AMENDED AND RESTATED FINANCING AGREEMENT
Execution
Copy
AMENDED
AND RESTATED FINANCING AGREEMENT
Amended
and Restated Financing Agreement, dated as of January 28, 2008, by and among
Frederick’s of Hollywood Group Inc., a New York corporation (“Group”), FOH
Holdings, Inc., a Delaware corporation (the “Parent”), Frederick’s of
Hollywood, Inc., a Delaware corporation (“Frederick’s”), Frederick’s of
Hollywood Stores, Inc., a Nevada corporation (“Stores”), Hollywood Mail
Order, LLC, a Nevada limited liability company (“Mail Order” and together with
Group, the Parent, Frederick’s and Stores, individually, a “Borrower”, and
collectively, the “Borrowers”), the financial institutions from time to time
party hereto (individually a “Lender” and collectively, the “Lenders”) and
Xxxxx Fargo Retail Finance II, LLC (as successor to Xxxxx Fargo Retail Finance,
LLC), a Delaware limited liability company, as arranger and agent for the
Lenders (in such capacity, the “Agent”).
RECITALS
WHEREAS,
the Borrowers (other than Group), the Agent and certain other financial
institutions are parties to a certain Financing Agreement, dated as of January
7, 2003 (as so amended, the “Existing Agreement”);
WHEREAS,
the Parent as sole stockholder and sole member of Frederick’s, Stores and Mail
Order, as applicable, has entered into an Agreement and Plan of Merger and
Reorganization, dated as of December 18, 2006 (the “Acquisition Agreement”),
with Group and Xxxx Merger Corp., a Delaware corporation and wholly-owned
Subsidiary of Group (“Xxxx”), pursuant to which Xxxx shall merge with
and into the Parent (the “Merger”), with the Parent surviving such merger and
becoming a wholly-owned Subsidiary of Group; and
WHEREAS,
contemporaneously with the consummation of the Merger, the Lenders, the
Borrowers and the Agent are willing to amend and restate the Existing Agreement
on the terms and subject to the conditions set forth herein, including the
addition of Group as a borrower thereunder.
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the receipt and adequacy of which are hereby acknowledged, the
Borrowers, the Lenders and the Agent hereby agree as follows:
ARTICLE
I
DEFINITIONS;
CERTAIN TERMS
SECTION
1.01. Definitions. As
used in this Agreement, the following terms shall have the respective meanings
indicated below, such meanings to be applicable equally to both the singular and
plural forms of such terms:
“Account Debtor” means
each debtor, customer or obligor in any way obligated on or in connection with
any Account Receivable or any Credit Card Account.
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“Account Receivable”
means any and all rights of the Borrowers to payment for goods sold and services
rendered, including accounts, general intangibles and any and all such rights
evidenced by chattel paper, instruments or documents, whether due or to become
due and whether or not earned by performance, and whether now or hereafter
acquired or arising in the future and any proceeds arising therefrom or relating
thereto, but excluding all Credit Card Accounts.
“ACH Transactions”
means any cash management or related services (including the Automated Clearing
House processing of electronic funds transfers through the direct Federal
Reserve Fedline system) provided by Xxxxx Fargo or its Affiliates for the
account of Administrative Borrower or its Subsidiaries.
“Acquisition” means
the Acquisition by Group of all of the Capital Stock of the Parent pursuant to
the terms of the Acquisition Agreement.
“Acquisition
Agreement” has the meaning set forth in the Recitals.
“Acquisition
Documents” has the meaning set forth in Section
6.01(ff).
“Action” has the
meaning specified therefor in Section 12.12.
“Administrative
Borrower” means Group.
“Affiliate” means, as
to any Person, any other Person that directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such Person. For purposes of this definition, “control” of a Person
means the power, directly or indirectly, either to (i) vote 10% or more of the
Capital Stock having ordinary voting power for the election of directors of such
Person or (ii) direct or cause the direction of the management and policies of
such Person whether by contract or otherwise. Notwithstanding
anything herein to the contrary, in no event shall the Agent or any Lender be
considered an “Affiliate” of any Loan Party.
“Agent” has the
meaning specified therefor in the Recitals.
“Agent’s Account”
means an account at a bank designated by the Agent from time to time as the
account into which the Borrowers shall make all payments to the Agent for the
benefit of the Lenders and into which the Lenders shall make all payments to the
Agent under this Agreement and the other Loan Documents; unless and until the
Agent notifies Administrative Borrower and the Lenders to the contrary, the
Agent’s Account shall be that certain deposit account bearing account number
323-266193 and maintained by the Agent with JPMorgan Chase Bank in New York, New
York.
“Agent Advances” has
the meaning specified therefor in Section 10.08(a).
“Agreement” means this
Financing Agreement, including all amendments, modifications and supplements and
any exhibits or schedules to any of the foregoing, and shall refer to the
Agreement as the same may be in effect at the time such reference becomes
operative.
“Applicable Import L/C
Margin” means three quarters of one percent (0.75%).
“Applicable Standby L/C
Margin” means one and one half percent (1.50%).
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“Applicable Margin” means with
respect to all outstanding Revolving Loans maintained as (i) Base Rate Loans, a
rate equal to one-quarter of one percent (0.25%) per annum, and (ii) LIBOR Rate
Loans, a rate equal to one and one-half percent (1.50%) per annum.
“Assignment and
Acceptance” means an assignment and acceptance entered into by an
assigning Lender and an assignee, and accepted by the Agent, in accordance with
Section 12.07 hereof and substantially in the form of Exhibit F
hereto.
“Authorized Officer”
means, as to any Person, any officer or other employee of such
Person.
“Availability” means,
at any time, the amount by which (i) the lesser of (A) the Borrowing Base
and (B) the Total Revolving Credit Commitment, exceeds the sum of
(x) the aggregate outstanding principal amount of Revolving Loans plus
(y) Letter of Credit Obligations.
“Availability
Reserves” means such reserves as the Agent from time to time determines
in the Agent’s Permitted Discretion as being appropriate to reflect the
impediments to the Agent’s and the Lenders’ ability to realize upon the
Collateral. Without limiting the generality of the foregoing,
Availability Reserves may include, without limitation, reserves based on the
following:
(a) rent
(i) based upon past due rent for any leased store location, and/or (ii) based
upon one month’s rent for any leased store location in a Landlord Lien State or
in a One Turn State for which an acceptable Collateral Access Agreement has not
been received by the Agent (irrespective of whether any rent is currently due),
in each case in an amount to be determined by the Agent in its Permitted
Discretion;
(b) fifty
percent (50%) of the amount of in store customer deposits, merchandise credits
and gift certificates;
(c) payables
(based upon payables which are past due normal trade terms);
(d) frequent
shopper programs;
(e) layaway
and customer deposits;
(f) unpaid
taxes and other governmental charges, including ad valorem, personal property,
and other taxes which may have priority over the security interests of the Agent
and the Lenders in the Collateral; and
(g) held
or post-dated checks.
“Bailee Agreement”
means an agreement substantially in the form of Exhibit D hereto
(completed in form and substance reasonably satisfactory to the Agent in its
Permitted Discretion), or similar agreement in form and substance satisfactory
to Agent in its Permitted Discretion, duly executed and delivered by the
applicable Customs Broker, bailee, warehouseman, or similar party, as the case
may be, and Borrower.
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“Bank Product
Agreements” means those certain cash management service agreements
entered into from time to time by Administrative Borrower or its Subsidiaries in
connection with any of the Bank Products.
“Bank Product
Obligations” means all obligations, liabilities, contingent reimbursement
obligations, fees, and expenses owing by Administrative Borrower or its
Subsidiaries to Xxxxx Fargo or its Affiliates pursuant to or evidenced by the
Bank Product Agreements and irrespective of whether for the payment of money,
whether direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising, and including all such amounts that a Borrower is
obligated to reimburse to the Agent or any member of the Lender Group as a
result of the Agent or such member of the Lender Group purchasing participations
or executing indemnities or reimbursement obligations with respect to the Bank
Products provided to Administrative Borrower or its Subsidiaries pursuant to the
Bank Product Agreements.
“Bank Product Reserve”
means, as of any date of determination, the amount of reserves, not to exceed
$5,000,000, that the Agent has established (based upon Xxxxx Fargo’s or its
Affiliate’s reasonable determination of the credit exposure in respect of then
extant Bank Products) for Bank Products then provided or
outstanding.
“Bank Products” means
any service or facility extended to Administrative Borrower or its Subsidiaries
(at the request of any such Person) by Xxxxx Fargo or any Affiliate of Xxxxx
Fargo including: (a) credit cards, (b) credit card processing
services, (c) debit cards, (d) purchase cards, (e) ACH Transactions, (f) cash
management, including controlled disbursement, accounts or services or
(g) Hedge Agreements.
“Bankruptcy Code”
means Title 11 of the United States Code.
“Base LIBOR Rate”
means the rate per annum, determined by the Agent in accordance with its
customary procedures, and utilizing such electronic or other quotation sources
as it considers appropriate (rounded upwards, if necessary, to the next 1/16%),
on the basis of the rates at which Dollar deposits are offered to major banks in
the London interbank market on or about 11:00 a.m. (Boston, Massachusetts time)
two (2) Business Days prior to the commencement of the applicable Interest
Period, for a term and in amounts comparable to the Interest Period and amount
of the LIBOR Rate Loan requested by Administrative Borrower in accordance with
this Agreement, which determination shall be conclusive in the absence of
manifest error.
“Base Rate” means the
rate of interest announced within Xxxxx Fargo at its principal office in San
Francisco as its “prime rate”, with the understanding that the “prime rate” is
one of Xxxxx Fargo’s base rates (not necessarily the lowest of such rates) and
serves as the basis upon which effective rates of interest are calculated for
those loans making reference thereto and is evidenced by the recording thereof
after its announcement in such internal publication or publications as Xxxxx
Fargo may designate.
“Base Rate Loan” means
each portion of a Revolving Loan that bears interest at a rate determined by
reference to the Base Rate.
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“Blocked Person” has
the meaning specified therefor in Section 7.02(u).
“Board” means the
Board of Governors of the Federal Reserve System of the United
States.
“Borrower” and “Borrowers” have the
meanings specified therefor in the preamble hereto.
“Borrowing Base”
means, at any time, the difference between:
(i) the
sum of
(A)
Ninety percent (90%) of the Eligible Credit Card Accounts at such
time,
(B)
Ninety percent (90%) of the Eligible Wal-Mart Account Receivables at such
time,
(C)
Eighty five percent (85%) of the Other Eligible Account Receivables at such
time,
(D) One
hundred percent (100%) of the Cost on the Borrowers’ Eligible Warehouse Liquid
Inventory, provided that at no
time shall the amount attributable to Eligible In Transit Inventory pursuant to
paragraphs (D, (E) and (F), exceed $15,000,000 in the aggregate,
(E) Ninety percent (90%) of the then current
Net Retail Liquidation Value of Eligible Retail Inventory, provided that at no
time shall the amount attributable to Eligible In Transit Inventory pursuant to
paragraphs (D, (E) and (F), exceed $15,000,000 in the aggregate, and
(F) The
lesser of (x) sixty percent (60%) of Eligible Wholesale Inventory, which shall
include inventory supported by documentary Letters of Credit (in such form as
acceptable to the Agent in its sole discretion), or (y) eighty five percent
(85%) of the then current Net Retail Liquidation Value of Eligible Wholesale
Inventory, which shall include inventory supported by documentary Letters of
Credit (in such form as acceptable to the Agent in its sole discretion), provided that at no
time shall the amount attributable to Eligible In Transit Inventory pursuant to
paragraphs (D, (E) and (F), exceed $15,000,000 in the aggregate,
(ii)
minus, the sum
of (A) Required Minimum Availability Reserve, (B) Availability Reserves and (C)
without duplication, such other Reserves as the Agent may deem appropriate in
the exercise of its reasonable business judgment based upon the lending
practices of the Agent, which may include, without limitation reserves for
freight and duty with respect to outstanding Letters of Credit; provided that the
Agent shall have the right to have the Inventory reappraised by an independent
appraiser selected by the Agent from time to time for the purpose of
redetermining the advance rates of the Eligible Inventory and, as a result, the
Borrowing Base.
“Borrowing Base
Certificate” means a certificate (in the form of Exhibit J hereto, as
such form may be revised from time to time by the Agent), signed by the chief
operating officer or chief financial officer of the Borrowers and setting forth
the calculation of the Borrowing Base, together with separate calculations
showing the Borrower’s Inventory, Eligible Warehouse Liquid Inventory, Eligible
Retail Inventory, Eligible Wholesale Inventory and Eligible In Transit
Inventory, in compliance with Section 7.01(a).
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“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks in
Los Angeles, California and New York, New York are authorized or required to
close, except that, if a determination of a Business Day shall relate to a LIBOR
Rate Loan, the term “Business Day” also shall exclude any day on which banks are
closed for dealings in Dollar deposits in the London interbank
market.
“Capital Expenditures”
means, with respect to any Person for any period, the sum of (i) the
aggregate of all expenditures by such Person and its Subsidiaries during such
period that in accordance with GAAP are or should be included in “property,
plant and equipment” or similar fixed asset account on its balance sheet,
whether such expenditures are paid in cash or financed and including all
Capitalized Lease Obligations paid or payable during such period, and (ii) to
the extent not covered by clause (i) above, the aggregate of all expenditures by
such Person and its Subsidiaries to acquire by purchase or otherwise the
business or fixed assets of, or the Capital Stock of, any other Person, minus, with regard to
the equipment that is purchased by such Person and its Subsidiaries
simultaneously with the trade-in of existing equipment, fixed assets or
improvements, the credit granted by the seller of such equipment for the
trade-in of such equipment, fixed assets or improvements.
“Capital Guideline”
means any law, rule, regulation, policy, guideline or directive (whether or not
having the force of law and whether or not the failure to comply therewith would
be unlawful) (i) regarding capital adequacy, capital ratios, capital
requirements, the calculation of a bank’s capital or similar matters, or (ii)
affecting the amount of capital required to be obtained or maintained by the
Lenders any Person controlling any Lender, or the L/C Issuer or the manner in
which the Lenders, any Person controlling any Lender or the L/C Issuer allocate
capital to any of their contingent liabilities (including letters of credit),
advances, acceptances, commitments, assets or liabilities.
“Capitalized Lease”
means, with respect to any Person, any lease of real or personal property by
such Person as lessee which is required under GAAP to be capitalized on the
balance sheet of such Person.
“Capitalized Lease
Obligations” means, with respect to any Person, obligations of such
Person and its Subsidiaries under Capitalized Leases, and, for purposes hereof,
the amount of any such obligation shall be the capitalized amount thereof
determined in accordance with GAAP.
“Capital Stock” means
(i) with respect to any Person that is a corporation, any and all shares,
interests, participations or other equivalents (however designated and whether
or not voting) of corporate stock, and (ii) with respect to any Person that is
not a corporation, any and all partnership, membership or other equity interests
of such Person.
“Cash Management
Account” has the meaning specified therefor in Section
2.07(a).
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“Cash Management
Agreements” means those certain cash management service agreements, each
in form and substance satisfactory to the Agent and each of which is among
Administrative Borrower, the Agent, and one of the Cash Management
Banks.
“Cash Management Bank”
has the meaning specified therefor in Section 2.07(a).
“Catalog Publishing
Contract” means the Printing Agreement, dated as of April 7, 1998, by and
between Mail Order and Quebecor Printing (USA) Corp., a Delaware corporation, as
such agreement may be amended, modified, extended or renewed from time to
time.
“Change in Law” means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender or the L/C Issuer (or,
for purposes of Section 2.13(b), by any lending office of such Lender or L/C/
Issuer or by such Lender’s or L/C Issuer’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
“Change of Control”
means each occurrence of any of the following:
(a) Permitted
Holders fail to own and control, directly or indirectly, 51%, or more, of the
Capital Stock of Group having the right to vote for the election of members of
the Board of Directors of Group;
(b) the
acquisition, directly or indirectly, by any person or group (within the meaning
of Section 13(d) and 14(d) of the Exchange Act), other than Permitted
Holders, of beneficial ownership (as defined in Rule 13d-3 under the Exchange
Act) of more than 30% of the Capital Stock of Group having the right to vote for
the election of members of the Board of Directors of Group;
(c) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of Group (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of Group was approved by a vote of at least a
majority the directors of Group then still in office who were either directors
at the beginning of such period, or whose election or nomination for election
was previously approved) cease for any reason to constitute a majority of the
Board of Directors of Group;
(d) the
Parent shall cease to have, directly or indirectly through one or more Loan
Parties, beneficial ownership (as defined in Rule 13d-3 under the Exchange
Act) of 100% of the aggregate voting power of the Capital Stock of each Borrower
(other than Group) and each Guarantor, free and clear of all Liens (other than
Liens in favor of the Agent);
(e) Group
shall cease to have, directly or indirectly through one or more Loan Parties,
beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of
100% of the aggregate voting power of the Capital Stock of the Parent, free and
clear of all Liens (other than Liens in favor of the Agent);
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(f) (i) Group
consolidates with or merges into another entity or conveys, transfers or leases
all or substantially all of its property and assets to any Person,
or (ii) any Borrower consolidates with or merges into another entity
or conveys, transfers or leases all or substantially all of its property and
assets to another Person, or (iii) any entity consolidates with or merges
into any other Loan Party unless the Parent has beneficial ownership of one
hundred percent (100%) of the aggregate voting power of all Capital Stock of the
resulting, surviving or transferee entity; or
“Closing Fee” has the
meaning specified therefor in Section 2.06(a).
“Collateral” means all
of the Property and assets and all interests therein and proceeds thereof now
owned or hereafter acquired by any Person upon which a Lien is granted or
purported to be granted by such Person as security for all or any part of the
Obligations.
“Collateral Access
Agreement” means a landlord waiver agreement of any lessor in possession
of, having a Lien upon, or having rights or interests in the Borrowers’ or their
Subsidiaries’ books and records or Property, pursuant to which such lessor
releases or subordinates such Lien to the Lien of the Agent, in form and
substance satisfactory to the Agent.
“Collections” means
all cash, checks, credit card slips or receipts, notes, instruments, and other
items of payment (including insurance proceeds, proceeds of cash sales, rental
proceeds, and tax refunds) of the Borrowers.
“Commitment Increase”
has the meaning specified therefor in Section 2.01(c).
“Commitment Increase
Date” has the meaning specified therefor in Section 2.01(c).
“Compliance
Certificate” means a certificate substantially in the form of Exhibit I,
delivered by the chief financial officer of Group to the Agent.
“Consulting
Agreement” means the Consulting Agreement, dated as of the
Effective Date, between Performance Enhancement Partners LLC and
Group.
“Consulting Fees”
means all fees, costs, expenses and other amounts payable by the Loan Parties
under the Consulting Agreement, as in effect on the Effective Date.
“Contingent
Obligation” means, with respect to any Person, any obligation of such
Person guaranteeing any Indebtedness, leases, dividends or other obligations
(“primary obligations”) of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly, including, without limitation, (i) the
direct or indirect guaranty, endorsement (other than for collection or deposit
in the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of the obligation of a primary obligor,
(ii) the obligation to make take-or-pay or similar payments, if required,
regardless of nonperformance by any other party or parties to an agreement,
(iii) any obligation of such Person, whether or not contingent, (A) to purchase
any such primary obligation or any property constituting direct or indirect
security therefor, (B) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (C) to purchase property, assets,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (D) otherwise to assure or hold harmless the
holder of such primary obligation against loss in respect thereof; provided, however, that the
term “Contingent Obligation” shall not include any products warranties extended
in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation with respect to which such Contingent
Obligation is made (or, if less, the maximum amount of such primary obligation
for which such Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or determinable, the
maximum reasonably anticipated liability with respect thereto (assuming such
Person is required to perform thereunder), as determined by such Person in good
faith.
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“Contractual
Obligation” means, as to any Person, any agreement, contract or
instrument (or any provisions thereof) to which such Person is a party or by
which it or any of its Property is bound.
“Contra Customer”
means any customer or other Person with whom the Borrower has a contract or
agreement of any kind requiring the Borrower to make payments to such Person
(including an account payable) and in respect of whom there is also an Eligible
Account Receivable.
“Control Agreement”
means an agreement, in form and substance reasonably satisfactory to the Agent,
executed and delivered by the applicable Borrower, the Agent, and the applicable
securities intermediary or bank, which agreement is sufficient to give the Agent
“control” over the subject Securities Account, DDA or Investment Property as
provided in the Uniform Commercial Code.
“Cost” means the
calculated cost of purchases, as determined from invoices received by the
Borrowers, the Borrowers’ purchase journals or stock ledgers, based upon the
Borrowers’ accounting practices, known to the Agent, which practices are in
effect as of the Effective Date. “Cost” does not include any
inventory capitalization costs inclusive of advertising or freight, but may
include other charges used in the Borrowers’ determination of the cost of goods
sold and bringing goods to market, all within Agent’s Permitted Discretion and
in accordance with GAAP.
“Credit Card Accounts”
means any and all rights of the Borrowers to payment for goods sold
and services rendered via credit card, including accounts, general intangibles
and any and all such rights evidenced by chattel paper, instruments or
documents, whether due or to become due and whether or not earned by
performance, and whether now or hereafter acquired or arising in the future and
any proceeds arising therefrom or relating thereto.
“Credit Card
Agreements” means those certain credit card receipts agreements, each in
form and substance reasonably satisfactory to Agent and each of which is among
Agent, the applicable Borrower and one of the Borrowers’ Credit Card
Processors.
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“Credit Card Bank Depository
Account Agreement” means a credit card depository account agreement,
substantially in the form of Exhibit L, or otherwise in form and substance
reasonably satisfactory to Agent, among Agent, the applicable Borrower and the
applicable Borrower’s Credit Card Processor.
“Credit Card
Processor” means any Person which acts as a credit card clearinghouse or
processor of credit card payments accepted by any Borrower.
“Customs Broker” means
each Existing Customs Broker/Freight Forwarder or other Person selected by the
Borrowers after the Effective Date to perform port of entry services, accept and
process Inventory imported by any Borrower, or similar services, acceptable to
Agent in its Permitted Discretion, in each case, which has executed and
delivered a Bailee Agreement.
“DDA” means any
checking or other “deposit account” (as such term is defined from time to time
in the Uniform Commercial Code) maintained by any Borrower.
“Default” means an
event which, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
“Derivatives” means
any interest rate, foreign currency, commodity or equity swap, collar, cap,
floor or forward rate agreement, or other agreement or arrangement designed to
protect against fluctuations in interest rates or currency, commodity or equity
values (including, without limitation, any option with respect to any of the
foregoing and any combination of the foregoing agreements or arrangements), and
any confirmation executed in connection with any such agreement or
arrangement.
“Disposition” means
any transaction, or series of related transactions, pursuant to which any Loan
Party or any of its Subsidiaries sells, assigns, transfers or otherwise disposes
of any property or assets (whether now owned or hereafter acquired) to any other
Person, in each case whether or not the consideration therefor consists of cash,
securities or other assets owned by the acquiring Person, excluding any sales
of Inventory in the ordinary course of business on ordinary business terms or
sales.
“Distribution Center
Lease” means (i) the lease agreement, dated as of September 25, 1998,
between Xxxx Companies US, Inc., a Minnesota corporation, as landlord, and
Frederick’s, as tenant, with respect to the distribution center of Frederick’s
located in Phoenix, Arizona, and (ii) the lease contract, dated as of November
29, 2000, between Pearl River County, Mississippi, as landlord, and Group, as
tenant, as such leases may be amended, modified, extended or renewed from time
to time.1
“Dollar,” “Dollars” and the
symbol “$” each
means lawful money of the United States of America.
“Domestic Subsidiary”
means each Subsidiary of a Borrower that is not a Foreign
Subsidiary.
1 We agree
that the MI lease would be picked up by Material Contracts, but prefer to
include it here for purposes of consistency.
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“Effective Date” means
the date, on or before January 29, 2008, on which all of the conditions
precedent set forth in Section 5.01 are satisfied and the initial Revolving
Loans are made or the initial Letter of Credit is issued.
“Eligible Accounts
Receivable” An Account Receivable of any Borrower
which:
(a) is
not unpaid more than one hundred and twenty (120) days after invoice date and is
not more than sixty (60) days past due under the original terms of
sale;
(b) arose
in the ordinary course of the Borrower’s business as a result of either (i)
services which have been performed for the Account Debtor or (ii) the absolute
sale of goods which have been shipped to the Account Debtor (and not a
xxxx-and-hold, guaranteed sale, sale-or-return, sale-on-assignment,
sale-on-appraisal, consignment or other repurchase or return
basis);
(c) is
the legal, valid and binding obligation of the Account Debtor thereunder, is
assignable, is owned by the Borrower free and clear of all Liens (except in
favor of the Agent) and is subject to a valid, perfected first security interest
of the Agent (and, if the Account Debtor is the United States of America or any
agency or instrumentality thereof, the Borrower’s right to payment has been
assigned to the Agent in compliance with the Assignment of Claims Act of 1940,
as amended) and is not evidenced by a promissory note or other
instrument;
(d) has
not been reduced and is not subject to reduction, as against the Borrower or its
agents, by any offset, counterclaim, adjustment, credit, allowance or other
defense, and for which there has been no request for credit or adjustments with
respect thereto;
(e) as
to which there is no (and no basis for any) return, rejection, loss or damage of
or to the goods giving rise thereto;
(f) is
not difficult to collect or uncollectible for any reason, including, without
limitation, as a result of return, rejection, repossession, loss of or damage to
the merchandise giving rise thereto, a merchandise or other dispute, any
bankruptcy, insolvency, adverse credit rating or other financial difficulty of
the Account Debtor, or any impediment to the assertion of a claim or
commencement of an action against the Account Debtor (including as a consequence
of a failure of the Borrower to be qualified or licensed in any jurisdiction
where such qualification or licensing is required), all as reasonably determined
by the Agent in its sole discretion;
(f) is
not owing from any Affiliate of the Borrower;
(g) is
owing from an Account Debtor located in the United States;
(h) is
not owing from a Person (other than Wal-Mart) who is the Account Debtor on more
than fifty percent (50%) of all Eligible Accounts Receivable (other than
Eligible Wal-Mart Accounts Receivable), but only to the extent the Eligible
Accounts Receivable of such Account Debtor exceed fifty percent (50%) of all
Eligible Accounts Receivable (other than Eligible Wal-Mart Accounts
Receivable);
(i) if
owing from any Contra Customer, will be eligible only to the extent it exceeds
the amount of the Borrower’s accounts payable to such Contra Customer;
and
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(j) has
not been designated by the Agent in its sole discretion by notice to the
Borrower as unacceptable for any reason.
“Eligible Credit Card
Accounts” means Credit Card Accounts owed to the Borrowers from a Credit
Card Processor which has provided a Credit Card Bank Depository Account
Agreement, arising from purchase by the Borrowers’ retail customers on credit
cards, to the extent deemed eligible by Agent in its Permitted Discretion, and
without in any way limiting the foregoing excluding any Credit Card Account
which has not been collected within four (4) Business Days of
origination.
“Eligible In-Transit
Inventory” means those items of Eligible Inventory of the Borrowers not
in a location set forth on Schedule 1.01(B) or Schedule 1.01(E) or in
transit among such locations, but as to which (a) the purchase price for the
Inventory was the subject of a Qualified Import Letter of Credit or prepaid in
cash by wire transfer, (b) such Inventory currently is in transit (whether by
vessel, air, or land) from a location outside of the continental United States
to a location set forth on Schedule 1.01(B) or Schedule 1.01(E), (c) title
to such Inventory has passed to the applicable Borrower, (d) such Inventory is
insured against types of loss, damage, hazards, and risks, and in amounts,
satisfactory to the Agent in its Permitted Discretion, (e) such Inventory either
(1) is the subject of a negotiable xxxx of lading (x) that is consigned to the
L/C Issuer (either directly or by means of endorsements), (y) that was issued by
the carrier respecting the subject Inventory, and (z) that either is (I) in the
possession of the Agent or a Customs Broker (in each case, in the State of
California), or (II) the subject of a telefacsimile copy that the Agent has
received from the L/C Issuer which issued the related Letter of Credit and
as to which the Agent also has received a confirmation from such L/C Issuer
that such document is in-transit by air-courier to the Agent or a Customs Broker
(in each case, in the State of California); or (2) is the subject of a
negotiable cargo receipt and is not the subject of a xxxx of lading (other than
a negotiable xxxx of lading consigned to, and in the possession of, a
consolidator or the Agent, or their respective agents) and such negotiable cargo
receipt is (x) consigned to the L/C Issuer (either directly or by means of
endorsements), (y) that was issued by a consolidator respecting the subject
Inventory, (z) that either is (I) in the possession of the Agent or a Customs
Broker (in each case in the State of California), or (II) the subject of a
telefacsimile copy that the Agent has received from the L/C Issuer which
issued the related Letter of Credit and as to which Agent also has received a
confirmation from such L/C Issuer that such document is in-transit by
air-courier to the Agent or a Customs Broker (in each case, in the State of
California), (f) Administrative Borrower has provided a certificate to the Agent
that certifies that, to the best knowledge of the Borrowers, such Inventory
meets all of the Borrowers’ representations and warranties contained in the Loan
Documents concerning Eligible Inventory, that the Borrowers know of no reason
why such Inventory would not be accepted by the applicable Borrower when it
arrives in California, and that the shipment as evidenced by the documents
conforms to the related order documents, and (g) the related Letter of Credit
has been drawn upon in full and the L/C Issuer has honored such drawing and
the Agent has honored its obligations to the L/C Issuer under the
applicable Qualified Import Letter of Credit.
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“Eligible Inventory”
means, without duplication, Inventory of the Borrowers located at one of the
locations set forth on Schedule 1.01(B)or Schedule 1.01(E) or Eligible In-
Transit Inventory, consisting of first quality finished goods held for sale in
the ordinary course of the Borrowers’ business that complies with each of the
representations and warranties respecting Eligible Inventory made by the
Borrowers in the Loan Documents, and that is not excluded as ineligible by
virtue of the one or more of the criteria set forth below; provided, however, that such
criteria may be fixed and revised from time to time by the Agent in the Agent’s
Permitted Discretion to address the results of any audit or appraisal performed
by the Agent from time to time after the date hereof. In determining
the amount to be so included, Inventory shall be valued at Cost on a basis
consistent with the Borrowers’ historical accounting practices. In
addition, Eligible Inventory shall include such items of the Borrowers’
Inventory as Administrative Borrower shall request and that the Agent, within
its Permitted Discretion, approves in advance. An item of Inventory
shall not be included in Eligible Inventory if:
(a) a
Borrower does not have good, valid, and marketable title thereto;
(b) it
is not located at one of the locations in the United States set forth on
Schedule 1.01(B) or Schedule 1.01(E) or in transit from one such location to
another such location (other than Eligible In-Transit Inventory);
(c)
it is not subject to a valid and perfected first priority Lien in
favor of the Agent;
(d) it
consists of goods returned or rejected by a Borrower’s customers;
(e) it
consists of goods that are obsolete or slow moving, restrictive or custom items,
work-in-process, raw materials, or goods that constitute spare parts, packaging
and shipping materials, supplies used or consumed in a Borrower’s business, xxxx
and hold goods, defective goods, “seconds,” or Inventory acquired on
consignment; or
(f) it
consists of piece goods, damaged goods, stolen goods, or goods stored for
supervision by relevant customs agencies.
“Eligible Retail
Inventory” means Eligible Inventory to be sold to consumers in
Frederick’s retail store locations, via the Website or through the
catalog.
“Eligible Wal-Mart Accounts
Receivable” means all Eligible Accounts Receivable under which Wal-Mart
is the Account Debtor.
“Eligible Warehouse Liquid
Inventory” means Eligible Wholesale Inventory that will be shipped within
thirty (30) days, thus giving rise to Eligible Accounts Receivable.
“Eligible Wholesale
Inventory” means Eligible Inventory to be sold to wholesale or retail
merchants in goods of that kind, other than Eligible Warehouse Liquid Inventory;
provided that
no Inventory shall be deemed to be Eligible Wholesale Inventory until an
appraisal to the satisfaction of the Agent in its Permitted Discretion has been
performed.
“Employee Plan” means
an employee benefit plan (other than a Multiemployer Plan) covered by Title IV
of ERISA and maintained (or was maintained at any time during the six (6)
calendar years preceding the date of any borrowing hereunder) for employees of
any Borrowers or any of its ERISA Affiliates.
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“Environmental
Actions” means any complaint, summons, citation, notice, directive,
order, claim, litigation, investigation, judicial or administrative proceeding,
judgment, letter or other communication from any Governmental Authority
involving violations of Environmental Laws or Releases of Hazardous Materials
(i) from any assets, properties owned or operated by, or businesses of any Loan
Party or any of its Subsidiaries or any predecessor in interest; or (ii) onto
any facilities which received Hazardous Materials generated by any Loan Party or
any of its Subsidiaries or any predecessor in interest.
“Environmental Laws”
means the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. § 9601, et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. § 1801, et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. § 6901, et seq.), the Federal
Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air
Act (42 U.S.C. § 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. § 2601 et seq.) and the
Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), as such laws
may be amended or otherwise modified from time to time, and any other present or
future federal, state, local or foreign statute, ordinance, rule, regulation,
order, judgment, decree, permit, license or other binding determination of any
Governmental Authority imposing liability or establishing standards of conduct
for protection of the environment.
“Environmental Liabilities
and Costs” means all liabilities, monetary obligations, Remedial Actions,
losses, damages, punitive damages, consequential damages, treble damages, costs
and expenses (including all reasonable fees, disbursements and expenses of
counsel, experts and consultants and costs of investigations and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of any
claim or demand by any Governmental Authority or any third party, and which
relate to any environmental condition or a Release of Hazardous Materials from
or onto (i) any property presently or formerly owned or operated by any
Loan Party or any of its Subsidiaries or (ii) any facility which received
Hazardous Materials generated by any Loan Party or any of its
Subsidiaries.
“Environmental Lien”
means any Lien in favor of any Governmental Authority for Environmental
Liabilities and Costs.
“Equity Incentive
Plan” means (x) the Parent’s 2002 Employee Equity Incentive Plan and (y)
Group’s 2000 Performance Equity Plan, 1994 Incentive Stock Option Plan and 1988
Non-Qualified Stock Option Plan, all of which shall be in form and substance
satisfactory to the Agent.
“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended, and any successor
statute of similar import, and regulations thereunder, in each case as in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
“ERISA Affiliate”
means, with respect to any Person, any trade or business (whether or not
incorporated) which is a member of a group of which such Person is a member and
which would be deemed to be a “controlled group” within the meaning of Sections
414(b), (c), (m) and (o) of the Internal Revenue Code.
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“Event of Default”
means any of the events set forth in Section 9.01.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Excluded Taxes”
means, with respect to the Agent, any Lender or the L/C Issuer, (a) taxes
imposed on (or measured by) its net income by the United States of America or by
the jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in
the case of any Lender or the L/C Issuer, the jurisdiction (or any political
subdivision thereof) in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America pursuant to Section
884 of the Internal Revenue Code, or (c) any tax imposed on payments made by a
Lender or the Agent to its members or partners.
“Executive Officer”
means the chairman, president, chief executive officer or chief financial
officer of Group or any other officer of Group performing such
functions.
“Existing Agreement”
has the meaning set forth in the Recitals.
“Existing Customs
Broker/Freight Forwarder” means Import Commodity, The Xxxxx Xxxxx
Company, Xxxxxxx Xxxxxx & Co., Barthco International, Allied Transport
Systems USA Inc., Baltrans Logistics, Inc., Dimerco Express (USA)
Corp., Fashion Forward Worldwide Corporation and Vizion Logistics.
“Existing Guarantor”
means Xxxxxxxxxx.xxx, Inc., a Nevada corporation.
“Existing Pledge
Agreement” means that certain Pledge Agreement dated January 7, 2003,
made by the Borrowers (other than Group) and the Existing Guarantor in favor of
the Agent (as the same may be amended, restated or otherwise modified from time
to time).
“Existing Security
Agreement” means that certain Security Agreement dated January 7, 2003,
made by the Borrowers (other than Group) and the Existing Guarantor in favor of
the Agent (as the same may be amended, restated or otherwise modified from time
to time).
“Federal Funds Rate”
means, for any period, a fluctuating interest rate per annum equal for each day
during such period of the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
“Fiscal Year” means
the fiscal year of Group and its Subsidiaries ending on the last Saturday of
July of each year.
“Flagship Store Lease”
means the lease agreement, dated as of March 3, 2000, between 6622 Hollywood
Partners, LLC, a California limited liability company (as successor-in-interest
to Xxxx Xxxxxx), as landlord, and Frederick’s, as tenant, with respect to the
flagship retail store of Stores located in Los Angeles, California, as such
lease agreement may be amended, modified, extended or renewed from time to
time.
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“Foreign Lender” means
any Lender that is organized under a jurisdiction other than the United States
of America, a State thereof and/or the District of Columbia.
“Foreign Subsidiary”
means any Subsidiary of a Borrower that is organized under the law of a
jurisdiction other than the United States or any state or Governmental Authority
thereof.
“Funding Losses” has
the meaning set forth in Section 2.04(f)(ii).
“GAAP” means generally
accepted accounting principles in effect from time to time in the United States,
applied on a consistent basis.
“Governmental
Authority” means any nation or government, any Federal, state, city,
town, municipality, county, local or other political subdivision thereof or
thereto and any department, commission, board, bureau, instrumentality, agency
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to
government.
“Group” has the
meaning specified therefor in the preamble hereto.
“Guarantor” means
(i) each Subsidiary of Group listed on Schedule 1.01(A) hereto and
(ii) each other Person which guarantees all or any part of the
Obligations.
“Guaranty” means a
guaranty substantially in the form of Exhibit B, made by a Guarantor in favor of
the Agent for the benefit of the Lenders, in which such Guarantor guaranties the
payment of all or any part of the Obligations, pursuant to Section 7.01(c) or
otherwise.
“Hazardous Materials”
means (a) any element, compound or chemical that is defined, listed or
otherwise classified as a contaminant, pollutant, toxic pollutant, toxic or
hazardous substances, extremely hazardous substance or chemical, hazardous
waste, special waste, or solid waste under Environmental Laws;
(b) petroleum and its refined products; (c) polychlorinated biphenyls;
and (d) any asbestos and asbestos-containing materials.
“Hedge Agreement”
means any and all transactions, agreements, or documents now existing or
hereafter entered into between Administrative Borrower or its Subsidiaries and
Xxxxx Fargo or its Affiliates, which provide for an interest rate, credit,
commodity or equity swap, cap, floor, collar, forward foreign exchange
transaction, currency swap, cross currency rate swap, currency option, or any
combination of, or option with respect to, these or similar transactions, for
the purpose of hedging Administrative Borrower’s or its Subsidiaries’ exposure
to fluctuations in interest or exchange rates, loan, credit exchange, security
or currency valuations or commodity prices.
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“Import Letter of
Credit” means a documentary Letter of Credit issued to support the
purchase by any Borrower of Inventory that provides that all draws thereunder
require presentation of customary documentation (including, if applicable,
commercial invoices, packing lists, certificate of origin, xxxx of lading, an
airway xxxx, customs clearance documents, quota statement, certificate,
beneficiaries statement and xxxx of exchange, bills of lading, dock warrants,
dock receipts, warehouse receipts or other documents of title), in form and
substance satisfactory to the Agent and reflecting passage to such Borrower of
title to Inventory conforming to such Borrower’s contract with the seller
thereof.
“Indebtedness” means,
without duplication, with respect to any Person, (i) all indebtedness of such
Person for borrowed money; (ii) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables,
payables to vendors or other account payables incurred in the ordinary course of
such Person’s business and not past due for more than 90 days after the date
such payable was created); (iii) all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments or upon which interest
payments are customarily made; (iv) all obligations and liabilities of such
Person created or arising under any conditional sales or other title retention
agreement with respect to property used and/or acquired by such Person, even
though the rights and remedies of the lessor, seller and/or lender thereunder
are limited to repossession or sale of such property; (v) all Capitalized Lease
Obligations of such Person; (vi) all obligations and liabilities,
contingent or otherwise, of such Person, in respect of letters of credit,
acceptances and similar facilities; (vii) all obligations and liabilities,
calculated on a basis reasonably satisfactory to the Agent and in accordance
with accepted practice, of such Person under Derivatives; (viii) all Contingent
Obligations; (ix) liabilities incurred under Title IV of ERISA with
respect to any plan (other than a Multiemployer Plan) covered by Title IV
of ERISA and maintained for employees of such Person or any of its ERISA
Affiliates; (x) withdrawal liability incurred under ERISA by such Person or
any of its ERISA Affiliates to any Multiemployer Plan; (xi) all other items
which, in accordance with GAAP, would be included as liabilities on the
liability side of the balance sheet of such Person; and (xii) all
obligations referred to in clauses (i) through (x) of this definition of
another Person secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) a Lien upon property
owned by such Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness. The Indebtedness of any Person
shall include the Indebtedness of any partnership of or joint venture in which
such Person is a general partner or a joint venturer.
“Indemnified Matters”
has the meaning specified therefor in Section 12.17.
“Indemnified Taxes”
means all Taxes other than Excluded Taxes.
“Indemnitees” has the
meaning specified therefor in Section 12.17.
“Insolvency
Proceeding” means any proceeding commenced by or against any Person under
any provision of the Bankruptcy Code or under any other state or federal
bankruptcy or insolvency law, assignments for the benefit of creditors, formal
or informal moratoria, compositions, extensions generally with creditors, or
proceedings seeking reorganization, arrangement, or other similar
relief.
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“Interest Period”
means, with respect to each LIBOR Rate Loan, a period commencing on the date of
the making of, conversion to, or continuation of such LIBOR Rate Loan and ending
1, 2, 3, or 6 months thereafter; provided, however, that (a) if
any Interest Period would end on a day that is not a Business Day, such Interest
Period shall be extended (subject to clauses (c)-(e) below) to the next
succeeding Business Day, (b) interest shall accrue at the applicable rate based
upon the LIBOR Rate from and including the first day of each Interest Period to,
but excluding, the day on which any Interest Period expires, (c) any Interest
Period that would end on a day that is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (d) with respect to an Interest Period that begins on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period), the Interest Period shall end on the last Business Day of the calendar
month that is 1, 2, 3, or 6 months after the date on which the Interest Period
began, as applicable, and (e) the Borrowers (or Administrative Borrower on
behalf thereof) may not elect an Interest Period which will end after the
Maturity Date.
“Internal Revenue
Code” means the Internal Revenue Code of 1986, as amended (or any
successor statute thereto), and the regulations thereunder.
“Inventory” means,
with respect to any Person, all goods and merchandise of such Person, including,
without limitation, all raw materials, work-in-process, packaging, supplies,
materials and finished goods of every nature used or usable in connection with
the shipping, storing, advertising or sale of such goods and merchandise,
whether now owned or hereafter acquired, and all such other property the sale or
other disposition of which would give rise to an Account Receivable, Credit Card
Account or cash.
“Inventory Reserves”
means such reserves as may be established from time to time by the Agent in the
Agent’s Permitted Discretion with respect to the determination of the
saleability, at retail, of the Eligible Inventory or which reflect such other
factors as affect the current retail or market value of the Eligible
Inventory. Without limiting the generality of the foregoing,
Inventory Reserves may include, without limitation, reserves based on the
following:
(a) obsolescence
(determined based upon Inventory on hand beyond a given number of days), other
than ordinary course obsolescence calculated in accordance with the Borrowers’
prior practices;
(b) seasonality;
(c) shrinkage;
(d) imbalance
and over/short discrepancies;
(e) returns
to vendors and damaged warehouse inventory;
(f) test
SKUs;
(g) change
in Inventory character, composition or mix;
(h) markdowns
(both permanent and point of sale);
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(i) retail
markons or markups inconsistent with (i) prior period practice and performance,
(ii) current business plans, or (iii) advertising calendar and planned
advertising events; and
(j) the
relationship between the amount expended for Inventory purchases and the cost of
goods sold.
“Investment” means,
with respect to any Person, any investment by such Person in any other Person
(including Affiliates) in the form of loans, guarantees, advances, or capital
contributions (excluding (a) commission, travel, and similar advances to
officers and employees of such Person made in the ordinary course of business,
and (b) bona fide Accounts Receivable arising in the ordinary course of business
consistent with past practices), purchases or other acquisitions for
consideration of Indebtedness or Capital Stock, and any other items that are or
would be classified as investments on a balance sheet prepared in accordance
with GAAP.
“Landlord Lien State”
means any state or other jurisdiction under whose statutory or common law the
rights of landlord to or in assets of that landlord’s tenant, for unpaid rent,
may be senior to a perfected security interest in such assets.
“L/C Issuer”
means Xxxxx Fargo or such other bank as the Agent may select in its sole and
absolute discretion.
“L/C Sublimit”
means that portion of the Total Revolving Credit Commitment equal to
$15,000,000.
“Lease” means any
lease of real property to which any Loan Party is a party as lessor or
lessee.
“Lease Payments” means
all obligations of a lessee under a lease of any retail store or other property
where any Inventory of a Borrower is or will be sold, including with respect to
any period under any such lease, the aggregate amounts payable by such lessee to
or on behalf of the lessor for such period, including, without limitation, rent,
common area maintenance fees, property taxes, insurance, interest, amortized
charges and any other amounts such lessee is required to pay to or on behalf of
the lessor pursuant to such lease. Whenever it is necessary to
determine the amount of Lease Payments for any period with respect to which any
of the rentals under the relevant lease are not definitely determinable by the
terms of such lease, all such rentals will be estimated in a reasonable amount
for such period.
“Lender” has the
meaning specified therefor in the preamble hereto.
“Lender Group” means,
individually and collectively, each of the Lenders (including the L/C Lender)
and the Agent.
“Letter of Credit”
means an Import Letter of Credit or a Standby Letter of Credit.
“Letter of Credit
Application” has the meaning specified therefor in
Section 2.01A(a).
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“Letter of Credit Fee”
has the meaning specified therefor in Section 2.03A(b).
“Letter of Credit
Guaranty” means one or more participations, indemnities, agreements to
reimburse or guaranties by the Agent or a Lender in favor of the L/C Issuer
purchasing a participation in, indemnifying or guaranteeing the Borrowers’
obligations to the L/C Issuer under a participation agreement, indemnity
agreement, reimbursement agreement, Letter of Credit Application or other like
document in respect of any Letters of Credit.
“Letter of Credit
Obligations” means, at any time and without duplication, the sum of
(i) the Reimbursement Obligations at such time, plus
(ii) (A) the aggregate maximum amount available for drawing under the
Letters of Credit outstanding at such time, plus (iii) all
amounts for which the Agent or a Lender may be liable to the L/C Issuer
pursuant to any Letter of Credit Guaranty.
“LIBOR Deadline” has
the meaning set forth in Section 2.04(f)(i).
“LIBOR Notice” means a
written notice in the form of Exhibit N.
“LIBOR Option” has the
meaning specified therefor in Section 2.04(e).
“LIBOR Rate” means,
for each Interest Period for each LIBOR Rate Loan, the rate per annum determined
by the Agent in good faith (rounded upwards, if necessary, to the next one
sixteenth of one percent (1/16%)) by dividing (a) the Base LIBOR Rate for such
Interest Period, by (b) one hundred percent (100%) minus the Reserve
Percentage. The LIBOR Rate shall be adjusted on and as of the
effective day of any change in the Reserve Percentage.
“LIBOR Rate Loan”
means each portion of the Revolving Loan that bears interest at a rate
determined by reference to the LIBOR Rate.
“Lien” means any
mortgage, deed of trust, pledge, lien (statutory or otherwise), security
interest, charge or other encumbrance or security or preferential arrangement of
any nature, including, without limitation, any conditional sale or title
retention arrangement, any Capitalized Lease and any assignment, deposit
arrangement or financing lease intended as, or having the effect of,
security.
“Loan Account” means
an account maintained hereunder by the Agent on its books of account, and with
respect to the Borrowers, in which the Borrowers will be charged with all
Revolving Loans made to, and all other Obligations incurred by, the
Borrowers.
“Loan Documents” means
this Agreement, the Bank Product Agreements, the Revolving Credit Notes, the
Pledge Agreements, the Security Agreements, the Mortgages, the Subordination
Agreement, the Guaranties, the Cash Management Agreements, the Letter of Credit
Applications, the UCC Filing Authorization Letter, the Ratification and
Reaffirmation Agreement and all other agreements, instruments, and other
documents executed and delivered pursuant hereto or thereto or otherwise
evidencing or securing any Revolving Loan, Letter of Credit Obligation or other
Obligation.
“Loan Parties” means
the Borrowers and the Guarantors.
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“Loan Servicing Fee”
has the meaning specified therefor in Section 2.06(c).
“Loss Proceeds” means,
with respect to a Person, the proceeds received by such Person and its
Subsidiaries due to damage to, or loss, destruction or condemnation of, any
Property or assets of such Person or any of its Subsidiaries.
“Material Adverse
Effect” means a material adverse effect on any of (i) the
operations, business, any material assets or properties, condition (financial or
otherwise) or prospects, of the Loan Parties taken as a whole, including,
without limitation, any material adverse deviation at any time from the Plan
Projections (as updated by the business plans delivered to the Agent pursuant to
Section 7.01(b)(iii)), (ii) the ability of any Loan Party to perform any of
its material obligations under any Loan Document to which it is a party,
(iii) the legality, validity or enforceability of this Agreement or any
other Loan Document, (iv) the rights and remedies of the Agent and the
Lenders under any Loan Document, or (v) the validity, perfection or
priority of a Lien in favor of the Agent for the benefit of the Lenders on any
of the Collateral.
“Material Contract”
means (i) the Catalog Publishing Contract, the Flagship Store Lease, the
Distribution Center Lease and any Subordinated Loan Document, (ii) with respect
to any Person, (x) each contract or agreement to which such Person or any of its
Subsidiaries is a party involving aggregate consideration payable to or by such
Person or such Subsidiary of $250,000 or more in any calendar year (other than
purchase orders in the ordinary course of the business of such Person or such
Subsidiary and other than contracts that by their terms may be terminated by
such Person or Subsidiary in the ordinary course of its business upon less than
60 days’ notice without penalty or premium) and (y) all other contracts or
agreements material to the business, operations, condition (financial or
otherwise), performance or properties of a Borrower or of the Loan Parties taken
as a whole; and (iii) the Acquisition Documents.
“Maturity Date” means
January 28, 2012, or such earlier date on which the Revolving Loans shall become
due and payable, in whole, in accordance with the terms of this Agreement and
the other Loan Documents.
“Mortgage” means each
mortgage, deed of trust, deed to secure debt, or other similar instrument, in
form and substance satisfactory to the Agent, made by any Loan Party in favor of
the Agent for the benefit of the Lenders, securing the Obligations and delivered
to the Agent pursuant to Section 7.01(c) and Section 7.01(u).
“Multiemployer Plan”
means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA for which
any Borrower or any ERISA Affiliate has contributed to, or has been obligated to
contribute to, at any time during the preceding six (6) years.
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“Net Cash Proceeds”
means, (i) with respect to any Disposition by any Person, the amount of
cash received (directly or indirectly) from time to time (whether as initial
consideration or through the payment of deferred consideration) by or on behalf
of such Person or any of its Subsidiaries or Affiliates, in connection therewith
after deducting therefrom only (A) any Indebtedness secured by any Lien
permitted by Section 7.02(b) on any asset (other than Indebtedness assumed
by the purchaser of such asset) which is required to be, and is, repaid in
connection with such Disposition (other than Indebtedness under this Agreement),
(B) reasonable expenses related thereto reasonably incurred by such Person
or such Affiliate in connection therewith, (C) transfer taxes paid by such
Person or such Affiliate in connection therewith, and (D) net income taxes
to be paid in connection with such Disposition (after taking into account any
tax credits or deductions and any tax sharing arrangements) and (ii) with
respect to the sale or issuance by any Person of any of its Capital Stock, the
aggregate amount of cash received (directly or indirectly) from time to time
(whether as initial consideration or through the payment of deferred
consideration) by or on behalf of such Person or any of its Subsidiaries or
Affiliates in connection therewith after deducting therefrom only reasonable
brokerage commissions, underwriting fees and discounts, legal fees and similar
fees and commissions.
“Net Financing
Proceeds” the cash (other than Net Cash Proceeds) received by Group or
any of its Subsidiaries, directly or indirectly, from any financing transaction
of whatever kind or nature, including from any incurrence of Indebtedness, any
mortgage or pledge of an asset or interest therein (including a transaction
which is the substantial equivalent of a mortgage or pledge), from the sale of
tax benefits, from a lease to a third party and a pledge of the lease payments
due thereunder to secure Indebtedness, from a joint venture agreement, from an
exchange of assets and a sale of the assets received in such exchange, or any
other similar arrangement or technique whereby such Person or any of its
Subsidiaries obtain cash in respect of an asset.
“Net Retail Liquidation
Value” means, with respect to any Inventory, the amount of the Cost of
such Inventory that is estimated to be recoverable in an orderly liquidation of
such Inventory, as determined from time to time by a qualified appraisal company
selected by the Agent.
“Notice of Borrowing”
has the meaning specified therefor in Section 2.02(a).
“Obligations” means
(a) (i) the obligations of each Borrower to pay, as and when due and payable (by
scheduled maturity, required prepayment, acceleration, demand or otherwise), all
amounts from time to time owing by it in respect of the Loan Documents, whether
for principal, interest (including any interest that, but for the provisions of
the Bankruptcy Code, would have accrued), Letter of Credit Obligations, fees
(including any fees that, but for the provisions of the Bankruptcy Code, would
have accrued), indemnification payments, expense reimbursements (including any
expense reimbursements that, but for the provisions of the Bankruptcy Code,
would have accrued), or otherwise, and (ii) the obligations of each Borrower and
each other Loan Party to perform or observe all of its obligations from time to
time existing under the Loan Documents, and (b) all Bank Product
Obligations. Any reference in this Agreement or in the Loan Documents
to the Obligations shall include all amendments, changes, extensions,
modifications, renewals, replacements, substitutions, and supplements, thereto
and thereof, as applicable, both prior and subsequent to any Insolvency
Proceeding.
“One Turn State” means
any state or other jurisdiction under whose statutory or common law the relative
priority of the rights of a landlord in assets of that landlord’s tenant, for
unpaid rent, vis-à-vis the rights of the holder of a perfected security interest
therein is dependent upon whether such security interest arose prior or
subsequent to the subject asset’s coming onto the demised premises.
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“Operating Lease
Obligations” means all obligations for the payment of rent for any real
or personal property under leases or agreements to lease, other than Capitalized
Lease Obligations.
“Other Eligible Accounts
Receivable” means all Eligible Accounts Receivable, other than for
Eligible Wal-Mart Accounts Receivable.
“Other Taxes” means
any and all present or future transfer, stamp, documentary, excise, property or
other similar taxes, charges or levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
“Overadvance Amount”
has the meaning specified therefor in Section 2.05(c)(i).
