REIMBURSEMENT AND SECURITY AGREEMENT
THIS REIMBURSEMENT AND SECURITY AGREEMENT ("this Agreement"), made as
of September 1, 1999, between DOVER DOWNS ENTERTAINMENT, INC. (the
"Borrower"), NASHVILLE SPEEDWAY, U.S.A., INC. (the "Company") and PNC
BANK, DELAWARE (the "Bank").
RECITALS:
A. The Sports Authority of the County of Xxxxxx (the "Issuer") has
issued its Variable Rate Tax Exempt Infrastructure Revenue Bonds,
Series 1999 in the aggregate principal amount of $25,900,000 (the
"Bonds") under an Indenture of Trust dated as of September 1, 1999
(the "Indenture") between the Issuer, the County of Xxxxxx, Tennessee
(the "County") and First Union National Bank, as Trustee (including
any successor trustee, the "Trustee").
B.
C. Pursuant to the Indenture, the proceeds of the Bonds will be
applied (i) to acquire, construct, improve and install for the use of
the general public and as a supporting system or facility for the
Motor Sports Speedway (the "Speedway Facility") being developed by
the Company, a wholly-owned subsidiary of the Borrower, certain
roads, streets, highways, curbs, bridges, flood control facilities
and utility services, including water, sanitary sewer, electricity,
gas and natural gas and telecommunications (collectively, the
"Infrastructure Improvements") and (ii) to pay a portion of the costs
of issuing the Bonds (collectively, the "Project").
D.
E. In order to provide funds for the payment of principal of and
interest on the Bonds and the purchase price of Bonds which have been
tendered pursuant to the mandatory tender provisions thereof and of
the Indenture, the Company is required pursuant to the Indenture to
cause an irrevocable letter of credit is to be issued to the Trustee.
F.
G. The Borrower, the Bank and certain other banks party thereto
(collectively, the "Banks") and PNC Bank, Delaware, as agent for the
Banks, have entered into a Credit Agreement dated as of March 31,
1999 (as the same may hereafter be modified, amended, restated or
supplemented, the "Credit Agreement") pursuant to which the Banks
have agreed to make certain credit facilities available to the
Borrower, including the issuance of Letters of Credit for the benefit
of the Borrower and its subsidiaries. The Bank is the Issuing Bank
under the Credit Agreement and is authorized to issue Letters of
Credit thereunder. Pursuant to the Credit Agreement, the Borrower
has asked the Bank to issue a Letter of Credit under the Credit
Agreement as the Letter of Credit required by the Indenture. Subject
to the terms and conditions of the Credit Agreement and this
Agreement, the Bank is willing to issue its Irrevocable Letter of
Credit (together with any substitute letter of credit issued pursuant
to the terms hereof, the "Letter of Credit") to the Trustee for the
account of the Borrower and the Company authorizing the Trustee to
make one or more draws on the Bank up to an aggregate of $26,325,754
(as reduced and reinstated from time to time in accordance with the
provisions of the Letter of Credit, the "Letter of Credit Amount"),
of which originally (i) $25,900,000 shall be in respect of principal
of the Bonds, and (ii) $425,754 shall be in respect of accrued
interest on the Bonds.
H.
I. NOW THEREFORE, in consideration of the foregoing and the
undertakings herein set forth and intending to be legally bound, the
Borrower and the Bank hereby agree as follows:
J.
K.
ARTICLE I DEFINITIONS
Section 1.01. Definitions . In this Agreement (except as
otherwise expressly provided for or unless the context otherwise
requires), the following terms have the meanings specified in the
foregoing recitals:
Bank Letter of Credit
Banks Indenture
Bonds Infrastructure Improvements
Borrower Issuer
Company Letter of Credit Amount
County Project
Credit Agreement Trustee
In addition, the following terms shall have the meanings specified
in this Article, unless the context otherwise requires. All other
capitalized terms not otherwise defined herein shall have the meaning
given to them in the Credit Agreement.
"Bond Documents" means the Bonds, the Indenture and any other
agreements or instruments relating thereto.
"Date of Issuance" means the date on which the Letter of Credit is
issued upon request of the Borrower pursuant to Section 2.01.
"Event of Default" shall have the meaning assigned to such term
in Section 6.01.
"Interest Component" has the meaning ascribed to such term in the
Letter of Credit.
