EXHIBIT 4.3
NINTH AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT AND FIRST AMENDMENT TO PLEDGE AGREEMENT
NINTH AMENDMENT, dated as of December 15, 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 1.3 of the Credit Agreement.
Section 1.3 of the Credit Agreement is hereby amended as of the Amendment
Effective Date (as hereinafter defined) by:
(a) deleting the word "and" where it appears immediately
prior to clause (f) of such Section 1.3; and
(b) inserting the following new clause (g) to read as
follows:
"and (g) until and including December 15, 2003, to repurchase
("Public Repurchases") common stock of Borrower on a public
securities exchange for consideration not to exceed in the
aggregate the sum of $30,000,000 plus the amount of any cash
proceeds received by Borrower after the effective date of the
Ninth Amendment from the exercise of options issued under the
Employee Stock Purchase Plan; provided, that with respect to
any Public Repurchases in any Fiscal Quarter, if after giving
effect thereto the aggregate amount of all Public Repurchases
in such Fiscal Quarter exceeds $10,000,000 (i) the daily
average Net Borrowing Availability for the thirty days prior
to the date of such Public Repurchase shall not be less than
$30,000,000 after giving effect to such Public Repurchase, and
(ii) Borrower provides to Agent pro forma calculations showing
greater than $30,000,000 daily average net Borrowing
Availability for the ninety (90) days following the date of
such Public Repurchase and a certificate by the
CFO of Borrower reflecting the same, each in form and
substance satisfactory to Agent."
3. Amendment to Section 6.3 of the Credit Agreement.
Section 6.3 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 6.3;
(b) inserting a new clause (i) to read as follows:
"(i) all loans and advances made by Borrower to ASL as
otherwise permitted herein that are not offset by amounts owed
by Borrower to ASL pursuant to the ASL Licensing Agreement,
provided that ASL shall have executed and delivered to
Borrower a subordinated demand promissory note (the "ASL
Intercompany Note") to evidence any such intercompany
indebtedness owing at any time by ASL to Borrower, which
subordinated demand promissory note shall be pledged and
delivered to Agent pursuant to the Pledge Agreement as
additional collateral security for the Obligations; and"
(c) relettering clause "(i)" (before giving effect to this
Amendment) clause "(j)".
4. 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 (f) of such Section 6.4; and
(b) inserting a new clause (g) to read as follows:
"and (g) Borrower may enter into transactions with its
Affiliates, officers, directors, or employees provided such
transactions are otherwise permitted by Section 1.3(g)."
5. Amendment to Section 6.5 of the Credit Agreement.
Section 6.5 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 (b)(viii) of such Section 6.5;
(b) inserting a new clause (b)(ix) to read as follows:
"and (ix) repurchase the common stock of Borrower to the
extent contemplated by Section 1.3(g)." and
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(c) amending and restating the third paragraph of such
section in its entirety to read as follows:
"Borrower shall not permit ASL to, directly or indirectly,
engage in any business or activities other than (i) subject to
the next succeeding sentence, acquiring Borrower's
Intellectual Property, (ii) acquiring the Intellectual
Property of other Persons, provided that the consideration for
such Intellectual Property does not exceed (A) $5,500,000 in
any single transaction or (b) $10,000,000 in the aggregate in
any Fiscal Year, and (iii) licensing the right to use such
Intellectual Property to (A) Borrower pursuant to the ASL
Licensing Agreement, and (B) xxxxxxx.xxx pursuant to the
xxxxxxx.xxx Trademark Agreement. Notwithstanding anything to
the contrary contained in this Agreement or the other Loan
Documents, ASL shall not incur or suffer to exist any
Indebtedness, liabilities or other obligations (other than
operating expenses incurred in the ordinary course of
business) or enter into any contract, document or instrument
other than (i) the acquisition agreements, royalty and
licensing agreements, guarantee and security documents
referred to in the preceding sentence, (ii) the xxxxxxx.xxx
Trademark Agreement, (iii) any agreements for accounting,
legal or other professional services (including, without
limitation, agreements for appraisals of the Trademarks held
by ASL) and (iv) the lease for the premises located at 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx; provided
that the aggregate amount of operating expenses and other
obligations incurred by ASL (excluding any obligations
incurred pursuant to clause (ii) of the preceding sentence)
shall not exceed $300,000 in any Fiscal Year.
