EIGHTH AMENDMENT AND JOINDER TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
EIGHTH AMENDMENT AND JOINDER TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
EIGHTH AMENDMENT AND JOINDER, dated as of November 19, 2008, to the Credit Agreement referred to
below (this “Amendment”), by and among DICK’S SPORTING GOODS, INC., a Delaware corporation
(the “Borrower”), GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as Agent
for the Lenders party to such Credit Agreement (in such capacity, the “Agent”), and the
Lenders signatory hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, the other Loan Parties signatory thereto, the Agent and the Lenders are
parties to that certain Second Amended and Restated Credit Agreement, dated as of July 28, 2004 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”);
WHEREAS, the Borrower has delivered to the Agent a Facilities Increase Notice requesting an
increase in the Aggregate Revolving Loan Commitments in the principal amount of $90,000,000
pursuant to a Facilities Increase as provided for in Section 1.1A of the Credit Agreement;
and
WHEREAS, in connection with such Facilities Increase and pursuant to
Section 2.4(a)(ii) of the Credit Agreement, the Borrower has requested that the Agent amend
the Credit Agreement, and the Agent has agreed to amend the Credit Agreement in the manner, and on
the terms and conditions set forth 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 hereby
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 as amended hereby
(the “Amended Credit Agreement”).
2. Amendments to Credit Agreement. The Credit Agreement is hereby amended as of the
Facilities Increase Date as follows:
(a) Amendment to Annex A of the Credit Agreement. The definition of “Aggregate
Revolving Credit Commitment” set forth in Annex A to the Credit Agreement is hereby amended
and restated in its entirety as follows:
“‘Aggregate Revolving Credit Commitment’ shall mean $440,000,000 (i) as
such amount may be increased by up to $10,000,000 in the aggregate to
reflect each additional commitment by each Lender that is made as part of
4
any
Facilities Increase and (ii) as such amount may be reduced from time to time
pursuant to Section 1.2(c).
(b) Amendment to Appendix 1 of the Credit Agreement. Appendix 1 to the Credit
Agreement is hereby amended and restated in its entirety by replacing the existing Appendix
1 with the new Appendix 1 attached to this Amendment as Exhibit A.
3. Joinder by New Lenders; Revolving Credit Commitment Increases.
(a) ▇▇▇▇▇ Fargo Retail Finance, LLC and U.S. Bank National Association (each individually a
“New Lender” and collectively, the “New Lenders”) each hereby agrees to be a
“Lender” under the Credit Agreement and the other Loan Documents and to be bound by the terms and
conditions thereof, and to perform its duties and obligations thereunder.
(b) Each New Lender hereby represents and warrants that (i) the execution by such New Lender
of this Amendment, and performance by such New Lender of its duties and obligations under this
Amendment, the Credit Agreement, as amended hereby, and any other Loan Documents will not require
any registration with, notice to, or consent or approval by any Governmental Authority; (ii) such
New Lender is familiar with transactions of the kind and scope reflected in the Credit Agreement
and the other Loan Documents; and (iii) such New Lender has made its own independent investigation
and appraisal of the financial condition and affairs of each Loan Party, has conducted its own
evaluation of the Loans and Letter of Credit Obligations, the Credit Agreement, the other Loan
Documents and each Loan Party’s creditworthiness, and has made its decision to become a Lender to
the Borrower under the Credit Agreement independently and without reliance upon the Agent, and will
continue to do so.
(c) Each Lender signatory hereto (other than any New Lender) hereby agrees to the increase in
such Lender’s Revolving Credit Commitment pursuant to the amendments set forth in Section 2
hereof.
(d) On the Facilities Increase Date, each Lender participating in the Facilities Increase
contemplated hereby shall purchase from each existing Lender having Loans outstanding on the
Facilities Increase Date, without recourse or warranty, an undivided interest and participation, to
the extent of such Lender’s pro rata share in the Revolving Credit Facility of the new Revolving
Credit Commitments (after giving effect to the Facilities Increase contemplated hereby), in the
aggregate outstanding Loans, so as to ensure that, on the Facilities Increase Date after giving
effect to such Facilities Increase, each Lender holds its pro rata share in the Revolving Credit
Facility and the Loans outstanding on the Facilities Increase Date.
5
4. Representations and Warranties. To induce the Agent to enter into this Amendment,
the Borrower hereby represents and warrants that, after giving effect to this Amendment:
(a) Each of the execution, delivery and performance by the Borrower and each other Loan Party
which is party to the Guaranty of this Amendment and the Revolving Notes referred to in clause (c)
of Section 10 hereto (collectively, the “Facilities Increase Revolving Notes”), if
applicable, and the performance of the Amended Credit Agreement are (i) within the Borrower’s and
each such Loan Party’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,
material agreement or other material 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 the 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 the Borrower and
each other Loan Party which is party to the Guaranty.