"Interest Draft" has the meaning ascribed to such term in the
Letter of Credit.
"Pledged Bonds" means any Bonds delivered to or for the account of
the Bank in connection with a Tender Draft under the Letter of
Credit.
"Principal Component" has the meaning ascribed to such term in the
Letter of Credit.
"Remarketing Agent" means collectively First American Capital
Markets, a division of First American National Bank, and PNC Capital
Markets, Inc., and their respective successors and assigns and any
successor remarketing agent appointed in accordance with Section
10.12 of the Indenture.
"State" means the State of Delaware.
"Stated Expiration Date" has the meaning assigned to such term in
the Letter of Credit.
"Tender Draft" has the meaning assigned to such term in the Letter
of Credit.
"Unremarketed Tendered Bonds" means Bonds which (a) have been
tendered for purchase pursuant to tender option provisions of the
Bonds and the Indenture and (b) have not been successfully remarketed
by the Remarketing Agent prior to 10:00 a.m. on the date of purchase
thereof pursuant to such tender.
Section 1.02. Rules of Construction; Time of Day . In this
Agreement, unless otherwise indicated, (i) defined terms may be used
in the singular or the plural and the use of any gender includes all
genders, (ii) the words, "hereof", "herein", "hereto", "hereby" and
"hereunder" refer to this entire Agreement, (iii) the words
"including", "includes" and "include" shall be deemed to be followed
by the words "without limitation", and (iv) all references to
particular Articles or Sections are references to the Articles or
Sections of this Agreement. References to any time of the day in
this Agreement shall refer to Eastern standard time or Eastern
daylight saving time, as in effect in the State on such day.
ARTICLE II LETTER OF CREDIT AND REIMBURSEMENT
Section 2.01. Issuance of Letter of Credit . The Borrower hereby
requests the Bank to issue the Letter of Credit to the Trustee.
Subject to the conditions precedent set forth in the Credit Agreement
and receipt of copies of the executed Bond Documents, the Bank will
issue to the Trustee, on the date of execution and delivery of this
Agreement, the Letter of Credit in the Letter of Credit Amount and
substantially in the form attached hereto as Exhibit A effective on
the Date of Issuance and expiring on the Stated Expiration Date. On
or prior to each anniversary of the Date of Issuance, the Borrower
may request that the Bank extend the Stated Expiration Date with
respect to the Letter of Credit for an additional one year period, it
being understood that the Bank shall have no obligation to grant any
such extension. Any such extension shall be subject to the terms of
the Credit Agreement and the mutual agreement of the Borrower and the
Banks. The Letter of Credit shall be a Letter of Credit issued under
the Credit Agreement and the Bank shall be entitled to all of the
rights and benefits of the Issuing Bank provided in the Credit
Agreement with respect thereto. All drawings under the Letter of
Credit will be paid with the Bank's own funds subject to all of its
rights to reimbursement hereunder and under the Credit Agreement.
Section 2.02. Reimbursement and Other Payments .
(a) Reimbursement. The Borrower hereby agrees to pay or cause
to be paid to the Bank a sum equal to each amount drawn under the
Letter of Credit on the Business Day such drawing is honored. All
such amounts shall be paid to the Bank at its address and in the
manner set forth in the Credit Agreement.
(b) Transaction and Transfer Charges and Expenses. The
Borrower shall pay to the Bank, all reasonable transaction charges
that the Bank may make for drawings under the Letter of Credit. In
addition, the Borrower shall pay to the Bank on demand any and all
reasonable charges and expenses which the Bank may pay or incur
relative to the Letter of Credit. The Borrower shall pay to the Bank
upon each transfer or amendment of the Letter of Credit in accordance
with its terms a transfer or amendment fee as specified by the Bank,
together with any and all costs and expenses of the Bank incurred in
connection with such transfer or amendment.
Section 2.03. Transfer; Reduction; Reinstatement .
(a) Transfer. The Letter of Credit may be transferred in
accordance with paragraph 9 of the Letter of Credit.
