EXHIBIT 10.4
ELEVENTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
ELEVENTH AMENDMENT, dated as of January 29, 2004, 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 Required 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 (including in the recitals hereto) shall have the meanings ascribed to
them in the Credit Agreement.
2. Amendment to the first paragraph of Section 6.5 of
the Credit Agreement. The first paragraph of Section 6.5 of the Credit Agreement
is hereby amended and restated as of the Amendment Effective Date (as
hereinafter defined) to read as follows:
"Capital Structure and Business. No Loan Party shall: (a) make
any changes in its business objectives, purposes or operations
which, individually or in the aggregate, could in any way
adversely affect the repayment of the Obligations or
reasonably be expected to have or result in a Material Adverse
Effect; (b) make any change in its capital structure,
including the issuance or sale of any shares of Stock,
warrants or other securities convertible into Stock or any
revision of the terms of its outstanding Stock; provided that
Borrower may (i) issue or sell shares of its Stock (other than
any Stock of any class which is preferred as to dividends or
as to the distribution of assets upon the voluntary or
involuntary dissolution, liquidation or winding up of any Loan
Party, except for any Permitted Stock Issuance or any Stock
issued in accordance with the terms of the Preferred Stock
Subordinated Notes) so long as no Change of Control occurs
after giving effect thereto, or make any revision of the terms
of its outstanding Stock or amend or modify any partners,
shareholders, voting or similar agreement to which it is a
party
or enter into any such agreement, (ii) enter into the DSG
Holdings Limited Liability Company Agreement, (iii) form a
wholly-owned Subsidiary ("Newco") for the sole purpose of
acquiring any Stock held by Borrower in DSG Holdings, (iv)
repurchase the common stock of Borrower to the extent
contemplated by Section 1.3(c), (v) enter into that certain
Second Amended and Restated Stockholders' Agreement in
substantially the form of Exhibit H attached hereto, (vi)
enter into that certain Second Amended and Restated
Registration Rights Agreement in substantially the form of
Exhibit I attached hereto, (vii) relinquish the October 2000
Warrants as described in the Information Statement, (viii)
terminate the purchase agreements under which the Preferred
Stock was issued, (ix) enter into the transactions
contemplated by the IPO Transactions, and (x) repurchase the
common stock of Borrower to the extent contemplated by Section
1.3(g); and (c) amend its articles or certificate of
incorporation, charter, by-laws or other organizational
documents; provided that Borrower may amend its charter or
bylaws in a manner that not would adversely affect Agent or
Lenders or Borrower's duty or ability to repay the
Obligations; or (d) engage in any business other than the
retail sale of clothing and sporting goods."
3. Amendment to Section 6.11 of the Credit Agreement.
Section 6.11 of the Credit Agreement is hereby amended and restated as of the
Amendment Effective Date to read as follows:
"Section 6.11 Restricted Payments. No Loan Party shall make
any Restricted Payment to any Person except that: (a) any
Subsidiary of Borrower may make Restricted Payments to
Borrower; (b) subject to the terms of the Subordination
Agreement, Borrower may make regularly scheduled payments of
principal and interest on the Subordinated Note; (c) Borrower
may make regularly scheduled payments of principal and
interest on the Xxxxxxx X. Xxxxx Notes, as in effect on the
date hereof; (d) Borrower may make the payments to Xxxxxx
Xxxxx contemplated by Section 6.4(b); (e) Borrower may make
payments to Stack Associates, L.P. and EWS Development Corp.
in accordance with the terms of those two leases as in effect
on the date hereof referred to in items 6 and 7 of Schedule
6.4; (f) Borrower may make capital contributions to DSG
Holdings in accordance with Section 1.2 of the DSG Holdings
Contribution Agreement and as contemplated by Section 1.3(c)
hereof; (g) Borrower may repurchase its common stock as
contemplated by Section 1.3(d) hereof and the Information
Memorandum; (h) Borrower may make payments on or after
September 9, 2001 of the Indebtedness evidenced by the
Preferred Stock Subordinated Notes, together with interest
thereon, in accordance with the terms thereof, to the extent
that (1) both before and after giving effect to any such
payment no actual or pro-forma Default or Event of Default
shall have occurred and be continuing, including without
limitation under Section 6.10 hereof, (2) after giving effect
to such payment, Borrower, based on the pro-forma
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Projections acceptable to Agent, previously provided to Agent
and assuming for purposes of this clause (2) that such payment
was made on the first day of the first four Fiscal Quarter
period to be tested under Section 6.10 after the proposed date
of such payment, shall be in compliance with Section 6.10, (3)
all accounts payable of Borrower are current, or being paid
according to historical practice and with normal trade terms,
and (4) after giving effect to such payment Excess Borrowing
Availability shall not be less than $15,000,000 for a minimum
of thirty (30) days following such payment as determined by
Agent based on the pro-forma Projections referred to in clause
(2) above, provided that Borrower prior to making any such
payment shall have delivered to Agent a certificate from a
financial officer of Borrower and in form and substance
satisfactory to Agent demonstrating compliance with the
foregoing; (i) Borrower may enter into the Option Exercise
Loan, (j) as may be permitted under the IPO Transactions, (k)
Borrower may repurchase its common stock as contemplated by
Section 1.3(g) hereof, and (l) Borrower may make dividends and
distributions in the form of Stock to its Stockholders to the
extent permitted by Section 6.5(b)(i) hereof."
