Exhibit 99.1
NOTE PURCHASE AGREEMENT
by and among
IP HOLDINGS LLC
AND
ICONIX BRAND GROUP, INC. (f/k/a CANDIE'S, INC.)
AND
MICA FUNDING, LLC
Dated September 16, 2005
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT (this "Agreement") is dated
September 16, 2005 and is by and among IP Holdings LLC, a Delaware limited
liability company (the "Issuer"), Iconix Brand Group, Inc., (f/k/a Candie's,
Inc.), a Delaware corporation ("Iconix"), and Mica Funding, LLC, a Delaware
limited liability company (the "Purchaser").
W I T N E S S E T H
WHEREAS, Iconix, pursuant to that certain Rampage Contribution
Agreement, dated the date hereof, by and between Iconix and the Issuer (the
"Rampage Contribution Agreement"), is contributing certain Assets to the Issuer;
WHEREAS, Iconix presently intends to acquire certain assets
related to the name "JNCO" and to contribute such assets to the Issuer pursuant
to the JNCO Contribution Agreement, which is expected to be substantially
similar to the Rampage Contribution Agreement;
WHEREAS, the Issuer (a) has pledged to Wilmington Trust
Company (the "Trustee") for the benefit of the Noteholders, all of the right,
title and interest (but none of the obligations) in and to the Collateral
pursuant to that certain Third Amended and Restated Indenture, dated as of
September , 2005, by and between the Issuer and the Trustee (the "Third Amended
and Restated Indenture") and (b) contemporaneously herewith has issued its
$103,000,000 IP Holdings LLC Asset-Backed Notes (the "Notes") pursuant to terms
of the Third Amended and Restated Indenture;
WHEREAS, the Issuer desires to sell the Notes to the
Purchaser, and the Purchaser desires to purchase the Notes.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. All capitalized terms used and not otherwise defined
herein shall have the meanings set forth in the Third Amended and Restated
Standard Definitions attached hereto as Appendix A. The Third Amended and
Restated Indenture, the Security Agreements, the Rampage Contribution Agreement,
that certain Amendment No. 2 to Management Agreement, dated the date hereof, by
and among the Manager, the Issuer, IPHM and the Servicer and that certain
Amendment No. 3 to Servicing Agreement, dated the date hereof, by and among the
Issuer, the Servicer and Trustee are collectively referred to herein as the
"Operative Documents".
Section 2. Terms of Issuance of the Notes. The Issuer agrees to sell the Notes,
and subject to the terms and obligations of this Agreement, the Purchaser agrees
to purchase the Notes on the Closing Date for the cash amount of $40,000,000 and
the exchange of the July Notes for the Notes (the "Purchase Price"). The Notes
shall be registered in such names (which may be, if so indicated, a nominee
name) as the Purchaser may direct. The Notes shall include the legend regarding
restrictions on transfer set forth in Section 2.2 of the Third Amended and
Restated Indenture.
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The closing of the sale of the Notes (the "Closing") shall be
held at the office of Xxxxx & XxXxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, 10:00 AM New York City time, on September 16, 2005, (the "Closing Date")
or at such other date and time as may be acceptable to the parties hereto.
The cash portion of the Purchase Price shall be paid to the
Issuer or its designee on the Closing Date by wire transfer of federal funds or
other immediately available funds in accordance with written instructions
furnished by the Issuer not later than two Business Days preceding the Closing
Date. The July Notes shall be delivered to the Trustee, and the Trustee shall
acknowledge receipt thereof, on the Closing Date.
In addition to the delivery of the Notes, the Issuer shall
execute and deliver on the Closing Date (a) each of the Operative Agreements and
(b) an appropriate receipt acknowledging receipt of the Purchase Price for its
Notes.
