Exhibit 10.5
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement (the "First
Amendment") is made as of this 8th day of November, 1999 by and between
BankBoston Retail Finance Inc. (the "Agent"), a Delaware corporation
with its principal executive offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx)
for the Lenders party to the Agreement (defined below), and
The Lenders party to the Agreement (defined below), and
MSS Delaware, Inc. (the "Borrower"), a Delaware corporation with its
principal executive offices at 00 Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H:
WHEREAS, on July 31, 1998 the Agent, the Lenders and the Borrower
entered in a certain Loan and Security Agreement (the "Agreement"); and
WHEREAS, the Borrower desires to purchase from Federated Specialty
Stores, Inc. 6,000 shares of the Borrower's 6% Series A Exchangeable Redeemable
Preferred Stock, par value $.01 per share for an aggregate purchase price of
$5,000,000.00 (the "Repurchase"); and
WHEREAS, the Repurchase is prohibited under the terms of the Agreement
and the Borrower has requested that the Agent and the Lenders consent thereto;
and
WHEREAS, the Agent, the Lenders and the Borrower desire to modify
certain other provisions of the Agreement as set forth herein.
NOW, THEREFORE, it is hereby agreed among the Agent, the Lenders and
the Borrower as follows:
1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the
Agreement.
2. Amendments to Article 4. The provisions of Section 4-18 of the
Agreement are hereby amended as follows:
(a) The provisions of Section 4-18(a)(i) of the Agreement
are hereby deleted in their entirety.
(b) The provisions of Section 4-18(a)(iii) are hereby
amended to delete all references to Series A of the
Preferred Stock, it being agreed that no dividends
will be paid thereon.
3. Amendment to Financial Performance Covenants. The provisions
of Paragraph 2 of Exhibit 5-12(a) to the Agreement are hereby
amended by adding the following at the end thereof:
For purposes of calculating Capital Expenditures
hereunder, there shall not be included any Capital
Expenditures for which the Borrower's landlords have
furnished the Borrower with an allowance or credit
therefor or which are otherwise payable by such
landlords.
4. Consent and Waiver. The Agent and the Lenders hereby consent
to the Repurchase and waive any Event of Default arising
therefrom under Section 4-18(b) of the Agreement. This consent
and waiver relates only to the Repurchase and is not intended
to modify or waive the provisions of Section 4-18(b) with
respect to any other transaction nor is it intended to modify
or waive any other provision of the Agreement or any other
Loan Document.
5. Ratification of Loan Documents. Except as provided herein, all
terms and conditions of the Agreement and of the other Loan
Documents remain in full force and effect. Furthermore, except
as provided herein, all warranties and representations made in
the Agreement and in the other Loan Documents remain in full
force and effect.
6. Miscellaneous.
(a) This First 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.
(c) This First 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.
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(d) Any determination that any provision of this
First Amendment or any application hereof is invalid, illegal
or unenforceable in any respect and in any instance shall not
effect the validity, legality, or enforceability of such
provision in any other instance, or the validity, legality or
enforceability of any other provisions of this First
Amendment.
(e) The Borrower shall pay on demand all costs and
expenses of the Agent, including, without limitation,
reasonable attorneys' fees in connection with the preparation,
negotiation, execution and delivery of this First Amendment.
(f) The Borrower warrants and represents that the
Borrower has consulted with independent legal counsel of the
Borrower's selection in connection with this First Amendment
and is not relying on any representations or warranties of any
Lender or the Agent or their respective counsel in entering
into this First Amendment.
(g) The Borrower acknowledges and agrees that the
Borrower does not have any claims, counterclaims, offsets, or
defenses against any Lender or the Agent directly or
indirectly relating to the Borrower's relationship with,
and/or the Borrower's Liabilities, and to the extent that the
Borrower has or ever had any such claims, counterclaims,
offsets, or defenses against any of the Lenders or the Agent,
the Borrower affirmatively WAIVES the same. The Borrower, and
for its representatives, successors and assigns, hereby
RELEASES, and forever discharges the Lenders and the Agent and
their respective officers, directors, agents, servants,
attorneys, and employees, and their respective
representatives, successors and assigns, of, to, and from all
known debts, demands, actions, suits, accounts, covenants,
contracts, agreements, damages, and any and all claims,
demands, or liabilities whatsoever, of every name and nature,
both at law and in equity, from the beginning of the world
through the date hereof.
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IN WITNESS WHEREOF, the parties have hereunto caused this First
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.
MSS DELAWARE, INC.
("Borrower")
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Executive VP, Chief Operating Officer
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BANKBOSTON RETAIL FINANCE INC.
("Agent")
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Vice President
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The "Lenders"
BANKBOSTON RETAIL FINANCE INC.
By: /s/ Xxxxxx XxXxxxx
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Name: Xxxxxx XxXxxxx
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Title: Senior Vice President
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IBJ XXXXXXXX BUSINESS CREDIT
CORPORATION
By:
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Name:
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Title:
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