EXHIBIT 10(c)
AMENDMENT NO. 2
TO AMENDED AND RESTATED
SENIOR CONVERTIBLE LOAN AGREEMENT
AMENDMENT NO. 2, dated as of October 7, 2003 (this "Amendment"), by and
among Value City Department Stores, Inc., an Ohio corporation (the "Borrower"),
Shonac Corporation, an Ohio corporation ("Shonac"), DSW Shoe Warehouse, Inc., a
Missouri corporation ("DSW"), Gramex Retail Stores, Inc., a Delaware corporation
("Gramex"), Filene's Basement, Inc., a Delaware corporation ("Filene's"), GB
Retailers, Inc., a Delaware corporation ("GB"), Value City Limited Partnership,
an Ohio limited partnership ("VCLP"), Value City of Michigan, Inc., a Michigan
corporation ("VC Michigan"), X.X. Xxxxxxxx Delivery, Inc. ("Overland"), Value
City Department Stores Services, Inc. ("Services"), Westerville Road GP, Inc.
("Westerville GP") and Westerville Road LP, Inc. ("Westerville LP", and together
with Shonac, DSW, Gramex, Filene's, GB, VCLP, VC Michigan, Overland, Services
and Westerville, GP, each an "Initial Guarantor" and collectively, the "Initial
Guarantors"), Retail Ventures, Inc., an Ohio corporation (the "Parent"), Retail
Ventures Jewelry, Inc., an Ohio corporation ("RV Jewelry"), Retail Ventures
Services, Inc., an Ohio corporation ("RV Services"), and Retail Ventures
Imports, Inc. (formerly known as VC Acquisition, Inc.), an Ohio corporation
("Imports", and together with the Parent, RV Jewelry and RV Services, each an
"Additional Guarantor" and collectively, the "Additional Guarantors", and
together with the Initial Guarantors, each a "Guarantor" and collectively, the
"Guarantors"), the lenders currently party to the Loan Agreement (as defined
below) (the "Lenders"), and Cerberus Partners, L.P., a limited partnership
formed under the laws of the State of Delaware ("CPLP"), as agent for the
Lenders (in such capacity, together with its successors and assigns, the
"Agent").
RECITALS
WHEREAS, the Borrower, the Initial Guarantors, VCM, Ltd., the Lenders and
the Agent are parties to that certain Amended and Restated Senior Convertible
Loan Agreement dated as of June 11, 2002 (as amended, supplemented, restated or
otherwise modified through the date hereof, the "Loan Agreement");
WHEREAS, the Borrower and the Initial Guarantors have advised the Agent
that the shareholders and directors of the Borrower have approved a corporate
reorganization of the Loan Parties as described on Schedule 1.01(b) hereto (the
"Reorganization") and have requested that the Agent and the Lenders (i) consent
to the Reorganization, (ii) waive any Default or Event of Default that would
otherwise occur under the Loan Agreement as a result of the consummation of the
transactions contemplated by the Reorganization, and (iii) make certain related
amendments to the Loan Agreement;
NOW THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto hereby agree as follows:
21. Definitions. All capitalized terms used herein and not otherwise
defined herein are used herein as defined in the Loan Agreement.
22. Preamble. The preamble to the Loan Agreement is hereby amended
and restated in its entirety as follows:
AMENDED AND RESTATED SENIOR CONVERTIBLE LOAN AGREEMENT, dated as of
June 11, 2002 (the "Agreement"), by and among Value City Department
Stores, Inc., an Ohio corporation (the "Borrower"), Shonac
Corporation, an Ohio corporation ("Shonac"), DSW Shoe Warehouse, Inc.,
a Missouri corporation ("DSW"), Gramex Retail Stores, Inc., a Delaware
corporation ("Gramex"), Filene's Basement, Inc., a Delaware
corporation ("Filene's"), GB Retailers, Inc. a Delaware corporation
("GB"), Value City Limited Partnership, an Ohio limited partnership
("VCLP"), Value City of Michigan, Inc., a Michigan corporation ("VC
Michigan"), X.X. Xxxxxxxx Delivery, Inc. ("Overland"), Value City
Department Stores Services, Inc. ("Services"), Westerville Road GP,
Inc. ("Westerville GP"), Westerville Road LP, Inc. ("Westerville LP"),
Retail Ventures, Inc., an Ohio corporation (the "Parent"), Retail
Ventures Jewelry, Inc., an Ohio corporation ("RV Jewelry"), Retail
Ventures Services, Inc., an Ohio corporation ("RV Services"), and
Retail Ventures Imports, Inc. (formerly known as VC Acquisition,
Inc.), an Ohio corporation ("Imports", and together with Shonac, DSW,
Gramex, Filene's, GB, VCLP, VC Michigan, Overland, Services,
Westerville GP, Westerville LP, Parent, RV Jewelry, and RV Services,
each a "Guarantor" and collectively, the "Guarantors"), the lenders
from time to time party hereto (each a "Lender" and collectively, the
"Lenders") and Cerberus Partners, L.P., a limited partnership formed
under the laws of the State of Delaware ("CPLP"), as agent for the
Lenders (in such capacity together with its successors and assigns,
the "Agent").
