UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): May 2, 2007
(Exact
name of registrant as specified in its charter)
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Kentucky
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0-1469
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61-0156015
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(State
of incorporation)
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(Commission
file number)
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(IRS
Employer Identification No.)
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700
Central Avenue, Louisville, Kentucky 40208
(Address
of principal executive offices)
(Zip
Code)
(502)
636-4400
(Registrant's
telephone number, including area code)
Check
the
appropriate box below if the Form 8-K is intended to simultaneously satisfy
the
filing obligation of the registrant under any of the following
provisions:
[
] Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[
] Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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[
]
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Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
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[
]
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Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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ITEM
1.01.
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ENTRY
INTO A MATERIAL DEFINITIVE
AGREEMENT
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On
May 2,
2007, Churchill Downs Incorporated (the "Company") as Borrower entered into
an
Amendment No. 1 (the “First Amendment”) to the Amended and Restated Credit
Agreement dated as of September 23, 2005 (the "Agreement") with JPMorgan Chase
Bank, N.A. and the other lending institutions listed in the Agreement (the
"Lenders"), JPMorgan Chase Bank, N.A. as Agent and Collateral Agent (the
"Agent"), with PNC Bank, National Association as Syndication Agent and National
City Bank as Documentation Agent. The Guarantors under the Agreement
continue to be Company subsidiaries Churchill Downs Management Company,
Churchill Downs Investment Company, Churchill Downs Simulcast Productions,
LLC,
Charlson Industries, Inc., Calder Race Course, Inc., Tropical Park, Inc.,
Arlington Park Racecourse, LLC, Arlington OTB Corp., Quad City Downs, Inc.,
CDIP, LLC, CDIP Holdings, LLC, Churchill Downs Louisiana Horseracing Company,
L.L.C., Churchill Downs Louisiana Video Poker Company, L.L.C. and Video
Services, Inc.
The
First
Amendment primarily serves (i) to reduce the maximum aggregate commitment under
the credit facility from $200,000,000 to $120,000,000 and (ii) reduce the
interest rates applicable to amounts borrowed under this facility. Given the
reduction in the maximum aggregate commitment, four lenders that were originally
parties to the Agreement are removed as lenders under the terms of the First
Amendment. These “Departing Lenders” are: Bank of America, N.A.; Branch Banking
& Trust Company; Comerica Bank; and Suntrust Bank.
The
amounts of the letter of credit sub-facility (not to exceed $25,000,000) and
the
swing line commitment (up to a maximum principal amount of $15,000,000) are
not
reduced by the First Amendment. The Company continues to have the ability,
at
any time, with the consent of the Agent but without the consent of the Lenders
except as set forth in the Agreement and subject to satisfaction of the
requirements set forth in the Agreement, to increase the maximum aggregate
commitment by up to an additional $50,000,000, which would increase the maximum
aggregate commitment to $170,000,000. Borrowings made pursuant to the Agreement
may be revolving loans or swing line loans, the combined sum of which may not
exceed the maximum borrowing amount. Amounts borrowed under the Agreement
may be borrowed, repaid and reborrowed from time to time until September 23,
2010.
Borrowings
made pursuant to the Agreement will bear interest, payable the last day of
each
calendar quarter on floating rate advances or at the end of any interest period
on Eurodollar advances, at either (a) the floating rate, described in the
Agreement as the higher of the Agent’s prime rate or the federal funds rate plus
0.50%, or (b) the applicable margin (the "Applicable Margin"), which is
determined with reference to the Company’s leverage ratio plus a rate based upon
the Eurodollar rate (a publicly published rate). The lower end of the range
of
the Applicable Margin is reduced pursuant to the terms of the First Amendment
from 75 to 50 additional basis points. In addition, whereas the Agreement
provided for four “levels” for the Applicable Margin based on the Company’s
leverage ratio, the pricing schedule incorporated into the First Amendment
includes seven levels for the Applicable Margin. Swing line loans continue
to
bear interest at the prime rate of the swing line lender. Under the
Agreement, the Company agreed to pay a commitment fee, payable on the last
day
of each calendar quarter, at rates that range from 0.15% to 0.375% of the
available aggregate commitment, depending on the Company's leverage ratio.
The
First Amendment serves to reduce the range of the commitment fee to rates from
0.10% to 0.25% and similarly increases the number of “levels” for commitment
fees from four to seven.
