EXHIBIT 10.30
CO-OBLIGOR AGREEMENT
This CO-OBLIGOR AGREEMENT (this "AGREEMENT"), dated as of
January 28, 2004, is executed by Big 5 Corp., a Delaware corporation ("BIG 5"),
and Big 5 Services Corp., a Virginia corporation ("SERVICES") (Big 5 and
Services are sometimes collectively, jointly and severally, referred to herein
as "BORROWERS" and individually as a "BORROWER"), in favor of and delivered to
The CIT Group/Business Credit, Inc., a New York corporation, as agent ("AGENT")
for Lenders (as defined below).
WHEREAS, Big 5, on the one hand, and the financial
institutions from time to time party thereto as lenders (collectively,
"LENDERS") and Agent, as agent for Lenders, on the other hand, have previously
entered into that certain Amended and Restated Financing Agreement, dated as of
March 20, 2003 (the "AGREEMENT"; the Agreement, together with the Joinder
Agreement (defined below) and any and all other agreements, instruments and
documents executed in connection therewith, and as all of the foregoing may be
amended, restated, supplemented or modified from time to time in accordance with
their terms, are collectively referred to herein as the "LOAN DOCUMENTS");
WHEREAS, Borrowers, Agent and Lenders are, concurrently
herewith, entering into that certain Joinder Agreement (the "JOINDER
AGREEMENT"), pursuant to which, Services shall be joined and added as a
co-borrower and co-obligor under the Agreement and Loan Documents;
WHEREAS, each Borrower is interested in the financial success
of the other Borrower and each Borrower will directly and materially benefit
from the financial accommodations which the Lenders will extend to all Borrowers
pursuant to the Loan Documents;
WHEREAS, in order to induce the Agent and Lenders to enter
into the Joinder Agreement and to continue to extend the financial
accommodations to Borrowers, and in consideration thereof, Borrowers have agreed
to execute and deliver this Agreement to Agent, for the benefit of Lenders,
which Agreement shall be a Loan Document.
NOW THEREFORE, in light of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Each Borrower agrees that it is jointly and
severally, directly and primarily liable to Agent and Lenders for payment in
full of all amounts owing to Agent and Lenders under the Loan Documents, whether
for principal, interest or otherwise (collectively, the "OBLIGATIONS") and that
such liability is independent of the duties, obligations, and liabilities of the
other Borrower. Agent and Lenders may bring a separate action or actions on
each, any, or all of the Obligations against any Borrower, whether action is
brought against the other Borrower or whether the other Borrower is joined in
such action. In the event that any Borrower fails to make any payment of any
Obligations on or before the due date thereof, the other Borrower immediately
shall cause such payment to be made or each of such Obligations to be performed,
kept, observed, or fulfilled.
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2. The Loan Documents are a primary and original
obligation of each Borrower, are not the creation of a surety relationship, and
are an absolute, unconditional, and continuing promise of payment and
performance which shall remain in full force and effect without respect to
future changes in conditions, including any change of law or any invalidity or
irregularity with respect to the Loan Documents. Each Borrower agrees that its
liability under the Loan Documents shall be immediate and shall not be
contingent upon the exercise or enforcement by Agent of whatever remedies it may
have against the other Borrower, or the enforcement of any lien or realization
upon any security Agent may at any time possess. Each Borrower consents and
agrees that neither Agent nor any Lender shall be under an obligation to marshal
any assets of any Borrower against or in payment of any or all of the
Obligations.
3. Each Borrower acknowledges that it is presently
informed as to the financial condition of the other Borrower and of all other
circumstances which a diligent inquiry would reveal and which bear upon the risk
of nonpayment of the Obligations. Each Borrower hereby covenants that it will
continue to keep informed as to the financial condition of the other Borrower,
the status of the other Borrower and of all circumstances which bear upon the
risk of nonpayment. Absent a written request from any Borrower to Agent for
information, such Borrower hereby waives any and all rights it may have to
require Agent or Lenders to disclose to such Borrower any information which
Agent or Lenders may now or hereafter acquire concerning the condition or
circumstances of the other Borrower.
