Exhibit 10.31
THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated as of January
17, 2008 and effective as of January 15, 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 One Boston Place -- 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. Terms used and not otherwise defined herein
shall have the meanings attributed thereto in the Loan Agreement.
RECITALS:
The Borrower has requested that the Lender agree to amend the time period
in which the business plan must be delivered, and subject to certain terms and
conditions the Lender has agreed to amend the Loan Agreement.
In consideration of the mutual covenants contained herein and benefits to
be derived herefrom, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO LOAN AGREEMENT
1.1 Article 5 of the Loan Agreement is amended as follows:
1.1.1 Section 5.9(c) of the Loan Agreement is deleted in its
entirety and amended to read as follows:
(c) In all events, the Borrower, as soon as available but in no
event later than (i) February 18, 2008 for fiscal year 2007; and (ii)
thirty (30) days after the end of each of the Borrower's fiscal years
(other than fiscal year 2007), shall provide the Lender with an updated
and extended forecast which shall go out at least through the end of the
then next fiscal year and shall include an income statement, balance
sheet, and statement of cash flow, by month, and each prepared in
conformity with GAAP and in a manner consistent with the Borrower's then
current practices.
1.2 Borrower acknowledges and agrees that unless and until the
Borrower delivers the forecast required to be delivered pursuant to Section
5.9(c) for fiscal year 2007, any loan, advance, or financial accommodation to
the Borrower may be made by the Lender in its sole and exclusive discretion.
SECTION 2. CONDITIONS PRECEDENT
It shall be a condition to the effectiveness of this Amendment that the
following shall be satisfied:
2.1 The Lender shall have received counterparts of this Amendment
duly executed by each of the parties hereto;
2.2 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
2.3 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.
2.4 The payment by the Borrower to the Lender an amendment fee in the
amount of $10,000.00 (the "Amendment Fee") in consideration for the amendment
contained herein. The Amendment Fee shall be fully earned upon the date hereof,
and shall not be subject to refund or rebate under any circumstances.
SECTION 3. WAIVER OF CLAIMS.
3.1 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 4. MISCELLANEOUS.
4.1 Except as provided herein, all terms and conditions of the Loan
Agreement and of the other Loan Documents remain in full force and effect.
4.2 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.
4.3 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.
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4.4 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.
4.5 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.
4.6 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.
[Signature pages follow]
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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/ Xxxxxxx X. Xxxxx
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Print Name: Xxxxxxx X. Xxxxx
Title: CFO/COO
(The "Lender")
XXXXX FARGO RETAIL FINANCE, LLC
By: /s/ Xxxxxxx Xxxx
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Print Name: Xxxxxxx Xxxx
Title: Vice President
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