New York
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0-14818
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14-1541629
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common shares, $0.01 par value per share
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KSPN
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NASDAQ Stock Market
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Item 1.01 |
Entry Into A Material Definitive Agreement.
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Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
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Item 9.01 |
Financial Statements and Exhibits.
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(d) EXHIBITS. |
The following are furnished as Exhibits to this Report:
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Exhibit
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No.
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Description
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Amendment No. 2 to Loan and Security Agreement
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Dated: April 8, 2021
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Kaspien Holding Inc.
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By:
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/s/ Edwin Sapienza
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Name: Edwin Sapienza
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Title: Chief Financial Officer
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1. |
Amendment to Loan Agreement. The Loan Agreement is hereby amended by deleting the number “$2,000,000” from Section 1(d) of Annex I
thereto (being the In-Transit Inventory Sublimit) and substituting in its stead the number “$2,500,000”.
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2. |
Representations and Warranties. Each of the Parent and the Borrower hereby represents and warrants that, after giving effect to this
Amendment (including, without limitation, the joinder of the Parent to the Loan Agreement): (i) no Default or Event of Default exists under the Loan Agreement or any other Loan Document, (ii) each of the Parent and the Borrower has the full
power and authority to execute, deliver, and perform its respective obligations under, the Loan Agreement and the other Loan Documents, as amended by this Amendment and the amendments to the other Loan Documents, and (iii) the
representations and warranties contained or referred to in Section 7 of the Loan Agreement and the other Loan Documents are true and accurate in all material respects as of the date of this Amendment (or, to the extent any such
representations or warranties are expressly made solely as of an earlier date, such representations and warranties are true and correct as of such earlier date).
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3. |
Conditions to Effectiveness. This Amendment shall not be effective until each of the following conditions precedent have been fulfilled
to the satisfaction of the Agent (or waived by Agent):
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a. |
The Agent shall have received counterparts of this Amendment duly executed by the Parent, the Borrower, the Agent and the Lenders.
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b. |
All action on the part of the Parent and the Borrower necessary for the valid execution, delivery and performance by the Loan Parties of this Amendment shall have been duly and effectively taken.
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c. |
The Agent shall have received a supplement to Section 1(d) of the Perfection Certificate, which shall be in form and substance reasonably satisfactory to the Agent.
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d. |
The Borrower shall have paid all reasonable costs and expenses (including, without limitation, the reasonable costs and expenses of Agent’s counsel) incurred by Agent in connection with the preparation of this Amendment.
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4. |
Release. In consideration of the agreements of the Agent and the Lenders contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parent, the Borrower and each Loan Party Obligor hereby releases and forever discharges the Agent and each Lender and their respective directors, officers, employees, agents,
attorneys, affiliates, subsidiaries, successors and assigns from any and all liabilities, obligations, actions, contracts, claims, causes of action, damages, demands, costs and expenses whatsoever (collectively “Claims”), of every kind and nature, however evidenced or created, whether known or unknown, directly arising out of, connected with or related to the Loan Agreement (as amended hereby) or any other Loan
Document, or any act, event or transaction related or attendant thereto, other than Claims arising out of fraud or willful misconduct, arising prior to or on the date hereof, including, but not limited to, any Claims involving the extension
of credit under the Loan Agreement or the other Loan Documents, as each may be amended, the Obligations incurred by the Parent, the Borrower or any Loan Party Obligor or any other transactions evidenced by or related to the Loan Agreement
or any of the other Loan Documents
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5. |
Miscellaneous.
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a. |
This Amendment shall be governed by and construed in accordance with the law of the State of New York applicable to contracts made and to be performed therein without regard to conflict of law principles. Further, the law of the State of
New York shall apply to all disputes or controversies arising out of or connected to or with this Amendment without regard to conflict of law principles. All parts of the Loan Agreement not affected by this Amendment are hereby ratified and
affirmed in all respects, provided that if any provision of the Loan Agreement shall conflict or be inconsistent with this Amendment, the terms of this Amendment shall supersede and prevail. Upon the execution of this Amendment, unless
expressly indicated otherwise, all references to the Loan Agreement in that document, or in any related document, shall mean the Loan Agreement as amended by this Amendment. Except as expressly provided in this Amendment, the execution and
delivery of this Amendment does not and will not amend, modify or supplement any provision of, or constitute a consent to or a waiver of any noncompliance with the provisions of the Loan Agreement, and, except as specifically provided in this
Amendment, the Loan Agreement shall remain in full force and effect.
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b. |
This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This
Amendment and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter
hereof. Delivery of an executed counterpart of a signature page to this Amendment by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Amendment.
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BORROWER:
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KASPIEN INC. (f/k/a Etailz Inc.)
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By:
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Name:
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Title:
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PARENT:
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KASPIEN HOLDINGS INC. (f/k/a Trans World Entertainment Corporation)
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By:
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Name:
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Title:
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AGENT:
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ENCINA BUSINESS CREDIT, LLC
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By:
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Name:
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Title:
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LENDER:
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ENCINA BUSINESS CREDIT SPV, LLC
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By:
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Name:
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Title:
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