EXHIBIT 10(b)
FIRST AMENDMENT TO
FINANCING AGREEMENT
AMENDMENT, dated as of October 7, 2003 (this "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"),
J.S. Overland 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 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 Financing
Agreement (as defined below) (the "Lenders"), and Cerberus Partners, L.P., a
limited partnership formed under the laws of the State of Delaware ("CP"), as
agent for the Lenders (in such capacity, together with its successors and
assigns, the "Agent").
RECITALS
WHEREAS, the Borrowers, the Initial Guarantors, VCM, Ltd., the Lenders and
the Agent are parties to that certain Financing Agreement dated as of June 11,
2002 (as amended, supplemented, restated or otherwise modified through the date
hereof, the "Financing Agreement");
WHEREAS, the Borrowers and the Initial Guarantors have advised the Agent
that the shareholders and directors of Value City 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 Financing Agreement as a result of the consummation of
the transactions contemplated by the Reorganization, and (iii) make certain
related amendments to the Financing Agreement;
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.
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2. Preamble and Recitals.
(a) The preamble to the Financing Agreement is hereby amended and
restated in its entirety as follows:
FINANCING AGREEMENT, dated as of June 11, 2002, 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 limited partnership formed under the
laws of the State of Delaware ("CP"), as agent for the Lenders (in such
capacity together with its successors and assigns, the "Agent").
(b) The recitals to the Financing Agreement are hereby amended by
deleting the words "the Parent" contained therein and substituting the words
"Value City" therefor.
3. Definitions.
(a) The following new definitions are hereby added to Section 1.01
of the Financing Agreement (in appropriate alphabetical order) to read in their
entirety as follows:
"Family Trust": One or more trusts established for the benefit of any
of Jay L. Schottenstein, Susan S. Diamond, Ann S. Deshe, Lori
Schottenstein, Geraldine Schottenstein, any of their respective
spouses, children or lineal descendants, or any Person controlled by
any such trust or trusts.
"First Amendment" means the First Amendment to Financing Agreement,
dated as of October 7, 2003, made by the Borrowers, the Guarantors, the
Lenders and the Agent.
"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.
"Value City" has the meaning specified therefor in the preamble.
(b) The definition of the term "Board of Directors" contained in
Section 1.01 of the Financing Agreement is amended and restated in its entirety
to read as follows:
"Board of Directors" means the board of directors of Value City 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 "Business Plan" contained in
Section 1.01 of the Financing Agreement is hereby amended by deleting the words
"the Parent" contained therein and substituting the words "Value City" therefor.
(d) The definition of the term "Change of Control" contained in
Section 1.01 of the Financing 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 CP of board
representation rights under the Convertible Loan 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 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.
(e) The definition of the term "Common Stock" contained in Section
1.01 of the Financing Agreement is amended and restated in its entirety to read
as follows:
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"Common Stock" means (i) prior to the Reorganization Effective Date,
the common stock, no par value, of Value City and (ii) on and after the
Reorganization Effective Date, the common stock, no par value, of the
Parent.
(f) The definition of the term "Convertible Loan Agreement"
contained in Section 1.01 of the Financing Agreement is hereby, amended by
adding the words "as amended from time to time" immediately following the words
"June 11, 2002."
(g) The definition of the term "Indebtedness" contained in Section
1.01 of the Financing Agreement is hereby amended by deleting the words "the
Borrowers" immediately prior to the words "as liabilities" and substituting the
words "the Parent" therefor.
(h) The definition of the term "Financial Statements" contained in
Section 1.01 of the Financing Agreement is hereby amended by deleting the words
"the Parent" contained therein and substituting the words "Value City" therefor.
(i) The definition of the term "Guarantors" contained in Section
1.01 of the Financing 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 Borrowers), now existing or hereafter created or acquired,
other than the Unrestricted Subsidiaries.
(j) The definition of the term "Intercreditor Agreement" contained
in Section 1.01 of the Financing 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" and deleting the
words "the Borrowers and the Guarantors" contained therein and substituting the
words "the Loan Parties."
