-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GrGErVnZuLaIBvih1xJVCW1P1C1ZeGjNskhYFJscKb0t8RJBcL42ZVVK1B2lvAWF c4GhwPGQgiL5UeR7lH9FUw== 0001017673-99-000009.txt : 19990913 0001017673-99-000009.hdr.sgml : 19990913 ACCESSION NUMBER: 0001017673-99-000009 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990630 FILED AS OF DATE: 19990909 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DOVER DOWNS ENTERTAINMENT INC CENTRAL INDEX KEY: 0001017673 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-AMUSEMENT & RECREATION SERVICES [7900] IRS NUMBER: 510357525 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-K SEC ACT: SEC FILE NUMBER: 001-11929 FILM NUMBER: 99708823 BUSINESS ADDRESS: STREET 1: 1131 N DUPONT HIGHWAY CITY: DOVER STATE: DE ZIP: 19901 BUSINESS PHONE: 3027644600 MAIL ADDRESS: STREET 1: 2200 CONCORD PIKE CITY: WILMINGTON STATE: DE ZIP: 19803 10-K 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (Mark One) / X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended June 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 of Incorporation) (I.R.S. Employer Identification Number) 1131 North DuPont Highway, Dover, Delaware 19901 (Address of principal executive offices) Registrant's telephone number including area code (302) 674-4600 Securities registered pursuant to Section 12(b) of the Act: Title of Class Name of exchange on which registered Common Stock, $.10 Par Value NEW YORK STOCK EXCHANGE Securities registered pursuant to Section 12(g) of the Act: NONE Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 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 Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. /__/ The aggregate market value of the voting stock held by non- affiliates of the registrant was $577,346,515 as of July 31, 1999. As of July 31, 1999, the number of shares of each class of the Registrant's common stock outstanding is as follows: Common Stock - 11,405,184 shares Class A Common Stock - 24,261,010 shares The following documents are incorporated by reference: Document Part of this form into which incorporated Proxy Statement in connection with Annual Meeting of Shareholders to be held October 29, 1999 III ITEM 1. BUSINESS. Dover Downs Entertainment, Inc. (Dover Downs or the Company) is a leading promoter of motorsports events in the United States. The Company operates five motorsports tracks (four permanent facilities and one temporary circuit) in four states, promoting 15 major events annually in the four premier sanctioning bodies in motorsports - the National Association for Stock Car Auto Racing (NASCAR), Championship Auto Racing Teams (CART), the Indy Racing League (IRL) and the National Hot Rod Association (NHRA). The Company's major event markets reach 32 of the top 50 dominant market areas in the country. Dover Downs also owns and operates the Dover Downs Raceway harness racing track and a 65,000 square foot video lottery (slot) casino at a multi-purpose gaming and entertainment complex in Dover, Delaware. The facility is located in close proximity to the major metropolitan areas of Philadelphia, Baltimore and Washington, D.C. (a) Recent Developments The Company and Grand Prix Association of Long Beach, Inc. ("Grand Prix") entered into an Agreement and Plan of Merger on March 26, 1998, pursuant to which Grand Prix became a wholly owned subsidiary of the Company as of July 1, 1998. The merger was structured as a tax-free exchange and was accounted for using the purchase method of accounting for business combinations whereby each shareholder of Grand Prix received .63 shares (1.26 shares after the stock split) of common stock of Dover Downs for each share of common stock of Grand Prix owned by such shareholder. During fiscal 1999, 15,000 grandstand seats were added at Dover Downs International Speedway, increasing the total seating capacity to more than 122,000. Gateway International Raceway added more than 18,000 permanent seats to bring the total capacity at that facility to approximately 70,000. The Company expanded its casino gaming facility by 24,000 square feet in fiscal 1999, increasing the number of slot machines installed at year-end to 1,555. Also included in the expansion was a bus loading and unloading area and an expansion of the Garden Cafe. In December 1998, the Wilson County (Tennessee) Commission approved the necessary zoning revisions for the construction of the Company's planned Nashville Superspeedway complex. At June 30, 1999, the Company had acquired approximately 1,390 acres of land for the project in Wilson and Rutherford counties. On March 31, 1999, the Company entered into a $50,000,000 long-term, unsecured, revolving credit agreement with certain financial institutions. Interest is based, at the Company's option, upon (i) LIBOR plus .75% or (ii) the base rate (the greater of the prime rate or the federal funds rate plus .5%) minus 1%. The agreement, which expires in March 2002, is for seasonal funding needs, capital improvements and other general corporate purposes. The agreement contains certain restrictive covenants and requires the Company to maintain certain financial ratios. At June 30, 1999, $15,500,000 was outstanding under this line of credit. (b) Financial Information About Operating Segments. The Company's principal operations are grouped into two segments: motorsports and gaming. Financial information concerning these businesses is included on pages 9 through 13 and page 31 of this 1999 Annual Report on Form 10-K. (c) Narrative Description of Business Motorsports Dover Downs International Speedway Dover Downs has presented NASCAR-sanctioned racing events for 31 consecutive years at Dover Downs International Speedway and currently conducts four major NASCAR-sanctioned events annually at the facility. Two races are associated with the Winston Cup professional stock car racing circuit and two races are associated with the Busch Series, Grand National Division (Busch Series) racing circuit. The Company also hosted an Indy Racing League event at Dover Downs International Speedway in August 1999 and July 1998. Approximately 91% of motorsports revenues at Dover Downs International Speedway are derived from admissions, skybox rentals, sponsorships, concession and novelty sales and broadcast rights at NASCAR-sanctioned events. Each of the Busch Series events at Dover Downs is conducted on the day before a Winston Cup event. Dover Downs is one of only six speedways in the country that presents two Winston Cup events and two Busch Series events each year. The June and September dates have historically allowed Dover Downs to hold the first and last Winston Cup events in the Maryland to Maine region each year. The auto racing track is a high-banked, one-mile long, concrete superspeedway with a current seating capacity of approximately 122,000. Unlike some superspeedways, substantially all grandstand and skybox seats offer an unobstructed view of the entire track. The concrete racing surface makes the auto racing track the only concrete superspeedway (one mile or greater in length) that conducts NASCAR- sanctioned events. Grand Prix Association of Long Beach For the past 25 years, the Grand Prix Association of Long Beach, Inc. has been organizing and promoting the Grand Prix of Long Beach, an annual temporary circuit professional motorsports event in Long Beach, California. The Grand Prix of Long Beach has the second highest paid attendance of any Indy car race, second only to the Indianapolis 500. The Grand Prix of Long Beach weekend has attracted in excess of 200,000 spectators in each of the past six years, and is currently broadcast to more than 125 countries throughout the world. Gateway International Raceway Gateway International Raceway (Gateway), which was acquired in the Grand Prix Association of Long Beach acquisition, has conducted NASCAR- CART- and NHRA-sanctioned events since its opening in May 1997. The auto racing facility includes a 1.25-mile oval track and road course with current seating capacity of 70,000 and a national caliber drag strip capable of seating approximately 30,000 people. The facility, which was lighted for nighttime racing this year, is located on approximately 416 acres of land in Madison, Illinois, 5 miles from the St. Louis Arch. Nashville Speedway USA The Company acquired Nashville Speedway USA on January 2, 1998. The Nashville facility hosted its first automotive race in 1904, making it one of the oldest tracks in the country. The facility currently hosts events in three of NASCAR's top national series - the Busch Series, the Craftsman Truck Series and the Slim Jim All Pro Series. Based on attendance, the track's Saturday night NASCAR Winston Racing Series is regarded as one of the most successful weekly programs in the country. To accommodate the demand for major motorsports in the Nashville area, the Company plans to build a new superspeedway and motorsports complex in Wilson County, Tennessee. The proposed 1.33-mile superspeedway initially will have 50,000 grandstand seats with an infrastructure in place to expand to 150,000 seats should demand require it. Memphis Motorsports Park Memphis Motorsports Park, also acquired in the Grand Prix Association of Long Beach acquisition, has hosted NASCAR- and NHRA-sanctioned events since its opening in June 1998. The tri-oval track is currently undergoing an expansion that will bring its seating capacity (using available portable seating) to approximately 25,000 seats and add luxury suites for the inaugural Busch Series event in October 1999. The drag strip also hosts an NHRA national event and has a seating capacity in excess of 25,000. Other In recent years, television coverage and corporate sponsorship have increased for NASCAR-sanctioned events. The Company's NASCAR- sanctioned events are currently televised live by TNN, ABC and the ESPN networks to a nationwide audience and broadcast nationally to a network of radio stations affiliated with the Motor Racing Network. In February 1999, NASCAR announced that they would retain the television, audio and other electronic media rights for Winston Cup and Busch Series events beginning with the 2000 race season, though the current fee distribution formula is not expected to change. The packaging of all media rights is expected to generate an increase in revenues and increase NASCAR's presence on television. Gaming Dover Downs has presented pari-mutuel harness racing events for 31 consecutive years. On December 29, 1995, the Company introduced video lottery (slot) machines to its entertainment mix. Under an agreement with Caesars World Gaming Development Corporation (Caesars), a leader in the gaming industry, Caesars supervises, manages, markets and operates the Company's video lottery operations. The Las Vegas-style, air-conditioned "video lottery casino" housing the gaming operations was designed and built using expertise from Caesars. On June 16, 1998, the Dover Planning Commission approved the Company's plans for expansion of the casino gaming facility and improvements to the Company's Garden Cafe and simulcasting parlor. In March 1999, the 24,000-square foot expansion of the casino facility was completed. Additionally, the Garden Cafe was doubled in size and various improvements were completed in the simulcasting parlor. Dover Downs is a "Licensed Agent" authorized to conduct video lottery operations under the Delaware State Lottery Code. Pursuant to Delaware's Horse Racing Redevelopment Act enacted in 1994, the Delaware State Lottery Office administers and controls the operation of the video lottery operations. Dover Downs is permitted by law to set its payout to customers between 87% and 95%. Prior approval from the Director of the Delaware State Lottery Office would be required for any deviation from the aforementioned payout rates. Since inception of its slot operations on December 29, 1995, Dover Downs has maintained an average payout of approximately 91%. By law, video lottery operations in Delaware are limited to the three locations in the State where thoroughbred horse racing or harness horse racing was held in 1993. In addition to the Dover Downs complex in Dover, Delaware, there are only two other locations permitted by law: Delaware Park, a northern Delaware thoroughbred track; and Harrington Raceway, a south central Delaware fairgrounds harness horse racing track. The harness horse racing track is a five-eighths mile track and is lighted for nighttime operations. The track is located inside the one- mile auto racing superspeedway. The configuration offers turns with a wider than normal turning radius and 6 degree banking. This allows trotting and pacing horses to remain in full stride through the turns. The result has been higher than average speeds attained by horses in competition. With the start of the race season beginning November 1996, live harness races conducted at Dover Downs were simulcast to tracks and other off-track betting locations across North America, and during 1999, were transmitted to more than 400 tracks and off-track betting locations