Section 3. Representations and Warranties of Iconix and the Issuer. Except as
provided in paragraph (b) below, Iconix, for itself, the Manager and IPHM, and
the Issuer, for itself and only itself, severally represent and warrant to the
Purchaser, as of the Closing Date as follows (but (I) in each case only with
respect to the portions of the representations and warranties that specifically
refer to Iconix (and the Manager and IPHM), in the case of Iconix, or the
Issuer, in the case of the Issuer and (II) in the case of information and
documents supplied after the Closing Date, only with respect to such information
and documents supplied by Iconix (or the Manager and IPHM), in the case of
Iconix, or the Issuer, in the case of the Issuer):
(a) Each of the Issuer and the Manager is a limited liability company duly
formed, validly existing and in good standing under the laws of the State
of Delaware, with power and authority to own its properties and conduct its
business as now being and hereafter proposed to be conducted; and each of
the Issuer and the Manager is duly qualified to do business as a foreign
entity in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such
qualification, except in such jurisdictions where the failure to be so
qualified could not reasonably be expected to have a materal adverse effect
on its ability to perform its obligations under the Operative Documents to
which it is a party.
(b) (i) Iconix is a corporation duly formed, validly existing and in good
standing under the laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its business as now
being and hereafter proposed to be conducted; (ii) Iconix is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except in such jurisdictions
where the failure to be so qualified could not reasonably be expected to
have a materal adverse effect on the ability of Iconix to perform its
obligations under the Rampage Contribution Agreement; and (iii) IPHM is
duly qualified to do business as a foreign entity in good standing in all
other jurisdictions in which its ownership or lease of property or the
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conduct of its business requires such qualification, except in such
jurisdictions where the failure to be so qualified could not reasonably be
expected to have a material adverse effect on the ability of IPHM to
perform its obligations under the Operative Documents to which it is a
party.
(c) Each of the Operative Documents, the Notes and this Agreement to which
Iconix, IPHM, the Manager or the Issuer are parties has been duly
authorized and on the Closing Date, each of such documents will have been
duly executed and delivered by the parties thereto.
(d) Assuming the due authorization, execution and delivery thereof by the other
parties thereto, each Operative Document to which the Issuer, IPHM, Iconix
or the Manager is a party will constitute a valid and legally binding
obligation of such party, enforceable in accordance with its respective
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(e) No consent, approval, authorization, or order of, or filing with any
governmental agency or body or any court is required for the consummation
of the transactions contemplated by the Operative Documents or in
connection with the issuance and sale of the Notes by the Issuer.
(f) The consummation of the transactions contemplated by the Operative
Documents to which Iconix, IPHM the Issuer or the Manager, as the case may
be, is a party, and the fulfillment of the terms thereof will not (i)
conflict with or result in a breach of, or constitute a default under, any
of the provisions of any indenture, mortgage, deed of trust, contract, or
other instrument to which any of the Issuer, IPHM, Iconix or the Manager is
a party or by which any of them is bound or (ii) result in a creation or
imposition of any lien (other than the Lien of the Third Amended and
Restated Indenture) upon any of the properties or assets of any of the
Issuer, IPHM, Iconix or the Manager pursuant to the terms of any such
indenture, mortgage, deed of trust, contract or other instrument.
(g) The execution, delivery and performance of each of the Operative Documents
to which any of Iconix, IPHM, the Issuer or the Manager, as the case may
be, is a party, and the issuance and sale of the Notes by the Issuer and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Issuer, IPHM, Iconix, the Manager or any of their properties, or any
agreement or instrument to which the Issuer, IPHM, Iconix or the Manager is
a party or by which the Issuer, IPHM, Iconix or the Manager is bound or to
which any of the properties of the Issuer, IPHM, Iconix or the Manager is
subject, or the organizational documents of the Issuer, IPHM, Iconix or the
Manager and the Issuer has full power and authority to authorize, issue and
sell the Notes as contemplated by this Agreement.
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(h) Each of the Issuer, IPHM, Iconix and the Manager possesses all necessary
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by such
party and has not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Issuer, IPHM, Iconix or the Manager,
as the case may be, would individually or in the aggregate have a material
adverse effect on such party.