4. The liability of each Borrower under the Loan
Documents includes Obligations arising under successive transactions continuing,
compromising, extending, increasing, modifying, releasing, or renewing the
Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Obligations after prior
Obligations have been satisfied in whole or in part. To the maximum extent
permitted by law, each Borrower hereby waives any right to revoke its liability
under the Loan Documents as to future indebtedness, and in connection therewith,
each Borrower hereby waives any rights it may have under Section 2815 of the
California Civil Code. If such a revocation is effective notwithstanding the
foregoing waiver, each Borrower acknowledges and agrees that (a) no such
revocation shall be effective until written notice thereof has been received by
Agent, (b) no such revocation shall apply to any Obligations in existence on
such date (including, any subsequent continuation, extension, or renewal
thereof, or change in the interest rate, payment terms, or other terms and
conditions thereof), (c) no such revocation shall apply to any Obligations made
or created after such date to the extent made or created pursuant to a legally
binding commitment of Agent or Lenders in existence on the date of such
revocation, (d) no payment by such Borrower or from any other source prior to
the date of such revocation shall reduce the maximum obligation of the other
Borrower hereunder, and (e) any payment by such Borrower or from any source
other than such Borrower, subsequent to the date of such revocation, shall first
be applied to that portion of the Obligations as to which the revocation is
effective and which are not, therefore, guaranteed hereunder, and to the extent
so applied shall not reduce the maximum obligation of each Borrower hereunder.
5. (a) Each Borrower absolutely, unconditionally,
knowingly, and expressly waives:
(i) (1) notice of acceptance hereof;
(2) notice of any loans or other financial
accommodations made or extended under the Loan
Documents or the creation or existence of any
Obligations; (3) notice of
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the amount of the Obligations, subject, however, to
each Borrower's right to make inquiry of Agent to
ascertain the amount of the Obligations at any
reasonable time; (4) notice of any adverse change in
the financial condition of the other Borrower or of
any other fact that might increase such Borrower's
risk hereunder; (5) notice of presentment for
payment, demand, protest, and notice thereof as to
any instruments among the Loan Documents; (6) notice
of any Default or Event of Default under the Loan
Documents; and (7) all other notices (except if such
notice is specifically required to be given to
Borrowers hereunder or under the Loan Documents) and
demands to which such Borrower might otherwise be
entitled.
(ii) its right, under Sections 2845 or
2850 of the California Civil Code, or otherwise, to
require Agent or Lenders to institute suit against,
or to exhaust any rights and remedies which Agent or
any Lender has or may have against, the other
Borrower or any third party, or against any
collateral for the Obligations provided by the other
Borrower, or any third party. In this regard, each
Borrower agrees that it is bound to the payment of
all Obligations, whether now existing or hereafter
accruing, as fully as if such Obligations were
directly owing to Agent or Lenders by such Borrower.
Each Borrower further waives any defense arising by
reason of any disability or other defense (other than
the defense that the Obligations shall have been
fully and finally performed and indefeasibly paid) of
the other Borrower or by reason of the cessation from
any cause whatsoever of the liability of the other
Borrower in respect thereof.
(iii) (1) any rights to assert against
Agent or Lenders any defense (legal or equitable),
set-off, counterclaim, or claim which such Borrower
may now or at any time hereafter have against the
other Borrower or any other party liable to Agent or
Lenders; (2) any defense, set-off, counterclaim, or
claim, of any kind or nature, arising directly or
indirectly from the present or future lack of
perfection, sufficiency, validity, or enforceability
of the Obligations or any security there for; (3) any
defense such Borrower has to performance hereunder,
and any right such Borrower has to be exonerated,
provided by Sections 2819, 2822, or 2825 of the
California Civil Code, or otherwise, arising by
reason of: the impairment or suspension of Agent's or
Lender's rights or remedies against the other
Borrower; the alteration by Agent and Lenders of the
Obligations; any discharge of the other Borrower's
obligations to Agent and Lenders by operation of law
as a result of Agent's or Lenders' intervention or
omission; or the acceptance by Agent or Lenders of
anything in partial satisfaction of the Obligations;
(4) the benefit of any statute of limitations
affecting such Borrower's liability hereunder or the
enforcement thereof, and any act which shall defer or
delay the operation of any statute of limitations
applicable to the Obligations shall similarly operate
to defer or delay the operation of such statute of
limitations applicable to such Borrower's liability
hereunder.
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(b) Each Borrower absolutely, unconditionally,
knowingly, and expressly waives any defense arising by reason of or deriving
from (i) any claim or defense based upon an election of remedies by Agent and
Lenders including any defense based upon an election of remedies by Agent or
Lenders under the provisions of Sections 580a, 580b, 580d, and 726 of the
California Code of Civil Procedure or any similar law of California or any other
jurisdiction; or (ii) any election by Agent and Lenders under Bankruptcy Code
Section 1111(b) to limit the amount of, or any collateral securing, its claim
against the Borrowers. Pursuant to California Civil Code Section 2856(b),(c)
and (d):
Each Borrower waives all rights and defenses
arising out of an election of remedies by the
creditor, even though that election of remedies, such
as a nonjudicial foreclosure with respect to security
for a guaranteed obligation, has destroyed such
Borrower's rights of subrogation and reimbursement
against the other Borrower by the operation of
Section 580(d) of the California Code of Civil
Procedure or otherwise.
