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Exhibit 10.3.4
THIRD AMENDMENT TO SENIOR SUBORDINATED
CONVERTIBLE LOAN AGREEMENT
THIS THIRD AMENDMENT TO SENIOR SUBORDINATED CONVERTIBLE LOAN AGREEMENT,
dated as of March 14, 2001 (this "AMENDMENT"), is among VALUE CITY DEPARTMENT
STORES, INC., an Ohio corporation (herein, together with its successors and
assigns, the "BORROWER"), the lender listed on the signature pages hereof (the
"LENDER"), and SCHOTTENSTEIN STORES CORPORATION, a Delaware corporation, as a
Lender and as Administrative Agent (in such latter capacity, the "ADMINISTRATIVE
AGENT").
PRELIMINARY STATEMENTS:
1. The Borrower and Prudential Securities Credit Corp., LLC, as initial lender
and as administrative agent ("PSCC"), entered into the Senior Subordinated
Convertible Loan Agreement, dated as of March 15, 2000 (the "PRUDENTIAL LOAN
AGREEMENT").
2 As of December 11, 2000, PSCC assigned all of its right, title and interest in
the Prudential Loan Agreement and attendant loan documents to Schottenstein
Stores Corporation.
3. As of December 11, 2000, the Borrower and the Lender entered into a certain
Waiver and Amendment to Senior Subordinated Convertible Loan Agreement, thereby
amending and modifying the Prudential Loan Agreement (the Prudential Loan
Agreement, as so amended, and as the same may hereafter be amended from time to
time, is hereinafter collectively referred to as the "LOAN AGREEMENT").
Capitalized terms used in this Amendment and not otherwise defined have the
meanings assigned such terms in the Loan Agreement. Concurrently with the above
referenced Waiver and Amendment, the Borrower and the Lender entered into a
certain letter agreement and term sheet (the "TERM SHEET") setting forth the
terms of an amendment to be entered into between the Borrower and the Lender.
4. As of January 1, 2001, the Borrower and the Lender entered into a Second
Amendment to Senior Subordinated Convertible Loan Agreement thereby amending and
modifying the Loan Agreement. Capitalized terms used in this Amendment and not
otherwise defined have the meanings assigned such terms in the Loan Agreement.
This amendment was required under the terms of Borrower's senior secured credit
facility to conform the Loan Agreement to the letter agreement and Term Sheet
agreed upon as of December 11, 2000.
5. The Borrower has requested the Lender to amend certain terms and conditions
of the Loan Agreement, and the Lender has agreed to the Borrower's requested
amendment of the Loan Agreement on the terms and subject to the conditions set
forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, the Borrower, the Lender, and the Administrative Agent hereby
agree as follows:
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SECTION 1. AMENDMENTS TO LOAN AGREEMENT.
1.1 Section 10.01(a), "CONVERSION PRIVILEGE AND CONVERSION PRICE," of the
Loan Agreement is hereby amended to recite in its entirety as follows:
Subject to and upon compliance with the provisions of this Article, at
any time and from time to time after August 5, 2001, to the extent
Advances remain outstanding, any Lender may at its option convert
("CONVERT"; or a "CONVERSION") all or a portion of its Advances into
fully paid and nonassessable shares of Common Stock of the Borrower
("CONVERSION SECURITIES") at the Conversion Price, determined as
hereinafter provided, in effect at the time of receipt of a Conversion
Notice by the Borrower. Such conversion right shall expire at the close
of business on the Maturity Date.
The remainder of Section 10.01 shall remain as originally written.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
2.1. AUTHORIZATION AND VALIDITY OF DOCUMENTS. This Amendment has been
duly authorized by all necessary corporate action on the part of the Borrower,
has been duly executed and delivered by a duly authorized officer of the
Borrower, and constitutes the valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms.
2.2. REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Borrower contained in the Loan Agreement and in the other Loan Documents
are true and correct in all material respects on and as of the date hereof as
though made on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier specified date, in
which case such representations and warranties are hereby reaffirmed as true and
correct in all material respects as of the date when made.
2.3. NO EVENT OF DEFAULT. No condition or event has occurred or exists
that constitutes a Default or an Event of Default.
2.4. COMPLIANCE. The Borrower is in full compliance with all covenants
and agreements contained in the Loan Agreement, as amended hereby.
SECTION 3. CONTINUING EFFECT OF CREDIT DOCUMENTS.
This Amendment shall not constitute an amendment or waiver of or
consent to any provision of the Loan Agreement or any other Loan Document not
expressly referred to herein and shall not be construed as an amendment, waiver,
or consent to any action on the part of the Borrower that would require an
amendment, waiver, or consent of the Administrative Agent or the Lenders except
as expressly stated herein. Except as expressly amended hereby, the provisions
of the Loan Agreement and each other Loan Document are and shall remain in full
force and effect in accordance with their respective terms.
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SECTION 4. CONDITIONS TO EFFECTIVENESS.
This Amendment shall become effective on a date (the "AMENDMENT
EFFECTIVE DATE"), as of March 14, 2001, provided that counterparts of this
Amendment shall have been executed by the Borrower, the Lender and the
Administrative Agent, and counterparts hereof as so executed shall have been
delivered to the Administrative Agent; and thereafter this Amendment shall be
binding upon and inure to the benefit of the Borrower, the Administrative Agent,
and each Lender and their respective permitted successors and assigns. After
this Amendment becomes effective, the Administrative Agent will promptly furnish
a copy of this Amendment to each Lender and the Borrower.
SECTION 5. MISCELLANEOUS.
5.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Amendment shall survive the execution and delivery
of this Amendment, and no investigation by the Administrative Agent or any
Lender or any subsequent Loan or other Credit Event shall affect the
representations and warranties or the right of the Administrative Agent or any
Lender to rely upon them.
5.2. REFERENCE TO LOAN AGREEMENT. The Loan Agreement and any and all
other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Loan Agreement as amended hereby, are
hereby amended so that any reference therein to the Loan Agreement shall mean a
reference to the Loan Agreement as amended hereby.
5.3. EXPENSES. As provided in the Loan Agreement, but without limiting
any terms or provisions thereof, the Borrower shall pay on demand all reasonable
costs and expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, and execution of this Amendment, including without
limitation the reasonable costs and fees of the Administrative Agent's special
legal counsel, regardless of whether this Amendment becomes effective in
accordance with the terms hereof, and all reasonable costs and expenses incurred
by the Administrative Agent or any Lender in connection with the enforcement or
preservation of any rights under the Loan Agreement, as amended hereby.
5.4. SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.5. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio.
5.6. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the
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parties hereto. There are no oral agreements among the parties hereto relating
to the subject matter hereof or any other subject matter relating to the Loan
Agreement.
5.8. JURY TRIAL WAIVER. The parties hereto hereby confirm that the jury
trial waiver provisions of section 12.11 of the Loan Agreement shall be fully
applicable to this Amendment and the transactions contemplated hereby.
5.9. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
VALUE CITY DEPARTMENT STORES, INC. SCHOTTENSTEIN STORES CORPORATION
INDIVIDUALLY AS A LENDER AND AS THE
ADMINISTRATIVE AGENT
BY: /s/ Xxxxx X. XxXxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
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TITLE: CFO, Secretary and Treasurer TITLE: Senior Vice President
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