Exhibit 10.46
AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE
AGREEMENT dated as of July 14, 2009 (as amended and modified,
the “ Pledge Agreement ” or this “
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 Lenders (as
hereinafter defined) under the Credit Agreement described below and
any Affiliates of Lenders which are party to any Hedge
Agreements.
W I T N E S S E T H
WHEREAS, 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 Credit Agreement dated as May 16,
2003 (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;
WHEREAS, in connection with the
Existing Credit Agreement, the Borrowers, the Guarantors and the
Agent entered into (i) that certain Pledge Agreement dated as
of May 16, 2003, (ii) that certain Pledge Agreement dated
as of June 28, 2004, (iii) that certain Pledge Agreement
dated as of May 15, 2006 and (iv) that certain Pledge
Agreement dated as of January 23, 2008 (as amended, modified,
extended, renewed, restated, replaced or supplemented prior to the
date hereof, the “ Existing Pledge Agreements
”);
WHEREAS, the Borrowers, the
Guarantors, the Lenders and the Agent have entered into that
certain 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; and
WHEREAS, in connection with the
Credit Agreement, the Lenders and the Pledgors have agreed to amend
and restate (but not effect a novation of) the Existing Pledge
Agreements in accordance with the terms of this Pledge
Agreement.
NOW, THEREFORE, in consideration of
the premises and to induce the Administrative Agent and the Lenders
to enter into the Credit Agreement and to induce the Lenders to
make their respective loans and extensions of credit thereunder,
the Pledgors hereby agree with the Administrative Agent, for the
ratable benefit of the Lenders, to amend and restate the Existing
Pledge Agreement in its entirety 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; provided, for purposes hereof,
“Lender” shall include any Affiliate of a Lender that
has entered into a Hedge Agreement with any Credit
Party.
(b) The following terms shall have
the following meanings:
“ 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 Lenders as provided in Section 8(a) hereof.
“ Issuers ”: the
collective reference to the companies identified on Schedule
1 hereto as the issuers of the Pledged Stock; individually,
each an “ Issuer .”
“ Pledged Stock
”: the shares of capital stock listed on Schedule 1
hereto, together with all stock certificates, options or rights of
any nature whatsoever that may be issued or granted by any Issuer
to a Pledgor in respect of the Pledged Stock while this Agreement
is in effect, including but not limited to the
following:
(i) all shares, securities,
membership interests or other equity interests representing a
dividend on any of the Pledged Stock, or representing a
distribution or return of capital upon or in respect of the Pledged
Stock, or resulting from a stock split, revision, reclassification
or other exchange therefor, and any subscriptions, warrants, rights
or options issued to the holder of, or otherwise in respect of, the
Pledged Stock; and
(ii) without affecting the
obligations of the Pledgor under any provision prohibiting such
action hereunder or under the Credit Agreement, in the event of any
consolidation or merger involving the Issuer in which the Issuer is
not the surviving entity, all Capital Stock of the successor entity
formed by or resulting from such consolidation or
merger.
“ Proceeds ”: all
“proceeds” as such term is defined in the Uniform
Commercial Code as in effect in the State of North Carolina on the
date hereof.
“ Secured Obligations
”: the collective reference to the following:
(a) All Borrowers’
Obligations; and
(b) the prompt payment, performance
and observance by the Guarantors of all obligations of the
Guarantors under the Credit Agreement and any other Credit
Documents to which any of the Guarantors is a party
(including,
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without limitation, payment of their
guaranty obligations under the Credit Agreement).
“ Securities Act
”: the Securities Act of 1933, as amended.
“ Uniform Commercial
Code ” or “ UCC ”: the Uniform
Commercial Code from time to time in effect in the State of North
Carolina.
(c) The words “hereof,”
“herein” and “hereunder” and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and section and paragraph references are to this
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 . Each of the Pledgors hereby delivers to the
Administrative Agent, for the ratable benefit of the Lenders, all
the Pledged Stock and hereby grants to the Administrative Agent,
for the ratable benefit of the Lenders, a first security interest
in the Collateral, as collateral security for the prompt and
complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Secured
Obligations.
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 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) 100% of the issued and outstanding shares of all classes
of capital stock of each Domestic Subsidiary of the Borrowers
(other than Unrestricted Subsidiaries) and (ii) 65% (or such
greater percentage which would not result in material adverse tax
consequences) of the issued and outstanding capital stock entitled
to vote (within the meaning of Treas. Reg.
Section 1.956-2(c)(2)) and 100% of the issued and outstanding
capital stock not entitled to vote (within the meaning of Treas.
Reg. Section 1.956-2(c)(2)) of each Foreign Subsidiary of the
Borrowers.
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(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 the security
interests created by this Agreement.
(d) Upon delivery to the
Administrative Agent of any stock certificates evidencing the
Pledged Stock, the security interest created by this Agreement will
constitute a valid, perfected first priority security interest in
the Collateral, 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” (as such
term is defined in the UCC).
5. Covenants . Each Pledgor
covenants and agrees with the Administrative Agent and the Lenders
that, from and after the date of this Agreement until the Secured
Obligations have been satisfied in full and the Commitments have
been terminated:
(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 Administrative Agent and
the Lenders, hold the same in trust for the Administrative Agent
and the Lenders 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
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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
Lenders, 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 Agreement 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 Agreement as first, 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 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
Agreement.
(d) The Pledgor shall pay, and save
the Administrative Agent and the Lenders 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 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
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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 (as such term is defined in
the UCC).
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 cas
