Exhibit 10.18
Execution Copy 11/28/01
GUARANTY AGREEMENT
(SMI)
This GUARANTY AGREEMENT (this "Guaranty Agreement") is made as of November
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29, 2001 by SPEEDWAY MOTORSPORTS, INC., a Delaware corporation (the
"Guarantor"), in favor of LEVY PREMIUM FOODSERVICE LIMITED PARTNERSHIP, an
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Illinois limited partnership (the "Buyer"), and COMPASS GROUP USA, INC., a
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Delaware corporation ("Compass").
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R E C I T A L S:
WHEREAS, contemporaneously with the making, execution and delivery of this
Guaranty Agreement, Speedway Systems LLC, a North Carolina limited liability
company, Charlotte Motor Speedway, LLC, a Delaware limited liability company,
Texas Motor Speedway, Inc., a Texas corporation, and Bristol Motor Speedway,
Inc., a Tennessee corporation (collectively, the "Sellers") are entering into an
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Asset Purchase Agreement (the "Asset Purchase Agreement") pursuant to which,
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among other things, the Sellers will sell to the Buyer, and the Buyer will
purchase from the Sellers, certain assets of the Sellers related to the Sellers'
food and beverage service business; and
WHEREAS, the Buyer is willing to execute and deliver, and to consummate
the transactions contemplated by, the Asset Purchase Agreement upon the
condition, among others, that the Guarantor shall have executed and delivered
this Guaranty Agreement to the Buyer; and
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings given to them in the Asset Purchase Agreement; and
WHEREAS, as contemplated by the Asset Purchase Agreement, at the Closing
under the Asset Purchase Agreement, the Guarantor will execute and deliver the
Management Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements and covenants contained in this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Guarantor hereby guarantees to the Buyer as follows:
1. Guaranty. Subject to the provisions of Section 6 hereof, the Guarantor
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hereby unconditionally and irrevocably guarantees to the Buyer the due and
punctual payment, when and as due, of all amounts from time to time payable by
Sellers under or pursuant to the Asset Purchase Agreement. Such payment
obligations of the Sellers are hereinafter called, collectively, the "Guaranteed
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Obligations."
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2. Manner of Performance. The Guarantor and the Buyer hereby agree that
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if any of the Guaranteed Obligations are not paid, when and as due, if the Buyer
shall notify the Guarantor of such nonpayment, the Guarantor shall promptly
cause the Sellers to pay or the Guarantor will promptly pay, the Guaranteed
Obligations, subject to Section 6 hereof.
3. Absoluteness of Guaranty. Subject to Section 6 hereof, the obligations
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of the Guarantor under this Guaranty Agreement shall be absolute and
unconditional, present and continuing, irrespective of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of or
termination of the existence of any of the Sellers or any circumstance which
might constitute a legal or equitable discharge of a guarantor; it being agreed
that the obligations of the Guarantor under this Guaranty Agreement shall not be
discharged except by payment, observance or performance as herein provided.
4. Guaranty Not Affected. The Guarantor hereby consents and agrees that,
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at any time and from time to time:
(a) the time, manner, place and/or terms and conditions of payment,
observance or performance of all or any of the Guaranteed Obligations may be
extended, amended, modified or changed pursuant to agreement between the Sellers
and the Buyer;
(b) the time for performance of or compliance with any term,
obligation, covenant or agreement on the part of the Sellers to be performed or
observed by the Sellers under the Asset Purchase Agreement may be extended, or
such performance or compliance waived, or failure in or departure from such
performance or compliance consented to; and
(c) the Asset Purchase Agreement may be amended or modified in any
respect by the parties thereto, all in such manner and upon such terms as the
parties thereto may deem proper, and without notice to or further assent from
the Guarantor, and all without affecting this Guaranty Agreement or the
obligations of the Guarantor hereunder, which shall continue in full force and
effect until all of the Guaranteed Obligations and all obligations of the
Guarantor hereunder shall have been fully paid, observed and performed.
5. Waiver. The Guarantor hereby waives notice of acceptance of this
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Guaranty Agreement, presentment, demand, protest, or (except as set forth in
Section 2 hereof) any notice of any kind whatsoever, with respect to any or all
of the Guaranteed Obligations, and promptness in making any claim or demand
hereunder. The Guarantor, except as set forth in Section 2 hereof, also waives
any requirement, and any right to require, that any right or power be exercised
or any action be taken against the Buyer or any other person or entity or any
assets for any of the Guaranteed Obligations.
6. Guarantor's Rights. By its acceptance of this Guaranty, the Buyer
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agrees that the Guarantor shall have no greater liability to the Buyer than the
Guarantor would have if it was a party to the Asset Purchase Agreement with
joint and several liability for the obligations of the Sellers thereunder.