The
First
Amendment adds a negative covenant that imposes a $100,000,000 cap on the amount
of any investment that the Company may make to construct a gaming and/or slot
machine facility in Florida in the event that laws in that state permit and
the
Company obtains authority to engage in such activities. The First Amendment
also
modifies two of the financial covenants, providing for a one-time increase
in
the maximum leverage ratio for a period of eight consecutive quarters in the
event that the Company constructs a gaming and/or slot facility in Florida
and
increasing the baseline for the minimum consolidated net worth covenant from
$190,000,000 to $290,000,000.
Certain
of the Lenders party to the First Amendment, and their respective affiliates,
have performed, and may in the future perform for the Company and its
subsidiaries, various commercial banking, investment banking, underwriting
and
other financial advisory services, for which they have received, and will
receive, customary fees and expenses.
The
foregoing description of the First Amendment is qualified in its entirety by
reference to the First Amendment, which is filed as Exhibit 10.1 hereto and
incorporated herein by reference.
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ITEM
2.03.
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CREATION
OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE
SHEET ARRANGEMENT OF A
REGISTRANT
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The
information described above under Part (i) of "Item 1.01 Entry Into a Material
Definitive Agreement" is incorporated herein by reference.
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ITEM
9.01.
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FINANCIAL
STATEMENTS AND EXHIBITS
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(d)
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Exhibits
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Numbers
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Description
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10.1
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Amendment
No. 1 to the Amended and Restated Credit Agreement among Churchill
Downs
Incorporated, the guarantors party thereto, the Lenders party thereto
and
JPMorgan Chase Bank, N.A., as agent and collateral agent, with PNC
Bank,
National Association, as Syndication Agent, and National City Bank,
as
Documentation Agent, dated as of May 2, 2007
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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CHURCHILL
DOWNS INCORPORATED
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Date:
May 2, 2007
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/s/
Michael W. Anderson
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Michael
W. Anderson
Vice
President & Treasurer
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EXECUTION
COPY
AMENDMENT
NO. 1
TO
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT (the “Amendment”)
is
made as of May 2, 2007 by and among Churchill Downs Incorporated, a Kentucky
corporation (the “Borrower”),
the
Guarantors, the financial institutions listed on the signature pages hereto
as
the “Lenders” referred to below and JPMorgan Chase Bank, National Association,
as the agent and the collateral agent for the Lenders (the “Agent”).
Capitalized terms used but not otherwise defined herein shall have the
respective meanings given to them in the “Credit Agreement” referred to
below.
W
I T N E S S E T H:
WHEREAS,
the signatories hereto are parties to that
certain Amended and Restated Credit Agreement, dated as of September 23, 2005,
by and among the Borrower, the Guarantors, the financial institutions from
time
to time parties thereto (the “Lenders”)
and
the Agent (as the same may from time to time be amended, restated, supplemented
or otherwise modified, the “Credit
Agreement”);
WHEREAS,
certain existing Lenders (the “Departing
Lenders”)
identified on the signature pages hereof as Departing Lenders have decided
to
cease acting as Lenders;
WHEREAS,
the parties hereto have agreed to amend the Credit Agreement on the terms and
conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Guarantors, the Lenders and the Administrative Agent have agreed to the
following amendment to the Credit Agreement.
1.
Amendments.
Effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section
2
below,
the Credit Agreement is hereby amended as follows:
(a)
Section
1.1
of the
Credit Agreement is hereby amended to insert the following new definitions
thereto in the appropriate alphabetical order as follows:
“ContentCo”
means
CD ContentCo HC, LLC, a Delaware limited liability company existing to hold
Borrower’s interest in TrackNet Media Group, LLC, a Delaware limited liability
company and joint venture formed by Borrower and Magna Entertainment Corp.,
a
Delaware corporation (“Magna”),
which
joint venture will consolidate racing signals, wagering rights, account wagering
and related businesses of the Borrower and its Subsidiaries and third parties,
including without limitation, Magna.
“Florida
Casino Project”
means
the real property located in Miami-Dade County, Florida and the construction
and
development of a gaming and/or slot machine establishment thereon and related
improvements, and other property and assets directly related or ancillary
thereto or used in connection therewith, including, without limitation, any
building, restaurant, hotel, theater, parking facilities, retail shops, land,
golf courses, and other recreation and entertainment facilities, marina, vessel,
barge, ship and equipment, and all other property related thereto to the extent
required under applicable gaming laws, liquor laws or any other applicable
laws
to be registered with, or approved by, or not disapproved by, all applicable
gaming authorities or liquor authorities or any other governmental authorities,
as the case may be.
