AMENDMENT NO. 4 TO LOAN, GUARANTY AND SECURITY AGREEMENT
This AMENDMENT NO. 4 (the "AMENDMENT") is dated as of December 31,
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 dated as of April 20, 1999 (amended by Amendment No. 1
thereto, Amendment No. 2 thereto, and Amendment No. 3 thereto and as further
amended, amended and restated, supplemented or otherwise modified, the "CREDIT
AGREEMENT"). 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 (H)
thereto after clause (G) thereof regarding Winter 2000 Overadvance Availability
ending with "March 31, 2000)" and before "; PROVIDED":
, or (H) in lieu of and without duplication with any Seasonal
Overadvance, during the period from January 1, 2001 to March 31, 2001
only, the "Winter 2001 Overadvance Availability" (for the purposes of
this Agreement, "WINTER 2001 OVERADVANCE AVAILABILITY" means 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; PROVIDED, HOWEVER,
that in no event shall the Winter 2001 Overadvance Availability exist
or otherwise be in effect once any Seasonal Overadvance Availability
has been utilized on or after March 15, 2001 or otherwise after March
31, 2001)
1.02 AMENDMENT TO ARTICLE 3. Article 3 of the Credit Agreement is
hereby amended by adding thereto the following Section 3.10:
3.10 WINTER 2001 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. 4 to this Agreement a fee of
$25,000, and on the date that the Borrower's use of Availability based
on the Winter 2001 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 "$2,500,000" opposite "12/31/00" and
inserting in lieu thereof the number "$3,250,000".
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.
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(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]
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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/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
"BORROWERS"
Xxxxxxx, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
All American Sports Corporation
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
Varsity Spirit Fashions & Supplies, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
Varsity Spirit Corporation
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
-4-
"SUBSIDIARY GUARANTORS"
Equilink Licensing Corp.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
MacMark Corporation
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
RHC Licensing Corp.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
Ridmark Corporation
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
Proacq. Corp.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
Varsity USA, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
-5-
Varsity/Intropa Tours, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
International Logos, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------------
Title: Executive Vice President
"LENDERS"
Bank of America, N.A., as a Lender
By: /s/ Xxx Xxxxxxxxxxx
------------------------------------
Title: Vice President
American National Bank and Trust
Company of Chicago, as a Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Title: Vice President
"AGENT"
Bank of America, N.A., as the Agent
By: /s/ Xxx Xxxxxxxxxxx
------------------------------------------
Title: Vice President
-6-
AMENDMENT NO. 5 TO LOAN, GUARANTY AND SECURITY AGREEMENT
This AMENDMENT NO. 5 (the "AMENDMENT") is dated as of December 31,
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 dated as of April 20, 1999 (amended by Amendment Xx. 0
xxxxxxx, Xxxxxxxxx Xx. 0 thereto, Amendment No. 3 thereto, Amendment No.4
thereto and as further amended, amended and restated, supplemented or otherwise
modified, the "Credit AGREEMENT"). 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 AMENDMENT TO SECTION 9.23. SECTION 9.23 of the Credit Agreement
is hereby amended by deleting the number "$3,250,000" opposite "12/31/00" and
inserting in lieu thereof the number "$3,700,000," and by deleting the number
"$2,500,000" opposite "12/31/01 and inserting in lieu thereof the number
"$3,250,000."
1.02 AMENDMENT TO SECTION 9.24. SECTION 9.24 of the Credit Agreement
is hereby amended by deleting the number "$4,000,000" opposite "12/31/00" and
inserting in lieu thereof the number "$4,250,000," and by deleting the number
"$4,500,000" opposite "12/31/01" and inserting in lieu thereof the number
"$5,000,000."
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
2
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]
3
IN WITNESS WHEREOF, the parties have entered into this Agreement on
the date first above written.
"PARENT GUARANTOR"
Xxxxxxx Sports Inc.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
"BORROWERS"
Xxxxxxx, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
All American Sports Corporation
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
Varsity Spirit Fashions & Supplies, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
Varsity Spirit Corporation
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
4
"SUBSIDIARY GUARANTORS"
Equilink Licensing Corp.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
MacMark Corporation
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
RHC Licensing Corp.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
Ridmark Corporation
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
Proacq. Corp.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
5
Varsity USA, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
Varsity/Intropa Tours, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
International Logos, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Executive Vice President
"LENDERS"
Bank of America, N.A., as a Lender
By: /s/ Xxx Xxxxxxxxxxx
--------------------------------
Title: Vice President
American National Bank and Trust
Company of Chicago, as a Lender
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Title: Vice President
"AGENT"
Bank of America, N.A., as the Agent
By: /s/ Xxx Xxxxxxxxxxx
--------------------------------
Title: Vice President
6