nationwide. The Company has facilities for pari-mutuel wagering on both live harness horse racing and on simulcast thoroughbred and harness horse racing received from numerous tracks across North America. Within the main grandstand is the simulcast parlor where patrons can wager on harness and thoroughbred races received by satellite into Dover Downs. Television monitors throughout the parlor area provide views of all races simultaneously and the parlor's betting windows are tied into a central computer allowing bets to be received on all races from all tracks. With the expansion of its simulcasting operations, pari-mutuel wagering is now on a year-round basis. For the fiscal years ended June 30, 1999, 1998, and 1997, the Company had 361, 363 and 363 simulcast racing dates, respectively. Harness racing in the State of Delaware is governed by the Delaware Harness Racing Commission. The Company holds a license from the Commission by which it is authorized to hold harness race meetings on its premises and to make, conduct and sell pools by the use of pari- mutuel machines or totalizators. Pari-mutuel wagering refers to pooled betting or wagering on harness horse racing by means of a totalizator. Through pooled betting, the wagering public, not the track, determines the odds and the payoff. The track retains a percentage of the amount wagered. Simulcasting refers to the transmission of live horse racing by television, cable or satellite signal from one race track to another with pari-mutuel wagering being conducted at the sending and receiving track and a portion of the handle being shared by the sending and receiving tracks. Competition Motorsports The Company's racing events compete with other racing events sanctioned by various racing bodies and with other sports and recreational events scheduled on the same dates. Racing events sanctioned by different organizations are often held on the same dates at separate tracks. The quality of the competition, type of racing event, caliber of the event, sight lines, ticket pricing, location, and customer conveniences, among other things, distinguish the motorsports facilities. The two speedways closest to Dover Downs International Speedway that currently sponsor Winston Cup races are in Richmond, Virginia (approximately four hours to the South) and Pocono International Raceway in Long Pond, Pennsylvania (approximately three and a half hours to the North). Nazareth Speedway in Nazareth, Pennsylvania (approximately two hours to the North) currently conducts Busch Series, Craftsman Truck Series and CART races. The speedway closest to Gateway International Raceway is Indianapolis Motor Speedway (approximately four hours to the east), which currently conducts one Winston Cup race and one IRL race. The speedways closest to the Nashville Speedway are the Atlanta Motor Speedway (approximately three hours to the southeast) and Talladega Superspeedway (approximately three and one-half hours to the south). Atlanta Motor Speedway currently hosts two Winston Cup races, one Busch Series race and one IRL race. Talladega Superspeedway currently hosts two Winston Cup races and one Busch Series race. The speedway closest to Memphis Motorsports Park is Talladega Superspeedway (approximately five and one-half hours to the southeast), which currently hosts two Winston Cup races and one Busch Series race annually. Based on historical data, management does not believe that any of the aforementioned facilities significantly impact the Company's operations, although they may impact the Company's ability to secure additional events in the future. Gaming The legalization of additional casino and other gaming venues in states close to Delaware, particularly Maryland, Pennsylvania and New Jersey, may have a material adverse effect on the Company's business. From time to time, legislation has been introduced in these states that would further expand gambling opportunities, including video lottery (slot) machines at horse-tracks. At present, video lottery (slot) machines are only permitted at two other locations in Delaware: Delaware Park and Harrington Raceway. The neighboring states of Pennsylvania and Maryland do not presently permit video lottery operations. Pennsylvania, Maryland and New Jersey all have state-run lotteries. Atlantic City, New Jersey is located approximately 100 miles from Dover Downs and a certain amount of market overlap exists. Casinos in Atlantic City offer a full range of gaming products. Dover Downs does not compete directly with Atlantic City because of the Company's inability to offer a full range of casino gaming products, but it does believe that it captures a portion of the existing Atlantic City slot market in the Dover area, due to the facility's proximity, convenience and multiple attractions. The Company also competes for attendance with a wide range of other entertainment and recreational activities available in the region, including professional and collegiate sporting events. Competition in horse racing is varied since race tracks in the surrounding area differ in many respects. Some tracks only offer thoroughbred or harness horse racing; others have both. Tracks have live racing seasons that may or may not overlap with neighboring tracks. Depending on the purse structure, tracks that are farther apart may compete with each other more for quality horses than for patrons. Live harness racing also competes with simulcasts of thoroughbred and harness racing. All race tracks in the region are involved with simulcasting. In addition, a number of off-track betting parlors compete with track simulcasting activities. With respect to the Company simulcasting its live harness races to tracks and other locations, its simulcast signals are in direct competition with live races at the receiving track and other races being simulcast to the receiving location. Within the State of Delaware, Dover Downs faces little direct live competition from the State's other two tracks. Harrington Raceway, a south central Delaware fairgrounds track, conducts harness horse racing periodically between May and November. There is no overlap presently with Dover Downs' live race season. Delaware Park, a northern Delaware track, conducts thoroughbred horse racing from April through mid- November. Its race season only overlaps with Dover Downs for approximately five to six weeks each year. The neighboring states of Pennsylvania, Maryland and New Jersey all have harness and thoroughbred racing and simulcasting. Dover Downs competes with Rosecroft Raceway in Maryland, Philadelphia Park in Pennsylvania, Garden State Park and The Meadowlands in New Jersey and a number of other race tracks in the surrounding area. The Company also receives simulcast harness and thoroughbred races from approximately 30 race tracks, including the tracks noted above. Seasonality The Company derives a substantial portion of its total revenues from admissions and event-related revenue attributable to its motorsports events which are currently held from April through October. As a result, the Company's business has been, and is expected to remain, highly seasonal. The seasonality was offset to some degree by the year-round video lottery (slot) machine gaming operations and year- round simulcasting. Number of Employees At June 30, 1999, the Company had a total of 566 full-time employees and 219 part-time employees. The Company hires temporary employees to assist during its auto racing events and its live harness racing season. ITEM 2. PROPERTIES. Dover Properties The Company maintains its headquarters, motorsports superspeedway (Dover Downs International Speedway), harness racing track, and video lottery casino all on approximately 825 acres of land owned by the Company in Dover, Delaware. Long Beach Properties The Company owns its office at 3000 Pacific Avenue, Long Beach, California, which consists of approximately 82,000 square feet of land and a building with approximately 50,000 square feet of office and warehouse space. The Company leases a 750-square foot ticket office in downtown Long Beach for the sale of Grand Prix tickets and souvenirs and storage facilities in Long Beach for its equipment and structures. Gateway International Raceway Property Gateway International Raceway is located on approximately 416 acres of land in Madison, Illinois, five miles from the St. Louis Arch. The Company owns approximately 123 acres and has three long-term leases (expiring in 2011, 2026 and 2070) for an additional 259 acres, with purchase options. The Company is also a party to a ten-year lease (with four five-year renewals) of 20 acres for the purpose of providing overflow parking for major events on a neighboring golf course, and a five-year lease of approximately 14 acres for major event parking. The Company has granted a first mortgage lien on all the real property owned and a security interest in all property leased by the Company at Gateway to Southwestern Illinois Development Authority (SWIDA) as security for the repayment of principal and interest on its $21.5 million loan from SWIDA. Nashville Speedway USA Property The Nashville racing facility is located on 12 acres of land in Nashville, Tennessee and is leased from the Metropolitan Board of Fair Commissioners through 2008. Additionally, the Company has acquired 1,390 acres of land in Wilson and Rutherford counties, Tennessee to be used as the site for a new racing facility. Memphis Motorsports Park Property Memphis Motorsports Park is located on 374 acres of land owned by the Company approximately ten miles northeast of downtown Memphis, Tennessee. The facility is encumbered by a first trust deed to First Tennessee Bank for the purpose of securing a standby letter of credit issued by First Tennessee Bank to Gateway to secure its obligation to SWIDA. ITEM 3. 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 it is unlikely to succeed on its merits. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS. None. ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS. The Common Stock of Dover Downs Entertainment, Inc. has traded on the New York Stock Exchange under the symbol "DVD" since the Company's initial public offering on October 3, 1996. There is no established public trading market for the Company's Class A Common Stock. As of July 31, 1999, there were 11,405,184 shares of Common Stock and 24,261,010 shares of Class A Common Stock outstanding. There were 978 record holders of Common Stock and 21 record holders of Class A Common Stock at July 31, 1999. The range of share prices for the Common Stock on the New York Stock Exchange and per share dividends paid on Common Stock for the fiscal years ended June 30, 1999 and 1998 are as follows: Prices Dividends 1999 1998 1999 1998 High Low High Low Fiscal Quarter (1) First ........... $16 9/16 $12 7/16 $10 9/16 $ 8 3/8 $.04 $.04 Second .......... 13 7/8 10 3/16 11 3/4 9 11/16 .045 .04 Third ........... 15 1/2 12 1/4 15 10 11/16 .045 .04 Fourth .......... 19 7/16 14 7/8 16 13/16 14 3/16 .045 .04 (1) Prior year amounts have been adjusted to give retroactive effect to a two-for-one stock split distributed on September 15, 1998. ITEM 6. SELECTED FINANCIAL DATA. Five Year Selected Financial Data (Dollars in Thousands, Except Per Share Data) Year Ended June 30, 1999 1998 1997 1996 1995 Revenues: Motorsports $ 68,683 $ 25,874 $ 20,516 $ 18,110 $ 16,282 Gaming (1) 139,249 115,071 81,162 31,980 1,250 207,932 140,945 101,678 50,090 17,532 Earnings before income taxes 45,771 37,655 28,239 15,593 7,239 Net earnings 26,891 21,913 16,472 9,196 4,284 Earnings per common share(2) - basic .76 .72 .55 .34 .16 - diluted .74 .70 .54 .32 .15 Dividends per common share(2) $ .18 $ .16 $ .08 $ - $ - At June 30, Total assets $255,212 $ 95,777 $ 71,261 $ 42,311 $ 25,422 Long-term debt, less current portion 36,725 741 760 766 698 Shareholders' equity $172,658 $ 71,365 $ 54,300 $ 23,715 $ 14,225 (1) Gaming revenues from the Company's video lottery (slot) machine gaming operations include the total win from such operations. The Delaware State Lottery Office collects the win and remits a portion thereof to the Company as its commission for acting as a Licensed Agent. The difference between total win and the amount remitted to the Company is reflected in operating expenses. (2) Prior year per share amounts have been adjusted to give retroactive effect to a two-for-one stock split distributed on September 15, 1998. ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. Results of Operations Fiscal Year 1999 Compared With Fiscal Year 1998 Revenues increased by $66,987,000 to $207,932,000 as a result of growth in the historical business of the Company and the acquisition of Grand Prix Association of Long Beach, Inc. on July 1, 1998. Gaming revenues increased by $24,178,000 or 21.0% to $139,249,000, the result of having an average of 1,191 machines in fiscal 1999 compared with an average of 1,000 machines in fiscal 1998, and expanded marketing and promotional activities related to the Company's video lottery casino. Motorsports revenues increased by $42,809,000 or 165.5% to $68,683,000. Approximately $2,432,000 of the revenue increase resulted from increased attendance, $637,000 from increased ticket prices and $1,598,000 from adding an IRL event at Dover Downs International Speedway. Approximately $2,309,000 of the increase resulted from the inclusion of the operating results of Nashville Speedway USA in the consolidated results of Dover Downs Entertainment, Inc. for twelve months in fiscal 1999 as compared to six months in fiscal 1998, and $32,837,000 from the acquisition of Grand Prix Association of Long Beach. The remainder of the increase was from increased sponsorship, concessions and marketing-related revenues at Dover Downs International Speedway. Operating expenses increased by $45,623,000 reflecting the higher revenues. Amounts retained by the State of Delaware, including amounts collected for payment to the vendors under contract with the State who provide the video lottery machines and associated computer systems and fees to the manager who operates the video lottery (slot) machine operation, increased by $9,004,000 in fiscal 1999. Amounts allocated from the video lottery operation for harness horse racing purses were $15,173,000 in fiscal 1999 compared with $12,721,000 in fiscal 1998. Additional advertising, promotional and customer complimentary costs of $2,557,000 were the other significant gaming-related operating cost increases. Motorsports operating expenses increased principally due to a $1,139,000 increase in purse and sanction fee expenses and $1,666,000 from adding an IRL event at Dover Downs International Speedway, and $1,533,000 from the inclusion of the operating results of Nashville Speedway USA in the consolidated results of Dover Downs Entertainment, Inc. for twelve months in fiscal 1999 as compared to six months in fiscal 1998. The remainder of the increase is primarily the result of the acquisition of Grand Prix Association of Long Beach. Depreciation and amortization increased by $4,391,000 due to capital expenditures related to the Company's motorsports facilities and casino expansion and the depreciation of facilities and amortization of goodwill related to the acquisition of Grand Prix Association of Long Beach. General and administrative expenses increased by $6,803,000 to $11,213,000 from $4,410,000, $6,341,000 of which is the result of the acquisition of Grand Prix Association of Long Beach. Interest expense was $1,352,000 in fiscal 1999 as compared to $702,000 of interest income in fiscal 1998. The interest expense resulted from increased borrowings on the revolving credit agreement and interest payments made relating to the SWIDA loan. The Company's effective income tax rates for the fiscal years ended June 30, 1999 and 1998 were 41.2% and 41.8%, respectively. Net earnings increased by $4,978,000 due to the expansion of the video lottery (slot) machine operations, increased marketing efforts in the casino, higher attendance and the growth in the number of motorsports events presented by the Company, offset by increased interest and amortization expense from the Grand Prix Association of Long Beach acquisition. Fiscal Year 1998 Compared With Fiscal Year 1997 Revenues increased by $39,267,000 to $140,945,000 primarily as a result of expanding the casino facility and increasing the number of video lottery (slot) machines from an average of 869 in fiscal 1997 to 1,000 machines during the entire fiscal year ended June 30, 1998. More significant marketing efforts also led to the increase in revenue in fiscal 1998. Motorsports revenues increased by $5,358,000 or 26.1% to $25,874,000. Approximately $1,791,000 of the revenue increase resulted from increased attendance, $295,000 from increased ticket prices, and $1,692,000 from the inclusion of the operating results of Nashville Speedway USA in the consolidated results of Dover Downs Entertainment, Inc. for six months in fiscal 1998. The remainder of the increase was from increased sponsorship, concessions and marketing related revenues. Operating expenses increased by $28,316,000 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 $14,902,000 in 1998. Amounts allocated from the video lottery operation for harness horse racing purses were $12,721,000 in 1998 compared with $9,157,000 in 1997. Advertising, promotional and customer complimentary cost increases of $2,534,000 were the other significant cost increases. Motorsports operating expenses increased principally due to a $358,000 increase in purse and sanction fee expenses and increased advertising costs of $626,000 as a result of the addition of motorsports events during the 1998 fiscal year. The inclusion of the operating results of Nashville Speedway USA in the consolidated results of Dover Downs Entertainment, Inc. for six months in fiscal 1998 is the other significant operating cost increase. Depreciation increased by $623,000 or 29.9% to $2,707,000 from $2,084,000 as a result of a full year of depreciation expense related to the Company's video lottery casino expansion being recognized in 1998 compared with eight months in 1997. Capital expenditures for the expansion of the Company's motorsports facilities also contributed to the increase in depreciation. General and administrative expenses increased by $1,345,000 to $4,410,000 from $3,065,000. Wage and benefit costs increased by $469,000 and consulting and professional services increased by $223,000 principally due to the Company's expansion of the video lottery (slot) machine operation and the acquisition of Nashville Speedway USA. The Company's effective income tax rates for fiscal 1998 and fiscal 1997 were 41.8% and 41.7%, respectively. Net earnings increased by $5,441,000 due to the expansion of the video lottery (slot) machine operation, increased marketing efforts in the casino and higher attendance and related revenues at the Company's NASCAR-sanctioned events in September 1997 and June 1998. Liquidity and Capital Resources Cash flow from operations for the three years ended June 30, 1999, 1998, and 1997 was $34,808,000, $28,991,000 and $18,600,000, respectively. The increase in fiscal 1999 reflected the Company's higher net earnings before depreciation and amortization. Capital expenditures for the year ended June 30, 1999 were $50,707,000. Approximately $17,600,000 related to the expansion of and improvements to the Dover Downs and Gateway racing facilities, approximately $14,500,000 to the expansion of the casino facility in Dover, Delaware and approximately $10,800,000 for the acquisition of land in Nashville for the construction of the proposed Nashville Superspeedway complex. The remainder of the expenditures were for land and other improvements at the Dover and Memphis facilities. Capital expenditures for the year ended June 30, 1998 were $7,504,000 and related primarily to the expansion of and improvements to the racing facility as well as expansion of the administrative facilities. The 1998 expenditures were less than in 1997 as the Company was also constructing and expanding the casino facilities in 1997. Capital expenditures for the year ended June 30, 1997 of $16,841,000 related primarily to the purchase of land for $1,060,000, the expansion of the casino for $5,124,000, and the construction of additional permanent motorsports seating for $8,061,000. The capital expenditures were primarily funded with the proceeds from the Company's initial public stock offering. The Company has filed an application with the Dover City Planning Department to build a 10-story, 520-room hotel in Dover, Delaware. The current construction plans consist of two phases of 260 rooms each, and include a multi-purpose ballroom/concert hall and a fine-dining restaurant. The Company has not entered into any commitments related to the project as of June 30, 1999. The cost of the first phase of the project is estimated to be approximately $35,000,000. On August 26, 1999, the Company began construction of the new Nashville Superspeedway complex in Wilson County, Tennessee. The proposed complex will include a 1.33-mile oval track and may include a paved short track, a dirt track and a drag strip in future phases. The aggregate cost of acquiring the land and developing Phase I of the complex is estimated to be approximately $95,000,000. Of the total, the State of Tennessee will fund approximately $18,400,000 for the construction of an interchange and an access road near the proposed complex. The Sports Authority of the County of Wilson and Nashville Speedway USA, Inc., a subsidiary of the Company, have entered into an agreement whereby the Sports Authority will issue its revenue bonds and use the proceeds therefrom to acquire, construct and install certain local infrastructure improvements that would be beneficial to the operation of the superspeedway, the cost of which is estimated at $20,700,000. The terms of the revenue bonds have not yet been finalized, though the Company expects to provide some form of credit enhancement. The Company has invested approximately $11,700,000 in the project as of June 30, 1999, primarily for the purchase of land. Effective January 2, 1998, the Company acquired all of the outstanding common stock of Nashville Speedway USA, Inc. for $3,000,000 in cash from available funds. The Company and Grand Prix entered into an Agreement and Plan of Merger pursuant to which Grand Prix became a wholly owned subsidiary of the Company. The merger, which closed on July 1, 1998, was structured as a tax-free exchange whereby each shareholder of Grand Prix received .63 shares (1.26 shares after the stock split) of common stock of Dover Downs for each share of common stock of Grand Prix owned by such shareholder. The Company purchased 680,000 shares of common stock of Grand Prix from two non-management shareholders in March of 1998 for $10,540,000. The Company has a $50,000,000 long-term, unsecured revolving line of credit from certain financial institutions to provide seasonal funding needs, to finance capital improvements and other general corporate purposes. The Company was in compliance with all terms of the facility and there was $15,500,000 outstanding at June 30, 1999. Year 2000 Issues The Company is aware of the issues related to the approach of the year 2000 and has assessed and investigated what steps must be taken to ensure that its critical systems and equipment will function appropriately after the turn of the century. The assessments include a review of what systems and equipment need to be changed or replaced in order to function correctly. The Company believes its accounting and ticketing hardware and software are year 2000 compliant and no corrections will be needed to those systems as a result of the year 2000. The Delaware State Lottery has advised the Company that the systems employed in its lottery operations will be made year 2000 compliant. The Company does not place substantial reliance on any other systems, and no systems have been found to need substantial correction. The Company believes that issues related to the year 2000 will not have a material effect on its results of operations or financial condition. 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. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA. The consolidated financial statements of the Company and the Independent Auditors' Report included in this report are shown on the Index to Consolidated Financial Statements on page 18. ITEM 9. DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. None. ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT. Except as presented below, the information called for by this Item 10 is incorporated by reference from the Company's Proxy Statement to be filed pursuant to Regulation 14A for the Annual Meeting of Shareholders to be held on October 29, 1999. Executive Officers of the Registrant. As of June 30, 1999, the Executive Officers of the registrant were: Name Position Age Term of Office Robert M. Comollo Treasurer 51 11/81 to date Timothy R. Horne Vice President-Finance 33 11/96 to date Michael B. Kinnard Vice President-General 41 6/94 to date Counsel and Secretary Denis McGlynn President and 53 11/79 to date Chief Executive Officer John W. Rollins, Sr. Chairman of the Board 83 10/96 to date Edward J. Sutor Executive Vice President 49 3/99 to date Robert M. Comollo has been employed by the Company for 19 years, of which 18 years have been in the capacity of Treasurer. Timothy R. Horne became Vice President-Finance in November of 1996. From 1988 until 1996, Mr. Horne was employed by KPMG LLP, where he most recently served as an assurance senior manager. Michael B. Kinnard has been Vice President-General Counsel to the Company since 1994. Mr. Kinnard also serves as Vice President-General Counsel and Secretary to Matlack Systems, Inc. and Vice President- General Counsel and Secretary to Rollins Truck Leasing Corp. Prior to 1995, Mr. Kinnard was a partner in the law firm of Baker, Worthington, Crossley, Stansberry & Woolf (now known as Baker, Donelson, Bearman & Caldwell). Edward J. Sutor became Executive Vice President in March of 1999. From 1983 until 1999, Mr. Sutor served as Senior Vice President of Finance at Caesers Atlantic City. ITEM 11. EXECUTIVE COMPENSATION. The information called for by this Item 11 is incorporated by reference from the Company's Proxy Statement to be filed pursuant to Regulation 14A for the Annual Meeting of Shareholders to be held on October 29, 1999. ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT. The information called for by this Item 12 is incorporated by reference from the Company's Proxy Statement filed pursuant to Regulation 14A for the Annual Meeting of Shareholders to be held on October 29, 1999. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS. During the year ended June 30, 1999, the following officers and/or directors of the Company were also officers and/or directors of Rollins Truck Leasing Corp.; Patrick J. Bagley, Michael B. Kinnard, John W. Rollins, John W. Rollins, Jr. and Henry B. Tippie. The following officers and/or directors of the Company were also officers and/or directors of Matlack Systems, Inc.; Patrick J. Bagley, Michael B. Kinnard, John W. Rollins, John W. Rollins, Jr. and Henry B. Tippie. John W. Rollins owns directly and of record 12.5% and 11.4% of the outstanding shares of common stock of Rollins Truck Leasing Corp. and Matlack Systems, Inc., respectively, at June 30, 1999. The description of transactions between the Company and Rollins Truck Leasing Corp. appears under the caption "Related Party Transactions" on page 31 of this 1999 Annual Report on Form 10-K. ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K. (a) Financial Statements, Financial Statement Schedules and Exhibits (1) Financial Statements - See accompanying Index to Consolidated Financial Statements on page 18. (2) Financial Statement Schedules - None. (3) Exhibits: 2.1 Share Exchange Agreement and Plan of Reorganization dated June 14, 1996 between Dover Downs Entertainment, Inc., Dover Downs, Inc., Dover Downs International Speedway, Inc. and the shareholders of Dover Downs, Inc. as filed with the Company's Registration Statement Number 333-8147 on Form S- 1 dated July 15, 1996, which was declared effective on October 3, 1996, is incorporated herein by reference. 2.2 Agreement and Plan of Merger, dated as of March 26, 1998, by and among Dover Downs Entertainment, Inc. FOG Acquisition Corp., and Grand Prix Association of Long Beach as filed with the Company's Registration Statement Number 333-53077 on Form S-4 on May 19, 1998, is incorporated herein by reference. 3.1 Certificate of Incorporation of Dover Downs Entertainment, Inc., amended June 14, 1996, and further amended on June 28, 1996 as filed with the Company's Registration Statement Number 333-8147 on Form S-1 dated July 15, 1996, which was declared effective on October 3, 1996, is incorporated herein by reference. 3.2 Amended and Restated Bylaws of Dover Downs Entertainment, Inc. as filed with the Company's Annual Report on Form 10-K for the year ended June 30, 1997, is incorporated herein by reference. 3.3 Amendment to Certificate of Incorporation of Dover Downs Entertainment, Inc. dated as of June 30, 1998, as filed with the Company's Annual Report on Form 10-K for the year ended June 30, 1998, is incorporated herein by reference. 3.4 Amendment to Bylaws of Dover Downs Entertainment, Inc. dated June 30, 1998, as filed with the Company's Annual Report on Form 10-K for the year ended June 30, 1998, is incorporated herein by reference. 4.2 Rights Agreement dated as of June 14, 1996 between Dover Downs Entertainment, Inc. and ChaseMellon Shareholder Services, L.L.C. as filed with the Company's Registration Statement Number 333-8147 on Form S-1 dated July 15, 1996, which was declared effective on October 3, 1996, is incorporated herein by reference. 10.1 Credit Agreement among PNC Bank and First Union National Bank and Dover Downs Entertainment, Inc. dated as of March 31, 1999. 10.2 Guaranty and Suretyship Agreement dated March 31, 1999 in favor of PNC Bank and First Union National Bank. 10.7 Project Consulting and Management Agreement between Dover Downs, Inc. and Caesars World Gaming Development Corporation dated May 10, 1995 as filed with the Company's Registration Statement Number 333-8147 on Form S-1 dated July 15, 1996, which was declared effective on October 3, 1996, is incorporated herein by reference. 10.9 Dover Downs Entertainment, Inc. 1996 Stock Option Plan as filed with the Company's Registration Statement Number 333- 8147 on Form S-1 dated July 15, 1996, which was declared effective on October 3, 1996, is incorporated herein by reference. 10.10 Dover Downs Entertainment, Inc. 1991 Stock Option Plan as filed with the Company's Registration Statement Number 333- 8147 on Form S-1 dated July 15, 1996, which was declared effective on October 3, 1996, is incorporated herein by reference. 21.1 Subsidiaries 23.1 Consent of Independent Accountants 27 Financial Data Schedule for current Fiscal Year ended June 30, 1999 (b) Reports on Form 8-K None. SIGNATURES Pursuant to the requirements of Section 13 or 15(d) 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. DATED: September 9, 1999 DOVER DOWNS ENTERTAINMENT, INC. Registrant BY: /s/ Denis McGlynn Denis McGlynn President and Chief Executive Officer and Director Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated: /s/ Timothy R. Horne Vice President-Finance September 9, 1999 Timothy R. Horne /s/ John W. Rollins Chairman of the Board September 9, 1999 John W. Rollins /s/ Henry B. Tippie Vice Chairman of the Board September 9, 1999 Henry B. Tippie /s/ John W. Rollins, Jr. Director September 9, 1999 John W. Rollins, Jr. /s/ Patrick J. Bagley Director September 9, 1999 Patrick J. Bagley /s/ Jeffrey W. Rollins Director September 9, 1999 Jeffrey W. Rollins /s/ Melvin Joseph Director September 9, 1999 Melvin Joseph INDEX TO CONSOLIDATED FINANCIAL STATEMENTS Page(s) Independent Auditors' Report on Consolidated Financial Statements 19 Consolidated Statement of Earnings for the years ended June 30, 1999, 1998 and 1997 20 Consolidated Balance Sheet at June 30, 1999 and 1998 21 Consolidated Statement of Cash Flows for the years ended June 30, 1999, 1998 and 1997 22 Notes to the Consolidated Financial Statements 23-33 Independent Auditors' Report The Shareholders and Board of Directors, Dover Downs Entertainment, Inc.: We have audited the accompanying consolidated balance sheets of Dover Downs Entertainment, Inc. and subsidiaries as of June 30, 1999 and 1998, and the related consolidated statements of earnings and cash flows for each of the years in the three-year period ended June 30, 1999. These consolidated financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Dover Downs Entertainment, Inc. and subsidiaries as of June 30, 1999 and 1998, and the results of their operations and their cash flows for each of the years in the three-year period ended June 30, 1999, in conformity with generally accepted accounting principles. KPMG LLP Philadelphia, Pennsylvania July 23, 1999 CONSOLIDATED STATEMENT OF EARNINGS (Dollars in thousands, except per share data) Year ended June 30, 1999 1998 1997 Revenues: Motorsports $ 68,683 $ 25,874 $ 20,516 Gaming 139,249 115,071 81,162 207,932 140,945 101,678 Expenses: Operating 142,498 96,875 68,559 Depreciation and amortization 7,098 2,707 2,084 General and administrative 11,213 4,410 3,065 160,809 103,992 73,708 Operating earnings 47,123 36,953 27,970 Interest expense (income) 1,352 (702) (269) Earnings before income taxes 45,771 37,655 28,239 Income taxes 18,880 15,742 11,767 Net earnings $ 26,891 $ 21,913 $ 16,472 Earnings per common share: Basic $ .76 $ .72 $ .55 Diluted $ .74 $ .70 $ .54 Average shares outstanding (000): Basic 35,566 30,492 29,712 Diluted 36,585 31,206 30,550 The Notes to the Consolidated Financial Statements are an integral part of these statements. CONSOLIDATED BALANCE SHEET (Dollars in thousands) June 30, 1999 1998 ASSETS Current assets: Cash and cash equivalents $ 10,847 $ 18,694 Accounts receivable 6,706 2,818 Due from State of Delaware 2,932 2,099 Inventories 581 310 Prepaid expenses and other 4,456 2,319 Deferred income taxes 327 328 Total current assets 25,849 26,568 Property, plant and equipment, at cost: Land 29,519 10,563 Casino facility 22,921 11,548 Racing facilities 113,202 44,877 Furniture, fixtures and equipment 24,390 6,444 Construction in progress 7,902 799 197,934 74,231 Less accumulated depreciation (24,021) (18,456) 173,913 55,775 Other assets, net 1,453 10,540 Goodwill, net 53,997 2,894 Total assets $255,212 $ 95,777 LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable $ 4,629 $ 2,343 Purses due horsemen 3,147 1,885 Accrued liabilities 9,407 5,006 Income taxes payable 2,726 3,951 Current portion of long-term debt 235 19 Deferred revenue 15,906 9,755 Total current liabilities 36,050 22,959 Long-term debt 36,725 741 Other liabilities 172 - Deferred income taxes 9,607 712 Commitments (see Notes to the Consolidated Financial Statements) 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: 1999-11,403,684; 1998-5,997,900 1,140 300 Class A common stock, $.10 par value; 55,000,000 shares authorized; issued and outstanding: 1999-24,262,510 shares; 1998-24,498,760 shares 2,426 1,225 Additional paid-in capital 99,683 21,109 Retained earnings 69,409 48,731 Total shareholders' equity 172,658 71,365 Total liabilities and shareholders' equity $255,212 $ 95,777 The Notes to the Consolidated Financial Statements are an integral part of these statements. CONSOLIDATED STATEMENT OF CASH FLOWS (Dollars in thousands) Years ended June 30, 1999 1998 1997 Cash flows from operating activities: Net earnings $ 26,891 $ 21,913 $ 16,472 Adjustments to reconcile net earnings to net cash provided by operating activities: Depreciation and amortization 7,098 2,707 2,084 Loss on disposition of property - 3 - (Increase) decrease in assets, net of effect of acquisition: Accounts receivable (1,645) (1,180) (392) Due from State of Delaware (833) (116) (1,082) Inventories (22) 92 (46) Prepaid expenses (2,044) (1,539) (242) Other assets (155) - - Increase (decrease) in liabilities, net of effect of acquisition: Accounts payable (450) 335 671 Purses due horsemen 1,262 498 (49) Accrued liabilities 464 2,719 (88) Current and deferred income taxes 1,387 1,346 (267) Deferred revenue 2,855 2,213 1,539 Net cash provided by operating activities 34,808 28,991 18,600 Cash flows from investing activities: Investment in Grand Prix Association of Long Beach - (10,540) - Acquisition of business, net of cash acquired - (2,889) - Capital expenditures (50,707) (7,504) (16,841) Cash acquired in business acquisition 1,490 - - Net cash used in investing activities (49,217) (20,933) (16,841) Cash flows from financing activities: Borrowings (repayments) on revolving debt 13,161 - (3,500) Repayment of long-term debt (760) (19) (9) Loan repayments 207 - - Net proceeds from initial public offering - - 16,360 Dividends paid (6,213) (4,878) (2,429) Proceeds from stock options exercised, including related tax benefit 167 30 182 Net cash provided by (used in) financing activities 6,562 (4,867) 10,604 Net (decrease) increase in cash and cash equivalents (7,847) 3,191 12,363 Cash and cash equivalents, beginning of year 18,694 15,503 3,140 Cash and cash equivalents, end of year $ 10,847 $ 18,694 $ 15,503 Supplemental information: Interest paid $ 2,474 $ 61 $ 168 Income taxes paid $ 18,231 $ 14,395 $ 12,034 Non-cash investing and financing activities: Land acquired $ 4,707 $ - $ - Cash paid (3,054) - - Land traded $ 1,653 $ - $ - Stock issued in connection with acquisition $ 80,241 $ - $ - The Notes to the Consolidated Financial Statements are an integral part of these statements. NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS NOTE 1 - Business Operations Dover Downs Entertainment, Inc. (Dover Downs or the Company) is a leading promoter of motorsports events in the United States. The Company operates five motorsports tracks (four permanent facilities and one temporary circuit) in four states, promoting 15 major events annually in the four premier sanctioning bodies in motorsports - the National Association for Stock Car Auto Racing (NASCAR), Championship Auto Racing Teams (CART), the Indy Racing League (IRL) and the National Hot Rod Association (NHRA). Dover Downs also owns and operates the Dover Downs Raceway harness racing track and a 65,000 square foot video lottery (slot) casino at a multi-purpose gaming and entertainment complex in Dover, Delaware. The facility is located in close proximity to the major metropolitan areas of Philadelphia, Baltimore and Washington, D.C. Dover Downs, Inc. is authorized to conduct video lottery operations as a "Licensed Agent" under the Delaware State Lottery Code. Pursuant to Delaware's Horse Racing Redevelopment Act, enacted in 1994, the Delaware State Lottery Office administers and controls the operation of the video lottery. The Company's license from the Delaware Harness Racing Commission must be renewed on an annual basis. In order to maintain its license to conduct