(i) Iconix has (i) acquired good and indefeasable title to the Rampage Assets
(as defined in the Rampage Contribution Agreement) (ii) acquired such
assets for fair value, and (iii) consummated such acquisition substantially
in accordance with that certain Asset Purchase Agreement, dated as of
September 16, 2005, by and among Iconix, Rampage Licensing, LLC, a
California limited liability company, Xxxxxxx.xxx, LLC, a Delaware limited
liability company, and Rampage Closing Company, a California corporation,
Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxx Xxxxxxx and
Xxxxx Xxxxx. If the JNCO Acquisition occurs, Iconix will promptly
contribute the stock or assets acquired in connection with the JNCO
Acquisition to the Issuer pursuant to the JNCO Contribution Agreement.
(j) The Licenses include all licenses which relate to any trademark to which
the Issuer shall be a party as licensor.
(k) There are (i) no claims of infringement in connection with use of the
Trademarks, (ii) no proceedings or circumstances which would materially
adversely affect the value of the applications and registrations listed in
Exhibit A-1A to the Rampage Contribution Agreement, and (iii) no facts or
claims that would prevent Iconix from having unrestricted use of the
applications and registrations listed in Exhibit A-1A to the Rampage
Contribution Agreement in connection with the corresponding goods and/or
services.
(l) There are no pending actions, suits or proceedings against or affecting the
Issuer, IPHM, Iconix, the Manager or any of their respective properties
that, if determined adversely to the such party, would individually or in
the aggregate have a material adverse effect on the such party, or would
materially and adversely affect the ability of the Issuer, IPHM, Iconix or
the Manager, as the case may be, to perform its respective obligations
under any of the Operative Documents to which it is a party, or which are
otherwise material in the context of the sale of the Notes; and, to each of
the Issuer's, IPHM's, Iconix's and the Manager's knowledge, no such
actions, suits or proceedings are threatened or contemplated.
(m) Assuming that the Notes are offered in the manner contemplated by this
Agreement, that the Purchaser's representations and warranties in the
investor letter, substantially in the form attached hereto as Exhibit A,
are true and correct in all material respects and that any subsequent
holder of a Note complies with Section 3.5 of the Third Amended and
Restated Indenture, the Issuer is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the United States Investment Company
Act of 1940, as amended, (the "Investment Company Act"); and the Issuer is
not and, after giving effect to the offering and sale of the Notes and the
application of the proceeds thereof, will not be an "investment company" as
defined in the Investment Company Act.
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(n) No form of general solicitation or general advertising was used by Iconix,
IPHM or the Issuer or its representatives in connection with the offer and
sale of the Notes. No investors were solicited or otherwise approached by
Iconix, IPHM or the Issuer or any representative of any of them for the
purpose of offering the Notes for sale who were not institutional
investors. The Issuer has not issued or sold any Notes within the six-month
period immediately preceding the date hereof or securities that could be
integrated with the Notes. Neither the Issuer nor any representative on its
behalf has offered or sold, nor will any of them offer or sell, any Notes
in any manner that would render the issuance and sale of the Notes a
violation of the Securities Act or any state securities or "Blue Sky" laws,
or require registration pursuant thereto, nor has any of them authorized,
nor will any authorize, any Person to act in such manner.
(o) Neither this Agreement nor any other document, certificate or statement
furnished to the Purchaser by or on behalf of the Issuer in connection
herewith contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements contained herein
and therein, in light of the circumstance in which they were made, not
misleading. There is no fact or facts peculiar to Iconix or any of its
Affiliates which materially adversely affects or in the future may (so far
as the Issuer can now reasonably foresee), individually or in the
aggregate, reasonably be expected to materially adversely affect the
business, property or assets, or financial condition of Iconix or any of
its Affiliates and which has not been set forth in this Agreement or in the
other documents, certificates and statements furnished to the Purchaser by
or on behalf of the Issuer prior to the date hereof in connection with the
transactions contemplated hereby.