“Parent” has the
meaning specified therefor in the preamble hereto.
“Participant” means a
commercial bank, financial institution, or other Person not an Affiliate of a
Lender, to which a Lender sells participating interests in its Obligations and
the other rights and interests of that Lender hereunder and under the other Loan
Documents subject to the terms and conditions of this Agreement and the other
Loan Documents.
“Patriot Act” has the
meaning set forth in Section 12.23.
“PBGC” means the
Pension Benefit Guaranty Corporation or any successor thereto.
“Permitted Discretion”
means a determination made in good faith and in the exercise of reasonable (from
the perspective of a secured asset-based lender) business judgment.
“Permitted Holder”
means the shareholders of Group as of the Effective Date set forth in Schedule
1.01(D), and any Affiliate of any such Person.
“Permitted
Indebtedness” means:
(a) any
Indebtedness owing to the Agent and the Lenders under this Agreement and the
other Loan Documents;
(b) the
Subordinated Indebtedness;
(c) any
Indebtedness permitted under Section 7.02(f);
(d) Bank
Products and Derivatives, in each case to the extent allowed by the Agent in its
Permitted Discretion;
(e) Indebtedness
constituting purchase money obligations for fixed or capital assets, provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not
exceed $500,000; and
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(f) refinancing
of Indebtedness referred to in clauses (b) and (e) so long as: (A)
the terms and conditions of such refinancing (taken as a whole) are not, in the
Agent’s Permitted Discretion, materially more onerous to the Loan Parties and
their Subsidiaries taken as a whole than the terms and conditions of the
Indebtedness being refinanced, (B) such refinancing does not result in an
increase in the principal amount of the Indebtedness so refinanced, (C) such
refinancing does not result in a shortening of the average weighted maturity of
the Indebtedness so refinanced, (D) if the Indebtedness that is refinanced was
subordinated in right of payment to any of the Obligations, then the terms and
conditions of the refinancing must include subordination terms and conditions
that are at least as favorable to the Lenders as those that were applicable to
the refinanced Indebtedness, and (E) the refinancing is non-recourse to any Loan
Party other than any Loan Party which was obligated with respect to the
Indebtedness that was refinanced.
“Permitted
Investments” means (i) marketable direct obligations issued or
unconditionally guaranteed by the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within six (6) months from the date of acquisition thereof;
(ii) commercial paper, maturing not more than two hundred and seventy
(270) days after the date of issue rated P-1 by Moody’s or A-1 by Standard
& Poor’s; (iii) certificates of deposit maturing not more than two
hundred and seventy (270) days after the date of issue, issued by
commercial banking institutions and money market or demand deposit accounts
maintained at commercial banking institutions, each of which is a member of the
Federal Reserve System and has a combined capital and surplus and undivided
profits of not less than $500,000,000; (iv) repurchase agreements having
maturities of not more than ninety (90) days from the date of acquisition
which are entered into with major money center banks included in the commercial
banking institutions described in clause (iii) above and which are secured
by readily marketable direct obligations of the Government of the United States
of America or any agency thereof, (v) money market accounts maintained with
mutual funds having assets in excess of $2,500,000,000, and (vi) tax exempt
securities rated A or better by Moody’s or A+ or better by Standard &
Poor’s.
“Permitted Liens”
means:
(a) Liens
securing the Obligations;
(b) Liens
for taxes, assessments and governmental charges the payment of which is not
required under Section 7.01(d);
(c) Liens
imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s and
other similar Liens arising in the ordinary course of business and securing
obligations (other than Indebtedness for borrowed money), and which Liens either
(i) are for sums not yet delinquent, or (ii) are being contested in good faith
by proper proceedings which stay the imposition of any penalty, fine or Lien
resulting from the non-payment thereof and with respect to which adequate
reserves have been set aside for the payment thereof;
(d) Liens
existing on the Effective Date, as set forth on Schedule 7.02(b), but not the
extension of coverage thereof to other Property;
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(e) deposits
and pledges securing (i) obligations incurred in respect of workers’
compensation, unemployment insurance or other forms of governmental insurance or
benefits, (ii) the performance of bids, tenders, leases, contracts,
including those for utilities (other than for the payment of money) and
statutory obligations or (iii) obligations on surety or appeal bonds, but only
to the extent such deposits or pledges are incurred or otherwise arise in the
ordinary course of business and secure obligations not past due;
(f) easements,
zoning restrictions and similar encumbrances on real property and minor
irregularities in the title thereto that do not (i) secure obligations for the
payment of money or (ii) materially impair the value of such property or
its use by any Loan Party or any of its Subsidiaries in the normal conduct of
such Person’s business;
(g) Liens
existing in connection with the Subordinated Indebtedness, provided that such
Liens shall be subordinated to the Lenders’ and Agent’s Liens pursuant to the
Subordination Agreement; and
(h) Liens
securing Indebtedness permitted under clause (e) of the
definition of Indebtedness; provided that
(i) such Liens do not at any time encumber any Property other than the
Property financed by such Indebtedness, accessions thereto and the proceeds and
the products thereof, (ii) the Indebtedness secured thereby does not exceed the
cost of the Property being acquired (including fees and expenses relating to the
acquisition thereof) on the date of acquisition, and (iii) with respect to
capitalized leases, such Liens do not at any time extend to or cover any assets
(except for accessions to such assets) other than the assets subject to such
capitalized leases.
“Permitted Priority
Liens” means all Permitted Liens other than any Permitted
Liens on Inventory, Accounts Receivable, the trademarks of the Borrowers or any
proceeds of the foregoing.
“Person” means an
individual, corporation, limited liability company, partnership, association,
joint-stock company, trust, unincorporated organization, joint venture or
Governmental Authority.
“Plan Projections”
means Group’s forecasted (a) balance sheets, (b) profit and loss statements, and
(c) cash flow statements attached hereto as Exhibit O.
“Pledge Agreement”
means (i) the Existing Pledge Agreement and (ii) each other pledge agreement
made by any Loan Party in favor of the Agent for the benefit of the Lenders,
substantially in the form of Exhibit G hereto.
“Post-Default Rate”
means a rate of interest per annum equal to the rate of interest otherwise in
effect from time to time pursuant to the terms of this Agreement plus two
percent (2%).
“Preferred Equity
Interests” means 3,629,325 shares of Series A 7.5% Convertible Preferred
Stock of Group issued to the Subordinated Lenders on the Effective
Date.
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“Projections” means
Group’s forecasted (a) balance sheets, (b) profit and loss statements, and (c)
cash flow statements, all prepared on a consistent basis with Group’s historical
financial statements, together with appropriate supporting details and a
statement of underlying assumptions.
“Property” means any
right or interest in or to property of any kind whatsoever, whether real,
personal or mixed and whether tangible or intangible.
“Pro Rata Share” means
the percentage obtained by dividing (i) such Lender’s Revolving Credit
Commitment, by (ii) the Total Revolving Credit Commitment, provided, that,
if the Revolving Credit Commitments have been reduced to zero, the numerator
shall be the aggregate unpaid principal amount of such Lender’s Revolving Loans
(including the Agent Advances) and its interest in the Letter of Credit
Obligations and the denominator shall be the aggregate unpaid principal amount
of all of the Revolving Loans (including the Agent Advances) and Letter of
Credit Obligations.
“Public Offering”
means any offering of Capital Stock by Group to the public pursuant to an
effective registration statement under the Securities Act of 1933, as
amended.
“Qualified Import Letter of
Credit” means an Import Letter of Credit that (a) is issued to facilitate
the purchase by the applicable Borrower of Eligible Inventory, (b) is in form
and substance acceptable to the Agent, (c) has an expiry date no more than forty
five (45) days after its date of issuance, and (d) is issued in connection with
a Letter of Credit Guaranty by the L/C Issuer and is only drawable by the
beneficiary thereof by the presentation of, among other documents, either (i) a
negotiable xxxx of lading that is consigned to the Agent (either directly or by
means of endorsements) and that was issued by the carrier respecting the subject
Eligible Inventory, or (ii) a negotiable cargo receipt that is consigned to the
Agent (either directly or by means of endorsements) and that was issued by a
consolidator respecting the subject Eligible Inventory; provided, however, that, in the
latter case, no xxxx of lading shall have been issued by the carrier (other than
a xxxx of lading consigned to the consolidator or to the Agent).
“Ratification and
Reaffirmation Agreement” means the Ratification and Reaffirmation
Agreement, dated as of even date herewith, by the Borrowers (other than Group)
and the Existing Guarantor in favor of the Agent, as the same may be amended,
restated or otherwise modified from time to time.
“Register” has the
meaning specified therefor in Section 12.07(b)(ii)
“Regulation T”, “Regulation U” and
“Regulation X”
mean, respectively, Regulations T, U and X of the Board or any successor, as the
same may be amended or supplemented from time to time.
“Reimbursement
Obligations” means the obligation of the Borrowers to reimburse the Agent
and the Lenders for amounts payable by the Agent or the Lenders under a Letter
of Credit Guaranty in respect of any drawing made under any Letter of Credit,
together with interest thereon as provided in Section 2.04.
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“Release” means any
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, seeping, migrating, dumping or disposing of any Hazardous
Material (including the abandonment or discarding of barrels, containers and
other closed receptacles containing any Hazardous Material) into the indoor or
outdoor environment, including ambient air, soil, surface or ground
water.
“Remedial Action”
means all actions taken to (i) clean up, remove, remediate, contain, treat,
monitor, assess, evaluate or in any other way address Hazardous Materials in the
indoor or outdoor environment; (ii) prevent or minimize a Release or threatened
Release of Hazardous Materials so they do not migrate or endanger or threaten to
endanger public health or welfare or the indoor or outdoor environment; (iii)
perform pre-remedial studies and investigations and post-remedial operation and
maintenance activities; or (iv) any other actions authorized by 42 U.S.C.
§ 9601.
“Reportable Event”
means an event described in Section 4043 of ERISA (other than an event for which
notice is automatically waived under the PBGC regulations or is otherwise not
subject to the provision for thirty (30) day notice to the PBGC under the
regulations promulgated under such Section).
“Required Lenders”
means, at any time (i) the Agent and (ii) Lenders whose Pro Rata Shares
aggregate at least fifty percent (50%) of the Total Revolving Credit Commitment,
or, if the Total Revolving Credit Commitments has been terminated irrevocably,
at least fifty percent (50%) of the Obligations (other than Bank Product
Obligations).
“Required Minimum
Availability Reserve” means an amount equal to seven and one half percent
(7.5%) of the Total Revolving Credit Commitment as in effect from time to time
(including without limitation, after giving effect to any Commitment
Increase).
“Reserves” means all
(if any) Availability Reserves, Inventory Reserves, Bank Product Reserves, and
any other reserves which may be established in accordance with this Agreement by
the Agent.
“Reserve Percentage”
means, on any day, for any Lender, the maximum percentage prescribed by the
Board (or any successor Governmental Authority) for determining the reserve
requirements (including any basic, supplemental, marginal, or emergency
reserves) that are in effect on such date with respect to Eurocurrency funding
(currently referred to as “Eurocurrency liabilities”) of that Lender, but so
long as such Lender is not required or directed under applicable regulations to
maintain such reserves, the Reserve Percentage shall be zero.
“Revolving Credit
Commitment” means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans to the Borrowers after the Effective Date, in the
amount set forth opposite such Lender’s name in Schedule 1.01(C) hereto, as
such amount may be terminated or reduced from time to time in accordance with
the terms of this Agreement.
“Revolving Credit
Note” means a promissory note of the Borrowers, substantially in the form
of Exhibit A, made jointly and severally payable to the order of a Lender,
evidencing the Indebtedness resulting from the making by such Lender to the
Borrowers of Revolving Loans and delivered to such Lender pursuant to
Article V, as such promissory note may be amended, supplemented, restated,
modified or extended from time to time, and any promissory note or notes issued
in exchange or replacement therefor.
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“Revolving Loan” means
a loan made by a Lender to the Borrowers pursuant to
Section 2.01(a).
“SEC” means the
Securities and Exchange Commission or any other similar or successor agency of
the Federal government administering the Securities Act.
“Securities Account”
means a “securities account” as such term is defined from time to time in the
Uniform Commercial Code.
“Securities Act” means
the Securities Act of 1933, as amended, or any similar Federal statute, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the time.
“Security Agreement”
means the Existing Security Agreement and any other Security Agreement made by a
Loan Party in favor of the Agent for the benefit of the Lenders, each of which
shall be substantially in the form of Exhibit H hereto.
“Settlement Period”
has the meaning specified therefor in Section 2.02(d)(i)
hereof.
“Standby Letter of
Credit” means a Letter of Credit other than an Import Letter of
Credit.
“Subordinated
Indebtedness” means the Subordinated Obligations under and as defined in
the Amended and Restated Subordinated Agreement, which have been expressly
subordinated in right of payment to all Indebtedness of the Loan Parties under
the Loan Documents pursuant to the Subordination Agreement and shall be on terms
and conditions satisfactory to the Lenders.
“Subordinated Lenders”
means the lenders under the Subordinated Loan Agreement and their successors,
and any assigns of the Subordinated Indebtedness.
“Subordinated Loan
Agreement” means the Amended and Restated Tranche A/B and Tranche C Term
Loan Agreement, dated as of June 30, 2005, by and between the Parent,
Frederick’s, Stores, Mail Order and the Subordinated Lenders, as amended by
Amendment No. 1, dated July 20, 2005, Amendment No. 2, dated November 23, 2005,
and the Subordinated Loan Agreement Amendment.
“Subordinated Loan Agreement
Amendment” means Amendment No. 3 to Tranche A/B and Tranche
C Term Loan Agreement, dated as of the Effective Date, by and among Frederick's,
Parent, Stores Mail Order and the Subordinated Creditors.
“Subordinated Loan
Documents” means the Subordinated Loan Agreement, the Preferred Equity
Interests, and anything executed in connection with the foregoing and each other
document executed or issued in connection with the Subordinated
Indebtedness.
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“Subordination
Agreement” means the Amended and Restated Intercreditor and Subordination
Agreement, dated as of the Effective Date, by and among the Loan Parties, the
Agent and the Subordinated Lenders.
“Subsidiary” means,
with respect to any Person at any date, any corporation, limited or general
partnership, limited liability company, trust, association or other entity
(i) the accounts of which would be consolidated with those of such Person
in such Person’s consolidated financial statements if such financial statements
were prepared in accordance with GAAP or (ii) of which more than fifty
percent (50%) of (A) the outstanding Capital Stock having (in the absence
of contingencies) ordinary voting power to elect a majority of the board of
directors of such corporation, (B) the interest in the capital or profits
of such partnership or limited liability company or (C) the beneficial
interest in such trust or estate is, at the time of determination, owned or
controlled directly or indirectly through one or more intermediaries, by such
Person.
“Taxes” means any and
all present or future taxes, levies, imposts, duties, deductions, charges, fees,
restrictions, conditions or withholdings imposed, levied, collected, withheld or
assessed by any Governmental Authority.
“Termination Event”
means (i) a Reportable Event with respect to any Employee Plan, (ii) any event
that causes any Borrower or any of its ERISA Affiliates to incur liability under
Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of
ERISA or Section 4971 or 4975 of the Internal Revenue Code, (iii) the
filing of a notice of intent to terminate an Employee Plan or the treatment of
an Employee Plan amendment as a termination under Section 4041 of ERISA,
(iv) the institution of proceedings by the PBGC to terminate an Employee
Plan, (v) the imposition of a Lien under
Section 4068 of ERISA or Section 412(n) of the Internal Revenue Code or
(vi) any other event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Employee Plan.
“Title Insurance
Policy” means the mortgagee’s loan policy, together with all endorsements
made from time to time thereto, issued by or on behalf of a title insurance
company satisfactory in form and substance to the Agent, insuring the Lien
created by a Mortgage in an amount and on terms satisfactory to the Agent,
delivered to the Agent pursuant to Section 7.01(c) or Section 7.01(u)
hereof.
“Total Revolving Credit
Commitment” means the sum of the amounts of the Lenders’ Revolving Credit
Commitments set forth in Schedule 1.01(C) hereto.
“Uniform Commercial
Code” means the Uniform Commercial Code, as in effect from time to time
in New York.
“Unused Line Fee” has
the meaning specified therefor in Section 2.06(b).
“Wal-Mart” means
Wal-Mart Stores, Inc.
“WARN” has the meaning
specified therefor in Section 6.01(i).
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“Website” means that
certain web site currently accessible through the universal resource locator
xxx.xxxxxxxxxx.xxx, as may be modified from time to time by the
Borrowers.
“Xxxxx Fargo” means
Xxxxx Fargo Bank, National Association, a national banking
association.
“Xxxxx Fargo Retail”
means Xxxxx Fargo Retail Finance, LLC, a Delaware limited liability
company.
SECTION
1.02. Terms
Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall”. Unless the context requires
otherwise, (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person’s successors and assigns, (c) the words
“herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words “asset” and “property” shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights. References in this Agreement to
“determination” by the Agent include good faith estimates by the Agent (in the
case of quantitative determinations) and good faith beliefs by the Agent (in the
case of qualitative determinations).
SECTION
1.03. Accounting and Other
Terms. Unless otherwise expressly provided herein, each
accounting term used herein shall have the meaning given it under GAAP;
provided, however, that if there occurs after the date of this Agreement any
change in GAAP that affects in any respect the calculation of any financial
covenant contained, the Agent (in its sole discretion) and Administrative
Borrower shall negotiate amendments to the provisions of this Agreement that
relate to the calculation of such covenant with the intent of having the
respective positions of the Lenders and the Borrowers after such change in GAAP
conform as nearly as possible to their respective positions as of the date of
this Agreement and, until any such amendments have been agreed upon, such
financial covenant shall be calculated as if no such change in GAAP has
occurred. All terms used in this Agreement which are defined in
Article 8 or Article 9 of the Uniform Commercial Code in effect in the State of
New York on the date hereof and which are not otherwise defined herein shall
have the same meanings herein as set forth therein.
SECTION
1.04. Time
References. Unless otherwise indicated herein, all references
to time of day refer to Eastern Standard Time, as in effect in Boston,
Massachusetts on such day. For purposes of the computation of a
period of time from a specified date to a later specified date, the word “from”
means “from and including” and the words “to” and “until” each means “to but
excluding”; provided, however, that with
respect to a computation of fees or interest payable to the Agent, any Lender or
the L/C Issuer, such period shall in any event consist of at least one full
day.
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ARTICLE
II
THE
LOANS
SECTION
2.01. Revolving Credit
Commitments.
(a) Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth, each Lender severally agrees to make Revolving Loans to the
Borrowers at any time and from time to time from the Effective Date to the
Maturity Date, or until the earlier reduction of its Revolving Credit Commitment
to zero in accordance with the terms hereof, in an aggregate principal amount of
Revolving Loans at any time outstanding not to exceed the amount of such
Lender’s Revolving Credit Commitment.
(b) Notwithstanding
the foregoing, the aggregate principal amount of Revolving Loans outstanding at
any time to the Borrowers shall not exceed Availability. The
Revolving Credit Commitment of each Lender and the Total Revolving Credit
Commitment shall automatically and permanently be reduced to zero on the
Maturity Date. Within the foregoing limits, the Borrowers may borrow,
repay and reborrow, on or after the Effective Date and prior to the Maturity
Date, subject to the terms, provisions and limitations set forth
herein.
(c) The
Administrative Borrower may request that the Total Revolving Credit Commitment
(initially, $25,000,000) be increased (and that each Lender’s Revolving Credit
Commitment be increased ratably) at any time on, or subsequent to, the date
hereof (the “Commitment Increase
Date”), by up to $25,000,000, in multiples of $5,000,000 (each, a “Commitment
Increase”), to a maximum Total Revolving Credit Commitment of
$50,000,000, subject to the terms and conditions in this clause
(c). The Commitment Increase shall become effective upon the
Commitment Increase Date if (i) the following shall be true and correct on and
as of the Commitment Increase Date: (A) the representations and
warranties contained in Article VI hereof and in each other Loan Document,
certificate or other writing delivered to the Agent, the Lenders or the L/C
Issuer pursuant hereto or thereto on or prior to the Commitment Increase Date
that are subject to materiality or Material Adverse Effect qualifications shall
be true and correct in all respects and the representations and warranties
contained in Article VI
hereof and in each other Loan Document, certificate or other writing delivered
to the Agent, the Lenders or the L/C Issuer pursuant hereto or thereto that are
not subject to materiality or Material Adverse Effect qualifications shall be
true and correct in all material respects, in each case, as of the Commitment
Increase Date as though made on and as of such date (except to the extent that
such representations and warranties relate solely to an earlier date) and (B) no
Default or Event of Default shall have occurred and be continuing on the
Commitment Increase Date or would result from the Commitment Increase under this
Agreement or the other Loan Documents, and (ii) the Agent shall have received,
no more than ten Business Days and no less than three Business Days prior to the
Commitment Increase Date, the following: (A) a certificate of an Authorized
Officer of Group , certifying as to clauses (A) and (B) of subsection (i) above,
and (B) any and all agreements, instruments and other documents reasonably
requested by the Agent in connection with the Commitment Increase, each in form
and substance reasonably satisfactory to the Agent; and (iii) on or prior to the
Commitment Increase Date, the Borrowers shall have paid the Agent, for the
ratable benefit of the Lenders, a fee equal to 25 basis points (0.25%) of the
amount of such Commitment Increase. The Agent shall be authorized to
charge the Loan Account with such fee on or at any time after the Commitment
Increase Date.
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SECTION
2.02. Making the
Loans. (a) The Administrative Borrower shall give
the Agent prior telephone notice (immediately confirmed in writing, in
substantially the form of Exhibit C hereto (a “Notice of
Borrowing”), not later than 1:00 p.m. (Boston, Massachusetts time)
on the Business Day of the proposed Revolving Loan. Such Notice of
Borrowing shall be irrevocable and shall specify (i) the principal amount
of the proposed Revolving Loan and (ii) the proposed borrowing date, which must
be a Business Day. The Agent and the Lenders may act without
liability upon the basis of written, telecopied, telephonic, or email
notice believed by
the Agent in good faith to be from Administrative Borrower (or from any
Authorized Officer thereof designated in writing purportedly from Administrative
Borrower to the Agent). The Borrowers hereby waive the right to
dispute the Agent’s record of the terms of any such telephonic Notice of
Borrowing. The Agent and each Lender shall be entitled to rely
conclusively on any Authorized Officer’s authority to request a Revolving Loan
on behalf of the Borrowers until the Agent receives written notice to the
contrary. The Agent and the Lenders shall have no duty to verify the
authenticity of the signature appearing on any written Notice of
Borrowing.
(b) Each
Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the
Borrowers shall be bound to make a borrowing in accordance with such Notice of
Borrowing.
(c) (i) Except
as otherwise provided in this subsection 2.02(c), all Revolving Loans shall
be made by the Lenders simultaneously and proportionately to their Pro Rata
Shares of the Total Revolving Credit Commitment, it being understood that no
Lender shall be responsible for any default by any other Lender in that other
Lender’s obligations to make a Revolving Loan requested hereunder, nor shall the
Revolving Credit Commitment of any Lender be increased or decreased as a result
of the default by any other Lender in that other Lender’s obligation to make a
Revolving Loan requested hereunder, and each Lender shall be obligated to make
the Revolving Loans required to be made by it by the terms of this Agreement
regardless of the failure by any other Lender.
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(ii) Notwithstanding
any other provision of this Agreement, and in order to reduce the number of fund
transfers among the Borrowers, the Agent and the Lenders, the Borrowers, the
Agent and the Lenders agree that the Agent may (but shall not be obligated to),
and the Borrowers and the Lenders hereby irrevocably authorize the Agent to,
fund, on behalf of the Lenders, Revolving Loans pursuant to Section 2.01,
subject to the procedures for settlement set forth in subsection 2.02(d); provided, however, that
(a) the Agent shall in no event fund such Revolving Loans if the Agent
shall have received written notice from the Required Lenders on the Business Day
prior to the day of the proposed Revolving Loan that one or more of the
conditions precedent contained in Section 5.02 will not be satisfied on the
day of the proposed Revolving Loan, and (b) the Agent shall not otherwise
be required to determine that, or take notice whether, the conditions precedent
in Section 5.02 have been satisfied. If Administrative Borrower
gives a Notice of Borrowing requesting a Revolving Loan and the Agent elects not
to fund such Revolving Loan on behalf of the Lenders, then promptly after
receipt of the Notice of Borrowing requesting such Revolving Loan, the Agent
shall notify each Lender of the specifics of the requested Revolving Loan and
that it will not fund the requested Revolving Loan on behalf of the
Lenders. If the Agent notifies the Lenders that it will not fund a
requested Revolving Loan on behalf of the Lenders, each Lender shall make its
Pro Rata Share of the Revolving Loan available to the Agent, in immediately
available funds, to the Agent’s Account no later than 11:00 a.m. (Boston,
Massachusetts time) (provided that the Agent requests payment from such Lender
not later than 1:00 p.m. (Boston, Massachusetts time) on the Business Day
immediately preceding the date of the proposed Revolving Credit Loan) on the
date of the proposed Revolving Loan. The Agent will make the proceeds
of such Revolving Loans available to the Borrowers on the day of the proposed
Revolving Loan by causing an amount, in immediately available funds, equal to
the proceeds of all such Revolving Loans received by the Agent in the Agent’s
Account or the amount funded by the Agent on behalf of the Lenders to be sent in
accordance with Administrative Borrower’s instructions.
(iii) If
the Agent has notified the Lenders that the Agent, on behalf of the Lenders,
will fund a particular Revolving Loan pursuant to subsection 2.02(c)(ii), the
Agent may assume that such Lender has made such amount available to the Agent on
such day and the Agent, in its sole discretion, may, but shall not be obligated
to, cause a corresponding amount to be made available to the Borrowers on such
day. If the Agent makes such corresponding amount available to the
Borrowers and such corresponding amount is not in fact made available to the
Agent by such Lender, the Agent shall be entitled to recover such corresponding
amount on demand from such Lender together with interest thereon, for each day
from the date such payment was due until the date such amount is paid to the
Agent, at the Federal Funds Rate for three Business Days and thereafter at the
Base Rate. During the period in which such Lender has not paid such
corresponding amount to the Agent, notwithstanding anything to the contrary
contained in this Agreement or any other Loan Document, the amount so advanced
by the Agent to the Borrowers shall, for all purposes hereof, be a Revolving
Loan made by the Agent for its own account. Upon any such failure by
a Lender to pay the Agent, the Agent shall promptly thereafter notify
Administrative Borrower of such failure and the Borrowers shall immediately pay
such corresponding amount to the Agent for its own account.
(iv) Nothing
in this subsection 2.02(c) shall be deemed to relieve any Lender from its
obligations to fulfill its Revolving Credit Commitment hereunder or to prejudice
any rights that the Agent or the Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
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(d) (i) With
respect to all periods for which the Agent has funded Revolving Loans pursuant
to subsection 2.02(c), on a weekly basis, or such shorter period as the Agent
may from time to time select (any such week or shorter period being herein
called a “Settlement Period”), the Agent shall notify each Lender of the unpaid
principal amount of the Revolving Loans outstanding as of the last day of each
such Settlement Period. In the event that such amount is greater than
the unpaid principal amount of the Revolving Loans outstanding on the last day
of the Settlement Period immediately preceding such Settlement Period (or, if
there has been no preceding Settlement Period, the amount of the Revolving Loans
made on the date of such Lender’s initial funding), each Lender shall promptly
(and in any event not later than 11:00 a.m. (Boston, Massachusetts time) if
the Agent requests payment from such Lender not later than 1:00 p.m.
(Boston, Massachusetts time) on the immediately preceding Business Day) make
available to the Agent its Pro Rata Share of the difference in immediately
available funds. In the event that such amount is less than such
unpaid principal amount, the Agent shall promptly pay over to each Lender its
Pro Rata Share of the difference in immediately available funds. In
addition, if the Agent shall so request at any time when a Default or an Event
of Default shall have occurred and be continuing, or any other event shall have
occurred as a result of which the Agent shall determine that it is desirable to
present claims against the Borrowers for repayment, each Lender shall promptly
remit to the Agent or, as the case may be, the Agent shall promptly remit to
each Lender, sufficient funds to adjust the interests of the Lenders in the then
outstanding Revolving Loans to such an extent that, after giving effect to such
adjustment, each Lender’s interest in the then outstanding Revolving Loans will
be equal to its Pro Rata Share thereof. The obligations of the Agent
and each Lender under this subsection 2.02(d) shall be absolute and
unconditional. Each Lender shall only be entitled to receive interest
on its Pro Rata Share of the Revolving Loans which have been funded by such
Lender.
(ii) In
the event that any Lender fails to make any payment required to be made by it
pursuant to subsection 2.02(d)(i), the Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from the date such payment was due until the date such amount is
paid to the Agent, at the Federal Funds Rate for three Business Days and
thereafter at the Base Rate. During the period in which such Lender
has not paid such corresponding amount to the Agent, notwithstanding anything to
the contrary contained in this Agreement or any other Loan Document, the amount
so advanced by the Agent to the Borrowers shall, for all purposes hereof, be a
Revolving Loan made by the Agent for its own account. Upon any such
failure by a Lender to pay the Agent, the Agent shall promptly thereafter notify
Administrative Borrower of such failure and the Borrowers shall immediately pay
such corresponding amount to the Agent for its own account. Nothing
in this subsection 2.02(d)(ii) shall be deemed to relieve any Lender from its
obligation to fulfill its Revolving Credit Commitment hereunder or to prejudice
any rights that the Agent or the Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
SECTION
2.03. Revolving Credit Notes;
Repayment of Loans. (a) All Revolving Loans made by
a Lender to the Borrowers shall be evidenced by a single Revolving Credit Note,
duly executed on behalf of the Borrowers, dated the Effective Date, and
delivered to and made jointly and severally payable to the order of such Lender
in a principal amount equal to the maximum amount of such Lender’s Revolving
Credit Commitment.
(b) Unless
otherwise required to be sooner paid pursuant to the provisions of this
Agreement, the outstanding principal of all Revolving Loans shall be due and
payable on the Maturity Date.
SECTION
2.04. Interest.
(a) Revolving
Loans. At the option of Administrative Borrower and, in the
case of the LIBOR Option, subject to paragraphs (e) through (f) of this
Section 2.04, each Revolving Loan shall bear interest on the principal
amount thereof from time to time outstanding, from the date of such Loan until
such principal amount becomes due, at a rate per annum equal to (i) (A) the
Base Rate minus
(B) the Applicable Margin for Base Rate Loans or (ii) the sum of
(A) the LIBOR Rate plus (B) the
Applicable Margin for LIBOR Rate Loans.
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(b) Default
Interest. To the extent permitted by law, upon the occurrence
and during the continuance of an Event of Default, the principal of, and all
accrued and unpaid interest on, all Revolving Loans and all fees, indemnities,
outstanding Reimbursement Obligations or any other Obligations (except for
undrawn Letters of Credit and except for Bank Product Obligations) of the
Borrowers under this Agreement, the Revolving Notes and other Loan Documents
shall bear interest, from the date such Event of Default occurred until such
Event of Default is cured or waived in writing in accordance herewith, at a rate
per annum equal at all times to the Post-Default Rate.
(c) Interest
Payment. Subject to paragraphs (e) through (f) of this
Section 2.04, interest on each Revolving Loan shall be payable monthly, in
arrears, on the first day of each month, commencing on the first day of the
month following the month in which such Revolving Loan is made and at maturity
(whether upon demand, by acceleration or otherwise). Interest at the
Post-Default Rate shall be payable monthly, in arrears, on the first day of each
month and at maturity (whether upon demand, by acceleration or
otherwise). The Borrowers hereby authorize the Agent to, and the
Agent may, from time to time, charge the Loan Account pursuant to Section 4.02
with the amount of any interest payment due hereunder.
(d) General. All
interest shall be computed on the basis of a year of 360 days for the actual
number of days, including the first day but excluding the last day,
elapsed.
(e) LIBOR Option; Interest and
Interest Payment Dates. In lieu of having interest charged at
the rate based upon the Base Rate, the Borrowers shall have the option (the
“LIBOR Option”) to have interest on all or a portion of the Revolving Loans be
charged at the LIBOR Rate. Interest on LIBOR Rate Loans shall be
payable on the earliest of (i) the last day of the Interest Period applicable
thereto (provided for Interest
Period of six (6) months, interest shall be payable ninety (90) days after first
day of such Interest Period and on the last day of such Interest Period),
(ii) the occurrence of an Event of Default in consequence of which the
Required Lenders or the Agent on behalf thereof elect to accelerate the maturity
of the Obligations, or (iii) termination of this Agreement pursuant to the
terms hereof. On the last day of each applicable Interest Period,
unless Administrative Borrower properly has exercised the LIBOR Option with
respect thereto, the interest rate applicable to such LIBOR Rate Loan
automatically shall convert to the rate of interest then applicable to Base Rate
Loans hereunder. At any time that an Event of Default has occurred
and is continuing, the Borrowers no longer shall have the option to request that
the Revolving Loans bear interest at the LIBOR Rate and the Agent shall have the
right to convert the interest rate on all outstanding LIBOR Rate Loans to the
rate then applicable to Base Rate Loans hereunder on the last day of the
respective Interest Periods.
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(f) LIBOR
Election.
(i) Administrative
Borrower may, at any time and from time to time, so long as no Event of Default
has occurred and is continuing, elect to exercise the LIBOR Option by notifying
the Agent prior to 11:00 a.m. (Boston, Massachusetts time) at least three (3)
Business Days prior to the commencement of the proposed Interest Period (the
“LIBOR Deadline”). Notice of Administrative Borrower’s election of
the LIBOR Option for a permitted portion of the Revolving Loans and an Interest
Period pursuant to this Section shall be made by delivery to the Agent of a
LIBOR Notice received by the Agent before the LIBOR Deadline, or by telephonic
notice received by the Agent before the LIBOR Deadline (to be confirmed by
delivery to the Agent of a LIBOR Notice received by the Agent prior to 5:00 p.m.
(Boston, Massachusetts time) on the same day. Promptly upon its
receipt of each such LIBOR Notice, the Agent shall provide a copy thereof to
each of the Lenders having a Revolving Credit Commitment.
(ii) Each
LIBOR Notice shall be irrevocable and binding on the Borrowers. In
connection with each LIBOR Rate Loan, each Borrower shall indemnify, defend, and
hold the Agent and the Lenders harmless against any loss, cost, or expense
incurred by the Agent or any Lender as a result of (a) the payment of any
principal of any LIBOR Rate Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any LIBOR Rate Loan other than on the last day of the Interest
Period applicable thereto, or (c) the failure to borrow, convert, continue or
prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice delivered
pursuant hereto (such losses, costs, and expenses, collectively, “Funding
Losses”). Funding Losses shall, with respect to the Agent or any
Lender, be deemed to equal the amount determined by Agent or such Lender in good
faith to be the excess, if any, of (i) the amount of interest that would have
accrued on the principal amount of such LIBOR Rate Loan had such event not
occurred, at the LIBOR Rate that would have been applicable thereto, for the
period from the date of such event to the last day of the then current Interest
Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period therefor), minus (ii) the amount
of interest that would accrue on such principal amount for such period at the
interest rate which Agent or such Lender would be offered were it to be offered,
at the commencement of such period, Dollar deposits of a comparable amount and
period in the London interbank market. A certificate of Agent or a
Lender delivered to Administrative Borrower setting forth any amount or amounts
that Agent or such Lender is entitled to receive pursuant to this Section shall
be conclusive absent manifest error.
(iii) The
Borrowers shall have not more than five (5) LIBOR Rate Loans in effect at any
given time. The Borrowers only may exercise the LIBOR Option for
LIBOR Rate Loans of at least $1,000,000 and integral multiples of $500,000 in
excess thereof.
(g) Prepayments. The
Borrowers may prepay LIBOR Rate Loans at any time; provided, however, that in the
event that LIBOR Rate Loans are prepaid on any date that is not the last day of
the Interest Period applicable thereto, including as a result of any prepayment
required pursuant to the terms hereof or for any other reason, including early
termination of the term of this Agreement or acceleration of the Obligations
pursuant to the terms hereof, each Borrower shall indemnify, defend, and hold
the Agent and the Lenders and their Participants harmless against any and all
Funding Losses in accordance with Section 2.04(f)(ii) hereof.
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(h) Special Provisions
Applicable to LIBOR Rate.
(i) The
LIBOR Rate may be adjusted by the Agent with respect to any Lender on a
prospective basis to take into account any additional or increased costs to such
Lender of maintaining or obtaining any eurodollar deposits or increased costs
due to changes in applicable law occurring subsequent to the commencement of the
then applicable Interest Period, including changes in tax laws (except changes
of general applicability in corporate income tax laws) and changes in the
reserve requirements imposed by the Board (or any successor), excluding the
Reserve Percentage, which additional or increased costs would increase the cost
of funding loans bearing interest at the LIBOR Rate. In any such
event, the affected Lender shall give Administrative Borrower and the Agent
notice of such a determination and adjustment and the Agent promptly shall
transmit the notice to each other Lender and, upon its receipt of the notice
from the affected Lender, Administrative Borrower may, by notice to such
affected Lender (y) require such Lender to furnish to Administrative Borrower a
statement setting forth the basis for adjusting such LIBOR Rate and the method
for determining the amount of such adjustment, or (z) repay the LIBOR Rate Loans
with respect to which such adjustment is made (together with any amounts due
under clause (f)(ii) above).
(ii) In
the event that any change in market conditions or any law, regulation, treaty,
or directive, or any change therein or in the interpretation of application
thereof, shall at any time after the date hereof, in the reasonable opinion of
any Lender, make it unlawful or impractical for such Lender to fund or maintain
LIBOR Rate Loans or to continue such funding or maintaining, or to determine or
charge interest rates at the LIBOR Rate, such Lender shall give notice of such
changed circumstances to the Agent and Administrative Borrower and the Agent
promptly shall transmit the notice to each other Lender and (y) in the case of
any LIBOR Rate Loans of such Lender that are outstanding, the date specified in
such Lender’s notice shall be deemed to be the last day of the Interest Period
of such LIBOR Rate Loans, and interest upon the LIBOR Rate Loans of such Lender
thereafter shall accrue interest at the rate then applicable to Base Rate Loans,
and (z) the Borrowers shall not be entitled to elect the LIBOR Option until such
Lender determines that it would no longer be unlawful or impractical to do
so.
(i) No Requirement of Matched
Funding. Anything to the contrary contained herein
notwithstanding, neither the Agent, nor any Lender, nor any of their
Participants, is required actually to acquire eurodollar deposits to fund or
otherwise match fund any Obligation as to which interest accrues at the LIBOR
Rate. The provisions of this Section shall apply as if each Lender or
its Participants had match funded any Obligation as to which interest is
accruing at the LIBOR Rate by acquiring eurodollar deposits for each Interest
Period in the amount of the LIBOR Rate Loans.
SECTION
2.05. Reduction of Commitment;
Prepayment of Revolving Loans.
(a) Reduction of Revolving
Credit Commitments. The Total Revolving Credit Commitment
shall terminate at 5:00 p.m. (Boston, Massachusetts time) on the Maturity
Date. The Borrowers may reduce from time to time the Total Revolving
Credit Commitment (but in no event shall the Total Revolving Credit Commitment
be less than $25,000,000), without premium or penalty except as such forth in
the last sentence of this subsection, to an amount not less than the sum of
(A) the aggregate unpaid principal amount of all Revolving Loans then
outstanding, (B) the aggregate principal amount of all Revolving Loans not
yet made as to which a Notice of Borrowing has been given by Administrative
Borrower under Section 2.02, (C) the Letter of Credit Obligations at such
time and (D) the stated amount of all Letters of Credit not yet issued as to
which a request has been made and not withdrawn. Each such reduction
shall be in an amount which is an integral multiple of $1,000,000 (unless the
Total Revolving Credit Commitment in effect immediately prior to such reduction
is less than $1,000,000), shall be made by providing not less than three
Business Days’ prior written notice to the Agent and shall be
irrevocable. Once reduced the Total Revolving Credit Commitment may
not be increased. Each such reduction of the Total Revolving Credit
Commitment shall reduce the Revolving Credit Commitment of each Lender
proportionately in accordance with its Pro Rata Share thereof.
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(b) Optional
Prepayment. The Borrowers may prepay without penalty or
premium (other than Funding Losses associated with the prepayment of a LIBOR
Rate Loan other than on the last day of the Interest Period in effect with
respect thereto) the principal of any Revolving Loan, in whole or in
part.
(c) Mandatory
Prepayment.
(i) Borrowing
Base. The Borrowers will immediately prepay the Revolving
Loans at any time when the sum of (x) the principal amount of Revolving Loans
plus (y) the Letter of Credit Obligations exceeds Availability (the amount of
such excess, the “Overadvance Amount”),
in an amount equal to the Overadvance Amount, or, if the principal amount of
Revolving Loans is less than the Overadvance Amount, prepay the Revolving Loans
in full, and provide cash collateral to the Agent in an amount equal to the
amount by which the Overadvance Amount exceeds the aggregate principal amount of
such Revolving Loans.
(ii) Funds in the Agent’s
Account. The Agent shall on each Business Day apply all funds
transferred to or deposited in the Agent’s Account to the payment, in whole or
in part, of the outstanding Revolving Loans.
(iii) Dispositions; Casualty
Events. Immediately upon any Disposition by any Borrower or
any Loan Party pursuant to Section 7.02(d)(ii), the Borrowers shall prepay the
outstanding principal of the Revolving Loans in an amount equal to one hundred
percent (100%) of the Net Cash Proceeds received by the Borrowers or any such
Loan Party in connection with such Disposition. Upon the loss,
destruction or taking by condemnation of any Collateral, the Borrowers shall
prepay the outstanding principal of the Revolving Loans in an amount equal to
one hundred percent (100%) of the Loss Proceeds received by any Loan Party in
connection therewith, net of any reasonable expenses incurred in collecting such
Loss Proceeds; provided, that, such prepayment
shall not be required if, but
only if, each of the following conditions are fully satisfied in a manner
acceptable to the Agent (in its Permitted Discretion): (A) no Default
or Event of Default has occurred or would result from such loss, destruction or
taking, would result from the receipt of such Loss Proceeds or would result from
the proposed use or disbursement of such Loss Proceeds, (B) one hundred percent
(100%) of such Loss Proceeds are immediately deposited into a separate deposit
account selected by the Agent, which deposit account shall be subject to a
Control Agreement, over which the Agent shall have full dominion and control and
a perfected, first priority security interest, (C) the Agent receives from
Administrative Borrower a certificate within two (2) months after the Loan
Party’s receipt of such Loss Proceeds, stating that all or part of such Loss
Proceeds shall be used to replace the assets or property lost, destroyed or
taken, in accordance with this Section and the other terms and conditions of
this Agreement within twelve months after the receipt of such Loss Proceeds
(which certificate shall set forth an estimate of the Loss Proceeds to be so
expended and reasonably identify the assets to be purchased with such Loss
Proceeds), and (D) Administrative Borrower delivers to the Agent within twelve
months after receipt of such Loss Proceeds receipts and such other evidence as
the Agent may require in connection with the acquisition of the assets and
property so identified (whereupon, subject to the satisfaction of the other
conditions set forth in this paragraph, the Agent shall disburse such Loss
Proceeds in connection with replacing the assets or property of such Loan Party
lost, destroyed or taken by such Loan Party within twelve months after the
receipt of such Loss Proceeds). If all or any portion of such Loss
Proceeds are not used in accordance with clause (D) of the preceding sentence
within the twelve month period set forth therein or any Event of Default exists
and is continuing, the Agent shall apply such unused Loss Proceeds to prepay the
Revolving Loans in accordance with this subsection. The provisions of
this subsection (iii) shall not be deemed to be implied consent to any such
issuance, incurrence or sale otherwise prohibited by the terms and conditions of
this Agreement.
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(iv) Equity. Unless
otherwise agreed to by the Required Lenders in writing, upon the sale or
issuance by any Loan Party or any of its Subsidiaries of any shares of its
Capital Stock (other than to another Loan Party or pursuant to a Public
Offering), the Borrowers shall prepay the outstanding amount of the Revolving
Loans in an amount equal to one hundred percent (100%) of the Net Cash Proceeds
received by such Person in connection therewith. The provisions of
this subsection (iv) shall not be deemed to be implied consent to any such
issuance, incurrence or sale otherwise prohibited by the terms and conditions of
this Agreement.
(d) Cumulative
Prepayments. Except as otherwise expressly provided in this
Section 2.05, payments with respect to any subsection of this Section 2.05
are in addition to payments made or required to be made under any other
subsection of this Section 2.05.
SECTION
2.06. Fees.
(a) Closing
Fee. The Borrowers shall pay to the Agent for the account of
the Lenders in accordance with their Pro Rata Shares a non-refundable closing
fee (the “Closing Fee”) equal to $19,375 which shall be fully earned and
payable on the Effective Date.
(b) Unused Line
Fee. From and after the Effective Date and until the Maturity
Date, the Borrowers shall pay to the Agent for the account of the Lenders in
accordance with their Pro Rata Shares an unused line fee (the “Unused Line
Fee”), which shall accrue at the rate per annum of one quarter of one percent
(0.25%) on the excess, if any, of the Total Revolving Credit Commitment over the
sum of the average principal amount of Revolving Loans and Letter of Credit
Obligations outstanding from time to time and shall be payable monthly in
arrears on the first day of each month commencing February 1, 2008.
(c) Loan Servicing
Fee. From and after the Effective Date and until the Maturity
Date, the Borrowers shall pay to the Agent a non-refundable loan servicing fee
(the “Loan Servicing Fee”) equal to $2,000 each month (prorated for any
partial month), which fee shall be fully earned on the first day of each month
(or in the case of January 2008 on the Effective Date) and payable monthly in
arrears thereafter on the first day of each calendar month (beginning with the
first day of the calendar month following the Effective Date); provided however, the Loan
Services Fee for partial months shall be prorated proportionate to such
truncation.
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SECTION
2.07. Cash
Management.
(a) The
Borrowers shall (i) establish and maintain cash management services of a type
and on terms satisfactory to the Agent at one or more of the banks set forth on
Schedule 2.07(a) (each a “Cash Management Bank”), and shall request in writing
and otherwise take such reasonable steps to ensure that all of its Credit Card
Processors and other Account Debtors forward payment of the amounts owed by them
directly to one of such Cash Management Banks, and (ii) deposit or cause to be
deposited promptly, and in any event no later than the first Business Day after
the date of receipt thereof, all Collections (including those sent directly by
Account Debtors to a Cash Management Bank) into one of the DDAs set forth on
Schedule 2.07(a) (a “Cash Management Account”) at one of the Cash Management
Banks. If, notwithstanding the provisions of this Section 2.07, any
Borrower receives or otherwise has dominion over or control of any Collections,
such Borrower shall hold such Collections in trust for the Agent and shall not
commingle such Collections with any of the Borrowers’ other funds or deposit
such Collections in any account of the Borrowers except as instructed by the
Agent.
(b) The
Borrowers shall establish and maintain Cash Management Agreements with the Agent
and each Cash Management Bank. Each such Cash Management Agreement
shall be a Control Agreement and provide, among other things, that (i) upon
notice from the Agent, the Cash Management Bank will comply with instructions of
the Agent directing the disposition of funds in the Cash Management Account
without further consent by the Borrowers, (ii) the Cash Management Bank has no
rights of setoff or recoupment or any other claim against the applicable Cash
Management Account, other than for payment of its service fees and other charges
directly related to the administration of such Cash Management Account and for
returned checks or other items of payment, and (iii) it immediately will forward
by daily sweep all amounts in the applicable Cash Management Account to the
Agent’s Account.
(c) The
Borrowers shall establish and maintain Credit Card Agreements with the Agent and
each Credit Card Processor. Each such Credit Card Agreement shall
provide, among other things, that each such Credit Card Processor shall transfer
all proceeds of credit card charges for sales by the Borrowers received by it
(or other amounts payable by such Credit Card Processor) into a designated Cash
Management Account on a daily basis. The Borrowers shall not attempt
to change any direction or designation set forth in the Credit Card Agreements
regarding payment of charges without the prior written consent of the Agent,
which consent, so long as such change shall be limited to directing such Credit
Card Processor to transfer proceeds of credit card charge sales payment to a
different Cash Management Account, shall not be unreasonably
withheld.
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(d) So
long as no Default or Event of Default has occurred and is continuing,
Administrative Borrower may amend Schedule 2.07(a) to add or replace a Cash
Management Bank or Cash Management Account; provided, however, that (i)
such prospective Cash Management Bank shall be satisfactory to the Agent and the
Agent shall have consented in writing in advance to the opening of such Cash
Management Account with the prospective Cash Management Bank, and (ii) prior to
the time of the opening of such Cash Management Account, the Borrowers and such
prospective Cash Management Bank shall have executed and delivered to the Agent
a Cash Management Agreement. The Borrowers shall close any of their
Cash Management Accounts (and establish replacement cash management accounts in
accordance with the foregoing sentence) promptly and in any event within thirty
(30) days of notice from the Agent that the creditworthiness of any Cash
Management Bank is no longer acceptable in the Agent’s reasonable judgment, or
as promptly as practicable and in any event within sixty (60) days of notice
from the Agent that the operating performance, funds transfer, or availability
procedures or performance of the Cash Management Bank with respect to Cash
Management Accounts or the Agent’s liability under any Cash Management Agreement
with such Cash Management Bank is no longer acceptable in the Agent’s reasonable
judgment.
(e) The
Cash Management Accounts shall be cash collateral accounts, with all cash,
checks and similar items of payment in such accounts securing payment of the
Obligations, and in which the Borrowers are hereby deemed to have granted a Lien
on each Cash Management Account to the Agent.
(f) Crediting
Payments. The receipt of any payment item by the Agent
(whether from transfers to the Agent by the Cash Management Banks pursuant to
the Cash Management Agreements or otherwise) shall not be considered a payment
on account unless such payment item is a wire transfer of immediately available
federal funds made to the Agent’s Account or unless and until such payment item
is honored when presented for payment. Should any payment item not be
honored when presented for payment, then the Borrowers shall be deemed not to
have made such payment and interest shall be calculated
accordingly. Anything to the contrary contained herein
notwithstanding, any payment item shall be deemed received by the Agent only if
it is received into the Agent’s Account on a Business Day on or before 2:00 p.m.
(Boston, Massachusetts time). If any payment item is received into
the Agent’s Account on a non-Business Day or after 2:00 p.m. (Boston,
Massachusetts time) on a Business Day, it shall be deemed to have been received
by the Agent as of the opening of business on the immediately following Business
Day.
SECTION
2.08. Taxes.
(a) All
payments made by the Borrowers hereunder, under the Revolving Notes or under any
other Loan Document shall be made without set-off, counterclaim, deduction or
other defense. All such payments shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes. If the Borrowers
shall be required by law to deduct or to withhold any Indemnified Taxes from or
in respect of any amount payable hereunder,
(i) the
amount so payable shall be increased to the extent necessary so that after
making all required deductions and withholdings (including Taxes on amounts
payable to the Lenders, the Agent or the L/C Issuer pursuant to this sentence)
the Lenders, the Agent and the L/C Issuer receive an amount equal to the sum
they would have received had no such deductions or withholdings been
made,
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(ii) the
Borrowers shall make such deductions or withholdings, and
(iii) the
Borrowers shall pay the full amount deducted or withheld to the relevant
taxation authority in accordance with applicable law. Whenever any Indemnified
Taxes or Other Taxes are payable by the Borrowers, as promptly as possible
thereafter, Administrative Borrower shall send the Lenders, the L/C Issuer and
the Agent an official receipt (or, if an official receipt is not available, such
other documentation as shall be reasonably satisfactory to the Lenders, the L/C
Issuer or the Agent, as the case may be) showing payment.
(b)
The Borrowers shall pay and hereby agree to indemnify and hold
the Lenders, the Agent and the L/C Issuer harmless from and against all
Indemnified Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.08) paid by any Lender or the L/C Issuer and any liability (including
penalties, interest and expenses for nonpayment, late payment or otherwise)
arising therefrom or with respect thereto, whether or not such Indemnified Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall be
paid within 30 days from the date on which such Lender or such L/C Issuer makes
written demand which demand shall identify the nature and amount of Indemnified
Taxes or Other Taxes for which indemnification is being sought and the basis of
the claim.
(c) Each
Foreign Lender hereby agrees that:
(i) it
shall, no later than the Effective Date (or, in the case of a Foreign Lender
which becomes a party hereto pursuant to Section 12.07 hereof after the
Effective Date, the date upon which such Foreign Lender becomes a party hereto)
and thereafter, upon the designation of a new or additional lending office or
within thirty (30) days after receipt of a reasonable request of the Agent or
Administrative Borrower therefor, deliver to the Agent and Administrative
Borrower either (A) two (2) complete and signed copies of either U.S. Internal
Revenue Service Form W-8BEN or W-8ECI, in each case indicating that such Foreign
Lender is on the date of delivery thereof entitled to receive payments of
interest hereunder free from withholding of United States Federal income tax or
(B) in the case of a Foreign Lender that is entitled to claim exemption from
withholding of United States Federal income tax under Section 871(h) or Section
881(c) of the Internal Revenue Code, (x) a certificate to the effect that such
Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, is not a “10 percent shareholder” of any Borrower within
the meaning of Section 881(c)(3)(B) and Section 871(h)(3)(B) of the Internal
Revenue Code and is not a controlled foreign corporation receiving interest from
a related person within the meaning of Section 881(c)(3)(C) of the Internal
Revenue Code and (y) two (2) complete and signed copies of U.S. Internal Revenue
Service Form W-8BEN; and
(ii) it
shall, promptly upon Administrative Borrower’s reasonable request to that
effect, deliver to Administrative Borrower such other forms or similar
documentation such Foreign Lender is legally able to deliver as may be required
from time to time by any applicable law, treaty, rule or regulation in order to
establish such Lender’s tax status for withholding purposes.
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(d) If
the Borrowers fail to perform their obligations under this Section 2.08, the
Borrowers shall indemnify the Lenders and the L/C Issuer for any taxes, interest
or penalties that may become payable as a result of any such
failure.
(e)
Each Lender that is organized under the laws of
the United States or any state or other political subdivision thereof shall, on
or prior to the Effective Date (or, in the case of a Lender that becomes a party
hereto pursuant to Section 12.07 hereof after the Effective Date, the date upon
which such Lender becomes a party hereto) deliver to Administrative Borrower
(with a copy to the Agent) a properly completed IRS Form W-9 or successor form
as will permit such payments to be made without withholding.