23. Definitions.
(a) The following new definitions are hereby added to Section
1.01 of the Loan Agreement (in appropriate alphabetical order) to read in their
entirety as follows:
"Amendment No. 2" means the Amendment No. 2 to this Agreement, dated
as of October 7, 2003, made by the Borrower, the Guarantors, the
Lenders and the Agent.
"Family Trust": One or more trusts established for the benefit of any
of Xxx X. Xxxxxxxxxxxxx, Xxxxx X. Xxxxxxx, Xxx X. Xxxxx, Xxxx
Xxxxxxxxxxxxx, Xxxxxxxxx Xxxxxxxxxxxxx, any of their respective
spouses, children or lineal descendants, or any Person controlled by
any such trust or trusts.
"Parent" has the meaning specified in the preamble therefor.
"Reorganization" means the corporate reorganization of the Loan
Parties, as described on Schedule 1.01(b) hereto.
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"Reorganization Effective Date" means the date on which the
transactions contemplated by the Reorganization are consummated.
(b) The definition of the term "Board of Directors" contained in
Section 1.01 of the Loan Agreement is amended and restated in its entirety to
read as follows:
"Board of Directors" means the board of directors of the Borrower as
of the Effective Date, and the board of directors of the Parent as of
the Reorganization Effective Date.
(c) The definition of the term "Change in Control" contained in
Section 1.01 of the Loan Agreement is hereby amended:
(i) By adding the words "(other than (A) a Person
controlled by SSC or (B) one or more Family Trusts)" after the words "person or
group" in clause (i) of such definition.
(ii) by amending and restating clause (ii) thereof to read
in its entirety as follows:
(ii) other than as a result of the exercise by CPLP of Board
representation rights under this Agreement, more than thirty percent
(30%) of the Persons who were directors of the Parent on the first day
of any period consisting of twelve (12) consecutive calendar months
(the first of which twelve (12) month periods commencing with the
first day of August, 2003), cease to be directors of the Parent for
any reason other than death, disability, or replacement (in the
ordinary course of business and not as a result of any change in the
equity ownership of the Parent) by other Persons nominated by the
nominating committee of the board of directors of the Parent;
(iii) by deleting the word "Borrower" in clause (i) and
(iii) thereof and substituting the word "Parent" therefor;
(iv) by amending and restating clause (iv) thereof to read
in its entirety as follows:
(iv) the failure of SSC or one or more Family Trusts to possess,
directly or indirectly, the power to cause the direction of the
management and policies of the Parent.
(d) The definition of the term "Common Stock" contained in
Section 1.01 of the Loan Agreement is amended and restated in its entirety to
read as follows:
"Common Stock" means (i) prior to the Reorganization Effective Date,
the common stock, no par value, of the Borrower and (ii) on and after
the Reorganization Effective Date, the common stock, no par value, of
the Parent.
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(e) The definition of the term "Equipment" contained in Section
1.01 of the Loan Agreement is hereby amended by deleting the word "Borrower's"
and substituting the words "Loan Party's" therefor.
(f) The definition of the term "Fair Market Value" contained in
Section 1.01 of the Loan Agreement is hereby amended by deleting the word
"Borrower's" and substituting the words "Parent's" therefor.
(g) Clause (v) of the definition of the term "Market Price"
contained in Section 1.01 of the Loan Agreement is hereby amended:
(i) by deleting the word "Borrower's" and substituting the
words "Parent's" therefor; and
(ii) by deleting the word "Borrower" contained in the
proviso thereof and substituting the word "Parent" therefor.
(h) The definition of the term "Guarantors" contained in Section
1.01 of the Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"Guarantors" means the Parent and each Subsidiary of the Parent (other
than the Borrower), now existing or hereafter created or acquired,
other than the Unrestricted Subsidiaries.
(i) The definition of the term "Indebtedness" contained in
Section 1.01 of the Loan Agreement is hereby amended by deleting the words "Key
Loan Parties" immediately prior to the words "as liabilities" and substituting
the words "Parent" therefor.
(j) The definition of the term "Intercreditor Agreement"
contained in Section 1.01 of the Loan Agreement is hereby amended by adding the
words "as amended or otherwise modified from time to time in accordance with its
terms," immediately prior to the words "by and among the Agent".
(k) The definition of the term "Key Loan Parties" contained in
Section 1.01 of the Loan Agreement is hereby amended by deleting the word "VCM"
contained therein and substituting the words "the Parent" therefor.
(l) The definition of the term "Material Accounting Change"
contained in Section 1.01 of the Loan Agreement is hereby amended by deleting
each occurrence of the words "Key Loan Parties'" contained therein and
substituting the word "Parent's" therefor and by deleting the words "Key Loan
Party" contained therein and substituting the words "Parent and its
Subsidiaries" therefor.
