EXHIBIT 10.70
FIFTH AMENDMENT
TO LOAN AND SECURITY AGREEMENT
This FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Agreement") is entered into as of this 12th day of March, 2003, 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"), MCARTHUR TOWEL AND SPORTS, INC. ("McArthur") and TREVCO TRADING CORP.
("Trevco") (each of Racing Club, Action Racing, Action Sports, JH, McArthur 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 are
parties to that certain Loan and Security Agreement dated as of September 29,
2000 (as heretofore "Financing Agreements", amended, the "Loan Agreement").
B. The parties have agreed 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. AMENDMENTS TO LOAN AGREEMENT.
1.1 The definitions of "Debt Coverage Ratio", "Financing
Agreements", "Lender" or "Lenders", "Liabilities", "Maximum Revolving Facility"
and "Tangible Net Worth" contained in subsection 1.1 of the Credit Agreement are
hereby amended to read as follows:
"Debt Coverage Ratio" shall mean, for the Company and
its Subsidiaries on a consolidated basis as of the end of any
fiscal quarter, the ratio of (i) EBIDA for the four fiscal
quarters then ended less Net Capital Expenditures during such
period less cash dividends paid by the Company on its capital
stock during such period to (ii) the sum of interest expenses
(including without limitation the interest component of
Capitalized Leases) for the four fiscal quarters then ended
plus principal payments of Indebtedness (including without
limitation Capitalized Leases) scheduled to become due during
the succeeding four fiscal quarters.
"Financing Agreements" shall mean, collectively, all
agreements, instruments and documents, including, without
limitation, this Agreement, the Letter of Credit Documents and
any security agreements, loan agreements, notes, guarantees,
subordination agreements, pledges, powers of attorney,
consents, assignments, intercreditor agreements, mortgagee
waivers, landlord estoppel statements, reimbursement
agreements, contracts, notices, leases, financing statements,
Swap Contracts and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any
Loan Party and delivered to Agent or any Lender, together with
all agreements, documents and instruments referred to therein
or contemplated thereby.
"Lender" or "Lenders" shall mean Bank One (as
successor and assign of ANB) together with its successors and
assigns pursuant to Section 11 hereof. "Lenders" shall also
include Bank One, or any affiliate of Bank One, in its
capacity as a party to any Swap Contract with any Obligor.
"Liabilities" shall mean all of each Obligor's
liabilities, obligations and indebtedness to Agent or any
Lender of any and every kind and nature, whether heretofore,
now or hereafter owing, arising, due or payable and howsoever
evidenced, created, incurred, acquired or owing, whether
primary, secondary, direct, contingent, fixed or otherwise
(including obligations of performance), including interest
accruing at the rates specified herein, regardless of whether
such interest is allowed as a claim in bankruptcy, and whether
arising or existing under written agreement, oral agreement or
operation of law, relating to any or all of each Obligor's
indebtedness and obligations to Agent and Lenders under this
Agreement and the other Financing Agreements, including
without limitation, all obligations, contingent or otherwise,
arising under or in connection with any Swap Contracts.
"Maximum Revolving Facility" shall mean Thirty-Five
Million ($35,000,000).
"Tangible Net Worth" shall mean, as of any date, the
following, for the Company and its Subsidiaries on a
consolidated basis: (a) Net Worth; less (b) Intangible Assets.
1.2 Subsection 1.1 of the Loan Agreement is hereby
amended by inserting the following new definitions in their proper alphabetical
order:
"Fifth Amendment Date" shall mean March 12, 2003.
"Swap Contract" shall mean any agreement made or
entered into at any time between any Obligor and Bank One (or
any of its affiliates) and relating to any transaction that is
a rate swap, basis swap, forward rate
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transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or bill option,
interest rate option, forward foreign exchange transaction,
cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any
other, similar transaction (including any option to enter into
any of the foregoing) or any combination of the foregoing,
and, unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the
foregoing.
"Total Liabilities" shall mean as of any date, the
total liabilities of the Company and its Subsidiaries, on a
consolidated basis, as of such date in accordance with GAAP.
1.3 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 lesser of (i) the Maximum Revolving Facility less
the amount of Letter of Credit Liability at such time or (ii)
$20,000,000; or
(2) at any time during a Borrowing Base Period,
the least of (i) the Maximum Revolving Facility less the
amount of Letter of Credit Liability at each time, (ii) the
"Borrowing Base" (as defined below) less the amount of Letter
of Credit Liability at such time or (iii) $20,000,000.
