EXHIBIT 4.2
EIGHTH AMENDMENT AND CONSENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
EIGHTH AMENDMENT AND CONSENT, dated as of September 12, 2002,
to the Amended and Restated Credit Agreement referred to below (this
"Amendment") among DICK'S SPORTING GOODS, INC., a Delaware corporation
("Borrower"), the lenders party hereto ("Lenders"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as agent for the Lenders (in such capacity,
"Agent").
W I T N E S S E T H
WHEREAS, Borrower, Lenders and Agent are parties to that
certain Amended and Restated Credit Agreement, dated as of July 26, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"); and
WHEREAS, Borrower and Lenders have agreed to amend the Credit
Agreement in the manner, and on the terms and conditions, provided for herein;
NOW THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.
2. Amendment to Section 3.9 of the Credit Agreement.
Section 3.9 of the Credit Agreement is hereby amended and restated as of the
Amendment Effective Date (as hereinafter defined) to read as follows:
"3.9 Ventures, Subsidiaries and Affiliates; Outstanding
Stock and Indebtedness. Except for ASL, Borrower has no Subsidiaries. ASL
engages in no business, operations or other activities and owns no property or
assets and has no liabilities other than to the extent contemplated and
permitted by Section 6.5. Borrower is not engaged in any joint venture or
partnership with, or, except as set forth in Schedule 3.9 an Affiliate of,
another Person. Except as set forth in Schedule 3.9, there are no outstanding
rights to purchase options, warrants or similar rights or agreements pursuant to
which any Loan Party may be required to issue, sell or purchase any Stock or
other equity security. Schedule 3.9 lists all outstanding Stock of each Loan
Party and the percentage of ownership and voting interests of the owners thereof
holding at least 5% of the Stock of each Loan Party as of the Schedule 3.9
Delivery Date. Schedule 6.3 lists all Indebtedness of each Loan Party as of the
Closing Date."
3. Amendment to Section 6.4 of the Credit Agreement.
Section 6.4 of the Credit Agreement is hereby amended as of the Amendment
Effective Date by:
(a) deleting the word "and" where it appears immediately prior to
clause (e) of such Section 6.4; and
(b) adding immediately prior to the last sentence of such Section
6.4 a new clause (f) to read as follows:
"and (f) Borrower may enter into or become a party to
the IPO Transactions."
4. Amendment to Section 6.5(b) of the Credit Agreement.
Section 6.5(b) of the Credit Agreement is hereby amended as of the Amendment
Effective Date by:
(a) deleting the word "and" where it appears immediately
prior to clause (vii) of such Section 6.5(b); and
(b) inserting the following new clause (viii) in such
Section 6.5(b) to read as follows:
"and" (viii) enter into the transactions contemplated
by the IPO Transactions; and"
5. Amendment to Section 6.5(c) of the Credit Agreement.
Section 6.5(c) of the Credit Agreement is hereby amended and restated as of the
Amendment Effective Date to read as follows:
"(c) amend its articles or certificate of
incorporation, charter, by-laws or other
organizational documents (other than as contemplated
by the IPO Transactions); or"
6. Amendment to Section 6.11 of the Credit Agreement.
Section 6.11 of the Credit Agreement is hereby amended as of the Amendment
Effective Date by:
(a) deleting the word "and" where it appears immediately
prior to clause (i) of such Section 6.11; and
(b) inserting the following new clause (j) in such
Section 6.11 to read as follows:
"and (j) as may be permitted under the IPO
Transactions."
7. Amendment to Annex A. Annex A to the Credit Agreement
is hereby amended as of the Amendment Effective Date by:
(a) adding the following new definitions to read as follows:
"'2002 Stock Plan' shall mean that certain 2002 Stock
Plan of Borrower substantially in the form attached
to the Eighth Amendment as Exhibit D thereto.
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'Employee Stock Purchase Plan' shall mean that
certain Employee Stock Purchase Plan of Borrower
substantially in the form attached to the Eighth
Amendment as Exhibit E thereto.
'Eighth Amendment' shall mean the Eighth Amendment
and Consent to this Agreement, dated as of September
12, 2002.
'IPO' shall mean that certain proposed initial public
offering of Borrower's common Stock under the
Securities Act of 1933, as amended (which may include
shares sold by selling stockholders, including Xxxxxx
Xxxxx and his relatives, as well as Borrower) as
completed substantially as described in the
Borrower's Form S-1 Registration Statement,
Registration Number 333-96587 as filed with the
Securities and Exchange Commission on July 17, 2002,
as amended from time to time.
