AMENDMENT NO. 1 TO LOAN, GUARANTY AND SECURITY AGREEMENT
This AMENDMENT NO. 1 (the "Amendment") is dated as of July 16,
1999 and entered into by and among Xxxxxxx Sports Inc., a Delaware corporation
(the "Parent Guarantor"), each of Xxxxxxx, Inc., an Illinois corporation, All
American Sports Corporation, a Delaware corporation, Varsity Spirit Corporation,
a Tennessee corporation, and Varsity Spirit Fashions & Supplies, Inc., a
Minnesota corporation, (collectively, the "Borrower"), each of the Subsidiary
Guarantors (as defined in the Credit Agreement referred to below), each of Bank
of America National Trust and Savings Association and American National Bank and
Trust Company of Chicago (collectively, the "Lenders") and Bank of America
National Trust and Savings Association, as agent (the "Agent").
RECITALS
WHEREAS, the parties hereto entered into the Loan, Guaranty and
Security Agreement (as amended, amended and restated, supplemented or otherwise
modified, the "Credit Agreement") dated as of April 20, 1999. Capitalized terms
used herein without definition shall have the meanings assigned to them in the
Credit Agreement;
WHEREAS, the parties hereto desire to make certain amendments to
the Credit Agreement as set forth below; and
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows;
Article I
AMENDMENTS TO THE CREDIT AGREEMENT
1.01 Amendments to Section 9.25 of the Credit Agreement. Section
9.25 of the Credit Agreement is hereby amended by deleting the amount
"$25,700,000" as it appears in the sixth line from the bottom of said Section
and inserting the amount "$35,700,000" in lieu thereof.
1.02 Amendment to Section 9.28. Section 9.28 of the Credit
Agreement is hereby amended by deleting the number "90" therefrom and inserting
the number "120" in lieu thereof.
1.03 Amendment to Schedule 8.3. Schedule 8.3 to the Credit
Agreement is hereby amended by deleting, in each place it appears, the number
"90" referred to therein and inserting the number "120" in lieu thereof.
Article II
EFFECTIVENESS OF AMENDMENTS
This Amendment shall become effective on the opening of business
in New York on the Business Day on which the Agent notifies the Borrower that it
has executed a counterpart signature page of this Amendment, and has received
executed counterpart signature pages of this Amendment from the Borrower, the
Parent Guarantor, the Subsidiary Guarantors and the Lenders.
Article III
MISCELLANEOUS
3.01 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(a) This Amendment modifies the Credit Agreement to the extent set
forth herein, is hereby incorporated by reference into the Credit Agreement and
is made a part thereof. On and after the effective date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement shall mean and be a reference
to the Credit Agreement as amended by this Amendment.
(b) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(c) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the
Lenders or the Agent under the Credit Agreement or any of the other Loan
Documents. This Amendment is limited to the precise terms hereof and shall not
operate as a present or future waiver of any similar or other provisions of the
Credit Agreement not expressly provided for herein, nor shall this Amendment
prevent the Agent or the Lenders from exercising any other right, power, remedy
or privilege pursuant to the Credit Agreement.
3.02 No Default or Event of Default. On the date of effectiveness
of the amendments herein, the Parent Guarantor, the Subsidiary Guarantors and
the Borrower shall be deemed to have certified to the Lenders and the Agent
that, after giving effect to the amendments contained herein, on such date no
Default or Event of Default is in existence, and all of their representations
and warranties contained in the Credit Agreement and the other Loan Documents
are true and correct on and as of the date thereof with the same effect as if
made on and as of such date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date).
-2-
3.03 Headings. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
3.04 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
3.05 Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute one and the same instrument.
3.06 Guarantor Consent. Without affecting in any way the
provisions of the Guarantee pursuant to which each of the Guarantors waives its
right to consent to changes in the Loan Documents and agrees that its
obligations under the Guarantee remain in full force and effect notwithstanding
any such change, by its signature below, each Guarantor hereby consents to the
amendments provided for herein and agrees that the Guarantee is and remains in
full force and effect and applies to the Credit Agreement and the other Loan
Documents as amended hereby.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have entered into this Agreement
on the date first above written.
"PARENT GUARANTOR"
Xxxxxxx Sports Inc.
By: /s/ Xxxxxx Sports Inc.
------------------------------------
Title:
"BORROWERS"
Xxxxxxx, Inc.
By: /s/ Xxxxxxx, Inc.
-------------------------------------
Title:
All American Sports Corporation
By: /s/ All American Sports Corporation
------------------------------------
Title:
Varsity Spirit Fashions & Supplies, Inc.
By: /s/ Varsity Spirit Fashions & Supplies,
Inc.
