Exhibit 10.5
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FIFTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT ▇▇▇▇▇ FARGO RETAIL FINANCE, LLC
758467.4
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Execution Date: February 24, 2003
Effective Date: February 24, 2003
THIS FIFTH AMENDMENT is made to the September 24, 2001 Loan and Security
Agreement ( the "LOAN AGREEMENT"), as amended by a certain First Amendment dated
October 29, 2001, a certain Second Amendment dated October 21, 2002, a certain
Third Amendment dated as of November 30, 2002, and a certain Fourth Amendment
dated February 7, 2003 between
▇▇▇▇▇ Fargo Retail Finance LLC (referred to therein as the
"Lender"), a Delaware limited liability company with offices at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and
▇▇▇▇▇*s Corp. (referred to therein in such capacity, as the " LEAD
BORROWER"), a Delaware corporation with its principal executive offices at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as agent for the following
(referred to therein individually, as a "BORROWER" and collectively, the
"BORROWERS"):
▇▇▇▇▇*s Corp.,
▇▇▇▇▇*s Operating Company,
▇▇▇▇▇*s Distribution Company,
▇▇▇▇▇*s Retail Company,
each a Delaware corporation with its principal executive offices at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
in consideration of the mutual covenants contained herein and benefits to be
derived herefrom.
PART 1. AMENDMENT OF THE LOAN AGREEMENT.
From and after the execution of this Amendment, as of the Effective Date,
the Loan Agreement is amended as follows:
A.
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ADDITIONAL COLLATERAL. Upon the execution of this Amendment, the Borrower shall
deliver to the Lender either (i) a standby letter of credit in the amount of
$4,000,000.00 naming the Lender as beneficiary, issued by a commercial bank
acceptable to the Lender and otherwise in form and substance acceptable to the
Lender, in the Lender's sole discretion, or (ii) the sum of $4,000,000.00 in
cash (the "CASH COLLATERAL") to be held as additional Collateral for the
Liabilities.
1.
If the Borrowers deliver:
a. A standby letter of credit, it shall be a so-called
"CLEAN L/C" which permits the Lender to draw thereon at
any time upon presentation of an appropriate sight
draft, without certification by the Lender of any kind;
b. The Cash Collateral, then the Cash Collateral shall
be maintained on deposit in an account in the
Lender's name, and may be applied, offset, and
otherwise liquidated by the Lender at any time,
without further notice to the Borrowers, and the
proceeds applied in reduction of the Liabilities
(including, without limitation, principal, interest,
fees, and costs and expenses) in such order as the
Lender, in its sole discretion, may determine.
2.
In either case, the proceeds of any drawing under the standby letter of
credit or the Cash Collateral may be applied in reduction of the
Liabilities (including, without limitation, principal, interest, fees, and
costs and expenses) in such order as the Lender, in its sole discretion,
may determine.
3.
In either case, the Lender shall furnish the Lead Borrower with notice
reasonably promptly after such drawing, application, offset or liquidation
of the manner in which the proceeds therefrom have been applied.
4.
The Borrowers shall execute and deliver to the Lender, or cause to be
executed and delivered to the Lender, whatever additional documents,
instruments, and agreements that the Lender may require in order to
effect, perfect, or vest the standby letter of credit or the Cash
Collateral more securely in the Lender.
B.
AVAILABILITY RESERVES. Through the close of business on Tuesday, April 15, 2003,
the Aggregate amount of all outstanding Availability Reserves shall be reduced
to an overriding aggregate amount of $1,000,000.00, after giving effect to the
$750,000.00 overriding reduction implemented in accordance with Part 2,
Paragraph III (H) of the Third Amendment to the Loan Agreement.
C.
MAXIMUM BALANCE OF REVOLVING CREDIT. Upon the satisfaction of all
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Preconditions to Effectiveness, Part 3, below, and thereafter:
1.
The temporary overadvance facility implemented pursuant to the Fourth
Amendment to the Loan Agreement shall terminate. Loans, advances, and
other financial accommodations shall only be granted in accordance with
Availability and the other terms and conditions of the Revolving Credit as
set forth in the Loan Agreement;
2.
At no time shall the outstanding balance of the Liabilities, including
existing cash-collateralized Standby L/C's in the aggregate amount of
$3,350,000 and any additional L/C's, ever exceed $11,350,000.00.
D.
TERMINATION OF REVOLVING CREDIT. The Revolving Credit and any obligation of the
Lender to make loans and advances, or to otherwise grant financial
accommodations, to or for the benefit of the Borrowers shall terminate at the
close of business on Tuesday, April 15, 2003. From and after that date and time:
1.