'IPO Transactions' shall mean the issuance of common
Stock of the Borrower and sale of common Stock of
certain of its stockholders, in connection with the
IPO and the following transactions related to the
IPO, including Borrower (i) amending and restating
its Certificate of Incorporation in the form attached
to the Eighth Amendment as Exhibit A; (ii) creating a
new Class B common Stock with the rights set forth in
such Amended and Restated Certificate of
Incorporation, entering onto the Exchange Agreement
in the form attached to the Eighth Amendment as
Exhibit B, and issuing and selling shares of such
Class B common Stock in connection with the IPO on
the terms set forth in the Exchange Agreement; (iii)
increasing the number of authorized shares of common
Stock up to 100,000,000 shares in order to permit a
stock split immediately prior to the IPO and to
consummate a stock split in the form of a dividend
and in the manner approved by the Board of Directors
of the Borrower; (iv) amending and restating its
Bylaws in the form attached to the Eighth Amendment
as Exhibit C and creating three separate classes for
the board of directors as set forth in such Amended
and Restated Bylaws and Amended and Restated
Certificate of Incorporation; (v) adopting the 2002
Stock Plan; (vi) adopting the Employee Stock Purchase
Plan; (vii) entering into that certain Amendment #1
to Second Amended and Restated Registration Rights
Agreement in the form attached to the Eighth
Amendment as Exhibit F; (viii) terminating the Second
Amended and Restated Stockholder's Agreement, dated
as of June 9, 2000; (ix) entering into an Option
Agreement with Xxxxxx X. Xxxxx in substantially the
form attached hereto as Exhibit G; and (x) entering
into any other agreement between or among the
Borrower and some or all of its stockholders and some
or all of the underwriters which is deemed necessary
or advisable to consummate the IPO, including
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underwriting agreements, custody agreements, powers
of attorney, lock-up agreements, cross-receipts,
representation letters and other similar agreements
customarily delivered in connection with the closing
of an initial public offering."
'Schedule 3.9 Delivery Date' shall have the meaning
assigned to it in the Eighth Amendment." and
(b) amending and restating the following definition in its
entirety to read as follows:
'Permitted Stock Issuance' shall mean and include the issuance
of common equity interests (including awards exercisable for
common Stock or Class B common Stock, shares of common Stock
and Class B common Stock) by Borrower to any Person (i) so
long as no Default has occurred and is continuing or would
occur as a result of such issuance, in an initial public
offering (x) which is underwritten by a nationally recognized
investment banking firm or other Person satisfactory to Agent
in its discretion, (y) in which such equity interests are
distributed to at least 25 Persons (other than Persons listed
on Schedule 3.9), and (z) which is made pursuant to a
registration statement on Form S-1, or any successor form
thereto, relating to the registration of such common equity
interests under the Securities Act of 1933, as amended, and
other documents and agreements (including all underwriting or
similar agreements and all documents filed with the Securities
and Exchange Commission) in form and substance reasonably
satisfactory to Agent, (ii) under the 2002 Stock Plan, (iii)
under the Employee Stock Purchase Plan, (iv) upon the exercise
of warrants listed on Schedule 3.9, (v) pursuant to the IPO
and/or IPO Transactions or (vi) pursuant to the Dick's
Clothing and Sporting Goods, Inc. Stock Option Plan, as
amended through September 19, 1995 as in effect on April 16,
1999."
8. Amendment to Annex D. Annex D to the Credit Agreement
is hereby amended as of the Amendment Effective Date by inserting the following
new Paragraph 15 at the end of such Annex to read as follows:
"15. SEC Filings and Press Releases. To Agent and Lenders,
promptly upon their becoming available, copies of: (i) all
Financial Statements, reports, notices and proxy statements
made publicly available by any Loan Party to its security
holders; (ii) all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any
Loan Party with any securities exchange or with the Securities
and Exchange Commission or any governmental or private
regulatory authority; and (iii) all press releases and other
statements made available by any Loan Party to the public
concerning material changes or developments in the business of
any such Person."
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9. Amendment to Credit Agreement Schedules. Schedules
6.4 and 11.8 to the Credit Agreement are hereby amended and restated as of the
Amendment Effective Date to read as set forth as Schedules 6.4 and 11.8 attached
hereto.
10. Consent. Agent and Lenders hereby consent, as of the
Amendment Effective Date, to Borrower consummating the IPO and entering into the
IPO Transactions. Agent and Lenders hereby consent and confirm that the IPO and
IPO Transactions satisfy all conditions of clause (i) of the definition of
Permitted Stock Issuance and no additional consent is needed thereunder as to
the identity of any underwriter or with respect to any documents or agreement.
11. Representations and Warranties. To induce Lenders and
Agent to enter into this Amendment, Borrower hereby represents and warrants
that:
(a) Each of the execution, delivery and performance by
Borrower of this Amendment and the performance of the Credit
Agreement, as amended hereby (the "Amended Credit Agreement")
are within Borrower's corporate power and have been duly
authorized by all necessary corporate and shareholder action.
(b) This Amendment has been duly executed and delivered
by or on behalf of Borrower.
(c) Each of this Amendment and the Amended Credit
Agreement constitutes a legal, valid and binding obligation of
Borrower enforceable against Borrower in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and by general
equitable principles (whether enforcement is sought by
proceedings in equity or at law).
(d) No Default has occurred and is continuing both before
and after giving effect to this Amendment.
