SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
Exhibit 10.2
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED PLEDGE AGREEMENT dated as of September 17, 2019 (as amended and modified, this “Pledge Agreement”) by those parties identified as “Pledgors” on the signature pages hereto and such other parties as may become Pledgors hereunder after the date hereof (the “Pledgors”) in favor of BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) for the benefit of the Secured Parties (as defined in the Credit Agreement (as defined below)) amends and restates the Existing Pledge Agreement (as defined below).
RECITALS
A. The Lenders have made loans and extensions of credit to Speedway Motorsports, Inc., a Delaware corporation (“Speedway Motorsports”), and Speedway Funding, LLC, a Delaware limited liability company (“Speedway Funding”; hereinafter Speedway Motorsports and Speedway Funding may be referred to collectively as the “Borrowers”), upon the terms and conditions provided in that Amended and Restated Credit Agreement dated as December 29, 2014 (as amended, modified, renewed, restated, replaced or supplemented prior to the date hereof, the “Existing Credit Agreement”) among the Borrowers, the Guarantors, the several banks and financial institutions identified therein and Bank of America, N.A., as Administrative Agent.
B. In connection with the Existing Credit Agreement, the Borrowers, the Guarantors and the Administrative Agent entered into that certain Amended and Restated Pledge Agreement dated as of December 29, 2014 (as amended, modified, extended, renewed, restated, replaced or supplemented prior to the date hereof, the “Existing Pledge Agreement”).
C. The Borrowers, the Guarantors, the Lenders and the Administrative Agent have entered into that certain Second Amended and Restated Credit Agreement dated as of the date hereof (as amended, modified, extended, renewed, restated, replaced or supplemented from time to time, the “Credit Agreement”), pursuant to which the Existing Credit Agreement has been amended and restated and the obligations under the Existing Credit Agreement have been continued.
D. In connection with the Credit Agreement, the Administrative Agent and the Pledgors have agreed to amend and restate (but not effect a novation of) the Existing Pledge Agreement in accordance with the terms of this Pledge Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms.
(a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
“Certificated Security”: a “certificated security” as such term is defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof.
“Collateral”: the Pledged Stock and all Proceeds thereof.
“Collateral Account”: any account established to hold money Proceeds, maintained under the sole dominion and control of the Administrative Agent, subject to withdrawal by the Administrative Agent for the account of the Secured Parties as provided in Section 8(a) hereof.
“Issuer”: the issuer of any Pledged Stock, including without limitation the issuers identified on Schedule1 hereto.
“Investment Company Security”: an “investment company security” as such term is defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof.
“Pledged Stock”: with respect to each Pledgor, (i) one hundred percent (100%) of the issued and outstanding Capital Stock of each Domestic Subsidiary (that is not an Excluded Subsidiary) that is directly owned by such Pledgor and (ii) sixty-five percent (65%) of the issued and outstanding Voting Stock and one hundred percent (100%) of the issued and outstanding Capital Stock not constituting Voting Stock of each Foreign Subsidiary that is directly owned by such Pledgor, including without limitation the Capital Stock of the Subsidiaries owned by such Pledgor as set forth on Schedule 1 hereto, in each case together with the certificates (or other agreements or instruments), if any, representing such Capital Stock, and all options and other rights, contractual or otherwise, with respect thereto, including, but not limited to, the following:
(A) all Capital Stock representing a dividend thereon, or representing a distribution or return of capital upon or in respect thereof, or resulting from a stock split, revision, reclassification or other exchange therefor, and any subscriptions, warrants, rights or options issued to the holder thereof, or otherwise in respect thereof; and
(B) in the event of any consolidation or merger involving the Issuer thereof and in which such Issuer is not the surviving Person, all shares of each class of the Capital Stock of the successor Person formed by or resulting from such consolidation or merger, to the extent that such successor Person is a direct Subsidiary of a Pledgor.
“Proceeds”: all “proceeds” as such term is defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof.
“Secured Obligations”: without duplication, (i) all Obligations and (ii) all costs and expenses incurred in connection with enforcement and collection of the Obligations, including the Attorney Costs.