(m) The definition of the term "Permitted Acquisition" contained
in Section 1.01 of the Loan Agreement is hereby amended:
(i) by deleting the words "the Key Loan Parties" contained
in clause (i) thereof and substituting the words "the Parent and its
Subsidiaries" therefor;
(ii) by adding the words "the Parent and/or" immediately
before the words "the Key Loan Parties" in clause (ii)(c) thereof;
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(iii) by deleting the word "Borrower" contained in clause
(ii)(h) thereof and substituting the word "Parent" therefor; and
(iv) by deleting the number "$15,000,000" contained in
clause (ii)(h) thereof and substituting the number "$20,000,000" therefor.
(n) The definition of the term "Permitted Disposition" contained
in Section 1.01 of the Loan Agreement is hereby amended by deleting each
occurrence of the words "a Key Loan Party" contained in clause (v) thereof and
substituting the words "the Parent" therefor.
(o) The definition of the term "Permitted Indebtedness"
contained in Section 1.01 of the Loan Agreement is hereby amended:
(i) by adding the words "for all Loan Parties and, with
respect to the Parent only, shall not exceed $5,000,000 in the aggregate
outstanding at any time" at the end of the proviso contained in clause (iii)
thereof;
(ii) by adding the words "for all Loan Parties and, with
respect to the Parent only, shall not exceed $5,000,000 in the aggregate
principal amount outstanding at any time" at the end of the proviso contained in
clause (iv) thereof;
(iii) by amending and restating clause (viii) thereof to
read in its entirety as follows:
(viii) intercompany Indebtedness between and among the Loan Parties
(other than the Parent) pursuant to loans and advances permitted in
accordance with Subsection 6.02(e)(F), below, and intercompany
Indebtedness due to the Parent by any other Loan Party to the extent
permitted hereunder;
(iv) by adding a new clause (xiii) thereto to read in its
entirety as follows:
; and (xiii) Indebtedness owed by the Parent to any of the other Loan
Parties in an amount not to exceed $5,000,000 (less amounts paid under
Section 6.02(g) hereof) in the aggregate at any time outstanding;
(p) The definition of the term "Permitted Investments" contained
in Section 1.01 of the Loan Agreement is hereby amended by adding the following
to the end thereof:
provided, that except for Excluded Property and loans to officers and
directors all such Permitted Investments are subject to a perfected
first priority Lien in favor of the Agent (subject to the terms of the
Intercreditor Agreement).
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(q) The definition of "Permitted Liens" contained in Section
1.01 of the Loan Agreement is hereby amended by deleting the words "a Key Loan
Party" contained in clause (i) thereof, and substituting the words "a Loan
Party" therefor.
(r) The definition of the term "Registration Rights Agreement"
contained in Section 1.01 of the Loan Agreement is hereby amended by adding the
words "and binding on the Borrower and the Parent as of the Reorganization
Effective Date" immediately following the words "the Borrower" contained
therein.
(s) The definitions of the terms "Revolving Credit Facility" and
"Term Loan Agreement" contained in Section 1.01 of the Loan Agreement are hereby
amended by deleting each occurrence of the words "Borrower and certain of its
Subsidiaries, as borrowers and as guarantors" contained therein and substituting
the words " Loan Parties," therefor.
24. Representations and Warranties.
(a) Section 5.01(c) of the Loan Agreement is hereby amended by
adding the words "or in connection with the Reorganization" to the end thereof.
(b) Section 5.01(e) of the Loan Agreement is hereby amended:
(i) by deleting each occurrence of the words "Effective
Date" contained therein and substituting the words "Reorganization Effective
Date" therefor;
(ii) by deleting each occurrence of the word "Borrower"
contained therein, and substituting the word "Parent" therefor.
(c) Section 5.01(f) of the Loan Agreement is hereby amended by
adding a new clause (i)(C) thereto to read in its entirety as follows:
or (C) relates to the Reorganization or any transaction contemplated
thereby.
(d) Section 5.01(h) of the Loan Agreement is hereby amended by
adding the words ", or as a result of the consummation of the transactions
contemplated by the Reorganization, will be" immediately prior to the words "in
violation" contained therein.
(e) Section 5.01(i) of the Loan Agreement is hereby amended by
adding the words ", or, as a result of the consummation of the transactions
contemplated by the Reorganization, will have" immediately following the word
"years" contained therein.
(f) Section 5.01(j) of the Loan Agreement is hereby amended by
adding a new sub-clause (iii) thereto, to read in its entirety as follows:
(iii) No material Federal, state or local tax liability will be
imposed upon any Loan Party as a result of the transactions
contemplated by the Reorganization.
(g) Section 5.01(n) of the Loan Agreement is hereby amended by
adding the words ", or as a result of the Reorganization, will occur" after the
words "has occurred" contained in the second sentence thereof.
