EXHIBIT 10.29
JOINDER AGREEMENT
THIS JOINDER AGREEMENT ("AGREEMENT") dated as of January 28,2004 is
made and entered into by and among Big 5 Corp., a Delaware corporation
("EXISTING BORROWER"), and New Borrower (defined below), on the one hand, and
the financial institutions identified as "Lenders" on the signature pages hereof
(such lenders, together with their respective successors and assigns, are
collectively "LENDERS"), and The CIT Group/Business Credit, Inc., a New York
corporation (in its capacity as agent for Lenders, "AGENT"), on the other hand.
Initially capitalized terms used herein and not defined herein shall have the
meanings assigned to them in the Financing Agreement (defined below).
RECITALS:
A. Existing Borrower, Agent and Lenders have previously entered
into that certain Amended and Restated Financing Agreement, dated as of March
20, 2003 (the "FINANCING AGREEMENT"; the Financing Agreement and the documents,
instruments and agreements executed in connection therewith are collectively
"FINANCING DOCUMENTS"), pursuant to which, subject to the terms and conditions
set forth therein, Lenders acting through Agent have made certain credit
facilities available to Existing Borrower;
B. Existing Borrower has previously formed a new Subsidiary, Big
5 Services Corp., a Virginia corporation ("NEW BORROWER"), which will own and
operate Existing Borrower's gift card services business. In connection
therewith, Existing Borrower has transferred certain assets and liabilities
related to the gift cards services business to, and entered into certain
intercompany agreements with, New Borrower in order to effectuate the transfer
of the gift card operations (such transactions are collectively referred to as
the "RESTRUCTURE");
C. In connection with the Restructure, Existing Borrower has
requested that Agent and Lenders permit New Borrower to be added and joined as
an additional borrower and obligor under the Financing Documents and, subject to
the terms and conditions set forth herein, Agent and Lenders have agreed to
permit such addition; and
D. Existing Borrower, New Borrower, Lenders and Agent desire to
enter into this Agreement in order to provide for the joinder of New Borrower as
a co-borrower and co-obligor under the Financing Documents.
AGREEMENT:
NOW, THEREFORE, In consideration of the foregoing premises, the mutual
covenants and conditions herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Joinder. New Borrower hereby agrees as follows in favor of
Agent and Lenders:
(a) Effective as of the date hereof, New Borrower hereby
agrees to become a borrower and obligor under, and to bind itself to, the
Financing Agreement and each other Financing Document to which Existing Borrower
is bound as of the date hereof, and, in such capacity, to
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jointly and severally assume and bind itself to all debts, liabilities and
obligations of Existing Borrower thereunder (including, without limitation, all
Obligations).
(b) In furtherance but without limitation of the
foregoing, as security for the prompt payment in full of all Obligations, New
Borrower hereby pledges and grants to Agent on behalf of Lenders a continuing
general lien upon, and security interest in, all of its Collateral. To
facilitate the foregoing grant of a security interest, New Borrower agrees to
execute (and, if required by Agent, acknowledge) and deliver to Agent such
instruments and agreements as Agent may reasonably require in connection
herewith, including, without limitation, UCC-1 financing statements, collateral
assignments, legal opinions, resolutions, incumbency certificates, good standing
certificates, qualifications to do business and other, related documents,
instruments, certificates or agreements as Agent may reasonably request to give
effect to this joinder of New Borrower as a borrower and obligor under the
Financing Documents.
(c) To induce Agent and Lenders to accept New Borrower as
a borrower and obligor under the Financing Documents, New Borrower hereby agrees
to and makes each and every representation and warranty made in the Financing
Agreement and the other Financing Documents in respect of Existing Borrower
generally, as fully and completely as if New Borrower were an original party
thereto (except to the extent that such representations and warranties relate
solely to an earlier date).
2. Conditions to the Effectiveness of this Agreement. This
Agreement shall not become effective unless and until Agent shall have received
each of the documents and other items listed on Schedule 1 attached hereto, each
to be in form and substance reasonably satisfactory to Agent and its counsel,
and, as applicable, duly executed and delivered by the party or parties thereto.
3. Intercompany Transactions and Stand-Alone Covenants. The
parties hereto acknowledge and agree that the intent and purpose of this
Agreement is (i) to permit New Borrower to have access to the borrowing capacity
of Existing Borrower under the Financing Agreement; (ii) to secure the payment
and performance of the Obligations arising under the Financing Documents with
all of New Borrower's Collateral; and (iii) to permit New Borrower and Existing
Borrower to enter into or engage in transactions, relationships and agreements
with each other that might otherwise be restricted by the terms and provisions
of the Financing Documents. It is not the purpose and intent of this Agreement
that New Borrower be required or obligated to maintain or comply with, on a
stand-alone basis, any particular financial covenants (i.e., Existing Borrower
and New Borrower, for purposes of the Financing Documents only, shall be deemed
to be one entity). This Agreement and the Financing Documents shall be
construed in light of these intents and purposes. In furtherance of this,
(a) Provisions of the Financing Documents which limit,
condition or restrict in any manner the ability of Existing Borrower and New
Borrower to engage in any activity, including, but not limited to the negative
covenants provided for in Section 6.10 or 6.15 of the Financing Agreement, shall
not be deemed to limit, condition or restrict in any manner any transactions,
agreements or relationships solely as between Existing Borrower and New
Borrower, including, but not limited to, the incurrence of Indebtedness, the
payment of dividends or the making of distributions, and the making of advances,
loans or investments;
(b) Any provision of the Financing Documents which, prior
to the execution and delivery of this Agreement, required Existing Borrower,
either alone or on a consolidated basis with
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its Subsidiaries, to maintain certain financial covenants (e.g., Section 6.9 of
the Financing Agreement) or to provide financial statements to the Agent or the
Lenders (e.g., Section 6.8 of the Financing Agreement), shall not be construed
to apply to New Borrower as a stand-alone entity, so long as New Borrower is and
continues to be a part of the consolidated group which includes Existing
Borrower;
(c) Any provision of the Financing Documents which refers
to the "Company and its Subsidiaries" shall not be construed to apply to New
Borrower other than as a Subsidiary of Existing Borrower; and
(d) New Borrower shall be entitled to obtain borrowings
under the Financing Agreement at any time that Existing Borrower would otherwise
be able to obtain such borrowings.
