EXHIBIT 10.15
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Fifth Amendment to Loan and Security Agreement (the "Fifth
Amendment") is made as of this 15th day of April, 2002 by and among
Fleet Retail Finance Inc. f/k/a 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
Aeropostale, Inc., f/k/a MSS Delaware, Inc. (the "Borrower"), a Delaware
corporation with its principal executive offices at 00 Xxxxxxxxxxx Xxxxx, Xxxxx,
Xxx Xxxxxx 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 (as amended and in effect, the
"Agreement"); and
WHEREAS, the Borrower, the Agent and the Lenders desire to modify
certain of the 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 10. Section 10-17 of the Agreement are
hereby deleted in their entirety, and the following substituted
in its stead:
10-17. Intentionally Omitted
3. Ratification of Loan Documents. Except as provided herein, all
terms and conditions of the Agreement and the other Loan
Documents remain in full force and effect. The Borrower hereby
ratifies, confirms, and reaffirms all representations,
warranties, and covenants contained therein and hereby
represents that no Events of Default exist under the Loan
Documents. The Borrower further ratifies and confirms that any
and all Collateral previously granted to the Agent continues to
secure the existing Liabilities as well as the Liabilities as
amended hereby, and any future Liabilities.
4. Conditions to Effectiveness. This Fifth Amendment shall be
become effective upon the satisfaction of the following
conditions precedent:
(a) This Fifth Amendment shall have been duly executed and
delivered by each of the Borrower, the Lenders and the
Agent and shall be in full force and effect. The Agent
shall have received a fully executed copy of this
Amendment.
(b) All proceedings in connection with the transactions
contemplated by this Fifth Amendment and all documents
incident thereto shall be reasonably satisfactory in
substance and form to the Agent, and the Agent shall
have received all information and such counterpart
originals or certified or other copies of such documents
as the Agent may reasonably request. Further, the
Borrower shall have delivered to the Agent such
additional documents which the Lender may reasonably
request.
(c) The Borrower shall have paid all reasonable costs and
expenses of the Agent including, without limitation, all
attorneys' fees and expenses incurred by the Agent in
connection with the Agreement, the Loan Documents, and
the preparation, negotiation and execution of this Fifth
Amendment.
5. Miscellaneous.
(a) This Fifth 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.
(b) This Fifth 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.
(c) Any determination that any provision of this
Fifth 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 Fifth Amendment.
(d) 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 Fifth Amendment.
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(e) The Borrower warrants and represents that the
Borrower has consulted with independent legal counsel of the
Borrower's selection in connection with this Fifth Amendment and
is not relying on any representations or warranties of any
Lender or the Agent or their respective counsel in entering into
this Fifth Amendment.
(f) 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 through the date
hereof.
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IN WITNESS WHEREOF, the parties have hereunto caused this Fifth
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.
AEROPOSTALE, INC.
("Borrower")
By: /s/ Xxxx X. Xxxxx
------------------------------
Name: Xxxx X. Xxxxx
Title: President, COO
FLEET RETAIL FINANCE INC.
("Agent")
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
(The "Lenders")
FLEET RETAIL FINANCE INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Secretary
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