any prior violations thereof; and
C. The Banks hereby waive the application of Sections 7.2.6 and
7.2.7 of the Credit Agreement, including any prior violations thereof, and also
waive any prior violations of Sections 5.1.14, 5.1.15, 5.1.17, 7.2.4, 7.2.5,
7.2.8 and 10.18 to the extent necessary to permit the New Subsidiaries
62
Formation, the Joinder, the Trademark Abandonment, the Intellectual Property
Transfer and the Intellectual Property Licensing.
2. Amendment of Section 7.2.6 of Credit Agreement
Section 7.2.6 (Dispositions of Assets or Subsidiaries) is hereby
amended and restated to read as follows:
Each of the Loan Parties shall not, and shall not permit
any of its Subsidiaries (other than Excluded Subsidiaries) to, sell,
convey, assign, lease, abandon or otherwise transfer or dispose of,
voluntarily or involuntarily, any of its properties or assets, tangible or
intangible (including sale, assignment, discount or other disposition of
accounts, contract rights, chattel paper, equipment or general
intangibles with or without recourse or of capital stock, shares of
beneficial interest, partnership interests or limited liability company
interests of a Subsidiary of such Loan Party), except:
(i) any sale, transfer or lease of assets in the
ordinary course of business which are no longer necessary or required in
the conduct of such Loan Party's or such Subsidiary's business;
(ii) transactions involving the sale or use for a
fee of simulcast signals or other assets or rights in the ordinary course
of business;
(iii) any sale, transfer or lease of assets,
excluding real estate, by any Loan Party or wholly owned Subsidiary of
such Loan Party to another Loan Party provided that the Loan Parties
comply with the warranties relating to perfection of the Liens of the
Agent in the Collateral contained in Sections 5.1.14, 5.1.15 and 5.1.17
and deliver any documentation required to perfect the Liens in such assets
at least five (5) Business Days before such sale, transfer or lease; and
(iv) any lease of real estate having an area not in
excess of ten thousand (10,000) square feet.
3. Warranties
The Loan Parties, jointly and severally, represent and warrant as
follows:
A. Recitals.
The recitals hereto are true and correct in all material
respects.
B. Incorporation into Credit Agreement.
63
The representations and warranties in this Section 3 are
incorporated in Section 5 of the Credit Agreement and any breach of such
representations or warranties is a breach under Section 5 of the
Credit Agreement.
C. Other Warranties Under the Credit Agreement.
The other 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.
D. No Event of Default.
No event has occurred and is continuing and no condition
exists or will exist after giving effect to this Sixth Amendment and the
transactions contemplated herein which constitutes an Event of Default or
Potential Default.
4. Conditions to Effectiveness.
This Sixth Amendment shall become effective provided that each of
the following conditions is satisfied as of the date set forth in such
condition:
A. Representations and Warranties.
Each of the representations and warranties of the Loan
Parties under Section 3 hereof shall be true and correct on the Sixth Amendment
Effective date, as that term is defined herein.
B. Opinion of Counsel.
On or before the Sixth Amendment Effective Date, there shall
be delivered to the Agent for the benefit of each Bank written opinions of
Wyatt, Tarrant & Combs, LLP and Rebecca C. Reed, counsel for the Loan Parties,
in each case dated the Sixth Amendment Effective Date as to the warranties
listed in Exhibit 4(B) hereto as such warranties relate to this Sixth Amendment
and the documents executed in connection herewith and the consents required for
this Sixth Amendment and such other documents.
C. Execution by Required Banks, Agent and Loan Parties.
On or before the Sixth Amendment Effective Date, this
Sixth Amendment shall have been executed by the Required Banks, the Agent and
the Loan Parties.
D. Delivery of Documents.
64
On or before the Sixth Amendment Effective Date, there shall
have been delivered to the Agent for the benefit of each Bank:
(1) A Guarantor Joinder and Assumption Agreement in
substantially the form attached as Exhibit 1.1
(G)(1) to the Credit Agreement executed by CDIP
Holdings and CDIP pursuant to which CDIP Holdings
and CDIP each join the Credit Agreement and the
other Loan Documents to which the Guarantors are
parties as a Guarantor;
(2) A Patent, Trademark and Copyright Security
Agreement in substantially the form attached as
Exhibit 1.1(P(1) to the Credit Agreement executed by
CDIP Holdings and CDIP covering the Transferred
Intellectual Property and other Collateral described
therein;
(3) Executed financing statements and other documents in
form and substance satisfactory to the Agent and its
counsel necessary to grant and perfect Prior
Security Interests to the Agent for the benefit of
the Banks in all Collateral held by CDIP Holdings
and CDIP and in the ownership interests in CDIP
Holdings and CDIP.
(4) A certificate signed by the Secretary or other
appropriate officer of CDIP Holdings and CDIP
certifying for each entity: (a) as to all limited
liability company action taken by such entity in
connection with the execution and delivery of the
Guarantor Joinder and Assumption Agreement, the
Patent, Trademark and Copyright Security
Agreement and the other documents required
hereunder; (b) the names of the officers authorized
to sign the Guarantor Joinder and Assumption
Agreement, the Patent, Trademark and Copyright
Security Agreement and the other documents required
hereunder and the true signatures of such officers,
and (c) copies of its organizational documents,
including its Articles of Organization and Operating
Agreement in effect on the date hereof certified by
the appropriate state official where such documents
are filed in a state office together with a
certificate from the appropriate state official
as to its continued existence and good standing in
each state where organized or qualified to do
business.
