EXHIBIT 10.40-B
CONSENT, AMENDMENT NO. 2 TO LOAN DOCUMENTS
AND WAIVER AS TO CERTAIN EVENTS OF DEFAULT
------------------------------------------
March 25, 1998
Foothill Capital Corporation
11111 Santa Monica Boulevard, Suite 1500
Los Angeles, California 90025
Ladies and Gentlemen:
Foothill Capital Corporation ("Foothill") and KPR Sports International,
Inc. ("KPR") and RYKA Inc. ("Ryka", and together with KPR, individually,
"Borrower" and collectively, "Borrowers") have entered into certain financing
arrangements pursuant to the Amended and Restated Loan and Security Agreement
dated as of December 15, 1997 by and among Foothill and Borrowers as amended by
Consent, Amendment No. 1 to Loan Documents and Subordination Agreement, dated as
of January __, 1998, and Amendment No. 1 to Amended and Restated Loan and
Security Agreement dated as of February 20, 1998 (the "Loan Agreement") and all
agreements, documents and instruments at any time executed and/or delivered in
connection therewith or related thereto (together with the Loan Agreement as the
same are amended hereby, and as the same may be amended, modified, supplemented,
extended, renewed, restated or replaced, collectively, the "Loan Documents").
All capitalized terms used herein shall have the meaning assigned thereto in the
other Loan Documents, unless otherwise defined herein.
Borrowers have requested that Foothill (a) agree to accept consolidated
financial statements of Holding Company delivered by Borrowers to satisfy
certain financial reporting requirements set forth in the Loan Agreement, (b)
agree that requirements as to the maintenance of certain amounts of EBITDA on a
consolidated basis during certain time periods shall apply to Holding Company,
on a consolidated basis, rather than Borrowers, (c) agree to change the minimum
required amount of EBITDA, (d) provide a temporary waiver of compliance with
respect to certain covenants set forth in the Loan Agreement and a temporary
waiver of certain Events of Default, (e) consent to payment by Borrowers of
Periodic Rubin Interest Payments, and (e) amend the Loan Agreement in connection
with the foregoing.
Foothill is willing to consent to the foregoing subject to the terms and
conditions contained herein. By this Consent, Amendment and Waiver, Foothill
and Borrowers desire and intend to evidence such consent, amendments and
waivers.
In consideration of the foregoing, the parties hereto agree as follows:
1. Financial Statements, Reports, Certificates.
-------------------------------------------
Section 6.3 of the Loan Agreement is hereby deleted in its entirety and the
following substituted therefor:
"FINANCIAL STATEMENTS, REPORTS, CERTIFICATES. Deliver to Foothill:
(a) as soon as available, but in any event within 30 days after the
end of (x) each month during each of Holding Company's fiscal years, a
company prepared consolidated balance sheet and income statement of
Holding Company, and (y) each fiscal quarter during each of Holding
Company's fiscal years, a company prepared consolidated statement of
cash flow, covering Holding Company's consolidated operations during
such period; and (b) as soon as available, but in any event within 90
days after the end of each of Holding Company's fiscal years,
consolidated financial statements of Holding Company for each such
fiscal year, audited by independent certified public accountants
reasonably acceptable to Foothill and certified, without any
qualifications (except that the certification of the financial
statements for the fiscal year ended December 31, 1997 only shall be
permitted to contain a "going concern" emphasis and no other factor,
event or condition), by such accountants to have been prepared in
accordance with GAAP, together with a certificate of such accountants
addressed to Foothill stating that such accountants do not have
knowledge of the existence of any Default or Event of Default. Such
audited financial statements shall include a balance sheet, profit and
loss statement, and statement of cash flow, each prepared on a
consolidated basis, and, if prepared, such accountants' letter to
management.
Together with the above, Borrowers also shall deliver to Foothill
Holding Company's Form 10-Q Quarterly Reports, Form 10-K Annual
Reports, and Form 8-K Current Reports, and any other filings made by
Holding Company with the Securities and Exchange Commission, if any,
as soon as the same are filed, or any other information that is
provided by Holding Company to its shareholders, and each Borrower
shall deliver to Foothill any other report reasonably requested by
Foothill relating to the financial condition of Holding Company.