(f)
No Borrower shall be required to pay any
additional amount to any Lender or the L/C Issuer under Section 2.08(a) or to
indemnify any Lender or the L/C Issuer under Section 2.08(b) in respect of any
United States Federal withholding tax if such withholding tax would have not
been imposed but for the failure of such Lender or the L/C Issuer to comply with
Section 2.08(c) or 2.08(e), (i) unless such Lender or the L/C Issuer is unable
to comply with either such Section as a result in whole or in part of a Change
in Law or (ii) in the case of a Foreign Lender that becomes a Lender after the
Effective Date, to the extent the rate of such withholding tax imposed on such
Foreign Lender does not exceed the rate of such withholding tax that was imposed
on the Lender that assigned its interest to such Foreign Lender.
(g) If
a Borrower is required to pay additional amounts to or for the account of any
Lender pursuant to this Section 2.08, then such Lender will agree to use
reasonable efforts to change the jurisdiction of its applicable lending office
so as to eliminate or reduce any such additional payment which may thereafter
accrue; provided, however, that such
Lender shall not be required to make any such change unless (i) such Lender
shall have determined in its sole discretion such change is not disadvantageous
to such Lender and (ii) the Borrower shall have agreed to pay all costs incurred
by such Lender in connection with such change.
SECTION
2.09. Early Termination by
Borrowers. The Borrowers may terminate this Agreement at any
time prior to the Maturity Date by providing the Agent and the Lenders with not
less than ninety (90) days prior written notice thereof and by paying the
Obligations in full on (or prior to) such termination date, at which time the
rights and obligations of the parties hereto shall terminate, except for any
rights or obligations of the Borrowers or the Loan Parties which expressly
survive payment in full of the Obligations and termination of the Revolving
Credit Commitments; provided if any
Letters of Credit have been issued and are outstanding on the date of such
termination the Borrowers shall have paid L/C Issuer an amount equal to one
hundred and four percent (104%) of the aggregate
maximum amount available for drawing under such outstanding Letters of Credit to
be held by L/C Issuer as cash collateral for the application toward the
Reimbursement Obligations or provided indemnification agreements or back-stop
letters of credit, in form and substance reasonably satisfactory to the Agent,
from a commercial bank or other financial institution acceptable to the Agent in
its absolute discretion for any Letter of Credit Obligations with respect to
such Letters of Credit; provided further if any Bank
Products are then provided the Borrowers shall have paid the Agent such cash
collateral, therefor as the Agent may then request in its Permitted
Discretion. Notwithstanding the foregoing, prior to the Maturity Date
and Borrowers accepting any firm offer, term sheet or commitment (each, a “Third
Party Offer”) for the refinancing of the Obligations and/or the Subordinated
Indebtedness, the Borrowers shall notify the Agent of the Third Party Offer in
writing (including all material terms of the Third Party
Offer). Lenders shall have not less than ten (10) calendar days after
receipt of such notice (the “Lenders’ Offer Period”) to make an offer (a
“Lenders Offer”) to provide similar financing in the place of such Person upon
substantially the same terms and conditions (or terms more favorable to the
Borrowers) as set forth in the Third Party Offer. The parties
acknowledge and agree that the Lenders shall not have any obligation to submit a
Lenders’ Offer. If the Lenders’ make a Lenders’ Offer, the Borrowers
shall be obligated to accept the Lenders’ Offer and shall enter into the
transactions contemplated thereby within forty-five (45) calendar days (or such
additional time as agreed to by the Lenders in writing) following acceptance of
the Lenders’ Offer. Neither Lenders’ submission of a Lenders’ Offer,
nor election to decline to make a Lenders’ Offer, shall be construed as a waiver
of any of the terms, covenants or conditions of any of the Loan
Documents. If the Lenders do not exercise their right to make a
Lenders’ Offer prior to expiration of the Lenders’ Offer Period and the
refinancing on the terms set forth in the Third Party Offer or with the Person
providing the Third Party Offer (the “Third Party Refinancing”) is not
consummated during the ninety (90) calendar day period following the expiration
of the Lenders’ Offer Period, the Borrowers shall not be permitted to consummate
the Third Party Refinancing without again complying with this Section
2.09.
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ARTICLE
IIA
LETTERS
OF CREDIT
SECTION
2.01A. Letter of Credit
Guaranty.
(a) In
order to assist the Borrowers in establishing or opening Letters of Credit,
which shall not have expiration dates that exceed two hundred and seventy (270)
days from the date of issuance, with the L/C Issuer, the Borrowers have
requested the Agent and/or one or more of the Lenders to join in the
applications for such Letters of Credit, and/or guarantee payment or performance
of such Letters of Credit and any drafts thereunder through the issuance of a
Letter of Credit Guaranty, thereby lending the Agent’s and/or such Lender’s
credit to that of the Borrowers, and the Agent and/or one or more Lenders have
agreed to do so. These arrangements shall be coordinated by the Agent
subject to the terms and conditions set forth below. The Agent and
the Lenders shall not be required to be the issuer of any Letter of
Credit. The Borrowers will be the account party for application for a
Letter of Credit, which shall be substantially in the form of Exhibit K
hereto or on a computer transmission system approved by the Agent and the
L/C Issuer or such other written form or computer transmission system as
may from time to time be approved by the L/C Issuer and the Agent, and
shall be duly completed in a manner reasonably acceptable to the Agent, together
with such other certificates, agreements, documents and other papers and
information as the L/C Issuer or the Agent may reasonably request
(the “Letter of Credit Application”). In the event of any
conflict between the terms of the Letter of Credit Application and this
Agreement, for purposes of this Agreement, the terms of this Agreement shall
control.
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(b) The
aggregate Letter of Credit Obligations shall not exceed the lower of
(i) the difference between (A) the Total Revolving Credit Commitment and
(B) the aggregate principal amount of Revolving Loans then outstanding and
(ii) the L/C Sublimit. In addition, the Letter of Credit
Obligations shall not exceed the difference between (A) the Borrowing Base
and (B) the aggregate principal amount of the Revolving Loans then
outstanding. The terms and conditions of all Letters of Credit and
all changes or modifications thereof consented to by any of the Borrowers and
the L/C Issuer shall in all respects be subject to the prior approval of the
Agent in the reasonable exercise of its sole and absolute discretion, provided,
however, that (i) no Letter of Credit shall have an expiry date later than
thirty days prior to the Maturity Date unless on or prior to thirty days prior
to the Maturity Date such Letter of Credit shall be cash collateralized in an
amount equal to one hundred and four percent (104%) of the face amount of
such Letter of Credit or the Borrowers shall have provided the Agent and the
Lenders with an indemnification or back-stop letter of credit, in form and
substance satisfactory to the Agent in its absolute discretion, from a
commercial bank or other financial institution acceptable to the Agent for any
Letter of Credit Obligations with respect to such Letters of Credit, and
(ii) the Letters of Credit and all documentation in connection therewith
shall be in form and substance reasonably satisfactory to the Agent and the L/C
Issuer.
(c) The
Agent shall have the right, without notice to the Borrowers, to charge the Loan
Account with the amount of any and all indebtedness, liabilities and obligations
of any kind (including indemnification for breakage costs, capital adequacy and
reserve requirement charges) incurred by the Agent or the Lenders under the
Letter of Credit Guaranty or incurred by an L/C Issuer with respect to a
Letter of Credit at the earlier of (i) payment by the Agent or the Lenders
under the Letter of Credit Guaranty or (ii) the occurrence of an Event of
Default. Any amount charged to the Loan Account shall be deemed a
Revolving Loan hereunder made by the Lenders to the Borrowers, funded by the
Agent on behalf of the Lenders and subject to Section 2.02 of this
Agreement. Any charges, fees, commissions, costs and expenses charged
to the Agent for the Borrower’s account by the L/C Issuer in connection
with or arising out of Letters of Credit or transactions relating thereto will
be charged to the Loan Account in full when charged to or paid by the Agent and,
when charged, shall be conclusive on the Borrowers absent manifest
error. Each of the Lenders and the Borrowers agree that the Agent
shall have the right to make such charges regardless of whether any Event of
Default or Default shall have occurred and be continuing or whether any of the
conditions precedent in Section 5.02 have been satisfied.
(d) The
Borrowers absolutely, unconditionally and irrevocably indemnify the Agent and
each Lender and holds the Agent and each Lender harmless from any and all loss,
claim or liability incurred by the Agent or any Lender arising from any
transactions or occurrences relating to Letters of Credit, any drafts or
acceptances thereunder, the Collateral relating thereto, and all Obligations in
respect thereof, including any such loss or claim due to any action taken by the
L/C Issuer, other than for any such loss, claim or liability arising out of
the gross negligence or willful misconduct of the L/C Issuer, the Agent or any
Lender as determined by a final judgment of a court of competent
jurisdiction. The Borrowers further agree to jointly and severally
hold the Agent and each Lender harmless from any errors or omission, negligence
or misconduct by the L/C Issuer. The Borrowers’ absolute,
unconditional and irrevocable obligations to the Agent, the L/C Issuer and
each Lender with respect to Letters of Credit hereunder shall not be modified or
diminished for any reason or in any manner whatsoever, other than as a result of
the Agent’s, the L/C Issuer’s or such Lender’s gross negligence or willful
misconduct as determined by a final judgment of a court of competent
jurisdiction. The Borrowers agree that any charges incurred by the
Agent or the L/C Issuer for the Borrowers’ account hereunder may be charged
to the Loan Account.
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(e)
Upon any payments made to the L/C Issuer under the
Letter of Credit Guaranty, the Agent or the Lenders, as the case may be, shall,
without prejudice to its rights under this Agreement (including that such
unreimbursed amounts shall constitute Revolving Loans hereunder), acquire by
subrogation, any rights, remedies, duties or obligations granted or undertaken
by the Borrowers in favor of the L/C Issuer in any application for Letters
of Credit, any standing agreement relating to Letters of Credit or otherwise,
all of which shall be deemed to have been granted to the Agent and the Lenders
and apply in all respects to the Agent and the Lenders and shall be in addition
to any rights, remedies, duties or obligations contained herein.
SECTION
2.02A. Participations.
(a) Purchase of
Participations. Immediately upon issuance by the
L/C Issuer of any Letter of Credit pursuant to this Agreement, each Lender
shall be deemed to have irrevocably and unconditionally purchased and received
from the Agent, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender’s Pro Rata Share, in all obligations
of the Agent in such Letter of Credit (including, without limitation, all
Reimbursement Obligations of the Borrowers with respect thereto pursuant to the
Letter of Credit Guaranty or otherwise).
(b) Sharing of
Payments. In the event that the Agent makes any payment in
respect of the Letter of Credit Guaranty and the Borrowers shall not have repaid
such amount to the Agent, the Agent shall charge the Loan Account in the amount
of the Reimbursement Obligation, in accordance with Sections 2.01A(c) and
4.02 of this Agreement.
(c) Obligations
Irrevocable. The obligations of a Lender to make payments to
the Agent for the account of the Agent, the Lenders or the L/C Issuer with
respect to a Letter of Credit shall be irrevocable, without any qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any
lack of validity or enforceability of this Agreement or any of the other Loan
Documents;
(ii) the
existence of any claim, setoff, defense or other right which the Borrowers may
have at any time against a beneficiary named in such Letter of Credit or any
transferee of such Letter of Credit (or any Person for whom any such transferee
may be acting), the Agent, any Lender, or any other Person, whether in
connection with this Agreement, such Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transactions between the Borrowers or any other party and the beneficiary named
in such Letter of Credit);
(iii) any
draft, certificate or any other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv)
the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Loan Documents;
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(v) any
failure by the Agent to provide any notices required pursuant to this Agreement
relating to such Letter of Credit;
(vi) any
payment by the L/C Issuer under such Letter of Credit against presentation
of a draft or certificate which does not comply with the terms of such Letter of
Credit; or
(vii) the
occurrence of any Default or Event of Default.
SECTION
2.03A. Letters of
Credit.
(a) Request for
Issuance.
(i) Subject
to the terms and conditions of this Agreement (including, without limitation,
Section 2.02A(b), Agent agrees to assist the Borrowers in obtaining the issuance
of Letters of Credit for the account of the Borrowers. To request the
issuance of a Letter of Credit or Letter of Credit Guaranty (or the amendment,
renewal, or extension of an outstanding Letter of Credit or Letter of Credit
Guaranty), an Authorized Officer of Administrative Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Agent) to the L/C Issuer and Agent (reasonably in
advance of the requested date of issuance, amendment, renewal, or extension) a
Letter of Credit Application, together with any necessary related documents,
requesting the issuance of a Letter of Credit or Letter of Credit Guaranty, or
identifying the Letter of Credit or Letter of Credit Guaranty to be amended,
renewed, or extended, the date of issuance, amendment, renewal, or extension,
the date on which such Letter of Credit or Letter of Credit Guaranty is to
expire, the amount of such Letter of Credit or Letter of Credit Guaranty, the
name and address of the beneficiary thereof, and such other information as shall
be necessary to prepare, amend, renew, or extend such Letter of Credit or Letter
of Credit Guaranty. If requested by the Agent or the L/C Issuer, the
Borrowers also shall be an applicant under the Letter of Credit Application with
respect to any Letter of Credit that is to be the subject of a Letter of Credit
Guaranty.
(ii) The
Borrowers and the Lender Group acknowledge and agree that the letters of credit
described in Schedule 2.03A(a)(ii) hereto have previously been issued by the L/C
Issuer for the account of the Borrowers pursuant to the Existing Agreement, and
shall be treated as Letters of Credit for all purposes of this
Agreement. Each Letter of Credit shall be in form and substance
acceptable to the Agent and the L/C Issuer (in the exercise of their Permitted
Discretion), including the requirement that the amounts payable thereunder must
be payable in Dollars. If the Agent is obligated to advance funds
under a Letter of Credit Guaranty or the L/C Issuer is obligated to pay under a
Letter of Credit, all Reimbursement Obligations arising therefrom shall
immediately and automatically be deemed to be a Revolving Loan hereunder and,
thereafter, shall bear interest at the rate then applicable to Revolving Loans
that are Base Rate Loans under Section 2.04. To the extent the
Reimbursement Obligations are deemed to be a Revolving Loan hereunder, the
Borrowers’ obligation to repay such Reimbursement Obligations shall be
discharged and replaced by the resulting Revolving Loan. Promptly
following receipt by the Agent of any payment from the Borrowers pursuant to
this paragraph, the Agent shall apply such payment to the Reimbursement
Obligations paid by itself or, to the extent that Lenders have made payments
pursuant to Section 2.02A to reimburse the Agent, then to such Lenders and the
L/C Issuer as their interest may appear.
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(iii) The
Agent shall not provide support, pursuant to the Letter of Credit Guaranty, if
the Agent shall have received written notice from the Required Lenders on the
Business Day immediately preceding the proposed issuance date for such Letter of
Credit that one or more of the conditions precedent in Section 5.02 will not
have been satisfied on such date, and the Agent shall otherwise be required to
determine that, or take notice whether, the conditions precedent set forth in
Section 5.02 have been satisfied.
(b) Qualified Import Letters of
Credit. Each Borrower acknowledges and agrees that certain of
the Qualified Import Letters of Credit may provide for the presentation of time
drafts (other than bankers acceptances) to the L/C Issuer. If the L/C
Issuer accepts such a time draft that is presented under a Letter of Credit, it
is acknowledged and agreed that (i) the Letter of Credit will require the Agent
to reimburse the L/C Issuer for amounts paid on account of such time draft on or
after the maturity date thereof, (ii) the pricing provisions hereof (including
Section 2.03A(c)) shall continue to apply, until payment of such time draft on
or after the maturity date thereof, as if the Letter of Credit were still
outstanding, and (iii) on the date on which the Agent makes payment to the L/C
Issuer of the amounts paid on account of such time draft, the Borrowers
immediately shall reimburse such amount to the Agent and such amount shall
constitute Reimbursement Obligations hereunder.
(c) Letter of Credit
Fees. (i) The Borrowers shall pay the Agent (for the
ratable benefit of the Lenders with a Revolving Credit Commitment, subject to
any letter agreement between the Agent and the individual Lenders), a Letter of
Credit fee (in addition to the charges, commissions, fees, and costs set forth
in paragraph (ii) of this paragraph (c)) which shall accrue at a per
annum rate (x) in the case of standby Letters of Credit, equal to the average
daily undrawn amount of all outstanding standby Letters of Credit times the
Applicable Standby L/C Margin and (y) in the case of Import Letters of Credit,
equal to the average daily undrawn amount of all outstanding Import Letters of
Credit times the Applicable Import L/C Margin, provided that upon
the occurrence and during the continuance of an Event of Default, the Applicable
Standby L/C Margin and the Applicable Import L/C Margin shall be automatically
and immediately increased by two percent (2%).
(ii) L/C Issuer and the
Agent Charges. Any and all charges, commissions, fees, and
costs incurred by the Agent and the L/C Issuer relating to Letters of Credit and
Letter of Credit Guaranties shall be payable pursuant to Section 12.04 of this
Agreement and immediately shall be reimbursable by the Borrowers to the
Agent. The Borrowers shall pay to the Agent the standard charges,
commissions, fees and costs assessed by the L/C Issuer in connection with
the issuance, administration, amendment, extension, renewal, payment or
cancellation of Letters of Credit.
(iii) Charges to the Loan
Account. The Borrowers hereby authorize the Agent to, and the
Agent may, from time to time, charge the Loan Account pursuant to Sections
2.01A(c) and 4.02 of this Agreement with the amount of any Letter of Credit fees
or charges due under this Section 2.03A.
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(d) Authority. Each
Borrower hereby authorizes and directs the L/C Issuer to deliver to the Agent
all instruments, documents, and other writings and property received by the L/C
Issuer pursuant to such Letter of Credit and to accept and rely upon the Agent’s
instructions with respect to all matters arising in connection with such Letter
of Credit and the related Letter of Credit Application.
ARTICLE
III
[Intentionally
Omitted]
ARTICLE
IV
FEES,
PAYMENTS AND OTHER COMPENSATION
SECTION
4.01. [Reserved].
SECTION
4.02. Payments; Computations and
Statements. (a) The Borrowers will make each
payment under the Revolving Loans not later than 1:00 a.m. (Boston,
Massachusetts time) on the day when due, in lawful money of the United States of
America and in immediately available funds, to the Agent at the Agent’s
Account. All payments (including all amounts received in the Agent’s
Account from any Cash Management Bank) received by the Agent after
1:00 p.m. (Boston, Massachusetts time) on any Business Day will be credited
to the Loan Account on the next succeeding Business Day. All payments
shall be made by the Borrowers without defense, set-off or counterclaim to the
Agent and the Lenders. Except as provided in Section 2.02, after
receipt, the Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal ratably to the Lenders in accordance with
their Pro Rata Shares and like funds relating to the payment of any other amount
payable to any Lender to such Lender, in each case to be applied in accordance
with the terms of this Agreement, provided that the Agent will cause to be
distributed all interest and fees received from or for the account of the
Borrowers not less than once each month and in any event promptly after receipt
thereof. The Lenders and the Borrowers hereby authorize the Agent to,
and the Agent may, from time to time, charge the Loan Account of the Borrowers
with any amount due and payable by the Borrowers under any Loan Document
(including any amounts due and payable to Xxxxx Fargo or its Affiliates in
respect of Bank Products up to the amount of the then extant Bank Product
Reserve). Each of the Lenders and the Borrowers agree that the Agent
shall have the right to make such charges whether or not any Event of Default or
Default shall have occurred and be continuing or whether any of the conditions
precedent in Section 5.02 have been satisfied. Any amount
charged to the Loan Account of the Borrowers shall be deemed a Revolving Loan
hereunder made by the Lenders to the Borrowers, funded by the Agent on behalf of
the Lenders and subject to Section 2.02 of this Agreement. The
Lenders and the Borrowers confirm that any charges which the Agent may so make
to the Loan Account of the Borrowers as herein provided will be made as an
accommodation to the Borrowers and solely at the Agent’s
discretion. Whenever any payment to be made under any such Loan
Document shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be. All computations of fees shall be made by the Agent
on the basis of a year of three hundred and sixty (360) days for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such fees are payable. Each determination by the
Agent of an interest rate or fees hereunder shall be presumptive evidence of
such rates and fees for all purposes in the absence of manifest
error.
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(b) The
Agent shall provide Administrative Borrower, promptly after the end of each
calendar month, a summary statement (in the form from time to time used by the
Agent) of the opening and closing daily balances in the Loan Account of the
Borrowers during such month, the amounts and dates on all Revolving Loans made
to the Borrowers during such month, the amounts and dates of all payments on
account of the Revolving Loans to the Borrowers during such month and the
Revolving Loans to which such payments were applied, the amount of interest
accrued on the Revolving Loans to the Borrowers during such month, any Letters
of Credit issued by the L/C Issuer for the account of the Borrowers during such
month, specifying the face amount thereof, the amount of charges to such Loan
Account and/or Revolving Loans made to the Borrowers during such month to
reimburse the Lenders for drawings made under Letters of Credit, and the amount
and nature of any charges to such Loan Account made during such month on account
of fees, commissions, expenses and other Obligations (except for Bank Product
Obligations). All entries on any such statement shall, thirty
(30) days after the same is sent, be presumed to be correct absent manifest
error.
SECTION
4.03. Sharing of Payments,
Etc. Except as provided in Section 2.02 hereof, if
any Lender shall obtain any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) on account of any Obligation in
excess of its ratable share of payments on account of similar obligations
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in such similar obligations held by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such recovery together with an amount equal to such Lender’s ratable share
(according to the proportion of (i) the amount of such Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid by the purchasing Lender in respect of the
total amount so recovered. The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section 4.03
may, to the fullest extent permitted by law, exercise all its rights (including
the Lender’s right of set-off) with respect to such participation as fully as if
such Lender were the direct creditor of the Borrowers in the amount of such
participation.
SECTION
4.04. Apportionment of
Payments. (a) Subject to Section 2.02 hereof
and to any written agreement among the Agent and the Lenders, all payments of
principal and interest in respect of outstanding Revolving Loans, all payments
of fees (other than the fees set forth in Sections 2.06 hereof to the
extent set forth in a written agreement among the Agent and the Lenders and the
audit and collateral monitoring fee provided for in Section 4.01) and all
other payments in respect of any other Obligations (other than Bank Product
Obligations), shall be allocated by the Agent among such of the Lenders as are
entitled thereto, in proportion to their respective Pro Rata Shares or otherwise
as provided herein or, in respect of payments not made on account of Revolving
Loans or Letter of Credit Obligations, as designated by the Person making
payment when the payment is made.
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(b) After
the occurrence and during the continuance of an Event of Default, the Agent may,
and upon the direction of the Required Lenders shall, apply all payments in
respect of any Obligations and all proceeds of the Collateral, subject to the
provisions of this Agreement (i) first, to pay the
Obligations in respect of any fees, expense reimbursements, indemnities and
other amounts then due to the Agent or the L/C Issuer until paid in full;
(ii) second, to pay the
Obligations in respect of any fees and indemnities then due to the Lenders until
paid in full; (iii) third, ratably to pay
interest due in respect of the Revolving Loans and Agent Advances until paid in
full; (iv) fourth, at the
Agent’s election (which election will not be made if such payment would result
in the amount owed by the Borrowers hereunder to exceed the Borrowing Base), to
pay amounts then due and owing by the Loan Parties or their Subsidiaries in
respect of all Bank Products, until paid in full; (v) fifth, to pay
principal of Agent Advances until paid in full; (vi) sixth, ratably to pay
principal of the Revolving Loans and the Letter of Credit Obligations (or to the
extent such Obligations are contingent, to provide cash collateral in respect of
such Obligations) until paid in full; (vii) seventh, to the
Agent, to be held by the Agent, for the benefit Xxxxx Fargo or its Affiliates,
as applicable, as cash collateral in an amount up to the amount of the Bank
Product Reserve established prior to the occurrence of, and not in contemplation
of, the subject Event of Default until the Loan Parties and their Subsidiaries’
obligations in respect of the then extant Bank Products have been paid in full
or the cash collateral amount has been exhausted; (viii) eighth, to the
ratable payment of all other Obligations (including Bank Product Obligations)
then due and payable; and (ix) ninth, to the
Borrowers or such other Person entitled thereto under applicable
law.
SECTION
4.05. Increased Costs and Reduced
Return.
(a) If
any Lender or the L/C Issuer shall have determined, after the Effective Date,
that the adoption or implementation of, or any change in, any law, rule, treaty
or regulation, or any policy, guideline or directive of, or any change in the
interpretation or administration thereof by, any court, central bank or other
administrative or Governmental Authority, or compliance by the L/C Issuer or any
Lender or any Person controlling any such Lender or the L/C Issuer with any
directive of or guideline from any central bank or other Governmental Authority
or the introduction of or change in any accounting principles applicable to the
L/C Issuer, any Lender, or any Person controlling any such Lender or the L/C
Issuer (in each case, whether or not having the force of law), shall (i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against any Revolving Loan, Letter of Credit or against assets of or held by, or
deposits with or for the account of, or credit extended by, the L/C Issuer or
any Lender, or any Person controlling any such Lender or the L/C Issuer or
(ii) impose on the L/C Issuer or any Lender or any Person controlling any
such Lender or the L/C Issuer or any other condition regarding this Agreement or
any Revolving Loan or Letter of Credit, and the result of any event referred to
in clauses (i) or (ii) above shall be to increase the cost to the L/C Issuer or
any Lender of making any Revolving Loan, issuing, guaranteeing or participating
in any Letter of Credit, or agreeing to make any Revolving Loan or issue,
guaranty or participate in any Letter of Credit, or to reduce any amount
received or receivable by the L/C Issuer or any Lender hereunder, then, no later
than 30 days following demand by the L/C Issuer or such Lender, the Borrowers
shall pay to the L/C Issuer or such Lender such additional amounts as will
compensate the L/C Issuer or such Lender for such increased costs or reductions
in amount.
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(b) If
any Lender or the L/C Issuer shall have determined, after the Effective Date,
that any Capital Guideline or adoption or implementation of, or any change in,
any Capital Guideline by the Governmental Authority charged with the
interpretation or administration thereof, or compliance by the L/C Issuer, any
Lender or any Person controlling such L/C Issuer or any Lender with any Capital
Guideline or with any request or directive of any such Governmental Authority
with respect to any Capital Guideline, or the implementation of, or any change
in, any applicable accounting principles (in each case, whether or not having
the force of law), either (i) affects or would affect the amount of capital
required or expected to be maintained by the L/C Issuer, any Lender or any
Person controlling such L/C Issuer or any Lender, and the L/C Issuer or any
Lender determines that the amount of such capital is increased as a direct or
indirect consequence of any Revolving Loans made or maintained, Letters of
Credit issued or any guaranty or participation with respect thereto, or the L/C
Issuer’s, any Lender’s or any such other controlling Person’s other obligations
hereunder, or (ii) has or would have the effect of reducing the rate of return
on the L/C Issuer’s, any Lender’s or any such other controlling Person’s capital
to a level below that which such L/C Issuer, such Lender or such controlling
Person could have achieved but for such circumstances as a consequence of any
Revolving Loans made or maintained, Letters of Credit issued, or any guaranty or
participation with respect thereto or any agreement to make Revolving Loans, to
issue Letters of Credit or such L/C Issuer’s, such Lender’s or such other
controlling Person’s other obligations hereunder (in each case, taking into
consideration such L/C Issuer’s, such Lender’s or such other controlling
Person’s policies with respect to capital adequacy), then, no later than 30 days
following demand by the L/C Issuer or any Lender, the Borrowers shall pay to the
L/C Issuer or such Lender from time to time such additional amounts as will
compensate the L/C Issuer or such Lender for such cost of maintaining such
increased capital or such reduction in the rate of return on L/C Issuer’s, such
Lender’s or such other controlling Person’s capital.
(c) All
amounts payable under this Section 4.05 shall bear interest from the date that
is ten days after the date of demand by the L/C Issuer or a Lender until payment
in full to the L/C Issuer or such Lender at the Base Rate. A
certificate of the L/C Issuer or any Lender claiming compensation under this
Section 4.05 specifying the event herein above described and the nature of such
event shall be submitted by the L/C Issuer or such Lender to Administrative
Borrower, setting forth the additional amount due and an explanation of the
calculation thereof and the L/C Issuer’s or such Lender’s reasons for invoking
the provisions of this Section 4.05, and shall be presumptive evidence of
such additional amounts absent manifest error.
SECTION
4.06. Joint and Several Liability
of the Borrowers.
(a) Notwithstanding
anything in this Agreement or any other Loan Document to the contrary, each of
the Borrowers hereby accepts joint and several liability hereunder and under the
other Loan Documents in consideration of the financial accommodations to be
provided by the Agent and the Lenders under this Agreement and the other Loan
Documents, for the mutual benefit, directly and indirectly, of each of the
Borrowers and in consideration of the undertakings of the other Borrower to
accept joint and several liability for the Obligations. Each of the
Borrowers, jointly and severally, hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Borrowers, with respect to the payment and performance
of all of the Obligations (including, without limitation, any Obligations
arising under this Section 4.06), it being the intention of the parties hereto
that all the Obligations shall be the joint and several obligations of each of
the Borrowers without preferences or distinction among them. If and
to the extent that any of the Borrowers shall fail to make any payment with
respect to any of the Obligations as and when due or to perform any of the
Obligations in accordance with the terms thereof, then in each such event the
other Borrowers will make such payment with respect to, or perform, such
Obligation. Subject to the terms and conditions hereof, the
Obligations of each of the Borrowers under the provisions of this Section 4.06
constitute the absolute and unconditional, full recourse Obligations of each of
the Borrowers enforceable against each such Person to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement, the other Loan Documents or any other
circumstances whatsoever.
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(b) The
provisions of this Section 4.06 are made for the benefit of the Agent, the
Lenders and their successors and assigns, and may be enforced by them from time
to time against any or all of the Borrowers as often as occasion therefor may
arise and without requirement on the part of the Agent, the Lenders or such
successors or assigns first to marshal any of its or their claims or to exercise
any of its or their rights against any of the other Borrowers or to exhaust any
remedies available to it or them against any of the other Borrowers or to resort
to any other source or means of obtaining payment of any of the Obligations
hereunder or to elect any other remedy. The provisions of this
Section 4.06 shall remain in effect until all of the Obligations shall have been
paid in full or otherwise fully satisfied.
(c) Each
of the Borrowers hereby agrees that it will not enforce any of its rights of
contribution or subrogation against the other Borrowers with respect to any
liability incurred by it hereunder or under any of the other Loan Documents, any
payments made by it to the Agent or the Lenders with respect to any of the
Obligations or any Collateral until such time as all of the Obligations (other
than unasserted contingent indemnification Obligations) have been paid in full
in cash. Any claim which any Borrower may have against any other
Borrower with respect to any payments to the Agent or the Lenders hereunder or
under any other Loan Documents are hereby expressly made subordinate and junior
in right of payment, without limitation as to any increases in the Obligations
arising hereunder or thereunder, to the prior payment in full in cash of the
Obligations.
ARTICLE
V
CONDITIONS
TO LOANS
SECTION
5.01. Conditions Precedent to
Effectiveness. This Agreement shall become effective as of the
Business Day (the “Effective Date”) when each of the following conditions
precedent shall have been satisfied in a manner satisfactory to the
Agent:
(a) Payment of Fees,
Etc. The Borrowers shall have paid on or before the
date of this Agreement all fees, costs, expenses and taxes then payable pursuant
to Sections 2.06 and 12.04.
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(b) Representations and
Warranties; No Event of Default. The following statements
shall be true and correct: (i) the representations and
warranties contained in Article VI and in each other Loan Document,
certificate or other writing delivered to the Agent, the Lenders, or the L/C
Issuer pursuant hereto or thereto on or prior to the Effective Date are true and
correct on and as of the Effective Date as though made on and as of such date
(except to the extent that such representations and warranties relate solely to
an earlier date) and (ii) no Default or Event of Default shall have
occurred and be continuing on the Effective Date or would result from this
Agreement or the other Loan Documents becoming effective in accordance with its
or their respective terms.
(c) Legality. The
making of the initial Revolving Loans or the issuance of any Letters of Credit
shall not contravene any law, rule or regulation applicable to the Agent, the
Lenders, or the L/C Issuer.
(d) Delivery of
Documents. The Agent shall have received on or before the
Effective Date the following, each in form and substance satisfactory to the
Agent and, unless indicated otherwise, dated the Effective Date:
(i) a
Revolving Credit Note payable to the order of each Lender with a Revolving
Credit Commitment, duly executed by the Borrowers;
(ii)
a Pledge Agreement and Security Agreement, duly executed by Group,
together with the original stock certificates representing all of the common
stock of the Parent, accompanied by undated stock powers executed in blank and
other proper instruments of assignment;
(iii) the
Subordination Agreement and , duly executed by the Borrowers and the
Subordinated Lenders;
(iv)
the Ratification and Reaffirmation Agreement, duly executed by
the Borrowers (other than Group) and the Existing Guarantor;
(v)
a copy of the resolutions of each Loan Party,
certified as of the Effective Date by an Authorized Officer thereof, authorizing
(A) the borrowings hereunder and the transactions contemplated by the Loan
Documents to which such Loan Party is or will be a party, and (B) the
execution, delivery and performance by such Loan Party of each Loan Document and
the execution and delivery of the other documents to be delivered by such Person
in connection herewith and therewith;
(vi)
a certificate of an Authorized Officer of each Loan Party,
certifying the names and true signatures of the representatives of such Loan
Party authorized to sign each Loan Document to which such Loan Party is or will
be a party and the other documents to be executed and delivered by such Loan
Party in connection herewith and therewith, together with evidence of the
incumbency of such authorized officers;
(vii)
a certificate of the appropriate official(s) of the state of
organization and each state of foreign qualification of each Loan Party
certifying as to the subsistence in good standing of, and the payment of taxes
by, such Loan Party in such states, together with confirmation by telephone or
telegram (where available) on the Effective Date from such official(s) as to
such matters;
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(viii)
a true and complete copy of the charter, certificate of formation,
certificate of limited partnership or other publicly filed organizational
document of each Loan Party, certified as of a date not more than thirty (30)
days prior to the Effective Date by an appropriate official of the state of
organization of such Loan Party;
(ix)
a copy of the charter and by-laws, limited liability company agreement,
operating agreement, agreement of limited partnership or other organizational
document of each Loan Party, together with all amendments thereto, certified as
of the Effective Date by an Authorized Officer of such Loan Party;
(x) an
opinion of Xxxxxxxx Xxxxxx, counsel to the Loan Parties, as to such matters as
the Agent may reasonably request;
(xi) a
certificate of an Authorized Officer of each Loan Party, certifying as to the
matters set forth in subsection (b) of this Section 5.01;
(xii) a
certificate of an Authorized Officer of Group , certifying the names and true
signatures of the persons that are authorized to provide Notices of Borrowings,
Letters of Credit Applications and all other notices under this Agreement and
the other Loan Documents;
(xiii) certified
copies of request for copies of information on Form UCC-1, listing all effective
financing statements which name as debtor any Loan Party and which are filed in
the offices specified by the Agent, together with copies of such financing
statements, none of which, except as otherwise agreed in writing by the Agent,
shall cover any of the Collateral and the results of searches for any tax Lien
and judgment Lien filed against such Person or its property, which results,
except as otherwise agreed to in writing by the Agent, shall not show any such
Liens;
(xiv) a
certificate of the chief financial officer of each Loan Party with respect to
the matters set forth in Section 6.01(t) hereto, which certificate shall be in
form and substance satisfactory to the Agent;
(xv) evidence
of the insurance coverage required by Section 7.01(h) and such other
insurance coverage with respect to the business and operations of the Loan
Parties as the Agent may reasonably request, in each case, where requested by
the Agent, with such endorsements as to the named insureds or loss payees
thereunder as the Agent may request and providing that such policy may be
terminated or canceled (by the insurer or the insured thereunder) only upon
30 days' prior written notice to the Agent and each such named insured or
loss payee, together with evidence of the payment of all premiums due in respect
thereof for such period as the Agent may request; and
(xvi) such
other agreements, instruments, approvals, opinions and other documents, each
satisfactory to the Agent in form and substance, as the Agent may reasonably
request.
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(e) Material Adverse
Change. The Agent shall have determined, in its sole judgment
exercised reasonably and after giving effect to the Acquisition Documents and
the transactions contemplated hereby and by the other Loan Documents, that no
material adverse change shall have occurred in the business, operations,
condition (financial or otherwise), properties or prospects of any Loan Party
since July 30, 2007.
(f) Subordinated Loan
Agreement. The Agent shall have received evidence that the
Subordinated Loan Agreement has been amended, in form and substance reasonably
satisfactory to the Agent, to (i) defer maturity of the Subordinated
Indebtedness until July 28, 2012 and (ii) reflect the conversion of the Tranche
A/B Term Loans described therein into the Preferred Equity Interests, pursuant
to the Subordinated Loan Agreement Amendment.
(g) [Reserved].
(h) [Reserved].
(i) Cash Management
System. The cash management system of Group and its
Subsidiaries shall be satisfactory to the Agent determined by the Agent in good
faith.
(j) Financial
Projections. The Agent shall have received the Plan
Projections and the financial projections described in Section 6.01(g)(iii)
hereof, which Plan Projections and projections must be in form and substance
satisfactory to the Agent determined by the Agent in good faith.
(k) Due
Diligence. The Agent shall have completed its financial and
legal due diligence with respect to each Loan Party and the Collateral and the
results thereof shall be acceptable to the Agent, in its sole and absolute
discretion exercised in good faith.
(l) Proceedings; Receipt of
Documents. All proceedings in connection with the making of
the initial Revolving Loans or the issuance of the initial Letter of Credit and
the other transactions contemplated by this Agreement and the other Loan
Documents, and all documents incidental hereto and thereto, shall be reasonably
satisfactory to the Agent and its counsel, and the Agent and such counsel shall
have received all such information and such counterpart originals or certified
or other copies of such documents as the Agent or such counsel may reasonably
request.
(m) Acquisition
Documents. Evidence of consummation of the Acquisition
contemplated by the Acquisition Agreement (with no waiver of the terms or
conditions thereof without the prior written consent of the Agent).
SECTION
5.02. Conditions Precedent to all
Revolving Loans and Letters of Credit. The obligation of the
Agent or any Lender to make any Revolving Loan or of the Agent to assist the
Borrowers in establishing or opening any Letter of Credit is subject to the
fulfillment, in a manner reasonably satisfactory to the Agent, of each of the
following conditions precedent:
(a) Payment of Fees,
Etc. The Borrowers shall have paid all fees, costs,
expenses and taxes then payable by the Borrowers pursuant to this Agreement and
the other Loan Documents, including, without limitation, Sections 2.06 and 12.04
hereof.
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(b) Representations and
Warranties; No Event of Default. The following statements
shall be true and correct, and the submission by Administrative Borrower to the
Agent of a Notice of Borrowing with respect to each such Revolving Loan, and the
Borrowers’ acceptance of the proceeds of such Revolving Loan, or the submission
by the Borrowers of a Letter of Credit Application with respect to a Letter of
Credit, and the issuance of such Letter of Credit, shall each be deemed to be a
representation and warranty by the Borrowers on the date of such Revolving Loan
or the date of issuance of Letter of Credit that: (i) the
representations and warranties contained in Article VI and in each other
Loan Document, certificate or other writing delivered to the Agent, the Lenders
or the L/C Issuer pursuant hereto or thereto on or prior to the date of such
Revolving Loan or Letter of Credit that are subject to materiality or Material
Adverse Effect qualifications shall be true and correct in all respects and the
representations and warranties contained in Article VI
hereof and in each other Loan Document, certificate or other writing delivered
to the Agent, the Lenders or the L/C Issuer pursuant hereto or thereto that are
not subject to materiality or Material Adverse Effect qualifications shall be
true and correct in all material respects, in each case, on and as of such date
as though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date), (ii) at
the time of and after giving effect to the making of such Revolving Loan and the
application of proceeds thereof or at the time of issuance of such Letter of
Credit, no Default or Event of Default has occurred and is continuing or would
result from the making of the Revolving Loan to be made, or the issuance of such
Letter of Credit to be issued, on such date and (iii) the conditions set
forth in this Section 5.02 have been satisfied as of the date of such
request.
(c) Borrowing Base
Certificate. The Agent shall have received the most recent
Borrowing Base Certificate (together with all supporting documentation) required
by Section 7.01(a).
(d) Legality. The
making of such Revolving Loan or the issuance of such Letter of Credit shall not
contravene any law, rule or regulation applicable to the Agent, the Lenders, or
the L/C Issuer.
(e) Notices. The
Agent shall have received (i) a Notice of Borrowing pursuant to
Section 2.02 hereof or (ii) a Letter of Credit Application pursuant to
Section 2.03A hereof.
(f)
Delivery of
Documents. The Agent shall have received such other
agreements, instruments, approvals, opinions and other documents, each
reasonably satisfactory to the Agent in form and substance, as the Agent may
reasonably request.
(g) Proceedings; Receipt of
Documents. All proceedings in connection with the making of
such Revolving Loan or the issuance of such Letter of Credit and the other
transactions contemplated by this Agreement and the other Loan Documents, and
all documents incidental hereto and thereto, shall be reasonably satisfactory to
the Agent and its counsel, and the Agent and such counsel shall have received
all such information and such counterpart originals or certified or other copies
of such documents, in form and substance reasonably satisfactory to the Agent,
as the Agent or such counsel may reasonably request.
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ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
SECTION
6.01. Representations and
Warranties. Each Borrower hereby represents and warrants to
the Agent and the Lenders and the L/C Issuer as follows:
(a) Organization, Good Standing,
Etc. Each Loan Party (i) is a corporation, limited
liability company or limited partnership duly organized, validly existing and in
good standing under the laws of the state of its organization, (ii) has all
requisite power and authority to conduct its business as now conducted and as
presently contemplated and, in the case of the Borrowers, to make the borrowings
hereunder, and to execute and deliver each Loan Document to which it is a party,
and to consummate the transactions contemplated thereby, and (iii) is duly
authorized or qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary
except where the failure to be qualified or in good standing could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
(b) Authorization,
Etc. The execution, delivery and performance by each
Loan Party of each Loan Document to which it is or will be a party, (i) have
been duly authorized by all necessary action, (ii) do not and will not
contravene its charter or by-laws, its limited liability company or operating
agreement or its certificate of partnership or partnership agreement, as
applicable, any applicable law, any Material Contract or any agreement,
instrument or other document evidencing, governing or securing any Indebtedness
of such Loan Party, (iii) do not and will not contravene any other agreement,
instrument or document binding on or otherwise affecting it or any of its
properties, to the extent the obligation thereunder is material or to the extent
such contravention (either individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect, (iv) do not and will not result in
or require the creation of any Lien (other than pursuant to any Loan Document)
upon or with respect to any of its properties, and (v) do not and will not
result in any suspension, revocation, impairment, forfeiture or non-renewal of
any permit, license, authorization or approval applicable to its operations or
any of its properties, except where such suspension, revocation, impairment,
forfeiture or non-renewal could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
(c) Governmental
Approvals. No authorization or approval or other action by,
and no notice to or filing with, any Governmental Authority is required in
connection with the due execution, delivery and performance by any Loan Party of
any Loan Document to which it is or will be a party.
(d) Execution and Binding
Effect. Each of the Loan Documents required to be executed and
delivered on or prior to the date hereof has been duly and validly executed and
delivered by each of the Loan Parties which is a party thereto and constitute
legal, valid and binding obligations of each of the Loan Parties which is a
party thereto enforceable in accordance with the terms hereof or
thereof. Each Loan Document that is not required to be executed and
delivered by any Loan Party prior to the Effective Date, when executed and
delivered, will be validly executed and delivered by the Loan Party thereto, and
will constitute legal, valid and binding obligations of the Loan Party thereto,
enforceable in accordance with the terms thereof.
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(e) Subsidiaries. Schedule
6.01(e) is a complete and correct description of the name, jurisdiction of
incorporation and ownership of the outstanding Capital Stock of such
Subsidiaries of Group in existence on the date hereof. All of the
issued and outstanding Capital Stock of such Subsidiaries has been validly
issued and are fully paid and nonassessable, and the holders thereof are not
entitled to any preemptive, first refusal or other similar
rights. Except as indicated on such Schedule, all such Capital Stock
is owned by Group or one or more of its wholly-owned Subsidiaries, free and
clear of all Liens.
(f) Litigation; Commercial Tort
Claims. Except as set forth in Schedule 6.01(f), (i)
there is no pending or, to the knowledge of any Loan Party, threatened action,
suit or proceeding affecting any Loan Party before any court or other
Governmental Authority or any arbitrator that (A) either individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect or
(B) relates to this Agreement, the Revolving Notes or any other Loan
Document or any transaction contemplated hereby or thereby and (ii) as of the
Effective Date, none of the Loan Parties holds any commercial tort claim for
more than $50,000 in respect of which a claim has been filed in a court of law
or a written notice by an attorney has been given to a potential
defendant.
(g) Financial
Condition.
(i)
Since June 30, 2007 no event or development has occurred that has had or could,
either individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ii) Group
has heretofore furnished to the Lenders a schedule of projected cash receipts,
cash disbursements and monthly cash flows of Group and its Subsidiaries prepared
on a monthly basis through July 26, 2008. Such projections are
believed by Group at the time furnished to be reasonable, have been prepared on
a reasonable basis and in good faith by Group, and have been based on
assumptions believed by Group to be reasonable at the time made and upon the
best information then reasonably available to Group, and Group is not aware of
any facts or information that would lead it to believe that such projections, as
so updated, are incorrect or misleading in any material respect.
(iii) Group
has heretofore furnished to the Lenders the Plan Projections, which include
projected monthly balance sheets, income statements and statements of cash flows
of Group and its Subsidiaries for the forthcoming year following the Effective
Date, month by month. Such projections, as so updated, are believed
by Group at the time furnished to be reasonable, have been prepared on a
reasonable basis and in good faith by Group, and have been based on assumptions
believed by Group to be reasonable at the time made and upon the best
information then reasonably available to Group, and Group is not aware of any
facts or information that would lead it to believe that such projections, as so
updated, are incorrect or misleading in any material respect.
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(h) Compliance with Law,
Etc. No Loan Party is in violation of (i) its organizational
documents, (ii) any law, rule, regulation, judgment or order of any Governmental
Authority applicable to it or any of its material property or assets, or (iii)
any term of any agreement or instrument (including, without limitation, any
Material Contract) binding on or otherwise affecting it or any of its
properties, except in the case of clauses (ii) or (iii), where such violation
could not reasonably be expected to have a Material Adverse Effect (either
individually or in the aggregate).
(i)
ERISA. Except
as set forth on Schedule 6.01(i), (i) each Employee Plan is in substantial
compliance with ERISA and the Internal Revenue Code, (ii) no Termination
Event has occurred nor is reasonably expected to occur with respect to any
Employee Plan, (iii) the most recent annual report (Form 5500 Series) with
respect to each Employee Plan, including any required Schedule B (Actuarial
Information) thereto, copies of which have been filed with the Internal Revenue
Service and delivered to the Agent, is complete and correct and fairly presents
the funding status of such Employee Plan, and since the date of such report
there has been no material adverse change in such funding status, (iv) no
Employee Plan had an accumulated or waived funding deficiency or permitted
decreases which would create a deficiency in its funding standard account or has
applied for an extension of any amortization period within the meaning of
Section 412 of the Internal Revenue Code at any time during the previous
sixty (60) months, and (v) no Lien imposed under the Internal Revenue
Code or ERISA exists or is likely to arise on account of any Employee Plan
within the meaning of Section 412 of the Internal Revenue Code at any time
during the previous sixty (60) months. Except as set forth on
Schedule 6.01(i), none of the Loan Parties or any of their ERISA Affiliates have
incurred any withdrawal liability under ERISA with respect to any Multiemployer
Plan, or are aware of any facts indicating that the Loan Parties or any of their
ERISA Affiliates may in the future incur any such withdrawal
liability. Except as set forth on Schedule 6.01(i), there is no claim
against any employee benefit plan (as defined in Section 3.(3) of ERISA)
sponsored or maintained by any Loan Party (except routine individual claims for
benefits) that could reasonably be expected to have a Material Adverse
Effect. Except as required by Section 4980B of the Internal Revenue
Code or Section 601 of ERISA, none of the Loan Parties or any of their ERISA
Affiliates maintains an employee welfare benefit plan (as defined in Section
3(1) of ERISA) which provides health or welfare benefits (through the purchase
of insurance or otherwise) for any retired or former employee of any Loan Party
or any of its ERISA Affiliates or coverage after a participant’s termination of
employment. None of the Loan Parties or any of their ERISA Affiliates
has incurred any liability or obligation under the Worker Adjustment and
Retraining Notification Act (“WARN”) or similar state law, which remains unpaid
or unsatisfied. The hours worked and payments made to employees of
any Loan Party have not been in violation of the Fair Labor Standards Act or any
other applicable legal requirements. All material payments due from
any Loan Party on account of wages and employee health and welfare insurance and
other benefits have been paid or accrued as a liability on the books of such
Loan Party. No Loan Party or ERISA Affiliate has engaged in a
prohibited transaction, as defined in Section 4975 of the IRC, in connection
with any Plan, which would subject any Loan Party to a material tax on
prohibited transactions imposed by Section 4975 of the Internal Revenue
Code.
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(j) Taxes,
Etc. All Federal, state and local tax returns and other
reports required by applicable law to be filed by any Loan Party have been
filed, or extensions have been obtained, and all taxes, assessments and other
governmental charges imposed upon any Loan Party or any property of any Loan
Party and which have become due and payable on or prior to the date hereof have
been paid, except to the extent contested in good faith by proper proceedings
which stay the imposition of any penalty, fine or Lien resulting from the
non-payment thereof and with respect to which adequate reserves have been set
aside for the payment thereof.
(k) Regulation
U. None of the Loan Parties is nor will be engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulations T, U or X), and no proceeds of any
Revolving Loan will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock.
(l) Nature of
Business. None of the Loan Parties is engaged in any business
other than developing, producing and selling specialty apparel and related
products.
(m) Adverse Agreements,
Etc. None of the Loan Parties is subject to any charter,
limited liability company agreement, partnership agreement or other corporate,
partnership or limited liability company restriction or any judgment, order,
regulation, ruling or other requirement of a court or other Governmental
Authority, which has, or in the future could reasonably be expected to have, a
Material Adverse Effect.
(n) Permits,
Etc. Each Loan Party has, and is in compliance with, all
material permits, licenses, authorizations, approvals, entitlements and
accreditations required for such Person lawfully to own, lease, manage or
operate, or to acquire, each business currently owned, leased, managed or
operated, or to be acquired, by such Person, except where the failure to have
any of the foregoing or the lack of compliance therewith, either individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. No condition exists or event has occurred which, in itself or
with the giving of notice or lapse of time or both, would result in the
suspension, revocation, impairment, forfeiture or non-renewal of any such
permit, license, authorization, approval, entitlement or accreditation, and
there is no claim that any thereof is not in full force and effect, except where
such suspension, revocation, impairment, forfeiture or non-renewal, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
(o) Properties. (i) Each
Loan Party has good and marketable title to, or valid leasehold interests in,
all property and assets material to its business, free and clear of all Liens
except Permitted Liens. The properties are in good working order and
condition, ordinary wear and tear excepted.
(ii) Schedule
6.01(o) sets forth a complete and accurate list as of the Effective Date, of the
location, by state and street address, of all real property owned or leased by
each Loan Party. As of the Effective Date, each Loan Party has valid
leasehold interests in the Leases described on Schedule 6.01(o) to which it is a
party. Schedule 6.01(o) sets forth with respect to each such Lease,
the commencement date, termination date, renewal options (if any) and annual
base rents. Each such Lease is valid and enforceable in accordance
with its terms in all material respects and is in full force and
effect. No consent or approval of any landlord or other third party
in connection with any material Lease is necessary for any Loan Party to enter
into and execute the Loan Documents to which it is a party, except as set forth
on Schedule 6.01(o). To the best knowledge of any Loan Party, no Loan
Party is in default of its obligations thereunder, and no Loan Party (or any
other party to any such Lease) has at any time received any notice of default
which remains uncured under any such material Lease and, as of the Effective
Date, no event has occurred which, with the giving of notice or the passage of
time or both, would constitute a default by a Loan Party under any such material
Lease.
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(iii) Each
Loan Party acknowledges that Lender has established as of the date hereof and
will maintain an Availability Reserve that shall include (A) reserves for unpaid
rent, and (B) reserves for each of the Borrowers’ locations in a Landlord Lien
State or in a One Turn State for which a consent, waiver and subordination, in
form and substance satisfactory to the Agent, has not been received (it being
understood that no Loan Party makes any representation or warranty (I) about the
sufficiency of such Availability Reserve nor (II) as to which states constitute
Landlord Lien States or One Turn States). Such Availability Reserve
shall be reduced, but only if no Event of Default has theretofore occurred, upon
the furnishing to the Lender of a consent, waiver and subordination (in form
satisfactory to the Lender) by the landlord for the subject
location. Without duplication of any Availability Reserve described
in this Section 6.01(o)(iii), the Lender may establish an Availability Reserve
for unpaid rent at any location.
(p) Full
Disclosure. Each Loan Party has disclosed to the Agent all
agreements, instruments and corporate or other restrictions to which it is
subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect. None of the other reports, financial statements, certificates
or other written information furnished by or on behalf of any Loan Party to the
Agent in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which it was made, not misleading; provided that, with
respect to projected financial information, each Loan Party represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time (it being recognized by the Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results). There is no contingent liability or fact
known to such Loan Party that could reasonably be expected to have a Material
Adverse Effect which has not been set forth in a footnote included in the
financial statements or a schedule hereto.
(q) Environmental
Matters. Except as set forth on Schedule 6.01(q),
(i) the operations of each Loan Party are in compliance in all material
respects with Environmental Laws; (ii) there has been no Release at any of the
properties owned or operated by any Loan Party or a predecessor in interest, or
at any disposal or treatment facility which received Hazardous Materials
generated by any Loan Party or any predecessor in interest which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; (iii) no Environmental Action has been asserted against
any Loan Party or any predecessor in interest nor does any Loan Party have
knowledge or notice of any threatened or pending Environmental Action against
any Loan Party or any predecessor in interest which, either individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect;
(iv) no Environmental Actions have been asserted against any facilities that may
have received Hazardous Materials generated by any Loan Party or any predecessor
in interest which, either individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect; (v) no property now or formerly
owned or operated by a Loan Party has been used as a treatment or disposal site
for any Hazardous Material; (vi) no Loan Party has failed to report to the
proper Governmental Authority any Release which is required to be so reported by
any Environmental Laws which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; (vii) each Loan
Party holds all licenses, permits and approvals required under any Environmental
Laws in connection with the operation of the business carried on by it, except
for such licenses, permits and approvals as to which a Loan Party’s failure to
maintain or comply with, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect; and (viii) no Loan
Party has received any notification pursuant to any Environmental Laws that (A)
any work, repairs, construction or Capital Expenditures are required to be made
as a condition of continued compliance with any Environmental Laws, or any
license, permit or approval issued pursuant thereto or (B) any license, permit
or approval referred to above is about to be reviewed, made, subject to
limitations or conditions, revoked, withdrawn or terminated, in each case,
except as, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
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(r) Insurance. Each
Loan Party keeps its property adequately insured and maintains
(i) insurance to such extent and against such risks, including fire, as is
customary with companies in the same or similar businesses, (ii) workmen’s
compensation insurance in the amount required by applicable law,
(iii) public liability insurance, which shall include product liability
insurance, in the amount customary with companies in the same or similar
business against claims for personal injury or death on properties owned,
occupied or controlled by it, and (iv) such other insurance as may be
required by law or as may be reasonably required by the Agent (including,
without limitation, against larceny, embezzlement or other criminal
misappropriation). Schedule 6.01(r) sets forth a list of all
insurance maintained by each Loan Party on the Effective Date.
