Exhibit 10.69
CONSENT AND THIRD AMENDMENT
TO LOAN AND SECURITY AGREEMENT
This CONSENT AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Agreement") is entered into as of this 3rd day of September, 2002, by and among
ACTION PERFORMANCE COMPANIES, INC., (the "Company"); each of RACING COLLECTABLES
CLUB OF AMERICA, INC. ("Racing Club"), ACTION RACING COLLECTABLES, INC. ("Action
Racing"), ACTION SPORTS IMAGE, L.L.C., ("Action Sports"), JH ACQUISITION, INC.
("JH"), XXXXXXXX TOWEL AND SPORTS, INC. ("XxXxxxxx") and TREVCO TRADING CORP.
("Trevco") (each of Racing Club, Action Racing, Action Sports, JH, XxXxxxxx and
Trevco being referred to herein individually as a "Borrower" and collectively as
"Borrowers"); the Subsidiary Guarantors signatory hereto (together with the
Company and Borrowers, each an "Obligor" and together "Obligors"); and BANK ONE,
NA (in its individual capacity, "Bank One"), for itself as a Lender and as Agent
for any other Lender. Unless otherwise specified herein, capitalized terms used
in this Agreement shall have the meanings ascribed to them in the Loan Agreement
(as hereinafter defined).
RECITALS
A. Bank One, as Agent and sole Lender, and Obligors (excluding JH,
XxXxxxxx and Trevco) are parties to that certain Loan and Security Agreement
dated as of September 29, 2000 (as heretofore amended, the "Loan Agreement").
B. Pursuant to (i) an Agreement and Plan of Merger dated as of June 12,
2002 (the "Trevco Acquisition Agreement" and, together with all other agreements
and documents executed and delivered pursuant thereto, the "Trevco Acquisition
Documents") by and among the Company, Trevco (f/k/a Barbados Acquisition, Inc.),
Trevco Trading Corp. ("Old Trevco") and certain affiliates of Old Trevco, Trevco
acquired all of the capital stock of Old Trevco pursuant to the merger of Old
Trevco with and into Trevco (the "Trevco Acquisition"); (ii) an Asset Purchase
Agreement dated as of July 1, 2002 (the "XxXxxxxx Acquisition Agreement" and,
together with all other agreements and documents executed and delivered pursuant
thereto, the "XxXxxxxx Acquisition Documents") by and among the Company,
XxXxxxxx, XxXxxxxx Professional, Incorporated (the "XxXxxxxx Seller") and
certain affiliates of the XxXxxxxx Seller, XxXxxxxx acquired substantially all
of the assets and business of the XxXxxxxx Seller (the "XxXxxxxx Acquisition");
and (iii) a Xxxx of Sale and Purchase Agreement dated as of September 5, 2002
(the "JH Acquisition Agreement" and, together with all other agreements and
documents executed and delivered pursuant thereto, the "JH Acquisition
Documents" and, together with the Trevco Acquisition Documents and the XxXxxxxx
Acquisition Documents, the "Acquisition Documents") by and among the Company,
JH, Xxxx Xxxxxxxx Industries, Inc. (the "JH Seller") and certain affiliates of
the JH Seller, JH acquired substantially all of the business and assets of the
JH Seller (the "JH Acquisition" and, together with the Trevco Acquisition and
the XxXxxxxx Acquisition, the "Acquisitions").
C. The Obligors have requested that Bank One, as sole Lender, consent to
the Acquisitions, and Bank One, as Sole Lender, is willing to grant such
consent.
D. The parties have agreed to cause JH, XxXxxxxx and Trevco to be joined
to the Loan Agreement as Borrowers and to amend certain provisions of the Loan
Agreement, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Consent to Acquisitions.
(a) Subject to the terms and upon the conditions set forth herein, Lender
hereby consents to the consummation of the Acquisitions upon the terms set forth
in the respective Acquisition Documents.
(b) Borrowers hereby represent and warrant to Bank One, as Agent and sole
Lender, that true and correct copies of all material Acquisition Documents have
been provided to Agent and that, except as set forth on Schedule A hereto, all
of the conditions set forth in subsection 8.3(b) of the Loan Agreement to the
consummation of each of the Acquisitions were (or, in accordance with Section 10
hereof, will be) satisfied on or prior to the date hereof. Borrowers acknowledge
and agree that, as a result of the consummation of the Acquisitions, the dollar
threshold set forth in subsection 8.3(b)(ii)(2) has been exceeded.
