EX-10.2



 





Exhibit 10.2



CONSENT AND WAIVER TO AMENDED AND

RESTATED CREDIT AGREEMENT




     CONSENT AND WAIVER, dated as of June 14, 2004, to the Amended and Restated
Credit Agreement referred to below (this “Consent”) 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, Agent and Required Lenders have agreed to waive certain
violations of the Loan Agreement and consent to certain actions to be taken by
the Borrower that would otherwise be in violation of the Credit Agreement, all
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. Consent and Waiver.



          (a) As of the Consent Effective Date (as hereinafter defined), Agent and
Required Lenders hereby consent to, and waive any Event of Default under
Sections 6.1 and 6.2 of the Credit Agreement arising solely out of, the
formation by Borrower of Diamondbacks Inc., a Delaware corporation (“DI”) and
Diamondback Acquisition Inc, an Indiana corporation (“DAI”, together with DI,
the “Acquisition Subsidiaries”); provided that, within 10 days of the request
of Agent, Borrower shall, or shall cause the Acquisition Subsidiaries, to (x)
provide to Agent a joinder to the Credit Agreement, together with such other
such security documents, as well as appropriate financing statements, all in
form and substance satisfactory to Agent (including being sufficient to grant
Agent a first priority Lien (subject to Permitted Encumbrances) in and to the
assets of each Acquisition Subsidiary), (y) provide to Agent a pledge agreement
and appropriate certificates and powers or financing statements, hypothecating
all of the direct or beneficial ownership interest in each Acquisition
Subsidiary, in form and substance satisfactory to Agent, and (z) provide to
Agent all other documentation (including a legal opinion of counsel acceptable
to Agent), which in its opinion is



 









 





appropriate with respect to the execution and delivery of the applicable
documentation referred to above;



          (b) As of the Consent Effective Date (as hereinafter defined), Agent and
Required Lenders hereby consent to, and waive any Event of Default under
Section 6.1(b) of the Credit Agreement arising solely out of, the execution and
delivery of the Agreement and Plan of Merger (the “Merger Agreement”), by and
among the Acquisition Subsidiaries and Giants Inc. (“Giants”), and the
Shareholder Tender Agreement (the “Tender Agreement”, together with the Merger
Agreement, the “Merger Documents”), by and among Acquisition Subsidiaries and
Giants, each in substantially in the form provided to Agent on June 14, 2004;
and



          (c) As of the Consent Effective Date (as hereinafter defined), Agent and
Required Lenders hereby consent to, and waive any Event of Default under
Section 8.1(e) of the Credit Agreement arising solely out of the breach of the
representations and warranties set forth in Section 3.9 of the Credit Agreement
which would be rendered untrue or incorrect as of the date of this Consent as a
result of the formation of the Acquisition Subsidiaries and the execution and
delivery of the Merger Documents.



     3. Merger. Notwithstanding the foregoing, Borrower, Agent and Required
Lenders acknowledge and agree that nothing set forth herein shall be deemed to
be a consent by Agent and Lenders to the consummation of the merger or any
other transaction contemplated by Merger Documents, and Borrower, Agent and
Required Lenders further acknowledge and agree that the consent of Agent and
Required Lenders is required by the terms of the Credit Agreement in order to
consummate the merger and the other transactions contemplated by Merger
Documents.



     4. Representations and Warranties. To induce Required Lenders and Agent
to enter into this Consent, Borrower hereby represents and warrants that:



          (a) The execution, delivery and performance by Borrower and each Guarantor
of this Consent is (i) within Borrower’s and each Guarantor’s corporate power
and has been duly authorized by all necessary corporate and shareholder action;
(ii) does not contravene any provision of any Loan Party’s charter or bylaws or
equivalent organizational or charter or other constituent documents; (iii) does
not violate any law or regulation, or any order or decree of any court or
Governmental Authority; (iv) does 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) does 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) does not require the consent or
approval of any Governmental Authority or any other Person.



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          (b) This Consent has been duly executed and delivered by or on behalf of
Borrower and each Guarantor.



          (c) This Consent 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) No Default or Event of Default has occurred and is continuing after
giving effect to this Consent.