(s) Use of
Proceeds. The proceeds of the Revolving Loans shall be used
solely (i) for general corporate purposes that are consistent with the
Borrowers’ business plan (including, without limitation, the financing of
working capital and Capital Expenditures), and (ii) to fund Capital Expenditure
requirements to include new store openings.
(t) Sufficient
Capital. After giving effect to the transactions contemplated
by this Agreement and before and after giving effect to each Revolving Loan and
the incurrence of any Letter of Credit Obligation: (i) no Loan Party
nor any of its Subsidiaries expects that final judgments against any Loan Party
or any of its Subsidiaries in actions for money damages with respect to pending
or, to its knowledge, threatened litigation will be rendered at a time when, or
in an amount such that, such Loan Party will be unable to satisfy any such
judgments promptly in accordance with their terms (taking into account the
maximum reasonable amount of such judgments in any such actions and the earliest
reasonable time at which such judgments might be rendered and the cash available
to each Loan Party or any of its Subsidiaries, after taking into account all
other payments on or in respect of Indebtedness and insurance proceeds
(including their Contingent Obligations)); (ii) no Loan Party or any of its
Subsidiaries has incurred or will incur Indebtedness beyond its ability to pay
such Indebtedness as such Indebtedness matures (taking into account the timing
and amounts of cash to be received by such Loan Party or any of its Subsidiaries
from any source, and of amounts to be payable on or in respect of Indebtedness
of such Loan Party or any of its Subsidiaries and the amounts referred to in the
preceding clause (i)); (iii) each Loan Party anticipates that such Loan Party
and each of its respective Subsidiaries, after taking into account all other
anticipated uses of the cash of such Loan Party or any of its Subsidiaries,
shall be able to pay all amounts on or in respect of Indebtedness of such Loan
Party or any of its Subsidiaries when such amounts are required to be paid; and
(iv) each Loan Party and each of its respective Subsidiaries will have
sufficient capital with which to conduct its present and presently proposed
business and the property of such Loan Party and each of its respective
Subsidiaries does not constitute unreasonably small capital with which to
conduct its present or proposed business.
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(u) Location of Bank
Accounts. Schedule 6.01(u) sets forth a complete and accurate
list as of the Effective Date of all deposit, checking and other bank accounts,
all securities and other accounts maintained with any broker dealer and all
other similar accounts maintained by each Loan Party, together with a
description thereof (i.e., the bank or
broker dealer at which such deposit or other account is maintained and the
account number and the purpose thereof).
(v) Intellectual
Property. Each Loan Party owns or licenses or otherwise has
the right to use all licenses, permits, trademarks, trademark applications,
patents, patent applications, service marks, trade names, copyrights, copyright
applications, franchises, authorizations and other intellectual property rights
that are necessary for the operations of its businesses, without infringement
upon or conflict with the rights of any other Person with respect thereto,
except for such infringements and conflicts which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect. Set forth on Schedule 6.01(v) is a complete and accurate
list as of the Effective Date of all trademarks, trademark applications, trade
names, material licenses, permits, patents, patent applications, service marks,
copyrights, copyright applications, franchises, authorizations and other
intellectual property rights of each Loan Party. No slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by any Loan Party infringes
upon or conflicts with any rights owned by any other Person, and no claim or
litigation regarding any of the foregoing is pending or threatened, except for
such infringements and conflicts which could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. To the
best knowledge of each Loan Party, no patent, invention, device, application,
principle or any statute, law, rule, regulation, standard or code is pending or
proposed, which, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect.
(w) Material
Contracts. Set forth on Schedule 6.01(w) is a complete
and accurate list as of the Effective Date of all Material Contracts (other than
Loan Documents) of each Loan Party, showing the parties and subject matter
thereof and amendments and modifications thereto. Each such Material
Contract (i) is in full force and effect and is binding upon and
enforceable against each Loan Party that is a party thereto and, to the best
knowledge of such Loan Party, all other parties thereto in accordance with its
terms, (ii) has not been otherwise amended or modified, (iii) is not in
default due to the action of any Loan Party or (iv) to the best knowledge of any
Loan Party, is not in default due to the action of any other party thereto,
except to the extent any such default could not reasonably be expected to have a
Material Adverse Effect.
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(x) Holding Company and
Investment Company Acts. None of the Loan Parties is
(i) a “holding company” or a “subsidiary company” of a “holding
company” or an “affiliate” of a “holding company”, as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended, or
(ii) an “investment company” or an “affiliated person” or “promoter” of,
or “principal underwriter” of or for, an “investment company”, as such
terms are defined in the Investment Company Act of 1940, as
amended.
(y) Employee and Labor
Matters. (i) There is (A) no unfair labor practice
complaint pending or, to the best knowledge of any Loan Party, threatened
against any Loan Party before any Governmental Authority and no grievance or
arbitration proceeding pending or threatened against any Loan Party which arises
out of or under any collective bargaining agreement, (B) no strike, labor
dispute, slowdown, stoppage or similar action or grievance pending or threatened
against any Loan Party and (C) to the best knowledge of any Loan Party, no union
representation question existing with respect to the employees of any Loan Party
and no union organizing activity taking place with respect to any of the
employees of any of them.
(z)
Name; Jurisdiction of
Organization; Organizational ID Number; Chief Place of Business; Chief Executive
Office; FEIN. Schedule 6.01(z) sets forth a complete and
accurate list as of the date hereof of (i) the exact legal name of each
Loan Party, (ii) the jurisdiction of organization of each Loan Party,
(iii) the organizational identification number of each Loan Party (or
indicates that such Loan Party has no organizational identification number),
(iv) each place of business of each Loan Party, (v) the chief
executive office of each Loan Party and (vi) the federal employer
identification number of each Loan Party.
(aa) [Reserved].
(bb) Security
Interests. Each Security Agreement creates in favor of the
Agent, for the benefit of the Lenders, a legal, valid and enforceable security
interest in the Collateral secured thereby. No further recordings or
filings are or will be required in connection with the creation, perfection or
enforcement of such security interests and Liens with respect to Collateral that
may be perfected by the filing of financing statements and recordings in the
United States Patent and Trademark Office and the United States Copyright
Office, other than (i) the filing of continuation statements in accordance
with applicable law, and (ii) the recording of the Collateral Assignments
for Security pursuant to each Security Agreement in the United States Patent and
Trademark Office and the United States Copyright Office, as applicable, with
respect to after-acquired U.S. patent and trademark applications and
registrations and U.S. copyrights.
(cc) Representations and
Warranties in Documents; No Default. All representations and
warranties set forth in this Agreement and the other Loan Documents are true and
correct in all respects at the time as of which such representations were made
and on the Effective Date (except to the extent that such representations and
warranties relate solely to an earlier date). No Event of Default has
occurred and is continuing and no condition exists which constitutes a Default
or an Event of Default under or with respect to the Loan Documents or which
constitutes a default or an event of default under or with respect to the
Acquisition Documents.
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(dd) Credit Card
Processors. Schedule 6.01(dd) sets forth a complete list of
all Credit Card Processors, which includes any “instant credit” providers and
any other arrangements to which any of the Borrowers is a party with respect to
the payment to the Borrowers of the proceeds of all credit card charges for
sales by the Borrowers.
(ee)
Schedules. All
of the information which is required to be scheduled to this Agreement is set
forth on the Schedules attached hereto, is correct and accurate in all material
respects and does not omit to state any information material
thereto.
(ff) Acquisition. The
Acquisition, Merger and other transactions described in the Acquisition
Agreement and the documents relating thereto (collectively, with the Acquisition
Agreement, the “Acquisition
Documents”) have been effected in compliance in all material respects
with all applicable Laws and otherwise in accordance with all material
provisions of the Acquisition Documents and all conditions of the transactions
described in the Acquisition Documents have been satisfied in full or waived
(after receiving the consent of the Agent with respect to any waiver that is
adverse to the Lenders in any material respect). To the knowledge of
the Borrowers, all material consents and approvals of any Governmental Agency
and all material consents and approvals of any other Person necessary to
effectuate the transactions described in the Acquisition Documents have been
obtained.
ARTICLE
VII
COVENANTS
SECTION
7.01. Affirmative
Covenants. So long as any principal of or interest on any
Revolving Loan, Reimbursement Obligation, Letter of Credit Obligation or any
other Obligation (whether or not due), other than unasserted contingent
indemnity Obligations, shall remain unpaid or any Lender shall have any
Revolving Credit Commitment hereunder, the Loan Parties will, unless the
Required Lenders shall otherwise consent in writing:
(a) Collateral
Reporting. Provide the Agent (and if so requested by the
Agent, with copies for each Lender) with the documents set forth on Schedule
7.01(a) in accordance with the delivery schedule set forth
thereon. Any Borrowing Base Certificate furnished pursuant to this
subsection shall be effective from and including the date such Borrowing Base
Certificate is duly received by the Agent but not including the date on which a
subsequent Borrowing Base Certificate is received by the Agent, unless the Agent
disputes the eligibility of any property for inclusion in the calculation of the
Borrowing Base or the valuation thereof by notice of such dispute to the
Borrowers, and in the event of any dispute about the eligibility of any property
for inclusion in the calculation of the Borrowing Base or the valuation thereof,
the Agent’s good faith judgment shall control.
(b) Financial Statements,
Reports, Certificates. Deliver to the Agent, with copies to
each Lender:
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(i) as
soon as available, but in any event within forty-five (45) days after the end of
each month during each of Group’s Fiscal Years:
(A) a
company prepared consolidated balance sheet, income statement, and statement of
cash flow covering Group’s and its Subsidiaries’ operations during the previous
month;
(B) a
certificate signed by the chief financial officer of Group to the effect
that:
(1) the
financial statements delivered hereunder have been prepared in accordance with
GAAP (except for the lack of footnotes and being subject to year-end audit
adjustments) and fairly present in all material respects the financial condition
of Group and its Subsidiaries,
(2) the
representations and warranties of the Borrowers contained in this Agreement and
the other Loan Documents are true and correct in all material respects on and as
of the date of such certificate, as though made on and as of such date (except
to the extent that any such representations and warranties expressly relate
solely to an earlier date, in which case such representations and warranties
were true and correct in all material respects on such earlier date),
and
(3) there
does not exist any condition or event that constitutes a Default or Event of
Default (or, to the extent of any non-compliance, describing such non-compliance
as to which he or she may have knowledge and what action the Borrowers have
taken, are taking, or propose to take with respect thereto);
(ii) as
soon as available, but in any event within ninety (90) days after the end of
each of Group’s fiscal years:
(A) financial
statements of Group and its Subsidiaries for each such fiscal year, audited by
independent certified public accountants reasonably acceptable to Agent and
certified, without any qualifications, by such accountants to have been prepared
in accordance with GAAP (such audited financial statements to include a balance
sheet, income statement, and statement of cash flow and, if prepared, such
accountants’ letter to management);
(iii) as
soon as available, but in any event within thirty (30) days prior to the start
of each of Group’s fiscal years, copies of the Borrowers’ business plan, in form
and substance (including as to scope and underlying assumptions) satisfactory to
the Agent, in its Permitted Discretion, for the forthcoming year, month by
month, certified by the chief financial officer of Group as being such officer’s
good faith best estimate of the financial performance of Group and its
Subsidiaries during the period covered thereby (it being understood that (A)
such information will be prepared by Group in good faith based upon assumptions
believed to be reasonable at the time and based upon the best information then
reasonably available to Group, and (B) Agent may in its Permitted Discretion,
but shall not be under any obligation to, revise financial covenants set forth
in Section 7.02 as a result of its review of such business plans and/or create
or expand Reserves).
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(iv) if
and when filed by any Loan Party:
(A) Form
10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current
reports,
(B) any
other filings made by any Loan Party with the SEC,
(C) copies
of the federal income tax returns of each Borrower, and any amendments thereto,
filed with the Internal Revenue Service, and
(D) any
other written information that is provided by Group to the holders of its
Capital Stock (as such) generally;
(v) if
and when filed by any Borrower and as requested by Agent, evidence of payment
satisfactory to the Agent (in its Permitted Discretion) of applicable excise
taxes in each jurisdiction in (A) which any Borrower conducts business or is
required to pay any such excise tax, (B) where any Borrower’s failure to pay any
such applicable excise tax would result in a Lien on the properties or assets of
any Borrower, or (C) where any Borrower’s failure to pay any such applicable
excise tax, either individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect;
(vi)
no less than two times a week, a report on the Borrowers’ Eligible Credit Card
Accounts, in form and substance reasonably satisfactory to the
Agent;
(vii) promptly
after submission to any Government Authority unless prohibited by applicable
law, all documents and information furnished to such Government Authority in
connection with any investigation of any Loan Party other than routine inquiries
by such Governmental Authority;
(viii) as
soon as possible, and in any event within three days after the occurrence of an
Event of Default or Default or the occurrence of any event or development that
could reasonably be expected to have a Material Adverse Effect, the written
statement of an Authorized Officer setting forth the details of such Event of
Default, Default, other event or Material Adverse Effect and the action which
Group and its Subsidiaries propose to take with respect thereto;
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(ix) (A)
as soon as possible and in any event (1) within ten (10) days after any Loan
Party or any ERISA Affiliate thereof knows or has reason to know that any
Termination Event described in clause (i) of the definition of Termination Event
with respect to any Employee Plan has occurred, (2) within ten (10) days after
any Borrower or any ERISA Affiliate thereof knows or has reason to know that any
other Termination Event with respect to any Employee Plan has occurred, or (3)
within ten (10) days after any Loan Party or any ERISA Affiliate thereof knows
or has reason to know that an accumulated funding deficiency has been incurred
or an application has been made to the Secretary of the Treasury for a waiver or
modification of the minimum funding standard (including installment payments) or
an extension of any amortization period under Section 412 of the Internal
Revenue Code with respect to an Employee Plan, a statement of an Authorized
Officer setting forth the details of such occurrence and the action, if any,
which such Loan Party or such ERISA Affiliate proposes to take with respect
thereto, (B) promptly and in any event within three days after receipt thereof
by any Loan Party or any ERISA Affiliate thereof from the PBGC, copies of each
notice received by any Loan Party or any ERISA Affiliate thereof of the PBGC’s
intention to terminate any Plan or to have a trustee appointed to administer any
Plan, (C) promptly and in any event within ten (10) days after the filing
thereof with the Internal Revenue Service if requested by the Agent, copies of
each Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Employee Plan and Multiemployer Plan, (D) promptly and in
any event within ten (10) days after any Loan Party or any ERISA Affiliate
thereof knows or has reason to know that a required installment within the
meaning of Section 412 of the Internal Revenue Code has not been made when due
with respect to an Employee Plan, (E) promptly and in any event within three
days after receipt thereof by any Loan Party or any ERISA Affiliate thereof from
a sponsor of a Multiemployer Plan or from the PBGC, a copy of each notice
received by any Loan Party or any ERISA Affiliate thereof concerning the
imposition or amount of withdrawal liability under Section 4202 of ERISA or
indicating that such Multiemployer Plan may enter reorganization status under
Section 4241 of ERISA, and (F) promptly and in any event within ten (10) days
after any Loan Party or any ERISA Affiliate thereof send notice of a plant
closing or mass layoff (as defined in WARN) to employees, copies of each such
notice sent by such Loan Party or such ERISA Affiliate thereof;
(x) promptly
after the commencement thereof but in any event not later than 5 days after
service of process with respect thereto on, or the obtaining of knowledge
thereof by, any Loan Party, notice of each action, suit or proceeding before any
court or other Governmental Authority or other regulatory body or any arbitrator
which, if adversely determined, could reasonably be expected to have a Material
Adverse Effect;
(xi) [Reserved].
(xii) promptly
after the sending or filing thereof, copies of all statements, reports and other
information Group or any other Loan Party sends to any holders of its
Indebtedness or its securities or files with the SEC or any national (domestic
or foreign) securities exchange, provided that the Loan Party may redact
confidential information contained in any such statement, report or other
information if it provides a summary of the nature of the information redacted
to the Agent;
(xiii) promptly
upon receipt thereof, copies of all financial reports including, without
limitation, management letters), if any, submitted to any Loan Party by its
auditors in connection with any annual or interim audit of the books thereof;
and
(xiv) promptly
upon request, such other information concerning the condition or operations,
financial or otherwise, of any Loan Party as the Agent may from time to time may
reasonably request.
In
addition to the financial statements referred to in clauses (i) and (ii) above,
the Borrowers agree to deliver financial statements prepared on both a
consolidated and consolidating basis. The Borrowers agree that, upon
prior notice if no Default or Event of Default exists and without any notice if
any Default or Event of Default exists, their independent certified public
accountants are authorized to communicate with the Agent and to release to the
Agent whatever financial information concerning the Borrowers that the Agent
reasonably may request. Each Borrower waives the right to assert a
confidential relationship, if any, it may have with any accounting firm or
service bureau in connection with any information requested by the Agent
pursuant to or in accordance with this Agreement, and agrees that the Agent may
contact directly any such accounting firm or service bureau in order to obtain
such information.
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(c) Additional Guaranties and
Collateral Security. Cause each Domestic Subsidiary of any
Loan Party to execute and deliver to the Agent promptly, and in any event within
three days after the formation, acquisition or change in status thereof
(A) a Guaranty guaranteeing the Obligations, (B) a Security Agreement,
(C) if such Domestic Subsidiary has any Subsidiaries, a Pledge Agreement,
together with (x) certificates evidencing all of the Capital Stock pledged
thereunder, (y) undated stock powers executed in blank with signature
guaranteed, and (z) such opinion of counsel and such approving certificate
of such Subsidiary as the Agent may request (in its Permitted Discretion),
(D) one or more Mortgages creating on the real property owned by such
Subsidiary in fee simple a perfected, first priority Lien (subject to Permitted
Liens) on such real property, a Title Insurance Policy covering such real
property, a current ALTA survey thereof and a surveyor’s certificate, each in
form and substance reasonably satisfactory to the Agent, together with such
other agreements, instruments and documents as the Agent may reasonably require,
and (E) such other agreements, instruments, approvals, legal opinions or
other documents reasonably requested by the Agent in order to create, perfect,
establish the first priority (subject to Permitted Liens) of or otherwise
protect any Lien purported to be covered by any such security agreement, Pledge
Agreement or Mortgage or otherwise to effect the intent that such Subsidiary
shall become bound by all of the terms, covenants and agreements contained in
the Loan Documents and that all property and assets of such Subsidiary shall
become Collateral for the Obligations.
(d) Compliance with Laws,
Etc. Comply, and cause each of their Subsidiaries to
comply, in all material respects with all applicable laws, rules, regulations
and orders (including, without limitation, all Environmental Laws, and the
Acquisition Documents), such compliance to include, without limitation, (i)
paying before the same become delinquent all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or upon any of
its properties, and (ii) paying all lawful claims which if unpaid might
become a Lien or charge upon any of its properties, except, with respect to all
covenants in this Section 7.01(d), to the extent contested in good faith by
proper proceedings which stay the imposition of any penalty, fine or Lien
resulting from the non-payment thereof and with respect to which adequate
reserves have been set aside for the payment thereof.
(e) Preservation of Existence,
Etc. Except to the extent permitted by Section
7.02(d)(ii) and except as disclosed in writing to the Agent prior to the
Effective Date, maintain and preserve, and cause each of their Subsidiaries to
maintain and preserve, their existence, rights and privileges, and become or
remain duly qualified and in good standing in each jurisdiction in which the
character of the properties owned or leased by them or in which the transaction
of their business makes such qualification necessary, except to the extent that
the failure to remain so qualified and in good standing could not reasonably be
expected to result in a Material Adverse Effect.
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(f) Keeping of Records and Books
of Account. Keep, and cause each of their Subsidiaries to
keep, adequate records and books of account, with complete entries made in
accordance with GAAP.
(g) Inspection
Rights. Permit, and cause each of their Subsidiaries to
permit, the Agent or representatives thereof at any time and from time to time
during normal business hours, in the absence of a continuing Event of Default
upon reasonable notice and if an Event of Default exists without notice, and at
the expense of the Borrowers, to examine and make copies of and abstracts from
their records and books of account, to visit and inspect their properties, to
verify materials, leases, notes, accounts receivable, deposit accounts and other
assets of the Loan Parties and their Subsidiaries, to conduct audits, physical
counts, valuations, appraisals, environmental assessments or examinations and to
discuss their affairs, finances and accounts with any of the directors,
officers, managerial employees, independent accountants or other representatives
thereof. The Borrowers agree to pay the reasonable fees, cost and
expenses of such audits, counts, valuations, appraisals, assessments or
examinations; provided however, the Agent
shall have the right to conduct two (2) field examinations and two (2) inventory
appraisals per year with respect to Eligible Retail Inventory and two (2) field
examinations and one (1) inventory appraisal per year with respect to Eligible
Wholesale Inventory, at the Borrowers’ sole expense, provided further,
upon the occurrence and during a continuing Event of Default, the Borrowers
shall be obligated to pay for an unlimited number of field examinations and
inventory appraisals.
(h) Maintenance of Properties,
Etc. Maintain and preserve, and cause each of their
Subsidiaries to maintain and preserve, all of their properties which are
necessary or useful in the proper conduct of their business in good working
order and condition, ordinary wear and tear excepted, and comply, and cause each
of their Subsidiaries to comply, at all times with the material provisions of
all leases to which each of them is a party as lessee or under which each of
them occupies property, so as to prevent any loss or forfeiture thereof or
thereunder, in each case, other than sales of property otherwise permitted by
the terms of this Agreement.
(i) Maintenance of
Insurance. Maintain, and cause each of their Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or
associations (including, without limitation, comprehensive general liability,
hazard, rent and business interruption insurance) with respect to their
properties (including all real properties leased or owned by them) and business,
in such amounts and covering such risks as is required by any Governmental
Authority having jurisdiction with respect thereto or as is carried generally in
accordance with sound business practice by companies in similar businesses
similarly situated and in any event in amount, adequacy and scope reasonably
satisfactory to the Agent. All policies covering the Collateral are
to be made payable to the Agent for the benefit of the Lenders, as its interests
may appear, in case of loss, under a standard non-contributory “lender” or
“secured party” clause and are to contain such other provisions as the Agent may
reasonably require to fully protect the Lenders’ interest in the Collateral and
to any payments to be made under such policies. All certificates of
insurance are to be delivered to the Agent and the policies are to be premium
prepaid, with the loss payable and additional insured endorsement in favor of
the Agent and such other Persons as the Agent may designate from time to time,
and shall provide for not less than 30 days’ prior written notice to the Agent
of the exercise of any right of cancellation. If the Loan Parties or
any of their Subsidiaries fail to maintain such insurance, the Agent may arrange
for such insurance, but at the Borrowers’ expense and without any responsibility
on the Agent’s part for obtaining the insurance, the solvency of the insurance
companies, the adequacy of the coverage, or the collection of
claims. Upon the occurrence of an Event of Default that is
continuing, the Agent shall have the sole right, in the name of the Lenders, the
Loan Parties and their Subsidiaries, to file claims under any insurance
policies, to receive, receipt and give acquittance for any payments that may be
payable thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance
policies.
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(j) Obtaining of Permits,
Etc. Obtain, maintain and preserve, and cause each of
their Subsidiaries to obtain, maintain and preserve, all permits, licenses,
authorizations, approvals, entitlements and accreditations which are necessary
or useful in the proper conduct of its business and become or remain, and cause
each of their Subsidiaries to become or remain, duly qualified and in good
standing in each jurisdiction in which the character of the properties owned or
leased by it or in which the transaction of its business makes such
qualification necessary, except where all such failures to comply with this
Section 7.01(j) could not reasonably be expected to have a Material Adverse
Effect.
(k) Environmental. (i) Keep
any property either owned or operated by them or any of their Subsidiaries free
of any Environmental Liens; (ii) comply, and cause their Subsidiaries to
comply, in all material respects with Environmental Laws and provide to the
Agent documentation of such compliance which the Agent reasonably requests;
(iii) immediately notify the Agent of any Release of a Hazardous Material
in excess of any reportable quantity from or onto property owned or operated by
the Loan Parties or any of their Subsidiaries and take any Remedial Actions
required to xxxxx said Release; (iv) promptly provide the Agent with
written notice within 10 days of the receipt of any of the
following: (A) notice that an Environmental Lien has been filed
against any property of any Loan Party or any of its Subsidiaries;
(B) commencement of any Environmental Action or notice that an
Environmental Action will be filed against any Loan Party or any of its
Subsidiaries; and (C) notice of a violation, citation or other
administrative order which could not reasonably be expected to have a Material
Adverse Effect and (v) defend, indemnify and hold harmless the Agent and
the Lenders and their transferees, and their respective employees, agents,
officers and directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs or expenses (including, without
limitation, attorney and consultant fees, investigation and laboratory fees,
court costs and litigation expenses) arising out of (A) the presence,
disposal, release or threatened release of any Hazardous Materials on any
property at any time owned or operated by any Loan Party or any of its
Subsidiaries (or its respective predecessors in interest or title), (B) any
personal injury (including wrongful death) or property damage (real or personal)
arising out of or related to such Hazardous Materials, (C) any
investigation, lawsuit brought or threatened, settlement reached or government
order relating to such Hazardous Materials and/or (D) any violation of any
Environmental Law at or relating to or arising in connection with any property
owned or operated by any Loan Party or any of their Subsidiaries.
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(l) Further
Assurances. Take such action and execute, acknowledge and
deliver, and cause each of their Subsidiaries to take such action and execute,
acknowledge and deliver, at their sole cost and expense, such agreements,
instruments or other documents as the Agent may reasonably require from time to
time in order (i) to carry out more effectively the purposes of this
Agreement and the other Loan Documents, (ii) to subject to valid and
perfected first priority Liens (subject to Permitted Liens) any of the
Collateral or any other property of the Guarantors and their Subsidiaries,
(iii) to establish and maintain the validity and effectiveness of any of
the Loan Documents and the validity, perfection and priority of the Liens
intended to be created thereby, (iv) to file financing statements or
otherwise perfect its Lien under applicable nonbankruptcy law and (v) to
better assure, convey, grant, assign, transfer and confirm unto the Agent the
rights now or hereafter intended to be granted to the Agent, the Lenders and the
L/C Issuer under this Agreement or any other Loan Document. In
furtherance of the foregoing, to the maximum extent permitted by applicable law,
each Loan Party (i) authorizes the Agent to execute any such agreements,
instruments or other documents in such Loan Party’s name and to file such
agreements, instruments or other documents in any appropriate filing office,
(ii) authorizes the Agent to file any financing statement required hereunder or
under any other Loan Document, and any continuation statement or amendment with
respect thereto, in any appropriate filing office without the signature of such
Loan Party, and (iii) ratifies the filing of any financing statement, and
any continuation statement or amendment with respect thereto, filed without the
signature of such Loan Party prior to the date hereof.
(m) Change in Collateral;
Collateral Records. (i) Give the Agent not less
than fifteen (15) days’ prior written notice of any change in the location
of any Collateral (excluding such changes that are in the ordinary course of
business but including, without limitation, the execution and delivery of any
lease of real property), other than to locations set forth on
Schedule 1.01(B) and Schedule 1.01(E) and with respect to which the Agent
has fully perfected its Liens thereon, (ii) advise the Agent promptly, in
sufficient detail, of any material adverse change relating to the type, quantity
or quality of the Collateral or the Lien granted thereon and (iii) execute and
deliver and cause each of their Subsidiaries to execute and deliver, to the
Agent for the benefit of the Lenders from time to time, solely for the Agent’s
convenience in maintaining a record of Collateral, such written statements and
schedules as the Agent may reasonably require, designating, identifying or
describing the Collateral.
(n) Subordination. Cause
all Indebtedness and other obligations now or hereafter owed by it to any of its
Affiliates to be subordinated in right of payment and security to the
Indebtedness and other Obligations owing to the Agent and the Lenders in
accordance with a subordination agreement in form and substance satisfactory to
the Agent.
(o) Guarantor
Reports. Cause each Guarantor to deliver its annual financial
statements at the time when Group provides its audited financial statements to
the Agent and copies of all federal income tax returns as soon as the same are
available and in any event no later than 30 days after the same are required to
be filed by law.
(p) Fiscal
Year. Cause the Fiscal Year of Group and its Subsidiaries to
end on the last Saturday in July of each calendar year unless the Agent consents
to a change in such Fiscal Year (and appropriate related changes to this
Agreement), and cause the Fiscal Year of each Subsidiary to be the
same as that of Group.
(q) Borrowing
Base. Maintain all Revolving Loans and Letter of Credit
Obligations in compliance with then current Borrowing Base.
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(r) Sales Tax Escrow
Account. Maintain a separate escrow account for sales taxes
and shall deposit into such account such amounts as are sufficient to pay all
required sales taxes.
(s) Returns. Account
for returns of inventory and customer credits and record the effects thereof on
the general ledger on the same basis and in accordance with the usual customary
practices of the applicable Borrower, as they exist at the time of the execution
and delivery of this Agreement.
(t) Immediate Notice to the
Agent.
(i) The
Administrative Borrower shall provide the Agent with written notice promptly
upon the occurrence of any of the following events, which written notice shall
state with reasonable particularity the facts and circumstances of the event for
which such notice is being given:
(A) any
change in any of the Executive Officers;
(B) the
completion of any physical count of all or a material portion of the Borrowers’
Inventory (together with a copy of the results thereof certified by
Administrative Borrower);
(C) any
cessation by the Borrowers of their making payment to its creditors generally as
the Borrowers’ debts become due;
(D) any
failure by the Borrowers to pay rent at any of the Borrowers’ locations, which
failure continues for more than fifteen (15) days following the last day on
which such rent was payable without more than a minimal adverse effect on the
Borrowers; or
(E) any
intention on the part of any Borrower to discharge the Borrowers’ present
independent accountants or any withdrawal or resignation by such independent
accountants from their acting in such capacity; and
(ii) Administrative
Borrower shall add the Agent as an addressee on all mailing lists maintained by
or for the Borrowers.
(u) Real
Property. Each Borrower which acquires real property on or
after the Effective Date shall upon request deliver to the Agent promptly after
the acquisition of such real property, one or more Mortgages creating on such
real property in fee simple a perfected, first priority Lien (subject to
Permitted Liens) on such real property, a Title Insurance Policy covering such
real property, a current ALTA survey thereof and a surveyor’s certificate, each
in form and substance satisfactory to the Agent, together with such other
agreements, instruments and documents as the Agent may reasonably require, and
such other agreements, instruments, approvals, legal opinions or other documents
reasonably requested by the Agent in order to create, perfect, establish the
first priority of (subject to Permitted Liens) or otherwise protect any Lien
purported to be covered by any such Mortgage.
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(v) Post-Effective Date
Obligations. The Borrowers shall perform the obligations set
forth on Schedule 7.01(v) within the time periods designated
therein.
SECTION
7.02. Negative
Covenants. So long as any principal of or interest on any
Revolving Loan, Letter of Credit Obligation or any other Obligation, whether or
not due (other than any unasserted contingent indemnity Obligation), shall
remain unpaid or any Lender shall have any Commitment hereunder, the Loan
Parties shall not, unless the Required Lenders shall otherwise consent in
writing:
(a) Lien Priority; Payment of
Claims.
(i) Any
time suffer to exist any Lien on the Collateral having a priority equal or
superior to the Lien in favor of the Lenders in respect of the Collateral except
for Permitted Priority Liens.
(b) Liens,
Etc. Create, incur, assume or suffer to exist, or permit
any of their Subsidiaries to create, incur, assume or suffer to exist any Lien
upon or with respect to any of their properties, whether now owned or hereafter
acquired, to file or suffer to exist under the Uniform Commercial Code or any
similar law or statute of any jurisdiction, a financing statement (or the
equivalent thereof) that names any Loan Party or any of its Subsidiaries as
debtor, to sign or suffer to exist any security agreement authorizing any
secured party thereunder to file such financing statement (or the equivalent
thereof), to sell any of its property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or assets
(including sales of accounts receivable) with recourse to any Loan Party or any
of its Subsidiaries or assign or otherwise transfer, or permit any of its
Subsidiaries to assign or otherwise transfer, any account or other right to
receive income, other than Permitted Liens.
(c) Indebtedness. Create,
incur, assume, guarantee or suffer to exist, or otherwise become or remain
liable with respect to, or permit any of their Subsidiaries to create, incur,
assume, guarantee or suffer to exist or otherwise become or remain liable with
respect to, any Indebtedness other than Permitted Indebtedness.
(d) Fundamental
Changes. Wind-up, liquidate or dissolve (or permit or suffer
any thereof) or merge, consolidate or amalgamate with any Person, convey, sell,
lease or sublease, transfer or otherwise dispose of, whether in one transaction
or a series of related transactions, all or any part of their business, property
or assets, whether now owned or hereafter acquired, or (agree to do any of the
foregoing) or purchase or otherwise acquire, whether in one transaction or a
series of related transactions, all or substantially all of the assets of any
Person (or any division thereof) (or agree to do any of the foregoing), or
permit any of their Subsidiaries to do any of the foregoing; provided, however,
that
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(i)
(A) Group and Frederick’s may consummate the
Merger (which shall not be deemed to constitute a Change of Control with respect
to any Person); (B) any Borrower may be merged into or may consolidate with
another Borrower, (C) any Guarantor may be merged into or may consolidate
with another Guarantor or (D) any wholly-owned Subsidiary of any Loan Party
(other than the Borrowers or the Guarantors) may be merged into such Loan Party
or another such wholly-owned Subsidiary of such Loan Party, or may consolidate
with another such wholly-owned Subsidiary of such Loan Party, so long as
(w) no other provision of this Agreement would be violated thereby,
(x) such Loan Party gives the Agent at least 60 days’ prior written notice
of such merger or consolidation, (y) no Default or Event of Default shall
have occurred and be continuing either before or after giving effect to such
transaction, and (z) the Lenders’ rights in any Collateral, including,
without limitation, the existence, perfection and priority of any Lien thereon,
are not adversely affected by such merger or consolidation;
(ii)
any of the Loan Parties and their Subsidiaries may
(A) sell Inventory in the ordinary course of business, (B) dispose of
obsolete or worn-out equipment in the ordinary course of business, (C) dispose
of Inventory in the ordinary course of business, (D) dispose of Inventory for
cash in connection with store closings and lease expirations, provided that (w)
no store of any of the Loan Parties may be closed other than (1) as specifically
set forth in the Borrowers’ business plan or (2) with the prior written consent
of the Agent, (x) the cash proceeds of Inventory sold in connection with any
such store closing or expiration of lease shall not be less than 80% of the
aggregate book value of such Inventory, (y) the Borrowers must hire a third
party liquidator reasonably satisfactory to the Agent dispose of Inventory in
connection with any such store closing or lease expiration and (z) such cash
shall immediately be applied in accordance with Section 2.05(c)(iii), and (E)
sell or otherwise dispose of other property or assets for cash in an aggregate
amount not less than the fair market value of such property or assets, provided
that (x) the greater of the fair market value of all such property and assets
and the cash received from all such sales and dispositions in any Fiscal Year
shall in no event exceed $100,000 and (y) such cash shall immediately be applied
in accordance with Section 2.05(c)(iii).
(e) Change in Nature of
Business. Make, or permit any of their Subsidiaries to make,
any change in the nature of its business as carried on at the date
hereof. In the case of the Parent, engage in any business activities
other than (i) ownership of the Capital Stock of the Borrowers other than Group
and activities thereto, (ii) activities incidental to the maintenance of its
corporate existence and (iii) performance of its obligations under the related
transaction documents to which it is a party.
(f) Loans, Advances,
Investments, Etc. Make or commit or agree to make any
Investment, or permit any of its Subsidiaries to do any of the foregoing, except
for: (i) Investments existing on the date hereof, as set forth
on Schedule 7.02(f) hereto, but not any increase in the amount thereof as
set forth in such Schedule or any other modification of the terms thereof,
(ii) temporary loans and advances by any Loan Party to another Loan Party,
made in the ordinary course of business, (iii) Permitted Investments held
in Cash Management Accounts and up to $200,000 in the aggregate in Securities
Accounts and DDAs not subject to a Control Agreement, (iv) Investments by any
Loan Party in any other Loan Party provided that if such Investment is in form
of Indebtedness (other than temporary loans or advances permitted pursuant to
clause (ii)) such Investment shall be subordinate to the Obligations on terms
satisfactory to the Agent in its Permitted Discretion and (v) Investments by any
Loan Party in any Subsidiary that is not a Loan Party in an aggregate amount not
to exceed $500,000 at any one time outstanding.
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(g) Lease
Obligations. Create, incur or suffer to exist, or permit any
of their Subsidiaries to create, incur or suffer to exist, any obligations as
lessee (i) for the payment of rent for any real or personal property in
connection with any sale and leaseback transaction, or (ii) for the payment
of rent for any real or personal property under leases or agreements to lease
other than (A) Capitalized Lease Obligations which would not cause the
aggregate amount of all obligations under Capitalized Leases entered into after
the Effective Date owing by the Loan Parties and their Subsidiaries in any
Fiscal Year to exceed $500,000, and (B) Operating Lease Obligations which
would not result in the occurrence of an Event of Default.
(h) [Reserved].
(i) Restricted
Payments. (i) Declare or pay any dividend or other
distribution, direct or indirect, on account of any Capital Stock of any Loan
Party or any of its Subsidiaries (other than dividends or distributions paid
solely in common stock of Group or, to the extent permitted pursuant to the
Restated Certificate of Incorporation of Group as in effect on the Effective
Date, dividends or distributions paid solely in Series A 7.5% Convertible
Preferred Stock so long as such Series A 7.5% Convertible Preferred Stock
constitutes Subordinated Indebtedness), now or hereafter outstanding, (ii) make
any repurchase, redemption, retirement, defeasance, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
Capital Stock of any Loan Party or any direct or indirect parent of any Loan
Party, now or hereafter outstanding, (iii) make any payment to retire, or to
obtain the surrender of, any outstanding warrants, options or other rights for
the purchase or acquisition of shares of any class of Capital Stock of any Loan
Party, now or hereafter outstanding, (iv) return any of capital to any
shareholders or other equity holders of any Loan Party or any of its
Subsidiaries, or make any other distribution of property, assets, shares of
Capital Stock, warrants, rights, options, obligations or securities thereto as
such, (v) pay any management fees or any other fees or expenses (including the
reimbursement thereof by any Loan Party or any of its Subsidiaries) pursuant to
any management, consulting or other services agreement to any of the
shareholders or other equity holders of any Loan Party or any of its
Subsidiaries or other Affiliates, or to any other Subsidiaries or Affiliates of
any Loan Party, provided that this
Section 7.02(i) shall not prohibit payments not to exceed $100,000 per year to
each member of the Board of Directors of Group and (E) so long as no Default or Event
of Default has then occurred and is continuing at the time of any such
payment, $400,000 in any
calendar year, for Consulting Fees; or (vi) pay
or prepay any Indebtedness in respect of the Subordinated Loan Agreement except
to the extent such payment is then permitted pursuant to the terms of the
Subordination Agreement.
(j) Federal Reserve
Regulations. Permit any Loan or the proceeds of any Loan under
this Agreement to be used for any purpose that would cause such Loans to be
margin loans under the provisions of Regulation T, U or X of the
Board.
(k) Transactions with
Affiliates. Enter into, renew, extend or be a party to, or
permit any of their Subsidiaries to enter into, renew, extend or be a party to
any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease, transfer or exchange of property or
assets of any kind or the rendering of services of any kind) with any Affiliate,
except (i) in the ordinary course of business in an aggregate amount less
than five hundred thousand dollars ($500,000) in a manner and to an extent
consistent with past practice and necessary or desirable for the prudent
operation of its business, for fair consideration and on terms no less favorable
to the Loan Parties or such Subsidiaries than would be obtainable in a
comparable arm’s length transaction with a Person that is not an Affiliate
thereof, (ii) transactions among the Loan Parties, (iii) the Subordinated
Loan Agreement and transactions related thereto (subject to the terms and
conditions of the Subordination Agreement) and (iv) the Consulting
Agreement.
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(l) Limitations on Dividends and
Other Payment Restrictions Affecting Subsidiaries. Create or
otherwise cause, incur, assume, suffer or permit to exist or become effective
any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of any Loan Party (i) to pay dividends or to make any other
distribution on any shares of Capital Stock of such Subsidiary owned by any Loan
Party or any of its Subsidiaries, (ii) to pay or prepay or to subordinate
any Indebtedness owed to any Loan Party or any of its Subsidiaries,
(iii) to make loans or advances to any Loan Party or any of its
Subsidiaries or (iv) to transfer any of its property or assets to any Loan
Party or any of its Subsidiaries, or permit any of its Subsidiaries to do any of
the foregoing; provided, however, that nothing
in any of clauses (i) through (iv) of this Section 7.02(l) shall prohibit or
restrict compliance with:
(A) this
Agreement and the other Loan Documents;
(B) any
agreements in effect on the date of this Agreement and described on Schedule
7.02(l);
(C) any
applicable law, rule or regulation (including, without limitation, applicable
currency control laws and applicable state corporate statutes restricting the
payment of dividends in certain circumstances);
(D) in
the case of clause (iv) any agreement setting forth customary restrictions on
the subletting, assignment or transfer of any property or asset that is a lease,
license, conveyance or contract of similar property or assets;
(E) in
the case of clause (iv) any agreement, instrument or other document evidencing a
Permitted Lien from restricting on customary terms the transfer of any property
or assets subject thereto; or
(F) the
Subordinated Loan Documents and the transactions contemplated thereby (subject
to the terms and conditions of the Subordination Agreement).
(m) Limitation on Issuance of
Capital Stock. Except for Group, issue or sell or enter into
any agreement or arrangement for the issuance and sale of (other than, to the
extent permitted pursuant to Section 7.02(f), to another Loan Party), or permit
any of its Subsidiaries to issue or sell or enter into any agreement or
arrangement for the issuance and sale of, any shares of its Capital Stock, any
securities convertible into or exchangeable for its Capital Stock or any
warrants.
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(n) Modifications of
Indebtedness, Organizational Documents and Certain Other Agreements;
Etc. (i) Amend, modify or otherwise change (or permit
the amendment, modification or other change in any manner of) any of the
provisions of (A) any of the Subordinated Loan Documents, or (B) any agreement,
instrument or document evidencing or governing any of the other Indebtedness of
Group or its Subsidiaries or any instrument or agreement (including, without
limitation, any purchase agreement, indenture, loan agreement or security
agreement) relating to any such Indebtedness if such amendment, modification or
change would shorten the final maturity or average life to maturity of, or
require any payment to be made earlier than the date originally scheduled on,
such Indebtedness, would increase the interest rate applicable to such
Indebtedness, would change the subordination provision, if any, of such
Indebtedness, or would otherwise be adverse to the Lenders in any respect,
(ii) except for the Obligations and except as otherwise expressly provided
in Section 2.05(c)(iv), make any voluntary or optional payment, prepayment,
redemption, defeasance, sinking fund payment or other acquisition for value of
any of its or its Subsidiaries’ Indebtedness (including, without limitation, by
way of depositing money or securities with the trustee therefor before the date
required for the purpose of paying any portion of such Indebtedness when due),
or refund, refinance, replace or exchange any other Indebtedness for any such
Indebtedness (except to the extent such Indebtedness is otherwise expressly
permitted by the definition of “Permitted Indebtedness”), or make any payment,
prepayment, redemption, defeasance, sinking fund payment or repurchase of any
outstanding Indebtedness as a result of any asset sale, change of control,
issuance and sale of debt or equity securities or similar event, or give any
notice with respect to any of the foregoing, (iii) except as otherwise
permitted amend, modify or otherwise change its name, jurisdiction of
organization, organizational identification number or FEIN unless the Agent
shall have been provided with not less than thirty (30) days prior written
notice thereof, (iv) amend, modify or otherwise change its certificate of
incorporation or bylaws (or other similar organizational documents), including,
without limitation, by the filing or modification of any certificate of
designation, or any agreement or arrangement entered into by it, with respect to
any of its Capital Stock (including any shareholders’ agreement), or enter into
any new agreement with respect to any of its Capital Stock, except any such
amendments, modifications or changes or any such new agreements or arrangements
pursuant to this clause (iv) that either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, or (v)
permit the Acquisition Documents or the Consulting Agreement to be amended or
modified in any way which could reasonably be expected to adversely affect the
interests of the Lenders without the prior written consent of the
Lenders.
(o) Investment Company Act of
1940. Engage in any business, enter into any transaction, use
any securities or take any other action or permit any of its Subsidiaries to do
any of the foregoing, that would cause it or any of its Subsidiaries to become
subject to the registration requirements of the Investment Company Act of 1940,
as amended, by virtue of being an “investment company” or a company “controlled”
by an “investment company” not entitled to an exemption within the meaning of
such Act.
(p) ERISA. (i)
Engage, or permit any ERISA Affiliate to engage, in any transaction described in
Section 4069 of ERISA; (ii) engage, or permit any ERISA Affiliate to
engage, in any prohibited transaction described in Section 406 of ERISA or 4975
of the Internal Revenue Code for which a statutory or class exemption is not
available or a private exemption has not previously been obtained from the U.S.
Department of Labor; (iii) adopt or permit any ERISA Affiliate to adopt any
employee welfare benefit plan within the meaning of Section 3(1) of ERISA which
provides benefits to employees after termination of employment other than as
required by Section 601 of ERISA or Section 4980B of the Internal Revenue
Code; (iv) fail to make any contribution or payment to any Multiemployer
Plan which it or any ERISA Affiliate may be required to make under any agreement
relating to such Multiemployer Plan, or any law pertaining thereto; (v) fail, or
permit any ERISA Affiliate to fail, to pay any required installment or any other
payment required under Section 412 of the Internal Revenue Code on or before the
due date for such installment or other payment.
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(q) Environmental. Permit
the use, handling, generation, storage, treatment, release or disposal of
Hazardous Materials at any property owned or operated by the Loan Parties or any
of their Subsidiaries except in compliance with Environmental Laws and so long
as such use, handling, generation, storage, treatment, release or disposal of
Hazardous Materials does not result in a Material Adverse Effect.
(r) [Reserved].
(s) [Reserved].
(t) Inventory with
Bailees. Not store any Inventory with a bailee, warehouseman,
or similar party unless the Agent has granted its prior written consent and the
Borrowers have delivered to the Agent a Bailee Agreement, with respect to the
applicable Inventory.
(u) Anti-Terrorism
Laws. No Loan Party shall conduct, deal in or engage in or
permit any Affiliate or agent of any Loan Party within its control to conduct,
deal in or engage in any of the following activities: (i) conduct any business
or engage in any transaction or dealing with any person blocked pursuant to
Executive Order No. 13224 (“Blocked Person”),
including the making or receiving any contribution of funds, goods or services
to or for the benefit of any Blocked Person; (ii) deal in, or
otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to Executive Order No. 13224; or (iii) engage in on
conspire to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the prohibitions set
forth in Executive Order No. 13224 or the USA Patriot Act. Each
applicable Loan Party shall deliver to the Agent and the Lenders any
certification or other evidence requested from time to time by the Agent or any
Lender, in its sole, confirming compliance with this Section
7.02(u).
ARTICLE
VIII
[Intentionally
Omitted]
ARTICLE
IX
EVENTS OF
DEFAULT
SECTION
9.01. Events of
Default. If any of the following Events of Default shall occur
and be continuing:
(a) the
Borrowers shall fail to pay any principal of or interest on any Revolving Loan,
any Agent Advance, any Reimbursement Obligation or any fee, indemnity or other
amount payable under this Agreement or any other Loan Document when due (whether
by scheduled maturity, required prepayment, acceleration, demand or
otherwise);
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(b) any
representation or warranty made or deemed made by or on behalf of any Loan Party
or by any officer of the foregoing under or in connection with any Loan Document
or under or in connection with any report, certificate, or other document
delivered to the Agent, the Lenders or the L/C Issuer pursuant to any Loan
Document shall have been incorrect in any material respect when made or deemed
made;
(c) any
Loan Party shall fail to perform or comply with any covenant or agreement
contained in (i) paragraphs (b)(vi), (c), (e), (g), (i), (p), (q), (s) or
clauses (i)(C), (i)(D) or (i)(E) of paragraph (t) of Section 7.01 or Section
7.02, or any Loan Party shall fail to perform or comply with any negative
covenant contained in Section 6 of any Pledge Agreement to which it is a
party or in Section 5 of any Security Agreement to which it is a party, (ii)
paragraphs (h), (j), (k), (l), or (n) of Section 7.01, and such failure, if
capable of being remedied, shall remain unremedied for fifteen (15) days, (iii)
clauses (i), (ii), (iii) or (iv) of paragraph (b), paragraphs (f), (o) or
clauses (i)(B) or (ii) of paragraph (t) of Section 7.01, and such failure, if
capable of being remedied, shall remain unremedied for ten (10) days, or
(iv) paragraph (a), clause (v) or any of clauses (vii) through (xiv) of
paragraph (b), paragraph (d), paragraph (m), paragraph (r), or clause (i)(A) of
paragraph (t) of Section 7.01, and such failure, if capable of being remedied,
shall remain unremedied for three (3) Business Days, provided that, after
the sixth instance of a failure to comply with a reporting requirement in
paragraph (a), paragraph (b) or paragraph (t) of Section 7.01 in any year, the
ten (10) day grace period contained in clause (iii) of this paragraph (c) and
the three (3) Business Day grace period contained in clause (iv) of this
paragraph (c) shall not be applicable for the remainder of such
year;
(d) any
Loan Party shall fail to perform or comply with any other term, covenant or
agreement contained in any Loan Document to be performed or observed by it and,
except as set forth in subsections (a), (b) and (c) of this Section 9.01,
such failure, if capable of being remedied, shall remain unremedied for fifteen
(15) days after the earlier of the date a senior officer of any Loan Party
becomes aware of such failure and the date written notice of such default shall
have been given by the Agent to such Loan Party;
(e) any
Loan Party shall fail to pay any principal of or interest on any of its
Indebtedness (excluding Indebtedness evidenced by this Agreement) in excess of
$50,000, or any interest or premium thereon, when due whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to any such Indebtedness, or any other
event, shall occur and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such default or
event is to accelerate, or to permit the acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased or an offer to prepay, redeem,
purchase or defease such Indebtedness shall be required to be made, in each
case, prior to the stated maturity thereof;
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(f) any
Loan Party (i) shall institute any proceeding or voluntary case seeking to
adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for any such Person or for any substantial part of its property, (ii) shall be
generally not paying its debts as such debts become due or shall admit in
writing its inability to pay its debts generally, (iii) shall make a general
assignment for the benefit of creditors, or (iv) shall take any action to
authorize or effect any of the actions set forth above in this subsection
(f);
(g) any
proceeding shall be instituted against any Loan Party seeking to adjudicate it
bankrupt or insolvent, or seeking dissolution, liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for any such Person or for any
substantial part of its property, and such proceeding shall remain undismissed
or unstayed for a period of sixty (60) days or any receiver, trustee, custodian
or other similar official is appointed to take possession of or operate all or
any portion of the Property of any Loan Party;
(h) any
material provision of any Loan Document shall at any time for any reason (other
than pursuant to the express terms thereof) cease to be valid and binding on or
enforceable against any Loan Party intended to be a party thereto, or the
validity or enforceability thereof shall be contested by any party thereto, or a
proceeding shall be commenced by any other Loan Party or any Governmental
Authority having jurisdiction over any of them, seeking to establish the
invalidity or unenforceability thereof, or any Loan Party shall deny in writing
that it has any liability or obligation purported to be created under any Loan
Document;
(i) any
Security Agreement, any Pledge Agreement or any other security document, after
delivery thereof pursuant hereto, shall for any reason fail or cease to create a
valid and perfected (to the extent that Agent or the Lenders have taken steps to
effect perfection) and, except to the extent permitted by the terms hereof or
thereof, first priority Lien (subject to Permitted Liens) in favor of the Agent
for the benefit of the Lenders on any Collateral purported to be covered
thereby;
(j) any
bank at which any deposit account, blocked account, or lockbox account of any
Loan Party is maintained shall fail to comply with any of the terms of any
deposit account, blocked account, lockbox account or similar agreement to which
such bank is a party or any securities intermediary, commodity intermediary or
other financial institution at any time in custody, control or possession of any
investment property of any Loan Party shall fail to comply with any of the terms
of any investment property control agreement to which such Person is a
party;
(k) one
or more judgments or orders for the payment of money exceeding $500,000 in the
aggregate shall be rendered against any Loan Party and remain unsatisfied and
either (i) enforcement proceedings shall have been commenced by any
creditor upon any such judgment or order, or (ii) there shall be a period
of thirty (30) consecutive days after entry thereof during which a stay of
enforcement of any such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any
such judgment or order shall not give rise to an Event of Default under this
subsection (k) if and for so long as (A) the amount of such judgment or order is
covered by a valid and binding policy of insurance between the defendant and the
insurer covering full payment thereof and (B) such insurer has been
notified, and has not disputed the claim made for payment, of the amount of such
judgment or order;
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(l) any
Loan Party is enjoined, restrained or in any way prevented by the order of any
court or any Governmental Authority from conducting all or any material part of
its business for more than fifteen (15) days;
(m) any
material damage to, or loss, theft or destruction of, any Collateral, whether or
not insured, or any strike, lockout, labor dispute, embargo, condemnation, act
of God or public enemy, or other casualty which causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of any Loan Party, if any such event or
circumstance could reasonably be expected to have a Material Adverse
Effect;
(n) any
cessation of a substantial part of the business of any Loan Party for a period
which materially and adversely affects the ability of such Person to continue
its business on a profitable basis;
(o) the
loss, suspension or revocation of, or failure to renew, any license or permit
now held or hereafter acquired by any Loan Party, if such loss, suspension,
revocation or failure to renew could reasonably be expected to have a Material
Adverse Effect;
(p) the
indictment, or to the knowledge of such Loan Party, threatened indictment, of
any Loan Party under any criminal statute, or commencement of criminal or civil
proceedings against any Loan Party, pursuant to which statute or proceedings the
penalties or remedies sought or available include forfeiture to any Governmental
Authority of any material portion of the property of such Person;
(q) any
Loan Party or any of its ERISA Affiliates shall have made a complete or partial
withdrawal from a Multiemployer Plan, and, as a result of such complete or
partial withdrawal any Loan Party or such ERISA Affiliate incurs a withdrawal
liability in an annual amount exceeding $100,000; or a Multiemployer Plan enters
reorganization status under Section 4241 of ERISA, and, as a result thereof
such Loan Party’s, or such ERISA Affiliate’s annual contribution requirement
with respect to such Multiemployer Plan increases in an annual amount exceeding
$100,000;
(r) any
Termination Event with respect to any Employee Plan shall have occurred, and,
thirty (30) days after notice thereof shall have been given to any Loan Party by
the Agent, (i) such Termination Event (if correctable) shall not have been
corrected, and (ii) the then current value of such Employee Plan’s benefit
liabilities exceeds the then current value of such Employee Plan’s assets
determined in accordance with the assumptions used by the PBGC for plan
terminations by more than $100,000 (or, in the case of a Termination Event
involving liability under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 4971 or 4975 of the Internal
Revenue Code, the liability is in excess of such amount);
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(s) any
Loan Party shall be liable for any Environmental Liabilities and Costs, the
payment of which could reasonably be expected to have a Material Adverse
Effect;
(t) any
provision of the Subordination Agreement shall at any time for any reason (other
than pursuant to the express terms thereof) cease to be valid and binding on or
enforceable against any holder of the Subordinated Indebtedness by the holders
of any Senior Indebtedness (as defined in the Subordination Agreement), or the
validity or enforceability thereof shall be contested by any party thereto, or a
proceeding shall be commenced by any holder of the Subordinated Indebtedness or
any Governmental Authority having jurisdiction over any of them, seeking to
establish the invalidity or unenforceability thereof, or any holder of the
Subordinated Indebtedness shall deny in writing that it has any liability or
obligation purported to be created under the Subordination Agreement; or any of
the Obligations (including, without limitation, to pay principal of and interest
on the Revolving Loans, the Reimbursement Obligations, and all fees, costs and
expenses in connection therewith) shall not constitute “Senior Indebtedness” (as
defined in the Subordination Agreement) for any reason;
(u) a
Change of Control shall occur; and
(v) any
“Event of Default” (as defined in any Subordination Loan Document) shall
occur.
then, and
in any such event, the Agent may, and shall at the request of the Required
Lenders, by notice to Administrative Borrower, (i) terminate the Revolving
Credit Commitments, whereupon the Revolving Credit Commitments shall terminate
immediately, (ii) declare all Revolving Loans and Reimbursement Obligations
then outstanding to be due and payable, whereupon the aggregate principal of
such Revolving Loans and Reimbursement Obligations, all accrued and unpaid
interest thereon, all fees and all other amounts payable under this Agreement
shall become due and payable immediately, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by each
Loan Party and (iii) exercise any and all of its other rights and remedies
under applicable law (including, but not limited to, the Bankruptcy Code and the
Uniform Commercial Code), hereunder and under the other Loan Documents; provided, however, that upon
the occurrence of any Event of Default described in subsection (f) or (g) of
this Section 9.01, without any notice to any Loan Party or any other Person or
any act by the Agent or any Lender, all Revolving Credit Commitments shall
automatically terminate and all Revolving Loans and Reimbursement Obligations
then outstanding, together with all accrued and unpaid interest thereon, all
fees and all other amounts due under this Agreement and the other Loan Documents
shall become due and payable automatically and immediately, without presentment,
demand, protest or notice of any kind, all of which are expressly waived by each
Loan Party. Upon demand by the Agent after the occurrence and during
the continuation of any Event of Default, the Borrowers shall deposit with the
Agent with respect to each Letter of Credit then outstanding cash in an amount
equal to one hundred and four percent (104%) of the aggregate maximum amount
available for drawing under such outstanding Letters of Credit to be held by L/C
Issuer as cash collateral for the application toward the Reimbursement
Obligations or provided indemnification agreements or back-stop letters of
credit, in form and substance reasonably satisfactory to the Agent, from a
commercial bank or other financial institution acceptable to the Agent in its
absolute discretion for any Letter of Credit Obligations with respect to such
Letters of Credit.
