EXHIBIT 4.10
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as
of June 1, 1999, among IMS SYSTEMS LIMITED PARTNERSHIP, a North Carolina limited
partnership ("IMS"), SPEEDWAY SCREEN PRINTING, LLC, a North Carolina limited
liability company ("SPEEDWAY SCREEN PRINTING," and collectively with IMS, the
"GUARANTEEING SUBSIDIARIES"), SPEEDWAY MOTORSPORTS, INC., a Delaware corporation
(the "COMPANY"), the other Guarantors (as listed on the signature pages to the
Indenture referred to below) and U.S. BANK TRUST NATIONAL ASSOCIATION, as
trustee under the Indenture referred to below (the "TRUSTEE").
WITNESSETH
WHEREAS, the Company and the other Guarantors have heretofore executed
and delivered to the Trustee an indenture (the "INDENTURE"), dated as of May 11,
1999 providing for the issuance in an aggregate principal amount of up to
$325,000,000 of the Company's 8 1/2% Senior Subordinated Notes due 2007 (the
"NOTES");
WHEREAS, the Indenture provides that under certain circumstances each
of the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which each of the Guaranteeing Subsidiaries
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "NOTE
GUARANTEE");
WHEREAS, the partnership interests of IMS are owned as follows: a 1%
general partnership interest by the Company and a 99% limited partnership
interest by SPR Acquisition Corporation, a California corporation and
wholly-owned subsidiary of the Company;
WHEREAS, Speedway Screen Printing is a wholly-owned subsidiary of
Speedway Systems, LLC, a North Carolina limited liability company that is
wholly-owned, in turn, by IMS; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, each of the
Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. Each of the Guaranteeing Subsidiaries hereby
agrees as follows (notwithstanding anything to the contrary in this Supplemental
Indenture, such agreements of the Guaranteeing Subsidiaries shall be construed
as identical to those agreements made by the Guarantors under the Indenture, and
the obligations and rights of the Guaranteeing Subsidiaries hereunder shall be
no more and no less than those of the Guarantors under the Indenture):
(1) Along with all Guarantors named in the Indenture, to jointly and
severally unconditionally Guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the Notes or
the obligations of the Company under this Supplemental Indenture, the Indenture
or the Notes, that:
(1) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption
or otherwise, and interest on the overdue principal of and interest on
the Notes, if any, if lawful, and all other obligations of the Company
to the Holders or the Trustee under this Supplemental Indenture, the
Indenture or the Notes will be promptly paid in full or performed, all
in accordance with the terms of this Supplemental Indenture, the
Indenture and the Notes; and
(2) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same will be promptly paid
in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, each of the Guaranteeing
Subsidiaries and the Guarantors will be jointly and severally obligated
to pay the same immediately.
(2) The obligations of the Guaranteeing Subsidiaries hereunder and
under the Indenture shall be unconditional, irrespective of the validity,
regularity or enforceability of this Supplemental Indenture, the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof, of the
Indenture or of the Notes, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
(3) The following is hereby waived by each of the Guaranteeing
Subsidiaries: diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever.
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(4) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained herein, and in the Notes and the
Indenture, and each of the Guaranteeing Subsidiaries accepts all obligations of
a Guarantor under the Indenture.
(5) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guaranteeing Subsidiaries or the Guarantors, or
any Custodian, Trustee, liquidator or other similar official acting in relation
to either the Company, the Guaranteeing Subsidiaries or the Guarantors, any
amount paid by any of them to the Trustee or such Holder, this Note Guarantee,
to the extent theretofore discharged, shall be reinstated in full force and
effect.
(6) Each of the Guaranteeing Subsidiaries agrees that they shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby and by the Indenture until payment in full of
all obligations guaranteed hereby and by the Indenture.
(7) As between the Guarantors and the Guaranteeing Subsidiaries, on the
one hand, and the Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby and by the Indenture may be accelerated as
provided in Article VI of the Indenture for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby and by the
Indenture, and (y) in the event of any declaration of acceleration of such
obligations as provided in Article VI of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guaranteeing Subsidiaries for the purpose of this Note Guarantee.
(8) The Guaranteeing Subsidiaries and the Guarantors shall have the
right to seek contribution from any non-paying Guaranteeing Subsidiary or
Guarantor so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee.