(p) Assuming that the Purchaser's representations and warranties in the
investor letter, substantially in the form attached hereto as Exhibit A,
are true and correct in all material respects, the offer and sale of the
Notes to the Purchaser in the manner contemplated by this Agreement will be
exempt from the registration requirements of the Securities Act and it is
not necessary to qualify an indenture in respect of the Notes under the
United States Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(q) Each of the representations and warranties of the Issuer, IPHM, Iconix and
the Manager set forth in each of the Operative Documents to which they are
a party is true and correct in all material respects.
(r) No Transaction Document has been terminated or amended, except as pursuant
to the consummation of the transactions contemplated by the Operative
Documents or in connection with the issuance and sale of the Notes by the
Issuer.
(s) Any taxes, fees and other governmental charges in connection with the
execution and delivery of the Operative Documents or the execution,
delivery and sale of the Notes have been or will be paid prior to the
Closing Date.
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Section 4. Representations and Warranties of the Issuer.
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(a) The Notes have been duly authorized; and when the Notes are
authenticated, delivered and paid for pursuant to this Agreement on the
Closing Date, such Notes will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Issuer, enforceable against the Issuer in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(b) The Issuer has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Notes except for
this Agreement.
(c) If the Issuer enters into the JNCO Contribution Agreement, it will
promptly take all such action requested by the Purchaser to subject the
assets described therein to Lien of the Third Amended and Restated
Indenture.
Section 5. Covenants of Iconix and the Issuer.
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(a) Iconix will pay all present and future recording and filing fees, and all
legal, financial and miscellaneous out-of-pocket expenses and costs
incurred in connection with the negotiation and consummation of this
Agreement and closing the transactions hereby contemplated, including, but
not limited to (i) all expenses incidental to the performance of its or the
Manager's obligations under the Operative Documents including all expenses
in connection with the execution, issue, authentication, packaging and
initial delivery of the Notes, the preparation of the Operative Documents
and any other document relating to the issuance, offer, sale and delivery
of the Notes; (ii) the fees and expenses of Standard & Poor's Corporation
CUSIP Service Bureau in connection with obtaining a private placement
number with respect to the Notes; and (iii) the agreed upon fees, expenses
and disbursements of Xxxxx & XxXxxxxx LLP. Without limiting any provisions
of the Operative Documents, the Issuer further agrees that it will pay or
cause to be paid, promptly upon demand, all reasonable expenses incurred by
the Purchaser in connection with the making of any amendments, supplements
or modifications to, or the giving of any release, consent or waiver in
respect of, this Agreement and any Operative Document executed pursuant
hereto or thereto, including the fees and disbursements of counsel for the
Purchaser in connection therewith, in each case that are related to or
arising out of a request of, or an action taken by or that are otherwise
required or caused by, directly or indirectly, the Issuer, IPHM, Iconix or
the Manager, whether or not such modifications or amendments are
consummated or all consents are obtained. Without limiting the any
provisions of the Operative Documents, the Issuer further agrees that it
will pay, or reimburse the Purchaser for, promptly upon demand, all costs
and expenses (including reasonable legal fees and disbursements) incident
to or in connection with (i) any action taken by the Purchaser, in good
faith, to enforce its rights and remedies under this Agreement or any other
Operative Document and (ii) any bankruptcy or insolvency proceedings
involving Iconix or IPHM or any of their Affiliates.
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(b) The Issuer shall use its reasonable efforts to ensure that it will not be
or become, a management company, unit investment trust or face-amount
certificate company that is or is required to be registered under Section 8
of the Investment Company Act, although it may rely on the investor letter
delivered by the Purchaser and assume compliance with the provisions of
Section 3.5 of the Third Amended and Restated Indenture. The Issuer further
agrees to comply with the undertaking stated to be made by it in the final
sentence of paragraph 5 of the investor letter delivered by the Purchaser.