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ARTICLE
X
AGENT
SECTION
10.01. Appointment. Each
Lender (and each subsequent holder of any Revolving Credit Note by its
acceptance thereof) hereby irrevocably appoints and authorizes the Agent to
perform the duties of the Agent as set forth in this Agreement
including: (i) to receive on behalf of each Lender any payment
of principal of or interest on the Revolving Credit Notes outstanding hereunder
and all other amounts accrued hereunder for the account of the Lenders and paid
to the Agent, and, subject to Section 2.02 of this Agreement, to distribute
promptly to each Lender its Pro Rata Share of all payments so received;
(ii) to distribute to each Lender copies of all material notices and
agreements received by the Agent and not required to be delivered to each Lender
pursuant to the terms of this Agreement, provided that the Agent shall not have
any liability to the Lenders for the Agent’s inadvertent failure to distribute
any such notices or agreements to the Lenders; (iii) to maintain, in
accordance with its customary business practices, ledgers and records reflecting
the status of the Obligations, the Revolving Loans, and related matters and to
maintain, in accordance with its customary business practices, ledgers and
records reflecting the status of the Collateral and related matters;
(iv) to execute or file any and all financing or similar statements or
notices, amendments, renewals, supplements, documents, instruments, proofs of
claim, notices and other written agreements with respect to this Agreement or
any other Loan Document; (v) to make the Revolving Loans and the Agent
Advances, for the Agent or on behalf of the applicable Lenders as provided in
this Agreement or any other Loan Document; (vi) to perform, exercise, and
enforce any and all other rights and remedies of the Lenders with respect to the
Loan Parties, the Obligations, or otherwise related to any of same to the extent
reasonably incidental to the exercise by the Agent of the rights and remedies
specifically authorized to be exercised by the Agent by the terms of this
Agreement or any other Loan Document; (vii) to incur and pay such fees
necessary or appropriate for the performance and fulfillment of its functions
and powers pursuant to this Agreement or any other Loan Document; and
(viii) subject to Section 10.03 of this Agreement, to take such action
as the Agent deems appropriate on its behalf to administer the Revolving Loans
and the Loan Documents and to exercise such other powers delegated to the Agent
by the terms hereof or the Loan Documents (including, without limitation, the
power to give or to refuse to give notices, waivers, consents, approvals and
instructions and the power to make or to refuse to make determinations and
calculations) together with such powers as are reasonably incidental thereto to
carry out the purposes hereof and thereof. As to any matters not
expressly provided for by this Agreement and the other Loan Documents
(including, without limitation, enforcement or collection of the Revolving
Credit Notes), the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions of the Required
Lenders shall be binding upon all Lenders and all holders of Revolving Credit
Notes; provided, however, that the L/C
Issuer shall not be required to refuse to honor a drawing under any Letter of
Credit and the Agent shall not be required to take any action which, in the
reasonable opinion of the Agent, exposes the Agent to liability or which is
contrary to this Agreement or any Loan Document or applicable law.
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SECTION
10.02. Nature of
Duties. The Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement or in the Loan
Documents. The duties of the Agent shall be mechanical and
administrative in nature. The Agent shall not have by reason of this
Agreement or any Loan Document a fiduciary relationship in respect of any
Lender. Nothing in this Agreement or any of the Loan Documents,
express or implied, is intended to or shall be construed to impose upon the
Agent any obligations in respect of this Agreement or any of the Loan Documents
except as expressly set forth herein or therein. Each Lender shall
make its own independent investigation of the financial condition and affairs of
the Loan Parties in connection with the making and the continuance of the Loans
hereunder and shall make its own appraisal of the creditworthiness of the Loan
Parties and the value of the Collateral, and the Agent shall have no duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto, whether coming into
its possession before the initial Revolving Loan hereunder or at any time or
times thereafter, provided that, upon the reasonable request of a Lender, the
Agent shall provide to such Lender any documents or reports delivered to the
Agent by the Loan Parties pursuant to the terms of this Agreement or any Loan
Document. If the Agent seeks the consent or approval of the Required
Lenders to the taking or refraining from taking any action hereunder, the Agent
shall send notice thereof to each Lender. The Agent shall promptly
notify each Lender any time that the Required Lenders have instructed the Agent
to act or refrain from acting pursuant hereto.
SECTION
10.03. Rights, Exculpation,
Etc. The Agent and its directors, officers, agents or
employees shall not be liable for any action taken or omitted to be taken by it
under or in connection with this Agreement or the other Loan
Documents. Without limiting the generality of the foregoing, the
Agent (i) may treat the payee of any Revolving Credit Note as the holder
thereof until the Agent receives written notice of the assignment or transfer
thereof, pursuant to Section 12.07 hereof, signed by such payee and in form
satisfactory to the Agent; (ii) may consult with legal counsel (including,
without limitation, counsel to the Agent or counsel to the Loan Parties),
independent public accountants, and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel or experts; (iii) makes no
warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, certificates, warranties or representations made in
or in connection with this Agreement or the other Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or the other Loan Documents on the part of any Person, the existence
or possible existence of any Default or Event of Default, or to inspect the
Collateral or other property (including, without limitation, the books and
records) of any Person; (v) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; and (vi) shall not be deemed to
have made any representation or warranty regarding the existence, value or
collectibility of the Collateral, the existence, priority or perfection of the
Agent’s Lien thereon, or any certificate prepared by any Loan Party in
connection therewith, nor shall the Agent be responsible or liable to the
Lenders for any failure to monitor or maintain any portion of the
Collateral. The Agent shall not be liable for any apportionment or
distribution of payments made in good faith pursuant to Section 2.02(c),
and if any such apportionment or distribution is subsequently determined to have
been made in error the sole recourse of any Lender to whom payment was due but
not made, shall be to recover from other Lenders any payment in excess of the
amount which they are determined to be entitled. The Agent may at any
time request instructions from the Lenders with respect to any actions or
approvals which by the terms of this Agreement or of any of the Loan Documents
the Agent is permitted or required to take or to grant, and if such instructions
are promptly requested, the Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval under any of the Loan Documents
until it shall have received such instructions from the Required
Lenders. Without limiting the foregoing, no Lender shall have any
right of action whatsoever against the Agent as a result of the Agent acting or
refraining from acting under this Agreement, the Revolving Credit Notes or any
of the other Loan Documents in accordance with the instructions of the Required
Lenders.
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SECTION
10.04. Reliance. The
Agent shall be entitled to rely upon any written notices, statements,
certificates, orders or other documents or any telephone message believed by it
in good faith to be genuine and correct and to have been signed, sent or made by
the proper Person, and with respect to all matters pertaining to this Agreement
or any of the Loan Documents and its duties hereunder or thereunder, upon advice
of counsel selected by it.
SECTION
10.05. Indemnification. To
the extent that the Agent is not reimbursed and indemnified by any Loan Party,
the Lenders will reimburse and indemnify the Agent and the L/C Issuer from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, advances or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent or the L/C Issuer in any way relating to or arising out of
this Agreement or any of the Loan Documents or any action taken or omitted by
the Agent or the L/C Issuer under this Agreement or any of the Loan Documents,
in proportion to each Lender’s Pro Rata Share, including, without limitation,
advances and disbursements made pursuant to Section 10.08; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, advances or
disbursements for which there has been a final judicial determination that such
resulted from the Agent’s or the L/C Issuer’s gross negligence or willful
misconduct. The obligations of the Lenders under this
Section 10.05 shall survive the payment in full of the Revolving Loans and
the termination of this Agreement.
SECTION
10.06. Agent
Individually. With respect to its Pro Rata Share of the Total
Revolving Credit Commitment hereunder, the Revolving Loans made by it and the
Revolving Credit Notes issued to or held by it, the Agent shall have and may
exercise the same rights and powers hereunder and is subject to the same
obligations and liabilities as and to the extent set forth herein for any other
Lender or holder of a Revolving Credit Note. The terms “Lenders” or
“Required Lenders” or any similar terms shall, unless the context clearly
otherwise indicates, include the Agent in its individual capacity as a Lender or
one of the Required Lenders. The Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of banking, trust
or other business with the Borrowers as if it were not acting as an Agent
pursuant hereto without any duty to account to the Lenders.
SECTION
10.07. Successor
Agent.
(a) The
Agent may resign from the performance of all its functions and duties hereunder
and under the other Loan Documents at any time by giving at least thirty (30)
Business Days’ prior written notice to Administrative Borrower and each
Lender. Such resignation shall take effect upon the acceptance by a
successor Agent of appointment pursuant to clauses (b) and (c) below or as
otherwise provided below.
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(b) Upon
any such notice of resignation, the Required Lenders shall appoint a successor
Agent who, in the absence of a continuing Event of Default, shall be reasonably
satisfactory to the Borrowers; provided, however, Xxxxx Fargo
Retail shall be deemed satisfactory to the Borrowers. Upon the
acceptance of any appointment as the Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement
and the other Loan Documents. After the Agent’s resignation hereunder
as the Agent, the provisions of this Article X shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was the Agent
under this Agreement and the other Loan Documents.
(c) If
a successor Agent shall not have been so appointed within said thirty (30)
Business Day period, the retiring Agent shall then appoint a successor Agent
who, if an Event of Default is not continuing, shall be reasonably satisfactory
to the Borrowers, who shall serve as the Agent until such time, if any, as the
Required Lenders appoint a successor Agent as provided above.
SECTION
10.08. Collateral
Matters.
(a) The
Agent may from time to time, during the occurrence and continuance of an Event
of Default, make such disbursements and advances (“Agent Advances”)
which the Agent, in its sole discretion, deems necessary or desirable to
preserve or protect the Collateral or any portion thereof, to enhance the
likelihood or maximize the amount of repayment by the Borrowers of the Revolving
Loans, Reimbursement Obligations, Letter of Credit Obligations and other
Obligations (other than the Bank Product Obligations) or to pay any other amount
chargeable to the Borrowers pursuant to the terms of this Agreement, including,
without limitation, costs, fees and expenses as described in
Section 12.04. The Agent Advances shall be repayable on demand
and be secured by the Collateral. The Agent Advances shall not
constitute Revolving Loans but shall otherwise constitute Obligations
hereunder. The Agent shall notify each Lender and Administrative
Borrower in writing of each Agent Advance, which notice shall include a
description of the purpose of such Agent Advance. Without limitation
to its obligations pursuant to Section 10.05, each Lender agrees that it
shall make available to the Agent, upon the Agent’s demand, in Dollars in
immediately available funds, the amount equal to such Lender’s Pro Rata Share of
such Agent Advance. If such funds are not made available to the Agent
by such Lender, the Agent shall be entitled to recover such funds on demand from
such Lender, together with interest thereon, for each day from the date such
payment was due until the date such amount is paid to the Agent, at the Federal
Funds Rate for three Business Days and thereafter at the Base Rate.
(b) The
Lenders hereby irrevocably authorize the Agent, at its option and in its
discretion, to release any Lien granted to or held by the Agent upon any
Collateral upon termination of the Total Revolving Credit Commitment and payment
and satisfaction of all Revolving Loans, Reimbursement Obligations, Letter of
Credit Obligations and all other Obligations which have matured and which the
Agent has been notified in writing are then due and payable; or constituting
property being sold or disposed of in the ordinary course of any Loan Party’s
business and in compliance with the terms of this Agreement and the other Loan
Documents; or constituting property in which the Loan Parties owned no interest
at the time the Lien was granted or at any time thereafter; or if approved,
authorized or ratified in writing by the Lenders. Upon request by the
Agent at any time, the Lenders will confirm in writing the Agent’s authority to
release particular types or items of Collateral pursuant to this
Section 10.08(b).
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(c) Without
in any manner limiting the Agent’s authority to act without any specific or
further authorization or consent by the Lenders (as set forth in
Section 10.08(b)), each Lender agrees to confirm in writing, upon request
by the Agent, the authority to release Collateral conferred upon the Agent under
Section 10.08(b). Upon receipt by the Agent of confirmation from
the Lenders of its authority to release any particular item or types of
Collateral, and upon prior written request by any Loan Party, the Agent shall
(and is hereby irrevocably authorized by the Lenders to) execute such documents
as may be necessary to evidence the release of the Liens granted to the Agent
for the benefit of the Lenders upon such Collateral; provided, however, that
(i) the Agent shall not be required to execute any such document on terms
which, in the Agent’s opinion, would expose the Agent to liability or create any
obligations or entail any consequence other than the release of such Liens
without recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Obligations or any Lien upon (or obligations of
any Loan Party in respect of) all interests in the Collateral retained by any
Loan Party.
(d) The
Agent shall have no obligation whatsoever to any Lenders to assure that the
Collateral exists or is owned by the Loan Parties or is cared for, protected or
insured or has been encumbered or that the Lien granted to the Agent pursuant to
this Agreement has been properly or sufficiently or lawfully created, perfected,
protected or enforced or is entitled to any particular priority, or to exercise
at all or in any particular manner or under any duty of care, disclosure or
fidelity, or to continue exercising, any of the rights, authorities and powers
granted or available to the Agent in this Section 10.08 or in any of the Loan
Documents, it being understood and agreed that in respect of the Collateral, or
any act, omission or event related thereto, the Agent may act in any manner it
may deem appropriate, in its sole discretion, given the Agent’s own interest in
the Collateral as one of the Lenders and that the Agent shall have no duty or
liability whatsoever to any other Lender.
SECTION
10.09. Agency for
Perfection. The Agent and each Lender hereby appoints
the Agent and each other Lender as agent and bailee for the purpose of
perfecting the security interests in and liens upon the Collateral in assets
which, in accordance with Article 9 of the Uniform Commercial Code, can be
perfected only by possession or control (or where the security interest of a
secured party with possession or control has priority over the security interest
of another secured party) and the Agent and each Lender hereby acknowledges that
it holds possession of or otherwise controls any such Collateral for the benefit
of the Agent and the Lenders as secured party. Should any Lender
obtain possession or control of any such Collateral, such Lender shall notify
the Agent thereof, and, promptly upon the Agent’s request therefor shall deliver
such Collateral to the Agent or in accordance with the Agent’s
instructions. Each Loan Party by its
execution and delivery of this Agreement hereby consents to the
foregoing.
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ARTICLE
XI
[Intentionally
Omitted]
ARTICLE
XII
MISCELLANEOUS
SECTION
12.01. Notices,
Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed, telecopied or delivered, if
to any Loan Party, at the following address:
Frederick’s
of Hollywood Group Inc.
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxx, Chief Financial Officer
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a
copy to:
Xxxxx X.
Xxxxxxxxxxxxx
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Other
Applicable Borrower
c/o
Frederick’s of Hollywood, Inc.
0000
Xxxxxxxxx Xxxx.
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx
XxXx
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a
copy to:
Xxxxxxx
Xxxxxxx
Jeffer,
Mangels, Xxxxxx & Xxxxxxx LLP
1900
Avenue of the Stars, 0xx Xxxxx
Xxx
Xxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
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if to the
Agent, to it at the following address:
Xxxxx
Fargo Retail Finance II, LLC
Xxx
Xxxxxx Xxxxx
00xx
Xxxxx
Xxxxxx,
XX 00000
Attn: Xxxxxxxx
Xxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a
copy to:
Proskauer
Rose LLP
Xxx
Xxxxxxxxxxxxx Xxxxx
Xxxxxx,
XX 00000
Attention: Xxxxx
X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 617-526-9899
or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other party complying as to delivery with the terms of
this Section 12.01. All such notices and other communications
shall be effective, (i) if mailed, when received or three (3) days after
deposited in the mails, whichever occurs first, (ii) if telecopied, when
transmitted and confirmation received, or (iii) if delivered, upon
delivery, except that notices to the Agent or the L/C Issuer pursuant to
Article II shall not be effective until received by the Agent or the L/C
Issuer.
SECTION
12.02. Amendments,
Etc. No amendment or waiver of any provision of this
Agreement or any Revolving Credit Note, and no consent to any departure by the
Borrowers or any other Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders and the
Borrower, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given provided, however, that no
amendment, waiver or consent shall (i) increase the Revolving Credit
Commitment of any Lender, reduce the principal of, or interest on, the Revolving
Loans or the Reimbursement Obligations payable to any Lender, reduce the amount
of any fee payable for the account of any Lender, or postpone or extend any date
fixed for any payment of principal of, or interest or fees on, the Revolving
Loans or Letter of Credit Obligations payable to any Lender, in each case
without the written consent of any Lender affected thereby, (ii) increase
the Total Revolving Credit Commitment without the written consent of each
Lender, (iii) change the percentage of the Revolving Credit Commitments or
of the aggregate unpaid principal amount of the Revolving Credit Notes that is
required for the Lenders or any of them to take any action hereunder,
(iv) amend the definition of “Required Lenders” or “Pro Rata Share”,
(v) release all or a substantial portion of the Collateral (except as
otherwise provided in this Agreement and the other Loan Documents), subordinate
any Lien granted in favor of the Agent for the benefit of the Lenders, or
release any Borrower or any Guarantor, (vi) modify, waive, release or
subordinate the priority of the Obligations (except as permitted in this
Agreement and the Loan Documents), or (vii) amend, modify or waive this
Section 12.02 of this Agreement, in each case without the written consent
of each Lender. Notwithstanding the foregoing, no amendment, waiver
or consent shall, unless in writing and signed by the Agent, affect the rights
or duties of the Agent (but not in its capacity as a Lender) under this
Agreement or the other Loan Documents.
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SECTION
12.03. No Waiver; Remedies,
Etc. No failure on the part of the Agent or any Lender
to exercise, and no delay in exercising, any right hereunder or under any other
Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under any Loan Document preclude any other or further
exercise thereof or the exercise of any other right. The rights and
remedies of the Agent and the Lenders provided herein and in the other Loan
Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights of the Agent and the
Lenders under any Loan Document against any party thereto are not conditional or
contingent on any attempt by the Agent and the Lenders to exercise any of their
rights under any other Loan Document against such party or against any other
Person.
SECTION
12.04. Expenses; Taxes; Attorneys’
Fees. The Borrowers will pay on demand, all reasonable costs
and expenses incurred by or on behalf of the Agent (and, in the case of clauses
(c) through (m) below, the Lenders), regardless of whether the transactions
contemplated hereby are consummated, including, without limitation, reasonable
fees, costs, client charges and expenses of counsel for the Agent (and, in the
case of clauses (c) through (m) below, the Lenders), accounting, due diligence,
periodic field audits, physical counts, valuations, investigations, searches and
filings, monitoring of assets, appraisals of Collateral, environmental
assessments, miscellaneous disbursements, examination, travel, lodging and
meals, arising from or relating to: (a) the negotiation, preparation,
execution, delivery, performance and administration of this Agreement and the
other Loan Documents, (including, without limitation, the preparation of any
additional Loan Documents, pursuant to Section 7.01(c), (b) any
requested amendments, waivers or consents to this Agreement or the other Loan
Documents whether or not such documents become effective or are given,
(c) the preservation and protection of any of the Lenders’ rights under
this Agreement or the other Loan Documents, (d) the defense of any claim or
action asserted or brought against the Agent or the Lenders by any Person that
arises from or relates to this Agreement, any other Loan Document, the Agent’s
or the Lenders’ claims against the Borrowers and each other Loan Party, or any
and all matters in connection therewith, (e) the commencement or defense of, or
intervention in, any court proceeding arising from or related to this Agreement
or any other Loan Document, (f) the filing of any petition, complaint,
answer, motion or other pleading by the Agent or the Lenders, or the taking of
any action in respect of the Collateral or other security, in connection with
this Agreement or any other Loan Document, (g) the protection, collection,
lease, sale, taking possession of or liquidation of, any Collateral or other
security in connection with this Agreement or any other Loan Document, (h) any
attempt to enforce any Lien or security interest in any Collateral or other
security in connection with this Agreement or any other Loan Document, (i) any
attempt to collect from the Borrowers or any other Loan Party, (j) the receipt
by the Agent or the Lenders of any advice from professionals with respect to any
of the foregoing, (k) all liabilities and costs arising from or in connection
with the past, present or future operations of the Borrowers and each other Loan
Party involving any damage to real or personal property or natural resources or
harm or injury alleged to have resulted from any Release of Hazardous Materials
on, upon or into such property, (l) any Environmental Liabilities and Costs
incurred in connection with the investigation, removal, cleanup and/or
remediation of any Hazardous Materials present or arising out of the operations
of any facility of any Borrower or any other Loan Party, or (m) any
Environmental Liabilities and Costs incurred in connection with any
Environmental Lien. Without limitation of the foregoing or any other
provision of any Loan Document: (x) the Borrowers agree to pay all
stamp, document, transfer, recording or filing taxes or fees and similar
impositions now or hereafter reasonably determined by the Agent or any Lender to
be payable in connection with this Agreement or any other Loan Document, and the
Borrowers agree to save the Agent and the Lenders harmless from and against any
and all present or future claims, liabilities or losses with respect to or
resulting from any omission to pay or delay in paying any such taxes, fees or
impositions, (y) the Borrowers agree to pay all broker fees that may become due
in connection with the transactions contemplated by this Agreement, and (z) if
the Borrowers fail to perform any covenant or agreement contained herein or in
any other Loan Document, the Agent may itself perform or cause performance of
such covenant or agreement, and the expenses of the Agent incurred in connection
therewith shall be reimbursed on demand by the Borrowers; provided that prompt
written notice of any such actions taken by the Agent shall be given to Group;
provided further, that the
failure to provide such notice shall not relieve the obligation of the Borrowers
to reimburse the Agent in connection therewith.
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SECTION
12.05. Right of
Set-off. Upon the occurrence and during the continuance of any
Event of Default, any Lender may, and is hereby authorized to, at any time and
from time to time, without notice to the Borrowers (any such notice being
expressly waived by the Borrowers) and to the fullest extent permitted by law,
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of the Borrowers against any
and all obligations of either now or hereafter existing under any Loan Document,
irrespective of whether or not such Lender shall have made any demand hereunder
or thereunder and although such obligations may be contingent or
unmatured. Each Lender agrees to notify Administrative Borrower
promptly after any such set-off and application made by such Lender provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
SECTION
12.06. Severability. Any
provision of this Agreement, which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION
12.07. Assignments and
Participations.
(a) This
Agreement and the Revolving Credit Notes shall be binding upon and inure to the
benefit of the Borrowers and the other the Loan Parties and the Agent and each
Lender and their respective successors and assigns; provided, however, that each of
the Borrowers and the other Loan Parties may not assign or transfer any of their
rights hereunder, or under the Revolving Credit Notes, without the prior written
consent of each Lender and any such assignment without the Lenders’ prior
written consent shall be null and void.
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(b) Each
Lender may, with the written consent of the Agent and, in the absence of a
continuing Event of Default, the Administrative Borrower (such consent in the
case of the Administrative Borrower is not required in the case of Affiliates of
any Lender and is not to be unreasonably withheld or delayed), assign to one or
more other lenders or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Revolving Credit Commitment, the Revolving Loans made by it, the
Revolving Credit Notes held by it and its Pro Rata Share of Letter of Credit
Obligations); provided, however, that (i)
except in the case of assignments to Affiliates of a Lender in which case there
are no minimums, such assignment is in an amount which is at least $1,000,000 or
a multiple of $100,000 in excess thereof (or the remainder of such Lender’s
Revolving Credit Commitment) (except such minimum amount shall not apply to an
assignment by a Lender to an Affiliate of such Lender or a fund or account
managed by such Lender or an Affiliate of such Lender) and (ii) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance, an Assignment and Acceptance, together with any Revolving Credit
Note subject to such assignment and, except in the case of assignments to
Affiliates of a Lender, such parties shall deliver to the Agent a processing and
recordation fee of $5,000 (except the payment of such fee shall not be required
in connection with an assignment by a Lender to an Affiliate of such Lender or a
fund or account managed by such Lender or an Affiliate of such Lender) and (iii)
no written consent of the Agent shall be required in connection with any
assignment by a Lender to an Affiliate of such Lender or a fund or account
managed by such Lender or an Affiliate of such Lender. Upon such
execution, delivery and acceptance, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least three
Business Days after the delivery thereof to the Agent (or such shorter period as
shall be agreed to by the Agent and the parties to such assignment), (A) the
assignee thereunder shall become a “Lender” hereunder and, in addition to the
rights and obligations hereunder held by it immediately prior to such effective
date, have the rights and obligations hereunder that have been assigned to it
pursuant to such Assignment and Acceptance and (B) the assigning Lender
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(i) By
executing and delivering an Assignment and Acceptance, the assigning Lender and
the assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (A) other than as provided in such
Assignment and Acceptance, the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other Loan Document
furnished pursuant hereto; (B) the assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Loan Parties or any of their Subsidiaries or the performance or
observance by the Loan Parties of any of their obligations under this Agreement
or any other Loan Document furnished pursuant hereto; (C) such assignee
confirms that it has received a copy of this Agreement and the other Loan
Documents, together with such other documents and information it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (D) such assignee will, independently and
without reliance upon the Assigning Lender, the Agent or any Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents; (E) such assignee appoints and
authorizes the Agent to take such action as Agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and (F) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement and the other Loan Documents are required to be performed by it as a
Lender.
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(ii) The
Agent shall maintain, or cause to be maintained at its offices, a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Revolving Credit
Commitments of, and principal amount of the Revolving Loans and Letter of Credit
Obligations owing to each Lender from time to time
(the “Register”). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by
Administrative Borrower and any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(iii) Upon
its receipt of an Assignment and Acceptance executed by an assigning Lender and
an assignee, together with the Revolving Credit Notes subject to such
assignment, the Agent shall, if the Agent consents to such assignment and if
such Assignment and Acceptance has been completed (i) accept such
Assignment and Acceptance, (ii) give prompt notice thereof to
Administrative Borrower, (iii) record the information contained therein in
the Register, and (iv) prepare and distribute to each Lender and
Administrative Borrower a revised Schedule 1.01(C) hereto after giving
effect to such assignment, which revised Schedule 1.01(C) shall replace the
prior Schedule 1.01(C) and become part of this Agreement.
(iv) Any
foreign Person who purchases or is assigned or participates in any portion of a
Revolving Loan shall provide the Agent (in the case of a purchase or assignment)
or the Lender (in the case of a participation) with a completed Internal Revenue
Service Form W-8 (Certificate of Foreign Status) or a substantially similar form
for such purchaser, participant or any other affiliate who is a holder of
beneficial interests in the Revolving Loan.
(c) Each
Lender may sell participations to one or more banks or other entities in or to
all or a portion of its rights and obligations under this Agreement and the
other Loan Documents (including, without limitation, all or a portion of its
Revolving Credit Commitment, the Revolving Loans made by it and its Pro Rata
Share of the Letter of Credit Obligations); provided, that (i) such Lender’s
obligations under this Agreement (including without limitation, its Revolving
Credit Commitment hereunder) and the other Loan Documents shall remain
unchanged; (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, and the Borrowers, the Agent and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and
the other Loan Documents, and (iii) a participant shall not be entitled to
require such Lender to take or omit to take any action hereunder except (A)
action directly effecting an extension of the maturity dates or decrease in the
principal amount of the Revolving Loans or Letter of Credit Obligations, or (B)
action directly effecting an extension of the due dates or a decrease in the
rate of interest payable on the Revolving Loans or the fees payable under this
Agreement, or (C) actions directly effecting a release of all or a substantial
portion of the Collateral or any Borrower or any Guarantor (except as set forth
in Section 10.08 of this Agreement or any Loan Document). The Loan
Parties agree that each participant shall be entitled to the benefits of Section
2.08 and Section 4.05 of this Agreement with respect to its participation in any
portion of the Revolving Credit Commitments and the Revolving Loans as if it
were a Lender.
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SECTION
12.08. Counterparts. This
Agreement 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 Agreement by
telecopier shall be equally as effective as delivery of an original executed
counterpart of this Agreement. Any party delivering an executed
counterpart of this Agreement by telecopier also shall deliver an original
executed counterpart of this Agreement but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Agreement. The foregoing shall apply to each other
Loan Document mutatis mutandis.
SECTION
12.09. GOVERNING
LAW. THIS AGREEMENT, THE REVOLVING CREDIT NOTES AND THE OTHER
LOAN DOCUMENTS (UNLESS EXPRESSLY PROVIDED TO THE CONTRARY IN ANOTHER LOAN
DOCUMENT IN RESPECT OF SUCH OTHER LOAN DOCUMENT) 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 IN THE STATE OF NEW YORK.
SECTION
12.10. CONSENT TO JURISDICTION;
SERVICE OF PROCESS AND VENUE. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX
XXXXXX XX XXX XXXXX XX XXX XXXX IN THE COUNTY OF NEW YORK OR OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH LOAN PARTY HEREBY IRREVOCABLY ACCEPTS IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH LOAN PARTY HEREBY IRREVOCABLY APPOINTS THE
SECRETARY OF STATE OF THE STATE OF NEW YORK AS ITS AGENT FOR SERVICE OF PROCESS
IN RESPECT OF ANY SUCH ACTION OR PROCEEDING AND FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS AND IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE ADMINISTRATIVE BORROWER AT ITS ADDRESS FOR NOTICES
AS SET FORTH IN SECTION 12.01 AND TO THE SECRETARY OF STATE OF THE STATE OF NEW
YORK, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT AND THE
LENDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY
OTHER JURISDICTION. EACH LOAN PARTY HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY LOAN PARTY HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, EACH LOAN PARTY HEREBY IRREVOCABLY WAIVES
SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
- 96
-
SECTION
12.11. WAIVER OF JURY TRIAL,
ETC. EACH LOAN PARTY, THE AGENT AND EACH LENDER HEREBY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
CONCERNING ANY RIGHTS UNDER THIS AGREEMENT, THE REVOLVING CREDIT NOTES OR OTHER
LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR
OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION
THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION
WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDINGS OR
COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY. EACH LOAN PARTY CERTIFIES THAT NO OFFICER, REPRESENTATIVE,
AGENT OR ATTORNEY OF THE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING
WAIVERS. EACH LOAN PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS
AGREEMENT.
SECTION
12.12. Consent by the Agent and
Lenders. Except as otherwise expressly set forth herein to the
contrary, if the consent, approval, satisfaction, determination, judgment,
acceptance or similar action (an “Action”) of the Agent or any Lender shall be
permitted or required pursuant to any provision hereof or any provision of any
other agreement to which the Borrowers and any other Loan Party are parties and
to which the Agent or any Lender has succeeded thereto, such Action shall be
required to be in writing and may be withheld or denied by the Agent or such
Lender, in its sole discretion, with or without any reason, and without being
subject to question or challenge on the grounds that such Action was not taken
in good faith.
SECTION
12.13. Integration. This
Agreement, together with the other Loan Documents, reflects the entire
understanding of the parties with respect to the transactions contemplated
hereby and shall not be contradicted or qualified by any other agreement, oral
or written, before the date hereof.
SECTION
12.14. No Party Deemed
Drafter. Each of the parties hereto agrees that no party
hereto shall be deemed to be the drafter of this Agreement.
- 97
-
SECTION
12.15. Reinstatement; Certain
Payments. If any claim is ever made upon the any Agent, any
Lender or the L/C Issuer for repayment or recovery of any amount or amounts
received by the Agent, such Lender or the L/C Issuer in payment or on
account of any of the Obligations, the Agent, such Lender or the L/C Issuer
shall give prompt notice of such claim to each other Agent and Lender and
Administrative Borrower, and if the Agent, such Lender or the L/C Issuer
repays all or part of such amount by reason of (i) any judgment, decree or
order of any court or administrative body having jurisdiction over the Agent,
such Lender or the L/C Issuer or any of its property, or (ii) any good
faith settlement or compromise of any such claim effected by the Agent, such
Lender or the L/C Issuer with any such claimant, then and in such event
each Loan Party agrees that (A) any such judgment, decree, order, settlement or
compromise shall be binding upon it notwithstanding the cancellation of any
Indebtedness hereunder or under the other Loan Documents or the termination of
this Agreement or the other Loan Documents, and (B) it shall be and remain
liable to the Agent, such Lender or the L/C Issuer hereunder for the amount
so repaid or recovered to the same extent as if such amount had never originally
been received by such Agent, the Lender or the L/C Issuer.
SECTION
12.16. Group as the Agent for the
Borrowers. Each Borrower hereby irrevocably appoints Group as
the borrowing agent and attorney-in-fact for the Borrowers which appointment
shall remain in full force and effect unless and until the Agent shall have
received prior written notice signed by all of the Borrowers that such
appointment has been revoked and that another Borrower has been so
appointed. Each Borrower hereby irrevocably appoints and authorizes
Group (i) to provide the Agent with all notices with respect to Revolving
Loans obtained for the benefit of any Borrower and all other notices and
instructions under this Agreement and (ii) to take such action as Group
deems appropriate on its behalf to obtain Revolving Loans and to exercise such
other powers as are reasonably incidental thereto to carry out the purposes of
this Agreement. It is understood that the handling of the Loan
Account and Collateral of the Borrowers in a combined fashion, as more fully set
forth herein, is done solely as an accommodation to the Borrowers in order to
utilize the collective borrowing powers of the Borrowers in the most efficient
and economical manner and at their request, and that neither the Agent, the
Lenders, nor the L/C Issuer shall incur liability to the Borrowers as a result
hereof. Each of the Borrowers expects to derive benefit, directly or
indirectly, from the handling of the Loan Account and the Collateral in a
combined fashion since the successful operation of each Borrower is dependent on
the continued successful performance of the integrated group. To
induce the Agent, the Lenders and the L/C Issuer to do so, and in consideration
thereof, each of the Borrowers hereby jointly and severally agrees to indemnify
the Indemnitees (as hereinafter defined) and hold the Indemnitees harmless
against any and all liability, expense, loss or claim of damage or injury, made
against such Indemnitee by any of the Borrowers or by any third party whosoever,
arising from or incurred by reason of (a) the handling of the Loan Account and
Collateral of the Borrowers as herein provided, (b) the Agent and the
Lenders relying on any instructions of Group, or (c) any other action taken
by the Agent, any Lender or the L/C Issuer hereunder or under the other Loan
Documents.
- 98
-
SECTION
12.17. Indemnification. In
addition to each Loan Party’s other Obligations under this Agreement, each Loan
Party agrees to, jointly and severally, defend, protect, indemnify and hold
harmless the Agent, each Lender, the L/C Issuer and all of their respective
officers, directors, employees, attorneys, consultants and agents (collectively
called the “Indemnitees”) from and against any and all losses, damages,
liabilities, obligations, penalties, fees, reasonable costs and expenses
(including, without limitation, reasonable attorneys’ fees, costs and expenses)
incurred by such Indemnitees, whether prior to or from and after the Effective
Date, whether direct, indirect or consequential, as a result of or arising from
or relating to or in connection with any of the following: (i) the
negotiation, preparation, execution or performance or enforcement of this
Agreement, any other Loan Document or of any other document executed in
connection with the transactions contemplated by this Agreement, (ii) the
Agent’s or any Lender’s furnishing of funds to the Borrowers or the L/C Issuer’s
issuing of Letters of Credit for the account of the Borrowers under this
Agreement, including, without limitation, the management of any such Revolving
Loans, the Reimbursement Obligations or the Letter of Credit Obligations,
(iii) any matter relating to the financing transactions contemplated by
this Agreement or the other Loan Documents or by any document executed in
connection with the transactions contemplated by this Agreement or the other
Loan Documents, or (iv) any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any Indemnitee is a party
thereto (collectively, the “Indemnified Matters”); provided, however, that the
Loan Parties shall not have any obligation to any Indemnitee under this Section
12.17 for any Indemnified Matter caused by the gross negligence or willful
misconduct of such Indemnitee, as determined by a final judgment of a court of
competent jurisdiction. Such indemnification for all of the foregoing
losses, damages, fees, costs and expenses of the Indemnitees are chargeable
against the Loan Account. To the extent that the undertaking to
indemnify, pay and hold harmless set forth in this Section 12.17 may be
unenforceable because it is violative of any law or public policy, each Loan
Party shall, jointly and severally, contribute the maximum portion which it is
permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the
Indemnitees. This Indemnity shall survive the repayment of the
Obligations and the discharge of the Liens granted under the Loan
Documents.
SECTION
12.18. Records. The
unpaid principal of and interest on the Notes, the interest rate or rates
applicable to such unpaid principal and interest, the duration of such
applicability, the Revolving Credit Commitments, and the accrued and unpaid fees
payable pursuant to Section 2.06 hereof, including, without limitation, the
Closing Fee, Loan Servicing Fee, the Letter of Credit Fee and the Unused Line
Fee, shall at all times be ascertained from the records of the Agent, which
shall be conclusive and binding absent manifest error.
SECTION
12.19. Binding
Effect. This Agreement shall become effective when it shall
have been executed by each Loan Party, the Agent and each Lender and when the
conditions precedent set forth in Section 5.01 hereof have been satisfied
or waived in writing by the Agent, and thereafter shall be binding upon and
inure to the benefit of each Loan Party, the Agent and each Lender, and their
respective successors and assigns, except that the Loan Parties shall not have
the right to assign their rights hereunder or any interest herein without the
prior written consent of each Lender, and any assignment by any Lender shall be
governed by Section 12.07 hereof.
- 99
-
SECTION
12.20. Confidentiality. The
Agent and each Lender agrees (on behalf of itself and each of its affiliates,
directors, officers, employees and representatives) to use reasonable
precautions to keep confidential, in accordance with its customary procedures
for handling confidential information of this nature and in accordance with safe
and sound practices of comparable commercial finance companies, any non-public
information supplied to it by the Loan Parties pursuant to this Agreement or the
other Loan Documents which is identified by the Loan Parties as being
confidential at the time the same is delivered to such Person (and which at the
time is not, and does not thereafter become, publicly available or available to
such Person from another source not known to be subject to a confidentiality
obligation to such Person not to disclose such information), provided that nothing
herein shall limit the disclosure of any such information (i) to the extent
required by statute, rule, regulation or judicial process, (ii) to counsel
for the Agent or any Lender, (iii) to examiners, auditors or accountants,
(iv) in connection with any litigation to which the Agent or any Lender is
a party or (v) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) first agrees, in writing, to be bound by confidentiality provisions
similar in substance to this Section 12.20. The Agent and each Lender
agrees that, upon receipt of a request or identification of the requirement for
disclosure pursuant to clause (iv) hereof, it will make reasonable efforts
to keep the Loan Parties informed of such request or identification; provided that the
each Loan Party acknowledges that the Agent and each Lender may make disclosure
as required or requested by any Governmental Authority or representative thereof
and that the Agent and each Lender may be subject to review by Securitization
Parties or other regulatory agencies and may be required to provide to, or
otherwise make available for review by, the representatives of such parties or
agencies any such non-public information.
SECTION
12.21. Limitations on Liability of
Officers. Anything herein or in any other Loan Document to the
contrary notwithstanding any and all references to the actions, obligations
and/or liabilities of any Borrower shall refer only to the actions, obligations
and/or liabilities of the Borrower and shall not impose any personal obligations
or liabilities on the officers thereof, provided that no officer of a Borrower
shall be exonerated or exculpated for any deficiency, loss or damage suffered by
the Agent or any of the Lenders as a result of any fraud or malfeasance by such
officer.
SECTION
12.22. Intent to Limit Charges to
Maximum Lawful Rate. In no event shall the interest rate or
rates payable under this Agreement, plus any other amounts paid in connection
herewith, exceed the highest rate permissible under any law that a court of
competent jurisdiction shall, in a final determination, deem
applicable. The Borrowers, the Lenders and the Agent, in executing
and delivering this Agreement, intend legally to agree upon the rate or rates of
interest and manner of payment stated within it; provided, however, that,
anything contained herein to the contrary notwithstanding, if said rate or rates
of interest or manner of payment exceeds the maximum allowable under applicable
law, then, ipso facto, as of the date of this Agreement, the Borrowers are and
shall be liable only for the payment of such maximum as allowed by law, and any
payment received from the Borrowers in excess of such legal maximum, whenever
received, shall be applied to reduce the principal balance of the Obligations to
the extent of such excess.
SECTION
12.23. USA Patriot
Act-Notice. Each Lender (for itself and not on behalf of any
Lender) hereby notifies each of the Loan Parties that pursuant to the
requirements of the USA Patriot Act (Title III of Pub.L. 107-56 (signed
into law October 26, 2001)) (the “Patriot Act”), it is
required to obtain, verify and record information that identifies the Loan
Parties, which information includes the name and address of each of the Loan
Parties and other information that will allow such Lender, as applicable, to
identify each Loan Party in accordance with the Patriot Act.
- 100
-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
BORROWERS:
|
||
FREDERICK’S
OF HOLLYWOOD GROUP INC.
|
||
By:
|
/s/ Xxxxxx Xxxxx
|
|
Name:
Xxxxxx Xxxxx
|
||
Title: Chief
Financial Officer
|
||
FOH
HOLDINGS, INC.
|
||
By:
|
/s/ Xxxxx XxXx
|
|
Name: Xxxxx
XxXx
|
||
Title: President
and Chief Executive Officer
|
||
FREDERICK’S
OF HOLLYWOOD, INC.
|
||
By:
|
/s/ Xxxxx XxXx
|
|
Name: Xxxxx
XxXx
|
||
Title: President
and Chief Executive Officer
|
||
FREDERICK’S
OF HOLLYWOOD STORES, INC.
|
||
By:
|
/s/ Xxxxx XxXx
|
|
Name: Xxxxx
XxXx
|
||
Title: President
and Chief Executive Officer
|
||
HOLLYWOOD
MAIL ORDER, LLC
|
||
By:
FOH Holdings, Inc., its
Manager
|
By:
|
/s/ Xxxxx XxXx
|
||
Name:
Xxxxx XxXx
|
|||
Title: President
and Chief Executive
|
|||
Officer
|
AGENT AND
LENDER:
|
||
XXXXX
FARGO RETAIL FINANCE II, LLC
|
||
By:
|
/s/ Xxxxxxxx Xxxx
|
|
Name:
Xxxxxxxx Xxxx
|
||
Title:
Senior Vice
President
|
Schedule
1.01(C)
Lenders and Lenders’
Commitments
Lender
|
Revolving Credit Commitment
|
Percentage
|
||||||
Xxxxx
Fargo Retail Finance II, LLC
|
$ | 25,000,000 |
2
|
100.00 | % | |||
Total
|
$ | 25,000,000 | 100.00 | % |
2 Subject
to Section 2.01(c) of this Agreement.
AMENDED
AND RESTATED FINANCING AGREEMENT
Dated as
of January 28, 2008
by and
among
FREDERICK’S
OF HOLLYWOOD GROUP INC.,
and
CERTAIN
OF ITS SUBSIDIARIES,
as
Borrowers,
THE
FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO
and
XXXXX
FARGO RETAIL FINANCE II, LLC,
as the
Arranger and Agent
TABLE OF
CONTENTS
Page
|
|||
ARTICLE
I DEFINITIONS; CERTAIN TERMS
|
1
|
||
SECTION
1.01.
|
Definitions
|
1
|
|
SECTION
1.02.
|
Terms
Generally
|
30
|
|
SECTION
1.03.
|
Accounting
and Other Terms
|
30
|
|
SECTION
1.04.
|
Time
References
|
30
|
|
ARTICLE
II THE LOANS
|
31
|
||
SECTION
2.01.
|
Revolving
Credit Commitments
|
31
|
|
SECTION
2.02.
|
Making
the Loans
|
32
|
|
SECTION
2.03.
|
Revolving
Credit Notes; Repayment of Loans
|
34
|
|
SECTION
2.04.
|
Interest
|
34
|
|
SECTION
2.05.
|
Reduction
of Commitment; Prepayment of Revolving Loans
|
37
|
|
SECTION
2.06.
|
Fees
|
39
|
|
SECTION
2.07.
|
Cash
Management
|
40
|
|
SECTION
2.08.
|
Taxes
|
41
|
|
SECTION
2.09.
|
Early
Termination by Borrowers
|
43
|
|
ARTICLE
IIA LETTERS OF CREDIT
|
44
|
||
SECTION
2.01A.
|
Letter of Credit Guaranty | ||
SECTION
2.02A.
|
Participations
|
46
|
|
SECTION
2.03A.
|
Letters
of Credit
|
47
|
|
ARTICLE
III [Intentionally Omitted]
|
49
|
||
ARTICLE
IV FEES, PAYMENTS AND OTHER COMPENSATION
|
49
|
||
SECTION
4.01.
|
Audit
and Collateral Monitoring Fees
|
49
|
|
SECTION
4.02.
|
Payments;
Computations and Statements
|
49
|
|
SECTION
4.03.
|
Sharing
of Payments, Etc
|
50
|
|
SECTION
4.04.
|
Apportionment
of Payments
|
50
|
|
SECTION
4.05.
|
Increased
Costs and Reduced Return
|
51
|
|
SECTION
4.06.
|
Joint
and Several Liability of the Borrowers
|
52
|
|
ARTICLE
V CONDITIONS TO LOANS
|
53
|
||
SECTION
5.01.
|
Conditions
Precedent to Effectiveness
|
53
|
|
SECTION
5.02.
|
Conditions
Precedent to all Revolving Loans and Letters of Credit
|
56
|
|
ARTICLE
VI REPRESENTATIONS AND WARRANTIES
|
58
|
||
SECTION
6.01.
|
Representations
and Warranties
|
58
|
|
ARTICLE
VII COVENANTS
|
66
|
||
SECTION
7.01.
|
Affirmative
Covenants
|
66
|
|
SECTION
7.02.
|
Negative
Covenants
|
75
|
|
ARTICLE
VIII [Intentionally Omitted]
|
80
|
||
ARTICLE
IX EVENTS OF DEFAULT
|
80
|
- i
-
Page
|
|||
SECTION
9.01.
|
Events
of Default
|
80
|
|
ARTICLE
X AGENT
|
85
|
||
SECTION
10.01.
|
Appointment
|
85
|
|
SECTION
10.02.
|
Nature
of Duties
|
86
|
|
SECTION
10.03.
|
Rights,
Exculpation, Etc
|
86
|
|
SECTION
10.04.
|
Reliance
|
87
|
|
SECTION
10.05.
|
Indemnification
|
87
|
|
SECTION
10.06.
|
Agent
Individually
|
87
|
|
SECTION
10.07.
|
Successor
Agent
|
87
|
|
SECTION
10.08.
|
Collateral
Matters
|
88
|
|
SECTION
10.09.
|
Agency
for Perfection
|
89
|
|
ARTICLE
XI [Intentionally Omitted]
|
90
|
||
ARTICLE
XII MISCELLANEOUS
|
90
|
||
SECTION
12.01.
|
Notices,
Etc
|
90
|
|
SECTION
12.02.
|
Amendments,
Etc
|
91
|
|
SECTION
12.03.
|
No
Waiver; Remedies, Etc
|
92
|
|
SECTION
12.04.
|
Expenses;
Taxes; Attorneys’ Fees
|
92
|
|
SECTION
12.05.
|
Right
of Set-off
|
93
|
|
SECTION
12.06.
|
Severability
|
93
|
|
SECTION
12.07.
|
Assignments
and Participations
|
93
|
|
SECTION
12.08.
|
Counterparts
|
96
|
|
SECTION
12.09.
|
GOVERNING
LAW
|
96
|
|
SECTION
12.10.
|
CONSENT
TO JURISDICTION; SERVICE OF PROCESS AND VENUE
|
96
|
|
SECTION
12.11.
|
WAIVER
OF JURY TRIAL, ETC
|
97
|
|
SECTION
12.12.
|
Consent
by the Agent and Lenders
|
97
|
|
SECTION
12.13.
|
Integration
|
97
|
|
SECTION
12.14.
|
No
Party Deemed Drafter
|
97
|
|
SECTION
12.15.
|
Reinstatement;
Certain Payments
|
98
|
|
SECTION
12.16.
|
Frederick’s
as Agent for Borrowers
|
98
|
|
SECTION
12.17.
|
Indemnification
|
99
|
|
SECTION
12.18.
|
Records
|
99
|
|
SECTION
12.19.
|
Binding
Effect
|
99
|
|
SECTION
12.20.
|
Confidentiality
|
100
|
|
SECTION
12.21.
|
Limitations
on Liability of Officers
|
100
|
|
SECTION
12.22.
|
Intent
to Limit Charges to Maximum Lawful Rate
|
100
|
|
SECTION
12.23.
|
USA
Patriot Act Notice
|
100
|
- ii
-
SCHEDULES AND
EXHIBITS
Schedule
1.01(A)
|
Guarantors
|
Schedule
1.01(B)
|
Eligible
Jurisdictions
|
Schedule
1.01(C)
|
Lenders
and Revolving Credit Commitments
|
Schedule
1.01(D)
|
Permitted
Holders
|
Schedule
1.01(E)
|
Warehouse
Locations
|
Schedule
2.07(a)
|
Cash
Management Banks; Cash Management Accounts
|
Schedule
2.03A(a)(ii)
|
Existing
Letters of Credit
|
Schedule
6.01(e)
|
Subsidiaries
|
Schedule
6.01(f)
|
Litigation;
Commercial Tort Claims
|
Schedule
6.01(i)
|
ERISA
|
Schedule
6.01(o)
|
Real
Property
|
Schedule
6.01(q)
|
Environmental
Matters
|
Schedule
6.01(r)
|
Insurance
|
Schedule
6.01(u)
|
Bank
Accounts
|
Schedule
6.01(v)
|
Intellectual
Property
|
Schedule
6.01(w)
|
Material
Contracts
|
Schedule
6.01(z)
|
Name;
Jurisdiction of Organization; Organizational ID Number; Chief Place of
Business; FEIN
|
Schedule
6.01(ee)
|
Credit
Card Processors
|
Schedule
6.01(ff)
|
Acquisition: Material
Consents and Approvals
|
Schedule
7.01(a)
|
Collateral
Reporting Requirements
|
Schedule
7.01(m)
|
Collateral
Locations
|
Schedule
7.01(v)
|
Post-Effective
Date Obligations
|
Schedule
7.02(b)
|
Existing
Liens
|
Schedule
7.02(f)
|
Existing
Investments
|
Schedule
7.02(l)
|
Limitations
on Dividends and Other Payment Restrictions
|
Exhibit
A
|
Form
of Revolving Credit Note
|
Exhibit
B
|
Form
of Guaranty
|
Exhibit
C
|
Form
of Notice of Borrowing
|
Exhibit
D
|
Form
of Bailee Agreement
|
Exhibit
E
|
Acquisition
Agreement
|
Exhibit
F
|
Form
of Assignment and Acceptance
|
Exhibit
G
|
Form
of Pledge Agreement
|
Exhibit
H
|
Form
of Security Agreement
|
Exhibit
I
|
Form
of Compliance Certificate
|
Exhibit
J
|
Form
of Borrowing Base Certificate
|
Exhibit
K
|
Form
of Letter of Credit Application
|
Exhibit
L
|
Form
of Credit Card Bank Depository Account Agreement
|
Exhibit
M
|
Form
of Collateral Access Agreement
|
Exhibit
N
|
Form
of LIBOR Notice
|
Exhibit
O
|
Form
of Plan Projections
|
- v
-
Schedule
1.01(A)
GUARANTOR
Guarantor
|
Jurisdiction of
Organization
|
|
Xxxxxxxxxx.xxx,
Inc.
|
|
Nevada
|
Schedules
1
Schedule
1.01(B)
RETAIL
LOCATIONS
Dist
|
Store
|
Store
Name
|
Address
|
City
|
State
|
Zip
|
||||||
2
|
10
|
Hollywood
|
0000
Xxxxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
2
|
00
|
Xxxxxxxx
Xxxxxx
|
00/00
Xxxxxxxx Xxxxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
||||||
2
|
00
|
Xxxxxxx
Xxxxx
|
0000
Xxxxxxx Xxxxxx Blvd, SP 0000
|
Xxxxxx
Xxxx
|
XX
|
00000
|
||||||
3
|
00
|
Xxxxxx
Xxxxxx Xxxx
|
000
Xxxxxx Center Dr, SP 000
|
Xxx
Xxxxxxxxxx
|
XX
|
00000
|
||||||
8
|
54
|
Dayton
Mall
|
0000
Xxxxxxxxxx & Xxxxxxxxxxx
|
Xxxxxx
|
XX
|
00000
|
||||||
9
|
56
|
Crossroads
Mall
|
X0000
Xxxxxxxxxx Xxxx
|
Xxxxxxxx
Xxxx
|
XX
|
00000
|
||||||
9
|
00
|
Xxxxxxxxxx
Xxxx
|
0000
X. 00xx Xx.
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
6
|
00
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxxx Xx, Xxx 0000
|
Xxxxx
|
XX
|
00000
|
||||||
2
|
62
|
Del
Amo Fashion Square
|
0000
Xxxxxx Xx, Xx. #00
|
Xxxxxxxx
|
XX
|
00000
|
||||||
6
|
00
|
Xxxxxx
Xxxx
|
0000
Xxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
||||||
9
|
00
|
Xxxxxxxxx
Xxxx
|
Xxxxxxxxx
Xxxx, Xx.X-000X
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
00
|
Xxxxxxx
Xxxx
|
0000
Xxxxxxx Xxxx
|
Xxxxxx
Xxxxxxx
|
XX
|
00000
|
||||||
6
|
00
|
Xxxx
Xxxx Xxxx
|
0000
Xxxx Xxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
||||||
2
|
00
|
Xxxxx
Xxxx Xxxxxx
|
0000
X. Xxxxxxx Xx.
|
Xxxxx
Xxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxxxxxxxxxx
Xxxx
|
0000
Xxxxxxxxxxx Xxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxxx
Xxxx
|
000
Xxxxxxxxx Xxx., Xx 000
|
Xxxxxxxxx
Xxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxxx Xxxx
|
Xxxxxxxxxxxx
|
XX
|
00000
|
||||||
5
|
111
|
Metro
Center
|
0000 Xxxxx
Xxxxx Xxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xx.
