EXHIBIT 10.1
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Loan and Security Agreement (the "FOURTH
AMENDMENT") is made as of this 10th day of March, 2005 by and among
National City Business Credit, Inc. (f/k/a National City Commercial
Finance, Inc.), an Ohio corporation with offices at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, as administrative agent (in such capacity, herein
the "ADMINISTRATIVE AGENT"), for the ratable benefit of the "REVOLVING
CREDIT LENDERS", who are, at present, those financial institutions
identified on the signature pages of this Fourth Amendment and who in the
future are those Persons (if any) who become "Revolving Credit Lenders" in
accordance with the provisions of the Loan Agreement (as defined below);
National City Business Credit, Inc. (f/k/a National City Commercial
Finance, Inc.), and Fleet Retail Group, Inc. (f/k/a Fleet Retail Finance
Inc.), a Delaware corporation with offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as collateral agents (collectively, in such capacity,
herein the "COLLATERAL AGENTS"), for the ratable benefit of the Revolving
Credit Lenders;
and
National City Bank, as L/C Issuer (the "ISSUER");
and
The Revolving Credit Lenders;
and
Value City Department Stores LLC (in such capacity, the "LEAD
BORROWER"), an Ohio limited liability company with its principal executive
offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, as agent for
the following (individually, a "BORROWER" and collectively, the
"BORROWERS"):
Said Value City Department Stores LLC ("VCDS LLC"); and
DSW Inc. (f/k/a Shonac Corporation) ("SHONAC"), an Ohio corporation
with its principal executive offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇;
DSW Shoe Warehouse, Inc. ("DSW"), a Missouri corporation with its
principal executive offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇; and
Gramex Retail Stores, Inc. ("GRAMEX"), a Delaware corporation with its
principal executive offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇; and
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Filene's Basement, Inc. ("FILENE'S"), a Delaware corporation with its
principal executive offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇-▇▇▇▇; and
Value City of Michigan, Inc. ("VC MICHIGAN"), a Michigan corporation
with its principal executive offices at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
GB Retailers, Inc. ("GBR"), a Delaware corporation with its principal
executive offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; and
Retail Ventures Jewelry, Inc. ("JEWELRY"), an Ohio corporation with
its principal executive offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇;
in consideration of the mutual covenants contained herein and benefits to be
derived herefrom,
W I T N E S S E T H:
A. Reference is hereby made to that certain Loan and Security Agreement
dated as of June 11, 2002 (as the same has been, and may hereafter be,
amended, modified, supplemented or restated, the "LOAN AGREEMENT")
among (i) Value City Department Stores LLC, successor by merger to
Value City Department Stores, Inc. (the "LEAD BORROWER"), (ii) the
other Borrowers (other than the Lead Borrower), (iii) the Revolving
Credit Lenders, (iv) the Administrative Agent, (v) the Collateral
Agents, and (vi) the Issuer.
B. The Borrowers have requested that the Revolving Credit Lenders modify
and amend certain provisions of the Loan Agreement to, among other
things, increase the amount available to be borrowed thereunder.
D. The Revolving Credit Lenders have agreed to consent to modify and
amend certain provisions of the Loan Agreement as provided herein.
Accordingly, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Loan
Agreement.
2. Amendments to Loan Agreement.
a. Amendments to Article 1 of Loan Agreement. The provisions of
Article 1 of the Loan Agreement are hereby revised as follows:
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i. The definition of "Excess Availability Reserve" is hereby
amended by deleting the number "$35,000,000" and substituting the
number "$40,000,000" in its stead.
ii. The definition of "Revolving Credit Ceiling" is hereby amended by
deleting the number "$350,000,000.00" and substituting the number
"$425,000,000" in its stead.
iii. The definition of "SwingLine Loan Ceiling" is hereby amended by
deleting the number "$25,000,000" and substituting the number
"$35,000,000" in its stead.
b. Amendments to Exhibits to Loan Agreement. Exhibit 2.23 [Revolving
Credit Lenders' Commitments] to the Loan Agreement is hereby amended
and restated in its entirety in the form of Exhibit 2.23 attached
hereto and incorporated by reference herein.
3. Representations and Warranties. The Borrowers hereby restate and reaffirm
all representations, warranties, and covenants set forth in the Loan
Agreement and the other Loan Documents as of the date hereof.