------------------------------------
Title:
Varsity Spirit Corporation
By: /s/ Varsity Spirit Corporation
------------------------------------
Title:
"SUBSIDIARY GUARANTORS"
Equilink Licensing Corp.
By: /s/ Equilink Licensing Corp.
------------------------------------
Title:
-4-
MacMark Corporation
By: /s/ MacMark Corporation
------------------------------------
Title:
RHC Licensing Corp.
By: /s/ RHC Licensing Corp.
------------------------------------
Title:
Ridmark Corporation
By: /s/ Ridmark Corporation
------------------------------------
Title:
Proacq. Corp.
By: /s/ Proacq. Corp.
------------------------------------
Title:
Varsity USA, Inc.
By: /s/ Varsity USA, Inc.
------------------------------------
Title:
Varsity/Intropa Tours, Inc.
By: /s/ Varsity/Intropa Tours, Inc.
------------------------------------
Title:
International Logos, Inc.
By: /s/ International Logos, Inc.
------------------------------------
Title:
"LENDERS"
By:
------------------------------------
Title:
-5-
Bank of America National Trust and Savings
Association, as a Lender
By: /s/ Bank of America National Trust and
Savings Association
------------------------------------
Title: Vice President
American National Bank and Trust Company of
Chicago
By: /s/ American National Bank and Trust
Company of Chicago
------------------------------------
Title:
"AGENT"
Bank of America National Trust and Savings
Association, as the Agent
By: /s/ Bank of America National Trust and
Savings Association
------------------------------------
Title: Vice President
-6-
AMENDMENT NO. 2 TO LOAN, GUARANTY AND SECURITY AGREEMENT
This AMENDMENT NO. 2 (the "Amendment") is dated as of January 1,
2000 and entered into by and among Xxxxxxx Sports Inc., a Delaware corporation
(the "Parent Guarantor"), each of Xxxxxxx, Inc., an Illinois corporation, All
American Sports Corporation, a Delaware corporation, Varsity Spirit Corporation,
a Tennessee corporation, and Varsity Spirit Fashions & Supplies, Inc., a
Minnesota corporation, (collectively, the "Borrower"), each of the Subsidiary
Guarantors (as defined in the Credit Agreement referred to below), each of Bank
of America, N.A. (f/k/a Bank of America National Trust and Savings Association)
and American National Bank and Trust Company of Chicago (collectively, the
"Lenders") and Bank of America, N.A., as agent (the "Agent").
RECITALS
WHEREAS, the parties hereto entered into the Loan, Guaranty and
Security Agreement (amended by Amendment No. 1 thereto, and as further amended,
amended and restated, supplemented or otherwise modified, the "Credit
Agreement") dated as of April 20, 1999. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Credit Agreement;
WHEREAS, the parties hereto desire to make certain amendments to
the Credit Agreement as set forth below; and
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
Article I
AMENDMENTS TO THE CREDIT AGREEMENT
1.01 Amendments to Definition of Availability. Clause (a) of the
definition of Availability is hereby amended by adding the following Clause (G)
thereto after "(F) Seasonal Overadvance" and before "; provided":
, or (G) in lieu of and without duplication with any Seasonal
Overadvance, during the period from January 1, 2000 to March 31,
2000 only, the "Winter 2000 Overadvance Availability" (for the
purposes of this Agreement, "Winter 2000 Overadvance Availability"
means (a) the lesser of (i) $5,000,000 or (ii) 30% of the
outstanding amounts due to the Borrower in respect of Accounts
created in the ordinary course of the
Borrower's business that are not Eligible Accounts, minus (b) the
net proceeds of the rights offering described in the Parent
Guarantor's press release dated December 14, 1999 or any similar
offering of equity interests by the Parent Guarantor or the
Borrower remaining after deduction for expenses incurred in
connection with any such offering and deduction for amounts to be
expended during the first calendar quarter of 2000 for the
Borrower's "Internet venture" previously described to the Lenders
(which net proceeds the Parent Guarantor and the Borrower hereby
agree to use to prepay the Loans based on Availability by use of
the Winter 2000 Overadvance Availability in the amount of such net
proceeds); provided, however that in no event shall the Winter
2000 Overadvance Availability exist or otherwise be in effect once
any Seasonal Overadvance Availability has been utilized on or
after March 15, 2000 or otherwise after March 31, 2000).
1.02 Amendment to Article 3. Article 3 of the Credit Agreement is
hereby amended by adding thereto the following Section 3.9:
3.9 Winter 2000 Overadvance Availability. The Borrower agrees to
pay to the Agent, for the ratable account of the Lenders, on
the date that the Borrower executes Amendment No. 2 to this
Agreement a fee of $25,000, and on the date that the
Borrower's use of Availability based on the Winter 2000
Overadvance Availability exceeds $1,000,000, an additional
fee of $25,000 (making for a total fee under such
circumstances of $50,000), which fees shall be
non-refundable and fully earned on each such payment date.
