THIRD AMENDMENT TO CREDIT AGREEMENTCredit Agreement • July 9th, 2010 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
This CREDIT AGREEMENT (this “Agreement”), dated as of March 20, 2006 (as amended by the First Amendment dated as of June 21, 2007 (the “First Amendment Effective Date”), the Consent and Second Amendment dated as of August 8, 2008 (the “Second Amendment Effective Date”) and the Third Amendment dated as of July 7, 2010 (the “Third Amendment Effective Date”)), is entered into by and among HARRY AND DAVID, an Oregon corporation (“Borrower”), HARRY & DAVID HOLDINGS, INC., a Delaware corporation (“Holdings”), the other Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I), the Lenders, UBS SECURITIES LLC, as lead arranger (in such capacity, “Arranger”), UBS LOAN FINANCE LLC, as a Lender and as swingline lender (in such capacity, “Swingline Lender”), UBS AG, STAMFORD BRANCH (“UBS AG”), as issuing bank (in such capacity, “Issuing Bank”), as the administrative collateral agent (in such capacity, the “Administrative Collate
125.0 MILLION AMENDED AND RESTATED CREDIT AGREEMENT dated as of February 25, 2005, among BEAR CREEK CORPORATION, as Borrower, BEAR CREEK HOLDINGS INC. (formerly known as Pear Acquisition Inc.) and THE OTHER GUARANTORS PARTY HERETO, as Guarantors, THE...Credit Agreement • August 4th, 2005 • Harry & David Holdings, Inc. • New York
This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) dated as of February 25, 2005 is among BEAR CREEK CORPORATION, a Delaware corporation (the “Borrower”), BEAR CREEK HOLDINGS INC., a Delaware corporation formerly known as Pear Acquisition Inc. (“Holdings”), the other Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I), the Lenders, UBS SECURITIES LLC, as lead arranger (in such capacity, “Arranger”), UBS LOAN FINANCE LLC, as a Lender and as swingline lender (in such capacity, “Swingline Lender”), UBS AG, STAMFORD BRANCH (“UBS AG”), as issuing bank (in such capacity, “Issuing Bank”), as the administrative collateral agent (in such capacity, the “Administrative Collateral Agent”) and as administrative agent (in such capacity, “Administrative Agent”) for the Lenders and GMAC COMMERCIAL FINANCE LLC, as collateral agent (in such capacity, the “Collateral Agent”) for the Secured Parties and Issuing Bank.
HARRY & DAVID HOLDINGS, INC. NON-QUALIFIED STOCK OPTION AGREEMENTNon-Qualified Stock Option Agreement • February 12th, 2010 • Harry & David Holdings, Inc. • Retail-retail stores, nec • Delaware
IN WITNESS WHEREOF, Harry & David Holdings, Inc. has caused this Agreement to be executed on its behalf by its duly authorized officer, and Optionee has also executed this Agreement in duplicate, as of the day and year first above written.
EMPLOYMENT AGREEMENTEmployment Agreement • August 4th, 2005 • Harry & David Holdings, Inc. • Delaware
THIS EMPLOYMENT AGREEMENT is made as of June 17, 2004 (this “Agreement”), by and between Bear Creek Corporation, a Delaware corporation (the “Company”), and William H. Williams (“Executive”).
THIS TERM SHEET IS NOT A SOLICITATION OF ACCEPTANCES OR REJECTIONS WITH RESPECT TO ANY RESTRUCTURING OR PRE-ARRANGED PLAN OR AN OFFER OR SOLICITATION FOR THE SALE OF SECURITIES OF ANY KIND. TERMS FOR PROPOSED RESTRUCTURING OF HARRY & DAVID HOLDINGS,...Harry & David Holdings, Inc. • May 10th, 2011 • Retail-retail stores, nec
This term sheet (“Term Sheet”), which amends and restates Exhibit A to the Support Agreement dated March 27, 2011 (the “Support Agreement”), describes certain of the principal terms of a proposed restructuring (the “Restructuring”) for Harry & David Holdings, Inc., and its direct and indirect subsidiaries (together “HD”). As described in greater detail herein, the Restructuring shall be consummated through the “Pre-Arranged Plan” (as defined in the Support Agreement) pursuant to voluntary chapter 11 cases (the “Cases”) to be filed with the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”).
