EX-10.17.7 Fourth Amendment to Loan Agreement

EX-10.17.7 6 c80714a5exv10w17w7.txt EX-10.17.7 FOURTH AMENDMENT TO LOAN AGREEMENT EXHIBIT 10.17.7 FOURTH AMENDMENT AGREEMENT - AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT This FOURTH AMENDMENT AGREEMENT (this "FOURTH AMENDMENT") is made as of this 28 day of January, 2004 by and among FLEET RETAIL FINANCE INC. (the "LENDER"), a Delaware corporation with offices at 40 Broad Street, Boston, Massachusetts 02109, and BAKERS FOOTWEAR GROUP, INC., f/k/a Weiss and Neuman Shoe Co. (the "BORROWER"), a Missouri corporation with its principal executive offices at 2815 Scott Avenue, Suite C, St. Louis, Missouri 63103, in consideration of the mutual covenants contained herein and benefits to be derived herefrom, WITNESSETH: A. Reference is made to that certain Amended and Restated Loan and Security Agreement (as amended to date, the "LOAN AGREEMENT") dated as of June 11, 2002 between the Borrower and the Lender. B. The Borrower has filed a registration statement on Form S-1 (No. 333-86322, as amended from time to time, the "EXISTING REGISTRATION STATEMENT") with the Securities and Exchange Commission under the Securities Act, which Existing Registration Statement has not yet been declared effective by the SEC. The Borrower anticipates that the Existing Registration Statement will be declared effective and the IPO will be consummated on or before February 29, 2004. C. The Borrower has requested that the Lender agree to amend the Loan Agreement in certain respects in anticipation of the IPO and the Lender has agreed to do so on the terms and conditions set forth herein. Accordingly, the Borrower and the Lender agree as follows: 1. DEFINITIONS. Terms defined in the Recitals shall be incorporated herein as therein defined. Capitalized terms and used herein and not otherwise defined herein shall have meanings assigned to such terms in the Loan Agreement. 2. AMENDMENT TO LOAN AGREEMENT. Clause B of the definition "Change in Control" shall be deleted from Article I of the Loan Agreement and the following shall be substituted therefor: "B. On and after the occurrence of the IPO: (i) The purchase or other acquisition by any Person or group of Persons (within the meaning of Rule 13d-3 or Rule 14d of the Securities Exchange Act of 1934, as amended) (excluding, for this purpose, the Borrower or its subsidiaries or 1 any employee benefit plan of the Borrower or its subsidiaries) of beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange act of 1934, as amended) of thirty percent (30%) or more of either the then-outstanding shares of the Borrower's common stock or the combined voting power of the Borrower's then-outstanding voting securities entitled to vote generally in the election of directors; or (ii) A reorganization, merger, consolidation, sale of all or substantially all of the assets of the Borrower, or similar transaction, in each case with respect to which Persons who were the stockholders of the Borrower immediately prior to such reorganization, merger or consolidation would not immediately thereafter own more than 50% of, respectively, the Borrower's common stock and the combined voting power entitled to vote generally in the election of directors of the reorganized, merged, consolidated or successor corporation's then-outstanding voting securities; or (iii) During any period of two (2) consecutive years, individuals who at the beginning of such period constituted the board of directors of the Borrower (together with any directors whose election or appointment by the board of directors of the Borrower or whose nomination for election by the shareholders of the Borrower was approved by vote of a majority of the directors then still in office who are either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors of the Borrower then in office." 3. ADDITIONAL ACKNOWLEDGEMENTS AND REPRESENTATIONS. As an inducement for the Lender to execute this Fourth Amendment, the Borrower hereby represents and warrants that as of the date hereof no Suspension Event has occurred and is continuing. 