Exhibit 10.33
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT, dated as of March 26,
2008 (this "Amendment"), is made with respect to the LOAN AND SECURITY AGREEMENT
(the "Loan Agreement") dated as of July 26, 2005, between ▇▇▇▇▇ FARGO RETAIL
FINANCE, LLC (herein, the "Lender"), a Delaware limited liability company with
offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
BLUEFLY, INC. (the "Borrower"), a Delaware corporation with its principal
executive offices at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS:
A. The Borrower has requested that the Lender agree to, and the Lender
has agreed to, extend the Maturity Date and make certain other amendments to the
Loan Agreement on certain terms and conditions.
B. The parties desire to amend the Loan Agreement in order to, among
other things, extend the Maturity Date.
In consideration of the mutual covenants contained herein and benefits to
be derived herefrom, the parties hereto agree as follows:
SECTION 1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the Loan Agreement.
SECTION 2. Amendment to Loan Agreement.
2.1 Article 1 of the Loan Agreement is amended as follows:
2.1.1 The definition of "Change in Control" contained therein is
amended by deleting clause (a) of such definition in its entirety and
replacing it with the following:
(a) The acquisition, by any group of persons (within the meaning of
the Exchange Act) or by any Person, other than by one or more of the
Subordinated Entities or Prentice Capital Management, L.P. and/or
their affiliates, of beneficial ownership (within the meaning of
Rule 13d-3 of the Exchange Act) of 35% or more of the issued and
outstanding capital stock of the Borrower having the right, under
ordinary circumstances, to vote for the election of directors of the
Borrower, which Person or group of Persons thereby becomes the
largest shareholder of Borrower.
2.1.2 The definition of "Libor Margin" contained therein is deleted
in its entirety and replaced with the following:
"Libor Margin": The following applicable percentage, based upon the
corresponding Average Excess Availability:
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Level LIBOR Margin Average Excess Availability
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I 3.0% Greater than $3,000,000
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II 3.25% $3,000,000 or less
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The Margin on the Closing Date shall be established at Level II and
adjusted at the end of each fiscal quarter thereafter based upon the
amount of Average Excess Availability during the preceding quarter.
2.1.3 The definition of "Maturity Date" contained therein is
deleted in its entirety and replaced with the following:
"Maturity Date": July 26, 2011.
2.1.4 The definition of "▇▇▇▇▇ Entities" contained therein is
deleted in its entirety and replaced with the definition "Subordinated
Entities" set forth below and the term "▇▇▇▇▇ Entities" is deleted and
replaced with the term "Subordinated Entities" in each instance that it
appears in the Loan Agreement.
"Subordinated Entities": QIH Management LLC, QIH Management
Investor, L.P., Quantum Industrial Partners LDC, SFM Domestic
Investments LLC, ▇▇▇▇▇ Fund Management LLC, Mr. ▇▇▇▇▇▇ ▇▇▇▇▇,
Maverick Fund USA, Ltd., Maverick Fund, L.D.C., and Maverick Fund
II, Ltd. and each of their respective Affiliates.
2.1.5 The definition of "Subordination Agreement" contained therein
is deleted in its entirety and replaced with the following:
"Subordination Agreement": That certain Subordination and
Intercreditor Agreement, dated as of the Fourth Amendment Effective
Date, among the Subordinated Entities and the Lender.
2.1.6 The following definitions are added in alphabetical order to
Article 1 of the Loan Agreement:
"Fourth Amendment Effective Date" the date upon which all the
Conditions Precedent to the Fourth Amendment to Loan And Security
Agreement are satisfied as determined by the Lender in its
discretion.
"Subordinated Note Documents" that certain Standby Commitment
Agreement, dated as of the Fourth Amendment Effective Date, entered
into by and among the Borrower and the Subordinated Entities,
together with the Note Purchase Agreement to be entered
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into and the Convertible Promissory Notes to be entered into
pursuant to such Standby Commitment Agreement.
2.2 Article 2 of the Loan Agreement is amended as follows:
2.2.1 Section 2.5 of the Loan Agreement is amended to add a new
clause (c) which reads as follows:
(c) No Revolving Credit Loans shall be made unless the full amount
available pursuant to the Subordinated Note Documents has been
advanced and is outstanding.