Unless expressly extended in writing by the Lender in the Lender's sole
discretion, all Liabilities shall be due and payable in full, without
demand, notice or protest, all of which are hereby expressly waived by the
Borrowers; PROVIDED, HOWEVER, THAT any Early Termination Fee shall be
waived by the Lender in the event that immediately upon such termination,
the Borrowers repay all of the Liabilities and discharge all of their
obligations on account of such termination (as to which, see Section
13:13-2 of the Loan Agreement) with the proceeds of a financing from a
third party which has provided the Borrowers with a financing commitment
with advance rates (inclusive of all applicable reserves used to determine
the amount available to the Borrowers under such financing commitment)
which provide the Borrowers with greater availability on the same assets
than are offered by the Lender either under the then existing Loan
Agreement or under any modification thereto proposed by the Lender;
2.
In the absence of such an agreement in writing, the Lender may, in its
discretion, either:
a. Forbear from making demand for, and accelerating
payment of the Liabilities and otherwise forbear from
enforcing the Lender's Rights and Remedies; or
b. Make demand for, and accelerate payment of the
Liabilities and otherwise commence enforcing the
Lender's Rights and Remedies at any time, or from time
to time, without further notice to the Borrowers.
E.
FINANCIAL PERFORMANCE COVENANTS. During the effective period of this
Amendment, the Borrowers shall comply with the following financial
performance covenants:
1.
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INVENTORY LEVEL. The Borrowers shall at all times, tested daily upon
receipt by the Lender of the daily Borrowing Base Certificate, maintain
Eligible Inventory in aggregate amounts (measured at Cost on a rolling
three-week average basis) not (A) less than the greater of (i) 85% of the
amounts shown on the Business Plan, or (ii) the following specified
amounts, nor (B) greater than the lesser of (i) 115% of the amounts shown
on the Business Plan, or (ii) the following specified amounts, during the
corresponding period:
Period Inventory Minimum and Maximum
--------------------------------------------------------------
Week ending March 1 Not less than $14,741,286, nor
greater than $19,944,092
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Week ending March 8 Not less than $14,472,399, nor
greater than $19,580,305
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Week ending March 15 Not less than $14,411,841, nor
greater than $19,498,373
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Week ending March 22 Not less than $14,556,220, nor
greater than $19,693,709
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Week ending March 29 Not less than $14,823,850, nor
greater than $20,055,796
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Week ending April 5 Not less than $15,131,351, nor
greater than $20,471,837
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Week ending April 12 Not less than $15,300,000, nor
greater than $20,700,000
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2.
REVENUE. The Borrowers shall at all times, tested weekly on a rolling
three-week average basis, achieve revenue in amounts not less than 85% of
the amounts projected in the Business Plan as of the end of each such
week, as follows:
Period Revenue Not less Than
-----------------------------------------------------
Week ending March 22 $2,113,503
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Week ending March 29 $2,148,331
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Week ending April 5 $2,297,975
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Period Revenue Not less Than
-----------------------------------------------------
Week ending April 12 $2,295,000
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F.
AMENDMENT FEE. In consideration of the Lender's agreement to enter into this
Amendment, upon the execution of this Amendment, the Borrowers shall pay to the
Lender an amendment fee in the amount of $80,000.00. The amendment fee shall be
fully earned upon the execution of this amendment, shall be retained by the
Lender under all circumstances, and shall not be applied in reduction of any of
the other Liabilities.
PART 2. UPDATED BUSINESS PLAN
On or before March 1, 2003, the Borrowers shall present to the Lender (i)
an updated 13-week cash flow projection for the succeeding 13 weeks, and (ii) a
business plan with respect to the Borrowers' projected business operations for
the succeeding 12 months (collectively, the "BUSINESS PLAN"). The Borrowers
warrant and represent to the Lender that the Business Plan shall represent the
Borrowers' good faith and reasonable estimation of the projected financial
performance of the Borrowers' business for the periods set forth therein and
will be based upon estimates and assumptions stated therein, all of which the
Borrowers shall believe to be reasonable and fair in light of conditions and
facts known to management of the Borrowers as of the date of the preparation
thereof (it being understood and acknowledged by the Lender that such financial
performance as it relates to future events is not to be viewed as
representations or warranties that such events will occur, and that actual
results may differ from such projected financial performance).
G.
Upon receipt of the Business Plan, the Lender and the Borrowers shall endeavor
to determine whether, and on what terms and conditions, the Loan Agreement may
be amended so as to facilitate continued borrowings thereunder by the Borrowers.
In this regard, the Borrowers acknowledge and agree that:
1.
No terms and conditions have yet to be agreed upon by the Lender;
2.
