FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT is made as of June 19, 2009 (the “First Amendment
to Credit Agreement,” or this “Amendment”),
among SPORT SUPPLY
GROUP, INC., a
Delaware corporation (“Borrower”),
the lenders party hereto (the “Lenders”) and BANK OF AMERICA, N.A., as
administrative agent for the Lenders (“Administrative
Agent”).
R E C I T A L S
A. Borrower,
Administrative Agent and the Lenders are parties to that certain Credit
Agreement dated as of February 9, 2009, as modified pursuant to the terms
of that certain letter dated as of April 1, 2009 from Administrative Agent to
Borrower (the “Original Credit
Agreement”).
B. The
parties desire to amend the Original Credit Agreement as hereinafter
provided.
NOW,
THEREFORE, in consideration of these premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Same
Terms. All terms used herein which are defined in the Original
Credit Agreement shall have the same meanings when used herein, unless the
context hereof otherwise requires or provides. In addition, all
references in the Loan Documents to the “Agreement” shall
mean the Original Credit Agreement, as amended by this First Amendment to Credit
Agreement, as the same shall hereafter be amended from time to
time. In addition, the following term has the meaning set forth
below:
“Effective
Date” means June 19, 2009.
2. Amendments
to Original Credit Agreement. On the Effective Date, the
Original Credit Agreement shall be amended as follows:
(a) The
definition of “Permitted
Acquisition” shall be amended and restated as follows:
“Permitted
Acquisition” means, (a) any Acquisition by a Loan Party so long as the
Dollar amount of such Acquisition, together with the aggregate Dollar amount of
all other Acquisitions (including Acquisitions permitted by Section
7.02(m)) made by any Loan Party after the Closing Date, does not exceed
$2,000,000, and (b)
any Acquisition by a Loan Party that does not meet the requirements in part (a)
above, so long as it satisfies each of the following requirements:
(i) if
such Acquisition is an Acquisition of Equity Interests of a Person, such
newly-created or acquired Subsidiary shall comply with the requirements of Section
6.12;
(ii) such
Acquisition shall not include or result in any contingent liabilities that could
reasonably be expected to have a Material Adverse Effect;
(iii) the
target of such Acquisition shall not have had an operating loss for the period
of 12 consecutive months ending on the date of the acquisition
FIRST
AMENDMENT TO CREDIT AGREEMENT– Page
1
(the
calculation of such operation gain or loss in each case shall include such
adjustments as may be reasonable to reflect items not reflective of the target
or assets to be acquired, and non-recurring items, which calculations shall be
in form and substance reasonably acceptable to the Administrative
Agent);
(iv) immediately
after giving effect to such Acquisition, the Consolidated Leverage Ratio would
not exceed 2.50 to 1.0;
(v) (A)
immediately before and immediately after giving pro forma effect to any such
Acquisition, no Event of Default shall have occurred and be continuing and (B)
immediately after giving effect to such Acquisition, the Companies shall be in
pro forma compliance with all of the Financial Covenants, such compliance to be
determined on the basis of the financial information most recently delivered to
the Administrative Agent and the Lenders pursuant to Section 6.01 as
though such Acquisition had been consummated as of the first day of the fiscal
period covered thereby;
(vi) the
Senior Convertible Subordinated Notes shall have been repaid in full prior to
such Acquisition; and
(vii) the
Borrower shall have delivered to the Administrative Agent and each Lender such
other information concerning the Acquisition as the Administrative Agent shall
reasonably request.
(b) Section
7.02(m) shall be amended and restated as follows:
“(m) other
Investments (other than Acquisitions) not exceeding $500,000 in the aggregate in
any fiscal year of the Borrower.”