(k) The definition of the term "Material Accounting Change"
contained in Section 1.01 of the Financing Agreement is hereby amended by
deleting each occurrence of the word "Borrowers'" contained therein and
substituting the word "Parent's" therefor and by deleting the word "Borrowers"
contained therein and substituting the words "Parent and its Subsidiaries"
therefor.
(l) The definitions of the terms "National Credit Facility" and
"NCB Hedging Agreement" contained in Section 1.01 of the Financing Agreement are
hereby amended by deleting each occurrence of the words "the Parent" contained
therein and substituting the words "Value City" therefor.
(m) The definition of the term "Parent" contained in Section 1.01
of the Financing Agreement is hereby amended and restated in its entirety to
read as follows:
"Parent" means Retail Ventures, Inc., an Ohio corporation.
(n) The definition of the term "Permitted Acquisition" contained
in Section 1.01 of the Financing Agreement is hereby amended:
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(i) by deleting the words "the Borrowers" 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 Borrowers" in clause (ii)(c) thereof;
(iii) by adding the words "the Parent or" immediately before
the words "a Borrower" in clause (ii)(d) thereof;
(iv) by deleting the words "the Borrower" contained in clause
(ii)(g) thereof and substituting the words "the Parent or a Borrower" therefor;
and
(v) by deleting the number "$15,000,000" contained in clause
(ii)(h) thereof and substituting the number "$20,000,000" therefor.
(o) The definition of the term "Permitted Disposition" contained
in Section 1.01 of the Financing Agreement is hereby amended by deleting each
occurrence of the words "a Borrower" contained in clause (v) thereof and
substituting the words "the Parent" therefor.
(p) The definition of the term "Permitted Indebtedness" contained
in Section 1.01 of the Financing 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;
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(q) The definition of the term "Permitted Investments" contained
in Section 1.01 of the Financing Agreement is hereby amended as follows:
(i) by adding the words "the Parent or" before each occurrence
of the words "a Borrower" contained in clause (xiii) thereof; and
(ii) 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).
(r) The definition of "Permitted Liens" contained in Section 1.01
of the Financing Agreement is hereby amended by deleting the words "the
Borrowers" contained in clause (i) thereof, and substituting the words "the Loan
Parties" therefor.
(s) The definition of the term "Registration Rights Agreement"
contained in Section 1.01 of the Financing Agreement is hereby amended by
deleting the words "the Parent" contained therein and substituting the words
"Value City, and binding on the Parent as of the Reorganization Effective Date"
therefor.
(t) The definition of the term "Revolving Credit Facility"
contained in Section 1.01 of the Financing Agreement is hereby amended by
deleting the words "Parent and certain of its Subsidiaries, as borrowers and as
guarantors" contained therein and substituting the words "Loan Parties,"
therefor.
(u) The definition of the term "SSC Assignment" contained in
Section 1.01 of the Financing Agreement is hereby amended by deleting the words
"the Parent's" contained therein and substituting the words "Value City's"
therefor.
(v) The definition of the term "SSC Credit Facility" contained in
Section 1.01 of the Financing Agreement is hereby amended by deleting the words
"the Parent" contained therein and substituting the words "Value City" therefor.
4. Prepayment of Loans. Section 2.05(g) of the Financing Agreement is
hereby amended by adding the words "neither Value City nor" immediately prior to
the words "the Parent" contained therein, and by deleting the word "no"
contained therein and substituting the word "any" therefor.
5. Fees. Section 3.01 of the Financing Agreement is hereby amended by
deleting the phrase "Borrower agrees" in the second sentence thereof, and
substituting the phrase "Borrowers agree" therefor.
6. Conditions Precedent. Section 4.01 of the Financing Agreement is
hereby amended by deleting each occurrence of the words "the Parent" contained
therein and substituting the words "Value City" therefor.
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7. Representations and Warranties.