1.4 The second sentence of the third paragraph of
subsection 2.1(A) of the Loan Agreement is hereby amended to read as follows:
Payments made by Agent to any Person on account of any Letter
of Credit shall, at the option of Gent and to the extent of
Revolving Loan availability hereunder, constitute Revolving
Loan advances hereunder, the proceeds of which shall be used
to reimburse Agent for such payments.
1.5 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
$35,000,000; 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.
1.6 This second sentence of subsection 2.1(B)(3) of the
Loan Agreement is hereby amended to read as follows:
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Borrowers hereby authorize and direct Agent, at Agent's
option, to charge Borrowers' Loan Account (by increasing the
principal balance of the Revolving Loan) and/or to charge any
deposit account maintained by any Obligor with Agent, in the
amount of any payment made with respect to any Letter of
Credit issued for the account of any Borrower.
1.7 Subsection 2.6(C) of the Loan Agreement is hereby
amended to read as follows:
(C) Borrowers shall pay to Agent, for the account of
Lenders, a facility fee (the "Facility Fee") from the date of
the execution of this Agreement at the rate of one-half of one
percent (0.5%) per annum, on the difference between the
Maximum Revolving Facility and the sum of (i) the average
daily balance of the Revolving Loan and (ii) from and after
the Fifth Amendment Date, the average daily balance of Letter
of Credit Liabilities, payable in arrears on the first day of
each month for the preceding month, and on the termination of
this Agreement. Such fee shall be computed on the basis of a
360-day year for the actual number of days elapsed.
1.8 Clause (2) of subsection 2.6(D) of the Loan Agreement
is hereby amended to read as follows:
2) One percent (1.00%) per annum of the undrawn face
amount of each Commercial Letter of Credit,
1.9 Subsection 2.7 of the Loan Agreement is hereby
amended to read as follows:
2.7 Manner and Time of Payment In its sole discretion,
Agent may charge interest and other amounts payable hereunder
to the Revolving Loan, all as set forth on Agent's books and
records. Agent is hereby authorized to charge any deposit
account maintained by any Obligor with Agent for each payment
of principal, interest, fees and other Liabilities as it
becomes due hereunder. If Agent elects to bill Borrowers for
any amount due hereunder, such amount shall be immediately due
and payable (unless otherwise provided for herein) with
interest thereon as provided herein. All payments made by
Borrowers with respect to the Liabilities shall be made
without deduction, defense, setoff or counterclaim. All
payments to Agent hereunder shall be made in same day funds
and shall, unless otherwise directed by Agent, be made by wire
transfer to Agent at its offices in Phoenix, Arizona. Proceeds
remitted to Agent by wire transfer shall be credited to the
Liabilities on the Business Day received, if received prior to
3:00 p.m. (Chicago time) on such Business Day, and shall
otherwise be credited to the Liabilities on the next Business
Day.
1.10 The first sentence of subsection 2.8 of the Loan
Agreement is hereby amended to read as follows:
This Agreement shall be effective until March 31, 2005 (the
"Term").
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1.11 Subsection 8.18 of the Loan Agreement is hereby
amended to read as follow:
8.18 Financial Covenants. The Loan Parties shall:
8.18.1 Capital Expenditures. Not expend or be
committed to expend for Capital Expenditures (including,
without limitation, for the acquisition of fixed assets) on a
non-cumulative basis in the aggregate more than $30,000,000
during any Fiscal Year.
8.18.2 Debt Coverage Ratio. As of the end of each
fiscal quarter, commencing with the fiscal quarter ending
December 31, 2001, maintain a Debt Coverage Ratio of not less
than 2.50.
8.18.3 Funded Indebtedness to EBIDA. As of the end
of each fiscal quarter, commencing with the fiscal quarter
ending December 31, 2001, maintain a ratio of Funded
Indebtedness as of such date to EBIDA for the four fiscal
quarters then ended of not greater than 2.25.
8.18.4 Leverage Ratio. Not permit, at any time, the
ratio of Total Liabilities to Tangible Net Worth to exceed
2.00.
1.12 Schedule 1.1 (Commitments) to the Loan Agreement is
hereby replaced with Schedule 1.1 hereto.
SECTION 2. 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 3. 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
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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.
(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 4. 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.
SECTION 5. 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 6. 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 7. 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 8. 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) 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 delivered
herewith.
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(c) Replacement Revolving Note. A replacement Revolving
Note from Borrowers payable to the order of Bank One.
(d) Restructure Fee. Payment to Agent of a restructure
fee in the amount of $30,000.