“Security”: a “security” as such term is defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof.
“Securities Account”: a “securities account” as such term is defined in the Uniform Commercial Code as in effect in the State of New York on the date hereof.
“Securities Act”: the Securities Act of 1933, as amended.
“Specified Permitted Liens”: the Liens, if any, on the Collateral securing (i) Permitted Pari Passu Indebtedness, (ii) Permitted Junior Priority Refinancing Indebtedness or (iii) Incremental Equivalent Debt that is secured by a Lien on the Collateral ranking junior to the Lien created under this Pledge Agreement, in each case, to the extent permitted under the Credit Agreement.
“Uniform Commercial Code” or “UCC”: the Uniform Commercial Code from time to time in effect in the State of New York.
(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Pledge Agreement shall refer to this Pledge Agreement as a whole and not to any particular provision of this Pledge Agreement, and section and paragraph references are to this Pledge Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. To secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations, each Pledgor hereby grants to the Administrative Agent, for the benefit of the holders of the Secured Obligations, a continuing security interest in, and a right to set off against, any and all right, title and interest of such Pledgor in and to the Collateral, whether now owned or existing or owned, acquired, or arising hereafter. The Pledgors and the Administrative Agent, on behalf of the holders of the Secured Obligations, hereby acknowledge and agree that the security interest created hereby in the Collateral constitutes continuing collateral security for all of the Secured Obligations, whether now existing or hereafter arising.
Without limiting the generality of the foregoing, it is hereby specifically understood and agreed that the Pledgor may from time to time hereafter deliver additional Capital Stock to the Administrative Agent as collateral security for the Secured Obligations. Upon delivery to the Administrative Agent, such additional Capital Stock shall be deemed to be part of the Collateral and shall be subject to the terms of this Pledge Agreement whether or not Schedule 1 is amended to refer to such additional Capital Stock.
3. Stock Powers. Concurrently with the delivery to the Administrative Agent of each certificate representing one or more shares of Pledged Stock, each of the Pledgors shall deliver an undated stock power in substantially the form of Schedule 2 hereto covering such certificate, duly executed in blank with, if the Administrative Agent so requests, signature guaranteed.
4. Representations and Warranties. Each Pledgor represents and warrants that:
(a) The Pledged Stock constitutes (i) one hundred percent (100%) of the issued and outstanding shares of all classes of Capital Stock of each Domestic Subsidiary of Holdings (that is not an Excluded Subsidiary) and (ii) sixty-five percent (65%) of the issued and outstanding Voting Stock and one hundred percent (100%) of the issued and outstanding Capital Stock not constituting Voting Stock of each Foreign Subsidiary of Holdings.
(b) All of the Pledged Stock has been duly and validly issued and are fully paid and nonassessable.
(c) The Pledgor is the record and beneficial owner of, and has good and marketable title to, the Pledged Stock of such Pledgor, free of any and all Liens or options in favor of, or claims of, any other Person, except (i) the security interests created by this Pledge Agreement and (ii) Specified Permitted Liens.
(d) Upon delivery to the Administrative Agent of any stock certificates evidencing the Pledged Stock and the filing in the appropriate jurisdiction of the financing statements referred to in Section 13 hereof, the security interest created by this Pledge Agreement will constitute a valid, perfected first priority security interest in the Collateral (including all uncertificated Pledged Stock consisting of partnership or limited liability company interests that do not constitute Securities), enforceable in accordance with its terms against all creditors of the Pledgor and any Persons purporting to purchase any Collateral from the Pledgor, except as affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing.
(e) Except as previously disclosed to the Administrative Agent, none of the Pledged Stock consisting of partnership or limited liability company interests (i) is dealt in or traded on a securities exchange or in a securities market, (ii) by its terms expressly provides that it is a security governed by Article 8 of the UCC, (iii) is an Investment Company Security, (iv) is held in a Securities Account or (v) constitutes a “Security” or a “Financial Asset” (as such terms are defined in the UCC).