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(h) Section 5.01(o) of the Loan Agreement is hereby amended:
(i) by adding the words "and following the Reorganization,
will have" after the words "Each Loan Party has" contained in clause (i)
thereof;
(ii) by adding the words "and following the Reorganization,
will be" after the words "Each such Lease is" contained in the fourth sentence
of clause (ii) thereof;
(iii) by adding the words ", or to consummate the
transactions contemplated by the Reorganization" at the end of the fifth
sentence of clause (ii) thereof;
(iv) deleting the word "such" contained in clause (ii)
thereof and substituting the word "material" therefor, and by adding the words
"or will be, as a result of the transactions contemplated by the Reorganization"
prior to the words "in material default" contained in the final sentence of
clause (ii) thereof;
(v) by adding the word "Reorganization" prior to the words
"Effective Date" contained in the final sentence of clause (ii) thereof; and
(vi) by adding the words "or will occur as a result of the
Reorganization" after the words "has occurred" contained in the final sentence
of clause (ii) thereof.
(i) Section 5.01(q) of the Loan Agreement is hereby amended:
(i) by adding the words "or will be, as a result of the
consummation of the Reorganization," after each occurrence of the word "is"
contained in the third and fourth sentences thereof; and
(ii) by adding the following after the fifth sentence
thereof:
Without limiting the foregoing, no default or violation shall arise
under any Lease solely as a result of the assignment and transfer of
such Lease in connection with the Reorganization.
(j) Section 5.01(u) of the Loan Agreement is hereby amended by
adding the words "and the Reorganization" after the words "this Agreement" and
the words "to each Loan" contained therein.
(k) Section 5.01(w) of the Loan Agreement is hereby amended by
adding the words "both before and after giving effect to the Reorganization"
after the words "each Loan Party" contained in the first, third and fourth
sentences thereof.
(l) Section 5.01(x) of the Loan Agreement is hereby amended:
(i) by adding the words "both before and after giving
effect to the Reorganization" after the word "license" contained in the second
sentence thereof; and
(ii) by adding the following sentence after the second
sentence thereof:
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Without limiting the foregoing, no default or violation shall arise
under any such license or agreement solely as a result of the
assignment and transfer of such license or agreement in connection
with the Reorganization.
(m) Section 5.01(cc) is hereby amended by deleting each
occurrence of the words "Effective Date" contained therein and substituting the
words "Reorganization Effective Date" therefor.
(n) Section 5.01(ff) of the Loan Agreement is hereby amended by
adding the words "and the UCC financing statements and financing statement
amendments contemplated by Amendment No. 2" after the words "Section 4.01(d)"
contained in the second sentence thereof.
(o) Section 5.01(ii) of the Loan Agreement is hereby amended:
(i) by adding the words "or will occur as a result of the
Reorganization" after the words "has occurred" contained in the final sentence
thereof; and
(ii) by adding the words "or will exist as a result of the
Reorganization" after the word "exists" contained in the final sentence thereof.
(p) Section 5.01(kk) of the Loan Agreement is hereby amended by
deleting the word "Borrower" contained therein and substituting the word
"Parent" therefor.
(q) Section 5.01 (mm) of the Loan Agreement is hereby amended by
adding the words "the Parent's or" prior to the words "the Borrower's" contained
therein and by adding the words "the Parent or" prior to the words "the
Borrower" contained therein.
25. Covenants.
(a) Section 6.01(j) of the Loan Agreement is hereby amended by
deleting the word "Borrower" and substituting the words "Loan Parties" therefor.
(b) Sections 6.01(k) and (l) of the Loan Agreement are hereby
amended by adding after each occurrence of the words "the Borrower's" contained
therein the words "and/or the Parent's", as applicable therefor.
(c) Section 6.01(r) of the Loan Agreement is hereby amended by
deleting each occurrence of the words "Borrower" and "Borrower's" contained
therein and substituting the words "Parent" and "Parent's", respectively,
therefor.
(d) Section 6.02(a)(ii) of the Loan Agreement is hereby amended
by deleting the word "or" contained therein and substituting the word "on"
therefor.
(e) Section 6.02(c) of the Loan Agreement is hereby amended:
(i) by adding the following to the end of clause (A)
thereof:
Notwithstanding the foregoing, the Parent may not merge or consolidate
or be merged or consolidated with or into any other
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Person without the prior written consent of the Agent.
(ii) by adding a new clause (E) at the end thereof to read
in its entirety as follows:
(E) the transactions contemplated by the Reorganization.
(f) Section 6.02(e) of the Loan Agreement is hereby amended:
(i) by adding the words ", the Reorganization," after the
words "a Permitted Acquisition" in clause (vi) thereof; and
(ii) by amending and restating clause (F) thereof to read in
its entirety as follows:
(F) Intercompany loans and advances (1) existing on the date hereof
and described on Schedule 6.02(e)(vi)(F) hereof, (2) hereafter made
amongst any Loan Parties pursuant to the terms of the Revolving Credit
Facility, and (3) hereafter made to the Parent by any other Loan Party
to the extent any of the same constitutes Permitted Indebtedness under
clause (viii) of the definition of Permitted Indebtedness, and (4) to
any Loan Party by the Parent.
