EXHIBIT 10.1
FIRST AMENDMENT TO
AGREEMENT TO ACQUIRE LEASES AND LEASE
PROPERTIES
This First Amendment to Agreement to
Acquire Leases and Lease Properties (this “Amendment”)
dated February 15, 2008 (the “Effective Date”) by
and between VALUE CITY DEPARTMENT STORES LLC, an Ohio limited
liability company and successor by merger to Value City Department
Stores, Inc., having an address of 3241 Westerville Road, Columbus,
Ohio 43224 (“VCDS”), GB RETAILERS, INC., a Delaware
corporation having an address of 3241 Westerville Road, Columbus,
Ohio 43224 (“GB” and collectively with VCDS, the
“VCDS Tenants”), SCHOTTENSTEIN STORES CORPORATION, an
Ohio corporation having an address of 1800 Moler Road, Columbus,
Ohio 43207 (“SSC”), TRUSS REALTY CO., an Ohio limited
partnership having an address of 1800 Moler Road, Columbus, Ohio
43207 (“Truss”), VALLEY FAIR CORPORATION, a Delaware
corporation having an address of 1800 Moler Road, Columbus, Ohio
43207 (“Valley Fair”), EAST MAIN CENTERS-I LLC, an Ohio
limited liability company having an address of 1800 Moler Road,
Columbus, Ohio 43207 (“EMC”), and INDEPENDENCE LIMITED
LIABILITY COMPANY, an Ohio limited liability company having an
address of 1800 Moler Road, Columbus, Ohio 43207
(“Independence” and together with SSC, Truss, Valley
Fair and EMC, the “SSC Landlords”); RETAIL VENTURES,
INC., an Ohio corporation having an address of 3241 Westerville
Road, Columbus, Ohio 43224 (“RVI”) (the VCDS Tenants,
the SSC Landlords, and RVI, each being a “VCDS Entity”
and collectively, the “VCDS Entities”); and BURLINGTON
COAT FACTORY WAREHOUSE CORPORATION, a Delaware corporation having
an address of 1830 Route 30, Burlington, New Jersey 08016
(“BURLINGTON”), and the affiliate entities of
Burlington set forth in Exhibit A to the Agreement (as
defined below) (collectively with BURLINGTON, the “BURLINGTON
Entities”).
R E C
I T A L S
On October 3, the parties hereto
entered into an Agreement to Acquire Leases and Lease Properties
(the “Agreement”).
Pursuant to Section 3 of the
Agreement, BURLINGTON is required to notify VCDS of (i) those
Leases which it elects to acquire by assignment, (ii) those
Leased Premises with respect to which it desires to enter into new
leases with the SSC Landlords, (iii) those Leased Premises
with respect to which it desires to sublease from SSC or VCDS,
(iv) those Leases and Leased Premises it elects not to acquire
by assignment, lease or sublease, and (v) those Leases as to
which it elects to extend the Consent Date (the “BURLINGTON
Elections”).
On December 19, 2008, BURLINGTON
provided notice to the VCDS Entities of the BURLINGTON
Election.
The parties desire to amend the
Agreement to reflect the BURLINGTON Election, extend the Consent
Date for certain Leases, and make conforming changes.
Agreement
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. All capitalized terms used
herein, which are not specifically defined herein, shall have the
meaning ascribed to those terms in the Agreement.
2. BURLINGTON acknowledges and
agrees that it has waived all contingencies with respect to the
Leases set forth on Exhibit 1 hereto and is prepared to
proceed to Closing following the completion of the GOB Sales with
respect to the such leases.
3. In reliance upon
BURLINGTON’s waiver of contingencies in the preceding
paragraph, SSC hereby waives all contingencies with respect to
SSC Leases 110 and 145 and SSC Assigned Lease 136
.
4. Pursuant to its rights under
Section 3(a) of the Agreement, BURLINGTON has elected to cause the
Lease for Store No. 153 to become a BURLINGTON
Rejection Lease. Further, such Lease for Store No. 153 shall
be deemed a Removed Lease pursuant to Section 3(c) of the
Agreement. Such Lease is hereby removed from the list of Leases in
Exhibit B to the Agreement and the list of Assignment
Leases in Exhibit E to the Agreement.
5. Pursuant to its rights under
Section 3(a) of the Agreement, BURLINGTON has elected to cause the
Lease for Store No. 102 to become a BURLINGTON
Rejection Lease. Further, such Lease for Store No. 102 shall
be deemed a Removed Lease pursuant to Section 3(c) of the
Agreement. Such Lease is hereby removed from the list of Leases in
Exhibit B to the Agreement.
6. The Closing with respect to
the SSC Leases 110 and 145 shall occur on or before
April 1, 2008 in accordance with the Agreement.
7. The Closing with respect to
SSC Assigned Lease 136 shall occur on or before April 1,
2008 in accordance with the Agreement.
8. The Closing with respect to
Assignment Leases 107, 144, 185 and 196 shall occur on or
before February 15, 2008 in accordance with the
Agreement.
9. The Closing with respect to
Assignment Leases 167, 181 and 425 shall occur on or before
March 15, 2008 in accordance with the Agreement.
10. The Closing with respect to
Assignment Lease 198 shall occur on or befo
