EXHIBIT (b)(2)
FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER (this "Amendment") is
entered into as of August 18, 1999 by and between WORLDWIDE SPORTS & RECREATION,
INC., a Delaware corporation (the "Borrower"), ANTARES CAPITAL CORPORATION, a
Delaware corporation, as Agent and as Lender, and each of the other Persons who
are signatories hereto (individually, a "Loan Party" and collectively, the "Loan
Parties").
W I T N E S S E T H:
WHEREAS, Borrower, Agent and Lender have entered into that certain Credit
Agreement dated as of August 5, 1999 (as the same may be amended, modified,
restated or otherwise supplemented from time to time, the "Credit Agreement");
and
WHEREAS, the parties to the Credit Agreement desire to amend the Credit
Agreement all on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall
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have the meanings ascribed to them in the Credit Agreement.
2. Amendments. The Credit Agreement is hereby amended as follows:
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(a) Simultaneously with The First National Bank of Chicago ("First
Chicago") becoming a Lender under the Credit Agreement, Irrevocable Standby
Letter of Credit No. 00332065 dated September 5, 1996, of which $162,000 remains
available, Irrevocable Letter of Credit No. 00245691 dated January 12, 1998, of
which $687,326.10 remains available, and Irrevocable Standby Letter of Credit
dated August 16, 1999 of which $1,662,555 remains available, each issued by
First Chicago, shall be deemed Lender Letters of Credit under the Credit
Agreement. In addition, First Chicago shall be a permitted issuer of Lender
Letters of Credit but shall be under no obligation to so issue. For purposes of
subsection 1.1(c) of the Credit Agreement, amounts paid by First Chicago
pursuant to such Lender Letters of Credit shall be deemed amounts paid by the
Agent, and First Chicago shall enjoy the same rights to indemnity and
reimbursement with respect thereto as the Agent enjoys with respect to Lender
Letters of Credit issued by it.
(b) Subsection 1.3(c) of the Credit Agreement is hereby amended by
deleting the word "exists" in the second line thereof and inserting the word
"exists" after the phrase "or 7.1(c)".
(c) Subsection 3.11(b) of the Credit Agreement is hereby amended by
deleting the word "here" and substituting the word "there" therefor.
(d) Subsection 4.3(a) of the Credit Agreement is deleted in its
entirety and the following is substituted therefor:
"(a) (i) the occurrence or existence of any Default or Event of Default or
(ii) any event or circumstance that foreseeably will become a Default or
Event of Default under any of Sections 5.1, 5.2, 5.3, 5.4, 5.5, 5.9, 5.11
or Article VI;"
(e) Section 4.10 of the Credit Agreement is hereby amended by adding
the phrase "and financing Permitted Acquisitions" at the end of such section.
(f) Section 5.3 of the Credit Agreement is hereby amended by adding
the phrase "and except Permitted Acquisitions may be consummated" at the end of
such section.
(g) Section 5.4 of the Credit Agreement is hereby amended by deleting
the period at the end of clause (g) thereof, substituting a semicolon therefore
and adding the following at the end of such section:
"(h) Borrower and its Subsidiaries may consummate Permitted Acquisitions
and may create Subsidiaries to consummate Permitted Acquisitions."
(h) Subsection 7.1(l) of the Credit Agreement is hereby amended by
deleting the phrase "in each instance, in (i), (ii), (iii) and (iv)" and
substituting "in each instance, in clauses (i), (ii), (iii) and (iv) above"
therefor.
(i) Subsection 7.1(m) of the Credit Agreement is hereby amended by
deleting the word "shall" appearing immediately after the word "Obligations".
(j) Section 8.10 of the Credit Agreement is hereby amended by deleting
clause (c) thereof in its entirety.
(k) The Credit Agreement is hereby amended by adding the following at
the end of Article VIII.
"8.11 Co-Agent. Notwithstanding any provision to the contrary contained
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elsewhere in this Agreement or in any other Loan Documents, the Co-Agent
shall not have any duties or responsibilities, nor shall the Co-Agent have
or be deemed
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to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise
exist against the Co-Agent."
(l) Subsection 9.1(b) of the Credit Agreement is hereby amended by
deleting the phrase "1.8(e) or 1.8(g)" in the parenthetical at the end of such
subsection and substituting "or 1.8(e)" therefor.