Xxxxx Xxxxxx
|
000
Xx. Xxxxx Xxxxxx
|
Xxxxxxxx
Xxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxxxx
Xxxxxx
|
0000
Xxxxxxxxxx Xxxxxx Xxxx
|
Xxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxxxx
Xxxx Xxxxxx
|
000
Xxxxx Xx.
|
Xxxx
Xxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxx
Xxxx Xxxxxx
|
0000
X. Xxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxx
Xxxxxxxxx Xxxx
|
7501
X. Xxxxxx Rd., Sp. #D9
|
Xxxxx
Xxxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxx
Xxxxx
|
0000
X. Xxxxxxxx
|
Xxxxx
|
XX
|
00000
|
||||||
5
|
135
|
Coronado
Center
|
0000
Xxxxxx Xxxx XX, Xx.000
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxx
Xxxx
|
0000
XX Xxxxxxxxx Xxxx Xx.
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxx
Xxxx
|
000
Xxxxxxxx Xx.
|
Xxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxx
Xxxxxx Xxxx
|
0000
Xxxxxxx Xxxxxx Xxxx Xxxxx 000
|
Xxxxxxx
|
XX
|
00000
|
||||||
6
|
146
|
Xxxxxx
Park
|
0000
Xxxxx Xxxx Xxxx 000
|
Xxx
Xxxxxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxx
Xxxx
|
0000
Xxxxxx Xxxx
|
Xxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxxxxxx
Xxxx. Xxxxxx
|
234
Pearlridge Center 00-0000
Xxxxxxxx Xx, Xx. 000
|
Xxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxx
Xxxxxxxxxx
|
0000
X Xxxxxxxxx Xxx. Xxxxx 000
|
Xxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxx
Xxxx
|
00000
Xxxxxxxx Xxxxxx, Xxxx 0000
|
Xxxxxxxx
Xxxxxxx
|
XX
|
00000
|
||||||
5
|
163
|
The
Xxxxxxx
|
0000
Xxxxxxx Xx., Xx.0000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxx
Xxxxx Xxxx
|
000
Xxxxxxx Xxxxx Xxxx
|
Xxxxxxx
Xxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxx @ Ingleside
|
00
Xxxxxxx Xx, Xxx 00000 Space
X-000
|
Xxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxx
Xxxxxxx
|
701
Lynnhaven Pkwy, Sp E17
|
Xxxxxxxx
Xxxxx
|
XX
|
00000
|
||||||
6
|
000
|
Xxxxxx
Xxxxx Xxxxxx
|
0000
Xxxxxxx xx Xxxxx Xxx, Xx X00
|
Xxxxxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxxx
Xxxx
|
0000
Xxxx Xxxx
|
Xxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxxx
Xxxx
|
000
Xxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxx
Xxxxxx
|
0000
Xxxxxxxxx Xxxxxx, Xx.000
|
Xxxxxxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxx
xx Xxxxxxx Xxxxx
|
000
X. Xxxxx Xx. Xxxxx 0000
|
Xxxx
xx Xxxxxxx
|
XX
|
00000
|
||||||
11
|
|
000
|
|
Xxxxxxxxxx
Xxxx
|
|
000
Xxxxxxxxxx Xxx., Xxx.
|
|
Xxxxxx
|
|
XX
|
|
00000
|
Schedules
2
4
|
198
|
Arden
Fair
|
0000
Xxxxx Xxx, Xx.0000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxxxx
Xxxxx
|
0000X
Xxxxxxxxx Xxxxx Xx.
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxxxx
Xxxx
|
0000
Xxxxxxxxxxx Xxxx, Xx 00
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
6
|
000
|
Xxxxxxxx
Xxxx
|
000
Xxxxxxxx Xxxx, Xxxx X-000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxx
Xxxx Xxxx
|
0000
Xxxx Xxxx Xxxx Xx.
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
10
|
206
|
The
Florida Mall
|
0000
X. Xxxxxx Xxxxxxx Xxxxx Xxxxx 000
|
Xxxxxxx
|
XX
|
00000
|
||||||
3
|
211
|
Mall
of Xxxxxx Valley
|
00000
Xxxx Xxxxxx Xx, Xx.000
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxx'x
Xxxxxx
|
0000
Xxxxxxx Xxx, Xx 000
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
213
|
Eastridge
Shopping Center
|
0000
Xxxxxxxxx Xxxx Xxxxx 0000
|
Xxx
Xxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxx
Xxxxxx
|
0000
Xxxxxx Xxx Xxx Xxxxx, #000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
3
|
215
|
Plaza
Xxxxxx
|
0000
Xxxxx Xxxxxx Xx., #0000
|
Xxxxxxxx
Xxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxx
Xxxxxx Xxxx
|
0000
Xx Xxxxxx Xxxx, Xx. 000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
3
|
217
|
Escondido
Promenade
|
0000-X
Xxxx Xxxx Xxx
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxxxx
Xxxxxx
|
000
Xxxxxxxxxx Xxxxxx Xx. X-0
|
Xxxxx
Xxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxxx
Xxxxxx
|
0000
X. Xxx Xxxxx Xxx, #000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
2
|
227
|
Northridge
Fashion Center
|
0000
Xxxxx Xxx, Xx 000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
3
|
229
|
Montebello
Town Center
|
0000
Xxxxxxxxxx Xxxx Xxx, Xx X000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
230
|
Mall
at Webberstown
|
0000
Xxxxxxx Xxx, Xx 000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
9
|
231
|
Xxxxxx
Galleria
|
X-00
& Xxxxxx Xxx, #X000
|
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxx
Xxxx
|
0000
X. 00xx Xx, Xx X-000
|
Xxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxx
Xxxx
|
0000
Xxxxxx Xxxx.
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxx
Xxxxxx Xxxx
|
0000
X. Xxxxxxx 00, Xx 000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxx
Xxxxxx
|
00000
X. Xxxxx Xx, Xx 0000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxxxx Xxxx
|
000
X. Xxxxxxxxxx Xx.
|
X.Xxxxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxx
Xxxx
|
0000
X. 0xx Xxx, Xx X000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxxxx
Xxxx
|
0
Xxxxxxxx Xx., Xxx 000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
8
|
248
|
Town
Center @ Xxxx
|
000
Xxxxxx X.Xxxxxxx Xxxx, #000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxxxxxxxx
Xxxx Xxxxxx
|
000
Xxxxxxxxx Xx, Xx X00
|
Xxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxx
Xxxx
|
0000
Xxx Xxxxx Xx, XX-000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxx
Xxxxx
|
000
Xxxxxxx Xxxxx
|
Xx
Xxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxxx
Xxxxxx Xxxx
|
0000
Xxxx Xxxxxx "X", Xx.000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
6
|
266
|
Parks
at Arlington
|
3811
X.Xxxxxx, Sp.1076 Xxx #000000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxx
Xxxxxxx
|
0000
Xxxxxxx Xxx, Xx. X000
|
Xxxx
Xxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxxx
Xxxx
|
0000
Xxxxxxxxxx Xxxx
|
X.Xxxxxxxxxx
|
XX
|
00000
|
||||||
8
|
275
|
Mid-Rivers
Mall
|
0000
Xxx Xxxxxx Xxxx
|
Xx.Xxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxx
Xxxx
|
0000
Xxxxxxx Xxxx Xx, Xx.X-000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxx
Xxxx
|
0000
Xxxxxxxxxxx Xx, Xx.0000
|
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxxx
Xxxx
|
0000
Xxxxxxxxxx Xxxx Xx., Xx 000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxx
Xxxxxx
|
000
Xxxxx Xxxxxx, Xx.X-000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxx
Xxxxx
|
0000
Xxxxxxxx Xxxx Xx, Xxx 000
|
Xxxxxx
|
XX
|
00000
|
||||||
2
|
286
|
Glendale
Galleria
|
0000
Xxxxxxxx Xxxxxxxx
|
Xxxxxxxx
|
XX
|
00000
|
||||||
3
|
288
|
Galleria
at Tyler
|
1220
Galleria @ Tyler, Sp.G2
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxx
|
850
Hartford Turnpike, Sp. P222
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxxx
Xxxx Xxxx
|
000
Xxxxxx Xxxxxxx Xxx, Xx.000
|
Xxxxxx
|
XX
|
00000
|
||||||
11
|
296
|
Mall
at Rockingham Park
|
00
Xxxxxxxxxx Xxxx Xxxx, Xxx 0000
|
Xxxxx
|
XX
|
00000
|
||||||
10
|
297
|
Miami
International Mall
|
0000
XX 000xx Xxx, Xx.000X
|
Xxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxx
Xxxx Center
|
2201-12000
SE 82nd Ave, Sp E-213
|
Xxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxx
xxxxxx Xxxx
|
0000
Xxxxxxxx Xxx, Xx.0000
|
Xxxxxx
Xxxxxx
|
XX
|
00000
|
||||||
10
|
301
|
Orlando
Fashion Square
|
0000
X.Xxxxxxxx Xx, Xx.X0
|
Xxxxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxx
Xxxxx Xxxx Xxxxxx
|
0000
Xxxx Xxx, Xx. 000
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxx
Xxxxxx
|
000
Xxxxxxxx Xxxxxx, Xx.X-00
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxxxx
|
30
Mall Dr. W, Sp B11/B12
|
Xxxxxx
Xxxx
|
XX
|
00000
|
||||||
8
|
|
310
|
|
The
Fashion Ctr at Pentagon
|
|
0000
X.Xxxxx Xx, Xx.X-0
|
|
Xxxxxxxxx
|
|
XX
|
|
00000
|
Schedules
3
10
|
000
|
Xxxxxx
Xxxx Xxxx
|
0000
Xxxxx Xx, Xx.0000
|
Xxxxxx
Xxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxx
Xxxx
|
0000
X.Xxxxxx Xx, Xx.000
|
Xxxxxx
|
XX
|
00000
|
||||||
9
|
320
|
Fairlane
Town Center
|
00000
Xxxxxxxx Xxx, Xx.X000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxx
Xxxxxxx
|
0000
Xxxxxxxxx Xxxxxxx
|
Xxxxxx
Xxxxx
|
XX
|
00000
|
||||||
6
|
000
|
Xxxxx
Xxxx
|
0000
X. Xxxxx Xx, Xx.000
|
Xxxx
Xxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxx Xxx, Xx.00
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxxx
Xxxx
|
0000
X. Xxxxxxxxx Xx
|
Xxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxx
|
0000
Xxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
6
|
000
|
Xxxxxxxx
Xxxx
|
00000
Xxxxxxxx Xxxx Xx, Xx. X00
|
Xxxxx
Xxxx
|
XX
|
00000
|
||||||
2
|
342
|
The
Block
|
00
Xxxx Xxxx. Xxxx Xxxx. X0, Xxx 000
|
Xxxxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxx
Xxx Xxxx
|
0000
X. Xxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
350
|
Sun
Valley
|
000
Xxx Xxxxxx Xxxx, Xxxxx X000
|
Xxxxxxx
|
XX
|
00000
|
||||||
5
|
351
|
Arizona
Xxxxx
|
0000
Xxxxxxx Xxxxx Xxxxxx Space 224
|
Xxxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxx Xxxxxxx Xx., 000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
5
|
355
|
Xxxxxxxx
Fashion Center
|
0000
Xxxx Xxxxxxxx Xxxx.
|
Xxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxx
Xxxxx Xxxxxxxx
|
0000
Xxxxxxx Xxxx, Xx. 000
|
Xxxxxx
Xxxxx
|
XX
|
00000
|
||||||
8
|
357
|
Discover
Xxxxx
|
0000
Xxxxxxxxx Xxxx Xx. 000
|
Xxxxxxxxxxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxx
Xxxxx
|
Xxx
Xxxxx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
6
|
362
|
Xxxx
Xxxxx
|
0000
Xxxx Xxxxxx, Xxxxx 000
|
Xxxx
|
XX
|
00000
|
||||||
5
|
363
|
Fashion
Show Mall
|
0000
Xxx Xxxxx Xxxx. Xxxxx 0000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxx
Xxxx
|
000
Xxxxxxx Xxxx Xx.Xx. 0000
|
Xxx
Xxxx
|
XX
|
00000
|
||||||
2
|
365
|
Santa
Xxxxx
|
000
Xxxxx Xxxxxxx Xxx Xxxxx #000-X
|
Xxxxxxx
|
XX
|
00000
|
||||||
2
|
366
|
Irvine
Spectrum
|
00
Xxxxxxx Xx #000
|
Xxxxxx
|
XX
|
00000
|
||||||
6
|
367
|
The
Shops at Xx Xxxxxxx
|
15900
La Xxxxxxx Xxxxxxx Xxxx 00, Xxx 00000
|
Xxx
Xxxxxxx
|
TX
|
78256
|
||||||
6
|
368
|
Memorial
City
|
000
Xxxxxxxx Xxxx Xxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
10
|
369
|
Citrus
Park
|
0000
Xxxxxx Xxxx Xxxx Xxxxxx
|
Xxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxxx
Xxxxxxx
|
000
Xxxxxxx Xxxx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
371
|
The
Shops at Tanforan
|
0000
Xx Xxxxxx Xxxx Xxxxx 000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
10
|
372
|
Countryside
|
00000
XX Xxxxxxx 00 Xxxxx, Xxxxx 0000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxxxxxxxx
Xxxxxxx Xxxx
|
00000
Xxxxx Xxxxxx Xxxx., #000
|
Xxx
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxx
Xxxxxxxxx Xxxxxx
|
000
Xxxxxx Xx. Xxxxx #000
|
Xxx
Xxxxxxxxx
|
XX
|
00000
|
||||||
3
|
375
|
Promenade
Shops at Dos Lagos
|
0000
Xxxxx Xxxxx Xxxxx #000
|
Xxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxx
Xxxxx
|
0000
Xxxxx Xxxxx Xxxxx #000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
10
|
377
|
Coastland
|
0000
Xxxxx Xxxxxxx Xxxxx, Xxxxx #X-0
|
Xxxxxx
|
XX
|
00000
|
||||||
5
|
379
|
Miracle
Mile
|
0000
Xxx Xxxxx Xxxx., Xxxxx X000X
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxx
Xxxxx Xxxx
|
000
Xxx Xxxxx Xxxx, Xxxxx X000
|
Xxxxxx
Xxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxx
Xxxxxx
|
0000
X. Xxxxxxxx Xxxx., Xxxxx 0000
|
Xxxxx
Xxxxxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxxxx
Xxxxx
|
0000
Xxx Xxxxx Xxxx Xxxxx, Xxxxx #000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxx
Xxxx
|
4125
Cleveland Ave., Space 0000
|
Xxxx
Xxxxx
|
XX
|
00000
|
||||||
10
|
|
000
|
|
Xxxxxxxx
Xxxx Center
|
|
000
Xxxxx Xxxxxx Xxxxxx, Xxxxx X-0
|
|
Xxxxxxx
|
|
XX
|
|
00000
|
Schedules
4
Schedule
1.01(D)
PERMITTED
HOLDERS
Fursa
Master Rediscovered
Opportunities
Fund L.P.
Attn:
Xxxxxxx X. Xxxxxxx, XXX
x/x Xxxxx
Xxxxxxxxxxx Xxxxxxxxxx
000
Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Fursa
Capital Partners LP
Attn:
Xxxxxxx X. Xxxxxxx, XXX
x/x Xxxxx
Xxxxxxxxxxx Xxxxxxxxxx
000
Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Fursa
Master Global Event Driven Fund LP
Attn:
Xxxxxxx X. Xxxxxxx, XXX
x/x Xxxxx
Xxxxxxxxxxx Xxxxxxxxxx
000
Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Blackfriars
Special Purpose Vehicle
LLC –
Series 2
Attn:
Xxxxxxx X. Xxxxxxx, XXX
x/x Xxxxx
Xxxxxxxxxxx Xxxxxxxxxx
000
Xxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Xxxxxx
Investments, LLC
000
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Schedules
5
Schedule
1.01(E)
WAREHOUSE
LOCATIONS
0000 X.
00xx
Xxxxxx
Xxxxxxx,
XX 00000
Movie
Star of Poplarville
000
Xxxxxxx 00 Xxxxx
Xxxxxxxxxxx,
XX 00000
601/
795-4501
Movie
Star Distribution Center
000
Xxxxxxx 00 Xxxxx
Xxxxxxxxxxx,
XX 00000
601/
795-6216
Performance
Team Building #0
000
Xxxxxxxx Xxxxx
Xxx
Xxxxx, XX 00000
310/
241-4211
Schedules
6
Schedule
2.07(a)
CASH MANAGEMENT BANKS; CASH
MANAGEMENT ACCOUNTS
A. Cash Management Banks;
Cash Management Accounts of FOH Holdings, Inc. and
Subsidiaries
1. Restricted
Account Agreement, executed as of December 23, 2002, to be performed by Xxxxx
Fargo Bank, National Association ("Bank"), Frederick's of Hollywood, Inc.
("Company") and Xxxxx Fargo Retail Finance, LLC ("WFRF") in connection with the
following wholesale demand deposit accounts maintained at Bank in the name of
WFRF:
Account
No. XXXX-XXXXXX
|
Concentration
Account
|
|
Account
No. XXXX-XXXXXX
|
Sub
Account Concentration Account
|
|
Account
No. XXXX-XXXXXX
|
Sub
Account Concentration Account
|
|
Account
No. XXXX-XXXXXX
|
|
Concentration
Account
|
B. Cash Management Banks;
Cash Management Accounts of Frederick’s of Hollywood Group
Inc.
[None]
Schedules
7
Schedule
2.03A(a)(ii)
EXISTING LETTERS OF
CREDIT
1.
|
Issuing
Bank:
|
Xxxxx
Fargo Bank, N.A., Foothill Capital Corp
|
||
LC#:
|
NZS322100
|
|||
Amount:
|
$750,000.00
|
|||
|
Beneficiary:
|
|
PNC
Bank National
Association
|
Schedules
8
Schedule
6.01(e)
SUBSIDIARIES
FOH
Holdings, Inc.
|
Incorporated:
|
Delaware,
May 9, 1997
|
||
Authorized
Stock:
|
2,250,000
Common
250,000
Preferred
|
|||
Issued
Stock:
|
1,330,000
Common
|
|||
Shareholder:
|
Frederick's
of Hollywood Group, Inc.
|
|||
Xxxxxxxxxx.xxx,
Inc.
|
Incorporated:
|
Nevada,
April 19, 1999
|
||
Authorized
Stock:
|
120,000,000
common shares of which 80,000,000 Shares are Class A Common $0.01 par
value and
40,000,000
Shares Class B Common $0.01 par value
|
|||
1,000,000
Preferred $0.01 par value
|
||||
Issued
Stock:
|
11,575,000
Class B Common
|
|||
Shareholder:
|
Frederick’s
of Hollywood, Inc. – 11,575,000 Class B Common
|
|||
Frederick’s
Of Hollywood, Inc.
|
Incorporated:
|
Delaware,
March 1, 1962
|
||
Authorized
Stock:
|
3,000
Common Shares, $0.01 par value
|
|||
Shareholder:
|
FOH
Holdings, Inc. – 1,000 Common Shares
|
|||
Frederick’s
Of Hollywood Stores, Inc.
|
Incorporated:
|
Nevada,
July 8, 1998
|
||
Authorized
Stock:
|
1,000
Common Shares, $0.01 par value
|
|||
Shareholder:
|
Frederick’s
of Hollywood, Inc. – 100 common shares
|
|||
Hollywood
Mail Order, LLC
|
Formation:
|
Nevada,
July 20, 1999
|
||
Manager:
|
FOH
Holdings, Inc.
|
|||
Membership
Interest:
|
Frederick’s
of Hollywood, Inc.
|
|||
Cinejour
Lingerie Inc.
|
Incorporated:
|
Canada,
May 6, 2004
|
||
Authorized
Stock:
|
Unlimited
Class A Common
|
|||
Unlimited
Class B Common
|
||||
Unlimited
Preferred A
|
||||
Unlimited
Preferred B
|
||||
Unlimited
Preferred C
|
||||
Unlimited
Preferred D
|
||||
Issued
Stock:
|
100
Class A Common
|
|||
|
Shareholder:
|
|
Movie
Star, Inc. – 100 Class A
Common
|
Schedules
9
Schedule
6.01(f)
LITIGATION
[None]
Schedules
10
Schedule
6.01(i)
ERISA
[None]
Schedules
11
Schedule
6.01(o)
REAL
PROPERTY
FOH
Holdings Inc. - Leases
|
||||||||||||
Dist
|
Store
|
Store
Name
|
Address
|
City
|
State
|
Zip
|
||||||
2
|
10
|
Hollywood
|
0000
Xxxxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
2
|
00
|
Xxxxxxxx
Xxxxxx
|
00/00
Xxxxxxxx Xxxxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
||||||
2
|
00
|
Xxxxxxx
Xxxxx
|
0000
Xxxxxxx Xxxxxx Blvd, SP 0000
|
Xxxxxx
Xxxx
|
XX
|
00000
|
||||||
3
|
00
|
Xxxxxx
Xxxxxx Xxxx
|
000
Xxxxxx Center Dr, SP 000
|
Xxx
Xxxxxxxxxx
|
XX
|
00000
|
||||||
8
|
54
|
Dayton
Mall
|
0000
Xxxxxxxxxx & Xxxxxxxxxxx
|
Xxxxxx
|
XX
|
00000
|
||||||
9
|
56
|
Crossroads
Mall
|
X0000
Xxxxxxxxxx Xxxx
|
Xxxxxxxx
Xxxx
|
XX
|
00000
|
||||||
9
|
00
|
Xxxxxxxxxx
Xxxx
|
0000
X. 00xx Xx.
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
6
|
00
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxxx Xx, Xxx 0000
|
Xxxxx
|
XX
|
00000
|
||||||
2
|
62
|
Del
Amo Fashion Square
|
0000
Xxxxxx Xx, Xx. #00
|
Xxxxxxxx
|
XX
|
00000
|
||||||
6
|
00
|
Xxxxxx
Xxxx
|
0000
Xxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
||||||
9
|
00
|
Xxxxxxxxx
Xxxx
|
Xxxxxxxxx
Xxxx, Xx.X-000X
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
00
|
Xxxxxxx
Xxxx
|
0000
Xxxxxxx Xxxx
|
Xxxxxx
Xxxxxxx
|
XX
|
00000
|
||||||
6
|
00
|
Xxxx
Xxxx Xxxx
|
0000
Xxxx Xxxx Xxxx
|
Xxxxxxxx
|
XX
|
00000
|
||||||
2
|
00
|
Xxxxx
Xxxx Xxxxxx
|
0000
X. Xxxxxxx Xx.
|
Xxxxx
Xxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxxxxxxxxxx
Xxxx
|
0000
Xxxxxxxxxxx Xxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxxx
Xxxx
|
000
Xxxxxxxxx Xxx., Xx 000
|
Xxxxxxxxx
Xxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxxx Xxxx
|
Xxxxxxxxxxxx
|
XX
|
00000
|
||||||
5
|
111
|
Metro
Center
|
0000 Xxxxx
Xxxxx Xxxxxxx Xxxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xx.
Xxxxx Xxxxxx
|
000
Xx. Xxxxx Xxxxxx
|
Xxxxxxxx
Xxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxxxx
Xxxxxx
|
0000
Xxxxxxxxxx Xxxxxx Xxxx
|
Xxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxxxx
Xxxx Xxxxxx
|
000
Xxxxx Xx.
|
Xxxx
Xxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxx
Xxxx Xxxxxx
|
0000
X. Xxxxxxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxx
Xxxxxxxxx Xxxx
|
7501
X. Xxxxxx Rd., Sp. #D9
|
Xxxxx
Xxxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxx
Xxxxx
|
0000
X. Xxxxxxxx
|
Xxxxx
|
XX
|
00000
|
||||||
5
|
135
|
Coronado
Center
|
0000
Xxxxxx Xxxx XX, Xx.000
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxx
Xxxx
|
0000
XX Xxxxxxxxx Xxxx Xx.
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxx
Xxxx
|
000
Xxxxxxxx Xx.
|
Xxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxx
Xxxxxx Xxxx
|
0000
Xxxxxxx Xxxxxx Xxxx Xxxxx 000
|
Xxxxxxx
|
XX
|
00000
|
||||||
6
|
146
|
Xxxxxx
Park
|
0000
Xxxxx Xxxx Xxxx 000
|
Xxx
Xxxxxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxx
Xxxx
|
0000
Xxxxxx Xxxx
|
Xxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxxxxxx
Xxxx. Xxxxxx
|
234
Pearlridge Center
00-0000
Xxxxxxxx Xx, Xx. 000
|
Xxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxx
Xxxxxxxxxx
|
0000
X Xxxxxxxxx Xxx. Xxxxx 000
|
Xxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxx
Xxxx
|
00000
Xxxxxxxx Xxxxxx, Xxxx 0000
|
Xxxxxxxx
Xxxxxxx
|
XX
|
00000
|
||||||
5
|
163
|
The
Xxxxxxx
|
0000
Xxxxxxx Xx., Xx.0000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxx
Xxxxx Xxxx
|
000
Xxxxxxx Xxxxx Xxxx
|
Xxxxxxx
Xxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxx @ Ingleside
|
00
Xxxxxxx Xx, Xxx 00000
Space
X-000
|
Xxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxx
Xxxxxxx
|
701
Lynnhaven Pkwy, Sp E17
|
Xxxxxxxx
Xxxxx
|
XX
|
00000
|
||||||
6
|
000
|
Xxxxxx
Xxxxx Xxxxxx
|
0000
Xxxxxxx xx Xxxxx Xxx, Xx X00
|
Xxxxxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxxx
Xxxx
|
0000
Xxxx Xxxx
|
Xxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxxx
Xxxx
|
000
Xxxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxx
Xxxxxx
|
0000
Xxxxxxxxx Xxxxx, Xx.000
|
Xxxxxxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxx
xx Xxxxxxx Xxxxx
|
000
X. Xxxxx Xx. Xxxxx 0000
|
Xxxx
xx Xxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxxxxx
Xxxx
|
000
Xxxxxxxxxx Xxx., Xxx.
|
Xxxxxx
|
XX
|
00000
|
||||||
4
|
|
198
|
|
Arden
Fair
|
|
0000
Xxxxx Xxx, Xx.0000
|
|
Xxxxxxxxxx
|
|
XX
|
|
00000
|
Schedules
12
3
|
000
|
Xxxxxxxxx
Xxxxx
|
0000X
Xxxxxxxxx Xxxxx Xx.
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxxxx
Xxxx
|
0000
Xxxxxxxxxxx Xxxx, Xx 00
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
6
|
000
|
Xxxxxxxx
Xxxx
|
000
Xxxxxxxx Xxxx, Xxxx X-000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxx
Xxxx Xxxx
|
0000
Xxxx Xxxx Xxxx Xx.
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
10
|
206
|
The
Florida Mall
|
0000
X. Xxxxxx Xxxxxxx Xxxxx Xxxxx 000
|
Xxxxxxx
|
XX
|
00000
|
||||||
3
|
211
|
Mall
of Xxxxxx Valley
|
00000
Xxxx Xxxxxx Xx, Xx.000
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxx'x
Xxxxxx
|
0000
Xxxxxxx Xxx, Xx 000
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
213
|
Eastridge
Shopping Center
|
0000
Xxxxxxxxx Xxxx Xxxxx 0000
|
Xxx
Xxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxx
Xxxxxx
|
0000
Xxxxxx Xxx Xxx Xxxxx, #000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
3
|
215
|
Plaza
Xxxxxx
|
0000
Xxxxx Xxxxxx Xx., #0000
|
Xxxxxxxx
Xxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxx
Xxxxxx Xxxx
|
0000
Xx Xxxxxx Xxxx, Xx. 000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
3
|
217
|
Escondido
Promenade
|
0000-X
Xxxx Xxxx Xxx
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxxxx
Xxxxxx
|
000
Xxxxxxxxxx Xxxxxx Xx. X-0
|
Xxxxx
Xxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxxx
Xxxxxx
|
0000
X. Xxx Xxxxx Xxx, #000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
2
|
227
|
Northridge
Fashion Center
|
0000
Xxxxx Xxx, Xx 000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
3
|
229
|
Montebello
Town Center
|
0000
Xxxxxxxxxx Xxxx Xxx, Xx X000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
230
|
Mall
at Webberstown
|
0000
Xxxxxxx Xxx, Xx 000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
9
|
231
|
Xxxxxx
Galleria
|
X-00
& Xxxxxx Xxx, #X000
|
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxx
Xxxx
|
0000
X. 00xx Xx, Xx X-000
|
Xxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxx
Xxxx
|
0000
Xxxxxx Xxxx.
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxx
Xxxxxx Xxxx
|
0000
X. Xxxxxxx 00, Xx 000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxx
Xxxxxx
|
00000
X. Xxxxx Xx, Xx 0000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxxxx Xxxx
|
000
X. Xxxxxxxxxx Xx.
|
X.Xxxxxxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxx
Xxxx
|
0000
X. 0xx Xxx, Xx X000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxxxx
Xxxx
|
0
Xxxxxxxx Xx., Xxx 000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
8
|
248
|
Town
Center @ Xxxx
|
000
Xxxxxx X.Xxxxxxx Xxxx, #000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxxxxxxxx
Xxxx Xxxxxx
|
000
Xxxxxxxxx Xx, Xx X00
|
Xxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxx
Xxxx
|
0000
Xxx Xxxxx Xx, XX-000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxx
Xxxxx
|
000
Xxxxxxx Xxxxx
|
Xx
Xxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxxx
Xxxxxx Xxxx
|
0000
Xxxx Xxxxxx "X", Xx.000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
6
|
266
|
Parks
at Arlington
|
3811
X.Xxxxxx, Sp.1076 Xxx #000000
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxx
Xxxxxxx
|
0000
Xxxxxxx Xxx, Xx. X000
|
Xxxx
Xxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxxx
Xxxx
|
0000
Xxxxxxxxxx Xxxx
|
X.Xxxxxxxxxx
|
XX
|
00000
|
||||||
8
|
275
|
Mid-Rivers
Mall
|
0000
Xxx Xxxxxx Xxxx
|
Xx.Xxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxx
Xxxx
|
0000
Xxxxxxx Xxxx Xx, Xx.X-000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxx
Xxxx
|
0000
Xxxxxxxxxxx Xx, Xx.0000
|
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxxx
Xxxx
|
0000
Xxxxxxxxxx Xxxx Xx., Xx 000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxx
Xxxxxx
|
000
Xxxxx Xxxxxx, Xx.X-000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxx
Xxxxx
|
0000
Xxxxxxxx Xxxx Xx, Xxx 000
|
Xxxxxx
|
XX
|
00000
|
||||||
2
|
286
|
Glendale
Galleria
|
0000
Xxxxxxxx Xxxxxxxx
|
Xxxxxxxx
|
XX
|
00000
|
||||||
3
|
288
|
Galleria
at Tyler
|
1220
Galleria @ Tyler, Sp.G2
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxx
|
850
Hartford Turnpike, Sp. P222
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxxx
Xxxx Xxxx
|
000
Xxxxxx Xxxxxxx Xxx, Xx.000
|
Xxxxxx
|
XX
|
00000
|
||||||
11
|
296
|
Mall
at Rockingham Park
|
00
Xxxxxxxxxx Xxxx Xxxx, Xxx 0000
|
Xxxxx
|
XX
|
00000
|
||||||
10
|
297
|
Miami
International Mall
|
0000
XX 000xx Xxx, Xx.000X
|
Xxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxxx
Xxxx Center
|
2201-12000
SE 82nd Ave, Sp E-213
|
Xxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxx
xxxxxx Xxxx
|
0000
Xxxxxxxx Xxx, Xx.0000
|
Xxxxxx
Xxxxxx
|
XX
|
00000
|
||||||
10
|
301
|
Orlando
Fashion Square
|
0000
X.Xxxxxxxx Xx, Xx.X0
|
Xxxxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxx
Xxxxx Xxxx Xxxxxx
|
0000
Xxxx Xxx, Xx. 000
|
Xxxxxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxx
Xxxxxx
|
000
Xxxxxxxx Xxxxxx, Xx.X-00
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxxxx
|
30
Mall Dr. W, Sp B11/B12
|
Xxxxxx
Xxxx
|
XX
|
00000
|
||||||
8
|
310
|
The
Fashion Ctr at Pentagon
|
0000
X.Xxxxx Xx, Xx.X-0
|
Xxxxxxxxx
|
XX
|
00000
|
||||||
10
|
|
000
|
|
Xxxxxx
Xxxx Xxxx
|
|
0000
Xxxxx Xx, Xx.0000
|
|
Xxxxxx
Xxxx
|
|
XX
|
|
00000
|
Schedules
13
5
|
000
|
Xxxxxx
Xxxx
|
0000
X.Xxxxxx Xx, Xx.000
|
Xxxxxx
|
XX
|
00000
|
||||||
9
|
320
|
Fairlane
Town Center
|
00000
Xxxxxxxx Xxx, Xx.X000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxx
Xxxxxxx
|
0000
Xxxxxxxxx Xxxxxxx
|
Xxxxxx
Xxxxx
|
XX
|
00000
|
||||||
6
|
000
|
Xxxxx
Xxxx
|
0000
X. Xxxxx Xx, Xx.000
|
Xxxx
Xxxxx
|
XX
|
00000
|
||||||
8
|
000
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxx Xxx, Xx.00
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxxxxxx
Xxxx
|
0000
X. Xxxxxxxxx Xx
|
Xxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxxxx
Xxxx
|
0000
Xxxxxxx Xxxx
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
6
|
000
|
Xxxxxxxx
Xxxx
|
00000
Xxxxxxxx Xxxx Xx, Xx. X00
|
Xxxxx
Xxxx
|
XX
|
00000
|
||||||
2
|
342
|
The
Block
|
00
Xxxx Xxxx. Xxxx Xxxx. X0, Xxx 000
|
Xxxxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxx
Xxx Xxxx
|
0000
X. Xxxxxx Xx
|
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
350
|
Sun
Valley
|
000
Xxx Xxxxxx Xxxx, Xxxxx X000
|
Xxxxxxx
|
XX
|
00000
|
||||||
5
|
351
|
Arizona
Xxxxx
|
0000
Xxxxxxx Xxxxx Xxxxxx Space 224
|
Xxxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxxxxx
Xxxx
|
0000
Xxxxxxxx Xxxxxxx Xx., 000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
5
|
355
|
Xxxxxxxx
Fashion Center
|
0000
Xxxx Xxxxxxxx Xxxx.
|
Xxxxxxxx
|
XX
|
00000
|
||||||
9
|
000
|
Xxxxx
Xxxxx Xxxxxxxx
|
0000
Xxxxxxx Xxxx, Xx. 000
|
Xxxxxx
Xxxxx
|
XX
|
00000
|
||||||
8
|
357
|
Discover
Xxxxx
|
0000
Xxxxxxxxx Xxxx Xx. 000
|
Xxxxxxxxxxxxx
|
XX
|
00000
|
||||||
3
|
000
|
Xxxxxxx
Xxxxx
|
Xxx
Xxxxx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
6
|
362
|
Xxxx
Xxxxx
|
0000
Xxxx Xxxxxx, Xxxxx 000
|
Xxxx
|
XX
|
00000
|
||||||
5
|
363
|
Fashion
Show Mall
|
0000
Xxx Xxxxx Xxxx. Xxxxx 0000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxxxxxxx
Xxxx
|
000
Xxxxxxx Xxxx Xx.Xx. 0000
|
Xxx
Xxxx
|
XX
|
00000
|
||||||
2
|
365
|
Santa
Xxxxx
|
000
Xxxxx Xxxxxxx Xxx Xxxxx #000-X
|
Xxxxxxx
|
XX
|
00000
|
||||||
2
|
366
|
Irvine
Spectrum
|
00
Xxxxxxx Xx #000
|
Xxxxxx
|
XX
|
00000
|
||||||
6
|
367
|
The
Shops at Xx Xxxxxxx
|
15900
Xx Xxxxxxx Pkwy Xxxx 00, Xxx 00000
|
Xxx
Xxxxxxx
|
XX
|
00000
|
||||||
6
|
368
|
Memorial
City
|
000
Xxxxxxxx Xxxx Xxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
10
|
369
|
Citrus
Park
|
0000
Xxxxxx Xxxx Xxxx Xxxxxx
|
Xxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxxx
Xxxxxxx
|
000
Xxxxxxx Xxxx Xxxxxx
|
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
371
|
The
Shops at Tanforan
|
0000
Xx Xxxxxx Xxxx Xxxxx 000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
10
|
372
|
Countryside
|
00000
XX Xxxxxxx 00 Xxxxx, Xxxxx 0000
|
Xxxxxxxxxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxxxxxxxx
Xxxxxxx Xxxx
|
00000
Xxxxx Xxxxxx Xxxx., #000
|
Xxx
Xxxxxxx
|
XX
|
00000
|
||||||
4
|
000
|
Xxx
Xxxxxxxxx Xxxxxx
|
000
Xxxxxx Xx. Xxxxx #000
|
Xxx
Xxxxxxxxx
|
XX
|
00000
|
||||||
3
|
375
|
Promenade
Shops at Dos Lagos
|
0000
Xxxxx Xxxxx Xxxxx #000
|
Xxxxxx
|
XX
|
00000
|
||||||
11
|
000
|
Xxxxx
Xxxxx
|
0000
Xxxxx Xxxxx Xxxxx #000
|
Xxxxxxxx
|
XX
|
00000
|
||||||
10
|
377
|
Coastland
|
0000
Xxxxx Xxxxxxx Xxxxx, Xxxxx #X-0
|
Xxxxxx
|
XX
|
00000
|
||||||
5
|
379
|
Miracle
Mile
|
0000
Xxx Xxxxx Xxxx., Xxxxx X000X
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
2
|
000
|
Xxx
Xxxxx Xxxx
|
000
Xxx Xxxxx Xxxx, Xxxxx X000
|
Xxxxxx
Xxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxx
Xxxxxx
|
0000
X. Xxxxxxxx Xxxx., Xxxxx 0000
|
Xxxxx
Xxxxxxx
|
XX
|
00000
|
||||||
5
|
000
|
Xxxxxxxx
Xxxxx
|
0000
Xxx Xxxxx Xxxx Xxxxx, Xxxxx #000
|
Xxx
Xxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxx
Xxxx
|
4125
Cleveland Ave., Space 0000
|
Xxxx
Xxxxx
|
XX
|
00000
|
||||||
10
|
000
|
Xxxxxxxx
Xxxx Center
|
000
Xxxxx Xxxxxx Xxxxxx, Xxxxx X-0
|
Xxxxxxx
|
XX
|
00000
|
||||||
Corporate
Headquarters
|
0000
Xxxxxx Xxxxxxxxx
|
Xxx
Xxxxxxx
|
XX
|
00000
|
||||||||
|
|
|
Arizona
Distribution Center
|
|
0000
X. 00xx Xxxxxx
|
|
Xxxxxxx
|
|
XX
|
|
00000
|
Frederick’s
of Hollywood Group Inc. - Owned
|
||||||||||||||
Movie
Star Distribution Center
|
000-000-0000
|
000
Xxxxxxx 00 Xxxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
|||||||||
Frederick’s
of Hollywood Group Inc. - Leases
|
||||||||||||||
Movie
Star, Inc. (Corporate Office)
|
000-000-0000
|
0000
Xxxxxxxx, 00xx
Xxxxx
|
Xxx
Xxxx
|
XX
|
00000
|
|||||||||
Movie
Star, Inc. (Showroom)
|
000-000-0000
|
000
Xxxxxxx Xxxxxx, Xxxx #0000
|
Xxx
Xxxx
|
XX
|
00000
|
|||||||||
Movie
Star of Poplarville
|
000-000-0000
|
000
Xxxxxxx 00 Xxxxx
|
Xxxxxxxxxxx
|
XX
|
00000
|
|||||||||
Movie
Star, Philippines
|
011-632/400-1839
|
0000
Xxxx Xxxxxx, Xxxxx Xxxx, 0000
|
Xxxxx
Xxxxxx, Xxxxxxxxxxx
|
|||||||||||
Movie
Star, Philippines
|
|
|
KM
23, Xxxxxx, Xxxxxxx
|
|
Taytay,
Rizal
|
|
|
Schedules
14
Schedule
6.01(q)
ENVIRONMENTAL
MATTERS
[None]
Schedules
15
Schedule
6.01(r)
INSURANCE
1.
|
National
Union Fire Insurance Company Directors, Officers and Private Company
Liability Policy No. 000-00-00 held by Company with an aggregate limit of
liability of $25,000,000.
|
2.
|
National
Union Fire Insurance Company Employment Practices Liability Policy No.
000-00-00 held by Company with an aggregate limit of liability of
$10,000,000.
|
3.
|
National
Union Fire Insurance Company of Pittsburgh, Pa. Employee Benefit Plan
Fiduciary Liability Policy No. 000-00-00 held by Company with an aggregate
limit of liability of $4,000,000.
|
4.
|
National
Union Fire Insurance Company of Pittsburgh, Pa. Crime Guard Coverage
Policy No. 000-00-00 held by Company with a limit of liability of
$1,000,000.
|
5.
|
American
International Specialty Lines Insurance Company Internet Media and Network
Security Liability Insurance Policy No. 000-00-00 held by Company and
Frederick’x.xxx with limit of liability for internet media liability of
$3,000,000.
|
6.
|
The
American Guarantee and Liability Insurance Company Commercial General
Liability Policy No. CPO 2817541-00, with limit of liability of
$2,000,000.
|
7.
|
The
Zurich American Insurance Company Automobile Liability Policy No. CPO
2817541-00 with limit of liability of
$1,000,000.
|
8.
|
The
American Guarantee and Liability Insurance Company Excess Liability Policy
No. UMB 2817542-00 with limit of liability of
$3,000,000.
|
9.
|
Federal
Insurance Company Excess Liability Policy as policy number 7982-0638 with
limit of liability of $20,000,000.
|
10.
|
Hartford
Underwriters Insurance Company/Twin City Insurance Company Workers’
Compensation Insurance Policy No. 72 WE NT5500 (all States other than
Hawaii) with limit of liability of
$1,000,000.
|
11.
|
Hartford
Underwriters Insurance Company Workers’ Compensation Insurance Policy Xx.
00 XX XX 0000 (Hawaii only) with limit of liability of
$1,000,000.
|
12.
|
Zurich
American Insurance Company Property Insurance Policy No. CPO 2817541-00
with limits of liability of $38,171,005 (building and contents),
$38,827,005 (inventory), $13,183,274 (loss of income); and $11,083,994
(blanket for Florida and Hawaii).
|
Schedules
16
Schedule
6.01(u)
BANK
ACCOUNTS
A. Bank Accounts of FOH
Holdings, Inc. and Subsidiaries
Store #
|
Store
Name
|
Acct#
|
Con-Acct#
|
Bank
|
Address
|
|||||
77
|
TOWN
EAST MALL
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
000
Xxxx Xx., 0xx
Xxxxx,
|
|||||
000
|
XXXXXXXXX
MALL
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxx
xx Xxxxxxx
|
Xxxxxx,
XX 00000
|
|||||
000
|
XXXXXXXXXX
XX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXX
XXXX XX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXX
XXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
135
|
CORONADO
CENTER
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXX
XXXXXX XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXXX
XXXXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXX
XXXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXX
XXXXXX XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXX
XXXXXX XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
248
|
TOWN
CENTER @ XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
254
|
COLUMBIA
MALL
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
273
|
Northwood
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
275
|
MID-RIVERS
MALL
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXX
XXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXX
XXXX XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
296
|
MALL
@ ROCKINGHAM PARK
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
301
|
ORLANDO
FASHION SQUARE
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
310
|
THE
FASHION CTR @ PENTAGON
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXX
XXXX XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
323
|
XXXXX
MALL
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
350
|
SUN
VALLEY
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
357
|
DISCOVER
XXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
362
|
XXXX
XXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
366
|
IRVINE
SPECTRUM
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
369
|
CITRUS
PARK
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXXX
XXXXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
Schedules
17
372
|
COUNTRYSIDE
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
XXXXXXXXX
XXXXXXX XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
374
|
San
Francisco Center
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
Xxxxx
Xxxxx
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
Xxxxxxxxx
Xxxx
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
000
|
Xxxxx
Xxxxxx
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
||||||
10
|
HOLLYWOOD
|
XXXXXXXXXX
|
Bank
of America
|
000
Xxxx Xx., 0xx
Xxxxx,
|
||||||
24
|
LAKEWOOD
CENTER
|
XXXXXXXXXX
|
Xxxx
xx Xxxxxxx
|
Xxxxxx,
XX 00000
|
||||||
00
|
XXXXXXX
XXXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
62
|
DEL
AMO FASH SQUARE
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
86
|
METRO
TOWN SQUARE
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXXXXXXX
XXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
111
|
METRO
CENTER
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXX
XXXXX @ WEST COVINA
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXX
XXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
163
|
XXXXXXX,
THE
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
174
|
BREA
MALL
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXX
XXXXXX, XXXX OF
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
213
|
XXXXXXXXX
SHPG CTR
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
214
|
MISSION
VALLEY
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
215
|
PLAZA
XXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXX
XXXXXX REAL
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
217
|
ESCONDIDO
PROMENADE
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXXXXXXX
XXXXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
227
|
NORTHRIDGE
FASH CTR
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
229
|
MONTEBELLO
TOWN CTR
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXX
XXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
243
|
VALLCO
FASHION PARK
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
251
|
STONEWOOD
SHPG CENTER
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXXX
XXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXXXXXX
XXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
284
|
XXXXX
CENTER
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
286
|
GLENDALE
GALLERIA
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXX
XXXXX XXXX XXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
XXXXXX
XXXX
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
343
|
DESERT
SKY MALL
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
351
|
ARIZONA
XXXXX
|
XXXXXXXXXX
|
Bank
of America
|
Schedules
18
355
|
XXXXXXXX
FASHION CENTER
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
363
|
FASHION
SHOW MALL
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
000
|
Xxx
Xxxxx Xxxx
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
382
|
MANDALAY
BAY
|
XXXXXXXXXX
|
Bank
of America
|
|||||||
00
|
XXXXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
433
N Camden Dr. Xxxxx 000
|
|||||
00
|
XXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
Xxxxxxx
Xxxxx, XX 00000
|
|||||
198
|
ARDEN
FAIR
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
000
|
XXXXXXXXX
XXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
230
|
WEBERSTOWN,
MALL AT
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
000
|
XXXXXXX
XXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
000
|
XXXXXXXX
XXXXXX XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
288
|
GALLERIA
@ TYLER
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
304
|
ROSEDALE
CENTER
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
000
|
XXXXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
358
|
ONTARIO
XXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
000
|
XXXXXXXX
XXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
365
|
SANTA
XXXXX
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
368
|
MEMORIAL
CITY
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
371
|
THE
SHOPS AT TANFORAN
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
000
|
XXX
Xxxxxx Xxxx
|
XXXXXXXXXX
|
XXXXXXXXXX
|
Xxxxx
Fargo Bank
|
||||||
379
|
|
Miracle
Mile Shops
|
|
XXXXXXXXXX
|
|
XXXXXXXXXX
|
|
Xxxxx
Fargo Bank
|
|
Schedules
19
Schedule
6.01(v)
INTELLECTUAL
PROPERTY
A.
Intellectual Property of FOH Holdings, Inc. and Subsidiaries
Schedules
20
FREDERICK’S
OF HOLLYWOOD, INC.
TRADEMARK
SCHEDULE
JANUARY
2008
TRADEMARK
|
SERIAL
NO./
REG. NO.
|
DATE FILED/
ISSUED
|
DATE
EXPIRES
|
INT’L
CLASS(ES)
|
DATE OF
FIRST USE
|
STATEMENT
OF USE
DUE/FILED
|
OWNER
|
STATUS
|
||||||||
U.S. TRADEMARKS
|
||||||||||||||||
AN
INTIMATE EXPERIENCE
|
Reg.
No.
1,502,644
|
Issued
8/30/1988
|
8/30/08
|
42
|
8/10/1987
|
Filed
|
FOH
|
Renewal
due by 8/30/08.
|
||||||||
F
(Stylized)
![]() |
SN
78/602,617
|
Filed
4/06/2005
|
3,
6, 8, 9, 11, 14, 16, 18, 20, 21, 22, 24, 25, 28, 30
|
ITU
|
FOH
|
Office
Action Response filed 5/2/06. Further action from USPTO issued
6/4/06. Response filed 11/27/06. Response succeeded.
Examiner’s Amendment issued by USPTO. Notice of Publication
rec’d. Xxxx published 1/16/07.
Opposition
filed by The Program Corp. Coexistence agreement negotiated and finalized
11/07. Registration will issue in 2008.
|
||||||||||
F
(Stylized)
![]() |
Reg.
No.
3,076,474
|
Issued
4/4/2006
|
4/4/16
|
3,
4, 25, 35
|
6/2000
6/2000
|
Due
4/4/11-4/4/12
|
FOH
|
Affidavit
of Continued Use & Incontestability due between
4/4/11-4/4/12.
Renewal
due by 4/4/16.
|
||||||||
FREDERICK’S
|
Reg.
No.
1,055,867
|
Issued
1/11/1977
|
1/11/17
|
3
|
3/1946
|
Filed
|
FOH
|
Renewal
and Continued Use Decl. filed 1/10/07. Renewal documentation filed and
accepted by PTO. Registration renewed for 10
years.
|
||||||||
FREDERICK’S
|
Reg.
No.
1,058,525
|
Issued
2/8/1977
|
2/8/17
|
25
|
3/1946
|
Filed
|
FOH
|
Renewal
due by 2/8/07. Renewal documentation filed and accepted by PTO.
Registration renewed for 10 years.
|
||||||||
FREDERICK’S
|
Reg.
No.
1,052,485
|
Issued
11/9/1976
|
11/9/16
|
26
|
3/1946
|
Filed
|
FOH
|
Renewal
due by 11/9/06. Renewal documentation filed and accepted by
PTO. Registration renewed for 10 years.
|
||||||||
FREDERICK’S
|
Reg.
No.
1,051,548
|
Issued
10/26/1976
|
10/26/16
|
42
|
1946
|
Filed
|
FOH
|
Renewal
documentation filed and accepted by PTO. Notice of Acceptance received.
Registration renewed for 10 years.
|
||||||||
FREDERICK’S
(Stylized)
![]() |
Reg.
No.
664,746
|
Issued
7/22/1958
|
7/22/08
|
25
|
1946
|
Filed
|
FOH
|
Renewal
due by 7/22/08.
|
||||||||
FREDERICK’S
OF HOLLYWOOD
|
Reg.
No.
1,674,329
|
Issued
2/4/1992
|
2/4/12
|
25
|
1946
|
Filed
|
FOH
|
Renewal
due by
2/4/12.
|
Schedules
21
FREDERICK’S
OF HOLLYWOOD
(&
Design)
![]() |
Reg.
No.
2,587,042
|
Issued
7/2/2002
|
7/2/12
|
25,
26, 35
|
2/13/1998
|
Due
7/2/07-7/2/08
|
FOH
|
Affidavit
of Continued Use & Incontestability due between
7/2/07-7/2/08.
Renewal
due by 7/2/12.
|
|
FREDERICK’S
OF HOLLYWOOD (Stylized)
![]() |
SN
76/558,775
|
Filed
11/10/2003
|
0,
0, 00, 00, 00
|
XXX
|
XXX
|
Xxxxxxxxx
of Use filed; registration will issue in 2008.
|
|||
FREDERICK’S
OF HOLLYWOOD (Stylized)
![]() |
Reg.
No.
2,932,489
|
Issued
3/15/2005
|
3/15/15
|
3,
9, 25, 35
|
7/1999
|
Due
3/15/10-3/15/11
|
FOH
|
Affidavit
of Continued Use & Incontestability due between
3/15/10-3/15/11.
Renewal
due by 3/15/15.
|
|
FREDERICK’S
OF HOLLYWOOD
|
Reg.
No.
1,627,771
|
Issued
12/11/1990
|
12/11/10
|
42
|
3/1946
|
Filed
|
FOH
|
Renewal
due by 12/11/10.
|
|
XXXXXXXXXX.
COM
|
Reg.
No.