5. Covenants. Each Pledgor covenants and agrees that, from and after the date of this Pledge Agreement until the Facility Termination Date:
(a) If the Pledgor shall, as a result of its ownership of the Pledged Stock, become entitled to receive or shall receive any stock certificate (including, without limitation, any certificate representing a stock dividend or a distribution in connection with any reclassification, increase or reduction of capital or any certificate issued in connection with any reorganization), option or rights, whether in addition to, in substitution of, as a conversion of, or in exchange for any shares of the Pledged Stock, or otherwise in respect thereof, the Pledgor shall accept the same as the agent of the Secured Parties, hold the same in trust for the Secured Parties and deliver the same forthwith to the Administrative Agent in the exact form received, duly indorsed by the Pledgor to the Administrative Agent, if required, together with an undated stock power covering such certificate duly executed in blank by the Pledgor and with, if the Administrative Agent so requests, signature guaranteed, to be held by the Administrative Agent, subject to the terms hereof, as additional collateral security for the Secured Obligations. Any sums paid to a Pledgor upon or in respect of the Pledged Stock upon the liquidation or dissolution of any Issuer shall be paid over to the Administrative Agent to be held by it hereunder as additional collateral security for the Secured Obligations, and in case any distribution of capital shall be made on or in respect of the Pledged Stock or any property shall be distributed upon or with respect to the Pledged Stock pursuant to the recapitalization or reclassification of the capital of the Issuer or pursuant to the reorganization thereof, the property so distributed shall be delivered to the Administrative Agent to be held by it hereunder as additional collateral security for the Secured Obligations. If any sums of money or property so paid or distributed in respect of the Pledged Stock shall be received by the Pledgor, the Pledgor shall, until such money or property is paid or delivered to the Administrative Agent, hold such money or property in trust for the Secured Parties, segregated from other funds of the Pledgor, as additional collateral security for the Secured Obligations.
(b) Without the prior written consent of the Administrative Agent, the Pledgor will not (i) vote to enable, or take any other action to permit, any Issuer to issue any stock or other equity securities of any nature or to issue any other securities convertible into or granting the right to purchase or exchange for any stock or equity securities of any nature of any Issuer, (ii) sell, assign, transfer, exchange, or otherwise dispose of, or grant any option with respect to, the Collateral, (iii) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to, any of the Collateral, or any interest therein, except for the security interests created by this Pledge Agreement and Specified Permitted Liens or (iv) enter into any agreement or undertaking restricting the right or ability of the Pledgor or the Administrative Agent to sell, assign or transfer any of the Collateral.
(c) The Pledgor shall maintain the security interests created by this Pledge Agreement as first priority, perfected security interests and shall defend such security interests against claims and demands of all Persons whomsoever. At any time and from time to time, upon the written request of the Administrative Agent, and at the sole expense of the Pledgor, the Pledgor will promptly and duly execute and deliver such further instruments and documents and take such further actions as the Administrative Agent may reasonably request for the purposes of obtaining or preserving the full benefits of this Pledge Agreement and of the rights and powers herein granted. If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note, other instrument or chattel paper, such promissory note, instrument or chattel paper shall be immediately delivered to the Administrative Agent, duly endorsed in a manner satisfactory to the Administrative Agent, to be held as Collateral pursuant to this Pledge Agreement.
(d) The Pledgor shall pay, and save the Administrative Agent and the Secured Parties harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Pledge Agreement, except for any such liabilities which result from the gross negligence or willful misconduct of the Administrative Agent.
(e) The Pledgor shall not, without executing and delivering, or causing to be executed and delivered, to the Administrative Agent such agreements, documents and instruments as the Administrative Agent may require, issue or acquire any Capital Stock consisting of an interest in a partnership or a limited liability company that (i) is dealt in or traded on a securities exchange or in a securities market, (ii) by its terms expressly provides that it is a security governed by Article 8 of the UCC, (iii) is an Investment Company Security, (iv) is held in a Securities Account or (v) constitutes a “Security” or a “Financial Asset” (as such terms are defined in the UCC).
