EXHIBIT 10.2(e)
January 28, 1997
Venture Stores, Inc.
0000 Xxxx Xxxxx Xxxx
X'Xxxxxx, Xxxxxxxx 00000-0000
Re: Third Amendment to Loan and Security Agreement (this "Third
Amendment")
Ladies/Gentlemen:
Reference is hereby made to that certain Loan and Security
Agreement, as amended prior to the date hereof (the "Agreement"),
dated as of June 28, 1996 and executed by and among Venture
Stores, Inc. (the "Borrower"), the financial institutions party
thereto (collectively, the "Lenders") and BankAmerica Business
Credit, Inc., as agent for the Lenders (in such capacity as
agent, the "Agent"). Certain capitalized terms used herein and
not otherwise defined shall have the meanings attributed to them
in the Agreement.
For good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Agent, the Lenders and the
Borrower hereby agree as follows:
1. The definition of "Maximum Revolver Amount" appearing in
Section 1.1 of the Agreement is hereby amended and restated
to read in its entirety as follows:
""Maximum Revolver Amount" means, at any time,
(a) the lesser of (1) the Revolver Facility; or (2) the
Borrowing Base at such time; minus (b) the sum of (i)
reserves for accrued interest on the Obligations; (ii)
reserves in the amount equal to two (2) months rent at
any premises leased by the Borrower where any Eligible
Inventory is located, unless the Borrower has obtained
a landlord's waiver reasonably acceptable to the Agent
with respect to such premises; (iii) reserves covering
equipment excluded from the definition of "Equipment"
pursuant to clause (c) of the last sentence of such
definition; and (iv) all other reserves which the Agent
reasonably deems necessary or desirable to maintain
with respect to the Borrower's account, including,
without limitation, any reserves for any amounts which
the Agent or any Lender may be obligated to pay in the
future for the account of the Borrower."
2. The definition of "Maximum Revolver Amount" appearing in
Section 1.1 of the Agreement permits the Agent to establish
certain reserves to be deducted from the amount otherwise
available to be advanced to the Borrower under the
Agreement. On the Closing Date the Agent established a
reserve in the amount of $2,500,000 relating to the
Borrower's equipment located at its property in O'Fallon,
Missouri. The Agent and the Lenders hereby agree, and the
Borrower hereby acknowledges, that effective as of the date
hereof such reserve in the amount of $2,500,000 is hereby
eliminated, provided, however, that the elimination of such
reserve shall not have any effect upon any other reserves
established by the Agent and in effect on the date hereof
(after giving effect to this Amendment),and also shall not
have any effect on the ability of the Agent to establish
reserves under clauses (i) through (iv) of the definition of
"Maximum Revolver Amount" after the date hereof.
3. The Agent, the Lenders and the Borrower have received the
most recently completed appraisal of the Borrower's
Inventory, which appraisal is required to be delivered
pursuant to the provisions of Section 5.5 of the Agreement.
The Agent, the Lenders and the Borrower hereby (i)
acknowledge and agree that such appraisal and the
conclusions appearing therein are acceptable to them, and
(b) further acknowledge and agree that, as a result of such
appraisal, the GOB Percentage will be 54.28% effective as of
the date hereof and continuing until such time as another
appraisal of the Borrower's Inventory is delivered pursuant
to the requirements of said Section 5.5.
4. The Borrower hereby acknowledges that the Agent intends to
engage KPMG Peat Marwick LLP ("Peat Marwick") as a
consultant to the Agent and the Lenders in connection with
the Agreement. The Borrower hereby agrees to cooperate
fully with the Agent and Peat Marwick (and any other
consultant engaged by or on behalf of the Agent and the
Lenders), and to furnish, and to cause its auditors and
accountants to furnish promptly to the Agent and Peat
Marwick (and any such other consultant) any and all such
information as any of them may reasonably request. The
Borrower hereby further agrees that the Agent and each
Lender may provide to Peat Marwick (and any such other
consultant) any and all information held by the Agent or
such Lender regarding the Borrower and its condition
(financial or otherwise).