video lottery operations, the Company is required to maintain its harness horse racing license. Due to the nature of the Company's business activities, it is subject to various federal, state and local regulations. NOTE 2 - Acquisition On July 1, 1998, the Company completed its acquisition of Grand Prix Association of Long Beach (Grand Prix) through the merger of a wholly owned subsidiary of the Company with and into Grand Prix with Grand Prix surviving as a wholly owned subsidiary of the Company. Grand Prix developed and operates the Grand Prix of Long Beach, an annual temporary circuit event which has been run in the streets of Long Beach, California for 25 years, and owns permanent motorsports facilities in Madison, Illinois (near St. Louis, Missouri) and in Millington, Tennessee (near Memphis, Tennessee). The purchase price was comprised of the conversion of the outstanding Grand Prix common stock into 2,518,229 shares (5,036,458 shares after the stock split) of the Company's stock and assumption by the Company of the outstanding stock options of Grand Prix. On March 27, 1998, the Company acquired 680,000 shares of Grand Prix common stock at $15.50 per share in cash pursuant to two separate stock purchase agreements, at which time the Company owned approximately 14.6 % of the outstanding Grand Prix common stock. The cost of these purchases was recorded as a long-term investment at June 30, 1998. The acquisition qualified as a tax free exchange and was accounted for using the purchase method of accounting for business combinations. The excess of the purchase price over fair market value of the underlying assets of $52,551,000 is being amortized on a straight-line basis over 40 years. The following summarized unaudited pro-forma statement of earnings information gives effect to the Grand Prix transaction as though it had occurred on July 1, 1997, after giving effect to certain adjustments, primarily the amortization of goodwill and additional depreciation expense. The pro-forma financial information, which is for informational purposes only, is based upon certain assumptions and estimates and does not necessarily reflect the results that would have occurred had the transaction taken place at the beginning of the period presented, nor are they necessarily indicative of future consolidated results. For the year ended June 30, 1998 Revenues $170,972,000 Net earnings $ 19,974,000 Earnings per diluted share $ .55 NOTE 3 - Summary of Significant Accounting Policies Consolidation-The consolidated financial statements include the accounts of all subsidiaries. Intercompany transactions and balances among these subsidiaries have been eliminated. Revenue and expense recognition-Tickets to motorsports races are sold and certain expenses are incurred in advance of the race date. Such advance sales and corresponding expenses are recorded as deferred revenue and prepaid expenses, respectively, until the race is held. Gaming revenues represent the net win from video lottery (slot) machine wins and losses, commissions from pari-mutuel wagering and other miscellaneous gaming-related income. Payments to the State of Delaware pursuant to the lottery legislation are reported in operating expenses. 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. Advertising costs-The costs of advertising, promotion and marketing programs are charged to operations as incurred. Earnings per share-The number of weighted average shares used in computing basic and diluted earnings per share (EPS) are as follows (in thousands): 1999 1998 1997 Basic EPS 35,566 30,492 29,712 Effect of options 1,019 714 838 Diluted EPS 36,585 31,206 30,550 Cash and cash equivalents-The Company considers as cash equivalents all highly liquid investments with an original maturity of three months or less. Inventories-Inventories, primarily food, beverage and novelty items, are stated at the lower of cost or market with cost being determined on the first-in, first-out (FIFO) basis. Property, plant and equipment-Property, plant and equipment is stated at cost. Depreciation is computed on a straight-line basis over the following estimated useful lives: Racing and casino facilities 10 - 40 years Furniture, fixtures and equipment 5 - 10 years Interest is capitalized in connection with the construction of major facilities. The capitalized interest is amortized over the estimated useful life of the asset to which it relates. In 1999, $682,000 of interest cost was capitalized. No interest was capitalized in 1998 or 1997. Goodwill-Goodwill represents the excess of the purchase price over the fair value of net assets acquired and is being amortized using the straight-line method over a period of 40 years. Income taxes-Deferred income taxes are provided in accordance with the provisions of Statement of Financial Accounting Standards (SFAS) No. 109, "Accounting for Income Taxes" on all differences between the tax bases of assets and liabilities and their reported amounts in the financial statements based upon enacted statutory tax rates in effect at the balance sheet date. Use of estimates-The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Fair value of financial instruments-The carrying amount reported in the balance sheet for current assets and current liabilities approximates their fair value because of the short maturity of these instruments. The carrying value of long-term debt at June 30, 1999 approximates its fair value based on interest rates available on similar borrowings. Accounting for stock options-The Company adopted the provisions of SFAS No. 123, "Accounting for Stock-Based Compensation", on July 1, 1996. SFAS No. 123 defines a fair-value based method of accounting for stock-based compensation plans, however, it allows the continued use of the intrinsic value method under Accounting Principles Board (APB) Opinion No. 25, "Accounting for Stock Issued to Employees". The Company has elected to continue to use the intrinsic value method. Recent accounting pronouncements-The Company does not expect the adoption of recently issued accounting pronouncements to have a significant impact on its results of operations, financial position or cash flows. NOTE 4 - Indebtedness Long-term debt is as follows: June 30, 1999 1998 Note payable to bank $ 15,500,000 $ - SWIDA loan for Gateway redevelopment 21,460,000 - Note payable - 760,000 36,960,000 760,000 Less: current portion (235,000) (19,000) $ 36,725,000 $ 741,000 On March 31, 1999, the Company entered into a $50,000,000 long-term, unsecured, revolving credit agreement with certain financial institutions. Interest is based, at the Company's option, upon (i) LIBOR plus .75% or (ii) the base rate (the greater of the prime rate or the federal funds rate plus .5%) minus 1%. The agreement, which expires in March 2002, is for seasonal funding needs, capital improvements and other general corporate purposes. The agreement contains certain restrictive covenants and requires the Company to maintain certain financial ratios. At June 30, 1999, $15,500,000 was outstanding under this line of credit at a weighted average interest rate of 6.05%. A subsidiary of the Company entered into an agreement (the "SWIDA loan") with Southwestern Illinois Development Authority ("SWIDA") to receive the proceeds from the "Taxable Sports Facility Revenue Bonds, Series 1996 (Gateway International Motorsports Corporation Project)", a Municipal Bond Offering, in the aggregate principal amount of $21,500,000. The offering of the bonds closed on June 21, 1996. The repayment terms and debt service reserve requirements of the bonds issued in the Municipal Bond Offering correspond to the terms of the SWIDA loan. SWIDA loaned all of the proceeds from the Municipal Bond Offering to the Company's subsidiary for the purpose of the redevelopment, construction and expansion of Gateway International Raceway, and the proceeds of the SWIDA loan were irrevocably committed to complete construction of Gateway International Raceway, to fund interest, to create a debt service reserve fund and to pay for the cost of issuance of the bonds. The Company has established certain restricted cash funds to meet debt service as required by the SWIDA loan, which are held by the trustee (BNY Trust Company of Missouri). At June 30, 1999, $548,000 of the Company's cash balance is restricted by the SWIDA loan. A standby letter of credit for $2,502,000 also was obtained to secure debt service. The SWIDA loan is secured by a first mortgage lien on all the real property owned and a security interest in all property leased by the Company's subsidiary at Gateway International Raceway. The SWIDA loan bears interest at varying rates ranging from 8.35% to 9.25% with an effective rate of approximately 9.1%. The structure of the bonds permits amortization from February 1997 through February 2017 with debt service beginning in 2000 following interest only payments from February 1997 through August 1999. In addition, a portion of the property taxes to be paid by the Company (if any) to the City of Madison Tax Incremental Fund have been pledged to the annual retirement of debt. The scheduled maturities of long-term debt outstanding at June 30, 1999 are as follows: 2000-$235,000; 2001-$685,000; 2002-$16,135,000; 2003- $685,000; 2004-$745,000; and thereafter-$18,475,000. NOTE 5 - Income Taxes The current and deferred income tax provisions (benefit) are as follows: Years ended June 30, 1999 1998 1997 Current: Federal $13,277,000 $12,544,000 $ 9,207,000 State 3,929,000 3,296,000 2,498,000 17,206,000 15,840,000 11,705,000 Deferred: Federal 1,599,000 (78,000) 49,000 State 75,000 (20,000) 13,000 1,674,000 (98,000) 62,000 Total income taxes $18,880,000 $15,742,000 $11,767,000 Deferred income taxes relate to the temporary differences between financial accounting income and taxable income and are primarily attributable to differences between the book and tax basis of property, plant and equipment and net operating loss carryforwards. The Company believes that it is more likely than not that the deferred tax assets will be realized based upon reversals of existing taxable temporary differences and future income. A reconciliation of the effective income tax rate with the applicable statutory federal income tax rate is as follows: Years ended June 30, 1999 1998 1997 Federal tax at statutory rate 35.0% 35.0% 35.0% State taxes, net of federal benefit 5.7% 5.7% 5.7% Other .5% 1.1% 1.0% Effective income tax rate 41.2% 41.8% 41.7% NOTE 6 - Pension Plan Benefits provided by the Dover Downs Entertainment, Inc. Pension Plan are based on years of service and employees' remuneration over their employment with the Company. Pension costs are funded in accordance with the provisions of the Internal Revenue Code. The following table sets forth the plan's funded status and amounts recognized in the Company's consolidated balance sheet: June 30, 1999 1998 Change in benefit obligation: Benefit obligation at beginning of year $ 925,000 $ 531,000 Service cost 306,000 132,000 Interest cost 79,000 53,000 Amendments 122,000 - Actuarial loss 26,000 211,000 Benefits paid (33,000) (2,000) Benefit obligation at end of year 1,425,000 925,000 Change in plan assets: Fair value of plan assets at beginning of year 688,000 464,000 Actual return on plan assets 273,000 104,000 Employer contribution 386,000 122,000 Benefits paid (33,000) (2,000) Fair value of plan assets at end of year 1,314,000 688,000 Funded status (111,000) (237,000) Unrecognized net (gain)/loss (74,000) 111,000 Unrecognized prior service cost 277,000 173,000 Prepaid pension cost $ 92,000 $ 47,000 At June 30, 1999, the assets of the plan were invested 68% in equity funds, 24% in intermediate bond funds and the balance in other short-term interest-bearing accounts. The discount rate in 1999 and 1998 was 8.0% and 7.5%, respectively. The assumed rate of compensation increase was 5% in both years. The expected long-term rate of return on assets was 9% for 1999 and 1998. The components of net periodic pension cost are as follows: Years ended June 30, 1999 1998 1997 Service cost $ 306,000 $ 132,000 $ 61,000 Interest cost 79,000 53,000 32,000 Return on plan assets (273,000) (104,000) (68,000) Net amortization 13,000 32,000 16,000 Deferral of net gain 201,000 63,000 36,000 $ 326,000 $ 176,000 $ 77,000 The Company also maintains a nonqualified, noncontributory defined benefit pension plan for certain employees to restore pension benefits reduced by federal income tax regulations. The cost associated with the plan is determined using the same actuarial methods and assumptions as those used for the Company's qualified pension plan. The Company also maintains a defined contribution 401(k) plan which permits participation by substantially all employees. NOTE 7 - Shareholders' Equity Changes in the components of shareholder's equity are as follows (dollars in thousands, except per share data): $.10 Par $.10 Par Value Value Class A Additional Common Common Paid-in Retained Stock Stock Capital Earnings Balance at June 30, 1996 $ $1,393 $ 4,669 $17,653 Net earnings 16,472 