exv10w25



 




Exhibit 10.25




SECOND AMENDMENT TO SECOND AMENDED AND

RESTATED FINANCING AGREEMENT 




     This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AGREEMENT (this “Amendment”) is
entered into as of August 24, 2007, by and between THE CIT GROUP/BUSINESS CREDIT, INC., a New York
corporation (hereinafter “CITBC”), the Revolving Lenders, the Term Lenders, and any other lenders
from time to time party hereto (CITBC and such other lenders are individually sometimes referred to
herein as a “Lender” and collectively as the “Lenders”), CITBC as agent for the Lenders, and BIG 5
CORP., a Delaware corporation (hereinafter referred to as “Big 5”), and BIG 5 SERVICES CORP., a
Virginia corporation (hereinafter referred to as “Big 5 Services”; and, together with Big 5,
collectively, the “Companies”, and each individually a “Company”), with respect to the following:



     A. The Companies, the Lenders, and CITBC have previously entered into that certain Second
Amended and Restated Financing Agreement dated as of December 15, 2004 (as amended, restated or
otherwise modified from time to time, the “Financing Agreement”).



     B. The Companies, the Lenders, and CITBC have agreed to amend the Financing Agreement on the
terms and subject to the conditions set forth below.



     NOW, THEREFORE, the parties hereto do hereby agree as follows:



     1. Definitions Incorporated. Initially capitalized terms used but not defined in this
Amendment have the respective meanings set forth in the Financing Agreement.



     2. Amendments to Financing Agreement. The Financing Agreement is hereby amended as
follows:




     (a)
Section 3.2. The first sentence of Section 3.2 of the Financing Agreement
is hereby amended and restated to read in its entirety as follows:



“In furtherance of the continuing collateral assignment and security
interest in each Company’s Accounts and Inventory, each Company shall
deliver to the Agent not later than: (1) if and when requested in writing by
Agent, an aging of such Company’s Trade Accounts Receivable in such form and
manner as the Agent may reasonably require but consistent with the current
practices of such Company; and (2) fourteen (14) days after the end of each
month, a monthly inventory confirmation statement stating the aggregate
amount of Eligible Inventory of the Companies.”




     (b) Section 6.12. Section 6.12 of the Financing Agreement is hereby amended
and restated to read in its entirety as follows:




     “6.12. Until termination of the Financing Agreement and payment and
satisfaction in full of all Obligations hereunder, Big 5 and its
Subsidiaries,
on a consolidated basis, shall maintain at the end of each fiscal quarter
during which the average daily Availability is less than $40,000,000, a
Fixed Charge Coverage Ratio of not less than 1.0 to 1.0.”



 









 





     3. Conditions Precedent. The obligations of CITBC and of the Lenders hereunder will
be effective only upon satisfaction of each of the following conditions precedent, each in a manner
in form and substance acceptable to CITBC:




     (a) Receipt by CITBC of a fully-executed original of this Amendment;




     (b) No Defaults or Events of Default shall have occurred or be continuing and there
shall not have been any material adverse change in the financial condition, business,
prospects, profitability, assets or operations of the Companies; and




     (c) CITBC shall have received such other documents, certificates, opinions, and
information that CITBC shall require, each in form and substance satisfactory to CITBC in
its sole discretion.



     4. Companies’ Representations and Warranties. To induce CITBC and the Lenders to
enter into this Amendment, each of the Companies hereby represents and warrants to CITBC and each
of the Lenders as of the date hereof as follows:




     (a) This Amendment has been duly executed and delivered by such Company, constitutes a
legal and valid binding obligation of such Company enforceable against such Company in
accordance with its terms and has been duly authorized by all necessary corporate action.




     (b) The representations and warranties contained in the Financing Agreement are, both
before and after giving effect to this Amendment, true and correct in all material respects
except to the extent any such representation or warranty is expressly stated to have been
made as of a specific date, in which case each such representation and warranty is true and
correct as of such specific date, and no Default or Event of Default has occurred and is
continuing.



     5. Reaffirmation. Except as specifically modified by this Amendment, the Financing
Agreement and the other Financing Documents shall remain in full force and effect in accordance
with their respective terms and are hereby ratified, reaffirmed and confirmed by the Companies.



     6. Failure to Comply. Any failure to comply with the terms and conditions of this
Amendment will constitute an Event of Default under the Financing Agreement.



     7. 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. Delivery of a signed counterpart of this Amendment by facsimile or electronic file
image is as effective as delivery of an original, ink-signed counterpart.



     8. Governing Law; Successors and Assigns. The validity, interpretation and
enforcement of this Amendment shall be governed by the laws of the State of California. This
Amendment shall be binding upon and shall inure to the benefit of the Companies, CITBC, and their
respective successors and assigns.



SECOND AMENDMENT TO SECOND AMENDED

AND RESTATED FINANCING AGREEMENT




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     9. Waiver of Jury Trial. Each of the Companies, CITBC and the Lenders hereby
waives any right to a trial by jury in any action or proceeding arising out of or relating to this
Amendment or the transactions contemplated hereunder.