(m) Section 11.1 of the Credit Agreement is hereby amended by adding
the following thereto in the correct alphabetical order:
""Permitted Acquisition" means an Acquisition of all of the capital stock,
partnership interests or membership interests of a Target, or any asset or
group of assets of a Target, which satisfies all of the following
conditions:
(i) The Target must be in the same or related line of business as
the Borrower, must have generated positive EBITDA for the immediately
preceding year (excluding extraordinary expenses, identifiable and
verifiable cost savings and excess management compensation, in each
instance, approved by Required Lenders) and the transaction must be
structured as an asset purchase by, or merger with, a Wholly-Owned
Subsidiary of Borrower organized in a jurisdiction located in the United
States (a "Domestic Subsidiary") or a purchase by Borrower or a Domestic
Subsidiary of all of the equity securities of the Target;
(ii) No Default or Event of Default shall have occurred and be
continuing or would arise as a result of such Acquisition;
(iii) (A) The aggregate purchase price (including the fair market
value of any non-cash component of such purchase price and any assumed
liabilities) to be paid by the Borrower or its Subsidiaries (all such items
being collectively referred to as the "Acquisition Cost") for any single
Acquisition and the aggregate Acquisition Cost for all Acquisitions within
any twelve (12) month period is less than $5,000,000, and (B) the aggregate
Acquisition Cost for all Acquisitions is less than $10,000,000;
(iv) Borrower shall have demonstrated to the reasonable satisfaction
of Required Lenders that Pro forma EBITDA of the Target for the twelve (12)
month period prior to such Acquisition is greater than $0;
(v) After the consummation of any such Acquisition, the Maximum
Revolving Loan Balance exceeds outstanding Revolving Loans by an amount not
less than $3,000,000;
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(vi) The business and assets (and, if applicable, all shares of
capital stock or other equity securities) so acquired in such Acquisition
shall be acquired by Borrower or its Wholly-Owned Subsidiary free and clear
of all Liens (other than Permitted Liens) and all Indebtedness and
liabilities unless otherwise permitted in this Agreement;
(vii) All environmental audits, pro forma financial statements,
appraisals, if any, accounting reviews and due diligence reports conducted
by Borrower, with respect to the business to be acquired shall have been
delivered to Agent promptly after they are made available to Borrower;
(viii) Borrower shall have delivered revised schedules to this
Agreement to the extent necessary to disclose facts pertaining to the
Target;
(ix) With respect to the Target acquired or financed with the
proceeds of a Loan, and prior to or simultaneously with the funding of such
Loan, the Agent shall have been granted, for the benefit of Agent and the
Lenders, a first priority lien on and security interest in such Target
thereof, subject only to Permitted Liens, and shall have received, without
limitation, (a) the items described in subsection 2.1(d)(ii) and Section
4.12, and (b) duly executed UCC financing statements or amendments to
existing financing statements with respect to such Target, in form and
substance reasonably satisfactory to the Agent and which, upon filing,
shall perfect the first priority security interest of the Agent, for the
benefit of Agent and the Lenders, in such property. In the event real
property is being acquired in connection with such Acquisition, prior to or
simultaneously with the funding of such Loan, the Agent shall have received
(x) a fully executed Mortgage, in form and substance reasonably
satisfactory to the Agent together with an ALTA lender's title insurance
policy issued by a title insurer reasonably satisfactory to the Agent, in
form and substance and in an amount reasonably satisfactory to the Agent
insuring that the Mortgage is a valid and enforceable first priority lien
on the respective property, free and clear of all defects, encumbrances and
Liens (other than the Permitted Liens), (y) then current surveys, certified
to the Agent and the Lenders by a licensed surveyor sufficient to allow the
issuer of the lender's title insurance policy to issue such policy without
a survey exception and (z) an environmental site assessment prepared by a
qualified firm reasonably acceptable to the Agent and the Lenders, in form
and substance satisfactory to the Agent and the Lenders;
(x) Agent shall have received a certificate of Borrower's chief
financial officer demonstrating to the reasonable satisfaction of Agent
that after giving effect to such Acquisition on a pro forma basis as if
such Acquisition had occurred on the first day of the twelve (12) month
period ending on the last day of Borrower's most
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recently completed calendar month, Borrower would have been in compliance
with each of the financial covenants contained in Article VI; and
(xi) (a) The Agent shall have received complete executed or
conformed copies of each material document, instrument and
agreement executed in connection with such Acquisition
(collectively, "Acquisition Documents");
(b) The Agent shall have received, for the benefit of the
Lenders, a collateral assignment of the seller's
representations, warranties and indemnities to the Borrower or
its Subsidiary under the Acquisition Documents;
(xii) Such Acquisition shall be permitted under the Subordinated Note
Agreement."
""Target" means any Person organized in a jurisdiction located within the
United States or business unit or asset group located in the United States
acquired or proposed to be acquired in a Permitted Acquisition."