(f) The Pledgor will deliver to the Administrative Agent promptly upon the receipt thereof by or on behalf of such Pledgor, all certificates and instruments constituting Pledged Stock (subject to Section 7.14 of the Credit Agreement in the case of the certificates representing the Capital Stock of North Wilkesboro Speedway, Inc., a North Carolina corporation, Speedway Consulting & Design, Inc., a North Carolina corporation, and Speedway Funding II, Inc., a Delaware corporation). Prior to delivery to the Administrative Agent, all such certificates constituting Pledged Stock shall be held in trust by such Pledgor for the benefit of the Administrative Agent and the other Secured Parties pursuant hereto. All such certificates representing Pledged Stock shall be delivered to the Administrative Agent in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, substantially in the form provided in Schedule 2 hereto or other form acceptable to the Administrative Agent, to be held by the Administrative Agent as collateral security for the Secured Obligations.
6. Cash Dividends; Voting Rights. Unless an Event of Default has occurred and the Administrative Agent has given notice to the Pledgors of the Administrative Agent’s intent to exercise its corresponding rights pursuant to Section 7 hereof, the Pledgors shall be permitted to receive all cash dividends, to the extent permitted in the Credit Agreement, in respect of the Pledged Stock and to exercise all voting and corporate rights with respect to the Pledged Stock; provided, however, that no vote shall be cast or corporate right exercised or other action taken which, in the Administrative Agent’s reasonable judgment, would impair the Collateral or which would be inconsistent with or result in any violation of any provision of the Credit Agreement, this Pledge Agreement or any other Credit Document.
7. Rights of the Secured Parties and the Administrative Agent.
(a) All money Proceeds received by the Administrative Agent hereunder shall be held by the Administrative Agent for the benefit of the Secured Parties in a Collateral Account. All Proceeds while held by the Administrative Agent in a Collateral Account (or by the Pledgors in trust for the Secured Parties) shall continue to be held as collateral security for all the Secured Obligations and shall not constitute payment thereof until applied as provided in Section 8(a) hereof.
(b) At any time after an Event of Default has occurred and the Administrative Agent has given notice to the Pledgors of its intent to exercise the following rights to the Pledgors, (i) the Administrative Agent shall have the right to receive any and all cash dividends paid in respect of the Pledged Stock and make application thereof to the Secured Obligations in the order set forth in Section 9.3 of the Credit Agreement, and (ii) all of the Pledged Stock shall be registered in the name of the Administrative Agent or its nominee, and the Administrative Agent or its nominee may thereafter exercise (A) all voting, corporate and other rights pertaining to the Pledged Stock at any meeting of shareholders of any Issuer or otherwise and (B) any and all rights of conversion, exchange, subscription and any other rights, privileges or options pertaining to the Pledged Stock as if it were the absolute owner thereof (including, without limitation, the right to exchange at its discretion any and all of the Pledged Stock upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate structure of any Issuer, or upon the exercise by any Pledgor or the Administrative Agent of any right, privilege or option pertaining to the Pledged Stock, and in connection therewith, the right to deposit and deliver any and all of the Pledged Stock with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to the Pledgors to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.
8. Remedies.
(a) At any time after an Event of Default has occurred, at the Administrative Agent’s election, the Administrative Agent may apply all or any part of Proceeds held in any Collateral Account in payment of the Secured Obligations in the order set forth in Section 9.3 of the Credit Agreement.