(a) Section 5.01(c) of the Financing 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 Financing Agreement is hereby amended
by deleting each occurrence of the words "Effective Date" contained therein and
substituting the words "Reorganization Effective Date" therefor.
(c) Section 5.01(f) of the Financing 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 Financing 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 Financing 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 Financing 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 Financing 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.
(h) Section 5.01(o) of the Financing 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 deleting the word "such" contained in the fifth
sentence of clause (ii) thereof and substituting the word "material" therefor,
and by adding the words ", or to consummate the transactions contemplated by the
Reorganization" at the end of the fifth sentence of clause (ii) thereof;
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(iv) 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 Financing 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 Financing 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 Financing 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 Financing 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:
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) Sections 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.
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(n) Section 5.01(dd) of the Financing Agreement is hereby amended
by deleting the words "the Parent" contained therein, and substituting the words
"Value City" therefor.
(o) Section 5.01(ee) of the Financing Agreement is hereby amended
by deleting each occurrence of the word "Parent" contained therein, and
substituting the words "Administrative Borrower" therefor.
(p) Section 5.01(ff) of the Financing Agreement is hereby amended
by adding the words "and the UCC financing statements and financing statement
amendments contemplated by the First Amendment" after the words "Section
4.01(d)" contained in the second sentence thereof.
(q) Section 5.01(hh) of the Financing 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.
(r) Sections 5.01(ll), and 5.01(nn) of the Financing Agreement are
hereby amended by deleting each occurrence of the word "Parent" contained
therein, and substituting the word "Value City" therefor.
(s) Section 5.01 (mm) of the Financing Agreement is hereby amended
by adding the words "Value City or" prior to the words "the Parent's" contained
therein and prior to the words "the Parent" contained therein.
8. Covenants.
(a) Section 6.01(j) of the Financing Agreement is hereby amended
by deleting the word "Borrower" and substituting the word "Borrowers" therefor.
(b) Sections 6.01(k), (l) and (m) of the Financing Agreement are
hereby amended by deleting each occurrence of the words "the Parent" and
substituting the words "Value City" therefor.
(c) Section 6.02(a)(ii) of the Financing Agreement is hereby
amended by deleting the word "or" contained therein and substituting the word
"on" therefor.
(d) Section 6.02(c) of the Financing 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.
(e) Section 6.02(e) of the Financing 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, (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.
(f) Section 6.02(g) of the Financing 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.
(g) Section 6.02(i) of the Financing Agreement is hereby amended
by deleting the words "the Parent" contained therein and substituting the words
"Value City" therefor.
(h) 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
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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 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).
(i) Section 6.02(l) of the Financing Agreement is hereby amended
by deleting each occurrence of the words "Fiscal Year of the Borrowers" and
substituting the words "Fiscal Year of the Parent" therefor.
(j) Section 6.02 of the Financing 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 workman's
compensation obligations of the Parent and its Subsidiaries and
for no other purpose.
9. Reporting Requirements.
(a) Section 7.07(a) of the Financing Agreement is hereby amended
by deleting the words "Loan Parties'" and substituting the word "Parent's"
therefor.
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(b) Section 7.07(b) of the Financing 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 Financing Agreement is hereby amended
by replacing the words "Administrative Borrower's" with the word "Parent's".
10. Use of Collateral.
(a) Section 8.01(a)(v) of the Financing Agreement is hereby
amended and restated to read in its entirety as follows:
(v) sales other than sales in connection with Permitted Dispositions.
(b) Sections 8.06 and 8.07 of the Financing Agreement are hereby
amended by deleting each occurrence of the words "Borrower", "Borrower's" and
"Borrowers" contained therein and substituting the words "Loan Party" and "Loan
Party's" and "Loan Parties", respectively, therefor.
11. Events of Default. Section 9.01(c) of the Financing Agreement is
hereby amended by adding "Section 6.02(u): Parent's Line of Business" to the end
thereof.
12. Miscellaneous. Section 12.02 of the Financing Agreement is hereby
amended by deleting the words "Subject to Section 6.02(l)" contained therein.