The terms and conditions of any continued loan arrangement may be
substantially different than those contained in the Loan Agreement at this
time;
3.
There is no commitment or obligation of the Lender to agree to any
terms and conditions for the amendment and extension of the Loan
Agreement; and
4.
If the Lender and the Borrowers do reach agreement in principle with
respect to
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an amendment and extension of the Loan Agreement, no such agreement to so
amend and extend the Loan Agreement shall take effect unless and until all
necessary internal approvals have been obtained by the Lender and an
agreement in writing has been executed on behalf of the Lender and the
Borrowers.
H.
If the Lender and the Borrower are unable to reach a mutually acceptable
agreement with respect to the amendment and extension of the Loan Agreement, or
if the Lender determines, in the Lender's sole discretion, not to undertake any
such agreement, then the Borrowers shall undertake to immediately repay all
Liabilities in full. Without limiting the ability of the Lender to exercise its
rights and remedies as provided in Part 1, Paragraph (A)(1)(b), above, in all
events and under all circumstances, unless extended in writing by the Lender, in
the Lender's sole discretion, all Liabilities shall be paid in full on or before
the close of business on Wednesday, May 15, 2003.
PART 3. PRECONDITIONS TO EFFECTIVENESS:
This Amendment shall not take effect unless and until each and all of the
following have been consummated, all on terms and conditions acceptable to the
Lender, in the Lender's sole and exclusive discretion:
1. The Borrowers have completed the transaction involving the (i)
formation of ▇▇▇▇▇*s Brand, LLC as a single purpose,
bankruptcy remote, wholly-owned subsidiary of the Lead
Borrower, and (ii) the execution by ▇▇▇▇▇*s Brand, LLC of a
"MASTER LICENSE AGREEMENT" with respect to certain of the
Borrowers' trademarks, tradenames, and other intellectual
property assets;
2. The receipt by the Borrowers of the sum of $16,500,000 as
the "Advance" under the Master License Agreement; and
3. The execution and delivery to the Lender of each and all of
the documents, instruments, and agreements that the Lender may
require in connection with the foregoing.
4. Upon satisfaction of the conditions set forth in Paragraphs 1
through 3, above, the Lender shall execute and deliver to the
Borrowers a partial release of its security interest in the
Borrowers' trademarks, tradenames, and other intellectual
property assets which are being transferred to ▇▇▇▇▇*s Brand,
LLC in connection with the foregoing.
PART 4. GENERAL PROVISIONS:
I..
The Borrowers and each Guarantor, by executing this Amendment where indicated
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below, hereby ratify, confirm, and reaffirm all and singular the terms and
conditions of the Loan Documents. The Borrowers and Guarantors further
acknowledge and agree that, except as specifically modified in this Amendment,
all terms and conditions of the Loan Documents shall remain in full force and
effect. Further, the Borrowers acknowledge and agree that any failure of the
Borrowers to perform in accordance with the terms and conditions of this
Amendment shall constitute an Event of Default under the Loan Agreement.
II..
The Borrowers represent and warrant that there is not presently pending or
threatened by or against any of the Borrowers any suit, action, proceeding, or
investigation which, if determined adversely to any of the Borrowers, could
reasonably be expected to have a Material Adverse Effect.
III..
The Borrowers acknowledge and agree that there is no basis nor set of facts on
which any amount (or any portion thereof) owed by the Borrowers or any Guarantor
under any Loan Document could be reduced, offset, waived, or forgiven, by
rescission or otherwise; nor is there any claim, counterclaim, offset, or
defense (or other right, remedy, or basis having a similar effect) available to
any of the Borrowers or to any Guarantor with regard thereto; nor is there any
basis on which the terms and conditions of any of the Liabilities could be
claimed to be other than as stated on the written instruments which evidence
such Liabilities.
IV..
The Borrowers and each Guarantor, by executing this Amendment where indicated
below, hereby acknowledge and agree that they have no offsets, defenses, claims,
or counterclaims against the Lender or the Lender's officers, directors,
employees, attorneys, representatives, parent, affiliates, predecessors,
successors, and assigns with respect to the Liabilities or otherwise, and that
if the Borrowers now have, or ever did have, any offsets, defenses, claims, or
counterclaims against the Lender or the Lender's officers, directors, employees,
attorneys, representatives, parent, affiliates, predecessors, successors, and
assigns, whether known or unknown, at law or in equity, from the beginning of
the world through this date and through the time of execution of this Amendment,
all of them are hereby expressly WAIVED, and the Borrowers each hereby RELEASE
the Lender and the Lender's officers, directors, employees, attorneys,
representatives, parent, affiliates, predecessors, successors, and assigns from
any liability therefor.
V..