Issuance of common stock, net 288 (180) 16,252 Dividends on common stock, $.08 per share (2,429) Exercise of stock options 22 160 Conversion of Class A shares 6 (6) Balance at June 30, 1997 294 1,229 21,081 31,696 Net earnings 21,913 Dividends on common stock, $.16 per share (4,878) Exercise of stock options 2 28 Conversion of Class A shares 6 (6) Balance at June 30, 1998 300 1,225 21,109 48,731 Net earnings 26,891 Dividends on common stock, $.18 per share (6,213) Exercise of stock options 4 8 155 Grand Prix acquisition 252 80,196 Two-for-one split 556 1,221 (1,777) Conversion of Class A shares 28 (28) Balance at June 30, 1999 $1,140 $2,426 $99,683 $69,409 Holders of Common Stock have one vote per share and holders of Class A Common Stock have ten votes per share. Shares of Class A Common Stock are convertible at any time into shares of Common Stock on a share for share basis at the option of the holder thereof. Dividends on Class A Common Stock cannot exceed dividends on Common Stock on a per share basis. Dividends on Common Stock may be paid at a higher rate than dividends on Class A Common Stock. The terms and conditions of each issue of Preferred Stock are determined by the Board of Directors. No Preferred shares have been issued. The Company has adopted Rights Plans with respect to its Common Stock and Class A Common Stock which include the distribution of Rights to holders of such stock. The Rights entitle the holder, upon the occurrence of certain events, to purchase additional stock of the Company. The Rights are exercisable if a person, company or group acquires 10% or more of the outstanding combined equity of Common Stock and Class A Common Stock or engages in a tender offer. The Company is entitled to redeem each Right for one cent. On July 31, 1998, the Board of Directors authorized a two-for-one stock split to be distributed September 15, 1998. All share and per share information included in the accompanying consolidated financial statements and notes thereto have been adjusted to give retroactive effect to this stock split. On October 3, 1996, the Company completed its initial public offering. The Company issued 1,075,000 shares (2,150,000 shares after the stock split) of the Company's Common Stock and received proceeds of approximately $16,360,000, net of issuance costs of approximately $1,913,000. The Company has two stock option plans pursuant to which the Company's Board of Directors may grant stock options to officers and key employees at not less than 100% of the fair market value at the date of the grant. Options granted under the 1991 Stock Option Plan are exercisable for Class A Common Stock while options granted under the 1996 Stock Option Plan are exercisable for Common Stock. The 1991 Stock Option Plan has been amended so that no additional options may be granted thereunder. The 1991 and 1996 stock options have 7 and 8 year terms, respectively, and generally vest equally over a period of 5 and 6 years from the date of grant, respectively. In all other material respects, the 1991 Stock Option Plan is structured the same as the 1996 Stock Option Plan. The Company applies APB Opinion No. 25 and related interpretations in accounting for its stock option plans. Accordingly, no compensation cost has been recognized for its stock option plans. For disclosure purposes, the Company determined compensation cost for its stock options based upon the fair value at the grant date using the Black Scholes option-pricing model with the following assumptions: expected dividend yield - 1.02%, risk-free interest rate - 6%, an expected life of six and one-half years and volatility of 25%. Had compensation cost been recognized in accordance with SFAS No. 123, the Company's diluted earnings per share disclosed in the accompanying financial statements would be reduced by less than $.01 per share in 1999 and 1998. Option activity was as follows: June 30, 1999 1998 1997 Number of options: Outstanding at beginning of year 1,035,528 945,528 1,170,000 Granted 734,562 135,000 225,528 Exercised (127,684) (45,000) (450,000) Outstanding at June 30 1,642,406 1,035,528 945,528 At June 30: Options available for grant 404,910 1,139,472 1,274,472 Options exercisable 932,545 262,000 45,000 Weighted Average Exercise Price: Options granted $ 4.66 $ 11.58 $ 8.57 Options exercised $ 1.32 $ .67 $ .41 Options outstanding $ 4.38 $ 3.38 $ 2.55 Options exercisable $ 1.59 $ 1.78 $ .67 Included in the 734,562 options and the weighted average exercise price for options granted in 1999 are 512,062 options relating to the Grand Prix Association of Long Beach acquisition. The Grand Prix options were converted into Dover Downs options at an exercise price of $.87 per share. NOTE 8 - Related Party Transactions During the years ended June 30, 1999, 1998 and 1997, the Company purchased certain paving, site work and construction services involving total payments of $432,000, $375,000 and $584,000 from a company wholly-owned by an employee/director. The Company purchased administrative services from Rollins Truck Leasing Corp. and affiliated companies in 1999, 1998 and 1997. The total cost of these services, which have been included in general and administrative expenses in the Consolidated Statement of Earnings, was $380,000, $283,000 and $178,000 in 1999, 1998 and 1997, respectively. In connection with the development of a new racing facility in Wilson County, Tennessee, a subsidiary of the Company purchased options to acquire certain properties being considered as possible locations for the facility. During 1999, a development site was chosen and it was determined that some of the properties under option would not be needed. Prior to the options expiring, an officer/director of the Company expressed an interest in purchasing several of the properties that were not needed for development. The Company assigned its options to the officer/director who subsequently purchased the property. At June 30, 1999, $219,000 was due from this officer/director to reimburse the Company for the cost of the options and certain surveying, engineering and legal costs incurred by the Company. This amount was repaid in July 1999. At the date of the acquisition of Grand Prix Association of Long Beach, $299,000 was due to Grand Prix from certain shareholders/officers for outstanding loans made for the purpose of purchasing Grand Prix common stock. As of June 30, 1999, $92,000 was outstanding and is due December 1, 1999 from a current director of the Company. In the opinion of management of the Company, the foregoing transactions were effected at rates which approximate those which the Company would have realized or incurred had such transactions been effected with independent third parties. NOTE 9 - 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 (dollars in thousands, except per share data): Motorsports Gaming Consolidated Year ended June 30, 1999 Revenue $ 68,683 $139,249 $207,932 Operating earnings 17,197 29,926 47,123 Identifiable assets at year-end 209,540 45,672 255,212 Capital expenditures 36,209 14,498 50,707 Depreciation and amortization 5,829 1,269 7,098 Interest expense $ 1,267 $ 85 $ 1,352 Year ended June 30, 1998 Revenue $ 25,874 $115,071 $140,945 Operating earnings 12,506 24,447 36,953 Identifiable assets at year-end 57,739 38,038 95,777 Capital expenditures 6,085 1,419 7,504 Depreciation and amortization $ 1,237 $ 1,470 $ 2,707 Year ended June 30, 1997 Revenue $ 20,516 $ 81,162 $101,678 Operating earnings 11,079 16,891 27,970 Identifiable assets at year-end 34,801 36,460 71,261 Capital expenditures 9,496 7,345 16,841 Depreciation and amortization $ 981 $ 1,103 $ 2,084 NOTE 10 - Commitments The Company leases the racetrack at the Tennessee State Fairgrounds pursuant to a lease expiring in 2008. Total rental expense charged to the Company is a function of the profitability of the Nashville operation and was $210,000 for the year ended June 30, 1999 and $66,000 for the six months ended June 30, 1998. The Company leases certain property at the Madison, Illinois facility with leases expiring at various dates through 2070. The leases are subject to annual adjustments based on increases in the consumer price index. Total rental payments charged to operations for these leases amounted to $222,000 for the year ended June 30, 1999. The minimum lease payments due under these leases are as follows: 2000 $ 237,000 2001 227,000 2002 214,000 2003 214,000 2004 214,000 Thereafter 4,510,000 In May 1995, Dover Downs, Inc., a subsidiary of the Company, entered into a long-term management agreement with Caesars World Gaming Development Corporation (Caesars). The initial term of the agreement expired in December 1998 and Caesars exercised the first of two additional three-year renewal options which Dover Downs may void if certain financial results are not achieved. Caesars acts as the exclusive agent to supervise, market, manage and operate the Company's video lottery operations. Caesars has been properly licensed by the Delaware State Lottery Office to perform these functions. Caesars' performance-based fees for such services were $6,983,000 in fiscal 1999, $7,094,000 in fiscal 1998 and $5,185,000 in fiscal 1997. Amounts owed to Caesars at June 30, 1999 and 1998 totaled $1,147,000 and $1,246,000, respectively and are included in accrued liabilities. The Company also has expensed and accrued additional amounts which Caesars claims are due as a result of the recent casino expansions, but which the Company does not believe are owed to Caesars. The Company has entered into several sanctioning agreements to conduct various motorsports events at Dover Downs International Speedway and the Nashville Speedway, as well as at newly acquired venues in Long Beach, California; Madison, Illinois and Millington, Tennessee. The Company has held NASCAR-sanctioned events for 31 consecutive years and its subsidiary, Grand Prix Association of Long Beach, has operated the Grand Prix of Long Beach for 25 consecutive years. Nonrenewal of a NASCAR event license or the CART agreement for the Long Beach event would have a material adverse effect on the Company's financial condition and results of operations. NOTE 11 - Quarterly Results - in thousands, except per share data (unaudited) September 30 December 31 March 31 June 30 1999 Revenues $54,654 $37,651 $36,676 $78,951 Gross profit 17,520 7,188 6,851 26,777 Net earnings 8,278 2,513 2,207 13,893 Earnings per common share (diluted) $ .23 $ .07 $ .06 $ .38 1998 Revenues $38,821 $25,962 $31,735 $44,427 Gross profit 14,301 5,236 6,649 15,177 Net earnings 7,833 2,518 3,295 8,267 Earnings per common share (diluted) $ .25 $ .08 $ .11 $ .26 Exhibit 21.1 DOVER DOWNS ENTERTAINMENT, INC. Subsidiaries of Registrant at June 30, 1999 Dover Downs, Inc. Dover Downs International Speedway, Inc. Dover Downs Properties, Inc. Nashville Speedway USA, Inc. Grand Prix Association of Long Beach, Inc. Gateway International Motorsports Corporation, Inc. Gateway International Services Corporation, Inc. Memphis International Motorsports Corporation, Inc. Motorsports Services Corporation of Memphis, Inc. Exhibit 23.1 The Board of Directors and Shareholders Dover Downs Entertainment, Inc. We consent to the incorporation by reference in the registration statement (No. 333-8147) on Form S-8 of Dover Downs Entertainment, Inc. of our report dated July 23, 1999 relating to the consolidated balance sheets of Dover Downs Entertainment, Inc. and subsidiaries as of June 30, 1999 and 1998, and the related consolidated statements of earnings and cash flows for each of the years in the three-year period ended June 30, 1999, which report appears in the June 30, 1999 annual report on Form 10-K of Dover Downs Entertainment, Inc. KPMG LLP Philadelphia, Pennsylvania September 8, 1999 EX-27 2
5 1,000 12-MOS JUN-30-1999 JUN-30-1999 10,847 0 9,638 0 581 25,849 197,934 24,021 255,212 36,050 36,725 0 0 3,566 169,092 255,212 207,932 207,932 0 149,596 0 0 1,352 45,771 18,880 26,891 0 0 0 26,891 .76 .74