1.03 Amendment to Section 9.23. Section 9.23 of the Credit
Agreement is hereby amended by deleting the number of "$2,250,000" opposite
"12/31/99" and inserting in lieu thereof the number "$3,000,000".
Article II
EFFECTIVENESS OF AMENDMENTS
This Amendment shall become effective on the opening of
business in New York on the Business Day on which the Agent notifies the
Borrower that it has executed a counterpart signature page of this
Amendment, and has received executed counterpart signature pages of this
Amendment from the Borrower, the Parent Guarantor, the Subsidiary Guarantors and
the Lenders.
Article III
MISCELLANEOUS
3.01 Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
(a) This Amendment modifies the Credit Agreement to the extent set
forth herein, is hereby incorporated by reference into the Credit Agreement and
is made a part thereof. On and after the effective date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement shall mean and be a reference
to the Credit Agreement as amended by this Amendment.
(b) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(c) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the
Lenders or the Agent under the Credit Agreement or any of the other Loan
Documents. This Amendment is limited to the precise terms hereof and shall not
operate as a present or future waiver of any similar or other provisions of the
Credit Agreement not expressly provided for herein, nor shall this Amendment
prevent the Agent or the Lenders from exercising any other right, power, remedy
or privilege pursuant to the Credit Agreement.
3.02 No Default or Event of Default. On the date of effectiveness
of the amendments herein, the Parent Guarantor, the Subsidiary Guarantors and
the Borrower shall be deemed to have certified to the Lenders and the Agent
that, after giving effect to the amendments contained herein, on such date no
Default or Event of Default is in existence, and all of their representations
and warranties contained in the Credit Agreement and the other Loan Documents
are true and correct on and as of the date thereof with the same effect as if
made on and as of such date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date).
3.03 Headings. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
3.04 Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
3.05 Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute one and the same instrument.
3.06 Guarantor Consent. Without affecting in any way the
provisions of the Guarantee pursuant to which each of the Guarantors waives its
right to consent to changes in the Loan Documents and agrees that its
obligations under the Guarantee remain in full force and effect notwithstanding
any such change, by its signature below, each Guarantor hereby consents to the
amendments provided for herein and agrees that the Guarantee is and remains in
full force and effect and applies to the Credit Agreement and the other Loan
Documents as amended hereby.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have entered into this Agreement on the date
first above written.
"PARENT GUARANTOR"
Xxxxxxx Sports Inc.
By: /s/ Xxxxxxx Sports Inc.
---------------------------------------------
Title:
"BORROWERS"
Xxxxxxx, Inc.
By: /s/ Xxxxxxx, Inc.
---------------------------------------------
Title:
All American Sports Corporation
By: /s/ All American Sports Corporation
---------------------------------------------
Title:
Varsity Spirit Fashions & Supplies, Inc.
By: /s/ Varsity Spirit Fashions & Supplies, Inc.
---------------------------------------------
Title:
Varsity Spirit Corporation
By: /s/ Varsity Spirit Corporation
---------------------------------------------
Title:
"SUBSIDIARY GUARANTORS"
Equilink Licensing Corp.
By: /s/ Equilink Licensing Corp.
---------------------------------------------
Title:
MacMark Corporation
By: /s/ MacMark Corporation
---------------------------------------------
Title:
RHC Licensing Corp.
By: /s/ RHC Licensing Corp.
---------------------------------------------
Title:
Ridmark Corporation
By: /s/ Ridmark Corporation
---------------------------------------------
Title:
Proacq. Corp.
By: /s/ Proacq. Corp.
---------------------------------------------
Title:
Varsity USA, Inc.
By: /s/ Varsity USA, Inc.
---------------------------------------------
Title:
Varsity/Intropa Tours, Inc.
By: /s/ Varsity/Intropa Tours, Inc.
---------------------------------------------
Title:
International Logos, Inc.
By: /s/ International Logos, Inc.
---------------------------------------------
Title:
"LENDERS"
Bank of America, N.A. (f/k/a Bank of America
National Trust and Savings Association), as a
Lender
By: /s/ Bank of America, N.A.
---------------------------------------------
Title: Vice President
American National Bank and Trust Company of
Chicago, as a Lender
By: /s/ American National Bank and Trust
Company of Chicago
---------------------------------------------
Title:
"AGENT"
Bank of America, N.A. (f/k/a Bank of America
National Trust and Savings Association), as the
Agent
By: /s/ Bank of America, N.A.
--------------------------------------------
Title: Vice President
