AMENDMENT NO. 6 TO LOAN AGREEMENT
EXHIBIT
99.4
Amendment
to Business Loan Agreement
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AMENDMENT
NO. 6 TO LOAN AGREEMENT
This
Amendment No. 6 (the "Amendment") dated as of September 30, 2005 between
Bank of
America, N.A. ("the Bank") and Sport Chalet, Inc. (the "Borrower").
RECITALS
A.
The
Bank and the Borrower entered into a certain Business Loan Agreement dated
as of
June 19, 1998 (together with any previous amendments, the
"Agreement").
B.
The
Bank and the Borrower desire to amend the Agreement.
AGREEMENT
1.
Definitions.
Capitalized terms used but not defined in this Amendment shall have the meaning
given to them in the Agreement.
2.
Amendments.
The
Agreement is hereby amended as follows:
2.1 In Paragraph
2.2 of
the Agreement, the date "September
30, 2005"
is
changed to "September
30, 2007".
2.3 Subparagraph
(a)
of
Paragraph 2.3 of the Agreement is amended to read in its entirety as
follows:
“(a)
Unless the Borrower elects an optional interest rate as described below,
the
interest rate is a rate per year equal to the Bank’s Prime Rate.”
2.4 Subparagraph
(a) of Paragraph 2.6 of the Agreement is amended to read in its entirety
as
follows:
“(a)
The
‘Short Term Fixed Rate’ means the Short Term Fixed Rate plus 1.00 percentage
point.”
2.5 In
Paragraph 2.7 of the
Agreement, the first sentence is amended to read as follows:
“The
Borrower may elect to have all or portions of the principal balance of the
line
of credit bear interest at the Offshore Rate plus 1.00 percentage
point.
2.6 In
Paragraph 2.8 of the
Agreement, the first sentence is amended to read as follows:
“The
Borrower may elect to have all or portions of the principal balance of the
line
of credit bear interest at the Offshore Rate plus 1.00 percentage
point.
2.7 Paragraph
8.5 of the
Agreement is amended to read in its entirety as follows:
“8.5
Fixed Charge Coverage Ratio.
To
maintain a Fixed Charge Coverage ratio of at least 1.00:1.0.
‘Fixed
Charge Coverage Ratio’ is defined as the sum of net profit after taxes, plus tax
expense, interest expense, depreciation, amortization, and other non-cash
expenses to the extent they are not expected to have a cash impact during
the
term of the line of credit, rent expense, less
dividends, loans and advances to parents, affiliates and officers, and cash
taxes paid divided
by the
sum of current portion of long term debt, plus rent expense, interest expense,
and maintenance capital expenditures; provided, however that for the purposes
of
calculating this ratio, maintenance capital expenditures will be the greater
of
(a) the product of One Hundred Forty Five Thousand Dollars ($145,000) times
the
number of open store locations as of the end of the measurement period, or
(b)
actual non-financed maintenance capital expenditures, and maintenance capital
expenditures shall mean total capital expenditures excluding capital
expenditures related to new stores, new computers, new computer systems and
related equipment. This ratio will be calculated at the end of each fiscal
quarter and each of the three (3) immediately preceding fiscal quarters.
The
current portion of long term debt will be measured as of the last day of
the
measurement period.”
2.9 Paragraph
8.9 of the
Agreement is amended to read in its entirety as follows:
“8.9
Capital Expenditures.
Not to
spend or incur obligations (including the amount of any capital leases) to
acquire fixed assets for more than Nineteen Million Dollars ($19,000,000)
in any
single fiscal year on a consolidated basis.”
2.10 Subparagraph
(a) of Paragraph 8.11 of the Agreement, the amount “Five
Hundred Thousand
Dollars ($500,000)”is
changed to “One
Million Dollars ($1,000,000)”.
2.11 Subparagraph
(f) is added
to Paragraph 8.11 of the Agreement, which shall read as follows:
“(f)
Any
actual contingent liabilities of the Borrower (or any guarantor or, if the
Borrower is comprised of the trustees of a trust, any trustor), and any such
contingent liabilities which are reasonably foreseeable, where such liabilities
are in excess of One Million Dollars ($1,000,000) in the
aggregate.”
2.12 Paragraph
10.4 of the
Agreement is amended to read in its entirety as follows:
“10.4
Arbitration
and Waiver of Jury Trial.
(a)
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This
paragraph concerns the resolution of any controversies or claims
between
the parties, whether arising in contract, tort or by statute, including
but not limited to controversies or claims that arise out of or
relate to:
(i) this agreement (including any renewals, extensions or modifications);
or (ii) any document related to this agreement (collectively a
"Claim").
For the purposes of this arbitration provision only, the term “parties”
shall include any parent corporation, subsidiary or affiliate of
the Bank
involved in the servicing, management or administration of any
obligation
described or evidenced by this agreement.
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(b)
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At
the request of any party to this agreement, any Claim shall be
resolved by
binding arbitration in accordance with the Federal Arbitration
Act (Title
9, U.S. Code) (the "Act"). The Act will apply even though this
agreement
provides that it is governed by the law of a specified state. The
arbitration will take place on an individual basis without resort
to any
form of class action.
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(c)
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Arbitration
proceedings will be determined in accordance with the Act, the
then-current rules and procedures for the arbitration of financial
services disputes of the American Arbitration Association or any
successor
thereof ("AAA"), and the terms of this paragraph. In the event
of any
inconsistency, the terms of this paragraph shall control. If AAA
is
unwilling or unable to (i) serve as the provider of arbitration
or (ii)
enforce any provision of this arbitration clause, any party to
this
agreement may substitute another arbitration organization with
similar
procedures to serve as the provider of
arbitration.
