Exhibit 99.2
MODIFICATION AND REAFFIRMATION OF GUARANTY
This MODIFICATION AND REAFFIRMATION OF GUARANTY (this "Reaffirmation") is
made and entered into effective as of December 15, 2004, by and between Big 5
Sporting Goods Corporation, a Delaware corporation (the "Guarantor"), and The
CIT Group/Business Credit, Inc., a New York corporation, as agent for the
Lenders described below (in its capacity as agent, the "Agent"). All initially
capitalized terms used but not defined herein have the meaning given to them in
that certain Second Amended and Restated Financing Agreement dated as of even
date herewith (as amended, restated, supplemented, or otherwise modified from
time to time, the "Second Restated Financing Agreement") by and among Big 5
Corp., a Delaware corporation, Big 5 Services Corp., a Virginia corporation
(collectively, the "Borrowers"), the Agent, and the lenders party thereto from
time to time (the "Lenders").
RECITALS:
A. The Borrowers, the Agent, and the Lenders have previously entered into
that certain Amended and Restated Financing Agreement, dated as of March 20,
2003 (as amended and modified, from time to time, the "First Restated Financing
Agreement").
B. In connection with and in consideration of the First Restated Financing
Agreement, the Guarantor executed and delivered to the Agent, for the benefit of
the Lenders, that certain Modification and Reaffirmation of Guaranty dated as of
March 20, 2003, whereby the Guarantor reaffirmed that certain Guaranty dated
March 8, 1996 (as amended, modified or supplemented, the "Guaranty") executed
and delivered in connection with that certain Financing Agreement dated March 8,
1996.
C. In connection with and in consideration of the Second Restated
Financing Agreement, and in order to induce the Agent and Lenders to enter into
the Second Restated Financing Agreement, the Guarantor desires to: (i) reaffirm
all of its representations, warranties, covenants, agreements, waivers,
indebtedness, liabilities, and obligations under the Guaranty; and (ii)
acknowledge and agree that the Guaranty remains in full force and effect,
including without limitation, with respect to the payment and performance of the
Obligations.
D. The Guaranty and any other documents or instrument executed in favor of
the Agent or the Lenders in connection with the Guaranty are collectively
referred to herein as the "Guaranty Agreements".
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and for other valuable consideration, the adequacy, receipt,
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Reaffirmation. The Guarantor hereby: (a) consents to and approves all
of the terms of the Second Restated Financing Agreement, including without
limitation, the extension of the Term Loan; (b) ratifies and confirms all of its
indebtedness, liabilities, and obligations under the Guaranty Agreements; (c)
reaffirms that all of its representations and warranties made in the
Guaranty Agreements remain true and correct as of the date of this Reaffirmation
(except to the extent that such representations or warranties are expressly made
only as of another specific date); (d) reaffirms all of its covenants,
agreements, indebtedness, liabilities, and obligations under the Guaranty
Agreements, which include without limitation, the payment and performance of the
Obligations; (e) reaffirms all waivers, including without limitation, all
suretyship waivers, under the Guaranty Agreements; (f) agrees that the Guaranty
Agreements remain in full force and effect; (g) agrees that the Guaranty
Agreements continue to constitute the legal, valid, and binding obligations of
the Guarantor enforceable against it in accordance with the terms of the
Guaranty Agreements and that such obligations shall not be discharged or
affected by any modification, extension, renewal, or amendment of the terms of
the Second Restated Financing Agreement or the Financing Documents; and (h)
agrees and acknowledges that there are no defenses, counterclaims, or set-offs
to the Guaranty Agreements or the covenants, agreements, indebtedness,
liabilities, and obligations of the Guarantor under the Guaranty Agreements, and
agrees that any (if any) such defenses, counterclaims, or set-offs are hereby
expressly waived. All references to the "Agreement" contained in the Guaranty
Agreements shall be deemed to be references to the Second Restated Financing
Agreement.
2. Effectiveness. The Guarantor acknowledges and agrees that,
notwithstanding anything to the contrary in the Guaranty Agreements or any other
agreement or document in connection therewith, the Guaranty Agreements shall
apply with full force and effect to all of the obligations of the Borrowers
arising under the Second Restated Financing Agreement.
3. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS REAFFIRMATION SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA AND APPLICABLE LAWS OF THE U.S. THE GUARANTOR IRREVOCABLY WAIVES ANY
AND ALL RIGHT THE GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING, OR CLAIM OF ANY NATURE RELATING TO THIS REAFFIRMATION, ANY DOCUMENTS
EXECUTED IN CONNECTION WITH THIS REAFFIRMATION, AND ANY TRANSACTION CONTEMPLATED
BY ANY OF SUCH DOCUMENTS.
4. Counterparts. This Reaffirmation may be executed in any number of
counterparts, and by telecopy, all of which when taken together shall constitute
one agreement, and any of the parties hereto may execute this Reaffirmation by
signing any such counterpart.
5. Severability. Any provision of this Reaffirmation held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Reaffirmation and the effect of invalidation or
unenforceability shall be confined to the provision held to be invalid or
unenforceable.
6. Successors and Assigns. This Reaffirmation shall inure to the benefit
of the Agent and the Lenders and their respective successors and assigns and is
binding upon the Guarantor and its successors and assigns; provided, however,
that the Guarantor may not assign or transfer any of its obligations hereunder
without the prior written consent of the Agent.
7. Headings. The headings, captions, and arrangements used in this
Reaffirmation are for convenience only, are not a part of this Reaffirmation,
and shall not affect its interpretation.
8. ENTIRE AGREEMENT. THIS REAFFIRMATION REPRESENTS THE FINAL AGREEMENT
BETWEEN THE GUARANTOR AND THE AGENT RELATING TO THE SUBJECT MATTER OF THIS
REAFFIRMATION AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN ANY OF THE GUARANTOR, THE AGENT, OR THE LENDERS. THIS
REAFFIRMATION SUPERSEDES ALL PRIOR (IF ANY) ORAL AGREEMENTS, ARRANGEMENTS, OR
UNDERSTANDINGS RELATING TO THE SUBJECT MATTER OF THIS REAFFIRMATION.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Reaffirmation to
be executed and delivered by their duly authorized officers effective as of the
day and year first above written.
Agreed and accepted, as of the date first written above, with the intent
to be legally bound.
GUARANTOR:
BIG 5 SPORTING GOODS CORPORATION
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
-------------------------------
Title: President and Chief Executive
Officer
-------------------------------
AGENT:
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ XXXXXX XXXXXX
-------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------
Title: Vice President
-------------------------------