(g) Section 6.02(g) of the Loan Agreement is hereby amended by
adding the following sentence to the end thereof:
Notwithstanding anything to the contrary contained herein, dividends
(other than dividends payable solely in capital stock of another Loan
Party and dividends contemplated by the Reorganization) shall be
payable to the Parent by any other Loan Party only to the extent not
otherwise in violation of the Loan Documents and in any event in an
amount not to exceed $5,000,000 (less loans and advances to the Parent
made under clause (viii) of the definition of Permitted Indebtedness)
in the aggregate after the date hereof.
(h) Section 6.02(i) of the Loan Agreement is hereby amended by
deleting each occurrence of the words "Fiscal Year of the Key Loan Parties" and
substituting the words "Fiscal Year of the Parent" therefor.
(i) Section 6.02(k) is hereby amended to recite in its entirety
as follows:
Limitation on Issuance of Capital Stock. Issue or sell or enter into
any agreement or arrangement for the issuance and sale of, or permit
any of its Subsidiaries to issue or sell or enter into any agreement
or arrangement for the issuance and sale of, any shares of its Capital
Stock, any securities convertible into or exchangeable for its Capital
Stock or any warrants, provided, that Parent may issue (i) the Warrant
Stock; (ii) the shares issuable upon conversion of the Convertible
Loan Agreement; (iii) up to 5,000,000 shares of Common Stock (and
following the fifth anniversary of the Effective Date, up to an
additional 5,000,000 shares of Common Stock) that are issued to
Persons other than Affiliates of the Parent, including (A) shares of
Common Stock or options exercisable therefor, issued or to be issued
under the Parent's 2000 Stock Option Plan as in effect on the
Effective Date or under any other employee stock option or purchase
plan or plans, or pursuant to compensatory or incentive agreements,
for officers, employees or consultants
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of the Parent or any of its Subsidiaries, in each case adopted or
assumed after such date by the Parent's Board of Directors; provided
in each case that the exercise or purchase price for any such share
shall not be less than 95% of the fair market value (determined in
good faith by the Parent's Board of Directors) of the Common Stock on
the date of the grant, and such additional number of shares as may
become issuable pursuant to the terms of any such plans by reason of
adjustments required pursuant to antidilution provisions applicable to
such securities in order to reflect any subdivision or combination of
Common Stock, by reclassification or otherwise, or any dividend on
Common Stock payable in Common Stock, (B) shares of restricted stock
issued by the Parent to executive officers of the Parent, and (C)
shares of Common Stock issued by the Parent as charitable gifts; and
(iv) up to an additional 2,153,000 shares of Common Stock issued
pursuant to options that are granted to executive officers of the
Parent or its Subsidiaries under the Parent's 2000 Stock Option Plan
as in effect on the date hereof at an exercise price of no less than
$4.50 per share and such additional number of shares as may become
issuable pursuant to the terms of any such options under the terms of
such plan by reason of adjustments required pursuant to antidilution
provisions applicable to such securities in order to reflect any
subdivision or combination of Common Stock, by reclassification or
otherwise, or any dividend on Common Stock payable in Common Stock;
and provided, that all options that are issued and expire unexercised
because the vesting requirements thereof are not satisfied shall not
be included in the issued shares pursuant to this (iv).
(j) Section 6.02 of the Loan Agreement is hereby amended by
adding a new clause (u) thereto to read in its entirety as follows:
(u) Parent's Line of Business. The Parent shall not engage in any
business, and shall not own any property or assets, other than
acquiring and owning (a) the capital stock of any other Loan
Party or the Unrestricted Subsidiaries, and (b) any investments
permitted to be made by the Parent hereunder, and (c) otherwise
incidental to the operation of the business of a holding company.
In addition, notwithstanding anything to the contrary contained
herein, L/C's and Bankers Acceptances (each as defined in the
Revolving Credit Facility) issued for the account of the Parent
shall be limited to those L/Cs required to support the xxxxxxx'x
compensation obligations of the Parent and its Subsidiaries and
for no other purpose.
26. Reporting Requirements.
(a) Section 7.07(a) of the Loan Agreement is hereby amended by
deleting the words "Loan Parties'" and substituting the word "Parent's"
therefor.
(b) Section 7.07(b) of the Loan Agreement is hereby amended by
deleting the words "each of the Loan Parties'" and substituting the words "the
Parent's" therefor.
(c) Section 7.10(d) of the Loan Agreement is hereby amended by
deleting the word "Borrower's" contained therein and substituting the word
"Parent's" therefor.
27. Use of Collateral.
(a) Section 8.01(a)(v) of the Loan Agreement is hereby amended
and restated to read in its entirety as follows:
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(v) sales other than sales in connection with Permitted Dispositions.