     10. Judicial Reference. The parties to this Amendment prefer that any dispute between
or among them be resolved in litigation subject to a jury trial waiver as set forth in Section
9 above and in Section 13.7 of the Financing Agreement. If a pre-dispute jury trial waiver of
the type provided for in Section 9 above and in Section 13.7 of the Financing Agreement is
unenforceable in litigation to resolve any dispute, claim, cause of action or controversy under
this Amendment, the Financing Agreement or any other Loan Document (each, a “Claim”) in the venue
where the Claim is being brought pursuant to the terms of the Financing Agreement (as amended
hereby), then, upon the written request of any party, such Claim, including any and all questions
of law or fact relating thereto, shall be determined exclusively by a judicial reference
proceeding. Except as otherwise provided in Section 13.7 of the Financing Agreement, venue for any
such reference proceeding shall be in the state or federal court in the County or District where
venue is appropriate under applicable law (the “Court”). The parties shall select a single neutral
referee, who shall be a retired state or federal judge. If the parties cannot agree upon a referee
within 15 days, the Court shall appoint the referee. The referee shall report a statement of
decision to the Court. Notwithstanding the foregoing, nothing in this paragraph shall limit the
right of any party at any time to exercise self-help remedies, foreclose against collateral or
obtain provisional remedies (including without limitation, requests for temporary restraining
orders, preliminary injunctions, writs of possession, writs of attachment, appointment of a
receiver, or any orders that a court may issue to preserve the status quo, to prevent irreparable
injury or to allow a party to enforce its liens and security interests). The parties shall bear
the fees and expenses of the referee equally unless the referee orders otherwise. The referee also
shall determine all issues relating to the applicability, interpretation, and enforceability of
this Section 10. The parties acknowledge that any Claim determined by reference pursuant
to this Section 10 shall not be adjudicated by a jury.



     11. Attorneys’ Fees; Costs. The Company agrees to pay, on demand, all attorneys’ fees
and costs incurred in connection with the negotiation, documentation and execution of this
Amendment. Except as expressly provided by Section 10 above to the contrary in connection
with a judicial referee, if any legal action or proceeding shall be commenced at any time by any
party to this Amendment in connection with its interpretation or enforcement, the prevailing party
or parties in such action or proceeding shall be entitled to reimbursement of its reasonable
attorneys’ fees and costs in connection therewith, in addition to all other relief to which the
prevailing party or parties may be entitled.



[Remainder of Page Intentionally Left Blank]




SECOND AMENDMENT TO SECOND AMENDED

AND RESTATED FINANCING AGREEMENT




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     IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first
written above.



	 	 	 	 	 
	 	 	BIG 5 CORP.,

a Delaware corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven G. Miller
	 

	 	 	 	 
	 

	 	Name:
	 	Steven G. Miller
	 

	 	 	 	 
	 

	 	Title:
	 	President and Chief Executive Officer
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	BIG 5 SERVICES CORP.,

a Virginia corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven G. Miller
	 

	 	 	 	 
	 

	 	Name:
	 	Steven G. Miller
	 

	 	 	 	 
	 

	 	Title:
	 	President and Chief Executive Officer
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	THE CIT GROUP/BUSINESS CREDIT, INC.,

a New York corporation

(as Agent and a Lender)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Adrian Avalos
	 

	 	 	 	 
	 

	 	Name:
	 	Adrian Avalos
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	BANK OF AMERICA, N.A,

(as Lender)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Stephen King
	 

	 	 	 	 
	 

	 	Name:
	 	Stephen King
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 





SECOND AMENDMENT TO SECOND AMENDED

AND RESTATED FINANCING AGREEMENT — Signature Pages




 









 





	 	 	 	 	 
	 	 	PNC BANK, NATIONAL ASSOCIATION

(as Lender)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Sandra Shakenyon
	 

	 	 	 	 
	 

	 	Name:
	 	Sandra Shakenyon
	 

	 	 	 	 
	 

	 	Title:
	 	Vice President
	 

	 	 	 	 
	 
	 	 	 	 
	 	 	GE BUSINESS CAPITAL CORPORATION

f/k/a Transamerica Business Capital Corporation (as

Lender)
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Rebecca A. Ford
	 

	 	 	 	 
	 

	 	Name:
	 	Rebecca A. Ford
	 

	 	 	 	 
	 

	 	Title:
	 	Authorized Signatory
	 

	 	 	 	 





SECOND AMENDMENT TO SECOND AMENDED

AND RESTATED FINANCING AGREEMENT — Signature Pages




 









 





     Each of the undersigned hereby consents to and acknowledges the terms and conditions of the
foregoing Amendment and agrees that its Guaranty and each other document executed by it in favor of
CITBC and the Lenders remains in full force and effect.



	 	 	 	 	 
	 	 	BIG 5 SPORTING GOODS CORPORATION,

a Delaware corporation
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Steven G. Miller
	 

	 	 	 	 
	 

	 	Name:
	 	Steven G. Miller
	 

	 	 	 	 
	 

	 	Title:
	 	President and Chief Executive Officer
	 

	 	 	 	 





SECOND AMENDMENT TO SECOND AMENDED

AND RESTATED FINANCING AGREEMENT — Signature Pages