Each month, together with the financial statements provided
pursuant to Section 6.3(a), Borrowers shall
--------------
-2-
deliver to Foothill a certificate signed by Holding Company's chief
financial officer to the effect that: (i) all financial statements
delivered or caused to be delivered to Foothill hereunder have been
prepared in accordance with GAAP (except, in the case of unaudited
financial statements, for the lack of footnotes and being subject to
year-end audit adjustments) and fairly present the financial condition
of Holding Company, on a consolidated basis, (ii) the representations
and warranties of each Borrower contained in this Agreement and the
other Loan Documents are true and correct in all material respects on
and as of the date of such certificate, as though made on and as of
such date (except to the extent that such representations and
warranties relate solely to an earlier date), (iii) for each month
that also is the date on which a financial covenant in Section 7.20 is
------------
to be tested, a Compliance Certificate demonstrating in reasonable
detail compliance at the end of such period with the applicable
financial covenants contained in Section 7.20, and (iv) on the date of
------------
delivery of such certificate to Foothill there does not exist any
condition or event that constitutes a Default or Event of Default (or,
in the case of clauses (i), (ii), or (iii), to the extent of any non-
compliance, describing such non-compliance as to which he or she may
have knowledge and what action such Borrower has taken, is taking, or
proposes to take with respect thereto).
Borrowers shall have caused Holding Company to issue written
instructions to its independent certified public accountants
authorizing them to communicate with Foothill and to release to
Foothill whatever financial information concerning Borrowers and
Holding Company that Foothill may request. Each Borrower hereby
irrevocably authorizes and directs, and Holding Company, by its
execution and delivery of Consent, Amendment No. 2 to Loan Documents
and Waiver as to Certain Events of Default, dated March __, 1998 among
Foothill and Borrowers, irrevocably authorizes and directs all
auditors, accountants, or other third parties to deliver to Foothill,
at Borrowers' expense, copies of Holding Company's financial
statements, papers related thereto, and other accounting records of
any nature in their possession, and to disclose to Foothill any
information they may have regarding Holding Company's and each
Borrower's business affairs and financial condition."
-3-
2. Financial Covenants.
-------------------
(a) Section 7.20(a) of the Loan Agreement is hereby deleted in its
entirety and the following substituted therefor:
"(a) Fail to have EBITDA on a consolidated basis for Holding Company
during the following periods of not less than the following respective
amounts:
(i) during the period from January 31, 1998, through
December 31, 1998, at the last day of each calendar month during
such period, Annualized EBITDA of not less than $5,000,000, plus
an amount equal to the Periodic Rubin Interest Payments.
(ii) From and after January 1, 1999, at the last day of
each calendar month, EBITDA for the preceding twelve calendar
months ending on such last day of not less than $5,000,000, plus
an amount equal to the Periodic Rubin Interest Payments."
(b) Section 7.20(b)(i) of the Loan Agreement is hereby amended by (i)
deleting "Borrowers" in the second line thereof and substituting therefor
"Holding Company"; (ii) deleting "July 1, 1997" in the third line thereof and
substituting therefor "January 31, 1998".
(c) Section 7.20(b)(iii) of the Loan Agreement is hereby amended by
deleting the date "July 1, 1997" in clause (x) thereof and substituting therefor
"January 31, 1998".
3. Permitted Payments Under Rubin Subordination Agreement.
------------------------------------------------------
Notwithstanding anything to the contrary contained in Section 7.20 of
the Loan Agreement or in Section 2.2(a) of the Subordination Agreement dated
November 20, 1998 (the "Rubin Subordination Agreement"), by and among KPR,
Foothill and Michael Rubin, as ratified and amended, Foothill hereby consents to
and permits Borrowers to make a payment of interest (the "Permitted Payment")
due under the Junior Creditor Agreements (as such term is defined in the Rubin
Subordination Agreement), provided, that such payment (i) is a regularly
-------- ----
scheduled payment of interest for the period commencing December 1, 1997 through
the date such payment is made, on an unaccelerated basis, in respect of the
Junior Debt (as such term is defined in the Rubin Subordination Agreement) in
accordance with the terms of the Junior Credit Agreements, including, without
limitation, at the interest rate set forth therein, and (ii) is made on or
before April 30, 1998, or such other date as Foothill shall consent to in
writing. Foothill acknowledges that the Permitted Payment shall not be
considered to be a "Periodic Rubin Interest Payment" for purposes
-4-
of determining Borrowers' compliance with Section 7.20 of the Loan Agreement for
any period which includes the calendar month during which such Permitted Payment
was made.
4. Waivers.
-------
(a) Foothill hereby waives Borrower's failure to comply with the
covenant set forth in Section 7.20(a) of the Loan Agreement to the extent, and
only to the extent, of Borrowers' failure to have Annualized EBITDA on a
consolidated basis during the period of December 15, 1997 through January 31,
1998, in the minimum amount required under Section 7.20(a), and any Event of
Default under Section 8.2 of the Loan Agreement consisting of such failure.
(b) Foothill hereby waives any Event of Default under Sections 8.2
and 8.11 of the Loan Agreement consisting of the making of the Permitted Payment
pursuant to and in accordance with Section 3 herein.