5. Section 14.6 of the Agreement is hereby amended by adding
the word "and" and the following new "clause (i)" to the end
of the first sentence thereof, immediately following "clause
(h)" of said Section 14.6, which new "clause (i)" shall read
in its entirety as follows:
"(i) fees and expenses of any and all consultants
(including without limitation KPMG Peat Marwick LLP)
engaged by or on behalf of the Agent in connection with
this Agreement provided that the maximum aggregate
amount that the Borrower shall be required to pay to
the Agent pursuant to the terms of this clause (i)
shall be $150,000"
6. The Borrower hereby agrees that is shall, on or before
February 24, 1997, execute and deliver to the agent
mortgages, deeds of trust or other similar real estate
collateral security instruments, together with any Uniform
Commercial Code financing statements relating thereto as may
be requested by the Agent or its counsel, all of which items
shall be in form and substance satisfactory to the Agent and
its counsel. The Borrower shall, pursuant to such
mortgages, deeds of trust and other instruments, xxxxx x
xxxx on and security interest in the real estate listed on
Schedule A hereto and all property and other interests
related thereto, which lien and security interest shall be
in favor of the Agent, for the ratable benefit of the Agent
and the Lenders, as security for all Obligations. The
Borrower further agrees to execute and deliver, or cause to
be executed and delivered, to the Agent such documents and
agreements, and to take or cause to be taken such actions,
as the Agent may from time to time, reasonably request to
carry out the terms and conditions of this paragraph 6. Any
failure by the Borrower to comply with the provisions of
this paragraph 6 shall constitute an Event of Default under
the Agreement.
7. Article 8 of the Agreement is hereby amended by the addition
of a new Section 8.24 thereto, which new Section 8.24 shall
read in its entirety as follows:
"8.24 Minimum Availability. The Borrower shall
not permit Availability to be less than $1,000,000 at
any time."
Except to the extent expressly modified in paragraphs numbered 1
through 7 above, the Agreement and the other Loan Documents
remain in full force and effect and are each hereby ratified and
confirmed. Please evidence your agreement with the terms of this
Third Amendment by signing in the space below. This Third
Amendment may be executed by one or more of the parties hereto on
any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument. This third Amendment shall become effective in
accordance with its terms upon its execution by the Agent, all
Lenders and the Borrower, whereupon each reference to the
Agreement in the Agreement and in any and all other Loan
Documents shall, except where the context otherwise requires, be
deemed a reference to the Agreement as amended by this Third
Amendment.
Sincerely,
BANKAMERICA BUSINESS CREDIT, INC.,
as the Agent
By:\s\Xxxxxxx Xxx
Name:Xxxxxxx Xxx
Title:Vice President
BANKAMERICA BUSINESS CREDIT, INC.,
as a Lender
By:\s\Xxxxxxx Xxx
Name:Xxxxxxx Xxx
Title:Vice President
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By:\s\Xxxxx X. Xxxxxxx
Name:Xxxxx X. Xxxxxxx
Title:Assistant Secretary
CONGRESS FINANCIAL CORPORATION,
as a Lender
By:\s\Xxxxxx X. Xxxxxx
Name:Xxxxxx X. Xxxxxx
Title:Vice President
LA SALLE BUSINESS CREDIT, INC.,
as a Lender
By:\s\Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title:Asset Based Lending Officer
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By:\s\Xxxxxxx X. Xxx Xxxx
Name:Xxxxxxx X. Xxx Xxxx
Title:Duly Authorized Signatory
ACCEPTED AND AGREED:
VENTURE STORES, INC.
By:\s\Xxxxxxx Xxxx
Name:Xxxxxxx Xxxx
Title:Executive Vice President
Date:January 29, 1997
SCHEDULE A TO THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
Real Estate
1. East Indy - V66
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
2. Skillman - V67
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
3. Corsicana D.C. - V99
0000 X. Xxxxxxxx 00
Xxxxxxxxx, XX 00000-0000
4. Willowbrook - V121/164
00000 Xxxxx Xxx. 000
Xxxxxxx, XX 00000-0000
5. Edmond - V137
0000 X. Xxxxxxxx Xx.
Xxxxxx, XX 00000-0000
6. Elston - V168
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
7. Photo Studio - V90
0000 X. Xxxxx Xxxx
X'Xxxxxx, XX 00000