BEAR CREEK CORPORATION AND EACH OF THE GUARANTORS PARTY HERETO SENIOR FLOATING RATE NOTES DUE 2012 9.0% SENIOR NOTES DUE 2013Indenture • August 4th, 2005 • Harry & David Holdings, Inc. • New York
INDENTURE dated as of February 25, 2005 among BEAR CREEK CORPORATION, a Delaware corporation, the Guarantors (as defined) and WELLS FARGO BANK, N.A., as trustee.
SUPPORT AGREEMENTSupport Agreement • March 28th, 2011 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
This SUPPORT AGREEMENT (the “Agreement”) is made and entered into as of March 27, 2011, by and among Harry & David Holdings, Inc., a Delaware corporation, and its subsidiaries (collectively, “HD”); and each of the undersigned holders (together the “Principal Holders”), which persons or entities are record or beneficial owners or investment advisors or managers of beneficial owners (each, a “Holder”), of the Senior Floating Rate Notes due 2012 and/or 9.0% Senior Notes due 2013 (the “Notes”) issued by HD pursuant to that certain indenture dated February 25, 2005 (the “Indenture”). HD, the Principal Holders and any subsequent person that becomes a party hereto in accordance with the terms hereof are referred to herein as the “Parties” and individually as a “Party”.
FIRST AMENDMENT TO CREDIT AGREEMENTCredit Agreement • September 14th, 2007 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is effective as of June 21, 2007 by and among HARRY & DAVID OPERATIONS CORP., a Delaware corporation (“Borrower”), the Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I of the Credit Agreement referenced below), the Required Lenders signatory hereto, UBS AG, STAMFORD BRANCH, as administrative collateral agent and as administrative agent (in its capacity as administrative agent, the “Administrative Agent”) for the Lenders, and GMAC Commercial Finance LLC, as collateral agent (the “Collateral Agent”) for the Secured Parties and Issuing Bank.
Yamanouchi Consumer Inc.Stock Purchase Agreement • November 3rd, 2005 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
In connection with the Stock Purchase Agreement dated as of April 1, 2004 (the “SPA”), among Bear Creek Holdings Inc. (formerly known as Pear Acquisition Inc.) (“Buyer”), Yamanouchi Consumer Inc., Yamanouchi Pharmaceutical Co., Ltd. and Yamanouchi U.S. Holding Inc., the parties to the SPA hereby agree as follows:
ContractEmployment Agreement • February 12th, 2010 • Harry & David Holdings, Inc. • Retail-retail stores, nec • Oregon
EMPLOYMENT AGREEMENT dated as of February 8, 2010 (this “Agreement”), between Harry and David, an Oregon corporation (the “Company”), and Steven J. Heyer (“Executive”). The Company and Executive are referred to individually in this Agreement as a “Party” and collectively as the “Parties.”
