Exhibit 10.1
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated as of June
30, 2008 (this "Amendment"), is made with respect to the LOAN AND SECURITY
AGREEMENT (the "Loan Agreement") dated as of July 26, 2005, between XXXXX FARGO
RETAIL FINANCE, LLC (herein, the "Lender"), a Delaware limited liability company
with offices at Xxx Xxxxxx Xxxxx - - 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
and BLUEFLY, INC. (the "Borrower"), a Delaware corporation with its principal
executive offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS:
The Borrower has requested that the Lender agree to extend the date
until which it may exercise the option to increase the Revolving Credit Ceiling,
and the Lender has agreed to so extend, subject to the terms and conditions
hereof.
In consideration of the mutual covenants contained herein and benefits
to be derived herefrom, the parties hereto agree as follows:
SECTION 1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the Loan Agreement.
SECTION 2. Amendment to Loan Agreement.
2.1.1 Section 2.2(a) of the Loan Agreement is amended by deleting
the date "December 31, 2007" contained therein and replacing it with the
date "December 31, 2010".
SECTION 3. Conditions Precedent.
This Fifth Amendment shall not be effective until each of the following
conditions have been satisfied as determined by the Lender in its discretion.
3.1 The Lender shall have received counterparts of this Amendment duly
executed by each of the parties hereto;
3.2 After giving effect to this Amendment, the representations and
warranties in the Loan Agreement and the other Loan Documents shall be true and
correct in all material respects on and as of the date hereof, as though made on
such date (except to the extent that such representations and warranties relate
solely to an earlier date); and
3.3 After giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing on the date hereof, nor shall
result from the consummation of the transactions contemplated herein.
SECTION 4. Waiver of Claims.
4.1 The Borrower, for itself and on behalf of its officers,
directors, employees, attorneys, representatives, administrators, successors,
and assigns hereby acknowledges and agrees that it has no offsets, defenses,
claims, or counterclaims against the Lender, or its officers, directors,
employees, attorneys, representatives, parent, affiliates, participants,
successors, or assigns (collectively, "Credit Parties") with respect to the
Liabilities, or otherwise, and that if the Borrower now has, or ever did have,
any offsets, defenses, claims, or counterclaims against any Credit Party,
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 Borrower hereby RELEASES the Credit
Parties from any liability therefor.
SECTION 5. Miscellaneous.
5.1 Except as provided herein, all terms and conditions of the Loan
Agreement and of the other Loan Documents remain in full force and effect.
5.2 This Amendment may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of this Amendment by
telefacsimile or electronic mail shall be equally as effective as delivery of an
original executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile or electronic mail also
shall deliver an original executed counterpart of this Amendment but the failure
to deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Amendment.
5.3 This 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.
5.4 The Borrower shall pay on demand all reasonable costs and expenses
of the Lender, including, without limitation, reasonable attorneys' fees in
connection with the preparation, negotiation, execution, and delivery of this
Amendment.
5.5 The waivers and consents herein are limited to the specifics
hereof, shall not apply with respect to any facts or occurrences other than
those on which the same are based, shall not excuse future non-compliance with
the Loan Documents, and shall not operate as a consent to any further or other
matter under the Loan Documents.
5.6 THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE COMMONWEALTH OF MASSACHUSETTS.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
(The "Borrower")
BLUEFLY, INC.
By /s/ Xxxx X. Xxxxx
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Print Name: Xxxx X. Xxxxx
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Title: CFO
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(The "Lender")
XXXXX FARGO RETAIL FINANCE, LLC
By /s/ Xxxxxx Xxxxxxxxx
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Print Name: Xxxxxx Xxxxxxxxx
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Title: Vice President
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