(b) Reduction. The Letter of Credit Amount and the respective
Principal Component and Interest Component thereof shall be
automatically reduced as specified in paragraph 5 of the Letter of
Credit. With respect to any reductions of the Letter of Credit
Amount pursuant to the terms of the Letter of Credit as a result of
Bonds ceasing to be Outstanding, the Bank shall have the right, at
its option, to require the Trustee to promptly surrender the
outstanding Letter of Credit to the Bank and to accept in
substitution therefor a letter of credit in the form of Exhibit A
attached hereto, dated the date of such substitution, for an amount
equal to the Letter of Credit Amount as so reduced, but otherwise
having terms identical to the then outstanding Letter of Credit.
(c) Reinstatement. In the event of a drawing under the Letter
of Credit with an Interest Draft, the Interest Component of the
Letter of Credit Amount shall, as provided in paragraph 6 of the
Letter of Credit and subject to the conditions therein set forth, be
automatically reinstated by an amount equal to the amount of such
drawing. In the event of a drawing under the Letter of Credit with a
Tender Draft, the Principal Component and Interest Component of the
Letter of Credit Amount shall, as provided in paragraph 7 of the
Letter of Credit, be reinstated with respect to such drawing (1) when
and to the extent that (i) the Bank has received reimbursement for
such drawing in immediately available funds (or the Trustee has
received immediately available funds which, pursuant to the
Indenture, the Trustee will immediately remit to the Bank as
reimbursement for such drawing) and (ii) the Trustee has delivered a
certificate to the Bank in respect of such reinstatement in the form
required by paragraph 7 of the Letter of Credit, or (2) when and to
the extent the Bank, at its option, upon the Borrower's or the
Company's request, advises the Trustee in writing that such
reinstatement shall occur, it being understood that the Bank shall
have no obligation to grant any such reinstatement except as set
forth in clause (1) of this sentence.
Section 2.04. Obligations Absolute . The obligations of the
Borrower under this Article shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement, under all circumstances whatsoever,
including without limitation the following circumstances: (i) any
lack of validity or enforceability of the Letter of Credit, the Bond
Documents or any other agreement or document relating thereto; (ii)
any amendment or waiver of or any consent to or departure from the
Letter of Credit, the Bond Documents or any document relating
thereto; (iii) the existence of any claim, set-off, defense or other
right which the Borrower or the Company may have at any time against
the Trustee (or any persons or entities for whom the Trustee may be
acting), the Remarketing Agent, the Bank or any other person or
entity, whether in connection with this Agreement, the transactions
described herein or any unrelated transaction; or (iv) any of the
circumstances contemplated in clauses (1) through (7), inclusive, of
Section 2.06(a). The Borrower understands and agrees that no payment
by it under any other agreement (whether voluntary or otherwise)
shall constitute a defense to its obligations hereunder, except to
the extent that the Bank has been indefeasibly paid in full.
Section 2.05. Indemnification . To the extent permitted by
applicable law, the Borrower hereby indemnifies and holds harmless
the Bank (and its directors, officers, employees and agents) from and
against any and all claims, damages, losses, liabilities, costs or
expenses (including attorneys' fees for counsel of the Bank's choice)
whatsoever which the Bank may incur (or which may be claimed against
the Bank by any person or entity whatsoever) by reason of or in
connection with (a) the issuance or a transfer of, or payment or
failure to pay under, the Letter of Credit, (b) any breach by the
Borrower or the Company of any representation, warranty, covenant,
term or condition in, or the occurrence of any default under, this
Agreement or the Bond Documents, including all fees or expenses
resulting from the settlement or defense of any claims or liabilities
arising as a result of any such breach or default, and (c)
involvement of the Bank in any legal suit, investigation, proceeding,
inquiry or action as a consequence, direct or indirect, of the Bank's
issuance of the Letter of Credit, its entering into this Agreement or
any other event or transaction contemplated by any of the foregoing;
provided the Borrower shall not be required to indemnify the Bank for
any claims, damages, losses, liabilities, costs or expenses to the
extent, but only to the extent, caused by (i) Bank's failure to
observe general banking usage, (ii) the gross negligence or willful
misconduct of the Bank or (iii) the Bank's willful failure to pay
under the Letter of Credit after the presentation to it by the
Trustee of a draft and certificate strictly complying with the terms
and conditions of the Letter of Credit, unless the Bank in good faith
believes that it is prohibited by law or other legal authority from
making such payment. Nothing in this Section is intended to limit
the Borrower's reimbursement obligations contained in Section
2.02(a). The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
Section 2.06. Liability of Bank .