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(d)
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The
arbitration shall be administered by AAA and conducted, unless
otherwise
required by law, in any U.S. state where real or tangible personal
property collateral for this credit is located or if there is no
such
collateral, in the state specified in the governing law section
of this
agreement. All Claims shall be determined by one arbitrator; however,
if
Claims exceed Five Million Dollars ($5,000,000), upon the request
of any
party, the Claims shall be decided by three arbitrators. All arbitration
hearings shall commence within ninety (90) days of the demand for
arbitration and close within ninety (90) days of commencement and
the
award of the arbitrator(s) shall be issued within thirty (30) days
of the
close of the hearing. However, the arbitrator(s), upon a showing
of good
cause, may extend the commencement of the hearing for up to an
additional
sixty (60) days. The arbitrator(s) shall provide a concise written
statement of reasons for the award. The arbitration award may be
submitted
to any court having jurisdiction to be confirmed, judgment entered
and
enforced.
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(e)
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The
arbitrator(s) will give effect to statutes of limitation in determining
any Claim and may dismiss the arbitration on the basis that the
Claim is
barred. For purposes of the application of the statute of limitations,
the
service on AAA under applicable AAA rules of a notice of Claim
is the
equivalent of the filing of a lawsuit. Any dispute concerning this
arbitration provision or whether a Claim is arbitrable shall be
determined
by the arbitrator(s). The arbitrator(s) shall have the power to
award
legal fees pursuant to the terms of this
agreement.
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(f)
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This
paragraph does not limit the right of any party to: (i) exercise
self-help
remedies, such as but not limited to, setoff; (ii) initiate judicial
or
non-judicial foreclosure against any real or personal property
collateral;
(iii) exercise any judicial or power of sale rights, or (iv) act
in a
court of law to obtain an interim remedy, such as but not limited
to,
injunctive relief, writ of possession or appointment of a receiver,
or
additional or supplementary
remedies.
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(g)
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The
procedure described above will not apply if the Claim, at the time
of the
proposed submission to arbitration, arises from or relates to an
obligation to the Bank secured by real property. In this case,
all of the
parties to this agreement must consent to submission of the Claim
to
arbitration. If both parties do not consent to arbitration, the
Claim will
be resolved as follows: The parties will designate a referee (or
a panel
of referees) selected under the auspices of AAA in the same manner
as
arbitrators are selected in AAA administered proceedings. The designated
referee(s) will be appointed by a court as provided in California
Code of
Civil Procedure Section 638 and the following related sections.
The
referee (or presiding referee of the panel) will be an active attorney
or
a retired judge. The award that results from the decision of the
referee(s) will be entered as a judgment in the court that appointed
the
referee, in accordance with the provisions of California Code of
Civil
Procedure Sections 644 and 645.
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(h)
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The
filing of a court action is not intended to constitute a waiver
of the
right of any party, including the suing party, thereafter to require
submittal of the Claim to
arbitration.
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(i)
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By
agreeing to binding arbitration, the parties irrevocably and voluntarily
waive any right they may have to a trial by jury in respect of
any Claim.
Furthermore, without intending in any way to limit this agreement
to
arbitrate, to the extent any Claim is not arbitrated, the parties
irrevocably and voluntarily waive any right they may have to a
trial by
jury in respect of such Claim. This provision is a material inducement
for
the parties entering into this
agreement.”
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3. Representations
and Warranties.
When
the Borrower signs this Amendment, the Borrower represents and warrants to
the
Bank that: (a) there is no event which is, or with notice or lapse of time
or
both would be, a default under the Agreement except those events, if any,
that
have been disclosed in writing to the Bank or waived in writing by the Bank
(b)
the representations and warranties in the Agreement are true as of the date
of
this Amendment as if made on the date of this Amendment, (c) this Amendment
does
not conflict with any law, agreement, or obligation by which the Borrower
is
bound, and (d) if the Borrower is a business entity or a trust, this Amendment
is within the Borrower's powers, has been duly authorized, and does not conflict
with any of the Borrower's organizational papers.
4. Effect
of Amendment.
Except
as provided in this Amendment, all of the terms and conditions of the Agreement
shall remain in full force and effect.
5. Counterparts.
This
Amendment may be executed in counterparts, each of which when so executed
shall
be deemed an original, but all such counterparts together shall constitute
but
one and the same instrument.
6. FINAL
AGREEMENT.
BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS
DOCUMENT REPRESENTS THE FINAL AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF, (B) THIS DOCUMENT SUPERSEDES ANY COMMITMENT LETTER,
TERM
SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS RELATING TO THE SUBJECT
MATTER HEREOF, UNLESS SUCH COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN
OUTLINE OF TERMS AND CONDITIONS EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT
MAY
NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
This
Amendment is executed as of the date stated at the beginning of this
Amendment.
BANK: | ||
Bank of America, N.A. | ||
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By: | /s/ Xxxxx X. Xxxxxxx | |
Xxxxx
X. Xxxxxxx, Senior Vice President
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BORROWER: | ||
Sport Chalet, Inc. | ||
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By: | /s/ Xxxxxx X. Xxxxxxxx | |
Xxxxxx
X. Xxxxxxxx, Executive Vice President-Finance,
Chief Financial Officer and
Secretary
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