(b) At any time after an Event of Default has occurred, the Administrative Agent, on behalf of the Secured Parties, may exercise, in addition to all other rights and remedies granted in this Pledge Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the Uniform Commercial Code. Without limiting the generality of the foregoing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon the Pledgors or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, in the over-the-counter market, at any exchange, broker’s board or office of the Administrative Agent or any other Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Administrative Agent or any other Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Pledgor, which right or equity of redemption is hereby waived and released. The Administrative Agent shall apply any Proceeds from time to time held by it and the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred in respect thereof or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Administrative Agent and the other Secured Parties hereunder, including, without limitation, reasonable attorneys’ fees and disbursements of counsel to the Administrative Agent, to the payment in whole or in part of the Secured Obligations, in the order set forth in Section 9.3 of the Credit Agreement, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, need the Administrative Agent account for the surplus, if any, to any Pledgor. To the extent permitted by applicable law, each Pledgor waives all claims, damages and demands it may acquire against the Administrative Agent or any other Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least twenty (20) days before such sale or other disposition. The Pledgors shall remain liable for any deficiency if the proceeds of any sale or other disposition of Collateral are insufficient to pay the Secured Obligations and the reasonable fees and disbursements of any attorneys employed by the Administrative Agent or any other Secured Party to collect such deficiency.
9. Registration Rights; Private Sales.
(a) If the Administrative Agent shall determine to exercise its right to sell any or all of the Pledged Stock pursuant to Section 8 hereof, and if in the opinion of the Administrative Agent it is necessary or advisable to have the Pledged Stock, or that portion thereof to be sold, registered under the provisions of the Securities Act, the Pledgors will cause the Issuer thereof to (i) execute and deliver, and cause the directors and officers of such Issuer to execute and deliver, all such instruments and documents, and do or cause to be done all such other acts as may be, in the opinion of the Administrative Agent, necessary or advisable to register the Pledged Stock, or that portion thereof to be sold, under the provisions of the Securities Act, (ii) to use its best efforts to cause the registration statement relating thereto to become effective and to remain effective for a period of one year from the date of the first public offering of the Pledged Stock, or that portion thereof to be sold, and (iii) to make all amendments thereto and/or to the related prospectus which, in the opinion of the Administrative Agent, are necessary or advisable, all in conformity with the requirements of the Securities Act and the rules and regulations of the SEC applicable thereto. Each Pledgor acknowledges and agrees to cause such Issuer to comply with the provisions of the securities or “Blue Sky” laws of any and all jurisdiction which the Administrative Agent shall designate and to make available to its security holders, as soon as practicable, an earnings statement (which need not be audited) which will satisfy the provisions of Section 11(a) of the Securities Act.
(b) Each Pledgor recognizes that the Administrative Agent may be unable to effect a public sale of any or all the Pledged Stock, by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obligated to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Pledgor agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Administrative Agent shall be under no obligation to delay a sale of any of the Pledged Stock for the period of time necessary to permit the Issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such Issuer agrees to do so.
(c) Each Pledgor further agrees to use its commercially reasonable efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Pledged Stock pursuant to Sections 8 and 9(a) valid and binding and in compliance with any and all other applicable Law. Each Pledgor further agrees that a breach of any of the covenants contained in Sections 8 and 9(a) will cause irreparable injury to the Administrative Agent and the other Secured Parties, that the Administrative Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in Sections 8 and 9(a) shall be specifically enforceable against such Pledgor, and such Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred.
(d) Each Pledgor further acknowledges and agrees that any offer to sell any Pledged Stock which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and any Secured Party may, in such event, bid for the purchase of such securities.
10. Irrevocable Authorization and Instruction to Issuer. Each Pledgor hereby authorizes and instructs each Issuer to comply with any instruction received by it from the Administrative Agent in writing that (a) states that an Event of Default has occurred and (b) is otherwise in accordance with the terms of this Pledge Agreement, without any other or further instructions from such Pledgor, and such Pledgor agrees that each Issuer shall be fully protected by the Pledgors in so complying.
11. Administrative Agent’s Appointment as Attorney-in-Fact.
(a) Each Pledgor hereby irrevocably constitutes and appoints the Administrative Agent and any officer or agent of the Administrative Agent, with full power of substitution, as its true and lawful attorney-in-fact with fully irrevocable power and authority in the place and stead of such Pledgor and in the name of such Pledgor or in the Administrative Agent’s own name, from time to time in the Administrative Agent’s discretion, for the purpose of carrying out the terms of this Pledge Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Pledge Agreement, including, without limitation, any financing statements, endorsements, assignments or other instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall lawfully do or cause to be done pursuant to the power of attorney granted in Section 11(a) hereof. All powers, authorizations and agencies contained in this Pledge Agreement are coupled with an interest and are irrevocable until the Facility Termination Date.