2,403,596
|
Issued
11/14/2000
|
11/14/10
|
35
|
8/11/1995
|
Filed
|
FOH
|
Affidavit
of Continued Use & Incontestability filed
Renewal
due by 11/14/10.
|
|
GET
CHEEKY & Design
![]() |
SN
76/558777
|
Filed
|
25
|
7/2002
|
FOH
|
Approved
for publication 1/2/08..
|
|||
PREMIERE
LINE BY FREDERICK’S OF HOLLYWOOD
|
SN
77/167,006
|
Filed
4/26/07
|
25
|
12/1/06
12/1/06
|
FOH
|
Application
filed.
|
|||
THE
HOLLYWOOD EXXTREME CLEAVAGE & Design
![]() |
Reg.
No. 3,164,722
|
Issued
10/31/06
|
10/31/16
|
25
|
9/2003
9/2003
|
11/1/11
/
10/31/12
|
FOH
|
Affidavit
of Continued Use & Incontestability due between 11/1/11 –
10/31/12.
Renewal
due by 10/31/16.
|
|
THE
ORIGINAL SEX SYMBOL
|
Reg.
No. 3,156,626
|
Issued
10/17/06
|
10/17/16
|
35
|
6/2003
6/2003
|
10/18/11
10/17/12
|
FOH
|
Affidavit
of Continued Use & Incontestability due between
10/18/11-10/17/12.Renewal due by 10/17/16.
|
|
STATE
(CA)
|
|||||||||
FREDERICK’S
|
Reg.
No.
CA
4368
|
Issued
4/30/1976
|
4/30/2016
|
35
|
3/1946
|
N/A
|
FOH
|
Renewal
filed and accepted. Next renewal due by 4/30/16.
|
|
INTERNATIONAL
TRADEMARKS
|
|||||||||
AUSTRALIA
|
|||||||||
FREDERICK’S
OF HOLLYWOOD (Graphic)
![]() |
Prefiling
No. 03502129
Reg.
No.
1111916
|
Issued
4/27/07
|
5/4/16
|
25,
35
|
FOH
|
Registration
issued
4/27/07.
|
Schedules
22
CANADA
|
||||||||
FREDERICK’S
(Stylized)
![]() |
Reg.
No.
231,551
|
Issued
1/19/1979
|
1/19/09
|
FOH
|
Renewal
due by 1/19/09.
|
|||
FREDERICK’S
|
Reg.
No.
259,265
|
Issued
5/29/1981
|
5/29/11
|
FOH
|
Renewal
due by 5/29/11.
|
|||
FREDERICK’S
OF HOLLYWOOD
|
Reg.
No.
425,958
|
Issued
4/15/1994
|
4/15/09
|
FOH
|
Renewal
due by 4/15/09.
|
|||
CHINA
|
||||||||
FREDERICK’S
OF HOLLYWOOD (Graphic)
![]() |
Filing
No.
5342300
|
5/11/2006
|
25
|
FOH
|
Application
filed. Notification of Receipt for Trademark Application
received.
|
|||
FREDERICK’S
OF HOLLYWOOD (Graphic)
![]() |
Filing
No.
5342299
|
5/11/2006
|
35
|
FOH
|
Application
filed. Notification of Receipt for Trademark Application
received.
|
|||
EUROPEAN
UNION
|
||||||||
FREDERICK’S
OF HOLLYWOOD (Graphic)
![]() |
Reg.
No.
005058979
|
4/17/2007
|
5/4/2016
|
3,
25, 35
|
FOH
|
Registration
issued 4/17/07.
|
||
FRANCE
|
||||||||
FREDERICK’S
|
Reg.
No.
1490760
|
Issued
9/27/1968
|
9/17/08
|
25
|
FOH
|
Renewal
due by 9/17/08.
|
||
TAIWAN
|
||||||||
FREDERICK’S
OF HOLLYWOOD
![]() |
Reg.
No.
533294
|
Issued
9/1/1991
|
9/1/11
|
FOH
|
Renewal
due by 9/1/11
|
|||
FREDERICK’S
OF HOLLYWOOD
![]() |
Reg.
No.
536453
|
Issued
10/1/1991
|
10/1/11
|
FOH
|
Renewal
due by
10/1/11
|
Schedules
23
Copyrights
1.
|
CLASS:
|
TX
(Textual Works)
|
|
RETRIEVAL
CODE:
|
B
(Monographic Works of a Non-dramatic Literary Nature)
|
||
STATUS:
|
Registered
|
||
REGISTRATION
DATE:
|
March
26, 1991
|
||
REGISTRATION
NUMBER:
|
TX-3-055-731
|
||
CREATED:
|
1991
|
||
PUBLICATION
DATE:
|
February
25, 0000
|
||
XXX
XXXXXX:
|
New
textual and pictorial material and compilation of previous publication
material.
|
||
NOTES:
|
Catalog
|
||
PREVIOUS
REGISTRATION:
|
Prev.
reg.
|
||
2.
|
CLASS:
|
TX
(Textual Works)
|
|
RETRIEVAL
CODE:
|
B
(Monographic Works of a Non-dramatic Literary Nature)
|
||
STATUS:
|
Registered
|
||
REGISTRATION
DATE:
|
May
29, 1987
|
||
REGISTRATION
NUMBER:
|
TX-2-083-789
|
||
PUBLICATION
DATE:
|
December
1, 0000
|
||
XXX
XXXXXX:
|
compilation
and additions
|
||
REGISTRATION
DEPOSIT:
|
61
p.
|
||
3.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
May
20, 1991
|
||
REGISTRATION
NUMBER:
|
TX-3-068-104
|
||
ISSUE:
|
Vol.
59, Issue No. 334
|
||
PUBLICATION
DATE:
|
June
6, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242.
|
||
MISCELLANEOUS:
|
Issue
ti.: Summer fashion sale.
|
||
4.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
April
15, 1991
|
||
REGISTRATION
NUMBER:
|
TX-3-083-055
|
||
ISSUE:
|
Vol.
No. 73, issue no. 362
|
||
PUBLICATION
DATE:
|
March
25, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood.
|
||
NOTES:
|
Frequency
unknown. Subtitle on later issues: An Intimate
Experience. Description based on: Vol. 34, issue no.
242.
|
||
5.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
January
27, 1992
|
||
REGISTRATION
NUMBER:
|
TX-3-229-421
|
||
ISSUE:
|
Vol.
76, issue no. 369
|
||
PUBLICATION
DATE:
|
November
25, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Subtitle on later issues: An Intimate
Experience. Description based on: Vol. 34, issue no.
242
|
Schedules
24
6.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
July
24, 1992
|
||
REGISTRATION
NUMBER:
|
TX-3-353-063
|
||
ISSUE:
|
Vol.
79, issue no. 373
|
||
PUBLICATION
DATE:
|
March
30, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation.
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
varies. Subtitle on later issues: An Intimate Experience
Description based on: Vol. 34, issue no. 242
|
||
7.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
December
14, 1992
|
||
REGISTRATION
NUMBER:
|
TX-3-445-761
|
||
ISSUE:
|
Vol.
81, issue no. 378
|
||
PUBLICATION
DATE:
|
August
10, 1992
|
||
NEW
MATTER:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
varies. Subtitle on later issues: An Intimate Experience
Description based on: Vol. 34, issue no. 242
|
||
8.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
February
9, 1993
|
||
REGISTRATION
NUMBER:
|
TX-3-468-373
|
||
ISSUE:
|
Vol.
81, issue no. 379
|
||
PUBLICATION
DATE:
|
September
14, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood: Frederick’s
Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
varies. Subtitle on later issues: An Intimate
Experience. Description based on: Vol. 34, issue no.
242
|
||
9.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
January
11, 1993
|
||
REGISTRATION
NUMBER:
|
TX-3-458-894
|
||
ISSUE:
|
Vol.
82, no. 380
|
||
PUBLICATION
DATE:
|
October
29; 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
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IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
varies. Subtitle on later issues: An. Intimate Experience
Description based on: Vol. 34, issue no. 242
|
||
10.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
March
22, 1993
|
||
REGISTRATION
NUMBER:
|
TX-3-504-897
|
||
ISSUE:
|
Vol.
83, no. 381
|
||
PUBLICATION
DATE:
|
February
25, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
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IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162.0401
= Frets
|
||
NOTES:
|
Frequency
varies. Subtitle on later issues: An Intimate
Experience. Description based on: Vol. 34, issue no.
242
|
Schedules
25
11.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
April
23, 1993
|
||
REGISTRATION
NUMBER:
|
TX-3-589-965
|
||
ISSUE:
|
Vol.
84; issue no. 383
|
||
PUBLICATION
DATE:
|
April
5, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUBLICATION
DATE:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
varies. Subtitle on later issues: An Intimate
Experience. Description based on: Vol. 34, issue no.
242
|
||
MISCELLANEOUS:
|
(C.O.
corres.)
|
||
12.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
September
8, 1993
|
||
REGISTRATION
NUMBER:
|
TX-M40-936
|
||
ISSUE:
|
Vol.
84, issue no. 384
|
||
PUBLICATION
DATE:
|
May
10, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
varies. Subtitle on later issues: An Intimate
Experience. Description based on: Vol. 34, issue no.
242
|
||
13.
|
CLASS:
|
TX
(Textual Works)
|
|
RETRIEVAL
CODE:
|
B
(Monographic Works of a Non-dramatic Literary Nature)
|
||
STATUS:
|
Registered
|
||
REGISTRATION
DATE:
|
August
9, 1990
|
||
REGISTRATION
NUMBER:
|
TX-2-894-818
|
||
PUBLICATION
DATE:
|
November
27, 1989
|
||
NOTES:
|
Catalog
|
||
14.
|
CLASS:
|
TX
(Textual Works).
|
|
RETRIEVAL
CODE:
|
B
(Monographic Works of a Non-dramatic Literary Nature)
|
||
STATUS:
|
Registered
|
||
REGISTRATION
DATE:
|
August
9, 1990
|
||
REGISTRATION
NUMBER:
|
TX-2-894-819
|
||
CREATED:
|
1989
|
||
PUBLICATION
DATE:
|
June
4, 1990
|
||
NOTES:
|
Catalog
|
||
15.
|
CLASS:
|
TX
(Textual Works)
|
|
RETRIEVAL
CODE:
|
B
(Monographic Works of a Non-dramatic Literary Nature)
|
||
STATUS:
|
Registered
|
||
REGISTRATION
DATE:
|
August
9, 1990
|
||
REGISTRATION
NUMBER:
|
TX-2-894-820
|
||
PUBLICATION
DATE:
|
July
9, 1990
|
||
NOTES:
|
Catalog
|
||
16.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
RETRIEVAL
CODE:
|
B
(Monographic Works of a Non-dramatic Literary Nature)
|
||
STATUS:
|
Registered
|
||
REGISTRATION
DATE:
|
December
17, 1990
|
||
REGISTRATION
NUMBER:
|
TX-2-973-520
|
||
PUBLICATION
DATE:
|
November
26, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
NOTES:
|
Catalog
|
Schedules
26
17.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
June
1, 1987
|
||
REGISTRATION
NUMBER:
|
TX-2-095-037
|
||
ISSUE:
|
Vol.
51, issue no. 317
|
||
PUBLICATION
DATE:
|
August
11, 1986
|
||
NEW
MATTER:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Spectacular! 40th anniversary of beauty and
fashion
|
||
18.
|
APPLICATION
TITLE:
|
Summer
fashion sale.
|
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
||
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
March
7, 1988
|
||
REGISTRATION
NUMBER:
|
TX-2-277-414
|
||
ISSUE:
|
Vol.
no. 54, issue no. 325
|
||
PUBLICATION
DATE:
|
July
13, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
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IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Version
no. 7500
|
||
19.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
March
7, 1988
|
||
REGISTRATION
NUMBER:
|
TX-2-282-497
|
||
ISSUE:
|
Vol.
no. 55, issue no. 326
|
||
PUBLICATION
DATE:
|
August
10, 1987
|
||
NEW
MATTER:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Version
no. 7600. Issue ti.: Frederick’s of Hollywood, an Intimate
Experience.
|
||
20.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
August
18, 1988
|
||
REGISTRATION
NUMBER:
|
TX-2-374-563
|
||
ISSUE:
|
Vol.
no. 51, issue no. 318
|
||
PUBLICATION
DATE:
|
September
15;1986
|
||
NEW
MATTER:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Version
no. 6700. Issue ti.: Christmas
magic.
|
Schedules
27
21.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
September
9, 1988
|
||
REGISTRATION
NUMBER:
|
TX-2-364-387
|
||
ISSUE:
|
Vol.
no. 51, issue no. 319
|
||
PUBLICATION
DATE:
|
October
20, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Version
no. 6800. Issue ti.: Christmas as special as you!
|
||
22.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
March
29, 1989
|
||
REGISTRATION
NUMBER:
|
TX-2-525-172
|
||
ISSUE:
|
Vol.
60, issue no. 338
|
||
PUBLICATION
DATE:
|
October
17, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Version
no. 8800. Issue ti.: Happy holidays!
|
||
23.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
March
29, 1989
|
||
REGISTRATION
NUMBER:
|
TX-2-675-429,
TX-2-533-225
|
||
ISSUE:
|
Vol.
61, issue no. 339
|
||
PUBLICATION
DATE:
|
November
28, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood: Frederick’s
of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Version
no. 9100. Issue ti.: Sale.
|
||
24.
|
APPLICATION
TITLE:
|
Happy
Holidays!
|
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
||
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
October
31, 1989
|
||
REGISTRATION
NUMBER:
|
TX-2-675-597
|
||
ISSUE:
|
Vol.
no. 60, issue no. 338
|
||
PUBLICATION
DATE:
|
October
17, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
25.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
September
22, 1988
|
||
REGISTRATION
NUMBER:
|
TX-2-759-322
|
||
ISSUE:
|
Vol.
60, no. 337
|
||
PUBLICATION
DATE:
|
September
12, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no.
242
|
Schedules
28
26.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
October
18, 1989
|
||
REGISTRATION
NUMBER:
|
TX-2-727-721
|
||
ISSUE:
|
Vol.
62, no. 340
|
||
PUBLICATION
DATE:
|
January
16, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34; issue no. 242
|
||
MISCELLANEOUS:
|
(C.
O. corres.)
|
||
27.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
August
9, 1990
|
||
REGISTRATION
NUMBER:
|
TX-2-883-506
|
||
ISSUE:
|
Vol.
65, no. 348
|
||
PUBLICATION
DATE:
|
October
16, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34; issue no. 242
|
||
28.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
April
11, 1978
|
||
REGISTRATION
NUMBER:
|
TX-48-091
|
||
ISSUE:
|
Vol.
32, issue no. 217
|
||
PUBLICATION
DATE:
|
December
5, 1977
|
||
IN
NOTICE YEAR:
|
1978
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32; issue no. 217, December 5,
1977
|
||
MISCELLANEOUS:
|
Issue
ti.: Save.
|
||
29.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
July
24,1978
|
||
REGISTRATION
NUMBER:
|
TX-72-624
|
||
ISSUE:
|
Vol.
32, no. 218
|
||
PUBLICATION
DATE:
|
January
20, 1978
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no. 217, December 5,
1977.
|
||
MISCELLANEOUS:
|
Issue
ti.: The Label makes the difference.
|
||
30.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
December
4, 1978
|
||
REGISTRATION
NUMBER:
|
TX-205-088
|
||
ISSUE:
|
Vol.
32, issue no. 226
|
||
PUBLICATION
DATE:
|
September
15, 1978
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no. 217, December 5,
1977.
|
||
MISCELLANEOUS:
|
Issue
ti.: Be wildly romantic!!!
|
Schedules
29
31.
|
APPLICATION
TITLE:
|
Frederick’s
on sale.
|
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
||
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
March
7, 1979
|
||
REGISTRATION
NUMBER:
|
TX-203-347
|
||
ISSUE:
|
Vol.
33, no. 228
|
||
PUBLICATION
DATE:
|
December
5, 0000
|
||
XXX
XXXXXX:
|
editorial
comment and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0016-0520
= Freedom at issue.
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no. 217, December 5,
1977.
|
||
32.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
March
8, 1979
|
||
REGISTRATION
NUMBER:
|
TX-204-564
|
||
ISSUE:
|
Vol.
33, no. 229
|
||
PUBLICATION
DATE:
|
January
18, 0000
|
||
XXX
XXXXXX:
|
editorial
comment and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0016-0520
= Freedom at issue.
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no. 217, December 5,
1977.
|
||
33.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
November
1, 1979
|
||
REGISTRATION
NUMBER:
|
TX-356-662
|
||
ISSUE:
|
Vol.
33, no. 233
|
||
PUBLICATION
DATE:
|
June
6, 1979
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no. 217, December 5,
1977.
|
||
MISCELLANEOUS:
|
Issue
ti.: Better buy now! Save now, save now
|
||
34.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
October
29, 1979
|
||
REGISTRATION
NUMBER:
|
TX-354-315
|
||
ISSUE:
|
Vol.
33, issue no. 235
|
||
PUBLICATION
DATE:
|
August
1, 0000
|
||
XXX
XXXXXX:
|
editorial
comment and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0016-0520
= Freedom at issue.
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no. 217, December 5,
1977.
|
||
MISCELLANEOUS:
|
Issue
ti.: How to get your man and keep him!
|
||
35.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
July
15, 1983
|
||
REGISTRATION
NUMBER:
|
TX-1-152-466
|
||
ISSUE:
|
Vol.
36, issue no. 266
|
||
PUBLICATION
DATE:
|
additions
and compilations
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Sale, sale, sale, buy now!: It’s worth every
thrill.
|
Schedules
30
36.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
September
29, 1983
|
||
REGISTRATION
NUMBER:
|
TX-1-237-999
|
||
ISSUE:
|
Vol.
40, issue no. 279
|
||
PUBLICATION
DATE:
|
September
15, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Fall fantasies for you and your lover. (C. O.
corres.)
|
||
37.
|
APPLICATION
TITLE:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
July
2, 1984
|
||
REGISTRATION
NUMBER:
|
TX-1-380-803
|
||
ISSUE:
|
Vol.
38, issue no. 276
|
||
PUBLICATION
DATE:
|
June
10, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Sultry summer savings!
|
||
38.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
December
2, 1985
|
||
REGISTRATION
NUMBER:
|
TX-1-706-524
|
||
ISSUE:
|
Vol.
38, issue no. 291
|
||
PUBLICATION
DATE:
|
September
17, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: The Glamour of Hollywood holidays is yours! : catalog no.
4601.
|
||
39.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
December
2, 1985
|
||
REGISTRATION
NUMBER:
|
TX-1-733-066
|
||
ISSUE:
|
Vol.
40, issue no. 298
|
||
PUBLICATION
DATE:
|
January
18, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Sizzling sexy.
|
Schedules
31
40.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
December
2, 1985
|
||
REGISTRATION
NUMBER:
|
TX-1-713-998
|
||
ISSUE:
|
Vol.
42, issue no. 301
|
||
PUBLICATION
DATE:
|
June
10, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Sale-a-brate : catalog no. 5401.
|
||
41.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
May
30, 1986
|
||
REGISTRATION
NUMBER:
|
TX-1-846-894
|
||
ISSUE:
|
Vol.
47, no. 310
|
||
PUBLICATION
DATE:
|
December
9, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
42.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
May
30;1986
|
||
REGISTRATION
NUMBER:
|
TX-1-838-969
|
||
ISSUE:
|
Vol.
48, issue no. 311
|
||
PUBLICATION
DATE:
|
January
20, 0000
|
||
XXX
XXXXXX:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242 Issue
ti.: The Best kept secrets of sex appeal.
|
||
43.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
December
4, 1978
|
||
REGISTRATION
NUMBER:
|
TX-485-679
|
||
ISSUE:
|
Vol.
32, issue no. 224
|
||
PUBLICATION
DATE:
|
August
1, 1978
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no. 217, December 5,
1977.
|
||
MISCELLANEOUS:
|
Issue
ti.: Action! Take, love! thrills! ecstasy! (C.O.
corres.)
|
||
44.
|
APPLICATION
TITLE:
|
Break
out .. . the news . now!
|
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
||
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
October
5, 1979
|
||
REGISTRATION
NUMBER:
|
TX-396-541
|
||
ISSUE:
|
Vol.
33, issue no. 231
|
||
ISSUE
DATE:
|
July
10, 1979
|
||
PUBLICATION
DATE:
|
April
11, 0000
|
||
XXX
XXXXXX:
|
photos
and artwork
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no.
217, December 5, 1977.
|
||
MISCELLANEOUS:
|
(C.O.
corres.)
|
Schedules
32
45.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
November
30;1979
|
||
REGISTRATION
NUMBER:
|
TX-419-642
|
||
ISSUE:
|
Vol.
33, issue no. 237
|
||
PUBLICATION
DATE:
|
September
21, 0000
|
||
XXX
XXXXXX:
|
photos
and artwork
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 32, issue no. 217, December
5, 1977.
|
||
MISCELLANEOUS:
|
Issue
ti.: Frederick’s special report, how to do it for the
holidays. (C.O. corres.)
|
||
46.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
July
16, 1980
|
||
REGISTRATION
NUMBER:
|
TX-509-248
|
||
ISSUE:
|
Vol.
34, issue no. 239
|
||
PUBLICATION
DATE:
|
December
5, 1979
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood: Frederick’s
of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Better buy now! : Sale, more for less.
|
||
47.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
July
18, 1980
|
||
REGISTRATION
NUMBER:
|
TX-511-877
|
||
ISSUE:
|
Vol.
34, issue no. 240
|
||
PUBLICATION
DATE:
|
January
21, 0000
|
||
XXX
XXXXXX:
|
photos
and artwork
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood: Frederick’s
of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Summer love : how to get it by spring.
|
||
48.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
December
29, 1980
|
||
REGISTRATION
NUMBER:
|
TX-646-970
|
||
ISSUE:
|
Vol.
34, issue no. 248
|
||
PUBLICATION
DATE:
|
September
23, 1980
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Follow me, surrender to Frederick’s.
|
||
49.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
March
5, 1981
|
||
REGISTRATION
NUMBER:
|
TX-641-660
|
||
ISSUE:
|
Vol.
35, issue no. 251
|
||
PUBLICATION
DATE:
|
January
23, 1981
|
||
NEW
MATTER:
|
photos
and artwork
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: I’ve got my man! You deserve
yours!
|
Schedules
33
50.
|
CLASS:
|
TX
(Textual Works)
|
|
REGISTRATION
DATE:
|
June
8, 1981
|
||
REGISTRATION
NUMBER:
|
TX-707-738
|
||
ISSUE:
|
Vol.
35, issue no. 253
|
||
PUBLICATION
DATE:
|
June
5, 1981
|
||
NEW
MATTER:
|
photos
and artwork
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no.
242
|
||
MISCELLANEOUS:
|
Issue
ti.: Show off now!
|
||
51.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
October
22, 1981
|
||
REGISTRATION
NUMBER:
|
TX-852-256
|
||
ISSUE:
|
Vol.
35, issue no. 255
|
||
PUBLICATION
DATE:
|
June
5, 1981
|
||
NEW
MATTER:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
(C.O.
corres.)
|
||
52.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
March
17, 1982
|
||
REGISTRATION
NUMBER:
|
TX-895-688
|
||
ISSUE:
|
Vol.
35, issue no. 257
|
||
PUBLICATION
DATE:
|
August
1, 1981
|
||
NEW
MATTER:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no.
242
|
||
MISCELLANEOUS:
|
Issue
ti.: Just imagine, a new sexier you! (C.O. corres.)
|
||
53.
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood, employer for
hire.
|
|
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
March
17, 1982
|
||
REGISTRATION
NUMBER:
|
TX-872-313
|
||
ISSUE:
|
Vol.
35, issue no. 259
|
||
PUBLICATION
DATE:
|
September
15, 1981
|
||
NEW
MATTER:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
IMPRINT:
|
Hollywood:
Frederick’s of Hollywood
|
||
ISSN
NUMBER:
|
0162-0401
= Frets
|
||
NOTES:
|
Frequency
unknown. Description based on: Vol. 34, issue no. 242
|
||
MISCELLANEOUS:
|
Issue
ti.: Don’t miss it.
|
||
54.
|
PARTY
OF THE FIRST:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood.
|
|
PARTY
OF THE SECOND:
|
Crédit
Agricole Indosuez
|
||
DOCUMENT
TYPE:
|
Assignment
of Copyright
|
||
REGISTRATION
DATE:
|
1990
|
||
EXECUTED:
|
September
29, 1997
|
||
RECORDED
DATE:
|
October
9, 1997
|
||
NOTES:
|
Frederick’s
of Hollywood: grab bag special sale (catalog) and 131 other titles.
Subsidiary intellectual property security agreement.
|
||
MICROFILM:
|
V003405
P125
|
Schedules
34
55.
|
APPLICATION
TIME:
|
Intimate
details by Frederick’s of Hollywood.
|
|
APPLICATION
AUTHOR:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood.
|
||
CLASS:
|
TX
(Textual Works)
|
||
REGISTRATION
DATE:
|
October
24, 1990
|
||
ISSUE:
|
Vol.
1, issue no. 1
|
||
PUBLICATION
DATE:
|
September
19, 1990
|
||
NEW
MATTER:
|
additions
and compilation
|
||
PUB
FREQUENCY:
|
Other
|
||
NOTES:
|
Frequency
unknown.
|
||
56.
|
OWNER:
|
Private
Moments, Inc.
|
|
APPLICATION
AUTHOR:
|
New
textual and pictorial material; Private Moments, employer for
hire.
|
||
CLASS:
|
TX
(Textual Works)
|
||
RETRIEVAL
CODE:
|
B
(Monographic Works of a Non-dramatic Literary Nature)
|
||
STATUS:
|
Registered
|
||
REGISTRATION
DATE:
|
September
23, 1982
|
||
REGISTRATION
NUMBER:
|
TX-1-085-885
|
||
PUBLICATION
DATE:
|
September
17, 1982
|
||
NEW
MATTER:
|
“new
textual and pictorial material.”
|
||
REGISTRATION
DEPOSIT:
|
23
p.
|
||
IMPRINT:
|
Los
Angeles : Private Moments, c1982.
|
||
MISCELLANEOUS:
|
C.O.
corres.
|
||
57.
|
CLASS:
|
TX
(Textual Works)
|
|
RETRIEVAL
CODE:
|
B
(Monographic Works of a Non-dramatic Literary Nature)
|
||
STATUS:
|
Registered
|
||
REGISTRATION
DATE:
|
June
1, 1987
|
||
PUBLICATION
DATE:
|
February
23, 1987
|
||
NEW
MATTER:
|
additions
and compilation
|
||
58.
|
PARTY
OF THE FIRST:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood.
|
|
PARTY
OF THE SECOND:
|
Hollywood
Mail Order Corporation d.b.a. Frederick’s of Hollywood
|
||
DOCUMENT
TYPE:
|
Assignment
of Copyright
|
||
REGISTRATION
DATE:
|
1987
|
||
EXECUTED:
|
September
29, 1997
|
||
RECORDED
DATE:
|
October
9, 1997
|
||
NOTES:
|
Frederick’s
of Hollywood: grab bag special sale (catalog) and 131 other
titles. Subsidiary intellectual property security
agreement.
|
||
MICROFILM:
|
V003405
P125
|
Schedules
35
Domain
Names
Domain
Name
|
Renewal
Date
|
|
XXXXXX.XXX
|
5/16/2009
|
|
XXX-XXX.XXX
|
5/17/2009
|
|
XXXXXX.XXXX
|
5/17/2009
|
|
XXXXXX.XXXX
|
5/17/2009
|
|
XXXXXX.XXX
|
5/17/2009
|
|
XXXXXX.XXX
|
5/17/2009
|
|
XXXXXX.XX
|
5/16/2009
|
|
XXXXXXXXXXXXXXXXXXXXXXXXXXXX.XXX
|
1/9/2009
|
|
XXXXXXXXXXXXXXXXXXX.XXX
|
1/9/2010
|
|
XXXXXXXXXXXXXXXXXXXXX.XXX
|
12/6/2008
|
|
XXXXXXXXXXXXXXXXXXXXX.XXX
|
12/6/2008
|
|
XXXXXXXXXXXXXXXXXXXXXXXXXXXXX.XXX
|
5/17/2009
|
|
XXXXXXXXXXXXXXXXX.XXX
|
8/29/2009
|
|
XXXXXXXXXXXXXXXXXX.XXX
|
9/10/2009
|
|
XXXXXXXXXXXXXXXXX.XXX
|
9/10/2009
|
|
XXXXXXXXXXXXXXX.XXX
|
2/4/2009
|
|
XXXXXXXXXXXXXXXXXXXX.XXX
|
9/10/2009
|
|
XXXXXXXXXXXXXXXXX.XXX
|
9/10/2009
|
|
XXXXXXXXXXXXXXXXXXXX.XXX
|
5/11/2009
|
|
XXXXXXXXX-XX-XXXXXXXXX.XXX
|
12/27/2008
|
|
XXXXXXXXXXXXXXXXXXXX.XXX
|
12/27/2008
|
|
XXXXXXXXXXXXXXXXXXXXXXXXXXXX.XXX
|
9/10/2009
|
|
XXXXXXXXXXXXXXXXXXX.XXX
|
2/4/2009
|
|
XXXXXXXXXXXXXXXXXXXXXXXX.XXX
|
11/14/2008
|
|
XXXXXXXXXXXXXXXXXXXXXX.XXX
|
8/22/2008
|
|
XXXXXXXXXXXXXXXXXXXXX.XXX
|
3/27/2010
|
|
XXXXXXXXXXXXXXXXXXXXX.XXX
|
8/22/2008
|
|
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.XXX
|
8/22/2008
|
|
XXXXXXXXXXXXX.XXX
|
4/30/2009
|
|
XXXXXXXXXXXXXXXX.XXX
|
8/22/2008
|
|
XXXXXXXXXXXXX.XXX
|
2/6/2009
|
|
XXXXXXXXXXXX.XXX
|
2/6/2009
|
|
xxxxxxxxxxxxxxxxxxxxx.xxx
|
10/22/2008
|
|
Xxxxxxxx.xxx
|
4/4/20012
|
|
xxxxxxxxx.xxx
|
3/1/2012
|
|
xxxxxxxxxxxxxxx.xxx
|
4/9/2012
|
|
xxxxxxxxxxxxxxxx.xxx
|
4/9/2012
|
|
xxxxxxxxxxxx.xxx
|
8/30/2010
|
|
Host
Names (at Data Return)
|
No
expiration
|
|
Xxxx.xxxxxxxxxx.xxx
|
||
xxxxxxxx.xxxxxxxxxx.xxx
|
||
xxxxxxx.xxxxxxxxxx.xxx
|
||
xxxxxxxx.xxxxxxxxxx.xxx
|
||
xxxxxx.xxxxxxxxxx.xxx
|
||
xxxxxx.xxxxxxxxxx.xxx
|
Schedules
36
B. Intellectual Property of
Frederick’s of Hollywood Group Inc.
Trademark
|
Database
|
Status
|
Class
|
Owner Name
|
||||
KNICKERS
BY CINEMA ETOILE
|
U.S.
Federal
|
PUBLISHED
(PENDING)
|
25
|
MOVIE
STAR, INC.
|
||||
CINEMA
STUDIO
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
NIGHT
MANEUVERS
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
THE
BOUDOIR COLLECTION
|
U.S.
Federal
|
PUBLISHED
(PENDING)
Intent
to Use
|
25
|
MOVIE
STAR, INC.
|
||||
LIQUID
SATIN
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
STARDUST
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
STARCREST
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
M.T.B
MEANT TO BE
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
SEDUCTIVE
WEAR BY CINEMA ETOILE
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
SEDUCTIVE
WEAR
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
COMFY
COZY
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
NIGHT
MAGIC
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
PRIVATE
PROPERTY
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
HEATHER
NICOLE
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
CINEJOUR
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
REAL
SHAPES
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
COURT
STREET
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
STARRY
NITES
|
U.S.
Federal
|
REGISTERED
|
25
|
MOVIE
STAR, INC.
|
||||
PAM
UNDIES
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
CINEMA
ETOILE
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
MOVIE
STAR
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
SWEET-TOPS
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
MOVIE
STAR
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
CUDDL'FORM
|
U.S.
Federal
|
RENEWED
(REGISTERED)
|
25
|
MOVIE
STAR, INC.
|
||||
MOVIE
STAR
|
U.S.
State
|
RENEWED
PR
|
25
|
MOVIE
STAR
INC
|
Schedules
37
Image | ![]() |
|
Trademark
|
KNICKERS
BY CINEMA ETOILE
|
|
Full
Text Translation
|
THE
ENGLISH TRANSLATION OF THE FRENCH WORDING "CINEMA ETOILE" IS "MOVIE
STAR."
|
|
Trademark
Translation
|
MOVIE
STAR
|
|
Design
Type
|
BLOCK
LETTERS
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
77122917
|
|
Status
|
REGISTERED
(Registration Number: 3,373,701)
|
|
Status
According to PTO
|
(819)
SU - REGISTRATION REVIEW COMPLETE
|
|
USPTO
Status Date
|
14-DEC-2007
|
|
Application
Date
|
06-MAR-2007
|
|
Published
|
31-JUL-2007
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) WOMEN'S
PANTIES
|
|
International
Class
|
International Class:
25
First Used:
25-SEP-2007
In Commerce:
25-SEP-2007
|
|
Owner
at Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
1115
BROADWAY, 11TH FLOOR
NEW
YORK, NEW YORK 10010
|
|
Other
U.S. Registrations
|
0690969,
1209847, 2228727 AND OTHERS
|
|
Reference
Number
|
10623
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
Domestic
Representative
|
HOWARD
N. ARONSON
|
|
Disclaims
|
"KNICKERS"
|
|
History
|
14-DEC-2007
LAW OFFICE REGISTRATION REVIEW COMPLETED
05-DEC-2007
ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED
30-NOV-2007
STATEMENT OF USE PROCESSING COMPLETE
15-NOV-2007
USE AMENDMENT FILED
15-NOV-2007
TEAS STATEMENT OF USE RECEIVED
23-OCT-2007
NOTICE OF ALLOWANCE-MAILED
31-JUL-2007
PUBLISHED FOR OPPOSITION
11-JUL-2007
NOTICE OF PUBLICATION
28-JUN-2007
LAW OFFICE PUBLICATION REVIEW COMPLETED
21-JUN-2007
APPROVED FOR PUB - PRINCIPAL REGISTER
20-JUN-2007
EXAMINER'S AMENDMENT ENTERED
20-JUN-2007
NOTIFICATION OF EXAMINERS AMENDMENT E-MAILED
20-JUN-2007
EXAMINERS AMENDMENT E-MAILED
20-JUN-2007
EXAMINERS AMENDMENT -WRITTEN
19-JUN-2007
ASSIGNED TO EXAMINER
04-MAY-2007
APPLICANT AMENDMENT PRIOR TO EXAMINATION - ENTERED
04-MAY-2007
ASSIGNED TO LIE
10-APR-2007
TEAS PRELIMINARY AMENDMENT RECEIVED
09-MAR-2007
NEW APPLICATION ENTERED IN
TRAM
|
Schedules
38
Image | ![]() |
|
Trademark
|
CINEMA
STUDIO
|
|
Design
Type
|
BLOCK
LETTERS
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
78817910
|
|
Registration
Number
|
3309506
|
|
Status
|
REGISTERED
|
|
Status
According to PTO
|
(700)
REGISTERED
|
|
USPTO
Status Date
|
09-OCT-2007
|
|
Application
Date
|
17-FEB-2006
|
|
Published
|
28-NOV-2006
|
|
Registration
Date
|
09-OCT-2007
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) WOMEN'S
SLEEPWEAR, PAJAMAS, NIGHTGOWNS, NIGHT SHIRTS, DORM SHIRTS, ROBES, BABYDOLL
PAJAMAS, CHEMISES, NEGLIGEES, AND SEDUCTIVE WEAR, NAMELY, THONGS, GARTER
BELTS, GARTERS, TEDDIES, BRASSIERES, BRALETTES IN THE NATURE OF BRASSIERES
OFSMALLER DESIGN, PANTIES, BUSTIERS, BABYDOLL PAJAMA SETS COMPRISED OF
TOPS AND PANTIES, AND TWO PIECE PAJAMA SETS COMPRISED OF TOPS AND
SHORTS
|
|
International
Class
|
International Class:
25
First Used:
25-JAN-2007
In Commerce:
25-JAN-2007
|
|
Registrant/Owner
at Publication/Applicant
|
MOVIE
STAR, INC. NEW YORK CORPORATION
1115
BROADWAY, 11TH FLOOR NEW YORK, NEW YORK
10010
|
|
Other
U.S. Registrations
|
1209847
|
|
Reference
Number
|
9897
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE,
NY 10583
|
|
Domestic
Representative
|
HOWARD
N. ARONSON
|
|
History
|
09-OCT-2007
REGISTERED-PRINCIPAL REGISTER
06-SEP-2007
LAW OFFICE REGISTRATION REVIEW COMPLETED
06-SEP-2007
ASSIGNED TO LIE
30-JUL-2007
ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED
26-JUN-2007
STATEMENT OF USE PROCESSING COMPLETE
15-MAR-2007
USE AMENDMENT FILED
15-MAR-2007
TEAS STATEMENT OF USE RECEIVED
20-FEB-2007
NOTICE OF ALLOWANCE-MAILED
28-NOV-2006
PUBLISHED FOR OPPOSITION
08-NOV-2006
NOTICE OF PUBLICATION
03-OCT-2006
LAW OFFICE PUBLICATION REVIEW COMPLETED
18-SEP-2006
ASSIGNED TO LIE
02-SEP-2006
APPROVED FOR PUB - PRINCIPAL REGISTER
26-AUG-2006
TEAS/EMAIL CORRESPONDENCE ENTERED
25-AUG-2006
CORRESPONDENCE RECEIVED IN LAW OFFICE
25-AUG-2006
TEAS RESPONSE TO OFFICE ACTION RECEIVED
09-AUG-2006
NON-FINAL ACTION E-MAILED
09-AUG-2006
NON-FINAL ACTION WRITTEN
08-AUG-2006
ASSIGNED TO EXAMINER
24-FEB-2006
NEW APPLICATION ENTERED IN
TRAM
|
Schedules
39
NIGHT
MANEUVERS
|
||
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
76510138
|
|
Registration
Number
|
2977356
|
|
Status
|
REGISTERED
|
|
Status
According to PTO
|
(700)
REGISTERED
|
|
USPTO
Status Date
|
26-JUL-2005
|
|
Application
Date
|
28-APR-2003
|
|
Allowance
Filed
|
02-NOV-2004
|
|
Published
|
10-AUG-2004
|
|
Registration
Date
|
26-JUL-2005
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) WOMEN'S
SLEEPWEAR, PAJAMAS, NIGHTGOWNS, NIGHT SHIRTS, DORM SHIRTS, ROBES,
BABYDOLLS, CHEMISES, NEGLIGEES, AND SEDUCTIVE WEAR, NAMELY, THONGS, GARTER
BELTS, GARTERS, TEDDIES, BRASSIERES, BRALETTES, PANTIES, BUSTIERS,
BABYDOLL-SHORT NIGHTSETS, AND TWO PIECE SHORT PAJAMA
SETS
|
|
International
Class
|
International Class:
25
First Used:
31-JAN-2004
In Commerce:
31-JAN-2004
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
1115
BROADWAY, 11TH FLOOR
NEW
YORK, NEW YORK 10010
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
History
|
07-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
07-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
26-JUL-2005
REGISTERED-PRINCIPAL REGISTER
31-MAY-2005
LAW OFFICE REGISTRATION REVIEW COMPLETED
31-MAY-2005
ASSIGNED TO LIE
18-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
14-MAY-2005
ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED
12-MAY-2005
STATEMENT OF USE PROCESSING COMPLETE
14-APR-2005
USE AMENDMENT FILED
14-APR-2005
TEAS STATEMENT OF USE RECEIVED
14-APR-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
02-NOV-2004
NOTICE OF ALLOWANCE-MAILED
10-AUG-2004
PUBLISHED FOR OPPOSITION
21-JUL-2004
NOTICE OF PUBLICATION
10-JUN-2004
APPROVED FOR PUB - PRINCIPAL REGISTER
15-MAR-2004
CORRESPONDENCE RECEIVED IN LAW OFFICE
15-MAR-2004
PAPER RECEIVED
15-SEP-2003
NON-FINAL ACTION MAILED
13-SEP-2003
ASSIGNED TO EXAMINER
|
Schedules
40
Trademark
|
THE
BOUDOIR COLLECTION
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
76510139
|
|
Status
|
PUBLISHED
(PENDING)
Intent
to Use
|
|
Status
According to PTO
|
(688)
NOTICE OF ALLOWANCE – ISSUED
|
|
USPTO
Status Date
|
15-JAN-2008
|
|
Application
Date
|
28-APR-2003
|
|
Published
|
23-OCT-2007
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) WOMEN'S
SLEEPWEAR, PAJAMAS, NIGHTGOWNS, NIGHT SHIRTS, DORM SHIRTS, ROBES,
BABYDOLLS, CHEMISES, NEGLIGEES, AND SEDUCTIVE WEAR, NAMELY, THONGS, GARTER
BELTS, GARTERS, TEDDIES, BRASSIERES, BRALETTES, PANTIES, BUSTIERS,
BABYDOLL-SHORT NIGHTSETS, AND TWO PIECE SHORT PAJAMA
SETS
|
|
Owner
at Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
1115
BROADWAY, 11TH FLOOR
NEW
YORK, NEW YORK 10010
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
Disclaims
|
"COLLECTION"
|
|
History
|
15-JAN-2008
NOTICE OF ALLOWANCE-MAILED
23-OCT-2007
PUBLISHED FOR OPPOSITION
03-OCT-2007
NOTICE OF PUBLICATION
17-SEP-2007
LAW OFFICE PUBLICATION REVIEW COMPLETED
15-SEP-2007
APPROVED FOR PUB - PRINCIPAL REGISTER
04-SEP-2007
LIE CHECKED SUSP - TO ATTY FOR ACTION
30-JAN-2007
REPORT COMPLETED SUSPENSION CHECK CASE STILL SUSPENDED
30-JAN-2007
ASSIGNED TO LIE
07-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
07-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
14-JUL-2006
REPORT COMPLETED SUSPENSION CHECK CASE STILL SUSPENDED
10-DEC-2005
REPORT COMPLETED SUSPENSION CHECK CASE STILL SUSPENDED
31-MAY-2005
REPORT COMPLETED SUSPENSION CHECK CASE STILL SUSPENDED
18-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
29-NOV-2004
REPORT COMPLETED SUSPENSION CHECK CASE STILL SUSPENDED
27-MAY-2004
LETTER OF SUSPENSION MAILED
15-MAR-2004
CORRESPONDENCE RECEIVED IN LAW OFFICE
15-MAR-2004
PAPER RECEIVED
15-SEP-2003
NON-FINAL ACTION MAILED
13-SEP-2003
ASSIGNED TO EXAMINER
|
Schedules
41
Trademark
|
LIQUID
SATIN
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
76271929
|
|
Registration
Number
|
2738152
|
|
Status
|
REGISTERED
|
|
Status
According to PTO
|
(700)
REGISTERED
|
|
USPTO
Status Date
|
15-JUL-2003
|
|
Application
Date
|
18-JUN-2001
|
|
Allowance
Filed
|
01-OCT-2002
|
|
Published
|
09-JUL-2002
|
|
Registration
Date
|
15-JUL-2003
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) CLOTHING
MADE IN WHOLE OR SIGNIFICANT PART OF SATIN, NAMELY, DAYWEAR, NAMELY,
SLIPS, PANTIES, BRASSIERES, BODYSUITS, GARTER BELTS, BUSTIERS, CAMISOLES,
TWO PIECE CROP TOP SETS; SEDUCTIVE WEAR, NAMELY, PEIGNOIR ENSEMBLES,
TEDDIES,BABYDOLLS; LOUNGEWEAR, ROBES, SLEEPWEAR, PAJAMAS,
NIGHTGOWNS
|
|
International
Class
|
International Class:
25
First Used:
JAN-2003
In Commerce:
JAN-2003
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
1115
BROADWAY, 11TH FLOOR
NEW
YORK, NEW YORK 10010
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
Disclaims
|
"SATIN"
|
|
History
|
03-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
03-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
18-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
15-JUL-2003
REGISTERED-PRINCIPAL REGISTER
22-MAY-2003
ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED
22-MAY-2003
ASSIGNED TO EXAMINER
19-MAY-2003
STATEMENT OF USE PROCESSING COMPLETE
25-MAR-2003
USE AMENDMENT FILED
28-MAR-2003
PAPER RECEIVED
01-OCT-2002
NOTICE OF ALLOWANCE-MAILED
09-JUL-2002
PUBLISHED FOR OPPOSITION
19-JUN-2002
NOTICE OF PUBLICATION
04-MAR-2002
APPROVED FOR PUB - PRINCIPAL REGISTER
18-OCT-2001
CORRESPONDENCE RECEIVED IN LAW OFFICE
05-SEP-2001
NON-FINAL ACTION MAILED
30-AUG-2001
ASSIGNED TO EXAMINER
|
Schedules
42
Trademark
|
STARDUST
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
76218587
|
|
Registration
Number
|
2546914
|
|
Status
|
REGISTERED
|
|
Status
According to PTO
|
(700)
REGISTERED
|
|
USPTO
Status Date
|
12-MAR-2002
|
|
Application
Date
|
05-MAR-2001
|
|
Published
|
18-DEC-2001
|
|
Registration
Date
|
12-MAR-2002
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) LADIES'
APPAREL, NAMELY, BRASSIERES, PANTIES, PETTICOATS, GIRDLES, GARTERS, GARTER
BELTS, CAMISOLES, SLIPS, HALF SLIPS, TEDDIES, TANK TOPS, TAP PANTS,
LOUNGEWEAR, ROBES, SWEAT SUITS, SWEAT SHIRTS, DUSTERS, T-SHIRTS, LOUNGING
PAJAMAS,ROMPERS, PLAY SUITS, JUMP SUITS, PATIO SHIRTS, COVER UPS,
SLEEPWEAR, GOWNS, PAJAMAS, DORM SHIRTS, NIGHT SHIRTS, BABY DOLL PAJAMAS,
CHEMISES, AND NEGLIGEES
|
|
International
Class
|
International Class:
25
First Used:
NOV-1942
In Commerce:
NOV-1942
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
136
MADISON AVENUE
NEW
YORK, NEW YORK 10016
|
|
Other
U.S. Registrations
|
0319172,
0416187
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
History
|
23-MAR-2007
CASE FILE IN TICRS
03-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
03-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
18-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
12-MAR-2002
REGISTERED-PRINCIPAL REGISTER
18-DEC-2001
PUBLISHED FOR OPPOSITION
28-NOV-2001
NOTICE OF PUBLICATION
02-JUL-2001
APPROVED FOR PUB - PRINCIPAL REGISTER
28-JUN-2001
CORRESPONDENCE RECEIVED IN LAW OFFICE
28-JUN-2001
EXAMINER'S AMENDMENT MAILED
26-JUN-2001
ASSIGNED TO EXAMINER
|
Schedules
43
Trademark
|
STARCREST
|
|
Cross
References
|
STAR
CREST
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
76218586
|
|
Registration
Number
|
2546913
|
|
Status
|
REGISTERED
|
|
Status
According to PTO
|
(700)
REGISTERED
|
|
USPTO
Status Date
|
12-MAR-2002
|
|
Application
Date
|
05-MAR-2001
|
|
Published
|
18-DEC-2001
|
|
Registration
Date
|
12-MAR-2002
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) LADIES'
APPAREL, NAMELY, BRASSIERES, PANTIES, PETTICOATS, GIRDLES, GARTERS, GARTER
BELTS, CAMISOLES, SLIPS, HALF SLIPS, TEDDIES, TANK TOPS, TAP PANTS,
LOUNGEWEAR, ROBES, SWEAT SUITS, SWEAT SHIRTS, DUSTERS, T-SHIRTS, LOUNGING
PAJAMAS,ROMPERS, PLAY SUITS, JUMP SUITS, PATIO SHIRTS, COVER UPS,
SLEEPWEAR, GOWNS, PAJAMAS, DORM SHIRTS, NIGHT SHIRTS, BABY DOLLS PAJAMAS,
CHEMISES, AND NEGLIGEES
|
|
International
Class
|
International Class:
25
First Used:
MAR-1941
In Commerce:
MAR-1941
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
136
MADISON AVENUE
NEW
YORK, NEW YORK 10016
|
|
Other
U.S. Registrations
|
0390611
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
History
|
23-MAR-2007
CASE FILE IN TICRS
03-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
03-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
18-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
12-MAR-2002
REGISTERED-PRINCIPAL REGISTER
18-DEC-2001
PUBLISHED FOR OPPOSITION
28-NOV-2001
NOTICE OF PUBLICATION
02-JUL-2001
APPROVED FOR PUB - PRINCIPAL REGISTER
28-JUN-2001
CORRESPONDENCE RECEIVED IN LAW OFFICE
28-JUN-2001
EXAMINER'S AMENDMENT MAILED
26-JUN-2001
ASSIGNED TO
EXAMINER
|
Schedules
44
Image
|
![]() |
|
Trademark
|
M.T.B
MEANT TO BE
|
|
Cross
References
|
MTB
MEANT TO BE
|
|
Design
Type
|
WORD
AND DESIGN
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
75747987
|
|
Registration
Number
|
2428946
|
|
Status
|
REGISTERED
|
|
Affidavit
Section
|
REGISTERED
– SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
|
|
Affidavit
Date
|
02-MAR-2007
|
|
Status
According to PTO
|
(702)
SECTION 8 & 15 – ACCEPTED AND ACKNOWLEDGED
|
|
USPTO
Status Date
|
02-MAR-2007
|
|
Application
Date
|
12-JUL-1999
|
|
Allowance
Filed
|
06-JUN-2000
|
|
Published
|
14-MAR-2000
|
|
Declaration
Approved
|
17-NOV-2000
|
|
Registration
Date
|
13-FEB-2001
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) CLOTHING,
NAMELY, LOUNGEWEAR, AND SLEEPWEAR
|
|
International
Class
|
International Class:
25 First
Used: 07-MAR-2000 In Commerce:
07-MAR-2000
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC. NEW YORK CORPORATION
1115
BROADWAY, 11TH FLOOR NEW YORK, NEW YORK
10010
|
|
Correspondent
Info
|
HOWARD
N. ARONSON LACKENBACH SIEGEL LLP ONE CHASE ROAD
SCARSDALE, NY 10583
|
|
Design
Codes
|
260337
OVALS THAT ARE COMPLETELY OR PARTIALLY SHADED
260331
OVALS CONTAINING ONLY LETTERS OR NUMERALS
310501
SMALL INCONSPICUOUS DESIGN ELEMENTS AS PUNCTUATION
310513
INCONSPICUOUS CIRCLES
|
|
History
|
02-MAR-2007
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
23-FEB-2007
ASSIGNED TO PARALEGAL
03-JAN-2007
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
03-JAN-2007
TEAS SECTION 8 & 15 RECEIVED
03-JAN-2007
APPLICANT/CORRESPONDENCE CHANGES (NON-RESPONSIVE)
ENTERED
03-JAN-2007
TEAS CHANGE OF OWNER ADDRESS RECEIVED
30-NOV-2006
CASE FILE IN TICRS
03-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
03-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
25-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
13-FEB-2001
REGISTERED-PRINCIPAL REGISTER
17-NOV-2000
ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED
16-NOV-2000
ASSIGNED TO EXAMINER
31-AUG-2000
STATEMENT OF USE PROCESSING COMPLETE
31-AUG-2000
USE AMENDMENT FILED
06-JUN-2000
NOTICE OF ALLOWANCE-MAILED
14-MAR-2000
PUBLISHED FOR OPPOSITION
11-FEB-2000
NOTICE OF PUBLICATION
10-JAN-2000
APPROVED FOR PUB - PRINCIPAL REGISTER
26-NOV-1999
CORRESPONDENCE RECEIVED IN LAW OFFICE
02-NOV-1999
NON-FINAL ACTION MAILED
29-OCT-1999
ASSIGNED TO
EXAMINER
|
Schedules
45
Trademark
|
SEDUCTIVE
WEAR BY CINEMA ETOILE
|
|
Full
Text Translation
|
THE
ENGLISH TRANSLATION OF "CINEMA ETOILE" IS "MOVIE STAR".
|
|
Trademark
Translation
|
SEDUCTIVE
WEAR BY MOVIE STAR
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
75450326
|
|
Registration
Number
|
2228727
|
|
Status
|
REGISTERED
|
|
Affidavit
Section
|
REGISTERED
- SEC. 15 ACKNOWLEDGED
|
|
Affidavit
Date
|
23-DEC-2004
|
|
Status
According to PTO
|
(701)
SECTION 8 – ACCEPTED
|
|
USPTO
Status Date
|
22-DEC-2004
|
|
Application
Date
|
16-MAR-1998
|
|
Published
|
08-DEC-1998
|
|
Registration
Date
|
02-MAR-1999
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) WEARING
APPAREL, NAMELY, LOUNGEWEAR, SLEEPWEAR, GARTERS AND GARTER
BELTS
|
|
International
Class
|
International Class:
25
First Used:
15-JUN-1995
In Commerce:
15-JUN-1995
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
136
MADISON AVENUE
NEW
YORK, NEW YORK 10016
|
|
Other
U.S. Registrations
|
0690969,
1190788, 1209847
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
Disclaims
|
"WEAR"
|
|
History
|
16-JUL-2007
CASE FILE IN TICRS
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
08-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
01-FEB-2006
TEAS CHANGE OF CORRESPONDENCE RECEIVED
25-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
23-DEC-2004
REGISTERED - SEC. 15 ACKNOWLEDGED
26-NOV-2004
REGISTERED - SEC. 15 AFFIDAVIT FILED
22-DEC-2004
REGISTERED - SEC. 8 (6-YR) ACCEPTED
26-NOV-2004
REGISTERED - SEC. 8 (6-YR) FILED
26-NOV-2004
PAPER RECEIVED
02-MAR-1999
REGISTERED-PRINCIPAL REGISTER
08-DEC-1998
PUBLISHED FOR OPPOSITION
06-NOV-1998
NOTICE OF PUBLICATION
13-OCT-1998
APPROVED FOR PUB - PRINCIPAL REGISTER
05-OCT-1998
EXAMINER'S AMENDMENT MAILED
01-OCT-1998
NON-FINAL ACTION MAILED
24-SEP-1998
ASSIGNED TO EXAMINER
|
Schedules
46
Trademark
|
SEDUCTIVE
WEAR
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
75451337
|
|
Registration
Number
|
2228739
|
|
Status
|
REGISTERED
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
|
|
Affidavit
Date
|
23-DEC-2004
|
|
Status
According to PTO
|
(702)
SECTION 8 & 15 - ACCEPTED AND ACKNOWLEDGED
|
|
USPTO
Status Date
|
23-DEC-2004
|
|
Application
Date
|
16-MAR-1998
|
|
Published
|
08-DEC-1998
|
|
Registration
Date
|
02-MAR-1999
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) WEARING
APPAREL, NAMELY, LOUNGEWEAR, SLEEPWEAR, GARTERS AND GARTER
BELTS
|
|
International
Class
|
International Class:
25
First Used:
15-JUN-1995
In Commerce:
15-JUN-1995
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
136
MADISON AVENUE
NEW
YORK, NEW YORK 10016
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
Disclaims
|
"WEAR"
|
|
History
|
18-JUL-2007
CASE FILE IN TICRS
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
08-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
25-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
23-DEC-2004
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
26-NOV-2004
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
26-NOV-2004
PAPER RECEIVED
02-MAR-1999
REGISTERED-PRINCIPAL REGISTER
08-DEC-1998
PUBLISHED FOR OPPOSITION
06-NOV-1998
NOTICE OF PUBLICATION
13-OCT-1998
APPROVED FOR PUB - PRINCIPAL REGISTER
05-OCT-1998
EXAMINER'S AMENDMENT MAILED
01-OCT-1998
NON-FINAL ACTION MAILED
24-SEP-1998
ASSIGNED TO EXAMINER
|
Schedules
47
Trademark
|
COMFY
COZY
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
75435351
|
|
Registration
Number
|
2582551
|
|
Status
|
REGISTERED
|
|
Status
According to PTO
|
(700)
REGISTERED
|
|
USPTO
Status Date
|
18-JUN-2002
|
|
Application
Date
|
17-FEB-1998
|
|
Allowance
Filed
|
02-MAR-1999
|
|
Published
|
08-DEC-1998
|
|
Declaration
Approved
|
23-MAR-2002
|
|
Extension
Approved
|
13-SEP-2001
|
|
Registration
Date
|
18-JUN-2002
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25)
SLEEPWEAR
|
|
International
Class
|
International Class:
25
First Used:
04-FEB-2002
In Commerce:
04-FEB-2002
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC.
