Exhibit 10.6
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement (the "Second
Amendment") is made as of this 2nd day of May, 2000 by and between
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 Xxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 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 Agent, the Lenders and the Borrower desire to modify
certain 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 deleting the following definitions in their
entirety:
"INTEREST RATE REDUCTION CONDITIONS" and "PRICING
CHANGE"
(b) by deleting the definition of "Base Margin" in its
entirety and substituting the following in its stead:
"BASE MARGIN": Shall mean zero (0) basis points with
respect to any loans and advances made after
the effective date of that certain Second
Amendment to
Loan and Security dated as of May __, 2000
among the Borrower, the Agent and the
Lenders.
(c) by deleting the definition of "Eurodollar Margin" in
its entirety and substituting the following in its
stead:
"EURODOLLAR MARGIN": Shall mean 200 basis points with
respect to any loans and advances made after
the effective date of that certain Second
Amendment to Loan and Security dated as of
May __, 2000 among the Borrower, the Agent
and the Lenders.
(d) by deleting the definition of "Inventory Advance
Rate" in its entirety and substituting the following
in its stead:
"INVENTORY ADVANCE RATE": The following percentages
of Retail during the period indicated:
PERIOD PERCENTAGE OF
RETAIL
November through
June of each
year 28.5%
July through
October of each
year 31%
3. Amendment to Financial Performance Covenants. The provisions
of Paragraph 2 of Exhibit 5-12(a) to the Agreement are hereby
amended by deleting the table appearing therein and
substituting the following new table:
$ THOUSANDS
FISCAL YEAR ENDING MAXIMUM CAPITAL
EXPENDITURES
January, 1999 2,500
January, 2000 12,000
January, 2001 20,000
In addition, the provisions of subparagraphs (a) and (c) of
said Paragraph 2 are hereby deleted in their
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entirety. All other provisions of said Paragraph 2 remain in
full force and effect.
4. UCC 3 Amendments. This Second Amendment shall not be effective
until the Borrower has executed and delivered to the Agent UCC
3 Financing Statements to reflect the Borrower's name change,
which Financing Statements shall be filed in such
jurisdictions as the Agent deems appropriate.
5. Ratification of Loan Documents. Except as provided herein, all
terms and conditions of the Agreement and of the other Loan
Documents remain in full force and effect. Furthermore, except
as provided herein, all warranties and representations made in
the Agreement and in the other Loan Documents remain in full
force and effect.
6. Miscellaneous.
(a) This Second 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 Second 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
Second 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 Second
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 Second Amendment.
(e) The Borrower warrants and represents that the
Borrower has consulted with independent legal counsel of the
Borrower's selection in connection with this Second Amendment
and is not relying on any representations or warranties of any
Lender or the
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Agent or their respective counsel in entering into this Second
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.
IN WITNESS WHEREOF, the parties have hereunto caused this Second
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
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Title: President, Chief Operating Officer
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FLEET RETAIL FINANCE INC.
("Agent")
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------------
Title: Vice President
------------------------------------
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The "Lenders"
FLEET RETAIL FINANCE INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------
Title: Assistant Vice President
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