exv10w3



 







Exhibit 10.3




	 	 	 
	

	 	Global Private Client
	

	 	Group
	

	 	Merrill Lynch Business
	

	 	Financial Services Inc.
	 
	 	 
	

	 	15 Exchange Place 4th Floor

Jersey City, NJ 07302

(201) 593-7908

FAX: (201) 593-7868

	 
	 	 
	

	 	Brian Talty,
	

	 	Vice President
	 
	 	 
	

	 	May 12, 2005     






Collegiate Pacific Inc.

13950 Senlac Drive, Suite 100

Dallas, Texas 75234



RE: Waiver and Amendment to Loan Documents



Ladies & Gentlemen:



This Waiver and Letter Agreement (“Letter Agreement”) will serve to confirm certain agreements of
Merrill Lynch Business Financial Services Inc. (“MLBFS”) and Collegiate Pacific Inc. (“Customer”)
with respect to: (i) that certain WCMA LOAN AND SECURITY AGREEMENT NO. 586-07067 between MLBFS and
Customer (including any previous amendments and extensions thereof) (the “Loan Agreement”), and
(ii) all other agreements between MLBFS and Customer or any party who has guaranteed or provided
collateral for Customer’s obligations to MLBFS (a “Guarantor”) in connection therewith
(collectively, the “Loan Documents”). Capitalized terms used herein and not defined herein shall
have the meaning set forth in the Loan Documents.



Covenant Waiver



Customer has requested that MLBFS waive a certain Default by Customer under the terms of the Loan
Agreement, which has occurred as a result of Customer’s failure to comply with the following
provision as of March 31, 2005, in that the Customer’s and Business Guarantors’ aggregate Fixed
Charge Coverage Ratio was 1.40x for the twelve months ended March 31, 2005 (the “Identified
Default”):



Fixed Charge Coverage Ratio. Customer’s and Business Guarantors’ aggregate “Fixed
Charge Coverage Ratio” shall at all times exceed 1.50 to 1. For purposes hereof,
“Fixed Charge Coverage Ratio” shall mean the ratio of: (a) income before interest
(including payments in the nature of interest under capital leases), taxes,
depreciation, amortization, and other non-cash charges, minus any internally
financed capital expenditures, to (b) the sum of (i) any dividends and other
distributions paid or payable to shareholders, any taxes paid in cash, and
interest expense, as determined on a trailing 12-month basis, plus (ii) the
aggregate principal scheduled to be paid or accrued over the next 12 month
period; all as set forth in Customer’s and Business Guarantors’ regular annual
financial statements prepared in accordance with GAAP.



In reliance upon the representations and warranties of the Customer set forth herein (including
without limitation the Customer’s and Business Guarantor’s aggregate Fixed Charge Coverage Ratio
as of March 31, 2005), and the agreement of Customer and each Guarantor set forth herein, MLBFS
hereby waives the Identified Default for the dates specified without declaring any such Default or
delivering any notice thereof to Customer pursuant to the terms of the Loan Agreement. In the
event that Customer’s and Business Guarantor’s aggregate Fixed Charge Coverage Ratio is



 









 








ever determined to be less than 1.40x for the period ending March 31, 2005, MLBFS’ waiver of the
Identified Default will, at the sole option of MLBFS, be void. Customer and each Guarantor
acknowledge that this waiver is limited precisely as written and except for the waiver of the
Identified Default for the dates specified, all terms and conditions of the Loan Agreements shall
remain in full force and effect.



Amendment



Subject to the terms hereof, effective as of the “Effective Date” (as defined below), the Loan
Documents are hereby amended as follows:



(a) Section 3.3 (h) of the Loan Agreement is hereby deleted in their entirety and replaced with
the following:



Fixed
Charge Coverage Ratio. Customer’s and Business Guarantors’ aggregate “Fixed Charge Coverage
Ratio” shall at all times exceed 1.30 to 1. For purposes hereof, “Fixed Charge Coverage Ratio”
shall mean the ratio of: (a) income before interest (including payments in the nature of interest
under capital leases), taxes, depreciation, amortization, and other non-cash charges, minus any
internally financed capital expenditures, to (b) the sum of (i) any dividends and other
distributions paid or payable to shareholders, any taxes paid in cash, and interest expense, as
determined on a trailing 12-month basis, plus (ii) the aggregate principal scheduled to be paid or
accrued over the next 12 month period; all as set forth in Customer’s and Business Guarantors’
regular annual or interim financial statements, as the case may be, prepared in accordance with
GAAP.



Miscellaneous



The effectiveness of this letter is hereby conditioned upon MLBFS’ receipt of the written
acknowledgment and acceptance of the same by the parties identified below. Except as expressly
amended hereby, the Loan Documents shall continue in full force and effect upon all of their terms
and conditions.



This letter does not in any manner constitute any waiver of either (a) any of MLBFS’ rights,
remedies or powers pursuant to the Loan Agreement or any other agreement, document or instrument
or applicable law, or (b) any defaults or Events of Default (howsoever defined, with the exception
of the waiver of the Identified Default as described herein) under the Loan Agreement.



By their execution of this Letter Agreement, the below-named Guarantors hereby consent to the
foregoing modifications to the Loan Documents, and hereby agree that the “Obligations” under their
respective Unconditional Guaranty and/or agreements providing collateral shall extend to and
include the Obligations of Customer under the Loan Documents, as amended hereby.



Customer and said Guarantors acknowledge, warrant and agree, as a primary inducement to MLBFS to
enter into this Agreement, 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 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) neither Customer nor any of said 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) neither Customer nor any of said 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 other than the Identified Default, or event which with the giving of
notice, passage of time, or both, would constitute an Event of 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, the amendments and agreements in this Letter Agreement will
become effective on the date (the “Effective Date”) upon which: (a) Customer and the Guarantors
shall have executed and returned the duplicate copy of this Letter Agreement enclosed herewith;
and (b) an officer of MLBFS shall have reviewed and approved this Letter Agreement as being
consistent in all respects with the original internal authorization hereof.



Notwithstanding the foregoing, if Customer and the Guarantors do not execute and return the
duplicate copy of this Letter Agreement within 14 days from the date hereof, or if for any other
reason (other than the sole fault of MLBFS) the Effective Date shall not occur within said 14-day
period, then all of said amendments and agreements will, at the sole option of MLBFS, be void.



Very truly yours,



Merrill Lynch Business Financial Services Inc.



	 	 	 	 	 
	By:
	 	/s/ Brian Talty	 	 
	

	 	

	 	 
	

	 	     Brian
Talty 
     Vice President	 	 
	 
	 	 	 	 
	Accepted:	 	 
	 
	 	 	 	 
	Collegiate Pacific Inc.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Printed Name:
	 	Michael J. Blumenfeld	 	 
	

	 	

	 	 
	Title:
	 	CEO	 	 
	

	 	

	 	 
	Approved:	 	 
	 
	 	 	 	 
	Tomark Sports, Inc.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Printed Name:
	 	Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Title:
	 	CEO	 	 
	

	 	

	 	 
	Kesslers Team Sports, Inc.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Printed Name:
	 	Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Title:
	 	CEO	 	 
	

	 	

	 	 






 









 






	 	 	 	 	 
	Dixie Sporting Goods Co., Inc.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Printed Name:
	 	Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Title:
	 	CEO	 	 
	

	 	

	 	 
	 
	 	 	 	 
	CMS OF Central Florida, Inc.	 	 
	 
	 	 	 	 
	By:
	 	/s/ Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Printed Name:
	 	Michael J. Blumenfeld	 	 
	

	 	

	 	 
	 
	 	 	 	 
	Title:
	 	CEO