(b) Sections 8.06 and 8.07 of the Loan Agreement are hereby
amended by deleting each occurrence of the words "Key Loan Party", "Key Loan
Party's" and "Key Loan Parties" contained therein and substituting the words
"Loan Party" and "Loan Party's" and "Loan Parties", respectively, therefor.
28. Events of Default. Section 9.01(c) of the Loan Agreement is
hereby amended by adding "Section 6.02(u): Parent's Line of Business" to the end
thereof.
29. Miscellaneous. Section 12.02 of the Loan Agreement is hereby
amended by deleting the words "Subject to Section 6.02(l)" contained therein.
30. Transactions with Affiliates.
(a) Section 14.01 of the Loan Agreement is hereby amended:
(i) by deleting the words "Borrower nor any of their" and
substituting the words "Parent nor any of its" therefor;
(ii) by deleting each occurrence of the word "Borrower" and
substituting the word "Parent" therefor.
(iii) By amending and restating the parenthetical contained
in clause (ii) of the definition of SSC Transaction to read in its entirety as
follows:
(other than Parent and its Subsidiaries, but including, for purposes
of this definition, any Person to whom SSC transfers any of the Common
Stock that was owned by SSC on the Effective Date)
(b) Section 14.02 of the Loan Agreement is hereby amended by
deleting each occurrence of the word "Borrower" and substituting the word
"Parent" therefor.
(c) Section 14.04 of the Loan Agreement is hereby amended:
(i) by deleting the word "Borrower" and substituting the
word "Parent" therefor; and
(ii) by deleing the word "Borrower's" and substituting the
word "Parent's" therefor.
31. Amendments to Schedules to Loan Agreement.
(a) A new Schedule 1.01(b) (Reorganization) is hereby added to
the Loan Agreement to read in its entirety in the form of Schedule 1.01(b)
attached hereto and incorporated by reference herein.
(b) Schedule 5.01(e)(i) (Capitalization) is hereby amended and
restated in its entirety in the form of Schedule 5.01(e) attached hereto and
incorporated by reference herein.
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(c) Schedule 5.01(e)(ii) (Subsidiaries) is hereby amended and
restated in its entirety in the form of Schedule 5.01(e)(ii) attached hereto and
incorporated by reference herein.
(d) Schedule 5.01(cc) (Location of Inventory; Place of Business;
Chief Executive Office; State of Incorporation; FEIN; Organizational ID Number)
is hereby supplemented by Schedule 5.01(cc) attached hereto and incorporated by
reference herein.
(e) Schedule 5.01(dd) (Tradenames) is hereby supplemented by
Schedule 5.01(dd) attached hereto and incorporated by reference herein.
(f) Schedule 5.01(kk) (Unrestricted Subsidiaries) is hereby
amended and restated in its entirety in the form of Schedule 5.01(kk) attached
hereto and incorporated by reference herein.
32. Conditions to Effectiveness. This Amendment shall become
effective upon satisfaction in full of the following conditions precedent:
(a) Both before and immediately after giving effect to this
Amendment,
(i) the representations and warranties contained in this
Amendment, Article V of the Loan Agreement and the other Loan Documents shall be
correct on and as of the date of this Amendment as though made on and as of such
date (except where such representations and warranties relate to an earlier date
in which case such representations and warranties shall be true and correct as
of such earlier date); and
(ii) no Default or Event of Default shall have occurred and
be continuing on the date of this Amendment or result from this Amendment
becoming effective in accordance with its terms.
(b) The Agent shall have received, on or before the
Reorganization Effective Date, each of the following documents, in form and
substance satisfactory to the Agent and dated the Reorganization Effective Date
(unless otherwise specified), and all conditions precedent to the effectiveness
of such documents (where applicable) shall have been satisfied:
(i) this Amendment, duly executed by the Loan Parties, the
Lenders and the Agent;
(ii) First Amendment to the Security Agreement, duly
executed by each of the Loan Parties and the Agent;
(iii) First Amendment to the Pledge Agreement, duly executed
by each of the Loan Parties and the Agent, together with the original stock
certificates or other certificated securities or instruments representing all of
the Capital Stock of such Loan Parties' subsidiaries, accompanied by undated
stock powers executed in blank and other proper instruments of transfer, in each
case, to the extent not previously delivered to the Agent;
- 12 -
(iv) First Amendment to the Intercreditor Agreement, duly
executed by the Agent, the Revolving Credit Agent and the Term Loan Agent and
acknowledged by the Loan Parties;
(v) Guaranty, duly executed by the Parent, RV Jewelry, RV
Services and Imports;
(vi) Acknowledgment, duly executed by the Borrower and the
Parent, with respect to their obligations under Article XIII of the Loan
Agreement and under and the Registration Rights Agreement;
(vii) such Collection Account Agreements, Credit Card
Agreements and DDA Notifications as the Agent may reasonably require;
(viii) such UCC financing statements and UCC financing
statement amendments as the Agent may reasonably require;
(ix) an opinion of Porter, Wright, Xxxxxx & Xxxxxx LLP,
counsel to the Loan Parties, with respect to the Reorganization, the Loan
Documents and the transactions contemplated hereby and thereby;
(x) a certificate of the appropriate official(s) of the
state of organization of each Additional Guarantor only certifying as to the
subsistence in good standing of, and the payment of taxes by, such Additional
Guarantor in such state;
(xi) a true and complete copy of the charter, certificate of
formation, certificate of limited partnership or other publicly filed
