AMENDMENT AND CONSENT
THIS AMENDMENT AND CONSENT dated as of March 18, 1998 (the "Amendment")
relating to the Credit Agreement referenced below, by and among ACTION
PERFORMANCE COMPANIES, INC., an Arizona corporation (the "Borrower"), the
subsidiaries and affiliates identified as Guarantors on the signature pages
attached hereto (the "Guarantors") and FIRST UNION NATIONAL BANK, a national
banking association formerly known as First Union National Bank of North
Carolina (the "Bank"). Terms used but not otherwise defined shall have the
meanings provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $16 million credit facility has been extended to the
Borrower pursuant to the terms of that Credit Agreement dated as of January 2,
1997 (as amended and modified, the "Credit Agreement") among the Borrower, the
Guarantors and the Bank;
WHEREAS, the Borrower plans to issue $115 million in convertible
subordinated notes and has requested certain consents and modifications to the
Credit Agreement in connection therewith,
WHEREAS, the consents and modifications requested hereby require the
consent of the Bank; and
WHEREAS, the Bank has agreed to the requested contents and
modifications on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. The Credit Agreement is amended and modified in the following
respects:
1.1 The following provision is hereby added to the end of the
definition of "Funded Debt" in Section 1.1 of the Credit Agreement:
; provided further that Funded Debt shall not include any
Indebtedness which by its terms is expressly subordinated in
right of payment to the prior payment of the obligations under
the Credit Agreement and other Credit Documents on terms and
conditions satisfactory to the Bank, including, without
limitation, the Subordinated Notes.
1.2 The following definition is hereby added to Section 1.1 of
the Credit Agreement:
"Subordinated Notes" means, collectively, those $115,000,000
aggregate principal amount of 4.75% Convertible Subordinated
Notes due April 1, 2005 issued by the Borrower, as amended and
modified.
1.3 The following provision is hereby added to the end of
Section 8.1 of the Credit Agreement:
(i) the Subordinated Notes.
2. The Bank hereby consents to the amendment or modification of the
terms of any Indenture or other governing document relating to any Funded Debt
permitted under the Credit Agreement to the extent such amendment or
modification relates to the issuance of the Subordinated Notes.
3. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules) remain in full force and effect.
4. The Company agrees to pay all reasonable costs and expenses of the
Bank in connection with the preparation, execution, and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
5. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
6. This Amendment, and the Credit Agreement as amended hereby, shall be
governed by and construed and interpreted in accordance with the laws of the
State of North Carolina.
[Remainder of Page Intentionally Left Blank]
2
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.
BORROWER: ACTION PERFORMANCE COMPANIES, INC.
-------- an Arizona corporation
By: /s/ Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Exec. V.P.
GUARANTORS:
---------- SPORTS IMAGE, INC.
an Arizona corporation
By: /s/ Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Exec. V.P.
MTL ACQUISITIONS, INC.
an Arizona corporation
By: /s/ Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Exec. V.P.
CREATIVE MARKETING & PROMOTIONS, INC.
a North Carolina corporation
By: /s/ Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Exec. V.P.
RYP, INC.
a North Carolina corporation
By: /s/ Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Exec. V.P.
IW ACQUISITION CORP.
an Arizona corporation
By: /s/ Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Exec. V.P.
AW ACQUISITION CORP.
an Arizona corporation
By: /s/ Xxx Xxxxxxxxx
Name: Xxx Xxxxxxxxx
Title: Exec. V.P.
BANK: FIRST UNION NATIONAL BANK
----
By: /s/ N. Xxxxxx Xxxxxxxxx
Name: N. Xxxxxx Xxxxxxxxx
Title: Vice President
