Exhibit 10.8
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Loan and Security Agreement (the "Fourth
Amendment") is made as of this 2nd day of February, 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 has formed a Subsidiary known as Aeropostale
West, Inc. ("AWI"), a Delaware corporation; and
WHEREAS, pursuant to the terms and conditions of the Agreement, among
other things, in connection with the formation of any new Subsidiary, such
Subsidiary is required to guaranty the Liabilities of the Borrower and grant to
the Agent, for the ratable benefit of the Lenders, a security interest in all of
such Subsidiary's assets; and
WHEREAS, in connection with the formation of AWI, the Agent, the
Lenders, and the Borrower 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 1. The provisions of Article 1 of the
Agreement are hereby amended as follows:
(a) by inserting the following new definitions:
(i) "AWI": Aeropostale West, Inc., a Delaware
corporation with an address of 00
Xxxxxxxxxxx Xxxxx, Xxxxx, Xxx Xxxxxx 00000,
a wholly owned Subsidiary of the Borrower.
(ii) "CONSOLIDATED": With reference to any term
defined herein, shall mean that term as
applied to the accounts of the Borrower and
its Subsidiaries, consolidated in accordance
with GAAP.
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(b) the definition of "ACCEPTABLE ACCOUNTS" is hereby
amended by deleting the references to the term
"Borrower" therein and substituting "Borrower and
AWI" in their stead.
(c) the definition of "ACCEPTABLE BLANK STOCK INVENTORY"
is hereby amended by deleting the references to the
term "Borrower" therein and substituting "Borrower
and AWI" in their stead.
(d) the definition of "ACCEPTABLE L/C INVENTORY" is
hereby amended by deleting the references to the term
"Borrower" therein and substituting "Borrower and
AWI" in their stead.
(e) the definition of "ACCEPTABLE IN-TRANSIT INVENTORY"
is hereby amended by deleting the references to the
term "Borrower" therein and substituting "Borrower
and AWI" in their stead, and provided, however that
the "Maximum Percentage" referred to therein shall be
on a aggregate basis as to the Borrower and AWI.
(f) the definition of "ACCEPTABLE INVENTORY" is hereby
amended by deleting the references to the term
"Borrower" therein and substituting "Borrower and
AWI" in their stead.
(g) the definition of "DDA" is hereby amended by deleting
the references to the term "Borrower" therein and
substituting "Borrower and AWI" in their stead.
(h) the definition of "EBITDA" is hereby deleted in its
entirety, and the following substituted in its stead:
"EBITDA": With respect to any fiscal period of the
Borrower and its Subsidiaries on a Consolidated
basis, the earnings before interest, income taxes,
B/S Management Fees, depreciation, and amortization,
each as determined in accordance with GAAP.
(i) the definition of "GENERAL INTANGIBLES" is hereby
amended by deleting the references to the term
"Borrower" therein and substituting "Borrower and
AWI" in their stead.
(j) the definition of "INTEREST EXPENSE" is hereby
amended by deleting the references to the term
"Borrower" therein and substituting "Borrower and
AWI" in their stead.
(k) the definition of "MATERIAL ADVERSE CHANGE" is hereby
deleted in its entirety, and the following
substituted in its stead:
"MATERIAL ADVERSE EFFECT": A material adverse effect
upon (i) the Borrower's and AWI's respective
business, properties, operations or financial
affairs, taken as a whole, or (ii) the Collateral,
taken as a whole, or (iii) the ability of the
Borrower or AWI to perform its obligations under this
Agreement and the other Loan Documents,
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taken as a whole, or (iv) the validity,
enforceability, perfection or priority of this
Agreement or the other Loan Documents or of the
rights and remedies of the Agent or any Lender under
any Loan Document, taken as a whole.