“HRTV”
means
CD HRTV HC, LLC, a Delaware limited liability company existing to hold
Borrower’s fifty percent (50%) interest in Magna’s horse racing channel HRTV™,
which channel engages or will engage in the production of television broadcast
of racing signals and related businesses of the Borrower and its Subsidiaries
and third parties, including without limitation, Magna.
(b)
Section
1.1
of the
Credit Agreement is hereby amended to restate the definition of “Permitted
Investment” in its entirety as follows:
“Permitted
Investment”
means
(i) a possible investment of up to $90,000,000 in Wagerco; (ii) a possible
investment of up to $10,000,0000 in ContentCo; and (iii) a possible investment
of up to $10,000,000 in HRTV.
(c)
Section
1.1
of the
Credit Agreement is hereby amended to restate the following definitions in
their
entirety as follows:
“Consolidated
Indebtedness” means at any time the Indebtedness of the Loan Parties calculated
on a consolidated basis as of such time in accordance with Agreement Accounting
Principles. The Indebtedness of any Excluded Subsidiary shall not be included
in
Consolidated Indebtedness.
“Consolidated
Net Income” means, with reference to any period, the net income (or loss) of all
of the Loan Parties calculated on a consolidated basis for such period in
accordance with Agreement Accounting Principles. The net income (or loss) of
any
Excluded Subsidiary shall not be included in Consolidated Net
Income.
“Consolidated
Net Worth” means as of any date of determination total stockholders’ equity of
all of the Loan Parties as of such date determined and consolidated in
accordance with Agreement Accounting Principles. The total stockholders’ equity
of any Excluded Subsidiary shall not be included in Consolidated Net
Worth.
“Consolidated
Rentals” means, with reference to any period, the Rentals of the Loan Parties
calculated on a consolidated basis for such period in accordance with Agreement
Accounting Principles. The Rentals of any Exlcuded Subsidiary shall not be
included in Consolidated Rentals.
“Excluded
Subsidiaries” means any Excluded Entity which is a Subsidiary of any of the Loan
Parties. The Excluded Subsidiaries on the date of Amendment No. 1 to this
Agreement are: Churchill Downs Pennsylvania Company (formerly known as Churchill
Downs California Foodservices Company), Tracknet, LLC, Churchill Downs
California Company, Churchill Downs California Fall Operating Company, Fair
Grounds International Ventures, L.L.C., a Louisiana limited liability company,
F.G. Staffing Services, Inc., a Louisiana corporation, CD ContentCo HC, LLC,
a
Delaware limited liability company and CD HRTV HC, LLC, a Delaware limited
liability company.
(d)
Section
2.1
is
hereby amended to (x) delete in its entirety the sentence reading as follows:
“On the date of this Agreement, the amount of the Aggregate Commitment is
$200,000,000.” and (y) delete the reference to “$250,000,000” appearing therein
and substitute “$170,000,000” in lieu thereof.
(e)
Each
of
Section
2.22.1
and
Section
2.22.5
of the
Credit Agreement is hereby amended to delete the reference to “$250,000,000”
appearing therein and substitute “$170,000,000” in lieu thereof.
(f)
Section
5.5
of the
Credit Agreement is hereby amended to delete the reference to “December 31,
2004” appearing therein and substitute “December 31, 2006” in lieu
thereof.
(g)
Section
6.24.2
of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
6.24.2
Leverage
Ratio.
The
Borrower will not permit the Leverage Ratio, determined as of the end of each
of
its fiscal quarters, of (i) Consolidated Funded Indebtedness to (ii)
Consolidated Adjusted EBITDA for the then most-recently ended four fiscal
quarters to be greater than 3.25 to 1.0; provided
that,
during the term of this Agreement, for a single period of eight (8) consecutive
fiscal quarters, such period beginning with the fiscal quarter during which
the
Borrower’s aggregate amount of Capital Expenditures in respect of the Florida
Casino Project (from the inception of such project) exceeds $10,000,000, the
Leverage Ratio may be greater than 3.25 to 1.0 but less than or equal to 4.0
to
1.0; provided
that
from and after the end of such period of consecutive fiscal quarters, the
Leverage Ratio shall not be greater than 3.25 to 1.0.
(h)
Section
6.24.3
of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
6.24.3
Minimum
Net Worth.