12. Duty of Administrative Agent. The Administrative Agent’s sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession, under Section 9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in the same manner as the Administrative Agent deals with similar securities and property for its own account, except that the Administrative Agent shall have no obligation to invest funds held in any Collateral Account and may hold the same as demand deposits. Neither the Administrative Agent, any other Secured Party nor any of their respective directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Pledgor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof.
13. Authorization of Financing Statements. Each Pledgor authorizes the Administrative Agent to prepare and file financing statements with respect to the Collateral in such form and in such filing offices as the Administrative Agent reasonably determines appropriate to perfect the security interests of the Administrative Agent under this Pledge Agreement. Such financing statements may describe the collateral in the same manner as described herein or may contain an indication or description of collateral that describes such property in any other manner as the Administrative Agent may determine is necessary or advisable to ensure the perfection of the security interest in the collateral granted to the Administrative Agent in connection herewith.
14. Authority of Administrative Agent. Each Pledgor acknowledges that the rights and responsibilities of the Administrative Agent under this Pledge Agreement with respect to any action taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Pledge Agreement shall, as between the Administrative Agent and the other Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Administrative Agent and such Pledgor, the Administrative Agent shall be conclusively presumed to be acting as agent for the other Secured Parties with full and valid authority so to act or refrain from acting, and neither any Pledgor nor any Issuer shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
15. Notices. All notices shall be given or made in accordance with Section 11.1 of the Credit Agreement.
16. Severability. Any provision of this Pledge Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
17. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) None of the terms or provisions of this Pledge Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by the Pledgors and the Administrative Agent; provided that any provision of this Pledge Agreement may be waived by the Administrative Agent and the Secured Parties in a letter or agreement executed by the Administrative Agent or by facsimile or email transmission from the Administrative Agent.
(b) Neither the Administrative Agent nor any Secured Party shall by any act (except by a written instrument pursuant to Section 17(a) hereof), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising on the part of the Administrative Agent any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Administrative Agent of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Administrative Agent would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
18. Section Headings. The section headings used in this Pledge Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Pledge Agreement shall be binding upon the successors and assigns of the Pledgors and shall inure to the benefit of the Administrative Agent and the other Secured Parties and their successors and assigns, provided that the Pledgors may not assign any of their rights or obligations under this Pledge Agreement without the prior written consent of the Administrative Agent and any such purported assignment without such prior written consent shall be null and void.
20. Term of Agreement. This Pledge Agreement and the security interests granted hereunder shall remain in full force and effect until the Facility Termination Date, at which time this Pledge Agreement shall be automatically terminated (other than with respect to obligations under this Pledge Agreement that expressly survive such termination) and (a) the Pledgors shall be entitled to the return, at the Pledgors’ expense, of any and all funds in the Collateral Account and such of the Collateral held by the Administrative Agent as shall not have been sold or otherwise applied pursuant to the terms hereof and (b) the Administrative Agent shall, at the Pledgors’ expense, execute and deliver to the Pledgors such UCC termination statements and other documents as the Pledgors shall reasonably request to evidence such release and termination.
21. Joint and Several Obligations of Pledgors.
(a) Each of the Pledgors is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the holders of the Secured Obligations, for the mutual benefit, directly and indirectly, of each of the Pledgors and in consideration of the undertaking of each of the Pledgors to accept joint and several liability for the obligations of each of them.
(b) Each of the Pledgors jointly and severally hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Pledgors with respect to the payment and performance of all of the Secured Obligations arising under this Pledge Agreement, the other Credit Documents and any other documents relating to the Secured Obligations, it being the intention of the parties hereto that all the Secured Obligations shall be the joint and several obligations of each of the Pledgors without preferences or distinction among them.
(c) Notwithstanding any provision to the contrary contained herein, in any other of the Credit Documents or in any other documents relating to the Secured Obligations the obligations of each Guarantor under the Credit Agreement and the other Credit Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any applicable state law.