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 (j) of such Section 6.11; and
(b) inserting a new clause (k) to read as follows:
"and (k) Borrower may repurchase its common stock as
contemplated by Section 1.3(g) hereof."
7. Amendment to Annex A. Annex A to the Credit Agreement
is hereby amended as of the Amendment Effective Date by adding the following new
definitions to read as follows:
"ASL Intercompany Note" has the meaning assigned to
it in Section 6.3(i) herein.
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"ASL Licensing Agreement" means that certain Amended
and Restated License Agreement dated as of June 25,
2001 between ASL and Borrower.
"Ninth Amendment" shall mean the Ninth Amendment to
this Agreement, dated as of December 15, 2002.
"Public Repurchase" has the meaning assigned to it in
Section 1.3(g) herein.
8. Amendment to Section 1 of the Pledge Agreement.
Section 1 of the Pledge Agreement is hereby amended as of the Amendment
Effective Date by:
(a) deleting the word "and" where it appears immediately
following clause (b) of such Section 1.3;
(b) inserting the following new clause (c) to read as
follows:
"the Subordinated Demand Promissory Note
dated as of December 15, 2002 made by ASL to Borrower (the
"ASL Intercompany Note");" and
(c) relettering clause "(c)" (before giving effect to
this Amendment) clause "(d)".
9. 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
each Loan Party of this Amendment and the performance of the
Credit Agreement, as amended hereby (the "Amended Credit
Agreement"), the Pledge Agreement, as amended hereby (the
"Amended Pledge Agreement"), and the ASL Intercompany Note,
(collectively, the "Amendment Documents") are within such Loan
Party's corporate power and have been duly authorized by all
necessary corporate and shareholder action.
(b) Each of the Amendment Documents has been duly
executed and delivered by or on behalf of Borrower.
(c) Each of the Amendment Documents constitutes a legal,
valid and binding obligation of each Loan Party signatory
thereto, enforceable against such Loan Party 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).
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(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 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.
10. No Other Amendments. 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 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.
11. Outstanding Indebtedness; Waiver of Claims. Borrower
hereby acknowledges and agrees that as of December 6, 2002 the aggregate
outstanding principal amount of the Revolving Credit Loan is $79,027,172.38 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.
12. 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.
13. Effectiveness. This Amendment shall become effective
as of December 15, 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 December 15, 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
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certifying (i) the resolutions adopted by the Board of
Directors of Borrower approving this Amendment and (ii) all
documents evidencing other necessary corporate action by
Borrower and required governmental and third party approvals,
if any, with respect to this Amendment.
(c) Intercompany Note. Agent shall have
received a true, complete and correct copy of the ASL
Intercompany Note, in form and substance satisfactory to
Agent.
(d) 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).
(e) Representations and Warranties. All
representations and warranties contained in this Amendment
shall be true and correct on and as of the Amendment Effective
Date.
14. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
15. 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:___________________________
Name: Xxxxxxx Xxxxxxx
Title: Treasurer
AGENT:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
By:___________________________
Name:
Its: Duly Authorized Signatory
LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:___________________________
Name:
Its: Duly Authorized Signatory
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PNC BUSINESS CREDIT
By:___________________________
Name:
Title:
FLEET RETAIL FINANCE INC.
By:___________________________
Name:
Title:
NATIONAL CITY BANK OF PENNSYLVANIA
By:___________________________
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By:___________________________
Name:
Title:
CITIZEN'S BUSINESS CREDIT
By:___________________________
Name:
Title:
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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:_______________________________
Name:
Title:
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