Exhibit 10.2
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FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT XXXXX FARGO RETAIL FINANCE, LLC
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October 29, 2001
THIS FIRST AMENDMENT is made in consideration of the mutual covenants
contained herein and benefits to be derived herefrom to the September 24, 2001
Loan and Security Agreement (the "LOAN AGREEMENT") between
Xxxxx Fargo Retail Finance LLC (referred to therein as the
"LENDER"), a Delaware limited liability company with offices at Xxx
Xxxxxx Xxxxx - 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
and
xXXxX*s Corp. (referred to therein in such capacity, as the
"LEAD BORROWER"), a Delaware corporation with its principal executive
offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as agent for
the following (referred to therein individually, as a "BORROWER" and
collectively, the "BORROWERS"):
xXXxX*s Corp.,
xXXxX*s Operating Company,
xXXxX*s Distribution Company,
xXXxX*s Retail Company,
each a Delaware corporation with its principal executive offices at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
in consideration of the mutual covenants contained herein and benefits to be
derived herefrom,
WITNESSETH:
PART 1. AMENDMENT OF LOAN AGREEMENT:
The Loan Agreement is amended as follows:
ARTICLE 1 OF THE LOAN AGREEMENT IS AMENDED SO THAT THE FOLLOWING
DEFINITION INCLUDED THEREIN READS AS FOLLOWS:
"BORROWING BASE": The result of the lesser of (a) or (b), where:
(a) Is the aggregate of the following:
(i) The lesser of
(A) The Standard Line Credit Limit
or
(B) The product of the Cost of Eligible
Inventory (net of Inventory
Reserves) multiplied by the
Standard Inventory Advance Rate.
PLUS
(ii) The lesser of
(A) The Special Line Credit Limit
or
(B) The product of the Cost of Eligible
Inventory (net of Inventory
Reserves) multiplied by the Special
Inventory Advance Rate.
PLUS
(iii) 100% of the fair market value of the
Backstop L/C Collateral.
(b) Is 95% of the Three Month Rolling Average NRLV.
ARTICLE 1 OF THE LOAN AGREEMENT IS AMENDED BY THE ADDITION OF THE
FOLLOWING DEFINITIONS IN ALPHABETICAL ORDER THEREIN:
"BACKSTOP L/C": Letter of Credit No.NZS41388 dated October 4, 2001
issued by Xxxxx Fargo Bank, N.A. for the account of xXXxX*s
Corp and benefit of Congress.
"BACKSTOP L/C COLLATERAL": The lesser, on any day, of $3,250,000.00 or
the then fair market value of the contents of Account No.
H42-1001603 maintained by iTurf Finance Company with X.X.
Xxxxxx Securities Inc., a security interest in which has been
granted to the Lender.
"BACKSTOP L/C KEY DATE": That date on which written notice is given by
the Lead Borrower to the Lender (with reasonable supporting
materials) to the effect that twenty (20) or more days prior
to the giving of such written notice either (a) the Backstop
L/C expired or was cancelled or (b) the Stated Amount of the
Backstop L/C had been reduced to an amount not in excess of
$175,500.00.
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"JPMSI RELEASE CONSENT": The Lender's consent to instructions to
deliver cash and/or securities, or proceeds from the sale of,
or distributions on such securities, from Account No.
H42-1001603 maintained by iTurf Finance Company with X.X.
Xxxxxx Securities Inc.
ARTICLE 2 OF THE LOAN AGREEMENT IS AMENDED BY THE ADDITION OF THE
FOLLOWING SECTION THERETO:
2-4A. THE BACKSTOP L/C
(a) At the request of the Lead Borrower, the Lender
has procured the issuance of the Backstop L/C pursuant to Section 2:2-15.
(b) Unless and until the occurrence of the Backstop
L/C Key Date, the Borrowers shall not suffer or permit the fair market value of
the Backstop L/C Collateral to be less than $3,250,000.00.
(c) The Lender, at the Lead Borrower's written
request from time to time, shall provide a JPMSI Release Consent, provided that
(x) the condition set forth in Section 2:2-4A(c)(i) is satisfied and (y) unless
and until the occurrence of the Backstop L/C Key Date, the condition set forth
in Section 2:2-4A(c)(ii) is satisfied:
(i) No Borrower is InDefault on the date on
which such written request by the Lead Borrower is
given nor would any Borrower be InDefault after
giving effect to the requested release.
(ii) Immediately following and after giving
effect to the instructions to which consent would be
given by the requested JPMSI Release Consent, the
fair market value of the Backstop L/C Collateral
would not be less than $3,250,000.00.
(d) The Lead Borrower's providing of a written
request to the Lender to provide a JPMSI Release Consent shall constitute
certification by each Borrower that as of the date of such request, each of the
following is true and correct:
(i) Each representation which is made herein
or in any of the Loan Documents is then true and
complete in all material respects as of and as if
made on the date of such request.
(ii) Each condition then applicable to the
Lender's furnishing of a JPMSI Release Consent has
then been satisfied.
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PART 2. RATIFICATION OF LOAN DOCUMENTS. NO CLAIMS AGAINST THE LENDER:
(a) Except as provided herein, all terms and conditions of the Loan
Agreement and of the other Loan Documents remain in full force and effect. Each
Borrower and each Guarantor hereby ratifies, confirms, and re-affirms all terms
and provisions of the Loan Documents.
(b) There is no basis nor set of facts on which any amount (or any
portion thereof) owed by any Borrower or Guarantor under any Loan Document could
be reduced, offset, waived, or forgiven, by rescission or otherwise; nor is
there any claim, counterclaim, off set, or defense (or other right, remedy, or
basis having a similar effect) available to any Borrower or 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. To the extent that any Borrower or
Guarantor has (or ever had) any such claims against the Lender, that Borrower or
that Guarantor hereby affirmatively WAIVES and RELEASES the same.
PART 3. MISCELLANEOUS:
(a) Terms used in the First Amendment which are defined in the Loan
Agreement are used as so defined.
(b) 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.
(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 affect 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 Borrowers shall pay on demand all reasonable costs and expenses
of the Agents, including, without limitation, reasonable attorneys' fees in
connection with the preparation, negotiation, execution, and delivery of this
First Amendment.
All terms and conditions of the Loan Agreement, as previously amended
to date, shall remain in full force and effect.
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XXXXX*S CORP.
("LEAD BORROWER")
BY Xxxxxx Xxxxxx
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PRINT NAME: Xxxxxx Xxxxxx
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TITLE: SR V.P.
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XXXXX*S CORP.
XXXXX*S OPERATING COMPANY
XXXXX*S DISTRIBUTION COMPANY
XXXXX*S RETAIL COMPANY
"BORROWERS":
BY Xxxxxx Xxxxxx
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PRINT NAME: Xxxxxx Xxxxxx
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TITLE: SR V.P.
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XXXXX FARGO RETAIL FINANCE LLC
("LENDER")
BY Xxxxxxx X. Xxxxxx
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PRINT NAME: Xxxxxxx X. Xxxxxx
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TITLE: Vice President
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