The
Borrower will at all times maintain Consolidated Net Worth of not less than
(a)
$190,000,000 as of the Closing Date, and (b) beginning with Borrower’s fiscal
year ending December 31, 2006, the sum of (i) $290,000,000 plus (ii) 50% of
Consolidated Net Income earned in each fiscal year (without deduction for
losses), plus (iii) 100% of the proceeds from any public and/or private offering
and/or sale of any common and/or preferred stock and/or other equity security,
and/or any note, debenture, or other security convertible, in whole or in part,
to common and/or preferred stock and/or other equity security, net of reasonable
expenses, commissions and fees associates with such sale, from and after the
date of this Agreement.
(i)
A
new
Section
6.37
is
hereby inserted into the Credit Agreement immediately following the existing
Section
6.36
as
follows:
6.37
Florida
Casino Project Capital Expenditures.
The
Borrower will not, nor will it permit any of its Subsidiaries to, expend, or
be
committed to expend, an aggregate amount in excess of $100,000,000 for Capital
Expenditures in connection with the Florida Casino Project. As used herein,
“Capital
Expenditures”
means,
without duplication, any expenditure or commitment to expend money for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP.
(j)
Section
7.3
of the
Credit Agreement is hereby amended to insert a reference to “and/or 6.37” at the
end thereof.
(k)
The
Commitments of the Lenders are amended and restated as set forth on Exhibit
A
hereto.
Each Departing Lender shall cease to be a Lender for all purposes under the
Credit Agreement. The Borrower hereby agrees to compensate each Lender
(including each Departing Lender) for any and all losses, costs and expenses
incurred by such Lender in connection with the sale and assignment of any
Eurodollar Loans and the reallocation described in Section 2(a) below, in each
case on the terms and in the manner set forth in Section
3.4
of the
Credit Agreement.
(l)
The
Pricing Schedule is hereby amended and restated in its entirety as set forth
on
Exhibit
B
hereto.
Such Pricing Schedule shall be effective as of the first Monday following the
date hereof and, beginning on such date, the Applicable Margin and the
Applicable Fee Rate shall be calculated by reference to such Pricing Schedule
based on the Leverage Ratio reflected in the most recent financial statements
and compliance certificate delivered pursuant to Section
6.1
of the
Credit Agreement and adjustments to the applicable Level shall thereafter be
effected in accordance with the Pricing Schedule.
(m)
Schedules
1,
2,
3,
4.1(i)(p),
4.1(i)(q),
5.22,
5.23,
5.24,
5.25
and
5.26 of
the
Credit Agreement are hereby amended and restated in their entirety as set forth
on Annex
I
hereto.
2.
Conditions
of Effectiveness.
This
Amendment shall become effective and be deemed effective as of the date hereof,
if, and only if, (a) the Agent and the Lenders shall have administered the
reallocation of the Aggregate Outstanding Credit Exposure among the Lenders
such
that after giving effect to the amendments to the Commitments pursuant hereto,
each Lender’s Pro Rata Share of the Aggregate Outstanding Credit Exposures is
equal to such Lender’s Pro Rata Share of the total Commitments, (b) the Agent
shall have received (i) executed copies of this Amendment from the Borrower,
the
Guarantors and the Lenders (including each Departing Lender) and (ii) for the
account of each Lender (other than a Departing Lender) an amendment fee in
the
amount of $7,500.
3.
Representations
and Warranties of the Loan Parties.
The Loan
Parties jointly and severally hereby represent and warrant as
follows:
(a)
Each
Loan
Party has the power and authority and legal right to execute and deliver this
Amendment and the Credit Agreement (as modified hereby) and to perform its
obligations hereunder and thereunder. The execution and delivery by each Loan
Party of this Amendment and the performance of its obligations hereunder and
under the Credit Agreement (as modified hereby) have been duly authorized by
proper corporate proceedings, and this Amendment and the Credit Agreement (as
modified hereby) constitute legal, valid and binding
obligations of such Loan Party, enforceable against such Loan Party in
accordance with its terms
except
as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditors’ rights generally.
(b)
As
of the
date hereof and giving effect to the terms of this Amendment, (i) no Default
or
Unmatured Default has occurred and is continuing and (ii) the representations
and warranties of the Loan Parties set forth in the Credit Agreement (as
modified hereby) and the other Loan Documents are true and correct in all
material respects except to the extent any such representation or warranty
is
stated to relate solely to an earlier date, in which case such representation
or
warranty shall have been true and correct on and as of such earlier
date.
4.
Reference
to and Effect on the Credit Agreement and Loan
Documents.