2.2.2 Section 2.14 of the Loan Agreement is amended by deleting the
amount "0.35%" and replacing it with the amount "0.50%".
2.2.3 Section 2.15(a) of the Loan Agreement is deleted in its
entirety and replaced with the following:
(a) In the event that the Termination Date occurs prior to the
Maturity Date, for any reason other than if the Borrower refinances
the Revolving Credit as an unsecured facility with ▇▇▇▇▇ Fargo Bank,
N. A., the Borrower shall pay to the Lender, the "Revolving Credit
Early Termination Fee" (so referred to herein) in an amount equal to
the product of (x) the Revolving Credit Ceiling, multiplied (y) one
(1%) percent.
2.2.4 A new Section 2.15(A) is added to the Loan Agreement which
reads as follows:
2.15(A). Servicing Fee.
In addition to any other fee to be paid by the Borrower
hereunder, the Borrower shall pay the Lender an annual fee in the
amount of $40,000.00 per annum (the "Servicing Fee"). The Servicing
Fee shall be fully earned on the Fourth Amendment Effective Date and
each anniversary thereof, and shall be paid in monthly installments
equal to $3,333.33 on the first day of each calendar month.
2.2.5 Section 2.18 of the Loan Agreement is amended by deleting the
grid contained therein and replacing it with the following grid:
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Level Standby Fee Documentary Fee Average Excess Availability
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I 3.00% 2.50% Greater than $3,000,000
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II 3.25% 2.75% $3,000,000 or less
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2.3 Article 4 of the Loan Agreement is amended as follows:
2.3.1 A new clause (v) is added to Section 4.19(b) which reads as
follows:
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(v) payment of capital stock to the Subordinated Entities upon
conversion of the notes which are subject to the Subordination
Agreement.
2.4 Article 5 of the Loan Agreement is amended by replacing Exhibit
5.4(a) and Exhibit 5.5 annexed thereto with Exhibit 5.4(a) and Exhibit 5.5
annexed hereto.
2.5 Article 10 of the Loan Agreement is amended as follows:
2.5.1 A new Section 10.15 is added to the Loan Agreement which
provides as follows:
10.15 Subordinated Note Documents
The failure of the Borrower to cause the Subordinated
Entities on or before three (3) months prior to the then stated
maturity date of the ▇▇▇▇▇ Subordinated Note Documents to extend the
maturity date of the ▇▇▇▇▇ Subordinated Note Documents until the
earlier of (x) one (1) year from the then effective maturity date of
the Subordinated Note Documents, or (y) three (3) months after the
Maturity Date.
2.6 Article 12 of the Loan Agreement is amended as follows:
2.6.1 Section 12.1 of the Loan Agreement is amended by deleting the
notice parties for the Lender and replacing them with the following:
If to the Lender:
▇▇▇▇▇ Fargo Retail Finance, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ - - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention : ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
Fax : ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention : ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Fax : ▇▇▇-▇▇▇-▇▇▇▇
SECTION 3. Conditions Precedent.
This Fourth Amendment shall not be effective until each of the following
conditions have been satisfied as determined by the Lender in its discretion.
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3.1 The Lender shall have received counterparts of this Amendment duly
executed by each of the parties hereto;
3.2 The Lender shall have received the Subordination Agreement, in form
and substance acceptable to the Lender, in the Lender's sole and exclusive
discretion, and confirming the terms and conditions of any subordinated
indebtedness in a manner acceptable to the Lender, in the Lender's sole and
exclusive discretion;
3.3 The Lender shall have received a fully executed copies of the Standby
Commitment Agreement and forms of the Note Purchase Agreement and Convertible
Promissory Notes each of which shall be in form and substance acceptable to the
Lender in the Lender's sole and exclusive discretion.
3.4 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
3.5 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.
3.6 The payment by the Borrower to the Lender an amendment fee in the
amount of $35,000.00 (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 4. Waiver of Claims.
4.1 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 5. Miscellaneous.
5.1 Except as provided herein, all terms and conditions of the Loan
Agreement and of the other Loan Documents remain in full force and effect.
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5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 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/ Kara Jennny
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Print Name: Kara Jennny
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Title: Chief Financial Officer
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(The "Lender")
▇▇▇▇▇ FARGO RETAIL FINANCE, LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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1068465.7
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