(a) As between the Borrower and the Company and the Bank, the
Borrower and the Company assume all risks of the acts or omissions of
the Trustee with respect to the Trustee's use of the Letter of
Credit. Neither the Bank nor any of its officers or directors shall
be liable or responsible for: (1) the use which may be made of the
Letter of Credit or for any acts or omissions of the Trustee in
connection therewith; (2) the form, validity, sufficiency, accuracy
or genuineness of any documents (including without limitation any
documents presented under the Letter of Credit), or of any statement
therein or endorsement thereon, even if any such documents,
statements or endorsements should in fact prove to be in any or all
respects invalid, insufficient, fraudulent, forged, inaccurate or
untrue; (3) the payment by the Bank against presentation of documents
which do not comply with the terms of the Letter of Credit, including
failure of any documents to bear any reference or adequate reference
to the Letter of Credit, or any other failure by the Trustee to
comply fully with conditions required in order to effect a drawing
under the Letter of Credit; (4) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign the Letter of Credit or the rights or benefit thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid
or ineffective for any reason; (5) errors, omissions, interruptions,
losses or delays in transmission or delivery of any messages by mail,
cable, telegraph, telex, telephone or otherwise; (6) any loss or
delay in the transmission or otherwise of any document or draft
required in order to make a drawing under the Letter of Credit; or
(7) any other circumstances whatsoever in making or failing to make
payment under the Letter of Credit; except only that the Borrower or
the Company shall have a claim against the Bank, and the Bank shall
be liable to the Borrower and the Company, to the extent, but only to
the extent, of any direct, as opposed to consequential, damages
suffered by the Borrower or the Company which the Borrower or the
Company proves were caused solely by (i) the Bank's gross negligence
or willful misconduct or (ii) the Bank's willful failure to pay under
the Letter of Credit after the presentation to it by the Trustee of a
draft and certificate strictly complying with the terms and
conditions of the Letter of Credit, unless the Bank in good faith
believes that it is prohibited by law or other legal authority from
making such payment. In furtherance and not in limitation of the
foregoing, the Bank may accept documents that appear on their face to
be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; provided
that if the Bank shall receive written notification from both the
Trustee and either the Borrower or the Company that documents
conforming to the terms of the Letter of Credit to be presented to
the Bank are not to be honored, the Bank agrees that it will not
honor such documents.
(b) Except for the Bank's obligations under the Letter of
Credit, the Bank shall have no liability to the Borrower, the Company
or any other person as a result of any reduction of the credit rating
of the Bank or any deterioration in the Bank's financial condition,
and the Borrower hereby indemnifies and holds harmless the Bank from
any and all claims, damages, losses, liabilities, costs or expenses
relating to the Letter of Credit asserted by or on behalf of
Borrower, the Company or any affiliate or agent thereof, which the
Bank may incur in connection therewith. No reduction of the credit
rating of the Bank or deterioration in the Bank's financial condition
shall reduce or in any way diminish the obligations of the Borrower
to the Bank under this Agreement, including without limitation the
Borrower's obligation to pay Letter of Credit commitment fees to the
Bank and to reimburse the Bank for any drawing under the Letter of
Credit.
ARTICLE III SECURITY
Section 3.01. Security and Subrogation under Indenture . The
Borrower, the Company and the Bank intend that (a) the Bank will have
the security and benefit of the Bond Documents as provided in the
Indenture and (b) in the event of one or more draws under the Letter
of Credit and the application thereof to the payment of Bonds, the
Bank will be subrogated pro tanto to the rights of the Trustee and
the holders of such Bonds under the Bond Documents and in and to all
funds (except rebate funds) and security held by the Trustee under
the Indenture for the payment of the principal of and interest on
such Bonds, including without limitation all loan funds, construction
funds, project funds, escrow funds, revenue funds, operation funds,
debt service funds, reserve funds, redemption funds and other funds
(except rebate funds) and securities and other instruments comprising
investments thereof. In addition, the Bank shall have any and all
other subrogation rights available to the Bank at law and in equity.
Section 3.02. Pledge of Rights to Certain Funds and Investments .