EX-10 3 CREDIT AGREEMENT CREDIT AGREEMENT, dated as of March 31, 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"). W I T N E S S E T H: In consideration of 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 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 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. "Closing Date": as of March 31, 1999. "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. "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. "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 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) $3,000,000 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; and provided further, that the gross purchase price of the Borrower's acquisition of Grand Prix Association of Long Beach, Inc. shall be excluded for purposes of calculating compliance with the foregoing proviso with respect to the 1999 fiscal year. "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) March 31, 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 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. 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. 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). 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. 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. (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. (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"). (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. (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. (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. (g) At no time shall there be more than one outstanding Swing Line Loan. (g) Each Swing Line Loan shall be in an original principal amount of $100,000 or a whole multiple thereof. (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. 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 Dover, Delaware not later than 1:00 p.m., Dover time, and the Agent shall by 3:00 p.m., Dover 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. (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. (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. (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). (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. 2.5. Letters of Credit . (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(b), agrees to issue letters of credit ("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 shall: (A) be denominated in Dollars and shall be a standby letter of credit; and (B) expire no later than the earlier of (A) 365 days after its date of issuance and (B) the Termination Date. (iii) Each Letter of Credit shall be subject to ISP98 and, to the extent not inconsistent therewith, the laws of the State of Delaware. (iv) Notwithstanding the provisions of this Section 2.5, the Banks and the Borrower hereby agree that the Issuing Bank may issue, upon the Borrower's request, (A) one or more Letter(s) of Credit to support the issuance of bonds for the benefit of the Borrower which by its terms may expire more than 365 days after its date of issuance and (B) one or more Letter(s) of Credit which by its terms may be extended for additional periods of up to one year each, provided in each case that (1) the initial expiration date (or any subsequent expiration date) of each such Letter of Credit is not later than the Termination Date, and (2) renewal of such Letters of Credit, at the Issuing Bank's discretion, shall be available 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 renewal is otherwise required. (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 date hereof. 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 its own account a closing fee in the amount of $20,000, payable on the Closing Date. (c) The Borrower agrees to pay to the Agent for its own account an annual administrative fee in the amount of $5,000, payable annually in arrears commencing March 1, 2001. (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 Closing 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. 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 Closing 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. 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), Dover 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, 1998 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 December 31, 1998, 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 Quarterly Report on Form 10-Q for the period ended December 31, 1998 or the notes thereto. (b) No Sales. During the period from December 31, 1998, 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 December 31, 1998. 3.2. No Adverse Change . Since December 31, 1998, 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 Closing 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 Closing . The agreement of each Bank to enter into this Agreement and make the initial Extension of Credit is subject to the satisfaction, immediately prior to or concurrently with such Extension of Credit, 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 Closing 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 Closing 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 Closing Date as complete and correct copies thereof by the secretary or assistant secretary of the Borrower, 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 Closing 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 Closing 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 Closing 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 $35,000 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 December 31, 1998 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 Uniform Commercial Code searches made with respect to the Borrower and its Subsidiaries in the states or provinces in which their chief executive offices are located and any other places 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) Projections. The Agent and the Banks shall have received the Borrower's financial projections, prepared on a quarterly basis, for the period from January 1, 1999 through June 30, 2000, including forecasted consolidated balance sheets and statements of income and cash flows. 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 and (ii) a forecasted consolidated balance sheet, statement of income and statement of cash flows for the Borrower and its Subsidiaries for the following fiscal year; (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) $89,500,000 minus the lesser of (A) $10,000,000 and (B) the increase to goodwill for the quarter ending June 30, 1999 as a result of the final allocation of the purchase price to the assets acquired by the Borrower from Grand Prix Association of Long Beach, Inc., 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 December 31, 1998, calculated on a cumulative basis; provided, that for the period from the Closing Date until the date on which the Borrower's financial statements for the quarter ending June 30, 1999 become available, the Borrower shall not permit Consolidated Tangible Net Worth on any day to be less than $79,500,000. 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; (d) a guarantee of up to $5,000,000 in municipal bonds relating to infrastructure improvements at the Borrower's proposed Nashville, Tennessee facility; and (e) 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 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 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 PNC Bank, Delaware and First Union National Bank 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 PNC Bank, Delaware and First Union National Bank 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. 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: Title: PNC BANK, DELAWARE, as Agent and as a Bank By: Name: Jeffrey C. Allen Title: Vice President FIRST UNION NATIONAL BANK By: Name: Title: CREDIT AGREEMENT among DOVER DOWNS ENTERTAINMENT, INC. and THE BANKS PARTY HERETO and PNC BANK, DELAWARE as Agent DATED AS OF MARCH 31, 1999 $50,000,000 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 22 2.6. Fees 26 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 27 2.10. Termination, Reduction and Extension of Commitments 27 2.11. Optional and Mandatory Prepayments of Revolving Credit Loans 29 2.12. Illegality 29 2.13. Requirements of Law 30 2.14. Taxes 31 2.15. Indemnity 32 2.16. Pro Rata Treatment, etc. 33 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 35 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 36 3.6. No Material Litigation 36 3.7. No Default 36 3.8. Taxes 36 3.9. Federal Regulations 37 3.10. ERISA 37 3.11. Investment Company Act; Public Utility Holding Company Act 38 3.12. Purpose of Loans; Letters of Credit 38 3.13. Environmental Matters 38 3.14. No Burdensome Restrictions 39 3.15. Ownership of Borrower and Subsidiaries 39 3.16. Patents, Trademarks, etc. 39 3.17. Ownership of Property 39 3.18. Licenses, etc. 39 3.19. Labor Matters 40 3.20. Material Contracts 40 3.21. Insurance 40 3.22. Senior Debt Status 40 3.23. No Material Misstatements 40 3.24. Year 2000 Compliance 41 SECTION 4. CONDITIONS PRECEDENT 41 4.1. Conditions to Closing 41 4.2. Conditions to Each Extension of Credit 43 SECTION 5. AFFIRMATIVE COVENANTS 44 5.1. Financial Statements 44 5.2. Certificates; Other Information 44 5.3. Payment of Obligations 45 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 46 5.7. Notices 46 5.8. Environmental Laws 47 5.9. Management Changes 47 SECTION 6. NEGATIVE COVENANTS 48 6.1. Financial Condition Covenants 48 6.2. Limitation on Debt 48 6.3. Limitation on Liens 49 6.4. Limitations on Fundamental Changes 49 6.5. Limitation on Sale of Assets 49 6.6. Limitations on Acquisitions, Investments, Loans and Advances 50 6.7. Limitation on Distributions 50 6.8. Transactions with Affiliates 50 6.9. Fiscal Year 51 6.10. Change in Business 51 6.11. Change of Control 51 6.12. Sale and Leaseback 51 6.13. Limitation on Negative Pledge Clauses 51 6.14. Interest Hedge Agreements 51 SECTION 7. EVENTS OF DEFAULT 51 7.1. Events of Default 51 SECTION 8. THE AGENT 54 8.1. Appointment 54 8.2. Delegation of Duties 55 8.3. Exculpatory Provisions 55 8.4. Reliance by Agent 55 8.5. Notice of Default 55 8.6. Non-Reliance on Agent and Other Banks 56 8.7. Indemnification 56 8.8. Agent in its Individual Capacity 57 8.9. Successor Agent 57 8.10. Beneficiaries 57 SECTION 9. MISCELLANEOUS 57 9.1. Amendments and Waivers 57 9.2. Notices 58 9.3. No Waiver; Cumulative Remedies 59 9.4. Survival of Representations and Warranties 59 9.5. Payment of Expenses and Taxes 59 9.6. Successors and Assigns 60 9.7. Disclosure of Information 63 9.8. Adjustments; Set-off 64 9.9. Counterparts 64 9.10. Severability 64 9.11. Integration 65 9.12. Governing Law 65 9.13. Submission To Jurisdiction; Waivers 65 9.14. Acknowledgements 65 9.15. Waivers of Jury Trial 67 EX-10 4 GUARANTY AND SURETYSHIP AGREEMENT THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and entered into as of this 31st day of March, 1999, by 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 (collectively, the "Guarantor"), with an address at 1131 N. duPont Highway, Dover, DE 19903, in consideration of the extension of credit by the banks and other financial institutions (collectively, the "Banks") from time to time party to the Credit Agreement of even date herewith (the "Credit Agreement") among the Banks, PNC BANK, DELAWARE , as Agent (the "Agent"), with an address at 3 The Plaza, Dover, DE 19901, and DOVER DOWNS ENTERTAINMENT, INC. (the "Borrower"), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. Guaranty of Obligations. The Guarantor hereby guarantees, and becomes surety for, the prompt payment and performance of all loans, advances, debts, liabilities, obligations, covenants and duties owing by the Borrower to the Agent and the Banks of any kind or nature, present or future (including, without limitation, any interest accruing thereon after maturity, or after the filing of a petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to the Guarantor or the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether or not evidenced by any note, guaranty or other instrument, arising under the Credit Agreement or any Loan Document (as defined in the Credit Agreement), whether direct or indirect (including those acquired by assignment or participation), absolute or contingent, joint or several, due or to become due, now existing or hereafter arising, and any amendments, extensions, renewals or increases and all costs and expenses of the Agent and the Banks incurred in the modification, enforcement or collection of any of the foregoing, including reasonable attorneys' fees and expenses (collectively, the "Obligations"). If the Borrower defaults under any such Obligations, the Guarantor will pay the amount due to the Agent and the Banks. Nature of Guaranty; Waivers. This is a guaranty of payment and not of collection and the Agent and the Banks shall not be required, as a condition of the Guarantor's liability, to make any demand upon or to pursue any of its rights against the Borrower, or to pursue any rights which may be available to them with respect to any other person who may be liable for the payment of the Obligations. This is an absolute, unconditional, irrevocable and continuing guaranty and will remain in full force and effect until all of the Obligations have been indefeasibly paid in full, and the Agent and the Banks have terminated this Guaranty. This Guaranty will not be affected by any surrender, exchange, acceptance, compromise or release by the Agent or any Bank of any other party, or any other guaranty or any security held by it for any of the Obligations, by any failure of the Agent or any Bank to take any steps to perfect or maintain its lien or security interest in or to preserve its rights to any security or other collateral for any of the Obligations or any guaranty, or by any irregularity, unenforceability or invalidity of any of the Obligations or any part thereof or any security or other guaranty thereof. The Guarantor's obligations hereunder shall not be affected, modified or impaired by any counterclaim, set-off, deduction or defense based