(n) Simultaneously with General Electric Capital Corporation
becoming a Lender under the Credit Agreement, General Electric Capital
Corporation shall be deemed to be Co-Agent.
3. Conditions. The effectiveness of this Amendment is subject to the
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following conditions precedent:
(a) the execution and delivery of this Amendment by Borrower,
Agent, Lenders and the Loan Parties;
(b) receipt by Agent of Subordinated Noteholders' consent to the
execution, delivery and performance of this Amendment; and
(c) confirmation from First Chicago that the Credit Agreement dated
April 27, 1995 has been terminated.
4. Representations and Warranties. Borrower hereby represents and
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warrants to Agent and each Lender as follows:
(a) Borrower and each of its Subsidiaries is a corporation or
limited liability company, duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation or formation, as applicable;
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(b) Borrower and each of its Subsidiaries has the power and authority
to execute, deliver and perform its obligations under this
Amendment;
(c) the execution, delivery and performance by Borrower and each of
its Subsidiaries of this Amendment have been duly authorized by
all necessary action;
(d) this Amendment constitutes the legal, valid and binding
obligation of Borrower and each of its Subsidiaries, enforceable
against such Person in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditor's rights generally or by equitable principles relating
to enforceability; and
(e) no Default or Event of Default exists.
5. No Waiver. Nothing contained herein shall be deemed to constitute a
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waiver of compliance with any term or condition contained in the Credit
Agreement or any of the other Loan Documents or constitute a course of conduct
or dealing among the parties. Except as expressly stated herein, Agent and
Lender reserve all rights, privileges and remedies under the Loan Documents.
Except as amended hereby, the Credit Agreement and other Loan Documents remain
unmodified and in full force and effect. All references in the Loan Documents
to the Credit Agreement shall be deemed to be references to the Credit Agreement
as amended hereby.
6. Counterparts. This Amendment may be executed by one or more of the
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parties to this Amendment and any number of separate counterparts, each of which
when so executed, shall be deemed an original and all said counterparts when
taken together shall be deemed to constitute but one and the same instrument.
7. Successors and Assigns. This Amendment shall be binding upon and
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inure to the benefit of Borrower and each Loan Party and their successors and
assigns and the Agent and the Lenders and their successors and assigns.
8. Further Assurance. Borrower hereby agrees from time to time, as and
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when requested by the Agent or Lender, to execute and deliver or cause to be
executed and delivered, all such documents, instruments and agreements and to
take or cause to be taken such further or other action as the Agent or Lender
may reasonably deem necessary or desirable in order to carry out the intent and
purposes of this Amendment, the Credit Agreement and the Loan Documents.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
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CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
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10. Severability. Wherever possible, each provision of this Amendment
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
11. Reaffirmation. Each of the Loan Parties as debtor, grantor, pledgor,
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guarantor, assignor, or in other any other similar capacity in which such Loan
Party grants liens or security interests in its property or otherwise acts as
accommodation party or guarantor, as the case may be, hereby (i) ratifies and
reaffirms all of its payment and performance obligations, contingent or
otherwise, under each of the Loan Documents to which it is a party (after giving
effect hereto) and (ii) to the extent such Loan Party granted liens on or
security interests in any of its property pursuant to any such Loan Document as
security for or otherwise guaranteed the Borrower's Obligations under or with
respect to the Loan Documents, ratifies and reaffirms such guarantee and grant
of security interests and liens and confirms and agrees that such security
interests and liens hereafter secure all of the Obligations as amended hereby.
Each of the Loan Parties hereby consents to this Amendment and acknowledges that
each of the Loan Documents remains in full force and effect and is hereby
ratified and reaffirmed. The execution of this Amendment shall not operate as a
waiver of any right, power or remedy of the Agent or Lenders, constitute a
waiver of any provision of any of the Loan Documents or serve to effect a
novation of the Obligations.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
set forth above.
BORROWER:
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WORLDWIDE SPORTS & RECREATION, INC., a
Delaware corporation
By:________________________________
Title:_____________________________
AGENT AND LENDER:
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ANTARES CAPITAL CORPORATION,
as Agent and as Lender
By:________________________________
Title: ______ Director
LOAN PARTIES:
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BUSHNELL CORPORATION
By:________________________________
Title:_____________________________
BUSHNELL CORPORATION OF CANADA
By:________________________________
Title:_____________________________
XXXX SPORTS, INC.
By:________________________________
Title:_____________________________
XXXX CORPORATION
By:________________________________
Title:_____________________________
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OLD WSR, INC.
By:________________________________
Title:_____________________________
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