DEBT SERVICE MAINTENANCE AGREEMENT
To: Commerce Bank, N.A. July 29, 1999
1701 Route 70 East
Cherry Hill, NJ 08034
To induce you to establish and/or continue financing arrangements with
and consider making or continuing certain loans and extending or continuing to
extend credit from time to time to FR Park Racing, L.P. and GS Park Racing, L.P.
(collectively, ABorrowers@), the Undersigned, intending to be legally bound, and
subject to the limitations of Section 2 and the other terms and conditions of
this Agreement, hereby jointly and severally agree to make available to
Borrower, by way of loans, capital contributions, advances or otherwise, such
funds to enable Borrowers to pay to you fifty percent (50%) of all of the
Obligations of Borrowers to you; provided, however, that unless the undesigned
has agreed in writing , the principal amount of the Debt Service Maintenance
Obligations (as defined herein) shall not exceed Eleven Million Five Hundred
thousand Dollars ($11,500,000) (as may be adjusted in writing from time to time,
the ACap@) (herein, the undersigneds= ADebt Service Maintenance Obligations@).
AObligations@ shall have the meaning set forth in the Loan Agreement. The
Undersigned shall also pay or reimburse you on demand for all reasonable costs
and expenses, including without limitation reasonable attorneys' fees, incurred
by you at any time to enforce, protect, preserve, or defend your rights
hereunder and with respect to any property securing this Agreement. Any funding
by the undersigned hereunder that is utilized by Borrowers to pay the
Obligations (and that is indefeasibly retained by you) shall be credited against
the undersigned=s Debt Service Maintenance Obligations; further, the undersigned
agree to make all such fundings directly to you at the office and in the manner
designated by you at any time. All payments hereunder shall be made in lawful
money of the United States, in immediately available funds. Unless otherwise
defined herein, all capitalized terms shall have the respective meanings given
to such terms in that certain Loan and Security Agreement dated the date hereof
among Borrowers and you (as it may hereafter be amended, supplemented or
replaced from time to time, the "Loan Agreement").
Each of the Undersigned further undertakes and agrees as follows:
1. Each of the Undersigned represents and warrants that:
a. The Undersigned's execution and performance of this
Agreement shall not (i) violate or result in a default or breach (immediately or
with the passage of time) under any contract, agreement or instrument to which
any of the Undersigned is a party, or by which any of the Undersigned is bound,
including, without limitation, under (A) that certain Second Amended and
Restated Credit Agreement among PNG, various banks and First Union National Bank
dated January 28, 1999, (as amended from time to time, ACredit Agreement@) and
(B) that certain Indenture among PNG, certain of PNG=s Subsidiaries and State
Street Bank and Trust Company, as Trustee, dated December 17, 1997 (as amended
from time to time, AIndenture@); (ii) violate or result in a default or breach
under any order, decree, award, injunction, judgment, law, regulation or rule;
(iii) cause or result in the imposition or creation of any Lien upon any
property of any of the Undersigned; or (iv) violate any of the Undersigned=s
articles of incorporation or by-laws or any other organizational document of any
of the Undersigned.
b. Each of the Undersigned has the full power and authority to
enter into and perform under this Agreement and to incur the obligations
provided for herein. The execution, delivery and performance of this Agreement
has been authorized by all proper and necessary actions of each of the
Undersigned.
c. No consent, license or approval of, or filing or
registration with, any Governmental Authority is necessary for the execution and
performance hereof by the Undersigned.
d. This Agreement constitutes the valid and binding obligation
of each of the Undersigned enforceable in accordance with its terms as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors= rights generally and by general equitable principles.
e. This Agreement promotes and furthers the business and
interests of each of the Undersigned, and the incurrence of the Obligations by
Borrowers and creation of the obligations hereunder will result in direct
financial benefit to each of the Undersigned.