SECTION 2. JOINDER OF JH, XXXXXXXX AND TREVCO AS BORROWERS.
Each of JH, XxXxxxxx and Trevco joins in the execution of the Loan
Agreement and (i) hereby agrees that it is a Borrower and an Obligor thereunder
and agrees to be bound by all of the terms and provisions thereof and (ii)
without limiting the generality of the foregoing, hereby grants, assigns,
conveys, mortgages, pledges, hypothecates and transfers to Agent, for itself and
the benefit of Lenders, a Lien upon all of its right, title and interest in, to
and under the Collateral, and grants to Agent a right of setoff against the
property of such Grantor held by or in transit to Agent or any Lender, in each
case to secure the prompt and complete payment, performance and observance of
all of the Liabilities, as provided in Section 5 of the Loan Agreement. Each of
JH, XxXxxxxx and Trevco hereby represents and warrants that the representations
and warranties set forth in Section 6 of the Loan Agreement are, with respect to
such Persons, true and correct as of the date hereof.
SECTION 3. AMENDMENTS TO LOAN AGREEMENT.
(a) Subsection 1.1 of the Loan Agreement is hereby amended by inserting
the following new definitions in their proper alphabetical order:
"Borrower" shall mean each of Racing Club, Action Racing, Action
Sports, Trevco, XxXxxxxx and JH, and "Borrowers" shall mean such Persons,
collectively.
"Borrowing Base Period" means a period commencing on the last day of
any quarterly testing period for which the Loan Parties fail to maintain a
Debt Coverage Ratio of at least 2.50 and ending on the last day
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of the next succeeding quarterly testing period for which the Loan Parties
maintain a Debt Coverage Ratios of at least 2.50.
"JH" shall mean JH Acquisition, Inc., an Arizona corporation.
"XxXxxxxx" shall mean XxXxxxxx Towel and Sports, Inc., an Arizona
corporation.
"Trevco" shall mean Trevco Trading Corp., an Arizona corporation.
(b) The first paragraph of subsection 2.1(A) of the Loan Agreement is
hereby amended to read as follows:
(A) Revolving Loan Facility. Subject to the provisions of Section 4
below, each Lender shall, severally and not jointly, advance to Borrowers
on a revolving credit basis (the "Revolving Loan"), such Lender's Pro Rata
Share of an aggregate amount not to exceed:
(1) at any time outside of a Borrowing Base Period, the Maximum
Revolving Facility less the amount of Letter of Credit Liability at such
time; or
(2) at any time during a Borrowing Base Period, the lesser of (i)
the Maximum Revolving Facility or (ii) the "Borrowing Base" (as defined
below), less, in either case, the amount of Letter of Credit Liability at
such time.
(c) The last sentence of subsection 2.1(B)(1) of the Loan Agreement is
hereby amended to read as follows:
In no event shall any Letter of Credit be issued to the extent that
the issuance of such Letter of Credit would cause the sum of the Letter of
Credit Liability at such time (after giving effect to such issuance) plus
the outstanding principal balance of the Revolving Loan to exceed (1) at
any time outside of a Borrowing Base Period, the Maximum Revolving
Facility or (2) at any time during a Borrower Base Period, the lesser of
(x) the Borrowing Base or (y) the Maximum Revolving Facility.
(d) Subsection 2.1(B)(2) of the Loan Agreement is hereby amended to read
as follows:
(2) Maximum Amount. The aggregate amount of Letter of Credit
Liability at any time shall not exceed $20,000,000; provided, that the
aggregate amount of Letter of Credit Liability with respect to Standby
Letters of Credit at any time shall not exceed $5,000,000.
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(e) The first sentence of subsection 2.3(A) of the Loan Agreement is
hereby amended to read as follows:
The aggregate outstanding principal balance of the Revolving Loan
(together with the amount of Letter of Credit Liability) shall not at any
time (1) outside of a Borrowing Base Period, exceed the Maximum Revolving
Facility or (2) during a Borrowing Base Period, exceed the lesser of (i)
the Maximum Revolving Facility or (ii) the amount of the Borrowing Base.