(9) Notwithstanding anything to the contrary in this Supplemental
Indenture or in Article XI of the Indenture, the aggregate amount of the
Obligations guaranteed hereunder and under the Indenture by any Guaranteeing
Subsidiary shall be reduced to the extent necessary to prevent the Note
Guarantee of such Guaranteeing Subsidiary from violating or becoming voidable
under any law relating to fraudulent conveyance or fraudulent transfer or
similar laws affecting the rights of creditors.
3. Execution and Delivery. Notwithstanding Section 11.02 of the
Indenture, each of the Guaranteeing Subsidiaries agrees that the Note Guarantees
shall remain in full force and effect notwithstanding any failure to endorse on
each Note a notation of such Note Guarantee.
4. Guaranteeing Subsidiaries May Consolidate Etc. on Certain Terms.
(1) Except as set forth in Articles IV and V of the Indenture, nothing
contained in this Supplemental Indenture, in the Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guaranteeing Subsidiary
with or into the Company or shall prevent any sale or
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conveyance of the property of a Guaranteeing Subsidiary as an entirety or
substantially as an entirety, to the Company.
(2) Except as set forth in Article IV of the Indenture, nothing
contained in this Supplemental Indenture, in the Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guaranteeing Subsidiary
with or into a corporation or corporations other than the Company (whether or
not affiliated with the Guaranteeing Subsidiary), or successive consolidations
or mergers in which a Guaranteeing Subsidiary or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of the
property of a Guaranteeing Subsidiary as an entirety or substantially as an
entirety, to a corporation other than the Company (whether or not affiliated
with the Guaranteeing Subsidiary) authorized to acquire and operate the same;
PROVIDED, HOWEVER, that (i) each Guaranteeing Subsidiary hereby covenants and
agrees that, upon any such consolidation, merger, sale or conveyance, the Note
Guarantee, and the due and punctual performance and observance of all of the
covenants and conditions of this Supplemental Indenture and the Indenture to be
performed by such Guaranteeing Subsidiary, shall be expressly assumed (in the
event that the Guaranteeing Subsidiary is not the surviving corporation in the
merger) by supplemental indenture reasonably satisfactory in form to the
Trustee, executed and delivered to the Trustee, by the corporation formed by
such consolidation, or into which the Guaranteeing Subsidiary shall have been
merged, or by the corporation which shall have acquired such property and (ii)
immediately after giving effect to such transaction, no Default or Event of
Default would exist. In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee and the due and punctual performance of all of
the covenants and conditions of this Supplemental Indenture and the Indenture to
be performed by the Guaranteeing Subsidiary, such successor corporation shall
succeed to and be substituted for the Guaranteeing Subsidiary with the same
effect as if it had been named herein as a Guaranteeing Subsidiary. Such
successor corporation thereupon may cause to be signed any or all of the
Subsidiary Guarantees to be endorsed upon all of the Notes issuable under the
Indenture which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Subsidiary Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in accordance with the
terms of the Indenture as though all of such Subsidiary Guarantees had been
issued at the date of the execution of this Supplemental Indenture.
5. Releases.
(1) Concurrently with any sale of assets (including, if applicable, all
of the capital stock of any Guaranteeing Subsidiary), any Liens in favor of the
Trustee in the assets sold thereby shall be released; provided, that in the
event of an Asset Sale, the Net Proceeds from such sale or other disposition are
treated in accordance with the provisions of Section 4.10 of the Indenture if
the assets sold in such sale or other disposition include all or substantially
all of the assets of any Guaranteeing Subsidiary or all of the capital stock of
any Guaranteeing Subsidiary, then such Guaranteeing Subsidiary (in the event of
a sale or other disposition or all of the capital stock of such Guaranteeing
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Subsidiary) or the corporation acquiring the property (in the event of a sale or
other disposition of all or substantially all of the assets of a Guaranteeing
Subsidiary) shall be released and relieved of its obligations under its Note
Guarantee or Section 11.03 of the Indenture, as the case may be; PROVIDED, that
in the event of an Asset Sale, the Net Proceeds from such sale or other
disposition are treated in accordance with the provisions of Section 4.10 of the
Indenture. Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of the
Indenture, including without limitation Section 4.10 of the Indenture, the
Trustee shall execute any documents reasonably required in order to evidence the
release of any Guaranteeing Subsidiary from its obligations under its Note
Guarantee.