(l) the definition of "RECEIVABLES COLLATERAL" is hereby
amended by deleting the references to the term
"Borrower" therein and substituting "Borrower and
AWI" in their stead
(m) the definition of "TRUST DEPOSIT ACCOUNTS" is hereby
amended by deleting the references to the term
"Borrower" therein and substituting "Borrower and
AWI" in their stead
3. Amendment to Article 4 The provisions of Section 4-5(a)(i) are
hereby deleted in their entirety, and the following
substituted in their stead:
(i) 00 Xxxxxxxxxxx Xxxxx, Xxxxx, Xxx Xxxxxx
00000
4. Concerning Articles 4,5, 6 and 7. To induce each Lender to
continue to provide financial accommodations to and for the
account of the Borrower, and to induce the Agent and the
Lenders to enter into this Fourth Amendment, the Borrower
hereby acknowledges and agrees that each of the
representations and warranties made by the Borrower to the
Agent and the Lenders set forth in Article 4 of the Loan
Agreement shall also be deemed to have been made by AWI as
well, and the Borrower acknowledges and agrees that AWI is
bound by, and shall at all times comply with, the provisions
of Articles 5, 6 and 7 of the Loan Agreement as if AWI were
the Borrower thereunder. Without limiting the generality of
the foregoing, the Borrower acknowledges and agrees that
Capital Expenditures shall be calculated on a Consolidated
basis for purposes of calculating Capital Expenditures
pursuant to paragraph 2 of Exhibit 5-2(a).
5. Amendment to Exhibits. Exhibit 4-2 is hereby amended by adding
the following thereto:
Aeropostale West, Inc., a Delaware corporation
6. Consent and Waiver. The Agent and the Lenders hereby consent
to the organization of the AWI and the Borrower's and AWI's
entering into the Agreements set forth on Schedule 1 (items 11
through and including 15) and waive any Event of Default
arising therefrom under Section 4-18(f) of the Agreement. This
consent and waiver relates only to the organization of AWI and
is not intended to modify or waive the provisions of Section
4-18(f) 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.
7. 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
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hereby, and any future Liabilities. Except as set forth on
Schedule A hereto, there have been no changes to the Exhibits
to the Agreement and the other Loan Documents.
8. Conditions to Effectiveness. This Fourth Amendment shall be
become effective upon the satisfaction of the following
conditions precedent:
(a) This Fourth 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. Further, AWI and the Borrower
shall have provided the Agent with the additional
documents set forth in Schedule 1 annexed hereto and
incorporated herein by reference.
(b) All proceedings in connection with the transactions
contemplated by this Fourth 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 Fourth Amendment.
9. Miscellaneous.
(a) This Fourth 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 Fourth 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
Fourth 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 Fourth
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 Fourth Amendment.
(e) The Borrower warrants and represents that the
Borrower has consulted with independent legal counsel of the
Borrower's selection in
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connection with this Fourth Amendment and is not relying on
any representations or warranties of any Lender or the Agent
or their respective counsel in entering into this Fourth
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 Fourth
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.
AEROPOSTALE, INC.
("Borrower")
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Title: Senior VP, CFO
---------------------------------
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/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
----------------------------------
Title: A.U.P.
---------------------------------
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Schedule A
Amendments to Exhibits
EXHIBIT 4-2
Related Entities
Aeropostale West, Inc., a Delaware corporation
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Schedule 1
1. Certificate of Legal Existence and Good Standing for AWI from Delaware
Secretary of State
2. Certificates of Foreign Qualification for AWI from:
a. Arizona Secretary of State
b. California Secretary of State
3. Officers' Certificate for AWI with copies of:
a. Certificate of Incorporation
b. By-Laws
c. Resolutions
4. Guaranty by AWI
5. Security Agreement by AWI
6. Trademark Security Agreement by AWI
7. Financing Statement from AWI
a. Secretary of State of Delaware
8. Stock Pledge from Aeropostale Inc. of all of stock of AWI
a. Stock Certificate
b. Stock Power
9. Opinion of Counsel To AWI
10. Insurance Certificates
11. Sublicense Agreement between Aeropostale, Inc. and AWI
12. Promissory Note from Aeropostale, Inc. in favor of AWI
13. Purchase and Sale Agreement between Aeropostale, Inc. and AWI
14. Management Services Agreement between Aeropostale, Inc. and AWI
15. Contribution and License Agreement between Aeropostale, Inc. and AWI
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