4. Miscellaneous.
(a) Effect of Agreement. Except as specifically set forth
to the contrary in Section 3 hereof, all references to the "Company" in the
Financing Agreement and the other Financing Documents shall be deemed to include
New Borrower with the same force and effect as if New Borrower were an original
signatory thereto. The Financing Agreement and Financing Documents shall be read
in conjunction with this Agreement. This Agreement shall be considered a
Financing Document.
(b) Reaffirmation of Representations and Warranties.
Existing Borrower hereby ratifies and reaffirms all of the representations and
warranties set forth in the Financing Agreement and the other Financing
Documents, except to the extent that such representations and warranties relate
to an earlier date.
(c) Ratification. Existing Borrower hereby restates,
ratifies and reaffirms each and every term and condition set forth in the
Financing Agreement and the Financing Documents effective as of the date hereof.
In connection with the foregoing, nothing set forth in this Agreement shall be
deemed to be a waiver, consent, or modification of any other term or condition
of the Financing Documents with respect to Existing Borrower's duties and
obligations hereunder.
(d) Estoppel. To induce Agent and Lenders to enter into
this Agreement, Existing Borrower hereby acknowledges and agrees that, as of the
date hereof, no Default or Event of Default has occurred and is continuing and,
in addition, there exists no right of offset, defense, counterclaim or objection
in favor of Existing Borrower in respect to any Obligations.
(e) Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California and all
applicable federal laws of the United States of America.
(f) Reaffirmation of Guarantor. By its execution below,
Guarantor hereby confirms that its guaranty executed and delivered in connection
with the Financing Agreement remains in full force and effect.
(g) Costs and Expenses. Existing Borrower agrees to pay
on demand all reasonable costs and out-of-pocket expenses of Agent in connection
with the preparation, execution, delivery and enforcement of this Agreement and
all other agreements and instruments executed in
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connection herewith, including, without limitation, the reasonable fees and
out-of-pocket expenses of the Agent's counsel and the cost of any searches
respecting New Borrower or its assets.
(h) Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts and by different parties on separate
counterparts, including by facsimile signature, each of which when so executed
and delivered shall be deemed to be an original. All such counterparts, taken
together, shall constitute but one and the same Agreement. This Agreement shall
become effective upon the execution of a counterpart of this Agreement by each
of the parties hereto.
[the remainder of this page left blank intentionally; signatures to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement
to be executed and delivered by their proper and duly authorized officers as of
the date set forth above.
AGENT:
THE CIT GROUP/BUSINESS CREDIT, INC.,
a New York corporation
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
S-1
Joinder Agreement
EXISTING BORROWER:
BIG 5 CORP.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
NEW BORROWER:
BIG 5 SERVICES CORP.,
a Virginia corporation
By: /s/ Xxxxxxx X. Xxxx
--------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
GUARANTOR:
BIG 5 SPORTING GOODS CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx
------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
LENDERS:
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
S-2
Joinder Agreement
FLEET CAPITAL CORPORATION
By: /s/ XXXXXXX X. XXX XXXXXXXXXX
-------------------------------
Name: XXXXXXX X. XXX XXXXXXXXXX
Title: SENIOR VICE PRESIDENT
BANK OF AMERICA, N.A.
By /s/ Xxxxxxx Xxxx
--------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By: [ILLEGIBLE]
---------------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
S-3
Joinder Agreement
SCHEDULE 1
- That certain Co-Obligor Agreement, dated as of January 28, 2004, by and
between Existing Borrower and New Borrower;
- UCC-1 Financing Statements) duly prepared and delivered by New
Borrower;
- Certificate of the Secretary of New Borrower certifying to the
following: (1) a copy of resolutions of the board of directors of New
Borrower authorizing the execution, delivery and performance of this
Agreement, the Co-Obligor Agreement, the other Financing Documents, and
the transactions contemplated thereby, and such other documents
relating thereto as the Agent reasonably may request; (2) a certified
copy of the articles of incorporation of New Borrower; (3) a certified
copy of the by-laws of New Borrower; and (4) signature and incumbency
certificates of New Borrower's officers who are authorized to execute
this Agreement and the other Financing Documents to which New Borrower
is to be a party;
- Certificate of Good Standing from New Borrower's jurisdiction of
organization and the secretary of state of each jurisdiction in which
New Borrower is qualified to do business, each dated a recent date
prior to the date of this Agreement;
- Such opinions of counsel for New Borrower as the Agent shall reasonably
request, such opinion to be in a form, scope, and substance reasonably
satisfactory to Agent and its counsel; and
- New Borrower and Existing Borrower shall execute and deliver to the
Agent for the benefit of the Lenders any and all other loan and
security documents reasonably necessary to consummate the lending
arrangement contemplated between the New Borrower and Existing
Borrower, on the one hand, and the Lenders, on the other hand,
including, without limitation, control agreements over any and all of
New Borrower's deposit or security accounts.
Schedule 1
Joinder Agreement