To secure the Borrower's obligations to the Bank under this
Agreement, the Borrower and the Company hereby pledge to the Bank,
and grant to the Bank a security interest in, all of the Borrower's
and the Company's right, title and interest in and to all funds
(except rebate funds) and investments thereof now or hereafter held
by the Trustee under the Indenture as security for the payment of the
Bonds, including without limitation any and all loan funds,
construction funds, project funds, escrow funds, revenue funds,
operations funds, debt service funds, reserve funds, redemption funds
and other funds and securities and other instruments comprising
investments thereof and interest and other income derived therefrom
held as security for the payment of the Bonds; such pledge,
assignment and grant being under and subject only to the rights of
the holders of the Bonds and the Trustee under the Indenture. Each
of the Borrower and the Company covenants and agrees that it will
defend the Bank's rights and security interests created by this
Section against the claims and demands of all persons. In addition
to its other rights and remedies under this Agreement and the Bond
Documents, the Bank shall have all the rights and remedies of a
secured party under the State Uniform Commercial Code or other
applicable law with respect to the security interests created by this
Section. The Bank's rights under this Section are in addition to,
and not in lieu of, its rights described in Section 3.01.
Section 3.03. Pledged Bonds.
(a) Pledge. To secure the Borrower's obligations to the Bank
under this Agreement, each of the Borrower and the Company hereby
pledges and assigns to the Bank, and grants to the Bank a security
interest in, all of the Borrower's and the Company's right, title and
interest, now owned or hereafter acquired, in and to any and all
Unremarketed Tendered Bonds (together with all income therefrom and
proceeds thereof) purchased pursuant to the Indenture with the
proceeds of a Tender Draft presented under the Letter of Credit for
which neither (i) full reimbursement has been made to the Bank nor
(ii) the Trustee holds sufficient funds which, pursuant to the
Indenture, the Trustee is required to apply on behalf of the Borrower
or the Company to reimburse the Bank in full for such Tender Draft on
the date such Tender Draft is paid by the Bank. Such Unremarketed
Tendered Bonds shall be pledged to the Bank, registered in its name
as pledgee of the Borrower and the Company and delivered to and held
by the Trustee as agent for the Bank under this Section 3.03 or, at
the option of the Bank by written notice to the Borrower and the
Trustee, the pledged Unremarketed Tendered Bonds specified in such
notice shall be delivered to and held by the Bank. Unremarketed
Tendered Bonds which are so pledged and held by the Trustee as agent
for the Bank or by the Bank are herein referred to as "Pledged
Bonds".
(b) Pledged Bond Payments. Any principal of, premium on and
interest on Pledged Bonds which becomes due and payable (including
any due-bills received upon purchase thereof pursuant to the record
date provisions of the Indenture or the Bonds) shall be paid to the
Bank. All sums of money so paid to the Bank in respect of Pledged
Bonds shall be credited against the obligation of the Borrower to
reimburse the Bank, with interest, under Section 2.02(a) for the
amount drawn with a Tender Draft to fund the purchase of such Pledged
Bonds pursuant to the Indenture.
(c) Release of Pledged Bonds. If the Borrower pays or causes
to be paid in full its obligation under Section 2.02(a) for the
reimbursement of the amount (or allocable portion thereof) drawn with
a Tender Draft to fund the purchase of Pledged Bonds pursuant to
Article IV of the Indenture (or if the Trustee has received
immediately available funds which, pursuant to Section 4.4 of the
Indenture, the Trustee is required to pay over promptly to the Bank
in an amount sufficient to pay the Borrower's reimbursement
obligation under Section 2.02(a) with respect to the amount drawn
with such Tender Draft to fund the purchase of such Pledged Bonds),
and provided no Event of Default has occurred and is continuing, the
Bank will release from the pledge of this Agreement and will deliver,
or cause its agent to deliver, such Pledged Bonds to such person or
persons as the Trustee or either the Borrower or the Company may
direct. An amount equal to the principal of, plus accrued interest
on, such Pledged Bonds shall be presumed (absent notice to the
contrary) to be an "amount sufficient" for purposes of this Section
3.03(c) and, upon receipt of such amount by the Trustee for payment
to the Bank as aforesaid, the Trustee shall be automatically
authorized to deliver such Pledged Bonds as aforesaid free from the
pledge of this Agreement, unless the Trustee has received from the
Bank written notice or telephonic notice (which shall thereafter be
confirmed in writing) that such release shall not occur.
