Exhibit 10.2
EXECUTION COPY
SECOND AMENDMENT TO FINANCING AGREEMENT
SECOND AMENDMENT, dated as of July 29, 2004 (this "Second
Amendment"), by and among Value City Department Stores, Inc., an Ohio
corporation ("Value City"), 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"), and together with
Value City, Shonac, DSW, Gramex, Filene's, GB and VCLP, each a "Borrower" and
collectively, the "Borrowers"), certain affiliates of the Borrowers party hereto
as guarantors, 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 Delaware limited partnership ("CP"),
as agent for the Lenders (in such capacity, together with its successors and
assigns, the "Agent").
RECITALS
WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agent
are parties to that certain Financing Agreement dated as of June 11, 2002 (as
amended by that certain First Amendment to Financing Agreement dated October 7,
2003, and as further amended, supplemented, restated or otherwise modified
through the date hereof, the "Financing Agreement");
WHEREAS, the Financing Agreement currently has a Final Maturity Date
(as defined therein) of June 11, 2005;
WHEREAS, the Borrowers and the Agent have agreed, and the Guarantors
have consented, to extend the term of the Financing Agreement for 1 (one)
additional year until June 11, 2006;
NOW THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms used herein and not otherwise
defined herein are used herein as defined in the Financing Agreement.
2. Amendments.
(a) Amendment of Section 1.01. The definition of the term
"Final Maturity Date" contained in Section 1.01 of the Financing Agreement is
hereby amended by deleting "June 11, 2005" and replacing it with the phrase
"June 11, 2006".
(b) Amendment of Section 2.06(b). Section 2.06(b) is hereby
amended by the addition thereto of the following sentence at the end of such
section: "Additionally, the Anniversary Fee due and payable on June 11, 2005
shall be increased by the amount of $125,000, such that the amount of
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Exhibit 10.2
such Anniversary Fee due and payable on such date shall be equal to the sum of
3.0% of the Term Loan B principal amount outstanding, including PIK Interest,
plus $125,000."
3. Conditions to Effectiveness. This Second Amendment shall become
effective upon satisfaction in full of the following conditions precedent:
(a) Both before and immediately after giving effect to this
Second Amendment,
(i) the representations and warranties contained in this
Second Amendment, Article V of the Financing Agreement and the other
Loan Documents shall be correct on and as of the date of this Second
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 Second Amendment or result
from this Second Amendment becoming effective in accordance with its
terms.
(b) The Agent shall have received this Second Amendment duly
executed by the Loan Parties, the Lenders and the Agent, and duly
acknowledged and consented to by the Revolving Credit Agent and the
Convertible Agent.
4. 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 Second Amendment and to perform
the Financing Agreement, as amended hereby.
(b) The execution, delivery and performance by such Loan Party
of this Second Amendment and the performance by such Loan Party of the
Financing 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 or default is not reasonably likely to have a
Material Adverse Effect, and
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Exhibit 10.2
(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 Second Amendment or the performance by such Loan Party of
the Financing Agreement, as amended hereby.
(d) This Second Amendment and the Financing Agreement, as
amended hereby, constitute the legal, valid and binding obligations of
such Loan Party, 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
Second Amendment,
(i) the representations and warranties contained in
Article V of the Financing 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.
5. Continued Effectiveness of Financing Agreement. Each Loan Party
hereby (a) confirms and agrees that the Financing Agreement and each other Loan
Documents 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 date of this Second Amendment all references in any such Loan
Documents to the "Financing Agreement", the "Agreement", "hereto", "hereof",
"hereunder", "thereto", "thereof", "thereunder" or words of like import
referring to the Financing Agreement shall mean the Financing Agreement as
amended by this Second 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 Financing Agreement
and the Loan Documents, such pledge, assignment and/or grant of the security
interest or Lien is hereby ratified and confirmed in all respects, and (c)
confirms and agrees that no amendment of any terms or provisions of the
Financing 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.
6. Reaffirmation by Guarantors. Each Guarantor hereby (a) consents
to the transactions contemplated by this Second 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
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Exhibit 10.2
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.
7. 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 such taken
together shall constitute one and the same agreement. Delivery of an
executed counterpart of this Second Amendment by telefacsimile shall be
equally as effective as delivery of an original executed counterpart of
this Second Amendment.
(b) Second and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this
Second Amendment for any other purpose.
(c) This Second Amendment shall be governed by, and construed
in accordance with, the laws of the State of New York. Each of the parties
to this Second Amendment hereby irrevocably waives all rights to trial by
jury in any action, proceeding or counterclaim arising out of or relating
to this Second Amendment.
(d) This Second Amendment is a Loan Document executed pursuant
to the Financing Agreement and shall be construed, administered and
interpreted in accordance with the terms thereof.
8. 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
SECOND AMENDMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SECOND 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 FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INCLUDED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment, to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
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Exhibit 10.2
BORROWERS:
VALUE CITY DEPARTMENT STORES, INC.,
an Ohio corporation
By: /s/ Xxxxx X. XxXxxxx
---------------------------------
Name: Xxxxx X. XxXxxxx
Title: Chief Financial Officer
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
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Exhibit 10.2
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
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Exhibit 10.2
GUARANTORS:
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
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Exhibit 10.2
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:
---------------------------------
Name:
Title:
LENDER:
SCHOTTENSTEIN STORES CORPORATION,
a Delaware corporation
By:
---------------------------------
Name:
Title:
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Exhibit 10.2
ACKNOWLEDGMENT AND CONSENT:
CERBERUS PARTNERS, L.P., a Delaware
limited partnership, as Convertible Agent
By: CERBERUS ASSOCIATES, L.L.C.
By:
----------------------------------
Name:
Title:
NATIONAL CITY BUSINESS CREDIT, INC.,
f/k/a/ National City Commercial
Finance, Inc., an Ohio corporation,
as Revolving Credit Agent
By:
----------------------------------
Name:
Title:
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