Exhibit 10.1
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This SIXTH AMENDMENT, dated as of October 31, 2006, (this "Amendment")
is made in reference to that certain the Loan and Security Agreement, dated as
of August 23, 2000, by and between IPARTY RETAIL STORES CORP. ("iParty Retail"
or a "Borrower"), a Delaware corporation, and IPARTY CORP., a Delaware
corporation ( "iParty Corp." or a "Borrower", and together with iParty Retail,
the "Borrowers"), and ▇▇▇▇▇ FARGO RETAIL FINANCE II, LLC, a Delaware limited
liability company (the "Lender"), as amended by that First Amendment to Loan and
Security Agreement dated as of May 23, 2002 by and between the Borrowers and the
Lender, as amended by that Second Amendment to Loan and Security Agreement dated
as of January 2, 2004 by and between the Borrowers and the Lender, and as
amended by that Third Amendment to Loan and Security Agreement dated as of April
27, 2005 by and between the Borrowers and the Lender, as amended by that Fourth
Amendment to Loan and Security Agreement dated as of January 17, 2006, and as
amended by that Consent and Fifth Amendment to Loan and Security Agreement dated
as of August 7, 2006 (as amended from time to time, the "Loan Agreement"). All
capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Loan Agreement.
Borrowers have requested that the Lender extend the Term Loan Maturity
Date and the Lender has agreed to the Borrowers' request on the terms contained
therein.
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the undersigned hereby agrees as follows:
1. Amendment. The Loan Agreement is hereby amended to delete the
definition of "Term Loan Maturity Date" and substitute the following therefor:
"Term Loan Maturity Date" shall mean January 2, 2007, or if such day is not a
Business Day, the next Business Day
2. Acknowledgement of Liabilities by Borrower. The Borrowers confirm
and agree that (a) all representations and warranties contained in the Loan
Agreement and in the other Loan Documents are on the date hereof true and
correct in all material respects, and (b) it is unconditionally liable for the
punctual and full payment of all Liabilities, including, without limitation, all
reasonable charges, fees, expenses and costs (including attorneys' fees and
expenses) under the Loan Documents, and that the Borrowers have no defenses,
counterclaims or setoffs with respect to full, complete and timely payment of
all Liabilities.
3. Ratification of Financing. The Borrowers confirm that the Loan
Agreement and the Loan Documents remain in full force and effect without
amendment or modification of any kind, except for the amendments explicitly set
forth herein. This Amendment shall be deemed to be one of the Loan Documents
and, together with the other Loan Documents, constitute the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior dealings, correspondence, conversations or communications between the
parties with respect to the subject matter hereof. This Amendment shall be
considered a Loan Document and, without in any way limiting the application of
other provisions of the Loan Agreement, this Amendment shall governed by the
provisions of Articles 14-2, 14-3, 14-4, 14-7, 14-8, 14-9, 14-10, 14-14 of the
Loan Agreement. No further amendment to the Loan Agreement shall be made except
by a writing signed by all parties to the Loan Agreement.
4. Representations, Warranties and Covenants. The Borrowers represent,
warrant and covenant with and to the Lender as follows, which representations,
warranties and covenants are continuing and shall survive the execution and
delivery hereof, the truth and accuracy of, or compliance with each, together
with the representations, warranties and covenants in the other Loan Agreements,
begin continuing condition of the making or providing any loans or L/Cs by the
Lender to Borrowers:
(a) This Amendment has been duly authorized, executed and delivered
by all necessary action of the Borrowers, and is in full force and
effect, and the agreements and obligations of the Borrowers contained
here constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with its terms.
(b) After giving effect to this Amendment, there is no Event of
Default under the Loan Agreement or any of the Loan Documents.
5. Conditions Precedent. This Amendment shall become effective (the
"Effective Date of the Amendment Number Six") upon satisfaction of each of the
following conditions precedent or waiver of such conditions by the Lender:
(a) Receipt by Lender of this Amendment duly executed by the
Borrower, the Guarantor and Lender.
(b) All representations and warranties contained herein shall be true
and correct in all material respects.
(c) After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
6. Miscellaneous. Section and paragraph headings herein are included
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose. This Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof and
submissible into evidence and all of which together shall be deemed to be a
single instrument. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. Delivery of an executed counterpart of this Amendment by
telefacsimile or other electronic method of transmission shall have the same
force and effect as delivery of an original executed counterpart of this
Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers as of the day and year
first above written.
▇▇▇▇▇ FARGO RETAIL FINANCE II, LLC
(the "Lender")
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BORROWERS:
IPARTY RETAIL STORES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CFO
IPARTY CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CFO