Yamanouchi Consumer Inc.Harry & David Holdings, Inc. • November 3rd, 2005 • Retail-retail stores, nec • New York
In connection with the Stock Purchase Agreement (the “Bear Creek SPA”) dated as of April 1, 2004, among Pear Acquisition Inc. (“Pear”), Yamanouchi Consumer Inc. (“YCI”), Yamanouchi Pharmaceutical Co, Ltd. (“YPCL”) and Yamanouchi U.S. Holding Inc. (“YUH”), the parties to the Bear Creek SPA hereby agree as follows:
ASSET PURCHASE AGREEMENT among JACKSON & PERKINS OPERATIONS, INC., WASCO REAL PROPERTIES I, LLC and WASCO REAL PROPERTIES II, LLCAsset Purchase Agreement • May 15th, 2007 • Harry & David Holdings, Inc. • Retail-retail stores, nec • California
ASSET PURCHASE AGREEMENT dated as of March 30, 2007 (this “Agreement”), among Jackson & Perkins Operations, Inc., a Delaware corporation (the “Seller”), Wasco Real Properties I, LLC, a California limited liability corporation (“Wasco I”), and Wasco Real Properties II, LLC, a California limited liability corporation (“Wasco II” and together with Wasco I, the “Purchasers”). The Seller and the Purchasers are referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used herein are defined in Article I below.
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENTAsset Purchase Agreement • May 15th, 2007 • Harry & David Holdings, Inc. • Retail-retail stores, nec • California
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT dated as of April 17, 2007 (this “Amendment”), among JACKSON & PERKINS OPERATIONS, INC., a Delaware corporation (“Seller”), WASCO REAL PROPERTIES I, LLC, a California limited liability company (“Wasco I”), and WASCO REAL PROPERTIES II, LLC, California limited liability company (“Wasco II”). All capitalized terms used in this Amendment which are not defined herein have the meaning set forth in the Asset Purchase Agreement dated as of March 30, 2007 (the “Agreement”) among Seller, Wasco I and Wasco II. Wasco I and Wasco II are collectively referred to as “Buyer.” Buyer and Seller are singularly referred to as a “Party” and collectively as the “Parties.”
HARRY & DAVID HOLDINGS, INC. BACKSTOP STOCK PURCHASE AGREEMENT Dated as of March 27, 2011Backstop Stock Purchase Agreement • March 28th, 2011 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
THIS BACKSTOP STOCK PURCHASE AGREEMENT (as amended, supplemented or otherwise modified from time to time, together with any schedules, exhibits and annexes hereto, this “Agreement”) is entered into as of March 27, 2011, by and among (a) Harry & David Holdings, Inc., a Delaware corporation (as in existence on the date hereof, as a debtor-in-possession in the Chapter 11 Cases (as defined below) and as a reorganized debtor, as applicable, the “Company”), (b) Harry and David, an Oregon corporation (“HD”), and each of the other Affiliates (as defined below) of the Company listed on the signature pages hereto under the title “Debtors” (such Affiliates, each as in existence on the date hereof, as a debtor-in-possession in the Chapter 11 Cases and as a reorganized debtor, as applicable, together with the Company, each a “Debtor” and, collectively, the “Debtors”), and (c) each of the undersigned entities and/or their investment advisors, managers, managed funds or accounts, intermediaries or no
PURCHASE AGREEMENTPurchase Agreement • May 15th, 2007 • Harry & David Holdings, Inc. • Retail-retail stores, nec • Oregon
PURCHASE AGREEMENT dated as of April 10, 2007 (this “Agreement”), between Bear Creek Operations, Inc., a Delaware corporation (the “Seller”), and J&P Acquisition Inc., a Delaware corporation (the “Purchaser”). The Seller and the Purchaser are referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used herein are defined in Article I below.
ASSUMPTION AGREEMENTAssumption Agreement • February 8th, 2008 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
THIS ASSUMPTION AGREEMENT (“Agreement”) dated as of this 30th day of November, 2007 is made by Harry and David, an Oregon corporation (the “New Borrower”), pursuant to the Credit Agreement dated as of March 20, 2006 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among Harry and David Operations Corp., a Delaware corporation (the “Old Borrower”), Harry & David Holdings, Inc., a Delaware corporation, the other Guarantors party thereto, the Lenders party thereto, UBS Securities LLC, as Arranger, UBS Loan Finance LLC, as a Lender and Swingline Lender, UBS AG, Stamford Branch, as Issuing Bank, Administrative Collateral Agent and Administrative Agent, and GMAC Commercial Finance LLC, as Collateral Agent. Capitalized terms used herein without definition shall have the meanings ascribed thereto in the Credit Agreement.