3. Certain
Representations. Borrower represents and warrants that, as of
the Effective Date: (a) each Loan Party has full power and
authority to execute this Amendment and this Amendment executed by each Loan
Party constitutes the legal, valid and binding obligation of such Loan Party
enforceable in accordance with its terms, except as enforceability may be
limited by general principles of equity and applicable bankruptcy, insolvency,
reorganization, moratorium, and other similar laws affecting the enforcement of
creditors’ rights generally; and (b) no authorization, approval, consent or
other action by, notice to, or filing with, any governmental authority or other
person is required for the execution, delivery and performance by each Loan
Party thereof except for (i) filings necessary to perfect and maintain the
perfection of the Liens granted under the Security Agreements, (ii) the
approvals, consents, and authorizations which have been duly obtained, taken,
given, or made and are in full force and effect and (iii) those approvals,
consents, exemptions, authorizations or other actions, notices or filings, the
failure of which to obtain or make could not reasonably be expected to have a
Material Adverse Effect. In addition, Borrower represents that all
representations and warranties contained in the Original Credit Agreement are
true and correct in all material respects on and as of the Effective Date except
to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier
date, and except that for purposes of Section 4.02 of the
Original Credit Agreement, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 of the
Original Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the
Original Credit Agreement.
FIRST
AMENDMENT TO CREDIT AGREEMENT– Page
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4. Limitation
on Agreements. The modifications set forth herein are limited
precisely as written and shall not be deemed (a) to be a consent under or a
waiver of or an amendment to any other term or condition in the Original Credit
Agreement or any of the Loan Documents, or (b) to prejudice any right or
rights which Lender now has or may have in the future under or in connection
with the Original
Credit
Agreement and the Loan Documents, each as amended hereby, or any of the other
documents referred to herein or therein. This Amendment shall constitute a Loan
Document for all purposes.
5. Counterparts. This
Amendment may be executed in any number of counterparts, each of which when
executed and delivered shall be deemed an original, but all of which constitute
one instrument. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties hereto.
6. Incorporation
of Certain Provisions by Reference. The provisions of Section
10.14 of the Original Credit Agreement captioned “Governing Law,” and the
provisions of Section 10.15 of the Original Credit Agreement captioned
“Dispute Resolution Provision” are incorporated herein by reference for all
purposes.
7. Entirety,
Etc. This instrument and all of the other Loan Documents
embody the entire agreement between the parties. THIS AMENDMENT AND
ALL OF THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder
of Page Intentionally Blank; Signatures Begin on Next Page]
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AMENDMENT TO CREDIT AGREEMENT– Page
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment to be effective
as of the Effective Date.
| BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer |
|||
|
By:
|
/s/ Xxxxxxx Xxxx | ||
| Xxxxxxx Xxxx | |||
| Senior Vice President | |||
| BANK OF AMERICA,
N.A., as a Lender |
|||
|
By:
|
/s/ Xxxxxxx Xxxx | ||
| Xxxxxxx Xxxx | |||
| Senior Vice President | |||
FIRST
AMENDMENT TO CREDIT AGREEMENT
| SPORT SUPPLY GROUP, INC. | |||
|
By:
|
/s/ Xxxx X. Xxxxx | ||
| Xxxx X. Xxxxx | |||
| Chief Financial Officer | |||
FIRST
AMENDMENT TO CREDIT AGREEMENT
The terms
of this Amendment are acknowledged and agreed to by the following Guarantors,
and such Guarantors agree that the “Guaranteed Debt” (as defined in the
Guaranty) shall include the Obligations as amended by this
Amendment.
| GUARANTORS: | |||
| KESSLERS TEAM SPORTS,
INC., a Delaware corporation |
|||
|
By:
|
/s/ Xxxx X. Xxxxx | ||
| Xxxx X. Xxxxx | |||
| Chief Financial Officer | |||
| XXXXX SPORTING GOODS CO.,
INC., a Virginia corporation |
|||
|
By:
|
/s/ Xxxx X. Xxxxx | ||
| Xxxx X. Xxxxx | |||
| Chief Financial Officer | |||
FIRST
AMENDMENT TO CREDIT AGREEMENT
