Exhibit 10.13
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and
entered into as of this 20th day of February, 2002, by DOVER 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, M&N SERVICES CORP., a Tennessee corporation, and NASHVILLE
SPEEDWAY, USA, INC., a Tennessee corporation (collectively, the "Guarantor"),
with an address at 0000 X. xxXxxx Xxxxxxx, Xxxxx, XX 00000, 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 among the Banks, PNC BANK, DELAWARE, as Agent (the "Agent"),
with an address at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, and DOVER DOWNS
ENTERTAINMENT, INC. (the "Borrower"), and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
In consideration of the foregoing and in order to induce the Banks
to make loans and issue letters of credit to the Borrower under the Credit
Agreement from time to time and for other consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the Guarantor hereby agrees as follows:
1. Guaranty of Obligations. The Guarantor hereby guarantees, and
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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, any Interest Rate Hedge
Agreement (as defined in the Credit Agreement) by and between the Borrower and
any of the Banks 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.
2. Nature of Guaranty; Waivers. This is a guaranty of payment and
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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 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.
3. Repayments or Recovery from Agent or Banks. If any demand is
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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.
4. Enforceability of Obligations. No modification, limitation or
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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
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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.
5. Events of Default. If any of the following occur (each an "Event
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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.
6. Right of Setoff. In addition to all liens upon and rights of
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setoff against the money, securities or other property of the Guarantor given to
the Agent and the Banks by law, each of the Banks shall have, with respect to
the Guarantor's obligations to 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 the
Banks 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 any of the Banks, 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 XXX, Xxxxx, 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 any of the
Banks, although each of the Banks may enter such setoff on its respective books
and records at a later time.
7. Costs. The Guarantor agrees to pay or reimburse each Bank and
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the Agent 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.
8. Postponement of Subrogation. Until the Obligations are
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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.
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9. Notices. All notices, demands, requests, consents, approvals and
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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.
10. Preservation of Rights. No delay or omission on the Agent's or
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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.
11. Illegality. In case any one or more of the provisions contained
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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.
12. Changes in Writing. No modification, amendment or waiver of any
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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.
13. Entire Agreement. This Guaranty (including the documents and
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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.
14. Successors and Assigns. This Guaranty will be binding upon and
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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
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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.
15. Interpretation. In this Guaranty, unless the Agent and the
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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
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more than one party as Guarantor, the obligations of such persons or entities
will be joint and several.
16. Indemnity. The Guarantor agrees to indemnify each of the Agent,
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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
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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.
17. Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE RIGHTS
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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 xxx 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.
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18. Authority of Agent. The Guarantor acknowledges that the rights
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and responsibilities of the Agent under this Guaranty with respect to any action
taken by the Agent or the exercise or non-exercise by the Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guaranty shall, as between the Agent and the
Banks, be governed by the Credit Agreement and by such other agreement with
respect thereto as may exist from time to time among them, but, as between the
Agent and the Guarantor, the Agent shall be conclusively presumed to be acting
as agent for the Banks with full and valid authority so to act or refrain from
acting, and the Guarantor shall not be under any obligation, or entitlement, to
make any inquiry respecting such authority.
19. 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.
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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 INTERNATIONAL SPEEDWAY,
INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx XxXxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxxx XxXxxxx
Title: Vice President - Finance Title: President
DOVER DOWNS PROPERTIES, INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx XxXxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxxx XxXxxxx
Title: Vice President - Finance Title: President
GATEWAY INTERNATIONAL
MOTORSPORTS CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx XxXxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxxx XxXxxxx
Title: Treasurer & Chief Financial Title: President
Officer
GATEWAY INTERNATIONAL
SERVICES CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxxxxxx
Title: Treasurer & Chief Financial Title: President
Officer
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GRAND PRIX ASSOCIATION OF LONG
BEACH, INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx XxXxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxxx XxXxxxx
Title: Treasurer & Chief Financial Title: Chairman of the Board
Officer
MEMPHIS INTERNATIONAL
MOTORSPORTS CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx XxXxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxxx XxXxxxx
Title: Treasurer & Chief Financial Title: President
Officer
M&N SERVICES CORP.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxx
Title: Treasurer & Chief Financial Title: Secretary
Officer
NASHVILLE SPEEDWAY, USA, INC.
Attest: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxx XxXxxxx
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Name: Xxxxxxx X. Xxxxx Name: Xxxxx XxXxxxx
Title: Treasurer Title: Chairman of the Board
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