Exhibit 10.17
(XXXXXXX XXXXX LOGO) WAIVER
Collegiate Pacific Inc.
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Re: Waiver of Loan Covenant
Ladies and Gentlemen:
We refer to the WCMA Loan and Security Agreement No. 585-07067 dated
December 16, 2003, as amended to date (the "Loan Agreement"), between Xxxxxxx
Xxxxx Business Financial Services Inc. ("MLBFS") and Collegiate Pacific Inc.
("Customer") and all other Loan Documents (as defined in the Loan Agreement),
including, without limitation, all other agreements between MLBFS and Customer
or any party who has guaranteed or provided collateral for Customer's
obligations to MLBFS. Capitalized terms used but not defined herein shall have
the meanings assigned to those terms in the Loan Agreement.
Covenant Waiver
Section 3.3(h) of the Loan Agreement requires that Customer's and Business
Guarantors' aggregate Fixed Charge Coverage Ratio shall at all times exceed 1.30
to 1.00. Customer has advised MLBFS that as of June 30, 2005, Xxxxxxxx's and
Business Guarantors' aggregate Fixed Charge Coverage Ratio was 1.20 to 1.00 (the
"Identified Default"), and Customer has requested that MLBFS waive the
Identified Default.
In reliance on the representations and warranties of Customer set forth
herein, including, without limitation, that the aggregate Customer's and
Business Guarantors' aggregate Fixed Charge Coverage Ratio as at June 30, 2005
was as set forth above (1.20 to 1.00), MLBFS hereby waives the Identified
Default without exercising any rights or remedies available as a result of the
occurrence thereof. In the event that Customer's and Business Guarantors'
aggregate Fixed Charge Coverage Ratio is determined to be less than 1.20 to 1.00
as of June 30, 2005, this waiver of the Identified Default will, at the option
of MLBFS, be void. Customer and each Business Guarantor acknowledge and agree
that the foregoing waiver is limited precisely as written and, except for the
waiver of the Identified Default, all of the terms and conditions of the Loan
Documents shall remain in full force and effect in accordance with their
respective terms, all of which are hereby ratified and confirmed in all
respects.
Miscellaneous
The effectiveness of this letter is conditioned on MLBFS's receipt of the
written acceptance of and agreement to this letter by Customer and Business
Guarantors.
This letter does not in any manner constitute any waiver of either (a) any
of MLBFS's rights, remedies or powers pursuant to the Loan Agreement or any
other Loan Document or applicable law, or (b) any Default or Events of Default
under the Loan Agreement or the other Loan Documents other than the Identified
Default.
Customer and the Business Guarantors acknowledge, warrant and agree, as a
primary inducement to MLBFS to enter into this letter, that: (a) no Default or
Event of Default other than the Identified Default has occurred and is
continuing under the Loan Documents, (b) each of the representations and
warranties of Customer in the Loan Documents are true and correct as of the date
hereof and shall be deemed remade as of the date hereof, (c) none of Customer or
any of the Business Guarantors have any claim against MLBFS or any of its
affiliates arising out of or in connection with the Loan Documents or any other
matter whatsoever, and (d) none of Customer or any of the Business Guarantors
have any defense to payment of any amounts owing, or any right of counterclaim
for any reason under, the Loan Documents.
Provided that no Default or Event of Default other than the Identified
Default shall then have occurred and be continuing under the terms of the Loan
Documents, and the condition specified above shall have been met to our
satisfaction, this letter will become effective on the date (the "Effective
Date") upon which: (a) Customer and the Business Guarantors shall have executed
and returned the duplicate copy of this letter, and (b) an officer of MLBFS
shall have reviewed and approved this letter as being consistent in all respects
with the original internal authorization hereof (as evidenced by the signature
of MLBFS below).
Notwithstanding the foregoing, if for any reason the Effective Date shall
not occur within 14 days of the date of this letter, then this letter will, at
the sole option of MLBFS, be void.
Very truly yours,
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC.
By: /s/ Xxxxx Xxxxx
------------------------------------
Print Name: Xxxxx Xxxxx
Print Title: VP, Senior Underwriter
Accepted and Agreed:
Borrower:
COLLEGIATE PACIFIC INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Print Title: Chief Financial Officer
Guarantors:
XXXXXXX TEAM SPORTS INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Print Title: Chief Financial Officer
TOMARK SPORTS INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Print Title: Chief Financial Officer
XXXXX SPORTING GOODS CO., INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Print Title: Chief Financial Officer
CMS OF CENTRAL FLORIDA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Print Title: Chief Financial Officer
XXXXXXX & SONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Print Name: Xxxxxxx X. Xxxxxx
Print Title: Chief Financial Officer
