EXHIBIT 10.28
FIRST AMENDMENT TO
AMENDED AND RESTATED FINANCING AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT (this
"AMENDMENT"), dated as of October 31, 2003, is entered into by and between BIG 5
CORP. (the "COMPANY"), the lenders under the Financing Agreement (as defined
below) (the "LENDERS"), and THE CIT GROUP/BUSINESS CREDIT, INC., as Agent for
the Lenders (in such capacity, the "AGENT").
RECITALS
A. Company, Agent and Lenders previously entered into that certain
Amended and Restated Financing Agreement dated as of March 20, 2003 (the
"FINANCING AGREEMENT"), pursuant to which Lenders provide loans and other
financial accommodations to Company from time to time.
B. Company, Agent and Lenders wish to amend certain terms of the
Financing Agreement.
C. Company, Agent and Lenders are willing to agree to such amendments
to the Financing Agreement on the terms and subject to the conditions set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and agreements set forth below and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein, shall have the respective meanings set forth in the Financing Agreement.
2. Amendment. Section 6.10(H) of the Financing Agreement is hereby
amended and restated in its entirety to read as follows:
"(H) Repurchase, acquire, prepay, or redeem any Senior Notes, except
that (i) during the period commencing December 1, 2003 through December
15, 2003, the Company may repurchase, acquire, prepay or redeem Senior
Notes for an amount not to exceed $36,500,000 in the aggregate for all
such repurchases, acquisitions, prepayments or redemptions so long as
(x) no Default or Event of Default is then in existence or will be in
existence after giving effect to such repurchase, acquisition,
prepayment, or redemption, and (y) after giving effect to such
repurchase, acquisition, prepayment, or redemption, the Company shall
have not less than $25,000,000 in Company Liquidity and (ii) at any
time after December 15, 2003, the Company may repurchase, acquire,
prepay, or redeem Senior Notes so long as (x) no Default or Event of
Default is then in existence
or will be in existence after giving effect to such repurchase,
acquisition, prepayment, or redemption, and (y) after giving effect to
such repurchase, acquisition, prepayment, or redemption, the Company
shall have not less than $40,000,000 in Company Liquidity.
3. Conditions to Effectiveness. The foregoing amendment shall become
effective only upon the satisfaction of all of the following conditions
precedent (the date of satisfaction of all such conditions being referred to as
the "AMENDMENT EFFECTIVE DATE");
(a) Agent shall have received this Amendment, duly executed
and delivered by the Company, the Agent and the Required Lenders.
(b) Each of the representations and warranties set forth in
this Amendment shall be true and correct as of the Amendment Effective
Date.
4. Representations and Warranties. In order to induce Agent and Lenders
to enter into this Amendment and to amend the Financing Agreement in the manner
provided in this Amendment, Company represents and warrants to Agent and Lenders
as of the Amendment Effective Date as follows:
(a) Power and Authority. Company has all requisite corporate
power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the
Financing Agreement as amended by this Amendment.
(b) Authorization of Agreements. The execution and delivery of
this Amendment by Company and the performance by Company of the
Financing Agreement, as amended hereby, have been duly authorized by
all necessary action, and this Amendment has been duly executed and
delivered by Company.
(c) Representations and Warranties in the Financing Agreement.
Company confirms that as of the Amendment Effective Date, the
representations and warranties contained in Section 6 of the Financing
Agreement are (before and after giving effect to this Amendment) true
and correct in all material respects (except to the extent any such
representation and warranty is expressly stated to have been made as of
a specific date, in which case it shall be true and correct as of such
specific date) and that no Default or Event of Default has occurred and
is continuing.
5. Miscellaneous.
(a) Reference to and Effect on the Existing Financing
Agreement.
(i) Except as specifically amended by this Amendment
and the documents executed and delivered in connection
herewith, the Financing Agreement shall remain in full force
and effect and is hereby ratified and confirmed.
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(ii) The execution and delivery of this Amendment and
performance of the Financing Agreement shall not, except as
expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or
remedy of Agent and any Lender under, the Financing Agreement
or any agreement or document executed in connection therewith.
(iii) Upon the conditions precedent set forth herein
being satisfied, this Amendment shall be construed as one with
the existing Financing Agreement, and the existing Financing
Agreement shall, where the context requires, be read and
construed throughout so as to incorporate this Amendment.
(b) Headings. Section and subsection headings in this
Amendment are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given
any substantive effect.
(c) Counterparts. This Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
(d) Governing Law. This Amendment shall be governed by and
construed according to the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the date first above written.
BIG 5 CORP.
By: /s/ XXXXXXX X. XXXX
--------------------------------
Name: Xxxxxxx X. Xxxx
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Title: SR. VICE PRESIDENT & CFO
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THE CIT GROUP/BUSINESS
CREDIT, INC. (as Agent and a Lender)
By: /s/ XXXXXX XXXXXX
--------------------------------
Name: Xxxxxx Xxxxxx
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Title: Vice President
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FLEET CAPITAL CORPORATION (as
Lender)
By: /s/ XXXXXXX X. VAN STEENHUYBE
--------------------------------
Name: XXXXXXX X. VAN STEENHUYBE
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Title: SENIOR VICE PRESIDENT
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PNC BANK, NATIONAL ASSOCIATION
(as Lender)
By:
--------------------------------
Name:
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Title:
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BANK OF AMERICA, N.A. (as Lender)
By: /s/ XXXXXXX XXXX
--------------------------------
Name: Xxxxxxx Xxxx
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Title: Vice President
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TRANSAMERICA BUSINESS CAPITAL
CORPORATION (as Lender)
By: /s/ XXX XXXXXX
--------------------------------
Name: Xxx Xxxxxx
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Title: Vice President
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