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2. In the event that Borrowers fail to pay any of the Obligations
(including, without limitation, any failure to pay principal upon maturity or
acceleration), then the Undersigned shall, jointly and severally, on written
demand by you immediately fund (at the time and in the manner designated by you)
the Debt Service Maintenance Obligations arising from Borrowers= failure (any
such payment of the Debt Service Maintenance Obligations by the Undersigned is
referred to herein as a ADebt Service Maintenance Payment@), so long as the
making of the Debt Service Maintenance Payment, or any portion thereof, would
not cause an event of default under the Indenture (or if the making of the Debt
Service Maintenance Payment would cause an event of default under the Indenture,
then the chief financial officer of the Undersigned shall certify such fact to
you in writing). As soon as circumstances permit the Undersigned to make a Debt
Service Maintenance Payment (or any portion thereof) without causing an event of
default under the Indenture, the Undersigned shall (subject to this Section 2),
without further demand, immediately make the Debt Service Maintenance Payment
(or permitted portion thereof) to you. If the making of the Debt Service
Maintenance Payment will not cause an event of default under the Indenture but
an event of default has occurred and is continuing under the Credit Agreement
or, after giving effect to the making of the Debt Service Maintenance Payment by
the Undersigned an event of default would exist under the Credit Agreement (in
either case as certified to you in writing by the chief financial officer of the
Undersigned), then the Undersigned=s obligation to make the Debt Service
Maintenance Payment shall be suspended until the earliest of (a) one hundred
eighty (180) days after your demand to the Undersigned; (b) the curing or
waiving of any such event of default under the Credit Agreement; or (c)
acceleration of the obligations under the Credit Agreement; provided that no
more than one payment suspension on account of an event of default (or
prospective event of default) under the Credit Agreement may be instituted in
any given three hundred sixty (360) day period.
3. Each of the Undersigned hereby waives notice of (a) acceptance of
this Agreement, (b) up to the Cap, the existence or incurring from time to time
of any Debt Service Maintenance Obligations required hereunder, (c) the
existence of any Event of Default, the making of demand, or the taking of any
action by you, under the Loan Agreement, and (d) except as expressly set forth
herein, demand and default hereunder.
4. Each of the Undersigned (in its capacity hereunder) hereby consents
and agrees that you may at any time or from time to time in your discretion (a)
extend or change the time of payment, and/or the manner, place or terms of
payment of any or all Obligations, (b) amend, supplement or replace the Loan
Agreement or any related agreements, (c) renew, extend, modify, or decrease
loans and extensions of credit to Borrowers, (d) modify the terms and conditions
under which loans and extensions of credit may be made to Borrowers, (e) settle,
compromise or grant releases for liabilities of Borrowers, and/or any other
person or persons liable with Undersigned for, any Obligations, (f) exchange,
release, surrender, sell, subordinate, or compromise any Collateral of any party
now or hereafter securing any of the Obligations, and (g) apply any and all
payments received by you at any time against the Obligations in any order as you
may determine; all of the foregoing in such manner and upon such terms as you
may see fit, and without notice to or further consent from the Undersigned, who
each hereby agrees to be and shall remain bound upon this Agreement
notwithstanding any such action on your part. Notwithstanding anything to the
contrary in this paragraph 4 or anywhere else in this Agreement, you may not
increase the principal amount of the Obligations without the prior written
consent of the Undersigned.
5. Subject to Section 2 of this Agreement and the Cap, the liability of
each of the Undersigned hereunder is absolute and unconditional and shall not be
reduced, impaired or affected in any way by reason of (a) any failure to obtain,
retain or preserve, or the lack of prior enforcement of, any rights against any
person or persons (including Borrowers, the Undersigned or any other obligor) or
in any property, (b) the invalidity or unenforceability of any Obligations or
rights in any Collateral, (c) any delay in making demand upon Borrowers or any
delay in enforcing, or any failure to enforce, any rights against Borrowers or
in any Collateral even if such rights are thereby lost, (d) any failure, neglect
or omission on your part to obtain or perfect any lien upon, protect, exercise
rights against, or realize on, any property of Borrowers, the Undersigned or any
other party securing the Obligations, other than as a result of your gross
negligence or willful misconduct (e) the existence or nonexistence of any
defenses which may be available to Borrowers with respect to the Obligations
(other than the defense of payment), (f) any failure to proceed against
Borrowers or any Collateral in a commercially reasonable manner, or (g) the
commencement of any bankruptcy, reorganization, liquidation, dissolution or
receivership proceeding or case filed by or against any Borrower.
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6. If any or all payments made from time to time to you with respect to
any Debt Service Maintenance Obligation hereunder are recovered from, or repaid
by, you in whole or in part in any bankruptcy, reorganization, insolvency or
similar proceeding instituted by or against any Borrower, this Agreement shall
continue to be fully applicable to such obligation to the same extent as if the
recovered or repaid payment(s) had never been originally made on such
obligation.
