SEVENTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.37
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT, dated as of April 11, 2008 with an effective date of December 31, 2007 (this Amendment), relating to the Credit Agreement referenced below, is by and among Speedway Motorsports, Inc., a Delaware corporation (SMI), and Speedway Funding, LLC, a Delaware limited liability company) (Speedway Funding and together with SMI, the Borrowers), the subsidiaries and related parties identified as Guarantors on the signature pages hereto, the Lenders identified on the signature pages hereto, Bank of America, N.A., a national banking association, as Administrative Agent for the Lenders (in such capacity, the Administrative Agent), Wachovia Bank, National Association, as Syndication Agent (in such capacity, the Syndication Agent), Calyon New York Branch (successor in interest to Credit Lyonnais New York Branch) and SunTrust Bank, as the Documentation Agents (in such capacity, the Documentation Agents), and Banc of America Securities LLC, as Lead Arranger and Book Manager for the Lenders. Terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $500 million credit facility has been extended to the Borrowers pursuant to the terms of that Credit Agreement dated as of May 16, 2003, as amended as of November 7, 2003, March 15, 2005, December 2, 2005, May 15, 2006, August 30, 2006 and as of January 10, 2008 (as amended and modified from time to time, the Credit Agreement) among the Borrowers, the subsidiaries and related parties identified as guarantors therein, the Lenders from time to time party thereto, Bank of America, N.A., as Administrative Agent, Wachovia Bank, National Association, as Syndication Agent, Credit Lyonnais, New York Branch, Fleet National Bank, and SunTrust Bank, as the Documentation Agents, and Banc of America Securities LLC, as Lead Arranger and Book Manager for the Lenders;
WHEREAS, the Borrowers have requested certain modifications to the Credit Agreement;
WHEREAS, the requested modifications require the approval of the Lenders;
WHEREAS, the Lenders have agreed to the requested modifications on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendment. The definition of Consolidated Net Income set forth in Section 1.1 of the Credit Agreement is amended to read as follows:
Consolidated Net Income means, for any period, with respect to the combined results of Speedway Motorsports and its Subsidiaries, the gross revenues from operations (including payments received of interest income) less all operating and non-operating expenses including taxes on income, all determined in accordance with GAAP; but excluding from the calculation of income: (i) net gains on the sale, conversion or other disposition of capital assets, (ii) net gains on the acquisition, retirement, sale or other disposition of Capital Stock and other securities issued by Speedway Motorsports and its Subsidiaries, (iii) net gains on the collection of proceeds of life insurance policies, (iv) any write-up of any asset, (v) the $12,000,000 loss taken by the Speedway Motorsports on early debt retirement in the second quarter of 2003, (vi) any other gain or loss of an extraordinary nature as determined in accordance with GAAP, and (vii) any other non-cash gain or loss of a non-recurring nature relating solely to Motorsports Authentics, LLC, a Delaware limited liability company.
2. Conditions Precedent. This Amendment shall be effective as of the date hereof upon satisfaction of each of the following conditions precedent:
(a) the execution of this Amendment by the Credit Parties and the Required Lenders; and
(b) receipt by the Administrative Agent of all other fees and expenses owing in connection with this Amendment.
3. Representations and Warranties. Each of the Credit Parties hereby represents and warrants in connection herewith that as of the date hereof (after giving effect hereto) (a) the representations and warranties set forth in Section 6 of the Credit Agreement are true and correct in all material respects (except those which expressly relate to an earlier date), and (b) no Default or Event of Default has occurred and is continuing under the Credit Agreement.
4. Acknowledgments, Affirmations and Agreements. Each of the Credit Parties (i) acknowledges and consents to all of the terms and conditions of this Amendment, (ii) affirms all of its obligations under the Credit Documents and (iii) agrees that this Amendment does not operate to reduce or discharge the Guarantors obligations under the Credit Agreement or the other Credit Documents.
5. Credit Agreement. Except as expressly modified hereby, all of the terms and provisions of the Credit Agreement remain in full force and effect.
6. Expenses. The Borrowers jointly and severally agree to pay all reasonable costs and expenses in connection with the preparation, execution and delivery of this Amendment, including the reasonable fees and expenses of the Administrative Agents legal counsel.
7. Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original. It shall not be necessary in making proof of this Amendment to produce or account for more than one such counterpart.
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8. Governing Law. This Amendment shall be deemed to be a contract under, and shall for all purposes be construed in accordance with, the laws of the State of North Carolina.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.
