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Exhibit
10.4.1
FOURTH AMENDMENT
TO
CREDIT
AGREEMENT
This Fourth Amendment to
Credit Agreement (the “ Fourth Amendment ”) is
made as of the 15 th day
of January, 2008 by and among
SAKS INCORPORATED, a
corporation organized under the laws of the State of Tennessee,
having a place of business at 12 East 49th Street, 18th Floor, New
York, NY 10017;
the LENDERS party hereto;
and
BANK OF AMERICA, N.A., as
successor in interest to Fleet Retail Group, LLC (f/k/a Fleet
Retail Group, Inc.), as Agent for the Lenders, a national banking
association, having a place of business at 100 Federal Street,
Boston, Massachusetts 02110; and
CITICORP NORTH AMERICA, INC.,
as Syndication Agent; and
WACHOVIA BANK, NATIONAL
ASSOCIATION, JPMORGAN CHASE BANK, N.A. and GENERAL ELECTRIC CAPITAL
CORPORATION, as Co-Documentation Agents
in consideration of the mutual covenants
herein contained and benefits to be derived herefrom.
WITNESSETH
WHEREAS, the Borrower, the
Agent, the Syndication Agent, the Co-Documentation Agents and the
Lenders have entered into an Amended and Restated Credit Agreement
dated as of November 26, 2003 (as amended and in effect, the
“Credit Agreement”); and
WHEREAS, the Borrower, the
Agent, the Lenders, the Syndication Agent and the Co-Documentation
Agents have agreed to amend certain provisions of the Credit
Agreement as set forth herein.
NOW THEREFORE, it is hereby
agreed as follows:
| 1. |
Definitions . All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the
Credit Agreement. |
| 2. |
Amendment to Article 5 of the Credit Agreement .
Section 5.2(e) is hereby deleted in its entirety and the
following substituted in its stead: |
“(e) As soon as
available, but in any event not later than forty-five
(45) days after the close of each Fiscal Year, annual
forecasts (to include forecasted consolidated balance sheets,
income statements and statements of cash flow) for the Borrower and
its Consolidated Subsidiaries as at the end of and for each fiscal
quarter of the current Fiscal Year.”
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| 3. |
Amendments to Article 7 of the Credit Agreement . The
provisions of Article 7 of the Credit Agreement are hereby amended
as follows: |
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a. |
Section 7.4(b) of the Credit Agreement is hereby deleted
in its entirety and the following substituted in its
stead: |
“(b) The Borrower
shall, and shall cause each Credit Party and other Material
Subsidiary to, permit representatives and independent contractors
of the Agent, and any Lender electing to accompany such
representatives or independent contractors at its own cost (other
than CNAI, whose expenses shall be paid by the Borrower, subject to
the provisions of Section 13.7 hereof), to (i) visit and
inspect any of its properties (subject to the rights of third party
tenants in possession), to conduct audits, to examine its
corporate, financial and operating records, and make copies thereof
or abstracts therefrom and to discuss its affairs, finances and
accounts with its directors, officers and independent public
accountants, at such reasonable times during normal business hours
and as soon as may be reasonably desired, upon reasonable advance
notice to the Borrower, all at the expense of the Borrower to the
extent conducted by the Agent, its representatives or independent
contractors; provided , Agent agrees that it will not
conduct any such audit and examination described in this clause
(i) above unless either an Event of Default exists or the
aggregate outstanding amount of Revolving Loans and Letters of
Credit exceed $125,000,000 at any time; provided further
that, in the event that the aggregate outstanding amount of
Revolving Loans and Letters of Credit exceed $125,000,000 at any
time in any twelve month period, the Agent may, in its discretion,
conduct one (1) such audit and examination described in this
clause (i) above in such twelve month period, which audit and
examination shall be paid for by the Borrower, and
(ii) conduct appraisals of Collateral, independently of or in
conjunction with the visits, inspections, audits and examinations
provided for in clause (i) above, all at the expense of the
Borrower; provided , Agent agrees that it will not conduct
any such appraisal described in this clause (ii) above unless
either an Event of Default exists or the aggregate outstanding
amount of Revolving Loans and Letters of Credit exceed $125,000,000
at any time; provided further that, in the event that the
aggregate outstanding amount of Revolving Loans and Letters of
Credit exceed $125,000,000 at any time in any twelve month period,
the Agent may, in its discretion, at any time in any twelve month
period, conduct one (1) such appraisal described in this
clause (ii) above in such twelve month period which appraisal
shall be paid for by the Borrower. Notwithstanding any limitations
contained in clauses (i) and (ii) above, (A) when an
Event of Default exists, the Agent or any Lender may undertake as
many such audits and appraisals as the Agent, in its discretion,
determines, at the expense of the Borrower at any time during
normal business hours and without advance notice so
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long as the exercise of such
rights shall not unreasonably disrupt the physical operation of
retail stores of the Borrower or applicable Material Subsidiary, as
the case may be, and (B) if an Event of Default does not
exist, the Agent may, in its discretion, u
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