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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. David Martin
------------------------------------------
Title: Chief Financial Officer
RACING COLLECTABLES CLUB OF AMERICA,
INC., as a Borrower
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
ACTION RACING COLLECTABLES, INC., as a
Borrower
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
ACTION SPORTS IMAGE, L.L.C., as a Borrower
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
JH ACQUISITION, INC., as a Borrower
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
MCARTHUR TOWEL AND SPORTS, INC., as a
Borrower
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
S-1
TREVCO TRADING CORP., as a Borrower
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
AW ACQUISITION CORP., as a Subsidiary
Guarantor
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
GORACING.COM, INC., as a Subsidiary
Guarantor
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
THE FAN CLUB COMPANY, L.L.C., as a
Subsidiary Guarantor
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
GORACING INTERACTIVE SERVICES, INC., as a
Subsidiary Guarantor
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
ACTION CORPORATE SERVICES, INC., as a
Subsidiary Guarantor
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
S-2
RYP, INC., as a Subsidiary Guarantor
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
CREATIVE MARKETING & PROMOTIONS, INC., as
a Subsidiary Guarantor
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
BANK ONE, NA, as Agent and Lender
By: /s/ Steven J. Krakoski
------------------------------------------
Title: First Vice President
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SCHEDULE 1.1
Lender Commitment
- ------ ----------
Bank One, NA $35,000,000
S-1
REVOLVING NOTE
March 12, 2003
Phoenix, Arizona
$35,000,000.00
FOR VALUE RECEIVED, the undersigned, RACING COLLECTABLES CLUB
OF AMERICA, INC., ACTION RACING COLLECTABLES, INC., ACTION SPORTS IMAGE, L.L.C.,
JH ACQUISITION, INC., MCARTHUR TOWEL AND SPORTS, INC. and TREVCO TRADING CORP.
(each a "Borrower" and collectively, "Borrowers"), HEREBY JOINTLY AND SEVERALLY
PROMISE TO PAY to the order of BANK ONE, NA, a national banking association
("Lender"), at the offices of BANK ONE, NA, a national banking association, as
Agent for Lenders ("Agent"), at its address at 201 North Central Avenue, 21st
Floor, Phoenix, Arizona 85004, or at such other place as Agent may designate
from time to time in writing, in lawful money of the United States of America
and in immediately available funds the amount of THIRTY-FIVE MILLION DOLLARS
($35,000,000) or, if less, the aggregate unpaid amount of all Revolving Loan
advances made to the undersigned under the "Loan Agreement" (as hereinafter
defined). All capitalized terms used but not otherwise defined herein have the
meanings given to them in the Loan Agreement.
This Revolving Note is one of the Revolving Notes issued
pursuant to that certain Loan and Security Agreement dated as of September 29,
2000 by and among Borrowers, the other Persons named therein as Obligors, Agent,
and the other Persons signatory thereto from time to time as Lenders (including
all annexes, exhibits and schedules thereto, and as from time to time amended,
restated, supplemented or otherwise modified, the "Loan Agreement"), and is
entitled to the benefit and security of the Loan Agreement and all of the other
Financing Agreements referred to therein. Reference is hereby made to the Loan
Agreement for a statement of all of the terms and conditions under which the
Loans evidenced hereby are made and are to be repaid. The date and amount of
each Revolving Loan advance made by Lender, the rates of interest applicable
thereto and each payment made on account of the principal thereof, shall be
recorded by Agent on its books; provided that the failure of Agent to make any
such recordation shall not affect the obligations of Borrowers to make a payment
when due of any amount owing under the Loan Agreement or this Note in respect of
the Revolving Loan advances made by Lender to Borrowers.
The principal amount of the indebtedness evidenced hereby
shall be payable in the amounts and on the dates specified in the Loan
Agreement, the terms of which are hereby incorporated herein by reference.
Interest thereon shall be paid until such principal amount is paid in full at
such interest rates and at such times, and pursuant to such calculations, as are
specified in the Loan Agreement.
If any payment on this Revolving Note becomes due and payable
on a day other than a Business Day, the maturity thereof shall be extended to
the next succeeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
Upon and after the occurrence of any Default, this Revolving
Note may, as provided in the Loan Agreement, and without demand, notice or legal
process of any kind, be declared, and immediately shall become, due and payable.
Time is of the essence of this Revolving Note. Demand,
presentment, protest and notice of nonpayment and protest are hereby waived by
Borrowers.
[signature page follows]
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THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THAT STATE.
RACING COLLECTABLES CLUB OF AMERICA, INC.
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
ACTION RACING COLLECTABLES, INC.
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
ACTION SPORTS IMAGE, L.L.C.
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
JH ACQUISITION, INC.
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
MCARTHUR TOWEL AND SPORTS, INC.
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
TREVCO TRADING CORP.
By: /s/ R. David Martin
------------------------------------------
Title: Chief Financial Officer
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