Exhibit 8
TENTH AMENDMENT AND WAIVER TO AMENDED AND
RESTATED CREDIT AGREEMENT
TENTH AMENDMENT AND WAIVER, dated as of August 7, 2003, 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 4. 1 of the Credit Agreement.
Section 4.1 of the Credit Agreement is hereby amended and restated as
of the Amendment Effective Date (as hereinafter defined) to read as follows:
"4. 1 Reports and Notices. Borrower covenants and agrees that
from and after the Closing Date and until the Termination
Date, it shall deliver to Agent and each Lender the Financial
Statements, Projections, Liquidity Projections and notices at
the times and in the manner set forth in Annex D hereto;
provided, however, that the Annual Operating Plan shall only
be delivered to Agent and shall not be required to be
delivered to any Lender unless Excess Borrowing Availability
is less than $25,000,000 for three consecutive Business Days
during any Fiscal Year (the "AOP Trigger Date"), in which
case Borrower shall promptly provide a revised Annual
Operating Plan to Agent and Lenders for the remainder of such
Fiscal Year (and if the AOP Trigger Date occurs during the
last Fiscal Quarter of such Fiscal Year, an Annual Operating
Plan for the following Fiscal Year delivered prior to the
first day of such Fiscal Year). Concurrently with the
delivery of the annual audited financial statements
referenced in the first sentence of this Section 4.1,
Borrower shall cause to be delivered to Agent and each Lender
a certificate of Borrower's independent certified public
accountants certifying that during the course of performing
their audit of
Borrower they did not become aware of any Default under the
Loan Documents or specifying each Default of which they
became aware."
3. Amendment to Section 6.3. Section 6.3 of the Credit
Agreement is hereby amended as of the Amendment Effective Date by (a) deleting
the "and" where it appears prior to clause (i) thereof and (b) inserting the
following new clause (j) at the end thereof to read as follows:
"and (j) Indebtedness in the form of non-cash obligations for
construction in progress of leased facilities, as reflected
on certain of Borrower's Financial Statements as 'Non-cash
obligations for CIP - Leased Facilities."
4. Amendment to Annex A. Annex A to the Credit Agreement is
hereby amended as of the Amendment Effective Date by (a) inserting the following
new definitions on order therein to read as follows:
"Annual Operating Plan" shall mean the annual
operating plan and related projections required to
be delivered under paragraph 6 of Annex D.
"AOP Trigger Date" has the meaning assigned to it in
Section 4.1."
"Liquidity Projections" has the meaning assigned to
it in Paragraph 6A of Annex D.
and (b) amending and restating the following definition in its entirety to read
as follows:
"Projections" shall mean the projections referred to in
paragraph 2 of Schedule 3.4 and as of any date the
consolidated and consolidating balance sheet, statements of
income and cash flow for Borrower and its Subsidiaries
(including forecasted Capital Expenditures and Net Borrowing
Availability) (i) by month for each of the Fiscal Years
ending 2000, 2001 and 2002 and (ii) the Annual Operating
Plan, the Liquidity Projections and any other projections
required to be delivered by Borrower to Agent and Lenders
under the Agreement.
5. Amendment to Annex D of the Credit Agreement. Annex D of
the Credit Agreement is hereby amended as of the Amendment Effective Date by
inserting the following new paragraph 6A after paragraph 6 to read as follows:
"6A. Not later than the end of each Fiscal Year, statements
of projected Inventory, projected Net Borrowing Availability
and projected aggregate Revolving Credit Advances outstanding
for the following Fiscal Year,
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each in form and substance reasonably acceptable to Agent
(the "Liquidity Projections")."
6. Amendment to Annex F of the Credit Agreement. Annex F of
the Credit Agreement is hereby amended as of the Amendment Effective Date by
deleting the first proviso of paragraph one thereof and replacing it with the
following proviso to read as follows:
"provided, that the aggregate amount of all Letter of Credit
Obligations at any one time outstanding (whether or not then
due and payable) shall not exceed the lesser of (a)
$50,000,000, (b) the Aggregate Revolving Credit Commitment
minus the outstanding Revolving Credit Loan, and (c) the
Borrowing Base minus the outstanding Revolving Credit Loan;"
7. Waiver. As of the Amendment Effective Date, Agent and
Lenders hereby waive any Events of Default arising out of Borrower's failure to
comply with the provisions in paragraph 6 of Annex D requiring delivery of the
Annual Operating Plan within 90 days of the close of the Fiscal Year ended
February 1, 2003.
8. 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 and each Guarantor of this Amendment and the performance of the Credit
Agreement, as amended hereby (the "Amended Credit Agreement") are within
Borrower's and each Guarantor'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 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, 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) Except as waived pursuant to Section 4 of this
Amendment, 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.
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9. 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, 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.
10. Outstanding Indebtedness; Waiver of Claims. Borrower
hereby acknowledges and agrees that as of August 7, 2003 the aggregate
outstanding principal amount of the Revolving Credit Loan is $37,572,921.90 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.
11. 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.
12. Effectiveness. This Amendment shall become effective as
of August 7, 2003 (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 August 7, 2003:
(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) Operating Plan. Agent shall have received the Annual
Operating Plan for the current Fiscal Year, in form and substance satisfactory
to Agent.
(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.
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13. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
14. 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:
--------------------------------------
Name:
Its: Duly Authorized Signatory
LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
--------------------------------------
Name:
Its: Duly Authorized Signatory
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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: /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:
--------------------------------------
Name:
Title:
NATIONAL CITY BANK OF
PENNSYLVANIA
By:
--------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By:
--------------------------------------
Name:
Title:
CITIZEN'S BANK OF
PENNSYLVANIA
By:
--------------------------------------
Name:
Title:
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PNC BUSINESS CREDIT
By:
--------------------------------------
Name:
Title:
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:
--------------------------------------
Name:
Title:
CITIZEN'S BANK OF
PENNSYLVANIA
By:
--------------------------------------
Name:
Title:
7
PNC BUSINESS CREDIT
By:
--------------------------------------
Name:
Title:
FLEET RETAIL FINANCE INC.
By:
--------------------------------------
Name:
Title:
NATIONAL CITY BANK OF
PENNSYLVANIA
By: /s/ Xxxx X. Xxxxx XX
--------------------------------------
Name: Xxxx X. Xxxxx XX
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION
By:
--------------------------------------
Name:
Title:
CITIZEN'S BANK OF
PENNSYLVANIA
By:
--------------------------------------
Name:
Title:
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: /s/ Xxxxxxx X. Xxx
--------------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
CITIZEN'S BUSINESS CREDIT
By:
--------------------------------------
Name:
Title:
7
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 BANK OF
PENNSYLVANIA
By: /s/ Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
Title: V.P.
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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 X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
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