Exhibit 10.15
(CONFIDENTIAL PORTIONS HAVE BEEN OMITTED, AS INDICATED BY "*", AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION)
AMENDMENT NUMBER 1 TO
ASSET PURCHASE AGREEMENT
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THIS AMENDMENT NUMBER 1 (this "Amendment") TO THE ASSET PURCHASE AGREEMENT
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is made and entered into as of the 31st day of January, 2002, by and between
SPEEDWAY SYSTEMS LLC, a North Carolina limited liability company d/b/a "Finish
Line Events" ("Systems"), CHARLOTTE MOTOR SPEEDWAY, LLC, a Delaware limited
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liability company ("Charlotte"), TEXAS MOTOR SPEEDWAY, INC., a Texas corporation
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("Texas"), and BRISTOL MOTOR SPEEDWAY, INC., a Tennessee corporation ("Bristol"
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and, together with Systems, Charlotte and Texas, collectively, "Sellers" and
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each, individually, a "Seller"), and LEVY PREMIUM FOODSERVICE LIMITED
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PARTNERSHIP, an Illinois limited partnership ("Buyer").
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RECITALS
WHEREAS, Sellers and Buyer entered an Asset Purchase Agreement dated
November 29, 2001 (the "Asset Purchase Agreement");
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WHEREAS, the Asset Purchase Agreement contemplated a "Closing Date
Deadline" of January 31, 2002, which may not be attainable due to the parties
not being able to receive all necessary consents and licenses required under
Section VIII of the Asset Purchase Agreement;
WHEREAS, the parties wish to close the Asset Purchase Agreement no later
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than February 28, 2002; and
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WHEREAS, the parties wish to make certain amendments to the Asset Purchase
Agreement with respect to the Boston Concessions Contract and the Equipment (as
hereinafter defined) located in Illinois.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged by Sellers and Buyer, the
parties hereto agree as follows:
1. Concerning the Closing Date Deadline. The current Section 1.5 of the
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Asset Purchase Agreement shall be deleted and replaced in its entirety as
follows:
"Section 1.5. "Closing" means the consummation and effectuation of the
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transactions contemplated herein pursuant to the terms and conditions
of the Agreement which shall be held in the offices of Sellers on such
date and time as is reasonably agreed by the parties hereto provided
that all conditions to Closing have been satisfied or duly
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waived at such time. The Closing shall be deemed effective as of the
close of business on the Closing Date, but in all events shall occur
no later than February 28, 2002 (the "Closing Date Deadline")."
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2. Concerning the Boston Concessions Contract.
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(a) Schedule 1.9 (Excluded Assets) to the Asset Purchase Agreement
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is hereby amended in its entirety to read in accordance with Schedule 1.9
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attached hereto, and Schedule 3.2 (Assumed Liabilities) to the Asset Purchase
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Agreement is hereby amended in its entirety to read in accordance with Schedule
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3.2 attached hereto.
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(b) In the event that Bristol is obligated, in accordance with
Paragraph 1 of Section I of the Boston Concessions Contract, to purchase any
further equipment, Buyer shall be obligated to reimburse Bristol for the cost of
such equipment. Upon receipt of such reimbursement for any purchased equipment,
Bristol shall transfer title to such equipment to Buyer, free and clear of all
Encumbrances other than Encumbrances for personal property, use and other ad
valorem taxes not yet due and payable and Encumbrances securing the Assumed
Liabilities. All such equipment shall be deemed to be "Manager's Equipment" for
purposes of the Management Agreement. Bristol will consult with Buyer prior to
purchasing any such equipment. Upon the reasonable request of Buyer in writing,
Bristol shall enforce against Boston Concessions Bristol's rights under the
Boston Concessions Contract.
(c) Paragraph (e) of Section 3.1 is hereby amended in its entirety,
and a new paragraph (f) of Section 3.1 is hereby added, all as follows:
(e) After the Closing, Buyer shall pay to Sellers'
Agent, by wire transfer to an account or accounts designated
by Sellers' Agent from time to time, the following amounts:
(i) * percent (* %) of gross receipts under the
respective Baseball Contracts (provided, however, the
amount payable to Sellers' Agent with respect to the
Xxx Xxxxxx Baseball Contract shall not exceed * per
year during the term of said Contract); for purposes
of this Subsection (e), the term "gross receipts"
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means "Gross Revenue", "Gross Receipts", or other
applicable expression of gross revenues under the
respective Baseball Contracts, as more fully set forth
in Schedule 3.1(e) attached hereto.
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(ii) * percent (* %) of all gross receipts,
including without limitation from concessions
operations and catering operations, under the Beach
Contract; and
(iii) * percent (* %) of the management fee
payable under the Carolina Baseball Contract.