(c) Foothill has not waived and is not by this Consent, Amendment and
Waiver waiving, and has no intention of waiving any other Event of Default which
may have occurred prior to the date hereof, or may be continuing on the date
hereof or any Event of Default which may occur after the date hereof (whether
the same or similar to the Events of Default referred to Sections 3(a) and 3(b)
above or otherwise) and Foothill reserves the right, in its discretion, to
exercise any and all of its rights and remedies arising under the terms of the
Loan Documents as a result of any Event of Default which may have occurred prior
to the date hereof, or are continuing on the date hereof or any Event of Default
which may occur after the date hereof (whether the same or similar to the Events
of Default described in Sections 3(a) and 3(b) above or otherwise). The waivers
contained in Sections 3(a) and 3(b) shall not constitute waivers of any Events
of Default arising as a result of the failure of Borrowers to comply with
Section 8 of the Loan Agreement at any time after the date of this Consent,
Amendment and Waiver (except as otherwise provided herein).
5. Fee.
---
As partial consideration for Foothill's entering into this Consent,
Amendment and Waiver and Foothill's agreement hereunder, Borrowers shall pay to
Foothill a fee in the amount of $5,000, which shall be fully earned and payable
as of the date hereof, and may be charged by Lender directly to Borrowers'
Revolving Loan account maintained by Foothill.
6. Representations and Warranties. In addition to the continuing
------------------------------
representations, warranties and covenants heretofore or hereafter made by
Borrowers to Foothill pursuant to the Loan
-5-
Documents, each Borrower hereby represents, warrants and covenants with and to
Foothill as follows (which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof and shall be
incorporated into and made a part of the Loan Documents):
(a) No Event of Default exists on the date of this Consent, Amendment
and Waiver.
(b) This Consent, Amendment and Waiver has been duly executed and
delivered by Borrowers and is in full force and effect as of the date hereof,
and the agreements and obligations of Borrowers contained herein constitute
legal, valid and binding obligations of Borrowers enforceable against each
Borrower in accordance with their respective terms.
7. Conditions Precedent. The consent, amendments and waivers herein
--------------------
shall be effective upon the receipt by Foothill of a copy of this Consent,
Amendment and Waiver, duly authorized, executed and delivered by Borrowers.
8. Effect of this Consent, Amendment and Waiver. Except as modified
--------------------------------------------
pursuant hereto, no other changes or modifications to the Loan Documents are
intended or implied and in all other respects the Loan Documents are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms hereof and
the other Loan Documents, the terms hereof shall control.
9. Further Assurances. The parties hereto shall execute and deliver such
------------------
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Consent, Amendment
and Waiver.
10. Governing Law. The rights and obligations hereunder of each of the
-------------
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York.
11. Binding Effect. This Consent, Amendment and Waiver shall be binding
--------------
upon and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
12. Counterparts. This Consent, Amendment and Waiver may be executed in
------------
any number of counterparts, but all of such counterparts shall together
constitute but one and the same agreement. In making proof of this Consent,
Amendment and Waiver, it shall not be necessary to produce or account for more
than one counterpart thereof signed by each of the parties hereof.
-6-
Please sign the enclosed counterpart of this Consent, Amendment and Waiver
in the space provided below, whereupon this Consent, Amendment and Waiver, as so
accepted by Foothill, shall become a binding agreement among Borrowers and
Foothill.
Very truly yours,
KPR SPORTS INTERNATIONAL, INC.
By:/s/ Steven A. Wolf
---------------------------
Title: VP, CFO
------------------------
RYKA, INC.
By:/s/ Steven A. Wolf
---------------------------
Title: VP, CFO
------------------------
AGREED:
FOOTHILL CAPITAL CORPORATION
By:/s/ Bruce Rivers
---------------------------
Title: AVP
------------------------
ACKNOWLEDGED AND AGREED TO
IN ALL RESPECTS:
APEX SPORTS INTERNATIONAL, INC.
By:/s/ Michael G. Rubin
---------------------------
Title:________________________
MR MANAGEMENT INC.
By:/s/ Michael G. Rubin
---------------------------
Title:________________________
/s/ Michael G. Rubin
- ------------------------------
MICHAEL RUBIN
[SIGNATURES CONTINUE ON NEXT PAGE]
-7-
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
ACKNOWLEDGED AND AGREED TO
IN ALL RESPECTS, INCLUDING,
WITHOUT LIMITATION, FOR PURPOSES
OF SECTION 6.3 OF THE LOAN AGREEMENT
AS AMENDED ABOVE:
GLOBAL SPORTS, INC.
By:/s/ Steven A. Wolf
--------------------------
Title: VP, CFO
-----------------------
-8-