Exhibit 10.1
SECOND AMENDMENT
TO
CREDIT
AGREEMENT
THIS SECOND
AMENDMENT TO CREDIT AGREEMENT (“ Second Amendment
”) is made and entered into as of the 12
th
day of December,
2008 (the “ Second Amendment Effective Date ”),
by and among THE FINISH LINE, INC., an Indiana corporation (“
Finish Line ”), THE FINISH LINE USA, INC., an Indiana
corporation (“ FLU ”), THE FINISH LINE
DISTRIBUTION, INC., an Indiana corporation (“ FLD
”) and FINISH LINE TRANSPORTATION CO., INC., an Indiana
corporation (“ FLTC ”; and collectively with
Finish Line, FLU and FLD, the “ Borrowers ”; and
each a “ Borrower ”), THE FINISH LINE, INC., as
Borrower Representative, SPIKE’S HOLDING, LLC, an Indiana
limited liability company (“ Spike ”), and THE
FINISH LINE MAN ALIVE, INC., an Indiana corporation (“
FLMA ”; and collectively with Spike, the “
Guarantors ”; and each a “ Guarantor
”), the Lenders (as defined in the Credit Agreement referred
to below) and NATIONAL CITY BANK, a national banking association,
in its capacity as contractual representative for itself and the
other Lenders (“ Agent ”).
Recitals
1. The Borrowers, the Lenders and
the Agent are parties to a Credit Agreement, dated as of
February 25, 2005 (as amended by that certain First Amendment
to Credit Agreement, the “ Credit Agreement
”).
2. The Borrowers have requested that
the Lenders and the Agent agree to amend the Credit Agreement and
the other Loan Documents in certain respects to contemplate and
permit Letters of Credit with expiration dates occurring after the
Revolving Loan Termination Date.
3. Subject to the terms and
conditions stated in this Second Amendment and pursuant to and in
accordance with Section 9.3 of the Credit Agreement,
the Lenders and the Agent are willing to modify and amend the
Credit Agreement as provided in this Second Amendment.
Agreement
NOW THEREFORE, the Borrowers, the
Guarantors, the Lenders and the Agent agree as follows:
1. Definitions . All terms
used in the Recitals and in this Second Amendment that are defined
in the Credit Agreement and are not otherwise defined herein are
used in this Second Amendment with the meanings ascribed to them in
the Credit Agreement, as amended by this Second
Amendment.
2. Amendments to Credit
Agreement . Each of the following amendments shall be effective
as of the Second Amendment Effective Date.
(a) Amendment To Restriction Of
Letter Of Credit Expiration Dates . Section 3.3(ii)
of the Credit Agreement is hereby deleted in its entirety and shall
be deemed to read as follows as of the Second Amendment Effective
Date:
“(ii) issue any Letter of
Credit which has an expiration date later than the date which is
one (1) year after the Revolving Loan Termination Date;
provided that Letters of Credit Outstanding on the
Revolving
Loan Termination Date shall be
either (i) fully supported by a clean letter of credit issued
by a financial institution having a long-term debt rating of AAA or
higher by Standard & Poor’s Ratings Group or Aaa or
higher by Moody’s Investors Service, Inc., or
(ii) collateralized, until the expiry date thereof for
cancellation, by the deposit with the Agent of cash in an amount
equal to one hundred two and one half percent (102.5%) times
the amount available for drawing under all then outstanding Letters
of Credit issued thereunder, plus fees that would be due thereunder
through the applicable expiry date.”
3. Amendment of Other Loan
Documents . All references to the Credit Agreement in the other
Loan Documents shall mean the Credit Agreement, as modified and
amended by this Second Amendment and as it may be further amended,
modified, extended, renewed, supplemented and/or restated from time
to time and at any time. The other Loan Documents are hereby
modified and amended to the extent necessary to conform them to, or
to cause them to accurately reflect, the terms of the Credit
Agreement, as modified by this Second Amendment. Except as
otherwise expressly provided herein, all of the terms and
provisions of the Credit Agreement and the other Loan Documents, as
modified and amended by this Second Amendment, remain in full force
and effect, and fully binding on the parties thereto and their
respective successors and assigns.
4. Binding on Successors and
Assigns . All the terms and provisions of this Second Amendment
shall be binding upon and inure to the benefit of the parties
hereto, their respective successors, assigns and legal
representatives. Whenever in this Second Amendment any of the
parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party.
5. Representations and
Warranties . Each Borrower represents and warrants to the
Lenders and the Agent that:
(a)(i) The execution, delivery
and performance of this Second Amendment and all agreements and
documents delivered pursuant hereto by the Borrowers and the
Guarantors have been duly authorized by all necessary action and do
not and will not violate any provision of any law, rule,
regulation, order, judgment, injunction, or writ presently in
effect applying to the Borrowers or the Guarantors (or any of
them), or any of their respective constituent documents, or result
in a breach of or constitute a default under any material
agreement, lease or instrument to which any of the Borrowers or the
Guarantors is a party or by which any of the Borrowers or the
Guarantors, or any of their respective properties, may be bound or
affected; (ii) no authorization, consent, approval, license,
exemption or filing of a registration with any court or
governmental department, agency or instrumentality is or will be
necessary to the valid execution, delivery or performance by the
Borrowers or the Guarantors of this Second Amendment and all
agreements and documents delivered pursuant hereto; and
(iii) this Second Amendment and all agreements and documents
delivered pursuant hereto by the Borrowers and the Guarantors are
the legal, valid and binding obligations of the Borrowers and the
Guarantors, as applicable, as a signatory thereto, and enforceable
against the Borrowers and the Guarantors, as applicable, in
accordance with the terms thereof.
(b) After giving effect to the
amendments contained in this Second Amendment, the representations
and warranties contained in Article VI of the Credit Agreement are
true and correct on and as of the Second Amendment Effective Date
with the same force and effect as if made on and as of the Second
Amendment Effective Date, except that the representation in
Section 6.4 of
-2-
the Credit Agreement shall be deemed to refer to
the financial statements of the Borrowers most recently delivered
to the Agent prior to the Second Amendment Effective
Date.
(c) No Default or Unmatured Default
has occurred and is continuing or will exist under the Credit
Agreement as of the Second Amendment Effective Date.
(d) The Borrowers’ constituent
documents have not been amended or otherwise changed since
February 25, 2005.
6. Consent and Representations of
the Guarantors .
(a) Each of the undersigned
Guarantors, by its execution of this Second Amendment, expressly
consents to the execution, delivery and performance by the
Borrowers