(e) All representations and warranties of the Loan
Parties contained in the Credit Agreement and other Loan
Documents are true and correct as of the date hereof with the
same effect as though such representations and warranties had
been made on and as of the date hereof, except to the extent
that any such representation or warranty expressly relates to
an earlier date.
12. Schedule 3.9. On or before 25 days following the date
on which Borrower commences its initial public offering of its common stock
under the Securities Act of 1933, as amended (the "Schedule 3.9 Delivery Date"),
Borrower will deliver to Agent an updated Schedule 3.9 to the Credit Agreement.
13. Use of Proceeds. Upon the completion of the IPO,
Borrower shall cause the next portion of the proceeds of the IPO (after all fees
and expenses of the IPO)
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paid to Borrower (the "IPO Proceeds") to be deposited into its Concentration
Account and be initially applied against any amounts outstanding under the
Revolving Credit Loan. Notwithstanding anything set forth herein to the
contrary, this application of the IPO Proceeds shall not be considered a
permanent reduction in the Aggregate Revolving Credit Commitment.
14. No Other Amendments, Consents. Except as expressly
amended herein, the Credit Agreement and the other Loan Documents shall be
unmodified and shall continue to be in full force and effect in accordance with
their terms. In addition, except as specifically provided herein, this Amendment
shall not be deemed a consent to or waiver of any term or condition of any Loan
Document and shall not be deemed to prejudice any right or rights which Agent or
any Lender may now have or may have in the future under or in connection with
any Loan Document or any of the instruments or agreements referred to therein,
as the same may be amended from time to time.
15. Outstanding Indebtedness; Waiver of Claims. Borrower
hereby acknowledges and agrees that as of September 11, 2002 the aggregate
outstanding principal amount of the Revolving Credit Loan is $93,000,098.20 and
that such principal amount is payable pursuant to the Credit Agreement without
offset, withholding, counterclaim or deduction of any kind. Borrower hereby
waives, releases, remises and forever discharges Agent, Lenders and each other
Indemnified Person from any and all Claims of any kind or character, known or
unknown, which Borrower ever had, now has or might hereafter have against Agent
or any Lender which relates, directly or indirectly, to any acts or omissions of
Agent or such Lender or any other Indemnified Person on or prior to the
Amendment Effective Date.
16. Expenses. Borrower hereby reconfirms its obligations
pursuant to Section 11.2 of the Credit Agreement to pay and reimburse Agent for
all reasonable out-of-pocket expenses (including, without limitation, reasonable
fees of counsel) incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment and all other documents and instruments
delivered in connection herewith.
17. Effectiveness. This Amendment shall become effective
as of September 12, 2002 (the "Amendment Effective Date") only upon satisfaction
in full in the judgment of the Agent of each of the following conditions on or
prior to September 12, 2002:
(a) Amendment. Agent shall have
received eight (8) original copies of this Amendment duly
executed and delivered by Agent, Required Lenders and Borrower
and acknowledged by ASL.
(b) Board Resolutions. Agent shall have
received a certificate of the Secretary or an Assistant
Secretary of Borrower certifying (i) the resolutions adopted
by the Board of Directors of Borrower approving this Amendment
and the Amended and Restated Promissory Notes and (ii) all
documents evidencing other necessary corporate action by
Borrower and required governmental and third party
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approvals, if any, with respect to this Amendment and the
Amended and Restated Promissory Notes.
(c) Payment of Expenses. Borrower shall
have paid to Agent all costs and expenses owing in connection
with this Amendment and the other Loan Documents and due to
Agent and Lenders (including, without limitation, reasonable
legal fees and expenses).
(d) Representations and Warranties. All
representations and warranties contained in this Amendment
shall be true and correct on and as of the Amendment Effective
Date.
18. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
19. Counterparts. This Amendment may be executed by the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
BORROWER:
DICK'S SPORTING GOODS, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Treasurer
AGENT:
GENERAL ELECTRICAL CAPITAL
CORPORATION, as Agent
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Its: Duly Authorized Signatory
LENDERS:
GENERAL ELECTRICAL CAPITAL
CORPORATION
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Its: Duly Authorized Signatory
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PNC BUSINESS CREDIT
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
FLEET RETAIL FINANCE INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Director
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/ Xxxx X. Xxxxx XX
--------------------------------------
Name: Xxxx X. Xxxxx XX
Title: VP
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Suppie
--------------------------------------
Name: Xxxx X. Suppie
Title: Vice President
CITIZEN'S BUSINESS CREDIT
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
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The undersigned Guarantor hereby (i) acknowledges to each of the amendments to
the Credit Agreement effected by this Amendment and (ii) confirms and agrees
that its obligations under its Guaranty shall continue without any diminution
thereof and shall remain in full force and effect on and after the effectiveness
of this Amendment.
ACKNOWLEDGED, CONSENTED and
AGREED to as of the date first written above.
AMERICAN SPORTS LICENSING, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Treasurer
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EXHIBIT A
Amended and Restated Certificate of Incorporation
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