4. Conditions Precedent to Effectiveness. This Fourth Amendment shall not be
effective until each of the following conditions precedent have been
fulfilled to the satisfaction of the Administrative Agent:
a. This Fourth Amendment shall have been duly executed and delivered by
all of the Revolving Credit Lenders and the other parties hereto, and
shall be in full force and effect and shall be in form and substance
satisfactory to the Administrative Agent and the Revolving Credit
Lenders.
b. All action on the part of the Borrowers necessary for the valid
execution, delivery and performance by the Borrowers of this Fourth
Amendment and all other documentation, instruments, and agreements to
be executed in connection herewith shall have been duly and
effectively taken and evidence thereof satisfactory to the
Administrative Agent shall have been provided to the Administrative
Agent.
c. The Lead Borrower and each other Loan Party shall each have delivered
the following to the Administrative Agent, in form and substance
satisfactory to the Administrative Agent:
i. Certificate of each Loan Party's Secretary of the due adoption,
continued effectiveness, and setting forth the text of each
corporate resolution adopted in connection with the loan
arrangement, as modified by the Fourth Amendment, and attesting
to the true signatures of each Person authorized as a signatory
to any of the Loan Documents.
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ii. Amended and Restated Swingline Note; and
iii. Amended and Restated Revolving Credit Notes in favor of each of
the Revolving Credit Lenders.
iv. Amendment to Fee Letter.
v. Opinion of counsel to the Loan Parties.
d. The Administrative Agent shall have received the consent of the
holders of the Term Loans to this Fourth Amendment, together with a
Third Amendment to Intercreditor and Subordination Agreement to
reflect changes therein necessitated hereby, each in form and
substance reasonably satisfactory to the Administrative Agent.
e. The Borrowers shall have paid to the Administrative Agent for the pro
rata account of the Revolving Credit Lenders an amendment fee in an
amount equal to $75,000.
f. All other fees due under the Loan Agreement and the Fee Letter, as
amended hereby, and all costs and expenses incurred by the Agent in
connection with the preparation and negotiation of this Fourth
Amendment and related documents (including the fees and expenses of
counsel to the Agent), shall have been paid in full.
g. No Default or Event of Default shall be then occurring.
h. The Loan Parties shall have executed and delivered to the
Administrative Agent such other documents, instruments, and agreements
as may be required by the Administrative Agent.
5. Miscellaneous.
a. This Fourth Amendment may be executed in several counterparts and by
each party on a separate counterpart, each of which, when so executed
and delivered, shall be an original, and all of which together shall
constitute one instrument.
b. This Fourth Amendment expresses the entire understanding of the
parties with respect to the transactions contemplated hereby. No prior
negotiations or discussions shall limit, modify, or otherwise affect
the provisions hereof.
c. Any determination that any provision of this Fourth Amendment or any
application hereof is invalid, illegal or unenforceable in any respect
and in any instance shall not effect the validity, legality, or
enforceability of such provision in any other instance, or the
validity, legality or enforceability of any other provisions of this
Fourth Amendment.
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d. The Loan Parties shall pay on demand all costs and expenses of the
Agent, including, without limitation, reasonable attorneys' fees in
connection with the preparation, negotiation, execution and delivery
of this Fourth Amendment.
e. This Fourth Amendment and all rights and obligations hereunder,
including matters of construction, validity, and performance, shall be
governed by the law of State of New York.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have duly executed this Fourth
Amendment as of the day and year first above written.
BORROWERS: VALUE CITY DEPARTMENT STORES LLC
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
DSW INC. (f/k/a Shonac Corporation)
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
DSW SHOE WAREHOUSE, INC.
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
GRAMEX RETAIL STORES, INC.
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
FILENE'S BASEMENT, INC.
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
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VALUE CITY OF MICHIGAN, INC.
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
GB RETAILERS, INC.
By:________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
RETAIL VENTURES JEWELRY, INC.
By:_________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
NATIONAL CITY BUSINESS CREDIT, INC.
(f/k/a National City Commercial
Finance, Inc.) (ADMINISTRATIVE AGENT,
COLLATERAL AGENT AND REVOLVING
CREDIT LENDER)
By:__________________________________
Name: _______________________________
Title: ______________________________
NATIONAL CITY BANK
(ISSUER)
By:__________________________________
Name: _______________________________
Title: ______________________________
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FLEET RETAIL GROUP, INC. (f/k/a Fleet
Retail Finance Inc.) (COLLATERAL AGENT
AND REVOLVING CREDIT LENDER)
By:__________________________________
Name: _______________________________
Title: ______________________________
▇▇▇▇▇ FARGO RETAIL FINANCE II, LLC
By:__________________________________
Name:________________________________
Title:_______________________________
THE CIT GROUP/BUSINESS CREDIT, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
AMSOUTH BANK
By:__________________________________
Name:________________________________
Title:_______________________________
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GENERAL ELECTRIC CAPITAL CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
HSBC BUSINESS CREDIT (USA), INC.
By:__________________________________
Name:________________________________
Title:_______________________________
▇▇▇▇▇▇▇ BUSINESS CREDIT CORPORATION
By:__________________________________
Name:________________________________
Title:_______________________________
LASALLE BANK NATIONAL ASSOCIATION
By:__________________________________
Name:________________________________
Title:_______________________________
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PNC BANK, National Association
By:__________________________________
Name:________________________________
Title:_______________________________
SIEMENS FINANCIAL SERVICES, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
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