(5) Evidence in form and substance satisfactory to the
Agent and its counsel that all necessary consents
65
of regulatory boards or commissions to the
transactions contemplated hereunder have been
obtained.
(6) Copies of all agreements pertaining to the
transactions contemplated hereunder and such other
information pertaining thereto as the Agent may
reasonably require.
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
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.
Each Loan Party reconfirms, restates, and ratifies the Credit
Agreement and all other documents executed in connection therewith except to the
extent any such documents are expressly modified by this Sixth Amendment and
each Loan Party confirms that all such documents have remained in full force and
effect since the date of their execution.
7. Governing Law.
This Sixth 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 Sixth 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 Sixth Amendment shall become
effective when it has been executed by the Agent, the Loan Parties and the
Required Banks and each of the other conditions set forth in Section 4 of this
Sixth Amendment has been satisfied (the "Sixth Amendment Effective Date").
[SIGNATURE PAGES TO FOLLOW]
66
[SIGNATURE PAGE 1 OF 6 TO WAIVER AND SIXTH AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed this Sixth Amendment as of the day and year above
written.
BORROWER:
CHURCHILL DOWNS INCORPORATED
By:
--------------------------------
Title:
--------------------------------
GUARANTORS:
CHURCHILL DOWNS MANAGEMENT
COMPANY
By:
--------------------------------
Title:
--------------------------------
CHURCHILL DOWNS INVESTMENT
COMPANY
By:
--------------------------------
Title:
--------------------------------
RACING CORPORATION OF AMERICA
By:
--------------------------------
Title:
--------------------------------
ELLIS PARK RACE COURSE, INC.
By:
--------------------------------
Title:
--------------------------------
67
[SIGNATURE PAGE 2 OF 6 TO WAIVER AND SIXTH AMENDMENT]
CALDER RACE COURSE, INC.
By:
--------------------------------
Title:
--------------------------------
TROPICAL PARK, INC.
By:
--------------------------------
Title:
--------------------------------
CHURCHILL DOWNS CALIFORNIA
COMPANY
By:
--------------------------------
Title:
--------------------------------
CHURCHILL DOWNS CALIFORNIA FALL
OPERATING COMPANY
By:
--------------------------------
Title:
--------------------------------
CHURCHILL DOWNS CALIFORNIA FOOD
SERVICES COMPANY
By:
--------------------------------
Title:
--------------------------------
68
[SIGNATURE PAGE 3 OF 6 TO WAIVER AND SIXTH AMENDMENT]
ARLINGTON INTERNATIONAL
RACECOURSE, INC.
By:
--------------------------------
Title:
--------------------------------
ARLINGTON MANAGEMENT SERVICES,
INC.
By:
--------------------------------
Title:
--------------------------------
TURF CLUB OF ILLINOIS, INC.
By:
--------------------------------
Title:
--------------------------------
ARLINGTON GLOBAL SERVICES, INC.
By:
--------------------------------
Title:
--------------------------------
ARLINGTON OTB CORP.
By:
--------------------------------
Title:
--------------------------------
69
[SIGNATURE PAGE 4 OF 6 TO WAIVER AND SIXTH AMENDMENT]
KFI CORPORATION
By:
--------------------------------
Title:
--------------------------------
QUAD CITY DOWNS, INC.
By:
--------------------------------
Title:
--------------------------------
70
[SIGNATURE PAGE 5 OF 6 TO WAIVER AND SIXTH AMENDMENT]
BANKS AND AGENT
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By:
--------------------------------
Title:
--------------------------------
BANK ONE, KENTUCKY, NA
By:
--------------------------------
Title:
--------------------------------
CIBC INC.
By:
--------------------------------
Title:
--------------------------------
COMERICA BANK
By:
--------------------------------
Title:
--------------------------------
FIFTH THIRD BANK
By:
--------------------------------
Title:
--------------------------------
71
[SIGNATURE PAGE 6 OF 6 TO WAIVER AND SIXTH AMENDMENT]
NATIONAL CITY BANK OF KENTUCKY
By:
--------------------------------
Title:
--------------------------------
FIRSTAR BANK, N.A.
By:
--------------------------------
Title:
--------------------------------
BANK OF LOUISVILLE
By:
--------------------------------
Title:
--------------------------------
FIFTH THIRD BANK INDIANA
By:
--------------------------------
Title:
--------------------------------
WELLS FARGO BANK
By:
--------------------------------
Title:
--------------------------------
72
EXHIBIT 4(B)
OPINION OF COUNSEL
The opinion of Rebecca C. Reed shall confirm that the recitals
hereto are true and correct in all material respects and that the other matters
contained in the warranties in Section 3(C) hereto are true and the opinion of
Wyatt, Tarrant & Combs, LLP shall confirm that the following representations and
warranties in the Credit Agreement are true and correct as such warranties
relate to this Sixth Amendment and the Credit Agreement as amended by this Sixth
Amendment:
Credit Agreement
----------------
Section Warranty
------- --------
5.1.1 Organization and Qualification
5.1.2 Capitalization and Ownership
5.1.4 Power and Authority
5.1.5 Validity and Binding Effect
5.1.6 No Conflict
5.1.12 Consents and Approvals
73