(a)
Upon
the
effectiveness of this Amendment, each reference to the Credit Agreement in
the
Credit Agreement or any other Loan Document shall mean and be a reference to
the
Credit Agreement as modified hereby. This Amendment is a Loan Document pursuant
to the Credit Agreement and shall (unless expressly indicated herein or therein)
be construed, administered, and applied, in accordance with all of the terms
and
provisions of the Credit Agreement.
(b)
Each
Loan
Party, by its signature below, hereby (i) agrees that this Amendment and the
transactions contemplated hereby shall not limit or diminish the obligations
of
the Company arising under or pursuant to the Credit Agreement and the other
Loan
Documents to which it is a party, (ii) reaffirms all of its obligations under
the Credit Agreement and each and every other Loan Document to which it is
a
party (including, without limitation, each applicable Collateral Document),
(iii) reaffirms all Liens on the Collateral which have been granted by it in
favor of the Administrative Agent (for itself and the Lenders) pursuant to
any
of the Loan Documents, and (iv) acknowledges and agrees that, except as
specifically modified above, the Credit Agreement and all other Loan Documents
executed and/or delivered in connection therewith shall remain in full force
and
effect and are hereby reaffirmed, ratified and confirmed.
(c)
The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy
of
the Administrative Agent or the Lenders, nor constitute a waiver of or consent
to any modification of any provision of the Credit Agreement or any other Loan
Documents executed and/or delivered in connection therewith.
5.
GOVERNING
LAW.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE COMMONWEALTH OF KENTUCKY,
BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
6.
Headings.
Section
headings in this Amendment are included herein for convenience of reference
only
and shall not constitute a part of this Amendment for any other
purpose.
7.
Counterparts.
This
Amendment may be executed by one or more of the parties hereto on any number
of
separate counterparts (including by means of facsimile or electronic
transmission), and all of said counterparts taken together shall be deemed
to
constitute one and the same instrument.
*******
IN
WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first above written.
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Borrower:
CHURCHILL
DOWNS INCORPORATED
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
VP Finance & Treasurer
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Guarantors:
CHURCHILL
DOWNS MANAGEMENT COMPANY
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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CHURCHILL
DOWNS INVESTMENT COMPANY
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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CHURCHILL
DOWNS SIMULCAST PRODUCTIONS, LLC
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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CHARLSON
INDUSTRIES, INC.
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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CALDER
RACE COURSE, INC.
By: /s/
Steven P.
Sexton____________
Name:
Steven P. Sexton
Title:
Vice President
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TROPICAL
PARK, INC.
By: /s/
Steven P.
Sexton____________
Name:
Steven P. Sexton
Title:
Vice President
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ARLINGTON
PARK RACECOURSE, LLC
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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ARLINGTON
OTB CORP.
By: /s/
Debra A.
Wood____________
Name:
Debbie A. Wood
Title:
Secretary
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QUAD
CITY DOWNS, INC.
By: /s/
Debra A.
Wood____________
Name:
Debbie A. Wood
Title:
Secretary
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CDIP,
LLC
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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CDIP
HOLDINGS, LLC
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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CHURCHILL
DOWNS LOUISIANA HORSERACING COMPANY, L.L.C.
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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CHURCHILL
DOWNS LOUISIANA VIDEO POKER COMPANY, L.L.C.
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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VIDEO
SERVICES, INC.
By: /s/
Michael Anderson__________
Name:
Michael Anderson
Title:
Treasurer
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JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION,
as
a Lender, as Agent and as Collateral Agent
By: /s/
H. J.
Brenner______________
Name:
H. J. Brenner
Title:
S.V.P.
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PNC
BANK, NATIONAL ASSOCIATION,
as
a Lender, as LC Issuer and as Syndication Agent
By: /s/
Shelly B.
Stephenson_________
Name:
Shelly B. Stephenson
Title: Vice
President
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NATIONAL
CITY BANK (successor in interest to National City Bank of
Kentucky),
as
a Lender and as Documentation Agent
By: /s/
Rob
King____________________
Name:
Rob King
Title:
Senior Vice President
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FIFTH
THIRD BANK, KENTUCKY, INC.,
as
a Lender
By: /s/
David
O'Neal________________
Name:
David O'Neal
Title:
Vice President
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U.S.
BANK NATIONAL ASSOCIATION,
as
a Lender
By: /s/
Mark
Wheeler______________
Name:
Mark Wheeler
Title:
Executive Vice President
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BANK
OF AMERICA, N.A.,
as
a Departing Lender
By: /s/
Lisa B.
Barksdale___________
Name:
Lisa B. Barksdale
Title:
V.P.