7. All rights and remedies hereunder and under the Loan Agreement, and
related agreements, are cumulative and not alternative, and you may proceed in
any order from time to time against Borrowers, the Undersigned and/or any other
obligor of Borrowers= Obligations and their respective assets. You shall not
have any obligation to proceed against, or exhaust any or all of your rights
against, Borrowers prior to proceeding against the Undersigned hereunder.
8. Any and all rights of any nature of the Undersigned to subrogation,
reimbursement or indemnity and any right of the Undersigned to recourse to any
assets or property of Borrowers for any reason shall be unconditionally
subordinated to all of your rights under the Loan Agreement and the Undersigned
shall not at any time exercise any of such rights unless and until all of the
Obligations have been unconditionally paid in full.
9. Your books and records of any and all of Borrowers= Obligations,
absent manifest error, shall be prima facie evidence against the Undersigned of
the indebtedness due you or to become due to you hereunder.
10. This Agreement shall constitute a continuing obligation with
respect to all liability of the Undersigned under this Agreement and may not be
revoked or, except in connection with payment in full of the Obligations or
payment in full of the Debt Service Maintenance Obligations, terminated.
11. Subject to Section 2 of this Agreement, the Undersigned agrees that
you shall have a right of setoff against any and all property of any of the
Undersigned now or at any time in your possession, including without limitation
deposit accounts, and the proceeds thereof, as security for the obligations of
the Undersigned hereunder.
12. Subject to Section 2 of this Agreement, if an Event of Default
occurs and is continuing under the Loan Agreement, then all of the Debt Service
Maintenance Obligations of every kind or nature to you hereunder shall, at your
option, become immediately due and payable and you may at any time and from time
to time take any and/or all actions and enforce all rights and remedies
available hereunder or under applicable law to collect the Undersigned's
liabilities hereunder.
13. Failure or delay in exercising any right or remedy against the
Undersigned hereunder shall not be deemed a waiver thereof or preclude the
exercise of any other right or remedy hereunder. No waiver of any breach of or
provision of this Agreement shall be construed as a waiver of any subsequent
breach or of any other provision. The invalidity or unenforceability of any
provision hereof shall not affect the remaining provisions which shall remain in
full force and effect.
14. This Agreement shall (a) be legally binding upon the Undersigned,
and the Undersigned's successors and assigns, provided that the Undersigned's
obligations hereunder may not be delegated or assigned without your prior
written consent and (b) benefit any and all of your successors and assigns.
15. This Agreement embodies the whole agreement and understanding of
the parties hereto relative to the subject matter hereof. No modification or
waiver of any provision hereof shall be enforceable unless approved by you in
writing.
16. Intentionally Omitted.
17. This Agreement shall in all respects be interpreted, construed and
governed by the substantive laws of the Commonwealth of Pennsylvania. The
Undersigned irrevocably (i) submits to the jurisdiction of the Courts of the
Commonwealth of Pennsylvania and the United States District Court for the
Eastern District of Pennsylvania for the
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purposes of any litigation or proceeding hereunder or concerning the terms
hereof and (ii) together with you, waives the right to a jury trial with respect
to any litigation or proceeding hereunder or concerning the terms hereof.
18. a. In any action or proceeding brought by you to enforce the terms
hereof, the Undersigned waives personal service of the summons, complaint, and
any motion or other process, and agrees that notice thereof may be served by
registered or certified mail, return receipt requested or by nationally
recognized overnight courier at the address of the Undersigned set forth on the
signature page hereof. Such service shall be deemed made on the date of delivery
at such address.
b. Any and all notices which may be given to the Undersigned
by you hereunder shall be sent to the Undersigned at the address of the
Undersigned set forth on the signature page hereof and shall be deemed given to
and received (on the date delivered) by the Undersigned if personally delivered
or if sent by facsimile transmission or if sent in the manner provided for
service of process in paragraph 18(a) above.
19. So long as the Obligations are outstanding, none of the Undersigned
shall sell, transfer, convey or dispose of any assets, other than in the
ordinary course of business, if the net sale proceeds from all assets sold by
all of the Undersigned exceed, in the aggregate, $3,000,000 in any fiscal year.