22. GOVERNING LAW; Submission to Jurisdiction; Venue; Service of Process; WAIVER OF RIGHT TO TRIAL BY JURY; Acknowledgement Regarding Any Supported QFCs. The terms of Sections 11.12, 11.13 and 11.25 of the Credit Agreement with respect to governing law, submission to jurisdiction, waiver of venue, service of process, waiver of right to trial by jury and acknowledgement regarding any supported QFCs are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
23. Counterparts. This Pledge Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Pledge Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Pledge Agreement by fax transmission or e-mail transmission (e.g., “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart of this Pledge Agreement. Without limiting the foregoing, to the extent a manually executed counterpart is not specifically required to be delivered under the terms hereof, upon the request of any party, such fax transmission or e-mail transmission shall be promptly followed by such manually executed counterpart.
24. Consent of Issuers of Pledged Stock. Any Pledgor that is a Credit Party hereby acknowledges, consents and agrees to the grant of the security interests in such Pledged Stock by the applicable Pledgors pursuant to this Pledge Agreement, together with all rights accompanying such security interest as provided by this Pledge Agreement and applicable law, notwithstanding any anti-assignment provisions in any operating agreement, limited partnership agreement or similar organizational or governance documents of such Issuer.
25. Joinder. At any time after the date of this Pledge Agreement, one or more additional Persons may become party hereto by executing and delivering to the Administrative Agent a Joinder Agreement in the form of Schedule 7.12 to the Credit Agreement or such other form acceptable to the Administrative Agent. Immediately upon such execution and delivery of such Joinder Agreement (and without any further action), each such additional Person will become a party to this Pledge Agreement as a “Pledgor” and have all of the rights and obligations of a Pledgor hereunder and this Pledge Agreement and the schedules hereto shall be deemed amended by such Joinder Agreement.
26. Releases of Collateral. If any Collateral shall be sold, transferred or otherwise disposed of by any Pledgor in a transaction permitted by the Credit Agreement, then the Administrative Agent, at the request and sole expense of such Pledgor, shall promptly execute and deliver to such Pledgor all releases and other documents, and take such other action, reasonably necessary for the release of the Liens created hereby or by any other Credit Document on such Collateral. The Administrative Agent may release any of the Pledged Stock from this Pledge Agreement or may substitute any of the Pledged Stock for other Pledged Stock without altering, varying or diminishing in any way the force, effect, lien, pledge or security interest of this Pledge Agreement as to any Pledged Stock not expressly released or substituted, and this Pledge Agreement shall continue as a first priority Lien on all Pledged Stock not expressly released or substituted.
27. Marshaling. The Secured Parties shall not be required to marshal any present or future collateral security (including but not limited to the Collateral) for, or other assurances of payment of, the Secured Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order, and all of its rights and remedies hereunder and in respect of such collateral security and other assurances of payment shall be cumulative and in addition to all other rights and remedies, however existing or arising. To the extent that it lawfully may, each Pledgor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of the Administrative Agent’s rights and remedies under this Pledge Agreement or under any other instrument creating or evidencing any of the Secured Obligations or under which any of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, each Pledgor hereby irrevocably waives the benefits of all such laws.
28. Amendment and Restatement. The parties to the Existing Pledge Agreement each hereby agree that the Existing Pledge Agreement automatically shall be deemed amended, superseded and restated in its entirety by this Pledge Agreement. All indebtedness, obligations, liabilities and liens created by the Existing Pledge Agreement shall continue unimpaired and in full force and effect, as amended and restated in this Pledge Agreement. This Pledge Agreement does not constitute a novation of the obligations and liabilities existing under the Existing Pledge Agreement, and this Pledge Agreement evidences the obligations of the Pledgors under the Existing Pledge Agreement as continued and amended and restated hereby.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have caused this Pledge Agreement to be duly executed and delivered as of the date first above written.
|
PLEDGORS:
SPEEDWAY MOTORSPORTS, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Vice Chairman, Chief Financial Officer and Treasurer
SPEEDWAY FUNDING, LLC, a Delaware limited liability company
By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: President and Chief Financial Officer
SPEEDWAY HOLDINGS II, LLC, a North Carolina limited liability company
By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Vice President and Chief Financial Officer
[Signature Pages Continue] |
SPEEDWAY MOTORSPORTS, INC.