4. RATIFICATION OF LOAN DOCUMENTS; NO CLAIMS AGAINST LENDER. Except as provided herein, all terms and conditions of the Loan Agreement and of the other Loan Documents remain in full force and effect. Each of the Borrower and the Guarantor hereby ratifies, confirms, and re-affirms all and singular the terms and conditions, including execution and delivery, of the Loan Documents. There is no basis nor set of facts on which any amount (or any portion thereof) owed by the Borrower or the Guarantor to the Lender could be reduced, offset, waived, or forgiven, by rescission or otherwise; nor is there any claim, counterclaim, off set, or defense (or other right, remedy, or basis having a similar effect) available to the Borrower or to the Guarantor with regard to the respective Liabilities of the Borrower and the Guarantor to the Lender; nor is there any basis on which the terms and conditions of any of the respective Liabilities of the Borrower and of the Guarantor to the Lender could be claimed to be other than as stated on the written instruments which evidence such Liabilities. To the extent that the Borrower or the Guarantor has (or ever had) any such claims against the Lender, each hereby affirmatively WAIVES and RELEASES same. 5. CONDITIONS TO EFFECTIVENESS. This Fourth Amendment shall not be effective until each of the following conditions precedent have been fulfilled to the satisfaction of the Lender: (a) This Fourth Amendment shall have been duly executed and delivered by the respective parties hereto, shall be in full force and effect and shall be in form and substance satisfactory to the Lender; (b) All action on the part of the Borrower necessary for the valid execution, delivery and performance by the Borrower of this Fourth Amendment shall have been duly and effectively taken and evidence thereof satisfactory to the Lender shall have been provided to the Lender; ..2.. (c) The Borrower shall have paid to the Lender all fees and expenses then due and owing pursuant to the Loan Agreement; and (d) The Borrower shall have provided such additional instruments and documents to the Lender as the Lender and Lender's counsel may have reasonably requested, each in form and substance satisfactory to the Lender. 6. 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 provisions of this Fourth Amendment or any application hereof is invalid, illegal, or unenforceable in any respect and in any instance shall not affect 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. (d) The Borrower shall pay on demand all reasonable costs and expenses of the Lender, including, without limitation, reasonable attorneys' fees in connection with the preparation, negotiation, execution, and delivery of this Fourth Amendment. (e) THIS FOURTH AMENDMENT SHALL BE CONSTRUED, GOVERNED, AND ENFORCED PURSUANT TO THE INTERNAL LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL TAKE EFFECT AS SEALED INSTRUMENT. [SPACE INTENTIONALLY LEFT BLANK] ..3.. IN WITNESS WHEREOF, the parties have hereunto caused this Fourth Amendment to be executed and their seals to be hereto affixed as of the date first above written. BAKERS FOOTWEAR GROUP, INC., F/K/A/ WEISS AND NEUMAN SHOE CO. By /s/ PETER EDISON ----------------------- Name Peter Edison --------------------- Title Chairman/CEO -------------------- FLEET RETAIL FINANCE INC. By /s/ JAMES J. WARD ----------------------- Name James J. Ward --------------------- Title Managing Director -------------------- /S-1/ The undersigned Guarantor hereby (i) consents to the terms and conditions of this Fourth Amendment and hereby joins in the acknowledgements and agreements set forth in this Fourth Amendment, all as of the date first above written, (ii) ratifies and confirms the warranties and representations set forth in the Guaranty, and acknowledges that pursuant to the terms of the Guaranty, the Guarantor previously guaranteed the payment of the Liabilities of the Borrower to the Lender to the extent set forth in such Guaranty, that this acknowledgment is being executed as a confirmation of the Guarantor's obligations to Lender under the Guaranty and that, subject to the limitations contained in the Guaranty, the Guarantor shall remain liable for all of the Liabilities, now existing or hereafter arising, whether or not any similar confirmation letter is executed in the future and (iii) acknowledges and agrees that he has no offsets, defenses, or counterclaims against the Lender with respect to his obligations under the Guaranty or otherwise, and to the extent that the Guarantor has any such offsets, defenses, or counterclaims, the Guarantor hereby WAIVES and RELEASES the same. /s/ Peter Edison ---------------------- PETER EDISON