organizational document of each Additional Guarantor certified as of a recent
date not more than thirty (30) days prior to the Reorganization Effective Date
(except as otherwise agreed by the Agent) by an appropriate official of the
state of organization of such Additional Guarantor, which shall set forth the
same complete name of such Additional Guarantor as is set forth herein;
(xii) a copy of the by-laws, limited liability company
agreement, operating agreement, agreement of limited partnership or other
organizational document of each Additional Guarantor, together with all
amendments thereto, certified as of the Reorganization Effective Date by an
Authorized Officer of such Additional Guarantor;
(xiii) a copy of the resolutions of each Loan Party,
certified as of the date hereof by an Authorized Officer thereof, authorizing
(A) the transactions contemplated hereby, and (B) the execution, delivery and
performance by such Loan Party of each Loan Document to which such Loan Party is
or will be a party, included as amended hereby or by the documents contemplated
hereby, and the execution and delivery of the other documents to be delivered by
such Person in connection herewith and therewith, and (C) the Reorganization,
and each of the documents contemplated thereby;
(xiv) a certificate of an Authorized Officer of each
Additional Guarantor, certifying the names and true signatures of the
representatives of such Additional Guarantor authorized to sign each Loan
Document to which such Additional Guarantor is or will be a party and the other
documents to be executed and delivered by such Additional Guarantor in
- 13 -
connection herewith and therewith, together with evidence of the incumbency of
such authorized officers; and
(xv) copies of the Revolving Credit Facility Documents and
Term Loan Documents, in each case, as amended on the Reorganization Effective
Date and copies of each of the documents executed in connection with the
Reorganization, in each case, duly executed by the parties thereto and certified
as true and correct copies thereof by an Authorized Officer of the Borrower,
which documents shall be in form and substance satisfactory to the Agent;
(c) All consents, authorizations and approvals of, and filings
and registrations with, and all other actions in respect of, any Governmental
Authority or other Person required in connection with the Reorganization, the
amendment of the Loan Documents, or the conduct of the Loan Parties' business
shall have been obtained and shall be in full force and effect.
(d) The Agent shall have completed its business and legal due
diligence with respect to the Reorganization and the results thereof shall be
acceptable to the Agent, in its sole and absolute discretion.
(e) All conditions precedent to the Reorganization and the
amendment of the Revolving Credit Facility and the Term Loan Agreement shall
have been met to the satisfaction of the Agent.
(f) The Agent shall have received such other agreements,
instruments, opinions and other documents as the Agent may reasonably request in
respect of the transactions contemplated hereby.
(g) All proceedings in connection with the transactions
contemplated by this Amendment, and all documents incidental thereto, shall be
satisfactory to the Agent and its counsel, and the Agent and its counsel shall
have received all such information and such counterpart originals or certified
copies of documents as the Agent or its counsel may reasonably request.
(h) All fees, expenses and taxes accrued and unpaid or otherwise
due and payable by the Borrowers or a Loan Party pursuant to either the Loan
Agreement or this Amendment (including, without limitation, the fees and other
client charges of Xxxxxxx Xxxx & Xxxxx LLP in connection with this Amendment and
the related agreements, instruments and other documents) shall have been paid in
full.
33. Loan Parties' Representations and Warranties. Each Loan Party
represents and warrants to the Agent and the Lenders as follows:
(a) Such Loan Party
(i) is duly organized, validly existing and in good
standing under the laws of the state of its organization and
(ii) has all requisite power, authority and legal right to
execute, deliver and perform this Amendment and to perform the Loan Agreement,
as amended hereby.
- 14 -
(b) The execution, delivery and performance by such Loan Party
of this Amendment and the performance by such Loan Party of the Loan Agreement,
as amended hereby
(i) have been duly authorized by all necessary action,
(ii) do not and will not violate or create a default under
such Loan Party's organizational documents, any applicable law or any
contractual restriction binding on or otherwise affecting such Loan Party or any
of such Loan Party's properties except where such violation of default is not
reasonably likely to have a Material Adverse Effect, and
(iii) except as provided in the Loan Documents, do not and
will not result in or require the creation of any Lien, upon or with respect to
such Loan Party's property.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority is required in connection
with the due execution, delivery and performance by such Loan Party of this
Amendment or the performance by such Loan Party of the Loan Agreement, as
amended hereby.
(d) This Amendment and the Loan Agreement, as amended hereby,
constitute the legal, valid and binding obligations of such Loan Party, as the
case may be, enforceable against such Loan Party, in accordance with their terms
except to the extent the enforceability thereof may be limited by any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws from time to
time in effect affecting generally the enforcement of creditors' rights and
remedies and by general principles of equity.