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
|
ATLANTA MOTOR SPEEDWAY, LLC, a Georgia limited liability company BRISTOL MOTOR SPEEDWAY, LLC, a Tennessee limited liability company CHARLOTTE MOTOR SPEEDWAY, LLC, a North Carolina limited liability company INEX CORP., a North Carolina corporation KENTUCKY RACEWAY, LLC a Kentucky limited liability company NEVADA SPEEDWAY, LLC, a Delaware limited liability company New Hampshire Motor Speedway, Inc., a New Hampshire corporation SMI SYSTEMS, LLC a Nevada limited liability company SMI TRACKSIDE, LLC, a North Carolina limited liability company SMISC HOLDINGS, LLC, a North Carolina limited liability company SPEEDWAY MEDIA, LLC, a North Carolina limited liability company SPEEDWAY SONOMA, LLC, a Delaware limited liability company TEXAS MOTOR SPEEDWAY, INC., a Texas corporation U.S. Legend Cars International, Inc., a North Carolina corporation
By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Executive Vice President
SPEEDWAY TBA, LLC, a North Carolina limited liability company
By: Speedway Motorsports, Inc., its Sole Member
By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Vice Chairman, Chief Financial Officer and Treasurer
[Signature Pages Continue] |
SPEEDWAY MOTORSPORTS, INC.
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
|
SPEEDWAY PROPERTIES COMPANY, LLC, a Delaware limited liability company SPEEDWAY FUNDING II, Inc., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: President and Chief Financial Officer
[Signature Pages Continue] |
SPEEDWAY MOTORSPORTS, INC.
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
|
ADMINISTRATIVE AGENT: |
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Xxxxxxxx X. Manduk Xxxxx Name: Xxxxxxxx X. Manduk Xxxxx Title: Vice President |
SPEEDWAY MOTORSPORTS, INC.
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
Schedule 1
Description of Pledged Stock
|
Pledgor
|
Issuer |
Cert. No. |
No. of Shares |
|
Speedway Holdings II, LLC |
Speedway Motorsports, Inc. |
1 |
1 |
|
Speedway Motorsports, Inc. |
Atlanta Motor Speedway, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Bristol Motor Speedway, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Charlotte Motor Speedway, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
New Hampshire Motor Speedway, Inc. |
9 |
322 |
|
Speedway Motorsports, Inc. |
Texas Motor Speedway, Inc. |
1 |
1,000 |
|
Speedway Motorsports, Inc. |
SMISC Holdings, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Speedway Sonoma, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Kentucky Raceway, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Speedway TBA, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Nevada Speedway, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Speedway Funding, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Speedway Funding II, Inc. |
1 |
100 |
|
Charlotte Motor Speedway, LLC |
INEX Corp. |
1 |
5,000 |
|
Charlotte Motor Speedway, LLC |
U.S. Legend Cars International, Inc. |
5 |
5,000 |
|
Speedway Properties Company, LLC |
Speedway Media, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
Speedway Properties Company, LLC |
N/A |
N/A |
|
Speedway Motorsports, Inc. |
SMI Systems, LLC |
N/A |
N/A |
|
SMISC Holdings, LLC |
SMI Trackside, LLC |
N/A |
N/A |
Schedule 2
Form of Irrevocable Stock Power
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the following shares of capital stock of , a :
| Certificate No. | No. of Shares |
and irrevocably appoints
its agent and attorney-in-fact to transfer all or any part of such capital stock and to take all necessary and appropriate action to effect any such transfer. The agent and attorney-in-fact may substitute and appoint one or more persons to act for him.
| Date: | , | |
| a | ||
| By: | ||
| Name: | ||
| Title: |
| Witnessed by: | [Signature Guaranteed:] | |
