EXHIBIT 10.17
SEVENTH AMENDMENT TO
FINANCING AGREEMENT
This SEVENTH AMENDMENT TO FINANCING AGREEMENT (this "AMENDMENT"), dated as
of April 30, 2002, is entered into by and between BIG 5 CORP., a Delaware
corporation ("BORROWER"), each of the lenders that is a signatory to this
Amendment (collectively, the "LENDERS"), and THE CIT GROUP/BUSINESS CREDIT,
INC., a New York corporation, as agent for the Lenders (in such capacity, the
"AGENT").
RECITALS
A. Borrower, Agent and Lenders previously entered into that certain Financing
Agreement dated as of March 8, 1996, as amended (the "FINANCING
AGREEMENT"), pursuant to which Lenders provide loans and other financial
accommodations to Borrower from time to time.
B. Borrower has requested that Agent and Lenders amend the Financing Agreement
to extend the current term of the Financing Agreement and consent to the
payment of a dividend to Parent for the purposes set forth herein.
C. Agent and Lenders are willing to agree to such amendment 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. Amendments.
(a) The definition of "Anniversary Date" set forth in Section 1 of
the Financing Agreement is hereby amended and restated in its entirety to read
as follows:
"ANNIVERSARY DATE shall mean the date occurring one (1) year from the
date of March 31, 1998 and the same date in every year thereafter;
provided, however, that if the Company gives notice, in accordance
with Section 10 of this Financing Agreement, to terminate on an
Anniversary Date and such date is not a Business Day, then the
Anniversary Date shall be the next succeeding Business Day."
(b) The definition of "Parent" set forth in Section 1 of the
Financing Agreement is hereby amended and restated in its entirety to read as
follows:
"PARENT" shall mean Big 5 Sporting Goods Corporation, a Delaware
corporation."
3. Consent. Subject to the terms and conditions herein, including
without limitation, the Conditions to Effectiveness set forth in Section 4
hereof, Agent and Lenders hereby consent to Borrower declaring and paying a
dividend to Parent in an amount not to exceed $20,000,000 for the purpose of
repurchasing certain capital stock of Parent and the Parent Debentures and
paying certain fees and expenses all related to and in connection with the
consummation of the initial public offering of the capital stock of Parent (the
"IPO"); provided that, (a) after giving effect to the payment of such dividend,
no Default or Event of Default is existing or has occurred and is continuing
and (b) such dividend shall be declared and paid by Borrower only to the extent
that any net proceeds from the IPO received by Parent are insufficient to
repurchase certain capital stock and the Parent Debentures and pay the fees and
expenses related to and in connection with the consummation of the IPO and the
amount of such dividend shall not exceed such insufficiency.
4. Conditions to Effectiveness. The foregoing amendments and consent
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 parties hereto.
(b) Each of the representations and warranties set forth in this
Amendment shall be true and correct as of the Amendment Effective Date.
(c) Agent shall have received for the pro rate benefit of the
Lenders an amendment fee of $20,000 payable by Borrower and fully
earned by the Lenders as of the date hereof.
(d) Agent shall have received the attached acknowledgement, duly
executed and delivered by the Parent.
5. 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, Borrower represents and warrants to Agent and
Lenders as of the Amendment Effective Date as follows:
(a) Power and Authority. Borrower has all requisite corporate power
and authority to enter into this Amendment and to carry out the
transactions contemplated by,
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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 Borrower and the performance by Borrower 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 Borrower.
(c) Representations and Warranties in the Financing Agreement. Borrower
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 Event of
Default has occurred and is continuing.
6. 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.
(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) Fees and Expenses. The Borrower acknowledges that all costs, fees and
expenses incurred in connection with this Amendment will be paid in accordance
with Section 7 of the Financing Agreement.
(c) 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.
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(d) Counterparts and Facsimile. 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.
Delivery of an executed counterpart of a signature page to this Amendment
by facsimile shall be effective as delivery of a manually executed
counterpart of this Amendment.
(e) 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
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Title: Senior Vice President & CFO
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THE CIT GROUP/BUSINESS CREDIT, INC. (AS AGENT AND LENDER)
By: /s/ [SIGNATURE ILLEGIBLE]
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Title: Vice President
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FLEET CAPITAL CORPORATION (AS LENDER)
By: /s/ XXXXXXX X. XXX XXXXXXXXXX
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Title: Xxxxxxx X. Xxx Xxxxxxxxxx
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Senior Vice President
PNC BANK, NATIONAL ASSOCIATION (AS LENDER)
By: /s/ XXXX XXXX
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Title: Xxxx Xxxx
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Vice President
BANKAMERICA BUSINESS CREDIT, INC. (AS LENDER)
By: /s/ [SIGNATURE ILLEGIBLE]
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Title: Sr. Vice President
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TRANSAMERICA BUSINESS CAPITAL CORPORATION (AS LENDER)
AS SUCCESSOR TO
TRANSAMERICA BUSINESS CREDIT
By: /s/ [SIGNATURE ILLEGIBLE]
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Title: Vice President
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The undersigned hereby (a) ratified and reaffirms all of its obligations to the
Agent and the Lenders under that certain Guaranty dated March 8, 1996 (the
"GUARANTY") by Big 5 Sporting Goods Corporation, a Delaware corporation
(formerly known as Big 5 Holdings Corp. and successor by merger to Big 5
Corporation), in favor of the Agent, in connection with its guaranty of all
obligations of Big 5 Corp., a Delaware corporation (the "BORROWER") to the Agent
and the Lenders, (b) consents to the execution and delivery by the Borrower of
that certain Seventh Amendment to Financing Agreement, dated April __, 2002
among the Borrower, the Agent and the Lenders (the "AMENDMENT") and (c) confirms
that the Guaranty and all agreements, documents and instruments executed in
connection therewith remain in full force and effect. The undersigned agrees
that the execution and delivery of this consent and reaffirmation of the
Guaranty is not necessary for the continued validity and enforceability of the
Guaranty and the agreements, documents and instruments executed in connection
therewith, but is executed to induce the Agent and the Lenders to enter into the
Amendment.
BIG 5 SPORTING GOODS CORPORATION
By /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
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Title: Sr. Vice President & CFO
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