Accordingly, the Guarantor shall have the right to avail itself of any and all
defenses to and valid setoffs, counterclaims and claims of recoupment against
any or all of the Guaranteed Obligations that may at any time be available to
the Sellers. Notwithstanding the
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foregoing, the obligations of the Guarantor hereunder are independent of the
obligations of the Sellers and a separate action or actions may be brought
against the Guarantor regardless of whether action is brought against the
Sellers or whether the Sellers will be joined in any such action or actions. The
Guarantor waives any right to require the Buyer to proceed against the Sellers
or to pursue any other remedy in the Buyer's power whatsoever.
7. Reinstatement. This Guaranty Agreement shall continue to be effective
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or be reinstated, as the case may be, if at any time payment, observance or
performance, or any part thereof, of any of the Guaranteed Obligations is
rescinded or must otherwise be restored or returned to the Sellers upon the
insolvency, bankruptcy or reorganization of the Sellers, all as though such
payment, observance or performance had not been made.
8. No Waiver; Amendments, Etc. No failure or delay on the part of the
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Buyer in exercising any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. No amendment, modification,
termination or waiver of any provision of this Guaranty Agreement, nor consent
to any departure by the Guarantor therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Buyer, and then such
amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose given. No notice to or demand on
the Guarantor in any case shall entitle the Guarantor to further notice or
demand in similar or other circumstances.
9. Continuing Effect; No Assignment. This Guaranty Agreement is a
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continuing guaranty and (i) subject to the provisions of Section 6 hereof, shall
remain in full force and effect until payment, observance and performance in
full of the Guaranteed Obligations, (ii) subject to the provisions of this
Section 9, shall be binding upon the Guarantor, its respective successors and
assigns, and (iii) subject to the provisions of this Section 9, shall inure to
the benefit of, and be enforceable by, the Buyer and Compass and their
respective successors, transferees and assigns. The Guarantor may not assign or
delegate the performance of any of its obligations under this Guaranty
Agreement.
10. Notices. All notices, claims, certificates, requests, demands and
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other communications required to made hereunder shall be given in accordance
with the Asset Purchase Agreement. For purposes of such notice to the Guarantor,
the Guarantor's address is as follows:
Speedway Motorsports, Inc.
Attn: Chief Financial Officer
X.X. Xxx 00000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
11. Severability. The invalidity of any one or more phrases, sentences,
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clauses, paragraphs, subsections or sections hereof shall not affect the
remaining portions of this Guaranty Agreement, or any part thereof, all of which
are inserted conditionally on their being held valid in law and in the event
that one or more of the phrases, sentences, clauses, paragraphs,
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subsections or sections contained herein should be invalid, or should operate to
render this Guaranty Agreement invalid, this Guaranty Agreement shall be
construed as if such invalid phrase or phrases, sentence or sentences, clause or
clauses, paragraph or paragraphs, subsection or subsections or section or
sections had not been inserted.
12. Governing Law. This Guaranty Agreement and all rights hereunder shall
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in all respects be governed by and construed in accordance with the laws of the
State of North Carolina, without giving effect to its principles of conflicts of
law.
13. Entire Agreement. This Guaranty Agreement and the other writings
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referred to herein or delivered pursuant hereto contain the entire understanding
of the parties hereto with respect to its subject matter. There are no
representations, promises, warranties, covenants or undertakings other than as
expressly set forth herein or therein. This Guaranty Agreement supersedes all
prior agreements and understandings between the parties hereto with respect to
its subject matter.
14. Headings; Counterparts. The Section headings contained in this
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Guaranty Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Guaranty Agreement. This Guaranty
Agreement may be executed in counterparts.
15. Enforcement of this Guaranty Agreement by Compass. The Guarantor
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acknowledges and agrees that Compass shall be entitled to enforce this Guaranty
Agreement as fully as if Compass were the Buyer hereunder.
16. Execution of Management Agreement. In addition to its guaranty
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obligations hereunder, the Guarantor hereby covenants and agrees that, at the
Closing under the Asset Purchase Agreement, the Guarantor will execute and
deliver, as the Owner thereunder, the Management Agreement in the form of
Exhibit A to the Asset Purchase Agreement.
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[Signatures Are on Page Following]
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IN WITNESS WHEREOF, the undersigned has made, executed and delivered this
Guaranty Agreement to the Buyer and Compass as of the date first stated above.
GUARANTOR:
SPEEDWAY MOTORSPORTS, INC.
/s/ O. Xxxxxx Xxxxx (SEAL)
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Accepted:
LEVY PREMIUM FOODSERVICE LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
COMPASS GROUP USA, INC.
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: Chief Financial Officer
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