EXHIBIT 10.17.7
FOURTH AMENDMENT AGREEMENT - AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
This FOURTH AMENDMENT AGREEMENT (this "FOURTH AMENDMENT") is made as
of this 28 day of January, 2004 by and among
FLEET RETAIL FINANCE INC. (the "LENDER"), a Delaware
corporation with offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000,
and
BAKERS FOOTWEAR GROUP, INC., f/k/a Xxxxx and Xxxxxx Shoe Co.
(the "BORROWER"), a Missouri corporation with its principal executive
offices at 0000 Xxxxx Xxxxxx, Xxxxx X, Xx. Xxxxx, Xxxxxxxx 00000,
in consideration of the mutual covenants contained herein and benefits to be
derived herefrom,
WITNESSETH:
A. Reference is made to that certain Amended and Restated Loan
and Security Agreement (as amended to date, the "LOAN
AGREEMENT") dated as of June 11, 2002 between the Borrower and
the Lender.
B. The Borrower has filed a registration statement on Form S-1
(No. 333-86322, as amended from time to time, the "EXISTING
REGISTRATION STATEMENT") with the Securities and Exchange
Commission under the Securities Act, which Existing
Registration Statement has not yet been declared effective by
the SEC. The Borrower anticipates that the Existing
Registration Statement will be declared effective and the IPO
will be consummated on or before February 29, 2004.
C. The Borrower has requested that the Lender agree to amend the
Loan Agreement in certain respects in anticipation of the IPO
and the Lender has agreed to do so on the terms and conditions
set forth herein.
Accordingly, the Borrower and the Lender agree as follows:
1. DEFINITIONS. Terms defined in the Recitals shall be incorporated
herein as therein defined. Capitalized terms and used herein and not otherwise
defined herein shall have meanings assigned to such terms in the Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. Clause B of the definition "Change in
Control" shall be deleted from Article I of the Loan Agreement and the
following shall be substituted therefor:
"B. On and after the occurrence of the IPO:
(i) The purchase or other acquisition by any Person or group
of Persons (within the meaning of Rule 13d-3 or Rule 14d of
the Securities Exchange Act of 1934, as amended) (excluding,
for this purpose, the Borrower or its subsidiaries or
1
any employee benefit plan of the Borrower or its subsidiaries) of
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities Exchange act of 1934, as amended) of thirty percent (30%)
or more of either the then-outstanding shares of the Borrower's
common stock or the combined voting power of the Borrower's
then-outstanding voting securities entitled to vote generally in the
election of directors; or
(ii) A reorganization, merger, consolidation, sale of all or
substantially all of the assets of the Borrower, or similar
transaction, in each case with respect to which Persons who were the
stockholders of the Borrower immediately prior to such
reorganization, merger or consolidation would not immediately
thereafter own more than 50% of, respectively, the Borrower's common
stock and the combined voting power entitled to vote generally in
the election of directors of the reorganized, merged, consolidated
or successor corporation's then-outstanding voting securities; or
(iii) During any period of two (2) consecutive years,
individuals who at the beginning of such period constituted the
board of directors of the Borrower (together with any directors
whose election or appointment by the board of directors of the
Borrower or whose nomination for election by the shareholders of the
Borrower was approved by vote of a majority of the directors then
still in office who are either directors at the beginning of such
period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the
board of directors of the Borrower then in office."
3. ADDITIONAL ACKNOWLEDGEMENTS AND REPRESENTATIONS. As an inducement
for the Lender to execute this Fourth Amendment, the Borrower hereby represents
and warrants that as of the date hereof no Suspension Event has occurred and is
continuing.
4. RATIFICATION OF LOAN DOCUMENTS; NO CLAIMS AGAINST LENDER. Except as
provided herein, all terms and conditions of the Loan Agreement and of the
other Loan Documents remain in full force and effect. Each of the Borrower and
the Guarantor hereby ratifies, confirms, and re-affirms all and singular the
terms and conditions, including execution and delivery, of the Loan Documents.