upon any claim the Guarantor may have against the Borrower, the Agent or any Bank, except payment or performance of the Obligations. Notice of acceptance of this Guaranty, notice of extensions of credit to the Borrower from time to time, notice of default, diligence, presentment, notice of dishonor, protest, demand for payment, and any defense based upon the Agent's or any Bank's failure to comply with the notice requirements of the applicable version of Uniform Commercial Code Section 9-504 are hereby waived. The Agent and the Banks at any time and from time to time, without notice to or the consent of the Guarantor, and without impairing or releasing, discharging or modifying the Guarantor's liabilities hereunder, may (a) change the manner, place, time or terms of payment or performance of or interest rates on, or other terms relating to, any of the Obligations; (b) renew, substitute, modify, amend or alter, or grant consents or waivers relating to any of the Obligations, any other guaranties, or any security for any Obligations or guaranties; (c) apply any and all payments by whomever paid or however realized including any proceeds of any collateral, to any Obligations of the Borrower in such order, manner and amount as the Agent or any Bank may determine in its sole discretion; (d) deal with any other person with respect to any Obligations in such manner as the Agent or any Bank deems appropriate in its sole discretion; (e) substitute, exchange or release any security or guaranty; or (f) take such actions and exercise such remedies hereunder as provided herein. Repayments or Recovery from Agent or Banks. If any demand is made at any time upon the Agent or any Bank for the repayment or recovery of any amount received by it in payment or on account of any of the Obligations and if the Agent or such Bank repays all or any part of such amount by reason of any judgment, decree or order of any court or administrative body or by reason of any settlement or compromise of any such demand, the Guarantor will be and remain liable hereunder for the amount so repaid or recovered to the same extent as if such amount had never been received originally by the Agent or such Bank. The provisions of this section will be and remain effective notwithstanding any contrary action which may have been taken by the Guarantor in reliance upon such payment, and any such contrary action so taken will be without prejudice to the Agent's or any Bank's rights hereunder and will be deemed to have been conditioned upon such payment having become final and irrevocable. Enforceability of Obligations. No modification, limitation or discharge of the Obligations arising out of or by virtue of any bankruptcy, reorganization or similar proceeding for relief of debtors under federal or state law will affect, modify, limit or discharge the Guarantor's liability in any manner whatsoever and this Guaranty will remain and continue in full force and effect and will be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not been instituted. The Guarantor waives all rights and benefits which might accrue to it by reason of any such proceeding and will be liable to the full extent hereunder, irrespective of any modification, limitation or discharge of the liability of the Borrower that may result from any such proceeding. Events of Default. If any of the following occur (each an "Event of Default"): (i) any Event of Default (as defined in the Credit Agreement); (ii) the failure by the Guarantor to perform any of its obligations hereunder; (iii) the falsity, inaccuracy or material breach by the Guarantor of any written warranty, representation or statement made or furnished to the Agent or any Bank by or on behalf of the Guarantor; or (iv) the termination or attempted termination of this Guaranty, then the Guarantor will, on the demand of the Agent or any Bank, immediately deposit with the Agent in U.S. dollars all amounts due or to become due under the Obligations and the Agent will use such funds to repay the Obligations. Upon the occurrence of any Event of Default, the Agent or any Bank in its discretion may exercise with respect to any collateral any one or more of the rights and remedies provided a secured party under the applicable version of the Uniform Commercial Code. Right of Setoff. In addition to all liens upon and rights of setoff against the money, securities or other property of the Guarantor given to the Agent and the Banks by law, each of PNC Bank, Delaware and First Union National Bank shall have, with respect to the Guarantor's obligations to the such Banks under this Guaranty and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and the Guarantor hereby assigns, conveys, delivers, pledges and transfers to the Agent for the ratable benefit of PNC Bank, Delaware and First Union National Bank all of the Guarantor's right, title and interest in and to, all deposits, moneys, securities and other property of the Guarantor now or hereafter in the possession of or on deposit with, or in transit to, PNC Bank, Delaware or First Union National Bank whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to the Guarantor. Every such right of setoff shall be deemed to have occurred immediately upon the occurrence of an Event of Default hereunder without any action of either PNC Bank, Delaware or First Union National Bank, although PNC Bank, Delaware and/or First Union National Bank may enter such setoff on its respective books and records at a later time. Costs. The Guarantor agrees to pay or reimburse each Bank and the Agent from for all of their costs and expenses incurred in connection with the enforcement or preservation of any rights under this Guaranty, including, without limitation, reasonable fees and disbursement of counsel to the Agent and to the several Banks. Postponement of Subrogation. Until the Obligations are indefeasibly paid in full, the Guarantor postpones and subordinates in favor of the Agent for the ratable benefit of the Banks any and all rights which the Guarantor may have to (a) assert any claim against the Borrower based on subrogation rights with respect to payments made hereunder, and (b) any realization on any property of the Borrower, including participation in any marshalling of the Borrower's assets. Notices. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder must be in writing and will be effective upon receipt if delivered personally, or if sent by facsimile transmission with confirmation of delivery, or by nationally recognized overnight courier service, to the addresses for the Agent and the Guarantor set forth above or to such other address as one may give to the other in writing for such purpose. Preservation of Rights. No delay or omission on the Agent's or any Bank's part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will the Agent's or any Bank's action or inaction impair any such right or power. The Agent's and the Banks' rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Agent or any Bank may have under other agreements, at law or in equity. The Agent or any Bank may proceed in any order against the Borrower, the Guarantor or any other obligor of, or collateral securing, the Obligations. Illegality. In case any one or more of the provisions contained in this Guaranty should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Changes in Writing. No modification, amendment or waiver of any provision of this Guaranty nor consent to any departure by the Guarantor therefrom will be effective unless made in a writing signed by the Agent, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Guarantor in any case will entitle the Guarantor to any other or further notice or demand in the same, similar or other circumstance. Entire Agreement. This Guaranty (including the documents and instruments referred to herein) constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the Guarantor, the Agent and the Banks with respect to the subject matter hereof. Successors and Assigns. This Guaranty will be binding upon and inure to the benefit of the Guarantor, the Agent and the Banks and, other than with respect to Section 6, their respective heirs, executors, administrators, successors and assigns; provided, however, that the Guarantor may not assign this Guaranty in whole or in part without the Agent's prior written consent and the Agent and any Bank at any time may assign this Guaranty in whole or in part. Interpretation. In this Guaranty, unless the Agent and the Guarantor otherwise agree in writing, the singular includes the plural and the plural the singular; references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to; the word "or" shall be deemed to include "and/or", the words "including", "includes" and "include" shall be deemed to be followed by the words "without limitation"; and references to sections or exhibits are to those of this Guaranty unless otherwise indicated. Section headings in this Guaranty are included for convenience of reference only and shall not constitute a part of this Guaranty for any other purpose. If this Guaranty is executed by more than one party as Guarantor, the obligations of such persons or entities will be joint and several. Indemnity. The Guarantor agrees to indemnify each of the Agent, each Bank and its respective directors, officers and employees and each legal entity, if any, who controls the Agent or any Bank (collectively, the "Indemnified Parties") and to hold each Indemnified Party harmless from and against any and all 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 performance of this Guaranty (all of the foregoing, collectively, the "Indemnified Liabilities"); provided, however, that the Guarantor shall have no obligation hereunder to any Indemnified Party with respect to Indemnified Liabilities arising from the gross negligence or willful misconduct of any Indemnified Party. The indemnity agreement contained in this Section shall survive the termination of this Guaranty. Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF DELAWARE. (b) The Guarantor hereby irrevocably and unconditionally: (i) submits for itself and its property in any legal action or proceeding relating to this Agreement 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; (ii) 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; (iii) 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 Guarantor at the address set forth above or at such other address of which the Agent shall have been notified pursuant to Section 10 hereof; (iv) 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 (v) 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. Equal Credit Opportunity Act. If the Guarantor is not an "applicant for credit" under Section 202.2 (e) of the Equal Credit Opportunity Act of 1974 ("ECOA"), the Guarantor acknowledges that (i) this Guaranty has been executed to provide credit support for the Obligations, and (ii) the Guarantor was not required to execute this Guaranty in violation of Section 202.7(d) of the ECOA. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN. The Guarantor acknowledges that it has read and understood all the provisions of this Guaranty, including the waiver of jury trial, and has been advised by counsel as necessary or appropriate. WITNESS the due execution hereof as a document under seal, as of the date first written above, with the intent to be legally bound hereby. DOVER DOWNS, INC. Attest:_______________________ By:___________________________ Print Name:___________________ Print Name:___________________ Title:________________________ Title:________________________ DOVER DOWNS INTERNATIONAL SPEEDWAY, INC. Attest:_______________________ By:___________________________ Print Name:___________________ Print Name:___________________ Title:________________________ Title:________________________ DOVER DOWNS PROPERTIES, INC. Attest:_______________________ By:___________________________ Print Name:___________________ Print Name:___________________ Title:________________________ Title:________________________ GATEWAY INTERNATIONAL MOTORSPORTS CORPORATION Attest:_______________________ By:___________________________ Print Name:___________________ Print Name:___________________ Title:________________________ Title:________________________ GATEWAY INTERNATIONAL SERVICES CORPORATION Attest:_______________________ By:___________________________ Print Name:___________________ Print Name:___________________ Title:________________________ Title:________________________ GRAND PRIX ASSOCIATION OF LONG BEACH, INC. Attest:_______________________ By:___________________________ Print Name:___________________ Print Name:___________________ Title:________________________ Title:________________________ MEMPHIS INTERNATIONAL MOTORSPORTS CORPORATION Attest:_______________________ By:___________________________ Print Name:___________________ Print Name:___________________ Title:________________________ Title:________________________ 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:________________________ -----END PRIVACY-ENHANCED MESSAGE-----