THE BORROWERS: | SPEEDWAY MOTORSPORTS, INC., | |||
a Delaware corporation | ||||
By: | /s/ William R. Brooks | |||
Name: | William R. Brooks | |||
Title: | Executive Vice President and Chief Financial Officer | |||
SPEEDWAY FUNDING, LLC, | ||||
a Delaware limited liability company | ||||
By: | /s/ William R. Brooks | |||
Name: | William R. Brooks | |||
Title: | President |
[Signatures Continue]
GUARANTORS: | 600 RACING, INC., | |||||
a North Carolina corporation | ||||||
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 | ||||||
LAS VEGAS MOTOR SPEEDWAY, LLC, | ||||||
a Delaware limited liability company | ||||||
MOTORSPORTS BY MAIL, LLC | ||||||
a North Carolina limited liability company | ||||||
NEVADA SPEEDWAY, LLC, | ||||||
a Delaware limited liability company | ||||||
SMI TRACKSIDE, LLC, | ||||||
a North Carolina limited liability company | ||||||
SMISC HOLDINGS, INC., | ||||||
a North Carolina corporation | ||||||
SPEEDWAY MEDIA, LLC, | ||||||
a North Carolina limited liability company | ||||||
SPEEDWAY PROPERTIES COMPANY, LLC, | ||||||
a Delaware limited liability company | ||||||
SPEEDWAY SONOMA, LLC, | ||||||
a Delaware limited liability company | ||||||
SPR, LLC, a Delaware limited liability company | ||||||
TEXAS MOTOR SPEEDWAY, INC., | ||||||
a Texas corporation | ||||||
TRACKSIDE HOLDING CORPORATION, | ||||||
a North Carolina corporation | ||||||
By: | /s/ William R. Brooks | |||||
Name: | William R. Brooks | |||||
Title: | Vice President | |||||
SPEEDWAY SYSTEMS LLC, | ||||||
a North Carolina limited liability company | ||||||
By: | SPR, LLC, | |||||
its manager | ||||||
By: | /s/ William R. Brooks | |||||
Name: | William R. Brooks | |||||
Title: | Vice President |
[Signatures Continue]
ADMINISTRATIVE AGENT: | BANK OF AMERICA, N.A., | |||
in its capacity as the Administrative Agent | ||||
By: | /s/ Bridgett J. Manduk | |||
Name: | Bridgett J. Manduk | |||
Title: | Assistant Vice President | |||
LENDERS: | BANK OF AMERICA, N.A., in its capacity as a Lender, Swingline Lender and Issuing Lender | |||
By: | /s/ Madison B. Wyche IV | |||
Name: | Madison B. Wyche IV | |||
Title: | Vice President | |||
CALYON NEW YORK BRANCH (successor in interest to Credit Lyonnais New York Branch), in its capacity as Documentation Agent and as a Lender | ||||
By: | /s/ Brian Myers | |||
Name: | Brian Myers | |||
Title: | Managing Director | |||
By: | /s/ Robert Smith | |||
Name: | Robert Smith | |||
Title: | Managing Director | |||
CAROLINA FIRST | ||||
By: | /s/ Charles D. Chamberlain | |||
Name: | Charles D. Chamberlain | |||
Title: | Executive Vice President | |||
COMERICA BANK | ||||
By: | /s/ Scott M. Kowalski | |||
Name: | Scott M. Kowalski | |||
Title: | Vice President |
[Signatures Continue]
FIRST TENNESSEE BANK NATIONAL ASSOCIATION | ||||
By: | /s/ Miles R. Snider | |||
Name: | Miles R. Snider | |||
Title: | Vice President | |||
FIRSTRUST BANK | ||||
By: | /s/ Ellen Frank | |||
Name: | Ellen Frank | |||
Title: | Vice President | |||
JPMORGAN CHASE BANK, N.A. | ||||
By: | /s/ Sean P. Golden | |||
Name: | Sean P. Golden | |||
Title: | Assistant Vice President | |||
RBC BANK | ||||
By: | /s/ Richard E. Anglin III | |||
Name: | Richard E. Anglin III | |||
Title: | Bank Officer | |||
REGIONS BANK | ||||
By: | /s/ Elaine Passman | |||
Name: | Elaine Passman | |||
Title: | Vice President | |||
SOVEREIGN BANK | ||||
By: | /s/ Kathryn McEnroe Williams | |||
Name: | Kathryn McEnroe Williams | |||
Title: | Vice President | |||
SUNTRUST BANK, in its capacity as Documentation Agent and as a Lender | ||||
By: | /s/ William C. Barr, III | |||
Name: | William C. Barr, III | |||
Title: | Managing Director |
[Signatures Continue]
US BANK NATIONAL ASSOCIATION | ||||
By: | /s/ Charles L. Thomas | |||
Name: | Charles L. Thomas | |||
Title: | Vice President | |||
WACHOVIA BANK, NATIONAL ASSOCIATION, in its capacity as Syndication Agent and as a Lender | ||||
By: | /s/ Douglas T. Davis | |||
Name: | Douglas T. Davis | |||
Title: | Senior Vice President | |||
TD BANKNORTH, N.A. | ||||
By: | /s/ John Mercier | |||
Name: | John Mercier | |||
Title: | Senior Vice President |