(d) Liability of Bank. The Bank shall not be liable for
failure to collect or realize upon the obligations secured by the
Pledged Bonds or any collateral security or guarantee therefor, or
any part thereof, or for any delay in so doing, and the Bank shall
not be under any obligation to take any action whatsoever with regard
thereto.
(e) Representations; Rights and Remedies. The Borrower
represents and warrants to the Bank that the pledge, assignment and
delivery of Pledged Bonds pursuant to this Section 3.03 will create a
valid first lien on and a first perfected security interest in, all
right, title and interest of the Borrower and the Company in and to
the Pledged Bonds, and the proceeds thereof. Each of the Borrower
and the Company covenants and agrees that it will defend the Bank's
right, title and security interest in and to the Pledged Bonds and
the proceeds thereof against the claims and demands of all persons.
In addition to its other rights and remedies under this Agreement and
the Bond Documents, the Bank shall have all the rights and remedies
of a secured party under the Uniform Commercial Code of the State or
other applicable law with respect to the security interests created
by this Section.
ARTICLE IV REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that each of the
representations and warranties made by the Borrower in the Credit
Agreement are true and correct in all material respects as of the
date hereof and that this Agreement has been duly authorized by all
necessary action of the Borrower and the Company and constitutes the
legal, valid and binding obligation of the Borrower and the Company,
enforceable against the Borrower and the Company in accordance with
its terms, subject to general principles of equity and to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar law affecting creditors' rights generally.
ARTICLE V GENERAL COVENANTS
So long as any amount is available under the Letter of Credit or
any amount is due and owing to the Bank hereunder or under the Credit
Agreement, each of the Borrower and the Company covenants that it
will (a) perform and comply with all of the obligations and duties
binding upon it under the Bond Documents and the Credit Agreement, as
the case may be, (b) obtain the consent of the Bank whenever the
consent of the Trustee is required to be obtained under the Bond
Documents, (c) not consent to or enter into any amendment of or
supplement to the Bond Documents without the consent of the Bank, (d)
not exercise its rights under the Bond Documents to direct the Issuer
to call the Bonds for any optional redemption thereof, unless the
Borrower or the Company first demonstrates to the reasonable
satisfaction of the Bank that at the time of such redemption the Bank
will be fully reimbursed for all drawings on the Letter of Credit in
connection with such redemption, and (e) not direct or permit the
conversion or establishment of the interest rate on the Bonds to an
interest rate other than the Weekly Rate (as defined in the
Indenture), unless either (i) the Letter of Credit is being
terminated in connection therewith and the Borrower or the Company
demonstrates to the reasonable satisfaction of the Bank that at the
time of such conversion the Bank will be fully reimbursed for all
drawings on the Letter of Credit at or before such conversion or (ii)
the Bank consents in writing to such conversion or establishment.
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.01. Defaults . Each "Default" as defined in the
Indenture and each "Event of Default" as defined in the Credit
Agreement shall constitute an event of default hereunder ("Event of
Default")
Section 6.02. Remedies . If an Event of Default has occurred and
is continuing uncured, the Bank may:
(a) Notify the Trustee of such Event of Default; direct the
Trustee to declare an Event of Default, as defined in the Indenture,
and declare the principal of the outstanding Bonds, together with
interest accrued thereon, to be due and payable immediately; direct
the Trustee to draw on the Letter of Credit; and direct the Trustee
to exercise remedies under the Bond Documents;
(b) Declare the Borrower's obligations hereunder to be,
whereupon the same shall become, immediately due and payable; and
(c) Exercise, or cause to be exercised, any and all such
remedies as it may have under this Agreement, the Credit Agreement or
any other document or at law or in equity.
Section 6.03. Waivers; Consents . No waiver of, or consent with
respect to, any provision of this Agreement shall in any event be
effective unless the same shall be in writing and signed by the Bank,
and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it was
given.
Section 6.04. No Waiver; Remedies Cumulative . No failure on the
part of the Bank to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; and no single or partial
exercise of any right hereunder shall preclude any other or further
exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies
available under any other document or at law or in equity.
ARTICLE VII MISCELLANEOUS
Section 7.01. Notices . All notices and other communications
provided for hereunder shall be in writing and given or made as
provided in the Credit Agreement and the address for notice to the
Company shall be the same as for the Borrower.
Section 7.02. Successors and Assigns . This Agreement shall
inure to the benefit of and shall be binding upon the parties hereto
and their respective successors and assigns. The Borrower may not
assign its rights under this Agreement without the prior written
consent of the Bank.