* Confidential portion has been omitted and filed seprately with the Commission.
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The amounts payable under this Subsection (e) are herein
called the "Concessions Payments." The Concessions Payments
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will be paid to Sellers' Agent, by wire transfer to an
account or accounts designated by Sellers' Agent, not later
than the end of the month which next follows the month in
which the applicable amounts are paid to Buyer under the
Concessions Contracts. Such payment shall be accompanied by
a statement (the "Statement") setting forth in reasonable
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detail the calculation of such payment. At any time during
the term of the Management Agreement, and for a period of
one (1) calendar year thereafter, Sellers' Agent and its
designated representatives (including outside accountants)
shall have the opportunity, at their sole cost and expense
(subject to the provisions set forth below), to inspect the
books and records of Buyer to verify the figures contained
in each Statement. In the event that Sellers' Agent disputes
such figures, Sellers' Agent shall deliver a written notice
of such dispute to Buyer ("Dispute Notice"). If Sellers'
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Agent and Buyer are unable to resolve such dispute within
ninety (90) days following the delivery of the Dispute
Notice, Sellers' Agent and Buyer shall immediately submit
the dispute for resolution to a nationally recognized public
accounting firm to be mutually agreed to by Sellers' Agent
and Buyer (the "Accounting Firm"). The determination of
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Gross Receipts and the applicable payments hereunder made by
the Accounting Firm after a full and complete inspection of
Buyer's books and records shall be final and binding upon
the parties. If the Accounting Firm determines that the
computation of Gross Receipts or the applicable payments
hereunder contained in any Statement is inaccurate, then
either Sellers shall promptly pay to Buyer or Buyer shall
promptly pay to Sellers, such amount as is necessary to
reflect the adjustment of Gross Receipts or the applicable
payments hereunder based upon the Accounting Firm's
determinations (the "Adjusted Amount"). If the Accounting
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Firm determines that the computation of Gross Receipts or
the applicable payments hereunder contained in any
Statement, is understated by five percent (5%) or more,
then, in addition to the Adjusted Amount, Buyer shall pay
the entire cost of the Accounting Firm's engagement. In all
other events, the cost of the Accounting Firm's engagement
and the costs of Sellers' inspection of the books and
records of Buyer shall be borne by Sellers.
(f) After the Closing, Bristol shall pay to Buyer, by
wire transfer to an account or accounts designated by Buyer,
* percent (* %) of all compensation payable by Boston
Concessions to Bristol under the Boston Concessions
Contract. Such payments by Bristol shall be made not later
than the end of the month which next
* Confidential portion has been omitted and filed seprately with the Commission.
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under the Boston Concessions Contract. Each of such payments
by Bristol shall be accompanied by a statement (the "Boston
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Statement") setting forth in reasonable detail the
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calculation of such payment. The Subsection 3.1(e) above
shall be applicable mutatis mutandis to Buyer's right to
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inspect Bristol's books and records, and dispute Bristol's
figures, with respect to each Boston Statement.
3. Concerning the Equipment in Illinois. Schedule 4.3 (Encumbrances) to
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the Asset Purchase Agreement is hereby amended in its entirety to read in
accordance with Schedule 4.3 attached hereto. Buyer agrees that the sale of the
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Purchased Assets under the Asset Purchase Agreement is subject to the matters
set forth in said Schedule 4.3.
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4. Concerning Schedule 4.5. Schedule 4.5 (Litigation) is hereby amended
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to read in its entirety in accordance with Schedule 4.5 attached hereto.
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5. Ratification of Agreement. Except as hereby amended, all of the terms
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and provisions contained in the Asset Purchase Agreement are hereby ratified by
each of the parties hereto, and such terms and conditions shall continue in full
force and effect.
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of
the day and year first above written.
SELLERS:
SPEEDWAY SYSTEMS LLC
By: /s/ Xxxxxxx X. Xxxxxx, VP
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Name: Xxxxxxx X. Xxxxxx
Title: VP
CHARLOTTE MOTOR SPEEDWAY, LLC
By: /s/ Xxxxxxx X. Xxxxxx, VP
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Name: Xxxxxxx X. Xxxxxx
Title: VP
TEXAS MOTOR SPEEDWAY, INC.
By: /s/ Xxxxxxx X. Xxxxxx, VP
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Name: Xxxxxxx X. Xxxxxx
Title: VP
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BRISTOL MOTOR SPEEDWAY, INC.
By: /s/ Xxxxxxx X. Xxxxxx, VP
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Name: Xxxxxxx X. Xxxxxx
Title: VP
BUYER:
LEVY PREMIUM FOODSERVICE LIMITED
PARTNERSHIP, an Illinois limited partnership
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer of its General Partner
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