Section 6. Conditions of the Purchaser's Obligations. The obligations of the
Purchaser to purchase and pay for the Notes on the Closing Date will be subject
to the accuracy of the representations and warranties on the part of the Issuer
and Iconix herein, the accuracy of the statements of officers of the Issuer made
pursuant to the provisions hereof, to the performance by the Issuer of its
obligations hereunder and to the following additional conditions precedent:
(a) There shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Issuer, IPHM, Iconix,
the Manager or any of their respective Affiliates which, in the judgment of
the Purchaser, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the purchase of the Notes; (ii)
any downgrading in the rating of any debt securities of Iconix or any of
its Affiliates by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of Iconix or any
of its Affiliates (other than an announcement with positive implications of
a possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of Iconix or any of its Affiliates on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress, any financial market disruption or any other substantial
national or international calamity or emergency if, in the judgment of the
Purchaser, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the purchase of the Notes.
(b) The Notes shall have been duly authorized, executed, authenticated,
delivered and issued and shall be entitled to the benefits of the Third
Amended and Restated Indenture. Each of the Operative Documents and this
Agreement shall have been duly authorized, executed and delivered by the
respective parties thereto and shall be in full force and effect, and all
conditions precedent contained in the Operative Documents shall have been
satisfied.
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(c) The Purchaser and the Trustee shall have each received a counterpart
original, together with any required conformed copies of the Operative
Documents and all closing documents delivered at or prior to the Closing.
(d) The Purchaser and the Trustee shall have each received signature and
incumbency certificates executed by the authorized officers or manager of
each of the Issuer, IPHM, Iconix and the Manager, to enable each of them to
enter in to the Operative Documents to which such entity is a party.
(e) All corporate, limited liability company and other proceedings in
connection with the transactions contemplated hereby and the other
Operative Documents and all documents, opinions and certificates incident
thereto shall be satisfactory in form and in substance to the Purchaser,
and the Purchaser shall have received such other documents and certificates
incident to such transaction as the Purchaser shall reasonably request.
(f) The Purchaser shall have received from counsel to each party to the
Operative Documents (including the Servicer, the Manager and the Trustee),
written opinions dated the Closing Date and in form and substance
satisfactory to the Purchaser, covering such matters as the Purchaser may
reasonably request, including but not limited to the following:
(i) Corporate Opinions. An opinion in respect of each party to the Operative
Documents that such party has been duly formed and is existing and in good
standing under the laws of its State of formation, with all requisite power
and authority to own its properties and conduct its business; and such
party is duly qualified to do business as a foreign entity in good standing
in all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to be so qualified, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect on the financial
position of such party.
(ii) Legal, Valid, Binding and Enforceable. An opinion in respect of each party
to the Operative Documents and this Agreement that each such document to
which it is a party has been duly authorized, executed and delivered and
constitutes the valid and legally binding obligation of each party,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(iii) Notes. An opinion that the Notes have been duly authorized, executed,
authenticated, issued and delivered; and constitute valid and legally
binding obligations of the Issuer, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
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(iv) No Consents Required. An opinion in respect of each party to the Operative
Documents that in respect of such party, no consent, approval,
authorization or order of, or filing with, any governmental agency or body
or any court is required for the consummation of the transactions
contemplated by the Operative Documents, except as set forth or
contemplated therein.
(v) Litigation. An opinion (which may be from the General Counsel of Iconix) in
respect of each party to the Operative Documents that in respect of such
party, to such counsel's knowledge (after due inquiry) there are no pending
actions, suits or proceedings against or affecting such party, any of its
subsidiaries or any of their respective properties that, if determined
adversely to such party or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect, or would materially and
adversely affect the ability of such party to perform its obligations under
the Operative Documents; and to such counsel's knowledge, no such actions,
suits or proceedings are threatened or contemplated.
(vi) Non-Contravention. An opinion (which in the case of clause (a)(ii) and (b)
may be from the General Counsel of Iconix) in respect of each party to the
Operative Documents that, in respect of such party, the execution, delivery
and performance of the Operative Documents to which it is a party will not
result in a breach or violation (a)(i) of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or,
(ii) to such counsel's knowledge, order of any governmental agency or body
or any court having jurisdiction over such party or any subsidiary of such
party or any of their properties, or (b) to such counsel's knowledge, any
agreement or instrument to which such party or any such subsidiary is a
party or, to such counsel's knowledge, by which such party or any such
subsidiary is bound or to which any of the properties of such party or any
such subsidiary is subject, or the organizational documents of such party
or any such subsidiary.