(c) Each of this Amendment, each Facilities Increase Revolving Note and the Amended Credit
Agreement constitutes a legal, valid and binding obligation of the Borrower and each Loan Party
signatory thereto enforceable against the Borrower and such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights generally and by
general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(d) As of the Facilities Increase Date and both before and after giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing.
(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 the
Facilities Increase Revolving Notes, if applicable, or, to the extent applicable, perform any of
its obligations under this
Amendment, the Facilities Increase Revolving Notes, the Amended
6
Credit Agreement or any other
Loan Document, or the validity or enforceability of this Amendment, the Facilities Increase
Revolving Notes, the Amended Credit Agreement or any other Loan Document or any action taken under
this Amendment, the Facilities Increase Revolving Notes, 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 signatory hereto, there does not exist a state of facts which
is reasonably likely to give rise to such proceedings.
(f) Except as set forth in Schedule I hereto, 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.
(g) As of the Facilities Increase Date, (i) the conditions precedent set forth in Section
2.4 of the Credit Agreement have been satisfied both before and after giving effect to the
Facilities Increase contemplated hereby and (ii) such Facilities Increase is being made on the
terms and conditions set forth in Section 1.1A.
5. Remedies. This Amendment shall constitute a Loan Document. The breach by any Loan
Party of (a) any representation or warranty in any material respect as of the date when made or
deemed made and (b) any covenant or agreement, in each case, 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 provided for 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. Affirmation of Obligations. Each of the Loan Parties signatory hereto hereby
acknowledges, agrees and affirms (a) its obligations under the Credit Agreement and the other Loan
Documents, including, without limitation, its guaranty obligations thereunder, (b) that such
guaranty shall apply to the Obligations in accordance with the terms thereof, (c) the grant of the
security interest in its Collateral pursuant to the Loan
Documents and (d) that such liens and security interests created and granted are valid and
continuing and secure the Obligations in accordance with the terms thereof.
7
8. Waiver of Claims. The Borrower and the other Loan Parties signatory hereto hereby
acknowledge and agree that as of November 18, 2008, (a) the aggregate outstanding amount of the
Revolving Credit Loan is $213,367,528.34 and (b) Letters of Credit are outstanding having an
undrawn amount of $16,861,408.49, and that such amounts are payable pursuant to the Credit
Agreement without defense, offset, withholding, counterclaim or deduction of any kind. The
Borrower and each other Loan Party hereby waive, release, remise and forever discharge the Agent,
the Lenders and each other Indemnified Person from any and all Claims of any kind or character,
known or unknown, which the Borrower ever had, now has or might hereafter have against the Agent or
any Indemnified Person which relates, directly or indirectly, to any acts or omissions of the Agent
or such Lender or any other Indemnified Person on or prior to the Facilities Increase Date.
9. Fees and Expenses. The Borrower hereby reconfirms its obligations pursuant to
Section 11.2 of the Credit Agreement to pay and reimburse the 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.
10. Effectiveness. This Amendment shall become effective as of November 19, 2008 (the
“Facilities Increase Date”) only upon satisfaction in full in the judgment of the Agent of
each of the following conditions:
(a) Amendment. The Agent shall have received this Amendment duly executed and
delivered by the Agent, each Lender listed on the signature pages hereto and the Borrower and
acknowledged by the other Loan Parties.
(b) Representations and Warranties. All representations and warranties contained in
this Amendment shall be true and correct on and as of the Facilities Increase Date.
(c) Revolving Notes. To the extent requested by any Lender signatory hereto, the
Agent shall have received a duly executed Revolving Note for the account of such Lender,
substantially in the form of Exhibit C of the Credit Agreement with blanks appropriately
completed.
(d) Fees. (i) The Borrower shall have paid to the Agent all costs, fees and expenses
(including, without limitation, reasonable legal fees and expenses) owing in connection with the
Facilities Increase contemplated hereby, and with this Amendment and the other Loan Documents and
due to the Agent and (ii) each Lender signatory
hereto shall have received any fees due such Lender by Borrower as set forth in such Lender’s
commitment letter executed in connection with the Facilities Increase contemplated hereby.
