Exhibit 10.47.7
FIFTH AMENDMENT TO SENIOR SUBORDINATED
CONVERTIBLE LOAN AGREEMENT
THIS FIFTH AMENDMENT TO SENIOR SUBORDINATED CONVERTIBLE LOAN AGREEMENT, dated as
of November 2, 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. As of March 14, 2001, the Borrower and the Lender entered into a Third
Amendment to Senior Subordinated Convertible Loan Agreement thereby
amending and modifying the Loan Agreement. This amendment modified
Section 10.1(a) regarding the date the conversion privilege and
conversion price could be exercised.
6. As of September 10, 2001, the Borrower and the Lender entered into a
Fourth Amendment to Senior Subordinated Convertible Loan Agreement
(titled as Third Amendment) thereby amending and modifying the Loan
Agreement. This amendment modified Section 6.04 regarding Advances,
Investments, Loan and Guaranty Obligations.
7. 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:
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 November 4, 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.
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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.
SECTION 4. CONDITIONS TO EFFECTIVENESS.
This Amendment shall become effective on a date (the "AMENDMENT EFFECTIVE
DATE"), as of November 2, 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.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
5.1 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
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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
Agents 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
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.
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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
By: By:
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Title: Chief Financial Officer and Title: Senior Vice President
Treasurer