(vii) Securities Laws. An opinion that it is not necessary in connection with
the offer, sale and delivery of Notes by the Issuer to the Purchaser
pursuant to this Agreement to register the Notes under the Securities Act
or to qualify the Third Amended and Restated Indenture under the Trust
Indenture Act.
(viii) Investment Company Act. An opinion that the Issuer is not and, after
giving effect to the offering and sale of the Notes and the application of
the proceeds thereof, will not be an "investment company" as defined in the
Investment Company Act.
(ix) Federal Income Tax. An opinion that for U.S. federal income tax purposes,
the Notes will be treated as indebtedness of the Issuer.
(x) Contribution. An opinion to the effect that in the event that Iconix were
to become a debtor in a case under the Bankruptcy Code, a court of
competent jurisdiction would hold that the Assets would not constitute
property of Iconix's bankruptcy estate.
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(xi) Non-Consolidation. An opinion to the effect that in the event that Iconix
was to become a debtor in a case under the Bankruptcy Code, a court of
competent jurisdiction would not disregard the separate existence of
Iconix, on the one hand, and the Issuer, on the other hand, so as to order
the substantive consolidation of the assets and liabilities of (a) the
Issuer, on the one hand, and (b) Iconix, on the other hand.
(xii) Security Interests. An opinion to the effect that (i) in the event that
the transfer of the Assets from Iconix to the Issuer shall be considered a
loan secured by the Assets, upon execution of the Rampage Contribution
Agreement and upon the filing of financing statements, assignments and
patent and trademark filings with the Patent and Trademark Office and
copyright filings in the Copyright Office related thereto (collectively,
the "Filing Statements"), the Issuer will have a perfected first priority
security interest in the Assets which may be perfected by filing in the
United States, and (ii) upon execution of the Third Amended and Restated
Indenture, and upon the filing of the Filing Statements related thereto,
the Trustee will have a perfected first priority security interest in the
Collateral which may be perfected by filing in the United States.
(xiii) Intellectual Property Title Opinion. An opinion to the effect that (A)
the Issuer owns the Assets contributed pursuant to the Rampage Contribution
Agreement, (B) each application and registration with respect to an Asset
owned by the Issuer is owned by the Issuer and will, upon proper filing or
recording, stand in the name thereof on the records of all relevant office
registries, free and clear of any liens, (C) each Asset relating to a
trademark or copyright contributed by Iconix is a valid trademark or
copyright, as the case may be and (D) to the knowledge of such counsel,
there are no claims or proceedings regarding infringement in connection
with the use of, or threaten the validity or value of the Assets.
(g) The Purchaser shall have received from each party to the Operative
Documents such information, certificates and documents as the Purchaser may
reasonably have requested and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident
hereto shall be in all material respects reasonably satisfactory in form
and substance to the Purchaser.
(h) The CUSIP Service Bureau of Standard & Poor's shall have assigned a private
placement number for the Notes and the Purchaser shall have received
evidence reasonably satisfactory to the Purchaser of such number.
(i) The Purchaser shall have received evidence satisfactory to it from the
Trustee, confirming receipt by the Trustee of the deposit of funds into the
Liquidity Reserve Account pursuant to Section 12.1 of the Third Amended and
Restated Indenture in the amount of $[_______] on the Closing Date.
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(j) The Purchaser shall have received evidence reasonably satisfactory to it
and its special counsel that UCC-1 financing statements and any other
similar statements or documentation with respect to perfection of security
interests in the Assets for the benefit of the Issuer and the Trustee have
been, or will be, filed in the appropriate filing offices in the Covered
Jurisdictions, and all other actions have been taken reflecting the
assignment of the interests of Iconix in the Assets to the Issuer, as
required pursuant to the provisions of the Rampage Contribution Agreement.
(k) The fees and expenses identified in Section 5(a) shall have been paid or
provided for to the satisfaction of the Purchaser.