8
(e) Officer’s Certificates. For each Loan Party signatory hereto, the Agent shall
have received a certificate of the secretary or other officer of such Loan Party in charge of
maintaining books and records of such Loan Party certifying as to the resolutions of such Loan
Party’s board of directors or other appropriate governing body approving and authorizing the
execution, delivery and performance of this Amendment and, as applicable, the Facilities Increase
Revolving Notes and the performance of the Amended Credit Agreement, certified by an authorized
officer of such Loan Party as being in full force and effect without any modification or amendment,
each in form and substance satisfactory to the Agent.
(f) Opinions of Counsel. The Agent shall have received duly executed copies of
opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC, as counsel to the Loan Parties executing any Loan
Document as part of the Facilities Increase contemplated hereby, in New York, together with any
local counsel opinions in each other jurisdiction in which such Loan Party is organized, each in
form and substance satisfactory to the Agent, each addressed to the Agent and the Lenders and
addressing such matters as the Agent may reasonably request.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
12. 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. This Amendment may be executed and delivered by telecopier or other
method of electronic transmission with the same force and effect as if it were a manually executed
and delivered counterpart; provided that the Borrower and the other Loan Parties signatory
hereto shall promptly deliver four (4) original signed copies to the Agent.
[SIGNATURE PAGES FOLLOW]
9
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President - Finance, Administration and Chief Financial Officer | |||
| GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Its: | Duly Authorized Signatory | |||
| ▇▇▇▇▇ FARGO RETAIL FINANCE, LLC, as a Lender |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇ | |||
| Title: | Vice President | |||
| U.S. BANK NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Assistant Vice - President | |||
| BANK OF AMERICA, N.A., as a Lender |
||||
| By: | /s/ ▇▇▇▇▇▇ Cerassi | |||
| Name: | ▇▇▇▇▇▇ Cerassi | |||
| Title: | Senior Vice President | |||
Each of the undersigned Loan Parties hereby (i) acknowledges 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.
AGREED to as of the date first written above.
| AMERICAN SPORTS LICENSING, INC. | ||||
By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
Title:
|
President | |||
| DSG OF VIRGINIA, LLC | ||||
By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
Title:
|
President | |||
| ▇▇▇▇▇▇’▇ TRADING COMPANY, INC. | ||||
By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
Title:
|
Vice President/Secretary/Treasurer | |||
| ▇▇▇▇▇▇’▇ NEVADA, INC. | ||||
By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
Title:
|
Secretary/Treasurer | |||
| ▇▇▇▇▇▇’▇ OF VIRGINIA, INC. | ||||
By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
Title:
|
Secretary/Treasurer | |||
| GOLF GALAXY, INC. | ||||
By: Name: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
Title:
|
Vice President | |||
| GOLF GALAXY GOLFWORKS, INC. | ||||
By: Name: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
Title:
|
Vice President | |||
| CHICK’S SPORTING GOODS, INC. | ||||
By: Name: |
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||
Title:
|
Vice President and Assistant Secretary | |||
EXHIBIT A
APPENDIX 1
Revolving Credit Commitments
and Lender Information
and Lender Information
| Revolving Credit | Proportionate Share of | |||||||
| Lender | Commitment | Commitment | ||||||
GENERAL ELECTRIC CAPITAL CORPORATION |
$ | 85,000,000 | 19.32 | % | ||||
▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: Dick’s Sporting Goods Account Manager Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
CITIZEN’S BANK OF PENNSYLVANIA |
$ | 45,000,000 | 10.23 | % | ||||
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇ ▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
NATIONAL CITY BUSINESS CREDIT, INC. |
$ | 45,000,000 | 10.23 | % | ||||
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
WACHOVIA BANK, NATIONAL ASSOCIATION |
$ | 40,000,000 | 9.09 | % | ||||
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
| Revolving Credit | Proportionate Share of | |||||||
| Lender | Commitment | Commitment | ||||||
PNC BANK, NATIONAL ASSOCIATION |
$ | 35,000,000 | 7.95 | % | ||||
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
JPMORGAN CHASE BANK, N.A. |
$ | 35,000,000 | 7.95 | % | ||||
▇▇ ▇▇▇▇▇▇ Business Credit Corp. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇-▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
BANK OF AMERICA, N.A. |
$ | 85,000,000 | 19.32 | % | ||||
Bank of America Retail Finance Group ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Vice President Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
▇▇▇▇▇ FARGO RETAIL FINANCE, LLC |
$ | 50,000,000 | 11.36 | % | ||||
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
U.S. BANK NATIONAL ASSOCIATION |
$ | 20,000,000 | 4.55 | % | ||||
US Bank Business Credit ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇-▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Relationship Manager Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ |
||||||||
| $ | 440,000,000 | 100.00 | % | |||||