There is no basis nor set of facts on which any amount (or any portion thereof)
owed by the Borrower or the Guarantor to the Lender could be reduced, offset,
waived, or forgiven, by rescission or otherwise; nor is there any claim,
counterclaim, off set, or defense (or other right, remedy, or basis having a
similar effect) available to the Borrower or to the Guarantor with regard to
the respective Liabilities of the Borrower and the Guarantor to the Lender; nor
is there any basis on which the terms and conditions of any of the respective
Liabilities of the Borrower and of the Guarantor to the Lender could be claimed
to be other than as stated on the written instruments which evidence such
Liabilities. To the extent that the Borrower or the Guarantor has (or ever had)
any such claims against the Lender, each hereby affirmatively WAIVES and
RELEASES same.
5. CONDITIONS TO EFFECTIVENESS. This Fourth Amendment shall not be
effective until each of the following conditions precedent have been fulfilled
to the satisfaction of the Lender:
(a) This Fourth Amendment shall have been duly executed and
delivered by the respective parties hereto, shall be in full force and
effect and shall be in form and substance satisfactory to the Lender;
(b) All action on the part of the Borrower necessary for the valid
execution, delivery and performance by the Borrower of this Fourth
Amendment shall have been duly and effectively taken and evidence
thereof satisfactory to the Lender shall have been provided to the
Lender;
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(c) The Borrower shall have paid to the Lender all fees and expenses
then due and owing pursuant to the Loan Agreement; and
(d) The Borrower shall have provided such additional instruments and
documents to the Lender as the Lender and Lender's counsel may have reasonably
requested, each in form and substance satisfactory to the Lender.
6. MISCELLANEOUS
(a) This Fourth Amendment may be executed in several counterparts and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument.
(b) This Fourth Amendment expresses the entire understanding of the
parties with respect to the transactions contemplated hereby. No prior
negotiations or discussions shall limit, modify, or otherwise affect the
provisions hereof.
(c) Any determination that any provisions of this Fourth Amendment or
any application hereof is invalid, illegal, or unenforceable in any respect and
in any instance shall not affect the validity, legality, or enforceability of
such provision in any other instance, or the validity, legality, or
enforceability of any other provisions of this Fourth Amendment.
(d) The Borrower shall pay on demand all reasonable costs and expenses
of the Lender, including, without limitation, reasonable attorneys' fees in
connection with the preparation, negotiation, execution, and delivery of this
Fourth Amendment.
(e) THIS FOURTH AMENDMENT SHALL BE CONSTRUED, GOVERNED, AND ENFORCED
PURSUANT TO THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL
TAKE EFFECT AS SEALED INSTRUMENT.
[SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have hereunto caused this Fourth
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.
BAKERS FOOTWEAR GROUP, INC.,
F/K/A/ XXXXX AND XXXXXX SHOE CO.
By /s/ XXXXX XXXXXX
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Name Xxxxx Xxxxxx
---------------------
Title Chairman/CEO
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FLEET RETAIL FINANCE INC.
By /s/ XXXXX X. XXXX
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Name Xxxxx X. Xxxx
---------------------
Title Managing Director
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/S-1/
The undersigned Guarantor hereby (i) consents to the terms and
conditions of this Fourth Amendment and hereby joins in the acknowledgements and
agreements set forth in this Fourth Amendment, all as of the date first above
written, (ii) ratifies and confirms the warranties and representations set forth
in the Guaranty, and acknowledges that pursuant to the terms of the Guaranty,
the Guarantor previously guaranteed the payment of the Liabilities of the
Borrower to the Lender to the extent set forth in such Guaranty, that this
acknowledgment is being executed as a confirmation of the Guarantor's
obligations to Lender under the Guaranty and that, subject to the limitations
contained in the Guaranty, the Guarantor shall remain liable for all of the
Liabilities, now existing or hereafter arising, whether or not any similar
confirmation letter is executed in the future and (iii) acknowledges and agrees
that he has no offsets, defenses, or counterclaims against the Lender with
respect to his obligations under the Guaranty or otherwise, and to the extent
that the Guarantor has any such offsets, defenses, or counterclaims, the
Guarantor hereby WAIVES and RELEASES the same.
/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