(l) The Issuer's acceptance of the proceeds of the Notes shall be deemed its
acknowledgement that the conditions to Closing set forth herein have been
complied with as of the Closing Date.
The Purchaser may in its sole discretion waive compliance with any
conditions to the obligations of the Purchaser hereunder.
Section 7. Indemnification.
(a) Each of the Issuer and Iconix jointly and severally agrees (i) to indemnify
and hold harmless the Purchaser, its members, employees, managers,
directors and officers and each person, if any, who controls such Purchaser
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser
may become subject, under the Securities Act or the Securities Exchange Act
of 1934, as amended (the "Exchange Act") or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any breach of any of the representations and
warranties of, or with respect to, the Issuer, IPHM or Iconix contained
herein, provided, however, that (i) the Issuer shall only indemnify the
indemnified parties with respect to breaches of the Issuer's
representations and warranties and not with respect to a breach by any
other party and (ii) Iconix shall not indemnify the indemnified parties
with respect to any breach of an Issuer representation and warranty
pertaining to the Assets or any Issuer continuing representations or
warranties made herein that relate to, or require, action to be taken by
the Issuer after the Closing Date, including the payment of the Notes.
(b) The obligations of the Issuer and Iconix under this Section shall be in
addition to any liability which the Issuer or Iconix may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any,
who controls any Purchaser within the meaning of Section 15 of the
Securities Act or the Exchange Act.
Section 8. Failure to Deliver. If, after 3:00 p.m. on the Closing Date, the
Closing has not yet been consummated and the Issuer has requested the Purchaser
to continue to make the Purchase Price available later that day, and if, by 5:00
p.m. New York City time on such day, the Issuer fails to tender to the Purchaser
the Notes or if the conditions specified in Section 6 hereof have not been
fulfilled or waived by the Purchaser, the Purchaser may thereupon elect to be
relieved of all further obligations under this Agreement. In addition, Iconix
shall pay to the Purchaser interest on the Purchase Price of its Notes at a
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variable per annum rate specified by the Purchaser, from such date until the
next succeeding Business Day on which it is feasible for the Purchaser to invest
such moneys in overnight funds. Nothing in this Section shall relieve the Issuer
or Iconix from any of its obligations hereunder or otherwise or waive any of the
Purchaser's rights against the Issuer or Iconix.
Section 9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuer, Iconix and of the Purchaser or its officers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of the Purchaser, Iconix, the Issuer or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If for any reason the purchase of the Notes by the
Purchaser is not consummated, other than as a result of a breach by the
Purchaser, Iconix shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the obligation of the Issuer and
Iconix pursuant to Section 7 shall remain in effect. If the purchase of the
Notes is not consummated for any reason other than because of either (i) a
failure of the Purchaser to fund after all conditions to Closing have been met
or (ii) the occurrence of any event specified in clause (iii), (iv) or (v) of
Section 6(a), Iconix will reimburse the Purchaser for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by it in
connection with the offering of the Notes.
Section 10. Severability Clause. Any part, provision, representation, or
warranty of this Agreement which is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
Section 11. Notices. All communications hereunder will be in writing and, (A) if
sent to the Purchaser will be mailed, delivered or telegraphed and confirmed to
the Purchaser, at Mica Funding, LLC, c/x Xxxxxxxxx Global Strategies, 000
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, with a copy to PartnerRe New
Solutions Inc., Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000-0000, Attention: Chief
Counsel, (B) if sent to the Issuer, will be mailed, delivered or telegraphed and
confirmed to it at IP Holdings LLC, 000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000, Attention: General Counsel, or (C) if sent to Iconix, will be mailed,
delivered or telegraphed and confirmed to it at Iconix Brand Group, Inc., 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel; provided,
however, that any notice to the Purchaser pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Purchaser.
Section 12. Successors and Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the controlling persons referred to in Section 7 and no other
person, other than as expressly provided in this paragraph, will have any right
or obligation hereunder. It is agreed by the parties hereto that PartnerRe shall
be a third-party beneficiary of the obligations of the Issuer, IPHM and Iconix
hereunder.