Each Borrower waives all rights and defenses
that such Borrower may have because the Obligations
are secured by real property. This means, among other
things:
(i) Agent and Lenders may collect from
such Borrower without first foreclosing on any real
or personal property collateral pledged by the other
Borrower.
(ii) If Agent or Lenders foreclose on
any real property collateral pledged by the other
Borrower:
(A) The amount of the Obligations
may be reduced only by the price
for which that collateral is sold
at the foreclosure sale, even if
the collateral is worth more than
the sale price.
(B) Agent may collect from such
Borrower even if Agent, by
foreclosing on the real property
collateral, has destroyed any right
such Borrower may have to collect
from such other Borrower.
This is an unconditional and irrevocable
waiver of any rights and defenses each Borrower may
have because the Obligations are secured by real
property. These rights and defenses include, but are
not limited to, any rights or defenses based upon
Section 580a, 580b, 580d, or 726 of the California
Code of Civil Procedure.
If any of the Obligations at any time are secured by a mortgage or deed of trust
upon real property, Agent may elect, in its sole discretion, upon a default with
respect to the Obligations, to foreclose such mortgage or deed of trust
judicially or nonjudicially in any manner permitted by law, before or after
enforcing the Loan Documents, without diminishing or affecting the liability of
any Borrower hereunder except to the extent the Obligations are repaid with the
proceeds of such foreclosure. Each Borrower understands that (a) by virtue of
the operation of California's
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antideficiency law applicable to nonjudicial foreclosures, an election by Agent
nonjudicially to foreclose such a mortgage or deed of trust probably would have
the effect of impairing or destroying rights of subrogation, reimbursement,
contribution, or indemnity of such Borrower against the other Borrower or other
guarantors or sureties, and (b) absent the waiver given by such Borrower, such
an election would prevent Agent from enforcing the Loan Documents against such
Borrower. Understanding the foregoing, and understanding that such Borrower is
hereby relinquishing a defense to the enforceability of the Loan Documents, such
Borrower hereby waives any right to assert against Agent any defense to the
enforcement of the Loan Documents, whether denominated "estoppel" or otherwise,
based on or arising from an election by Agent nonjudicially to foreclose any
such mortgage or deed of trust. Each Borrower understands that the effect of the
foregoing waiver may be that each Borrower may have liability hereunder for
amounts with respect to which such Borrower may be left without rights of
subrogation, reimbursement, contribution, or indemnity against the other
Borrower or other guarantors or sureties. Each Borrower also agrees that the
"fair market value" provisions of Section 580a of the California Code of Civil
Procedure shall have no applicability with respect to the determination of such
Borrower's liability under the Loan Documents.
(c) Each Borrower hereby absolutely,
unconditionally, knowingly, and expressly waives: (i) any right of subrogation
such Borrower has or may have as against the other Borrower with respect to the
Obligations; (ii) any right to proceed against the other Borrower or any other
person or entity, now or hereafter, for contribution, indemnity, reimbursement,
or any other suretyship rights and claims, whether direct or indirect,
liquidated or contingent, whether arising under express or implied contract or
by operation of law, which such Borrower may now have or hereafter have as
against the other Borrower with respect to the Obligations; and (iii) any right
to proceed or seek recourse against or with respect to any property or asset of
the other Borrower.
(D) WITHOUT LIMITING THE GENERALITY OF ANY OTHER
WAIVER OR OTHER PROVISION SET FORTH IN THIS AGREEMENT, EACH BORROWER HEREBY
ABSOLUTELY, KNOWINGLY, UNCONDITIONALLY, AND EXPRESSLY WAIVES AND AGREES NOT TO
ASSERT ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR INDIRECTLY UNDER ANY
ONE OR MORE OF CALIFORNIA CIVIL CODE SECTIONS 2799, 2808, 2809, 2810, 2815,
2819, 2820, 2821, 2822, 2825, 2839, 2845, 2848, 2849, AND 2850, CALIFORNIA CODE
OF CIVIL PROCEDURE SECTIONS 580A, 580B, 580C, 580D, AND 726, AND CHAPTER 2 OF
TITLE 14 OF DIVISION 3 OF THE CALIFORNIA CIVIL CODE.
6. Each Borrower consents and agrees that, without
notice to or by such Borrower, and without affecting or impairing the liability
of such Borrower hereunder, Agent and Lenders may, by action or inaction:
(a) compromise, settle, extend the duration or
the time for the payment of, or discharge the performance of, or may refuse to
or otherwise not enforce the Loan Documents, or any part thereof, with respect
to the other Borrower;
(b) release the other Borrower or grant other
indulgences to the other Borrower in respect thereof;
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(c) amend or modify in any manner and at any
time (or from time to time) any of the Loan Documents; or
(d) release or substitute any other guarantor,
if any, of the Obligations, or enforce, exchange, release, or waive any security
for the Obligations or any other guaranty of the Obligations, or any portion
thereof.