The Borrowers and the Guarantors shall, from and after the execution of this
Amendment, execute and deliver to the Lender whatever additional documents,
instruments, and agreements that the Lender reasonably may require in order to
vest or perfect the Loan Documents and the Collateral granted therein more
securely in the Lender and to otherwise give effect to the terms and conditions
of this Amendment
VI..
The Borrowers agree that upon the filing of any Petition for Relief by or
against any one or more of the Borrowers under the United States Bankruptcy
Code, the Lender shall be
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entitled to immediate and complete relief from the automatic stay, and the
Lender shall be permitted to proceed to protect and enforce its contractual and
state law rights and remedies. The Borrowers hereby expressly assent to any
motion filed by the Lender seeking relief from the automatic stay. The Borrowers
further hereby expressly WAIVE the protections afforded under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code with respect to the Lender.
VII..
The Borrowers shall pay on demand all reasonable costs and expenses of the
Lender, including without limitation, reasonable attorneys' fees heretofore or
hereafter incurred by the Lender in connection with the loan arrangement
maintained with the Borrowers, the Loan Agreement and any of the other Loan
Documents, or in connection with the preparation, negotiation, execution, and
delivery of this Fifth Amendment. The Lender is hereby authorized to pay all
those costs and expenses by making advances under the Revolving Credit from time
to time, whether or not sufficient Availability exists therefor, and whether or
not the Lender is otherwise making loans and advances to the Borrowers at that
time.
VIII..
This Amendment shall be binding upon the Borrowers and the Borrowers' respective
employees, representatives, successors, and assigns, and shall inure to the
benefit of the Lender and the Lender's successors and assigns. This Amendment
and all documents, instruments, and agreements executed in connection herewith
incorporate all of the discussions and negotiations between the Borrowers and
the Lender, either expressed or implied, concerning the matters included herein
and in such other documents, instruments and agreements, any statute, custom, or
usage to the contrary notwithstanding. No such discussions or negotiations shall
limit, modify, or otherwise affect the provisions hereof. No modification,
amendment, or waiver of any provision of this Amendment, or any provision of any
other document, instrument, or agreement between the Borrowers and the Lender
shall be effective unless executed in writing by the party to be charged with
such modification, amendment, or waiver, and if such party be the Lender, then
by a duly authorized officer thereof.
IX..
Terms used in this Fifth Amendment which are defined in the Loan Agreement are
used as so defined.
X..
This Fifth 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.
XI..
In connection with the interpretation of this Amendment and all other documents,
instruments, and agreements incidental hereto:
A.
All rights and obligations hereunder and thereunder, including matters of
construction, validity, and performance, shall be governed by and construed in
accordance with the law of the Commonwealth of Massachusetts and are intended to
take effect as sealed
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instruments.
B.
The captions of this Amendment are for convenience purposes only, and shall not
be used in construing the intent of the Lender and the Borrowers under this
Amendment.
C.
In the event of any inconsistency between the provisions of this Amendment and
any other document, instrument, or agreement entered into by and between the
Lender and the Borrowers, the provisions of this Amendment shall govern and
control.
D.
The Lender and the Borrowers have prepared this Amendment and all documents,
instruments, and agreements incidental hereto with the aid and assistance of
their respective counsel. Accordingly, all of them shall be deemed to have been
drafted by the Lender and the Borrowers and shall not be construed against
either the Lender or the Borrowers.
E.
Any determination that any provision or application of this Amendment is
invalid, illegal, or unenforceable in any respect, or in any instance, shall not
affect the validity, legality, or enforceability of any such provision in any
other instance, or the validity, legality, or enforceability of any other
provision of this Amendment.
F.
The Borrowers warrant and represent to the Lender that the Borrowers:
1.
Have read and understand all of the terms and conditions of this
Amendment;
2.
Intend to be bound by the terms and conditions of this Amendment;
3.
Are executing this Amendment freely and voluntarily, without duress, after
consultation with independent counsel of their own selection.
[Signatures follow]
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▇▇▇▇▇*S CORP.
(" LEAD BORROWER")
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Chief Operating Officer
▇▇▇▇▇*S CORP.
▇▇▇▇▇*S OPERATING COMPANY
▇▇▇▇▇*S DISTRIBUTION COMPANY
▇▇▇▇▇*S RETAIL COMPANY
"BORROWERS":
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Senior Vice President of Finance
▇▇▇▇▇ FARGO RETAIL FINANCE LLC
("LENDER")
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Vice President
Acknowledged and Agreed:
("GUARANTORS")
iTurf Finance Company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President of Finance
▇▇▇▇▇*S Group, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President of Finance
▇▇▇▇▇*S Properties, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President of Finance
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