PURCHASE AGREEMENT among HARRY & DAVID OPERATIONS CORP., BEAR CREEK DIRECT MARKETING, INC., JACKSON & PERKINS OPERATIONS, INC., J&P ACQUISITION INC. and DONALD HACHENBERGER AND GLENDA HACHENBERGERPurchase Agreement • May 15th, 2007 • Harry & David Holdings, Inc. • Retail-retail stores, nec • Delaware
PURCHASE AGREEMENT dated as of March 30, 2007 (this “Agreement”), among Harry & David Operations Corp., a Delaware corporation (“HDOC”), Jackson & Perkins Operations, Inc., a Delaware corporation (“J&P Operations”), Bear Creek Direct Marketing, Inc., a Delaware corporation (“BCDM” and together with HDOC and J&P Operations, the “Sellers”), J&P Acquisition Inc., a Delaware corporation (the “Purchaser”), and Donald Hachenberger and Glenda Hachenberger, as guarantors (the “Guarantors”). The Sellers, the Purchaser and the Guarantors are referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used herein are defined in Article I below.
CONSENT AND SECOND AMENDMENT TO CREDIT AGREEMENTCredit Agreement • September 19th, 2008 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
This CONSENT AND SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is effective as of August 8, 2008 by and among HARRY AND DAVID, an Oregon corporation (as successor by merger to Harry & David Operations Corp., a Delaware corporation) (“Borrower”), the Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in the Credit Agreement referenced below), the Lenders signatory hereto, UBS AG, STAMFORD BRANCH, as administrative collateral agent and as administrative agent (in its capacity as administrative agent, the “Administrative Agent”) for the Lenders, and GMAC Commercial Finance LLC, as collateral agent (the “Collateral Agent”) for the Secured Parties and Issuing Bank.
STOCK PURCHASE AGREEMENT dated as of APRIL 1, 2004 among PEAR ACQUISITION INC., YAMANOUCHI CONSUMER INC., YAMANOUCHI PHARMACEUTICAL CO., LTD. and YAMANOUCHI U.S. HOLDING INC. relating to the purchase and sale of 100% of the Common Stock of BEAR CREEK...Stock Purchase Agreement • November 3rd, 2005 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
AGREEMENT (the “Agreement”) dated as of April 1, 2004, among Pear Acquisition Inc., a Delaware corporation (“Buyer”), Yamanouchi Consumer Inc., a Delaware corporation (“Seller”), Yamanouchi Pharmaceutical Co., Ltd. and Yamanouchi U.S. Holding Inc.
CONSENT AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENTCredit Agreement • August 4th, 2005 • Harry & David Holdings, Inc. • New York
This CONSENT AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is effective as of April 8, 2005 by and among BEAR CREEK CORPORATION, a Delaware corporation (“Borrower”), the Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in Article I of the Credit Agreement referenced below), the Required Lenders signatory hereto, UBS AG, STAMFORD BRANCH, as administrative agent (the “Administrative Agent”) for the Lenders, and GMAC Commercial Finance LLC, as collateral agent (the “Collateral Agent”; and together with the Administrative Agent, the “Agents”) for the Secured Parties and Issuing Bank.
FIRST SUPPLEMENTAL INDENTUREFirst Supplemental Indenture • February 8th, 2008 • Harry & David Holdings, Inc. • Retail-retail stores, nec • New York
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 30, 2007, among Harry and David, an Oregon corporation (the “Successor”), a Guarantor under the Indenture referred to below, and a subsidiary of Harry & David Operations Corp. (formerly Bear Creek Corporation), a Delaware corporation (the “Predecessor”), the Guarantors party hereto and Wells Fargo Bank, N.A., as trustee under the Indenture referred to below (the “Trustee”).