          (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
Consent or, to the extent applicable, perform any of its obligations under this
Consent, the Credit Agreement or any other Loan Document, or the validity or
enforceability of this Consent, the Credit Agreement or any other Loan Document
or any action taken under this Consent, the 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 (other than Section 3.9 of
the Credit Agreement to the extent set forth in Section 2(c) above) 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 Consent shall constitute a Loan Document. The breach
by any Loan Party of any representation, warranty, covenant or agreement in
this Consent shall constitute an immediate Event of Default hereunder and under
the other Loan Documents.



     6. No Other Consents. 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 Consent 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



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hereof. The Credit Agreement and all other Loan Documents are hereby in
all respects ratified and confirmed.



     7. Waiver of Claims. 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 Consent
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 Consent and all other documents and instruments
delivered in connection herewith.



     9. Effectiveness. This Consent shall become effective as of June 15, 2004
(the “Consent Effective Date”) only upon satisfaction in full in the judgment
of the Agent of each of the following conditions on or prior to June 15, 2004:



     (a) Consent. Agent shall have received facsimile copies (promptly
followed by eight (8) original copies) of this Consent duly executed and
delivered by Agent, Required Lenders and Borrower and acknowledged by ASL.



     (b) Representations and Warranties. All representations and warranties
contained in this Consent shall be true and correct on and as of the Consent
Effective Date.



     10. GOVERNING LAW. THIS WAIVER SHALL BE GOVERNED BY, AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.



     11. Counterparts. This Consent 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 Consent to be duly
executed and delivered as of the day and year first above written.



	 	 	 	 	 
	 	 	BORROWER:
	 
	 	 	 	 
	 	 	DICK’S SPORTING GOODS, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ Michael F. Hines
	

	 	 	 	
 
	 	 	Name: Michael F. Hines
	 	 	Title: Chief Financial Officer
	 
	 	 	 	 
	 	 	AGENT:
	 
	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent
	 
	 	 	 	 
	

	 	By:
	 	/s/ Charles Chiodo
	

	 	 	 	
 
	 	 	Name: Charles Chiodo
	 	 	Its: Duly Authorized Signatory
	 
	 	 	 	 
	 	 	LENDERS:
	 
	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL
CORPORATION
	 
	 	 	 	 
	

	 	By:
	 	/s/ Charles Chiodo
	

	 	 	 	
 
	 	 	Name: Charles Chiodo
	 	 	Its: Duly Authorized Signatory







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	 	 	PNC BUSINESS CREDIT
	 
	 	 	 	 
	

	 	By:
	 	/s/ Stephen W. Boyd
	

	 	 	 	
 
	 	 	Name: Stephen W. Boyd
	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	FLEET RETAIL GROUP, INC.
	 
	 	 	 	 
	

	 	By:
	 	/s/ James R. Dore
	

	 	 	 	
 
	 	 	Name: James R. Dore
	 	 	Title: Managing Director
	 
	 	 	 	 
	 	 	NATIONAL CITY BANK OF PENNSYLVANIA
	 
	 	 	 	 
	

	 	By:
	 	/s/ Richard M. Beaty II
	

	 	 	 	
 
	 	 	Name: Richard M. Beaty II
	 	 	Title: Assistant Vice President
	 
	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	

	 	By:
	 	 
	

	 	 	 	
 
	 	 	Name:
	 	 	Title:
	 
	 	 	 	 
	 	 	CITIZEN’S BANK OF PENNSYLVANIA
	 
	 	 	 	 
	

	 	By:
	 	/s/ Don Cmar
	

	 	 	 	
 
	 	 	Name: Don Cmar
	 	 	Title: Vice President







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The undersigned Guarantor hereby (i) acknowledges to each of the waivers and
consent effected by this Consent 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 Consent.



ACKNOWLEDGED, CONSENTED and

AGREED to as of the date first written

above.



AMERICAN SPORTS LICENSING, INC.




	 	 	 	 	 
	By:

	 	/s/ Michael F. Hines
	 	 
	

	 	
 	 	 
	Name: Michael F. Hines	 	 
	Title: President	 	 








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