EXHIBIT 4.16
FOURTH SUPPLEMENTAL INDENTURE
This FOURTH SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") is dated
as of December 31, 2001, among SPEEDWAY HOLDINGS, INC., a Nevada corporation
(the "Guaranteeing Subsidiary"), SPEEDWAY MOTORSPORTS, INC., a Delaware
corporation (the "Company"), the other Guarantors (as defined in and listed on
the signature pages to the Indenture referred to below) and U.S. BANK 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, dated as of May 11, 1999 (as supplemented
by the First Supplemental Indenture dated as of June 1, 1999, the Second
Supplemental Indenture dated as of December 31, 1999 and the Third Supplemental
Indenture dated December 31, 2000, the "Indenture"), 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"); and
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary 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"); and
WHEREAS, the Guaranteeing Subsidiary is a wholly-owned subsidiary of the
Company; 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, the
Guaranteeing Subsidiary 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. The Guaranteeing Subsidiary hereby agrees as
follows (notwithstanding anything to the contrary in this Supplemental
Indenture, such agreements of the Guaranteeing Subsidiary shall be construed as
identical to those agreements made by the
Guarantors under the Indenture, and the obligations and rights of the
Guaranteeing Subsidiary hereunder shall be no more and no less than those of the
Guarantors under the Indenture):
(a) 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:
(i) 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
(ii) 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, the Guaranteeing Subsidiary and the
Guarantors will be jointly and severally obligated to pay the same
immediately.
(b) The obligations of the Guaranteeing Subsidiary 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.
(c) The following is hereby waived by the Guaranteeing Subsidiary:
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.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained herein, and in the Notes and the
Indenture, and the Guaranteeing Subsidiary accepts all obligations of a
Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guaranteeing Subsidiary or the Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting in relation to
either the Company, the Guaranteeing Subsidiary or
2
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.
(f) The Guaranteeing Subsidiary agrees that it 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.
(g) As between the Guarantors and the Guaranteeing Subsidiary, 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
Guarantors and the Guaranteeing Subsidiary for the purpose of this Note
Guarantee.
(h) The Guaranteeing Subsidiary and the Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Guarantee.
(i) 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 the Guaranteeing Subsidiary
shall be reduced to the extent necessary to prevent the Note Guarantee of the
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,
the Guaranteeing Subsidiary agrees that the Note Guarantee shall remain in full
force and effect notwithstanding any failure to endorse on each Note a notation
of such Note Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.
(a) Except as set forth in Articles IV and V and Section 11.04 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 the
Guaranteeing Subsidiary with or into the Company or shall prevent any sale or
conveyance of the property of the Guaranteeing Subsidiary as an entirety or
substantially as an entirety, to the Company or another Guarantor.
(b) 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 the 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 the Guaranteeing Subsidiary or its successor or successors
3
shall be a party or parties, or shall prevent any sale or conveyance of the
property of the 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) the 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 Guarantor. 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.
(a) Concurrently with any sale of assets (including, if applicable, all of
the capital stock of the 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 the Guaranteeing Subsidiary or all of the capital stock of
the Guaranteeing Subsidiary, then the Guaranteeing Subsidiary (in the event of a
sale or other disposition or all of the capital stock of the Guaranteeing
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 the 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
4
Indenture, the Trustee shall execute any documents reasonably required in order
to evidence the release of the Guaranteeing Subsidiary from its obligations
under its Note Guarantee.
(b) Upon the release by all holders of Senior Indebtedness and Guarantor
Senior Indebtedness of all guarantees issued by the Guaranteeing Subsidiary
relating to such Senior Indebtedness and Guarantor Senior Indebtedness and all
Liens on the property and assets of the Guaranteeing Subsidiary relating to
Senior Indebtedness and Guarantor Senior Indebtedness, then the 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 the Guaranteeing Subsidiary and all Liens on the property and assets
of the 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 the Guaranteeing
Subsidiary from its obligations under its Note Guarantee.
(c) In the event the Guaranteeing Subsidiary is not released from its
obligations under its Note Guarantee pursuant to either of paragraphs (a) or (b)
of this Section 5 or Section 11.04 of the Indenture, the Guaranteeing Subsidiary
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor 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 the 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 the 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 the Guaranteeing Subsidiary 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 the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Notes, the Subsidiary Guarantees, the Note Guarantee,
the Indenture or this Supplemental Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. 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
5
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 Subsidiary and the Company.
[Signatures begin on the following page.]
6
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
GUARANTEEING SUBSIDIARY:
SPEEDWAY HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
COMPANY:
SPEEDWAY MOTORSPORTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
GUARANTORS:
ATLANTA MOTOR SPEEDWAY, INC.
BRISTOL MOTOR SPEEDWAY, INC.
TEXAS MOTOR SPEEDWAY, INC.
600 RACING, INC.
SPEEDWAY CONSULTING & DESIGN, INC.
INEX CORP.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
7
MOTORSPORTS BY MAIL, LLC
SMI SYSTEMS, LLC
SPEEDWAY FUNDING, LLC
SPEEDWAY MEDIA, LLC
SPEEDWAY PROPERTIES COMPANY, LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
IMS SYSTEMS LIMITED PARTNERSHIP
By: Speedway Motorsports, Inc., its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SPEEDWAY SYSTEMS, LLC
By: IMS Systems Limited Partnership, its sole manager
By: Speedway Motorsports, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CHARLOTTE MOTOR SPEEDWAY, LLC
SPR, LLC
By: /s/ O. Xxxxxx Xxxxx
----------------------------------------------------
Name: O. Xxxxxx Xxxxx
Title: Manager
LAS VEGAS MOTOR SPEEDWAY, LLC
SEARS POINT RACEWAY, LLC
NEVADA SPEEDWAY, LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Manager
8
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee.
By: /s/ Xxxx-Xxxx Xxxxxxxxx
----------------------------------------------------
Authorized Signatory
9