(f) The introductory clause of subsection 3.1 of the Loan Agreement is
hereby amended to read as follows:
3.1 Monthly Reports. Borrower Representative shall submit to Agent,
not later than forty-five (45) days after the last day of each month
during a Borrowing Base Period, a monthly borrowing base certificate and
report (the "Monthly Report") in the form attached hereto as Exhibit C-1,
which shall be signed by an Authorized Officer and shall include, as of
the last Business Day of such month:
SECTION 4. REPRESENTATIONS AND WARRANTIES OF OBLIGORS. To induce Bank One
to execute and deliver this Agreement, Obligors jointly and severally represent
and warrant that:
(a) The execution, delivery and performance by each Obligor of this
Agreement have been duly authorized and this Agreement and the Loan Agreement
and all other Financing Agreements are legal, valid and binding obligations of
each Obligor, enforceable against each Obligor in accordance with their
respective terms, except as the enforcement thereof may be subject to (i) the
effect of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law); and
(b) No Unmatured Default or Default has occurred and is continuing and
each of the representations and warranties contained in the Loan Agreement and
the other Financing Agreements is true and correct in all material respects on
and as of the date hereof as if made on the date hereof.
SECTION 5. REFERENCE TO AND EFFECT UPON THE LOAN AGREEMENT.
(a) Except as expressly set forth herein, all terms, conditions,
covenants, representations and warranties contained in the Loan Agreement or any
other Financing Agreement, and all rights of Agent and Lenders and all
Liabilities of Obligors thereunder, shall remain in full force and effect.
Obligors hereby confirm that the Loan Agreement and the other Financing
Agreements are in full force and effect and that no Obligor has any defense,
setoff or counterclaim to the Liabilities under the Loan Agreement or any other
Financing Agreement.
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(b) Except as expressly set forth herein, the execution, delivery and
effectiveness of this Agreement and any waivers set forth herein shall not
directly or indirectly (i) constitute a waiver of any past, present or future
violations of any provisions of the Loan Agreement or any other Financing
Agreement, (ii) amend, modify or operate as a waiver of any provision of the
Loan Agreement or any other Financing Agreement or any right, power or remedy of
Agent or any Lender thereunder, or (iii) constitute a course of dealing or other
basis for altering any Liabilities of any Obligor under the Financing Agreements
or any other contract or instrument.
(c) This Agreement shall constitute a Financing Agreement.
SECTION 6. COSTS AND EXPENSES. Obligors jointly and severally agree to
promptly reimburse Bank One on demand for all fees, costs and expenses
(including the fees, costs and expenses of counsel retained by Bank One) in
connection with the negotiation, preparation and consummation of this Agreement
and the transactions contemplated hereby and thereby.
SECTION 7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ARIZONA.
SECTION 8. HEADINGS. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purposes.
SECTION 9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument, and all
signatures need not appear on any one counterpart. Any party hereto may execute
and deliver a counterpart of this Agreement by delivering by facsimile
transmission a signature page of this Agreement signed by such party, and any
such facsimile signature shall be treated in all respects as having the same
effect as an original signature. Any party delivering by facsimile transmission
a counterpart executed by it shall promptly thereafter also deliver a manually
signed counterpart of this Agreement.
SECTION 10. EFFECTIVENESS. This Agreement shall become effective at the
time Agent shall have received sufficient copies of the following documents, all
in form and substance satisfactory to Agent:
(a) Agreement. Executed signature pages to this Agreement signed by
Obligors.
(b) Acquisition Documents. Executed or conformed copies of all material
Acquisition Documents.
(c) Articles of Incorporation and By-Laws. Certified copies of the
Articles of Incorporation and By-Laws of each of JH, XxXxxxxx and Trevco, in
each case as in effect on the date hereof.
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(d) Good Standing Certificates. A certificate of good standing for each of
JH, XxXxxxxx and Trevco from such Obligor's jurisdiction of incorporation or
formation.
(e) Resolutions. Copies, certified by the Secretary or Assistant Secretary
of each Obligor, of resolutions of its Board of Directors (or other governing
body of such Obligor, if applicable) authorizing the execution of this Agreement
and the other Financing Agreements (if any) delivered herewith by such Obligor.
(f) Joinder to Company Pledge Agreement. A Joinder to Company Pledge
Agreement pledging to Agent, for the benefit of Lenders, all of the capital
stock of JH, XxXxxxxx and Trevco, together with certificates evidencing such
shares of capital stock and stock powers duly executed in blank by Borrower.
(g) Replacement Revolving Note. A replacement Revolving Note from
Borrowers payable to the order of Bank One.