(e) Both before and immediately after giving effect to this
Amendment,
(i) the representations and warranties contained in Article
V of the Loan Agreement are correct on and as of the date hereof as though made
on and as of the date hereof (except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date), and
(ii) no Default or Event of Default has occurred and is
continuing on and as of the date hereof.
34. Continued Effectiveness of Loan Agreement. Each Loan Party hereby
(a) confirms and agrees that the Loan Agreement and each other Loan Document to
which it is a party is, and shall continue to be, in full force and effect and
is hereby ratified and confirmed in all respects except that on and after the
Amendment Effective Date all references in any such Loan Document to "the Loan
Agreement", the "Agreement", "hereto", "hereof", "hereunder", "thereto",
"thereof", "thereunder" or words of like import referring to the Loan Agreement
shall mean the Loan Agreement as amended by this Amendment, (b) confirms and
agrees that to the extent that any such Loan Document purports to assign or
pledge to the Agent, for the ratable benefit of the Lenders, or to grant to the
Agent, for the ratable benefit of the Lenders a security interest in or Lien on,
any Collateral as security for the Obligations of the Loan Parties, or any of
their respective Subsidiaries from time to time existing in respect of the Loan
Agreement and the Loan Documents, such pledge, assignment and/or grant of the
security interest or Lien is hereby
- 15 -
ratified and confirmed in all respects, and (c) confirms and agrees that no
amendment of any terms or provisions of the Loan Agreement or the amendments
granted hereunder shall relieve any Loan Party from complying with such terms
and provisions other than as expressly amended hereby or from complying with any
other term or provision thereof or herein.
35. Reaffirmation by Guarantors. Each Guarantor hereby (a) consents
to the transactions contemplated by the Amendment; (b) acknowledges and
reaffirms its obligations owing to the Agent and the Lenders under any Loan
Documents to which it is a party; and (c) agrees that each of the Loan Documents
to which it is a party is and shall remain in full force and effect. Although
each of the Guarantors has been informed of the matters set forth herein and has
acknowledged and agreed to same, it understands that neither the Agent nor any
Lender has any obligation to inform it of such matters in the future or to seek
its acknowledgment or agreement to future amendments, and nothing herein shall
create such a duty.
36. Consent to Reorganization. Upon satisfaction of all of the
conditions precedent to the effectiveness of this Amendment, in each case, in
form and substance satisfactory to the Agent, consent to the Reorganization
shall be deemed to have been given by the Lenders.
37. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of this Amendment by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Amendment.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York. Each of the parties to this
Amendment hereby irrevocably waives all rights to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Amendment.
(d) This Amendment is a Loan Document executed pursuant to the
Loan Agreement and shall be construed, administered and interpreted in
accordance with the terms thereof.
38. JURY TRIAL WAIVER. THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION, OR IN
ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS
AMENDMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT (WHETHER BASED ON
CONTRACT, TORT, OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE
- 16 -
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
- 17 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment, to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWER:
VALUE CITY DEPARTMENT STORES, INC.,
an Ohio corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
GUARANTORS:
SHONAC CORPORATION,
an Ohio corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
DSW SHOE WAREHOUSE, INC.,
a Missouri corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
GRAMEX RETAIL STORES, INC.,
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
FILENE'S BASEMENT, INC.,
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
VALUE CITY LIMITED PARTNERSHIP,
an Ohio limited partnership
By: Westerville Road GP, Inc., its General
Partner
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
VALUE CITY OF MICHIGAN, INC.,
a Michigan corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
GB RETAILERS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
X.X. XXXXXXXX DELIVERY, INC.
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
VALUE CITY DEPARTMENT STORES
SERVICES, INC.
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
WESTERVILLE ROAD GP, INC.
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
WESTERVILLE ROAD LP, INC.
a Delaware corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
RETAIL VENTURES, INC.
an Ohio corporation
By: /s/ Xxxxx X. XxXxxxx
_____________________________________
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
RETAIL VENTURES JEWELRY, INC.
an Ohio corporation
By: /s/ Xxxxx X. XxXxxxx
-----------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
RETAIL VENTURES SERVICES, INC.
an Ohio corporation
By: /s/ Xxxxx X. XxXxxxx
-----------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
RETAIL VENTURES IMPORTS, INC.
(formerly known as VC Acquisition, Inc.),
an Ohio corporation
By: /s/ Xxxxx X. XxXxxxx
-----------------------------------------
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
AGENT AND LENDER:
CERBERUS PARTNERS, L.P.,
a Delaware limited partnership
By: CERBERUS ASSOCIATES, L.L.C.
By: /s/ Xxxx X. Neporent
-----------------------------------------
Name: Xxxx X. Neporent
Title: Vice President and
Chief Operating Officer
LENDER:
SCHOTTENSTEIN STORES CORPORATION
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Operating Officer and
Chief Financial Officer