20. a. Subject only to the terms of Section 20 (b) of this Agreement,
each of the Undersigned shall be jointly and severally liable for all Debt
Service Maintenance Obligations.
b. Without limiting the effect of Section 13 of this
Agreement, to the extent that mandatory and non-waivable provisions of
applicable law (including but not limited to any applicable business corporation
laws) otherwise would render this Agreement invalid or unenforceable, each of
the Undersigned=s obligations hereunder shall be limited to the maximum amount
which does not result in such invalidity or enforceability.
21. Subject to Section 6 of this Agreement, upon payment in full of the
Debt Service Maintenance Obligations, this Agreement shall terminate.
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IN WITNESS WHEREOF, this Debt Service Maintenance Agreement is hereby
executed on the date first written above.
Penn National Gaming, Inc.
Attest: _/s/Patricia G. Cramer____________ By: /s/Robert S. Ippolito________
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title:Secretary
Address: 825 Berkshire Blvd. Suite 200___
Wyomissing, PA 19610
Backside, Inc.
Attest: /s/Patricia G. Cramer____________ By: _/s/Robert S. Ippolito___
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title:Robert S. Ippolito
Address: 825 Berkshire Blvd. Suite 200___
Wyomissing, PA 19610
The Downs Racing, Inc.
Attest: /s/Patricia G. Cramer_____ By: /s/Joseph A. Lashinger______
Name: Patricia G. Cramer Name: Joseph A. Lashinger
Title:President
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SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Mill Creek Land, Inc.
Attest: /s/Patricia G. Cramer By: /s/Robert S. Ippolito
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title:Secretary
Address: 825 Berkshire Blvd
Wyomissing, PA 19610
Mountainview Thoroughbred Racing Association
Attest: /s/Patricia G. Cramer By: /s/Robert S. Ippolito
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title:Secretary
Address: 825 Berkshire Blvd.
Wyomissing, PA 19610
Northeast Concessions, Inc.
Attest:/s/Patricia G. Cramer By: /s/Robert S. Ippolito
Name: Name:Robert S. Ippolito
Title:
Address: 825 Berkshire Blvd.
Wyomissing, PA 19610
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
PNGI Pocono, Inc.
Attest: /s/Patricia G. Cramer By: /s/Robert S. Ippolito
Name: Patricia G.Cramer Name:Robert S. Ippolito
Title:Secretary
Address: 825 Berkshire Blvd.
Wyomissing, PA 19610
Penn National Gaming of West Virginia, Inc.
Attest: /s/Patricia G. Cramer By: /s/Robert S. Ippolito
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title:Secretary
Address: 825 Berkshire Blvd
Wyomissing, PA 19610
Penn National GSFR, Inc.
Attest: /s/Patricia G. Cramer By: /s/Robert S. Ippolito
Name: Patricia G. Cramer Name: Robert S. Ippolito
Title: Secretary
Address: 825 Berkshire Blvd
Wyomissing, PA 19610
[SIGNATURES CONTINUED ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
Penn National Holding Company
Attest: /s/Patricia G. Cramer By: Robert S. Ippolito_
Name: Patricia G. Cramer Name: Robert S. Ippolito
Title: Secretary
Address: 825 Berkshire Blvd.
Wyomissing, PA 19610
Penn National Speedway, Inc.
Attest: /s/Patricia G. Cramer By: _/s/Robert S. Ippolito
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title: Secretary
Address: 825 Berkshire Blvd.
Wyomissing, PA 19610
Pennsylvania National Turf Club, Inc.
Attest: /s/Patricia G. Cramer By:/s/Robert S. Ippolito
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title:Secretary
Address: 825 Berkshire Blvd
Wyomissing, PA 19610
[SIGNATURES CONTINUED ON NEXT PAGE]
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Sterling Aviation, Inc.
Attest: /s/Patricia G. Cramer By: /s/Robert S. Ippolito
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title:Secretary
Address: 825 Berkshire Blvd
Wyomissing, PA 19610
Tennessee Downs, Inc.
Attest: /s/Patricia G. Cramer By: /s/Robert S. Ippolito
Name: Patricia G. Cramer Name:Robert S. Ippolito
Title:Secretary
Address: 825 Berkshire Blvd
Wyomissing, PA 19610
Wilkes Barre Downs, Inc.
Attest: /s/Robert S. Ippolito By: /s/Robert E. Abraham
Name: Robert S. Ippolito Name: Robert E. Abraham
Title: Vice President
Address: 825 Berkshire Blvd
Wyomissing, PA 19610
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