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BRANCH
BANKING & TRUST COMPANY,
as
a Departing Lender
By: /s/
Johnny L.
Perry_______________
Name:
Johnny L. Perry
Title:
Senior Vice President
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COMERICA
BANK,
as
a Departing Lender
By: /s/
Heather
Whiting_____________
Name:
Heather Whiting
Title:
Vice President
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SUNTRUST
BANK,
as
a Departing Lender
By: /s/
Kap
Yarbrough_____________
Name:
Kap Yarbrough
Title:
Vice President
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EXHIBIT
A
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Lender
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Commitment
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JPMorgan
Chase Bank, National Association
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$30,000,000
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PNC
Bank, National Association
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$30,000,000
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National
City Bank
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$20,000,000
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Fifth
Third Bank, Kentucky, Inc.
|
$20,000,000
|
|
U.S.
Bank National Association
|
$20,000,000
|
|
TOTAL:
|
$120,000,000
|
EXHIBIT
B
PRICING
SCHEDULE
|
Applicable
Margin
|
Level
I Status
|
Level
II Status
|
Level
III Status
|
Level
IV Status
|
Level
V Status
|
Level
VI Status
|
Level
VII Status
|
|
Eurodollar
Rate
|
0.50%
|
0.625%
|
0.75%
|
0.875%
|
1.00%
|
1.25%
|
1.50%
|
|
Floating
Rate
|
0%
|
0%
|
0%
|
0%
|
0%
|
0%
|
0%
|
|
Applicable
Fee Rate
|
Level
I Status
|
Level
II Status
|
Level
III Status
|
Level
IV Status
|
Level
V Status
|
Level
VI Status
|
Level
VII Status
|
|
Commitment
Fee
|
0.10%
|
0.12%
|
0.15%
|
0.15%
|
0.20%
|
0.20%
|
0.25%
|
For
the
purposes of this Schedule, the following terms have the following meanings,
subject to the final paragraph of this Schedule:
“Financials”
means the annual or quarterly financial statements of the Borrower delivered
pursuant to Section 6.1(i) or (ii).
“Level
I
Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, the Leverage Ratio is less
than 1.00 to 1.00.
“Level
II
Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not
qualified for Level I Status and (ii) the Leverage Ratio is greater than or
equal to 1.00 to 1.00 and less than 1.50 to 1.00.
“Level
III Status” exists at any date if, as of the last day of the fiscal quarter of
the Borrower referred to in the most recent Financials, (i) the Borrower has
not
qualified for Level I Status or Level II Status and (ii) the Leverage Ratio
is
greater than or equal to 1.50 to 1.00 and less than 2.00 to 1.00.
“Level
IV
Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not
qualified for Level I Status or Level II Status and (ii) the Leverage Ratio
is
greater than or equal to 2.00 to 1.00 and less than 2.50 to 1.00.
“Level
V
Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not
qualified for Level I Status or Level II Status and (ii) the Leverage Ratio
is
greater than or equal to 2.50 to 1.00 and less than 3.00 to 1.00.
“Level
VI
Status” exists at any date if, as of the last day of the fiscal quarter of the
Borrower referred to in the most recent Financials, (i) the Borrower has not
qualified for Level I Status or Level II Status and (ii) the Leverage Ratio
is
greater than or equal to 3.00 to 1.00 and less than 3.25 to 1.00.
“Level
VII Status” exists at any date if the Borrower has not qualified for Level I
Status, Level II Status, Level III Status, Level IV Status, Level V Status
or
Level VI Status.
“Status”
means either Level I Status, Level II Status, Level III Status, Level IV Status,
Level V Status, Level VI Status and Level VII Status.
The
Applicable Margin and Applicable Fee Rate shall be determined in accordance
with
the foregoing table based on the Borrower’s Status, adjusted quarterly and
measured on the most recent four fiscal quarters ending on the determination
date as reflected in the then most recent Financials. Adjustments, if any,
to
the Applicable Margin or Applicable Fee Rate shall be effective five Business
Days after the Agent has received the applicable Financials. If the Borrower
fails to deliver the Financials to the Agent at the time required pursuant
to
Section 6.1, then the Applicable Margin and Applicable Fee Rate shall be the
highest Applicable Margin and Applicable Fee Rate set forth in the foregoing
table until five days after such Financials are so delivered.
Exhibits
and schedules to Exhibit 10.1, other than Exhibits A and B, have been
intentionally omitted because they are not material. The registrant agrees
to
furnish such omitted exhibits and schedules supplementally to the Commission
upon request.