(h) UCC Financing Statements. UCC-1 financing statements filed in favor of
Agent against each of JH, XxXxxxxx and Trevco with the Secretary of State of the
State of Arizona.
(i) Patent and Trademark Security Agreements. Patent and Trademark
Security Agreements executed by XxXxxxxx. Trademark Security Agreement executed
by JH.
(j) Addenda to Schedules to Loan Agreement. Addenda to Schedules 6.1
(Jurisdictions of Organization and Qualification), 6.8 (Corporate or Fictitious
Names), 6.12 (Subsidiaries), 6.20 (Capitalization), 6.22 (Bank Accounts) and
[6.25 (Insurance)] to the Loan Agreement reflecting information for each of JH,
XxXxxxxx and Trevco, certified by Borrower Representative.
(k) Insurance Policies. Certificates of insurance summarizing all
insurance coverages maintained by JH, XxXxxxxx and Trevco, together with
lenders' loss payable endorsements in favor of Agent and endorsements to all
liability polices naming Agent and Lenders as additional insureds.
(l) Other Information. Such other information and documents as Agent shall
request.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
and year first above written.
ACTION PERFORMANCE COMPANIES, INC.,
as Borrower Representative and an
Obligor
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: CFO
----------------------------------
RACING COLLECTABLES CLUB OF AMERICA,
INC., as a Borrower
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: Vice President, Secretary
& Treasurer
----------------------------------
ACTION RACING COLLECTABLES, INC., as a
Borrower
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: Vice President & Asst. Secretary
---------------------------------
ACTION SPORTS IMAGE, L.L.C., as a
Borrower
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: CFO, Secretary and Treasurer for
Action Performance Companies,
Inc., the sole member of Action
Sports Image, L.L.C.
----------------------------------
[JH ACQUISITION, INC.], as a Borrower
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: CFO
----------------------------------
[XXXXXXXX TOWEL AND SPORTS, INC.], as a
Borrower
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: CFO
----------------------------------
S-1
TREVCO TRADING CORP., as a Borrower
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: Secretary
----------------------------------
AW ACQUISITION CORP., as a Subsidiary
Guarantor
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: Secretary
----------------------------------
XXXXXXXX.XXX, INC., as a Subsidiary
Guarantor
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: CFO and Secretary
----------------------------------
THE FAN CLUB COMPANY, L.L.C., as a
Subsidiary Guarantor
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: Vice President, Secretary, and
Treasurer of Racing Collectables
Club of America, Inc. the sole
member of the Fan Club Company,
LLC
----------------------------------
GORACING INTERACTIVE SERVICES, INC., as
a Subsidiary Guarantor
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: President
----------------------------------
ACTION CORPORATE SERVICES, INC., as a
Subsidiary Guarantor
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: President
----------------------------------
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RYP, INC., as a Subsidiary Guarantor
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: Vice President, Treasurer,
CFO and Assistant Secretary
----------------------------------
CREATIVE MARKETING & PROMOTIONS, INC.,
as a Subsidiary Guarantor
By: /s/ R. Xxxxx Xxxxxx
-------------------------------------
Title: Vice President, Treasurer
CFO and Assistant Secretary
----------------------------------
BANK ONE, NA, as Agent and Lender
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Title: First Vice President
----------------------------------
S-3
SCHEDULE A
EXCEPTIONS TO SECTION (B) CONDITIONS
Trevco Acquisition
The aggregate consideration paid in connection with the Trevco Acquisition
exceeds the threshold set forth in subsection 8.3(b)(ii).
The Escrow Amount (as defined in the Trevco Acquisition Agreement) and the Bonus
Shares (as defined in the Trevco Acquisition Agreement) constitute "earn-out or
similar payment obligations" prohibited under subsection 8.3(b)(i).
XxXxxxxx Acquisition
The aggregate consideration paid in connection with the XxXxxxxx Acquisition,
when aggregated with the aggregate consideration paid in connection with the
Trevco Acquisition, exceeds the threshold set forth in subsection 8.3(b)(ii).
JH Acquisition
The aggregate consideration paid in connection with the JH Acquisition, when
aggregated with the aggregate consideration paid in the Trevco Acquisition and
the XxXxxxxx Acquisition, exceeds the threshold set forth in subsection
8.3(b)(ii).
The Contingent Cash Consideration (as defined in the JH Acquisition Agreement)
constitutes "earn-out or similar payment obligations" prohibited under
subsection 8.3(b)(i).
S-1