Section 7.03. Survival of Covenants . All covenants made by the
Borrower herein and in any document delivered pursuant hereto shall
survive the delivery of this Agreement and the Letter of Credit and
any advances under the Letter of Credit.
Section 7.04. Counterparts . The execution hereof by each party
hereto shall constitute a contract between them for the uses and
purposes herein set forth, and this Agreement may be executed in any
number of counterparts, with each executed counterpart constituting
an original and all counterparts together constituting one agreement.
Section 7.05. Amendments . This Agreement may be amended by an
instrument in writing executed and delivered by the Borrower and the
Bank.
Section 7.06. Severability . If any provision hereof is found by
a court of competent jurisdiction to be prohibited or unenforceable
in any jurisdiction, it shall be ineffective as to such jurisdiction
only to the extent of such prohibition or unenforceability, and such
prohibition or unenforceability shall not invalidate the balance of
such provision as to such jurisdiction to the extent it is not
prohibited or unenforceable, nor invalidate such provision in any
other jurisdiction, nor invalidate the other provisions hereof, all
of which shall be liberally construed in favor of the Bank in order
to effect the provisions of this Agreement.
Section 7.07. Complete Agreement . Taken together with the
Credit Agreement and the other instruments and documents delivered in
compliance herewith, this Agreement is a complete memorandum of the
agreement of the Borrower and the Bank. Waivers or modifications of
any provision hereof must be in writing signed by the part to be
charged with the effect thereof. In the event of any conflict
between the provisions hereof and of the Credit Agreement, the
provisions of the Credit Agreement shall govern. This Agreement
shall constitute, and be governed by and entitled to the benefits of
the provisions of the Credit Agreement applicable to, a Loan
Document.
Section 7.08. Governing Law . This Agreement and the rights and
obligations of the parties hereunder shall be governed by and
construed and interpreted in accordance with the law of the State.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this
Agreement to be duly executed and delivered as of the date first
above written.
DOVER DOWNS ENTERTAINMENT, INC.
By:____________________________
Title:_________________________
NASHVILLE SPEEDWAY, U.S.A., INC.
By:____________________________
Title:_________________________
PNC BANK, DELAWARE
By:____________________________
Title:_________________________
REIMBURSEMENT AND SECURITY AGREEMENT
Between
DOVER DOWNS ENTERTAINMENT, INC.,
NASHVILLE SPEEDWAY, U.S.A., INC.
and
PNC BANK, DELAWARE
Dated as of
September 1, 1999
The Sports Authority of the County of Xxxxxx (Tennessee)
Variable Rate Tax Exempt Infrastructure Revenue Bonds,
Series 1999
TABLE OF CONTENTS
Page
RECITALS 1
ARTICLE I
DEFINITIONS 2
Section 1.01. Definitions 2
Section 1.02. Rules of Construction; Time of Day 3
ARTICLE II
LETTER OF CREDIT AND REIMBURSEMENT 3
Section 2.01. Issuance of Letter of Credit 3
Section 2.02. Reimbursement and Other Payments 4
Section 2.03. Transfer; Reduction; Reinstatement 4
Section 2.04. Obligations Absolute 5
Section 2.05. Indemnification 5
Section 2.06. Liability of Bank 6
ARTICLE III
SECURITY 7
Section 3.01. Security and Subrogation under Indenture 7
Section 3.02. Pledge of Rights to Certain Funds and Investments 7
Section 3.03. Pledged Bonds 8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES 9
ARTICLE V
GENERAL COVENANTS 9
ARTICLE VI
DEFAULTS AND REMEDIES 10
Section 6.01. Defaults 10
Section 6.02. Remedies 10
Section 6.03. Waivers; Consents 10
Section 6.04. No Waiver; Remedies Cumulative 10
ARTICLE VII
MISCELLANEOUS 11
Section 7.01. Notices 11
Section 7.02. Successors and Assigns 11
Section 7.03. Survival of Covenants 11
Section 7.04. Counterparts 11
Section 7.05.
Amendments 11
Section 7.06. Severability 11
Section 7.07. Complete Agreement 11
Section 7.08. Governing Law 12
EXECUTION 12
EXHIBIT A - Form of Letter of Credit
A-1