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Section 13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICT OF LAW PROVISIONS. The Issuer, the Purchaser and Iconix hereby submit
to the non-exclusive jurisdiction of the Federal and state courts in the Borough
of Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
Section 14. Counterparts, etc. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof between the Purchaser, Iconix and the Issuer. Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom enforcement of such change, waiver,
discharge or termination is sought. This Agreement may be signed in any number
of counterparts each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
Section 15. No Petition. (a) During the term of this Agreement and for one year
and one day after the retirement of the Notes, none of the parties hereto or any
affiliate thereof will file any involuntary petition or otherwise institute any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceeding under any federal or state bankruptcy or similar law against
the Issuer. The obligations of such parties under this Section 15(a) shall
survive any termination of this Agreement.
(b) Each of the parties hereto (other than the Purchaser)
agrees that it will not institute against, or join any other person in
instituting against, the Purchaser any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding, or other similar proceeding under the laws
of any jurisdiction, for one year and one day after the latest maturing
commercial paper note of the Purchaser is paid in full. The obligations of such
parties under this Section 15(b) shall survive any termination of this
Agreement.
Section 16. Limited Recourse. The obligations of the Purchaser under this
Agreement are solely the obligations of the Purchaser. No recourse shall be had
for the payment of the Purchase Price or any other obligation or claim of or
against the Purchaser arising out of or based upon this Agreement, against any
employee, officer, director, affiliate, member or manager of the Purchaser or
any affiliate of such person (other than with respect to Section 17 below);
provided, however, that the foregoing shall not relieve any such person of any
liability it might otherwise have as a result of fraudulent actions or omissions
taken by it. Each party to this Agreement (other than the Purchaser) agrees that
the Purchaser shall be liable for any claims that such party may have against
the Purchaser only to the extent the Purchaser has funds in excess of those
needed by it to pay amounts due from it on matured or maturing commercial paper
notes or due from it to hedge counterparties in connection with its commercial
paper program. Any and all claims by any such party against the Purchaser shall
be unsecured and subordinate to the claims of the holders of the Purchaser's
commercial paper notes and of all other secured parties under the Purchaser's
commercial paper program.
Section 17. Confidentiality. Neither Iconix, the Purchaser nor any of their
respective Affiliates shall make any announcement or disclosure regarding the
participation of PartnerRe or any of its Affiliates in connection with the
transactions contemplated in the Operative Documents, without the prior written
consent of PartnerRe, except that Iconix or the Purchaser may disclose such
information to such Person's external accountants and attorneys and as required
14
by any supervisory regulatory authority to which the disclosing party is subject
or under applicable law or order in connection with any judicial proceeding. If,
for any other reason than a breach of this Section 17 by Iconix and the
Purchaser or a breach of any another confidentiality agreement between PartnerRe
and the parties hereto, the confidential information herein otherwise becomes
public, then Iconix and the Purchaser shall be permitted to disclose such public
information.
Section 18. Survival of Note Purchase Agreement Representations and Warranties.
Each of the Issuer and Iconix agree that each representation and warranty made
by it in the Note Purchase Agreement shall survive notwithstanding the exchange
of the Original Notes and the Subordinate Notes for the July Notes or the
exchange of the July Notes for the Notes. Each of the representations and
warranties of the Issuer and Iconix in the Note Purchase Agreement and the 2005
Note Purchase Agreement are true and correct as of the date thereof and are
hereby incorporated by reference.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year above first written.
ICONIX BRAND GROUP, INC.
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Chief Executive Officer
IP HOLDINGS LLC
by: IP Holdings and Management Corporation
its Manager
by: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
MICA FUNDING, LLC
by: Xxxxxxxxx Global Strategies LLC
its Investment Advisor
by: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director, Xxxxxxxxx Global
Strategies, LLC
16
LIST OMITTED APPENDICES AND EXHIBITS
1. APPENDIX A - DEFINITIONS
2. EXHIBIT A - FORM OF INVESTOR LETTER