7. Agent, on behalf of Lenders, shall have the right to
seek recourse against each Borrower to the fullest extent provided for herein,
and no election by Agent to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of Agent's
right to proceed in any other form of action or proceeding or against other
parties unless Agent has expressly waived such right in writing. Specifically,
but without limiting the generality of the foregoing, no action or proceeding by
Agent or Lenders under the Loan Documents shall serve to diminish the liability
of any Borrower under this Agreement except to the extent that Agent finally and
unconditionally shall have realized indefeasible payment by such action or
proceeding.
8. The Obligations shall not be considered indefeasibly
paid for purposes of this Agreement unless and until all payments to Agent are
no longer subject to any right on the part of any person, including any
Borrower, any Borrower as a debtor in possession, or any trustee (whether
appointed pursuant to 11 U.S.C., or otherwise) of any Borrowers' assets to
invalidate or set aside such payments or to seek to recoup the amount of such
payments or any portion thereof, or to declare same to be fraudulent or
preferential. Upon such full and final performance and indefeasible payment of
the Obligations, Agent shall have no obligation whatsoever to transfer or assign
its interest in the Loan Documents to any Borrower. In the event that, for any
reason, any portion of such payments to Agent is set aside or restored, whether
voluntarily or involuntarily, after the making thereof, then the obligation
intended to be satisfied thereby shall be revived and continued in full force
and effect as if said payment or payments had not been made, and each Borrower
shall be liable for the full amount Agent is required to repay plus any and all
costs and expenses (including reasonable attorneys' fees and attorneys' fees
incurred pursuant to 11 U.S.C.) paid by Agent in connection therewith.
9. At the request of Borrowers to facilitate and
expedite the administration and accounting processes and procedures of their
borrowings under the Agreement, Agent has agreed, in lieu of maintaining
separate loan accounts on Agent's books in the name of each of the Borrowers,
that Agent may maintain a single loan account under the name of all of the
Borrowers (the "LOAN ACCOUNT"). Loans made under the Agreement shall be made
jointly and severally to Borrowers and shall be charged to the Loan Account,
together with all interest and other charges as permitted under and pursuant to
this Agreement. The Loan Account shall be credited with all repayments of
Obligations received by Agent, on behalf of Borrowers, from any Borrower
pursuant to the terms of the Agreement.
10. Agent shall render to Big 5, on behalf of Borrowers,
one statement of the Loan Account, which shall be deemed to be an account stated
as to each Borrower and which will be deemed correct and accepted by each
Borrower unless Agent receives a written statement of exceptions from any
Borrower within thirty (30) days after such statement has been rendered by
Agent. Each Borrower hereby expressly agrees and acknowledges that Agent shall
have no obligation to account separately to such Borrower.
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11. Requests for advances under the Agreement may be made
by any Borrower, pursuant to the terms thereof. Each Borrower expressly agrees
and acknowledges that Agent shall have no responsibility to inquire into the
correctness of the apportionment or allocation of or any disposition by any
Borrower of (a) any advances or loans under the Agreement, or (b) any of the
expenses and other items charged to the Loan Account pursuant to the Agreement.
All such advances and loans and such expenses and other items shall be made for
the collective, joint, and several account of Borrowers and shall be charged to
the Loan Account.
12. Each Borrower agrees and acknowledges that the
administration of the Agreement on a combined basis, as set forth in this
Agreement, is being done as an accommodation to Borrowers and at their request,
and that Agent shall incur no liability to any Borrower as a result thereof. To
induce Agent to do so, and in consideration thereof, each Borrower hereby agrees
to indemnify and hold Agent harmless from and against any and all liability,
expense, loss, damage, claim of damage, or injury, made against Agent by any
Borrower or by any other person or entity, arising from or incurred by reason of
such administration of the Agreement.
13. Each Borrower represents and warrants to Agent that
the collective administration of the loans is being undertaken by Agent pursuant
to this Agreement because Borrowers, while separate and distinct legal entities,
are integrated in their operation and administration and require financing on a
basis permitting the availability of credit from time to time to each Borrower.
Each Borrower will derive benefit, directly and indirectly, from such collective
administration and credit availability because the successful operation of each
Borrower is enhanced by the continued successful performance of the integrated
group. 14. This Agreement shall append and shall be a Loan Document; and 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. The Loan Documents shall be read in conjunction with this Agreement.
[the remainder of this page left blank intentionally; signatures to follow]
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IN WITNESS WHEREOF, this Agreement has been executed and
delivered as of the date first above written.
BIG 5 CORP.,
a Delaware corporation
By /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
BIG 5 SERVICES CORP.,
a Virginia corporation
By /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President and
Chief Financial Officer
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