4. Representations and Warranties. To induce Required
Lenders and Agent to enter into this Amendment, Borrower hereby represents and
warrants that:
(a) Each of the execution, delivery and
performance by Borrower and each Guarantor of this Amendment and the performance
of the Credit Agreement, as amended hereby (the "Amended Credit Agreement") are
(i) within Borrower's and each Guarantor's corporate power and have been duly
authorized by all necessary corporate and shareholder action; (ii) do not
contravene any provision of any Loan Party's charter or bylaws or equivalent
organizational or charter or other constituent documents; (iii) do not violate
any law or regulation, or any order or decree of any court or Governmental
Authority; (iv) do not conflict with or result in the breach or termination of,
constitute a default under or accelerate or permit the acceleration of any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which any Loan Party is a party or by which any
Loan Party or any of its property is bound; (v) do not result in the creation or
imposition of any Lien upon any of the property of any Loan Party other than
those in favor of Agent, on behalf of itself and the Lenders, pursuant to the
Loan Documents; and (vi) do not require the consent or approval of any
Governmental Authority or any other Person.
(b) This Amendment has been duly executed and
delivered by or on behalf of Borrower and each Guarantor.
(c) Each of this Amendment and the Amended
Credit Agreement constitutes a legal, valid and binding obligation of Borrower
and each Guarantor enforceable against Borrower in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization,
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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 or Event of Default has occurred
and is continuing both before and after giving effect to this Amendment.
(e) No action, claim or proceeding is now
pending or, to the knowledge of any Loan Party signatory hereto, threatened
against such Loan Party, at law, in equity or otherwise, before any court,
board, commission, agency or instrumentality of any federal, state, or local
government or of any agency or subdivision thereof, or before any arbitrator or
panel of arbitrators, which challenges such Loan Party's right, power, or
competence to enter into this Amendment or, to the extent applicable, perform
any of its obligations under this Amendment, the Amended Credit Agreement or any
other Loan Document, or the validity or enforceability of this Amendment, the
Amended Credit Agreement or any other Loan Document or any action taken under
this Amendment, the Amended Credit Agreement or any other Loan Document or which
if determined adversely could have or result in a Material Adverse Effect. To
the knowledge of each Loan Party, there does not exist a state of facts which is
reasonably likely to give rise to such proceedings.
(f) All representations and warranties of the
Loan Parties contained in the Credit Agreement and the 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.
5. Remedies. This Amendment shall constitute a Loan
Document. The breach by any Loan Party of any representation, warranty, covenant
or agreement in this Amendment shall constitute an immediate Event of Default
hereunder and under the other Loan Documents.
6. No Other Amendments/Waivers. 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, this Amendment shall not be deemed a waiver of any
term or condition of any Loan Document by the Agent or the Lenders with respect
to any right or remedy which the Agent or the Lenders may now or in the future
have under the Loan Documents, at law or in equity or otherwise or be deemed to
prejudice any rights or remedies which the Agent or the Lenders may now have or
may have in the future under or in connection with any Loan Document or under or
in connection with any Default or Event of Default which may now exist or which
may occur after the date hereof. The Credit Agreement and all other Loan
Documents are hereby in all respects ratified and confirmed.
7. Outstanding Indebtedness; Waiver of Claims. Borrower
hereby acknowledges and agrees that as of January 29, 2004 the aggregate
outstanding principal amount of the Revolving Credit Loan is $639,738.99 and
that such principal amount is payable pursuant to the Credit Agreement without
offset, withholding, counterclaim or
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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 Indemnified Person 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.
8. 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.
9. Effectiveness. This Amendment shall become effective
as of January [__], 2004 (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 January [__], 2004:
(a) Amendment. Agent shall have received eight (8)
original copies of this Amendment duly executed and delivered by Agent, Lenders
and Borrower and acknowledged by ASL.
(b) 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).
(c) Representations and Warranties. All representations
and warranties contained in this Amendment shall be true and correct on and as
of the Amendment Effective Date.
10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11. 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 ELECTRIC CAPITAL CORPORATION,
as Agent
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Its: Duly Authorized Signatory
LENDERS:
GENERAL ELECTRIC 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: Managing Director
NATIONAL CITY BANK OF PENNSYLVANIA
By:
-----------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
CITIZEN'S BANK OF PENNSYLVANIA
By: /s/ Xxx Xxxx
-----------------------------------
Name: Xxx 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/ Xxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
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