(2) Upon the release by all holders of Senior Indebtedness and
Guarantor Senior Indebtedness of all guarantees issued by a Guaranteeing
Subsidiary relating to such Senior Indebtedness and Guarantor Senior
Indebtedness and all Liens on the property and assets of such Guaranteeing
Subsidiary relating to Senior Indebtedness and Guarantor Senior Indebtedness,
then such Guaranteeing Subsidiary shall be released and relieved of any
obligations under its Note Guarantee. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the effect that
all holders of Senior Indebtedness and Guarantor Senior Indebtedness have
released all guarantees issued by a Guaranteeing Subsidiary and all Liens on the
property and assets of such Guaranteeing Subsidiary relating to such Senior
Indebtedness and Guarantor Senior Indebtedness, the Trustee shall execute any
documents reasonably required in order to evidence the release of such
Guaranteeing Subsidiary from its obligations under its Note Guarantee.
(3) Any Guaranteeing Subsidiary not released from its obligations under
its Note Guarantee pursuant to either of paragraphs (a) or (b) of this Section 5
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor or any Guaranteeing
Subsidiary under this Supplemental Indenture or the Indenture, respectively, as
provided in Article XI of the Indenture or this Supplemental Indenture,
respectively.
6. Subordination of Note Guarantees. The obligations of each
Guaranteeing Subsidiary under its Note Guarantee pursuant to this Supplemental
Indenture and Article XI of the Indenture shall be junior and subordinated to
the Guarantor Senior Indebtedness of such Guaranteeing Subsidiary on the same
basis as the Notes are junior and subordinated to Senior Indebtedness. For the
purposes of the foregoing sentence, the Trustee and the Holders shall have the
right to receive and/or retain payments by any of the Guaranteeing Subsidiaries
only at such times as they may receive and/or retain payments in respect of the
Notes pursuant to the Indenture, including Article X of the Indenture.
7. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of either of the
Guaranteeing Subsidiaries, as such, shall have any liability for any obligations
of the Company, any Guarantor or any of the Guaranteeing Subsidiaries under the
Notes, the Subsidiary Guarantees, the Note Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation.
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Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the SEC that such a waiver is
against public policy.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
9. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
11. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiaries and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
GUARANTEEING SUBSIDIARIES:
IMS SYSTEMS LIMITED PARTNERSHIP
By: Speedway Motorsports, Inc.,
its general partner
By: /s/ William R. Brooks
-------------------------------
Name: William R. Brooks
Title: Vice President
SPEEDWAY SCREEN PRINTING, LLC
By: /s/ William R. Brooks
-------------------------------
Name: William R. Brooks
Title: Manager
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COMPANY:
SPEEDWAY MOTORSPORTS, INC.
By: /s/ William R. Brooks
-------------------------------
Name: William R. Brooks
Title: Vice President
GUARANTORS:
ATLANTA MOTOR SPEEDWAY, INC.
By: /s/ William R. Brooks
-------------------------------
Name: William R. Brooks
Title: Vice President
BRISTOL MOTOR SPEEDWAY, INC.
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
CHARLOTTE MOTOR SPEEDWAY, INC.
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
SPR ACQUISITION CORPORATION
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
TEXAS MOTOR SPEEDWAY, INC.
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
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600 RACING, INC.
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
SONOMA FUNDING CORPORATION
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
SPEEDWAY CONSULTING & DESIGN, INC.
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
THE SPEEDWAY CLUB, INC.
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
INEX CORP.
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Vice President
SPEEDWAY FUNDING CORP.
By: /s/ Victoria L. Garrett
--------------------------------
Name: Victoria L. Garrett
Title: Vice President
LAS VEGAS MOTOR SPEEDWAY, LLC
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Manager
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SMI SYSTEMS, LLC
By: /s/ William R. Brooks
--------------------------------
Name: William R. Brooks
Title: Manager
SPEEDWAY SYSTEMS, LLC
By: IMS Systems Limited Partnership, its
sole manager
By: Speedway Motorsports, Inc., its
general partner
By: /s/ William R. Brooks
-------------------------------
Name: William R. Brooks
Title: Vice President
TRUSTEE:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee.
By: /s/ Nancie J. Arvin
--------------------------------
Authorized Signatory
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