13. Amendments to Schedules to Financing Agreement.
(a) A new Schedule 1.01(b) (Reorganization) is hereby added to the
Financing 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.
(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.
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(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.
14. 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 Financing 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;
(iv) First Amendment to the Intercreditor Agreement, duly
executed by the Agent, the Revolving Credit Agent and the Convertible 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 Parent and Value
City with respect to their obligations under the Warrants and the Registration
Rights Agreement;
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(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, Morris & Arthur 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 certifying as to the subsistence in
good standing of 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 bylaws 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
connection herewith and therewith, together with evidence of the incumbency of
such authorized officers; and
(xv) copies of the Revolving Credit Facility Documents and
Convertible 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
Administrative Borrower, which documents shall be in form and substance
satisfactory to the Agent;
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(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 Convertible 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
Financing Agreement or this Amendment (including, without limitation, the fees
and other client charges of Schulte Roth & Zabel LLP in connection with this
Amendment and the related agreements, instruments and other documents) shall
have been paid in full.
15. 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 Financing
Agreement, as amended hereby.
(b) The execution, delivery and performance by such Borrower of
this Amendment and the performance by such Loan Party of the Financing
Agreement, as amended hereby
(i) have been duly authorized by all necessary action,
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(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
(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 Borrower of this Amendment or
the performance by such Loan Party of the Financing Agreement, as amended
hereby.
(d) This Amendment and the Financing Agreement, as amended hereby,
constitute the legal, valid and binding obligations of such Borrower or Loan
Party, as the case may be, enforceable against such Borrower or 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 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.
16. Continued Effectiveness of Financing Agreement. Each Loan Party
hereby (a) confirms and agrees that the Financing 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 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
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
- 16 -
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.
17. 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.
18. 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.
19. 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
Financing Agreement and shall be construed, administered and interpreted in
accordance with the terms thereof.
20. 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
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(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 INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
- 18 -
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.
BORROWERS:
VALUE CITY DEPARTMENT STORES, INC.,
an Ohio corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
SHONAC CORPORATION,
an Ohio corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
DSW SHOE WAREHOUSE, INC.,
a Missouri corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
GRAMEX RETAIL STORES, INC.,
a Delaware corporation
By: /s/ James A. McGrady
________________________________
Name: James A. McGrady
Title: Chief Financial Officer
FILENE'S BASEMENT, INC.,
a Delaware corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
VALUE CITY LIMITED PARTNERSHIP,
an Ohio limited partnership
By: Westerville Road GP, Inc., its General
Partner
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
VALUE CITY OF MICHIGAN, INC.,
a Michigan corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
GB RETAILERS, INC.,
a Delaware corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
GUARANTORS:
J.S. OVERLAND DELIVERY, INC.
a Delaware corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
VALUE CITY DEPARTMENT STORES
SERVICES, INC.
a Delaware corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
WESTERVILLE ROAD GP, INC.
a Delaware corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
WESTERVILLE ROAD LP, INC.
a Delaware corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
RETAIL VENTURES, INC.
an Ohio corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
RETAIL VENTURES JEWELRY, INC.
an Ohio corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
RETAIL VENTURES SERVICES, INC.
an Ohio corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
RETAIL VENTURES IMPORTS, INC.
(formerly known as VC Acquisition, Inc.),
an Ohio corporation
By: /s/ James A. McGrady
_________________________________
Name: James A. McGrady
Title: Chief Financial Officer
AGENT AND LENDER:
CERBERUS PARTNERS, L.P.,
a Delaware limited partnership
By: CERBERUS ASSOCIATES, L.L.C.
By: /s/ Mark A. Neporent
---------------------------------
Name: Mark A. Neporent
Title: Vice President and
Chief Operating Officer
LENDER:
SCHOTTENSTEIN STORES CORPORATION
a Delaware limited partnership
By: /s/ Thomas R. Ketteler
---------------------------------
Name: Thomas R. Ketteler
Title: Chief Operating Officer and
Chief Financial Officer