NEW
YORK CORPORATION
136
MADISON AVENUE
NEW
YORK, NEW YORK 10016
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
History
|
19-NOV-2007
CASE FILE IN TICRS
03-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
03-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
26-MAY-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
18-JUN-2002
REGISTERED-PRINCIPAL REGISTER
23-MAR-2002
ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED
15-MAR-2002
STATEMENT OF USE PROCESSING COMPLETE
01-MAR-2002
USE AMENDMENT FILED
13-SEP-2001
EXTENSION 5 GRANTED
31-AUG-2001
EXTENSION 5 FILED
03-APR-2001
EXTENSION 4 GRANTED
02-MAR-2001
EXTENSION 4 FILED
28-OCT-2000
EXTENSION 3 GRANTED
28-AUG-2000
EXTENSION 3 FILED
04-MAY-2000
EXTENSION 2 GRANTED
29-FEB-2000
EXTENSION 2 FILED
28-SEP-1999
EXTENSION 1 GRANTED
01-SEP-1999
EXTENSION 1 FILED
02-MAR-1999
NOTICE OF ALLOWANCE-MAILED
08-DEC-1998
PUBLISHED FOR OPPOSITION
06-NOV-1998
NOTICE OF PUBLICATION
01-OCT-1998
APPROVED FOR PUB - PRINCIPAL REGISTER
17-SEP-1998
ASSIGNED TO EXAMINER
|
Schedules
48
Trademark
|
NIGHT
MAGIC
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
74687098
|
|
Registration
Number
|
2039454
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
08-JAN-2007
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
08-JAN-2007
|
|
Application
Date
|
12-JUN-1995
|
|
Allowance
Filed
|
23-JUL-1996
|
|
Published
|
19-DEC-1995
|
|
Declaration
Approved
|
18-DEC-1996
|
|
Registration
Date
|
18-FEB-1997
|
|
OG
Renewal
|
13-FEB-2007
|
|
Renewed
|
18-FEB-2007
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) LADIES'
DAY WEAR, NAMELY, PANTIES, PETTICOATS, CAMISOLES, SLIPS, HALF SLIPS,
TEDDIES, TANK TOPS, TAP PANTS; LOUNGEWEAR, NAMELY, ROBES, SWEAT SUITS,
SWEAT SHIRTS, DUSTERS, T-SHIRTS, LOUNGING PAJAMAS, ROMPERS, PLAY SUITS,
JUMP SUITS, PATIOSHIFTS, COVER UPS; SLEEPWEAR, NAMELY, GOWNS, PAJAMAS,
DORM SHIRTS, BABY DOLLS, CHEMISES, TEDDIES
|
|
International
Class
|
International Class:
25 First
Used: 12-JUL-1996 In Commerce:
12-JUL-1996
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC. NEW YORK CORPORATION
1115
BROADWAY, 11TH FL. NEW YORK, NEW YORK 10010
|
|
Assignment
Information
|
Assignee:
ROSENTHAL & ROSENTHAL INC. 1370 BROADWAY NEW YORK, NEW
YORK 10018
Assignor: MOVIE
STAR, INC.
Correspondent:
ROSENTHAL & ROSENTHAL, INC.,1370 BROADWAY - 2ND FLOOR NEW
YORK, NY 10018
Brief: SECURITY
AGREEMENT Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
|
Correspondent
Info
|
HOWARD
N. ARONSON LACKENBACH SIEGEL LLP ONE CHASE ROAD
SCARSDALE NY 10583
|
|
History
|
08-JAN-2007
REGISTERED AND RENEWED (FIRST RENEWAL - 10 YRS)
08-JAN-2007
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
20-DEC-2006
CASE FILE IN TICRS
14-DEC-2006
ASSIGNED TO PARALEGAL
13-OCT-2006
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9
FILED
13-OCT-2006
TEAS SECTION 8 & 9 RECEIVED
03-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
03-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
03-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
22-NOV-2002
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
24-OCT-2002
RESPONSE RECEIVED TO POST REG. ACTION - SEC. 8 & 15
24-OCT-2002
PAPER RECEIVED
22-AUG-2002
POST REGISTRATION ACTION MAILED - SEC. 8 & 15
28-JUN-2002
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
28-JUN-2002
PAPER RECEIVED
18-FEB-1997
REGISTERED-PRINCIPAL REGISTER
18-DEC-1996
ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED
13-DEC-1996
STATEMENT OF USE PROCESSING COMPLETE
30-OCT-1996
USE AMENDMENT FILED
23-JUL-1996
NOTICE OF ALLOWANCE-MAILED
18-JAN-1996
EXTENSION OF TIME TO OPPOSE RECEIVED
19-DEC-1995
PUBLISHED FOR OPPOSITION
17-NOV-1995
NOTICE OF PUBLICATION
30-SEP-1995
APPROVED FOR PUB - PRINCIPAL REGISTER
25-SEP-1995
ASSIGNED TO EXAMINER
|
Schedules
49
Trademark
|
PRIVATE
PROPERTY
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
74199874
|
|
Registration
Number
|
1703417
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
11-JUL-2002
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
11-JUL-2002
|
|
Application
Date
|
03-SEP-1991
|
|
Published
|
05-MAY-1992
|
|
Registration
Date
|
28-JUL-1992
|
|
OG
Renewal
|
20-AUG-2002
|
|
Renewed
|
28-JUL-2002
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) LADIES'
DAY WEAR; NAMELY, PANTIES, PETTICOATS, CAMISOLES, SLIPS, HALF SLIPS,
TEDDIES, TANK TOPS, TAP PANTS; LOUNGEWEAR; NAMELY, ROBES, SWEAT SUITS,
SWEAT SHIRTS, DUSTERS, T-SHIRTS, LOUNGING PAJAMAS, ROMPERS, PLAY SUITS,
JUMP SUITS, PATIOSHIFTS, COVER UPS; SLEEPWEAR; NAMELY, GOWNS, PAJAMAS,
DORM SHIRTS, BABY DOLLS, CHEMISES, TEDDIES; MEN'S
SHIRTS
|
|
International
Class
|
International Class:
25 First
Used: 1989 In Commerce:
1989
|
|
Post
Registration Owner
|
MOVIE
STAR, INC., 1115 BROADWAY, 11TH FL. NEW YORK, NEW YORK
10010
|
|
Registrant/Owner
at
Publication/Applicant
|
SANMARK-STARDUST
INC. 136 MADISON AVENUE NEW YORK, NEW YORK
10016
|
|
Assignment
Information
|
Assignee: MOVIE
STAR, INC. 136 MADISON AVENUE NEW YORK, NEW YORK
10016
Assignor:
SANMARK-STARDUST INC. Brief: CHANGE OF NAME
EFFECTIVE 12-31-94
Signed:
28-DEC-1992 Recorded:
07-NOV-1994 Reel/Frame:
1243/0342
Assignee:
ROSENTHAL & ROSENTHAL INC., 1370 BROADWAY NEW YORK, NEW YORK
10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC. 1370 BROADWAY NY, NY
10018
Brief: SECURITY
AGREEMENT Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
|
TTAB
Information
|
Cancellation Number:
92027125 Date: 22-DEC-1997
Outcome:
TERMINATED, 11-NOV-1999
Plaintiff: JENNIFER'S
JEANS, INC. Application Number:
75210703 Registration Number:
0000000
Mark: PRIVATE
PROPERTY
Correspondent:
MYRON AMER, P.C. 114 OLD COUNTRY RD, SUITE 310 MINEOLA
NY 11501
Defendant: MOVIE STAR,
INC. Application
Number: 74199874 Registration Number:
1703417
Mark: PRIVATE
PROPERTY
Trademark Defendant
Correspondent: GOODMAN & TEITELBAUM 26 COURT STREET,
BROOKLYN NY 11242
TTAB Entry: #9
TERMINATED, 11-NOV-1999 TTAB Entry: #8 BOARD'S
DECISION: DISMISSED, 21-SEP-1999
|
|
Other
U.S. Registrations
|
1392427
|
|
Correspondent
Info
|
HOWARD
N. ARONSON LACKENBACH SIEGEL LLP ONE CHASE ROAD
SCARSDALE NY 10583
|
|
History
|
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED TEAS REVOKE/APPOINT ATTORNEY
RECEIVED
03-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
11-JUL-2002
REGISTERED/RENEWED (1st RNWL -10YRS) REG. SEC.8 (10YR) ACCEPTED SEC. 9
GRANTED
25-APR-2002
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9 FILED, PAPER
RECEIVED
11-NOV-1999
CANCELLATION TERMINATED NO. 999999
21-SEP-1999
CANCELLATION DISMISSED NO. 999999
12-MAY-1999
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
13-JAN-1998
CANCELLATION INSTITUTED NO. 999999
15-DEC-1997
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
28-JUL-1992
REGISTERED-PRINCIPAL REGISTER
05-MAY-1992
PUBLISHED FOR OPPOSITION
03-APR-1992
NOTICE OF PUBLICATION
13-JAN-1992
APPROVED FOR PUB - PRINCIPAL REGISTER
06-JAN-1992
ASSIGNED TO EXAMINER
|
Schedules
50
Trademark
|
HEATHER
NICOLE
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
74060724
|
|
Registration
Number
|
1704269
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
25-JUL-2002
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
25-JUL-2002
|
|
Application
Date
|
21-MAY-1990
|
|
Published
|
11-DEC-1990
|
|
Registration
Date
|
28-JUL-1992
|
|
OG
Renewal
|
03-SEP-2002
|
|
Renewed
|
28-JUL-2002
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) LADIES'
AND CHILDREN'S DAY WEAR; NAMELY, PANTIES, PETTICOATS, CAMISOLES, SLIPS,
HALF SLIPS, TEDDIES, TANK TOPS, TAP PANTS, LOUNGEWEAR; NAMELY, ROBES,
SWEAT SUITS, SWEAT SHIRTS, DUSTERS, T-SHIRTS, LOUNGING PAJAMAS, ROMPERS,
PLAY SUITS, JUMPSUITS, PATIO SHIFTS, COVER UPS, SLEEPWEAR; NAMELY, GOWNS,
PAJAMAS, DORM SHIRTS, BABY DOLLS, CHEMISES, TEDDIES
|
|
International
Class
|
International Class:
25 First
Used: 08-AUG-1991 In Commerce:
08-AUG-1991
|
|
Post
Registration Owner
|
MOVIE
STAR, INC. NEW YORK CORPORATION
1115
BROADWAY 11TH FL NEW YORK, NEW YORK 10010
|
|
Registrant/Owner
at
Publication/Applicant
|
SANMARK
STARDUST, INC. NEW YORK CORPORATION
136
MADISON AVENUE NEW YORK, NEW YORK 10016
|
|
Assignment
Information
|
Assignee: MOVIE
STAR, INC. 136 MADISON AVENUE NEW YORK, NEW YORK
10016
Assignor:
SANMARK-STARDUST INC.
Correspondent:
PERRY TEITELBAUM, ESQ. GOODMAN & TEITELBAUM
26
COURT STREET SUITE 1400 BROOKLYN, NY 11242
Brief: CHANGE OF NAME
EFFECTIVE 12-31-94
Signed:
28-DEC-1992 Recorded:
07-NOV-1994 Reel/Frame:
1243/0342
Assignee:
ROSENTHAL & ROSENTHAL INC. 1370 BROADWAY NEW YORK, NEW
YORK 10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC. 1370 BROADWAY - 2ND FLOOR NEW
YORK, NY 10018
Brief: SECURITY
AGREEMENT Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
|
Correspondent
Info
|
HOWARD
N. ARONSON LACKENBACH SIEGEL LLP
ONE
CHASE ROAD SCARSDALE NY 10583
|
|
Portrait
Permission
|
THE
NAME "HEATHER NICOLE" DOES NOT IDENTIFY ANY LIVING
INDIVIDUAL.
|
|
History
|
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
08-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
25-JUL-2002
REGISTERED AND RENEWED (FIRST RENEWAL - 10 YRS)
25-JUL-2002
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
15-MAY-2002
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9
FILED
06-JAN-1998
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
15-DEC-1997
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
28-JUL-1992
REGISTERED-PRINCIPAL REGISTER
25-OCT-1991
ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED
01-OCT-1991
STATEMENT OF USE PROCESSING COMPLETE
29-AUG-1991
USE AMENDMENT FILED
05-MAR-1991
NOTICE OF ALLOWANCE-MAILED
11-DEC-1990
PUBLISHED FOR OPPOSITION
10-NOV-1990
NOTICE OF PUBLICATION
03-OCT-1990
APPROVED FOR PUB - PRINCIPAL REGISTER
17-SEP-1990
ASSIGNED TO EXAMINER
|
Schedules
51
Trademark
|
CINEJOUR
|
|
Full
Text Translation
|
THE
ENGLISH TRANSLATION OF THE WORD "CINE" IN THE MARK IS "CINEMA" AND THE
ENGLISH TRANSLATION OF THE WORD "JOUR" IN THE MARK IS
"DAY".
|
|
Trademark
Translation
|
CINEMA,
DAY
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
73836564
|
|
Registration
Number
|
1605698
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
27-SEP-2000
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
27-SEP-2000
|
|
Application
Date
|
06-NOV-1989
|
|
Published
|
17-APR-1990
|
|
Registration
Date
|
10-JUL-1990
|
|
OG
Renewal
|
07-NOV-2000
|
|
Renewed
|
10-JUL-2000
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) LADIES'
AND CHILDREN'S DAY WEAR, NAMELY PANTIES, PETTICOATS, CAMISOLES, SLIPS,
HALF SLIPS, TEDDIES, TANK TOPS, TAP PANTS, LOUNGEWEAR, NAMELY ROBES, SWEAT
SUITS, SWEAT SHIRTS, DUSTERS, T-SHIRTS, LOUNGING PAJAMAS, ROMPERS, PLAY
SUITS, JUMPSUITS, SHIFTS, COVER UPS, SLEEPWEAR, NAMELY GOWNS, PAJAMAS,
DORM SHIRTS, BABY DOLLS, CHEMISES, TEDDIES
|
|
International
Class
|
International Class:
25 First
Used: 15-SEP-1989 In Commerce:
15-SEP-1989
|
|
Post
Registration Owner
|
MOVIE
STAR, INC., 136 MADISON AVENUE NEW YORK, NEW YORK
10016
|
|
Registrant/Owner
at
Publication/Applicant
|
SANMARK-STARDUST,
INC. NEW YORK CORPORATION
145
MADISON AVENUE NEW YORK, NEW YORK 10016
|
|
Assignment
Information
|
Assignee: MOVIE
STAR, INC., 136 MADISON AVENUE NEW YORK, NEW YORK
10016
Assignor:
SANMARK-STARDUST INC.
Correspondent:
PERRY TEITELBAUM, ESQ. GOODMAN & TEITELBAUM
26
COURT STREET SUITE 1400 BROOKLYN, NY 11242
Brief: CHANGE OF NAME
EFFECTIVE 12-31-94
Signed:
28-DEC-1992 Recorded:
07-NOV-1994 Reel/Frame:
1243/0342
Assignee:
ROSENTHAL & ROSENTHAL INC. 1370 BROADWAY NEW YORK, NEW
YORK 10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC.
1370
BROADWAY - 2ND FLOOR NEW YORK, NY 10018
Brief: SECURITY
AGREEMENT Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
|
Correspondent
Info
|
HOWARD
N. ARONSON LACKENBACH SIEGEL LLP
ONE
CHASE ROAD SCARSDALE NY 10583
|
|
History
|
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED/ TEAS REVOKE/APPOINT ATTORNEY
RECEIVED
14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
27-SEP-2000
REGISTERED AND RENEWED (FIRST RENEWAL - 10 YRS)
27-SEP-2000
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
10-APR-2000
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9
FILED
10-APR-2000
POST REGISTRATION ACTION CORRECTION
15-JUL-1996
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
18-MAR-1996
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
10-JUL-1990
REGISTERED-PRINCIPAL REGISTER
17-APR-1990
PUBLISHED FOR OPPOSITION
17-MAR-1990
NOTICE OF PUBLICATION
09-FEB-1990
APPROVED FOR PUB - PRINCIPAL REGISTER
07-FEB-1990
EXAMINER'S AMENDMENT MAILED
29-JAN-1990
ALLOWANCE/COUNT WITHDRAWN
17-JAN-1990
EXAMINER'S AMENDMENT MAILED
21-DEC-1989
ASSIGNED TO EXAMINER
|
Schedules
52
Trademark
|
REAL
SHAPES
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
73807394
|
|
Registration
Number
|
1585795
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
17-AUG-2000
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
17-AUG-2000
|
|
Application
Date
|
19-JUN-1989
|
|
Published
|
12-DEC-1989
|
|
Registration
Date
|
06-MAR-1990
|
|
OG
Renewal
|
26-SEP-2000
|
|
Renewed
|
06-MAR-2000
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) PANTIES
AND COORDINATING TOPS NAMELY HALTERS, TANK TOPS, UNCONSTRUCTED BRA LIKE
TOPS AND TEDDIES
|
|
International
Class
|
International Class:
25 First
Used: MAY-1989 In Commerce:
MAY-1989
|
|
Post
Registration Owner
|
MOVIE
STAR, INC. NEW YORK CORPORATION
136
MADISON AVE. NEW YORK, NEW YORK 10016
|
|
Registrant/Owner
at
Publication/Applicant
|
SANMARK-STARDUST,
INC. NEW YORK CORPORATION
145
MADISON AVENUE NEW YORK, NEW YORK 10016
|
|
Assignment
Information
|
Assignee: MOVIE
STAR, INC. NEW YORK CORPORATION
136
MADISON AVENUE NEW YORK, NEW YORK 10016
Assignor:
SANMARK-STARDUST INC.
Correspondent:
PERRY TEITELBAUM, ESQ. GOODMAN & TEITELBAUM
26
COURT STREET SUITE 1400
BROOKLYN,
NY 11242
Brief: CHANGE OF NAME
EFFECTIVE 12-31-94
Signed:
28-DEC-1992 Recorded:
07-NOV-1994 Reel/Frame:
1243/0342
Assignee:
ROSENTHAL & ROSENTHAL INC. NEW YORK
CORPORATION
1370
BROADWAY NEW YORK, NEW YORK 10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC. OMAR BARBERO - VICE
PRESIDENT
1370
BROADWAY - 2ND FLOOR NEW YORK, NY 10018
Brief: SECURITY
AGREEMENT
Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
|
Correspondent
Info
|
HOWARD
N. ARONSON
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
History
|
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
08-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
17-AUG-2000
REGISTERED AND RENEWED (FIRST RENEWAL - 10 YRS)
17-AUG-2000
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
10-JAN-2000
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9
FILED
25-JUN-1996
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
05-JAN-1996
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
06-MAR-1990
REGISTERED-PRINCIPAL REGISTER
12-DEC-1989
PUBLISHED FOR OPPOSITION
10-NOV-1989
NOTICE OF PUBLICATION
29-SEP-1989
APPROVED FOR PUB - PRINCIPAL REGISTER
28-SEP-1989
EXAMINERS AMENDMENT MAILED
01-SEP-1989
NON-FINAL ACTION MAILED
|
Schedules
53
Trademark
|
COURT
STREET
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
73728468
|
|
Registration
Number
|
1516490
|
|
Status
|
REGISTERED
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
|
|
Affidavit
Date
|
28-JUL-1995
|
|
Status
According to PTO
|
(702)
SECTION 8 & 15 - ACCEPTED AND ACKNOWLEDGED
|
|
USPTO
Status Date
|
28-JUL-1995
|
|
Application
Date
|
16-MAY-1988
|
|
Published
|
20-SEP-1988
|
|
Registration
Date
|
13-DEC-1988
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) LADIES'
AND CHILDREN'S DAY WEAR NAMELY; PANTIES, PETTICOATS, CAMISOLES, SLIPS,
HALF SLIPS, TEDDIES, TANK TOPS, TAP PANTS, LOUNGEWEAR NAMELY; ROBES, SWEAT
SUITS, SWEAT SHIRTS, DUSTERS, T-SHIRTS, LOUNGING PAJAMAS, ROMPERS, PLAY
SUITS, JUMPSUITS, PATIO SHIFTS, COVER UPS, SLEEPWEAR NAMELY; GOWNS,
PAJAMAS, DORM SHIRTS, BABY DOLLS, CHEMISES,TEDDIES
|
|
International
Class
|
International Class:
25 First
Used: 01-JAN-1988 In Commerce:
01-JAN-1988
|
|
Post
Registration Owner
|
MOVIE
STAR, INC. NEW YORK CORPORATION
136
MADISON AVENUE NEW YORK, NEW YORK 10016
|
|
Registrant/Owner
at
Publication/Applicant
|
SANMARK-STARDUST,
INC. NEW YORK CORPORATION
145
MADISON AVENUE NEW YORK, NEW YORK 10016
|
|
Assignment
Information
|
Assignee: MOVIE
STAR, INC., 136 MADISON AVENUE NEW YORK, NEW YORK
10016
Assignor:
SANMARK-STARDUST INC.
Correspondent:
GOODMAN & TEITELBAUM 26 COURT STREET SUITE 1400
BROOKLYN, NY 11242
Brief: CHANGE OF NAME
EFFECTIVE 12-31-94
Signed:
28-DEC-1992 Recorded:
07-NOV-1994 Reel/Frame:
1243/0342
Assignee:
ROSENTHAL & ROSENTHAL INC., 1370 BROADWAY NEW YORK, NEW
YORK 10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC.,1370 BROADWAY - 2ND FLOOR NEW YORK,
NY 10018
Brief: SECURITY
AGREEMENT Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
|
TTAB
Information
|
Cancellation Number:
92017945 Date:
01-MAY-1989
Outcome: TERMINATED,
16-NOV-1989
Plaintiff: DOLLAR
GENERAL CORPORATION
Correspondent:
CUSHMAN, DARBY & CUSHMAN, 1615 L STREET, N.W. WASHINGTON
DC 20036
Defendant:
SANMARK-STARDUST, INC.
Application Number:
73728468 Registration Number:
1516490
Mark: COURT
STREET
Trademark Defendant
Correspondent: 145 MADISON AVENUE NEW YORK, NY.
10016
TTAB Entry: #8
TERMINATED, 16-NOV-1989
TTAB Entry: #7 BOARD'S
DECISION: DISMISSED W/O PREJ, 11-OCT-1989
|
|
Correspondent
Info
|
HOWARD
N. ARONSON LACKENBACH SIEGEL LLP
ONE
CHASE ROAD SCARSDALE NY 10583
|
|
History
|
07-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
07-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
28-JUL-1995
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
14-NOV-1994
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
16-NOV-1989
CANCELLATION TERMINATED NO. 999999
11-OCT-1989
CANCELLATION DISMISSED NO. 999999
03-JUL-1989
CANCELLATION INSTITUTED NO. 999999
13-DEC-1988
REGISTERED-PRINCIPAL REGISTER
20-SEP-1988
PUBLISHED FOR OPPOSITION
20-AUG-1988
NOTICE OF PUBLICATION
11-JUL-1988
APPROVED FOR PUB - PRINCIPAL REGISTER
06-JUL-1988
ASSIGNED TO EXAMINER
|
Schedules
54
Trademark
|
STARRY
NITES
|
|
Cross
References
|
STARRY
NIGHTS
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
73691411
|
|
Registration
Number
|
1499666
|
|
Status
|
REGISTERED
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
|
|
Affidavit
Date
|
12-JAN-1995
|
|
Status
According to PTO
|
(702)
SECTION 8 & 15 - ACCEPTED AND ACKNOWLEDGED
|
|
USPTO
Status Date
|
12-JAN-1995
|
|
Application
Date
|
23-OCT-1987
|
|
Published
|
17-MAY-1988
|
|
Registration
Date
|
09-AUG-1988
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) LADIES'
AND CHILDREN'S SLEEPWEAR, NAMELY NIGHTSHIRTS, BABY DOLLS, PAJAMAS,
TEDDIES, PANTIES, NIGHTGOWNS, AND ROBES
|
|
International
Class
|
International Class:
25 First
Used: FEB-1986 In Commerce:
FEB-1986
|
|
Post
Registration Owner
|
MOVIE
STAR, INC. NEW YORK CORPORATION
136
MADISON AVENUE NEW YORK, NEW YORK 10016
|
|
Registrant/Owner
at
Publication/Applicant
|
SANMARK-STARDUST,
INC. NEW YORK CORPORATION
145
MADISON AVENUE NEW YORK, NEW YORK 10016
|
|
Assignment
Information
|
Assignee: MOVIE
STAR, INC. NEW YORK CORPORATION
136
MADISON AVENUE NEW YORK, NY 10016
Assignor:
SANMARK-STARDUST INC.
Correspondent:
GOODMAN & TEITELBAUM PERRY TEITELBAUM, ESQ.
26
COURT STREET STE. 1400 BROOKLYN, NY 11242
Brief: CHANGE OF NAME
19921231 z
Signed:
28-DEC-1992 Recorded:
26-NOV-1993 Reel/Frame:
1068/0059
Assignee:
ROSENTHAL & ROSENTHAL INC. NEW YORK
CORPORATION
1370
BROADWAY NEW YORK, NEW YORK 10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC. OMAR BARBERO - VICE
PRESIDENT
1370
BROADWAY - 2ND FLOOR NEW YORK, NY 10018
Brief: SECURITY
AGREEMENT Signed:
24-APR-1996 Recorded:
02-MAY-1996
Reel/Frame:
1455/0955
|
|
Correspondent
Info
|
PERRY
TEITELBAUM
LACKENBACH
SIEGEL LLP
ONE
CHASE ROAD
SCARSDALE
NY 10583
|
|
History
|
14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
12-JAN-1995
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
08-JUL-1994
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
09-AUG-1988
REGISTERED-PRINCIPAL REGISTER
17-MAY-1988
PUBLISHED FOR OPPOSITION
15-APR-1988
NOTICE OF PUBLICATION
09-MAR-1988
APPROVED FOR PUB - PRINCIPAL REGISTER
26-FEB-1988
EXAMINER'S AMENDMENT MAILED
12-FEB-1988
ALLOWANCE/COUNT WITHDRAWN
15-JAN-1988
ASSIGNED TO EXAMINER
|
Schedules
55
Image
|
![]() |
|
Trademark
|
PAM
UNDIES
|
|
Design
Type
|
STYLIZED
LETTERS
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
73437490
|
|
Registration
Number
|
1303849
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
08-DEC-2005
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
08-DEC-2005
|
|
Application
Date
|
02-AUG-1983
|
|
Published
|
28-AUG-1984
|
|
Registration
Date
|
06-NOV-1984
|
|
OG
Renewal
|
17-JAN-2006
|
|
Renewed
|
06-NOV-2004
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) WOMEN'S
UNDERWEAR AND SLEEPWEAR
|
|
International
Class
|
International Class:
25 First
Used: 01-JAN-1956 In Commerce:
01-JAN-1956
|
|
Post
Registration Owner
|
MOVIE
STAR, INC. 1115 BROADWAY-11TH FLOOR NEW YORK, NEW YORK
10010
|
|
Registrant/Owner
at
Publication/Applicant
|
CLAXTON
MANUFACTURING CO., INC. 183 MADISON AVE. NEW YORK, NEW YORK
10016
|
|
Assignment
Information
|
Assignee: SANMARK
- STARDUST, INC. 175 MADISON AVE. NEW YORK, NEW YORK
10016
Assignor: CLAXTON
MANUFACTURING COMPANY, INC. 183 MADISON AVE. NY, NY
10016
Correspondent:
GOODMAN AND TEITELBAUM STE. 1400 26 COURT ST. BROOKLYN,
NY 11242
Brief: ASSIGNS THE
ENTIRE INTEREST AND THE GOODWILL
Recorded:
08-MAR-1985 Acknowledged:
24-JAN-1985 Reel/Frame:
0489/0574
Assignee: MOVIE
STAR, INC., 136 MADISON AVENUE NEW YORK, NEW YORK
10016
Assignor:
SANMARK-STARDUST INC.
Correspondent:
GOODMAN & TEITELBAUM 26 COURT STREET SUITE 1400
BROOKLYN, NY 11242
Brief: CHANGE NAME EFF.
12-31-94 Signed:
28-DEC-1992 Recorded:
07-NOV-1994 Reel/Frame:
1243/0342
Assignee:
ROSENTHAL & ROSENTHAL INC., 1370 BROADWAY NEW YORK, NEW YORK
10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC. 1370 BROADWAY NEW YORK, NY
10018
Brief: SECURITY
AGREEMENT Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
Assignee: MOVIE
STAR, INC. 1115 BROADWAY-11TH FLOOR NEW YORK, NEW YORK
10010
Assignor:
SANMARK-STARDUST, INC.
Correspondent:
GOODMAN & TEITELBAUM 26 COURT ST STE 1400 BROOKLYN,
NY 11242
Brief: ASSIGNS ENTIRE
INTEREST Signed:
12-NOV-2004 Recorded:
22-NOV-2004 Reel/Frame:
3081/0982
|
|
Correspondent
Info
|
HOWARD
N. ARONSON LACKENBACH SIEGEL LLP ONE CHASE ROAD
SCARSDALE NY 10583
|
|
Disclaims
|
NO
CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "UNDIES", APART FROM THE MARK
AS SHOWN.
|
|
History
|
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED TEAS REVOKE/APPT ATTORNEY
RECEIVED
01-FEB-2006
TEAS CHANGE OF CORRESPONDENCE RECEIVED
08-DEC-2005
REGISTERED AND RENEWED (FIRST RENEWAL - 10 YRS)
08-DEC-2005
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
17-AUG-2005
ASSIGNED TO PARALEGAL 14-JUN-2005 TEAS CHANGE OF CORRESPONDENCE
RECEIVED
26-NOV-2004
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9 FILED PAPER
RECEIVED
09-NOV-1990
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
15-AUG-1990
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
06-NOV-1984
REGISTERED-PRINCIPAL REGISTER
28-AUG-1984
PUBLISHED FOR OPPOSITION 26-JUN-1984 NOTICE OF
PUBLICATION
19-APR-1984
APPROVED FOR PUB - PRINCIPAL REGISTER NON-FINAL ACTION
MAILED
06-MAR-1984
ASSIGNED TO EXAMINER
|
Schedules
56
Image
|
![]() |
|
Trademark
|
CINEMA
ETOILE
|
|
Full
Text Translation
|
THE
TERM "CINEMA ETOILE" MEANS "MOVIE STAR" IN FRENCH.
|
|
Trademark
Translation
|
MOVIE
STAR
|
|
Design
Type
|
STYLIZED
LETTERS
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
73327357
|
|
Registration
Number
|
1209847
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
09-SEP-2002
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
09-SEP-2002
|
|
Application
Date
|
10-SEP-1981
|
|
Published
|
29-JUN-1982
|
|
Registration
Date
|
21-SEP-1982
|
|
OG
Renewal
|
22-OCT-2002
|
|
Renewed
|
21-SEP-2002
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) WOMEN'S
CLOTHING-NAMELY, LINGERIE, NIGHTGOWNS, AND UNDERWEAR
|
|
International
Class
|
International Class:
25 First
Used: 30-JUL-1981 In Commerce:
30-JUL-1981
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC. NEW YORK CORPORATION
1115
BROADWAY 11TH
FLOOR NEW YORK, NEW YORK 10010
|
|
Assignment
Information
|
Assignee: CHASE
MANHATTAN BANK, N.A. 1411 BROADWAY NEW YORK, NEW YORK
10018
Assignor: MOVIE
STAR, INC. 392 FIFTH AVE. NEW YORK, NEW YORK
10018
Correspondent:
HAHN AND HESSEN, 350 FIFTH AVE. NEW YORK, NY
10118
Brief: SECURITY
INTEREST
Recorded:
30-JAN-1987 Acknowledged:
28-JAN-1987 Reel/Frame:
0550/0953
Assignee: MOVIE
STAR, INC. 392 FIFTH AVENUE NEW YORK, NEW YORK
10018
Assignor: CIT
GROUP/FACTORING MANUFACTURERS HANOVER, INC.,
1211
AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10036
Correspondent:
BLODNICK, POMERANZ, ET AL. 477 MADISON AVENUE NEW YORK, NY
10022
Brief: RELEASE BY
SECURED PARTY SECURITY AGREEMENT DATED MARCH 31, 1987 RECORDED AT REEL
0568, FRAMES 965-968
Recorded:
12-MAY-1988 Acknowledged:
05-MAY-1988 Reel/Frame:
0602/0032
Assignee: MOVIE
STAR, INC., 392 FIFTH AVENUE NEW YORK, NEW YORK
10018
Assignor: CHASE
MANHATTAN BANK, N.A., 1411 BROADWAY NEW YORK, NEW YORK
10018
Correspondent:
BLODNICK, POMERANZ, ET AL. 477 MADISON AVENUE NEW YORK, NY
10022
Brief: RELEASE BY
SECURED PARTY SECURITY AGREEMENT DATED JANUARY 28, 1987 RECORDED AT REEL
0550, FRAME 953
Recorded:
12-MAY-1988 Acknowledged:
31-MAR-1987 Reel/Frame:
0602/0036
Assignee:
ROSENTHAL & ROSENTHAL INC., 1370 BROADWAY NEW YORK, NEW YORK
10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC.
1370
BROADWAY - 2ND FLOOR NEW YORK, NY 10018
Brief: SECURITY
AGREEMENT
Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
|
Other
U.S. Registrations
|
04161900,
06909690 AND OTHERS
|
|
Correspondent
Info
|
HOWARD
N. ARONSON LACKENBACH SIEGEL LLP
ONE
CHASE ROAD SCARSDALE NY 10583
|
|
Lining
Stippling
|
THE
DRAWING IS LINED FOR THE COLOR PURPLE, BUT COLOR IS NOT A FEATURE OF THE
MARK.
|
|
Design
Codes
|
300103
C
300105
E
300120
T
300112
L
300503
FIRST LETTER OF A WORD FIRST NUMERAL OF A NUMBER STRING
300504
LETTERS EMBEDDED IN A WORD NUMERALS EMBEDDED IN A NUMBER
STRING
|
|
History
|
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
08-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
09-SEP-2002
REGISTERED AND RENEWED (FIRST RENEWAL - 10 YRS)
09-SEP-2002
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
14-JUN-2002
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9
FILED
11-APR-1988
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
28-OCT-1987
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
21-SEP-1982
REGISTERED-PRINCIPAL REGISTER
29-JUN-1982
PUBLISHED FOR
OPPOSITION
|
Schedules
57
Trademark
|
MOVIE
STAR
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
73291858
|
|
Registration
Number
|
1190788
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
|
|
Affidavit
Date
|
22-OCT-1987
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
11-FEB-2002
|
|
Application
Date
|
05-JAN-1981
|
|
Published
|
01-DEC-1981
|
|
Registration
Date
|
23-FEB-1982
|
|
OG
Renewal
|
26-MAR-2002
|
|
Renewed
|
23-FEB-2002
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
LOUNGEWEAR
|
|
International
Class
|
International Class:
25 First
Used: 25-SEP-1979 In Commerce:
25-SEP-1979
|
|
Registrant/Owner
at
Publication/Applicant
|
MOVIE
STAR, INC. NEW YORK CORPORATION
392
5TH AVE. NEW YORK, NEW YORK 10018
|
|
Assignment
Information
|
Assignee: CHASE
MANHATTAN BANK, N.A. 1411 BROADWAY NEW YORK, NEW YORK
10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
392
FIFTH AVE. NEW YORK, NEW YORK 10018
Correspondent:
HAHN AND HESSEN EMPIRE STATE BLDG. 350 FIFTH AVE. NEW
YORK, NY 10118
Brief: SECURITY
INTEREST
Recorded:
30-JAN-1987 Acknowledged:
28-JAN-1987 Reel/Frame:
0550/0953
Assignee: MOVIE
STAR, INC. NEW YORK CORPORATION
392
FIFTH AVENUE NEW YORK, NEW YORK 10018
Assignor: CIT
GROUP/FACTORING MANUFACTURERS HANOVER, INC., THE
1211
AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10036
Correspondent:
BLODNICK, POMERANZ, ET AL.
477
MADISON AVENUE NEW YORK, NY 10022
Brief: RELEASE BY
SECURED PARTY SECURITY AGREEMENT DATED MARCH 31, 1987 RECORDED AT REEL
0568, FRAMES 965-968
Recorded:
12-MAY-1988 Acknowledged:
05-MAY-1988 Reel/Frame:
0602/0032
Assignee: MOVIE
STAR, INC. NEW YORK CORPORATION
392
FIFTH AVENUE NEW YORK, NEW YORK 10018
Assignor: CHASE
MANHATTAN BANK, N.A., THE
1411
BROADWAY NEW YORK, NEW YORK 10018
Correspondent:
BLODNICK, POMERANZ, ET AL.
477
MADISON AVENUE NEW YORK, NY 10022
Brief: RELEASE BY
SECURED PARTY SECURITY AGREEMENT DATED JANUARY 28, 1987 RECORDED AT REEL
0550, FRAME 953
Recorded:
12-MAY-1988 Acknowledged:
31-MAR-1987 Reel/Frame:
0602/0036
Assignee:
ROSENTHAL & ROSENTHAL INC. NEW YORK
CORPORATION
1370
BROADWAY NEW YORK, NEW YORK 10018
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
Correspondent:
ROSENTHAL & ROSENTHAL, INC. OMAR BARBERO - VICE
PRESIDENT
1370
BROADWAY - 2ND FLOOR NEW YORK, NY 10018
Brief: SECURITY
AGREEMENT
Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
|
Other
U.S. Registrations
|
0690969,
0877825
|
|
Correspondent
Info
|
ANTHONY
P. DELIO DELIO AND ASSOCIATES
121
WHITNEY AVE. NEW HAVEN, CONN. 06510-1081
|
|
History
|
REGISTERED
- SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
22-OCT-1987
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15
ACK.
|
Schedules
58
Image
|
![]() |
|
Trademark
|
SWEET-TOPS
|
|
Design
Type
|
STYLIZED
LETTERS
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
73278988
|
|
Registration
Number
|
1190785
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
09-APR-2003
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
09-APR-2003
|
|
Application
Date
|
22-SEP-1980
|
|
Published
|
01-DEC-1981
|
|
Registration
Date
|
23-FEB-1982
|
|
OG
Renewal
|
20-MAY-2003
|
|
Renewed
|
23-FEB-2002
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(INT. CL. 25) SLEEPWEAR
AND LOUNGEWEAR-NAMELY, LOUNGING ROBES, NIGHT GOWNS AND
PAJAMAS
|
|
International
Class
|
International Class:
25 First
Used: 13-APR-1980 In Commerce:
13-APR-1980
|
|
Post
Registration Owner
|
MOVIE
STAR, INC. NEW YORK CORPORATION
1115
BROADWAY, 11TH
FLOOR NEW YORK, NEW YORK 10010
|
|
Registrant/Owner
at Publication/Applicant
|
SANMARK
INDUSTRIES, INC. DELAWARE CORPORATION
38
E. 32ND ST. NEW YORK, NEW YORK 10016
|
|
Assignment
Information
|
Assignee:
STARDUST INC. CHANGED TO
|
|
Assignee:
SANMARK-STARDUST INC.
|
||
Assignor:
STARDUST INC.
|
||
Assignor: SANMARK
INDUSTRIES, INC. MERGED INTO
|
||
Assignor:
STARDUST INC. CHANGED TO
|
||
Correspondent:
GOODMAN AND TEITELBAUM SUITE 1400 26 COURT ST. BROOKLYN,
NY 11242
|
||
Brief: MERGER AND CHANGE
OF NAME EFFECTIVE IN NEW YORK, 19810311
|
||
Signed:
29-MAR-1982 Recorded:
07-JUN-1982 Reel/Frame:
0417/0357
|
||
Assignee: MOVIE
STAR, INC., 1115 BROADWAY, 11TH FLOOR NEW YORK, NEW YORK
10010
|
||
Assignor:
SANMARK-STARDUST INC.
|
||
Correspondent:
GOODMAN & TEITELBAUM PERRY TEITELBAUM, ESQ.
|
||
26
COURT STREET SUITE 1400 BROOKLYN, N.Y.
11242
|
||
Brief: CHANGE OF
NAME Signed:
28-DEC-1992 Recorded:
25-MAR-2002 Reel/Frame:
2478/0314
|
||
Correspondent
Info
|
HOWARD
N. ARONSON, LACKENBACH SIEGEL LLP, ONE CHASE ROAD, SCARSDALE NY
10583
|
|
History
|
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
|
|
08-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
|
||
14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
|
||
09-APR-2003
REGISTERED AND RENEWED (FIRST RENEWAL - 10 YRS)
|
||
09-APR-2003
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
||
15-MAR-2002
PAPER RECEIVED
|
||
19-FEB-2002
POST REGISTRATION ACTION MAILED - SEC. 8 & 9
|
||
14-DEC-2001
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9
FILED
|
||
27-JUL-1988
RESPONSE RECEIVED TO POST REG. ACTION
|
||
09-MAY-1988
REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK.
|
||
02-MAY-1988
POST REGISTRATION ACTION MAILED - SEC. 8 & 15
|
||
14-SEP-1987
POST REGISTRATION ACTION MAILED - SEC. 8 & 15
|
||
09-MAR-1987
REGISTERED - SEC. 8 (6-YR) FILED
|
||
09-MAR-1987
REGISTERED - SEC. 8 (6-YR) & SEC. 15 FILED
|
||
23-FEB-1982
REGISTERED-PRINCIPAL REGISTER
|
||
01-DEC-1981
PUBLISHED FOR OPPOSITION
|
Schedules
59
Trademark
|
MOVIE
STAR
|
|
Design
Type
|
WORD
ONLY
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
72074708
|
|
Registration
Number
|
0690969
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
04-AUG-2000
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
04-AUG-2000
|
|
Application
Date
|
29-MAY-1959
|
|
Published
|
20-OCT-1959
|
|
Registration
Date
|
05-JAN-1960
|
|
OG
Renewal
|
12-SEP-2000
|
|
Renewed
|
05-JAN-2000
05-JAN-1980
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(U.S. CL. 39)
UNDERGARMENTS, SLEEPWEAR, AND LINGERIE
|
|
U.S.
Class
|
U.S. Class: 39
First Used:
10-APR-1937 In Commerce:
10-APR-1937
|
|
Registrant
|
MOVIE
STAR, INC. NEW YORK CORPORATION 136 MADISON AVENUE NEW
YORK, NEW YORK 10016
|
|
Assignment
Information
|
Assignee: CHASE
MANHATTAN BANK, N.A. 1411 BROADWAY NEW YORK, NEW YORK
10018
|
|
Assignor: MOVIE
STAR, INC. 392 FIFTH AVE. NEW YORK, NEW YORK
10018
|
||
Correspondent:
HAHN AND HESSEN EMPIRE STATE BLDG. 350 FIFTH AVE. NEW
YORK, NY 10118
|
||
Brief: SECURITY
INTEREST
|
||
Recorded:
30-JAN-1987 Acknowledged:
28-JAN-1987 Reel/Frame:
0550/0953
|
||
Assignee: MOVIE
STAR, INC., 392 FIFTH AVENUE NEW YORK, NEW YORK
10018
|
||
Assignor: CIT
GROUP/FACTORING MANUFACTURERS HANOVER, INC.,
|
||
1211
AVENUE OF THE AMERICAS, NY, NY 10036
|
||
Correspondent:
BLODNICK, POMERANZ, ET AL. 477 MADISON AVENUE NEW YORK, NY
10022
|
||
Brief: RELEASE BY
SECURED PARTY SECURITY AGREEMENT DATED MARCH 31, 1987 RECORDED AT REEL
0568, FRAMES 965-968
|
||
Recorded:
12-MAY-1988 Acknowledged:
05-MAY-1988 Reel/Frame:
0602/0032
|
||
Assignee: MOVIE
STAR, INC. NEW YORK CORPORATION
|
||
392
FIFTH AVENUE NEW YORK, NEW YORK 10018
|
||
Assignor: CHASE
MANHATTAN BANK, N.A., 1411 BROADWAY NEW YORK, NEW YORK
10018
|
||
Correspondent:
BLODNICK, POMERANZ, ET AL. 477 MADISON AVENUE NEW YORK, NY
10022
|
||
Brief: RELEASE BY
SECURED PARTY SECURITY AGREEMENT DATED JANUARY 28, 1987 RECORDED AT REEL
0550, FRAME 953
|
||
Recorded:
12-MAY-1988 Acknowledged:
31-MAR-1987 Reel/Frame:
0602/0036
|
||
Assignee:
ROSENTHAL & ROSENTHAL INC., 1370 BROADWAY NEW YORK, NEW YORK
10018
|
||
Assignor: MOVIE
STAR, INC. NEW YORK CORPORATION
|
||
Correspondent:
ROSENTHAL & ROSENTHAL, INC., 1370 BROADWAY - 2ND FLOOR NEW YORK,
NY 10018
|
||
Brief: SECURITY
AGREEMENT
|
||
Signed:
24-APR-1996 Recorded:
02-MAY-1996 Reel/Frame:
1455/0955
|
||
Other
U.S. Registrations
|
0329809,
0663305 AND OTHERS
|
|
Correspondent
Info
|
HOWARD
N. ARONSON, LACKENBACH SIEGEL LLP, ONE CHASE ROAD SCARSDALE NY
10583
|
|
History
|
08-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
|
|
08-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
|
||
14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
|
||
04-AUG-2000
REGISTERED AND RENEWED (SECOND RENEWAL - 10 YRS)
|
||
04-AUG-2000
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
||
27-DEC-1999
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9
FILED
|
||
16-JUL-1987
MISCELLANEOUS PAPER
|
||
16-JUL-1987
MISCELLANEOUS PAPER
|
||
05-JAN-1980
REGISTERED AND RENEWED (FIRST RENEWAL - 20
YRS)
|
Schedules
60
![]() |
||
Trademark
|
CUDDL'FORM
|
|
Cross
References
|
CUDDLE
FORM
|
|
Design
Type
|
STYLIZED
LETTERS
|
|
Database
|
U.S.
Federal
|
|
Application
Number
|
71386030
|
|
Registration
Number
|
0345102
|
|
Status
|
RENEWED
(REGISTERED)
|
|
Affidavit
Section
|
REGISTERED
- SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
|
|
Affidavit
Date
|
13-MAR-2007
|
|
Status
According to PTO
|
(800)
REGISTERED AND RENEWED
|
|
USPTO
Status Date
|
13-MAR-2007
|
|
Application
Date
|
27-NOV-1936
|
|
Published
|
02-FEB-1937
|
|
Registration
Date
|
13-APR-1937
|
|
OG
Renewal
|
17-APR-2007
05-AUG-1997
|
|
Renewed
|
13-APR-2007
13-APR-1997 13-APR-1977
|
|
Republished
|
02-NOV-1948
|
|
International
Class(es)
|
25
(Clothing)
|
|
Goods
and Services
|
(U.S. CL. 39)
SLIPS
|
|
U.S.
Class
|
U.S. Class: 39
First Used:
18-NOV-1936 In Commerce:
18-NOV-1936
|
|
Post
Registration Owner
|
MOVIE
STAR, INC. NEW YORK CORPORATION
1115
BROADWAY NEW YORK, NEW YORK 10010
|
|
Registrant
|
INDUSTRIAL
UNDERGARMENT CORPORATION NEW YORK CORPORATION
340
MILL STREET POUGHKEEPSIE, NEW YORK
|
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Assignment
Information
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Assignee:
SANMARK-STARDUST INC. NEW YORK CORPORATION
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136
MADISON AVENUE NEW YORK, NEW YORK 10016
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Assignor:
STARDUST INC.
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Correspondent:
GOODMAN & TEITELBAUM PERRY TEITELBAUM, ESQ.
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26
COURT STREET SUITE 1400 BROOKLYN, NY 11242
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Brief: MERGER
Signed:
10-MAR-1981 Recorded:
20-MAR-1997 Reel/Frame:
1569/0406
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Assignee: MOVIE
STAR, INC. NEW YORK CORPORATION
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136
MADISON AVENUE NEW YORK, NEW YORK 10016
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Assignor:
SANMARK-STARDUST INC. NEW YORK CORPORATION
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Correspondent:
GOODMAN & TEITELBAUM PERRY TEITELBAUM, ESQ.
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26
COURT STREET SUITE 1400 BROOKLYN NY 11242
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Brief: CHANGE OF
NAME Signed:
28-DEC-1992 Recorded:
20-MAR-1997 Reel/Frame:
1569/0414
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Correspondent
Info
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HOWARD
N. ARONSON
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LACKENBACH
SIEGEL LLP
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ONE
CHASE ROAD
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SCARSDALE,
NY 10583
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History
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13-MAR-2007
REGISTERED AND RENEWED (FIRST RENEWAL - 10 YRS)
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13-MAR-2007
REGISTERED - SEC. 8 (10-YR) ACCEPTED/SEC. 9 GRANTED
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27-FEB-2007
ASSIGNED TO PARALEGAL
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03-JAN-2007
REGISTERED - COMBINED SECTION 8 (10-YR) & SEC. 9
FILED
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03-JAN-2007
TEAS SECTION 8 & 9 RECEIVED
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03-JAN-2007
APPLICANT/CORRESPONDENCE CHANGES (NON-RESPONSIVE)
ENTERED
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03-JAN-2007
TEAS CHANGE OF OWNER ADDRESS RECEIVED
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07-AUG-2006
ATTORNEY REVOKED AND/OR APPOINTED
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07-AUG-2006
TEAS REVOKE/APPOINT ATTORNEY RECEIVED
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14-JUN-2005
TEAS CHANGE OF CORRESPONDENCE RECEIVED
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24-JUN-1997
REGISTERED AND RENEWED (THIRD RENEWAL - 10 YRS)
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13-APR-1977
REGISTERED AND RENEWED (SECOND RENEWAL - 20
YRS)
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Schedules
61
Trademark
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MOVIE
STAR
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Design
Type
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WORD
ONLY
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Database
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U.S.
State
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Registered
in
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PUERTO
RICO
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Registration
Number
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13801
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Status
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RENEWED
PR
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Mark
Type
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TRADEMARK
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International
Class(es)
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25
(Clothing)
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Goods
and Services
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UNDERGARMENTS
SLEEPWEAR & LINGERIE
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Owner
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MOVIE
STAR INC
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Schedules
62
U.S.
Federal
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Date
Updated: 21-JAN-2008
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OFFICIAL
GAZETTE PUBLISHED ON: 15-JAN-2008
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USPTO
TEXT
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COMPLETE
FILINGS THROUGH: 10-JAN-2008
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ADDITIONAL
FILINGS THROUGH: 14-JAN-2008
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APPLICATION
DRAWING PAGES
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COMPLETE
FILINGS THROUGH: 13-JAN-2008
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ADDITIONAL
FILINGS THROUGH: 16-JAN-2008
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IMAGES
CODED THROUGH: 07-JAN-2008
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U.S.
State
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Date
Updated: 15-JAN-2008
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ALABAMA:28-AUG-07
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ALASKA:03-JUL-06
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AMERICAN
SAMOA:29-MAR-05
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ARIZONA:29-DEC-06
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ARKANSAS:23-OCT-07
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CALIFORNIA:30-OCT-07
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COLORADO:21-MAY-07
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CONNECTICUT:29-OCT-07
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DELAWARE:28-JUN-06
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FLORIDA:26-FEB-07
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GEORGIA:01-AUG-07
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HAWAII:31-JUL-07
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IDAHO:29-OCT-07
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ILLINOIS:28-SEP-07
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INDIANA:29-SEP-06
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IOWA:15-OCT-07
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KANSAS:25-OCT-07
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KENTUCKY:30-AUG-07
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LOUISIANA:07-NOV-07
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MAINE:30-OCT-07
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MARYLAND:26-FEB-07
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MASSACHUSETTS:30-NOV-07
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MICHIGAN:13-JUN-07
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MINNESOTA:30-NOV-07
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MISSISSIPPI:15-JUN-06
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MISSOURI:25-JUN-07
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MONTANA:02-AUG-07
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NEBRASKA:30-NOV-07
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NEVADA:05-MAR-07
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NEW
HAMPSHIRE:07-JUL-04
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NEW
JERSEY:04-DEC-07
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NEW
MEXICO:27-AUG-07
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NEW
YORK:02-OCT-07
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NORTH
CAROLINA:31-JAN-07
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NORTH
DAKOTA:30-AUG-07
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OHIO:28-SEP-07
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OKLAHOMA:26-JAN-06
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OREGON:30-NOV-07
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PENNSYLVANIA:28-FEB-03
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PUERTO
RICO:10-DEC-07
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RHODE
ISLAND:27-APR-07
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SOUTH
CAROLINA:28-MAR-07
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SOUTH
DAKOTA:01-OCT-07
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TENNESSEE:30-NOV-07
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TEXAS:14-SEP-07
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UTAH:30-NOV-07
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VERMONT:13-NOV-06
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VIRGINIA:28-JUN-07
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WASHINGTON:09-MAY-07
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WEST
VIRGINIA:13-DEC-06
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WISCONSIN:28-NOV-07
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WYOMING:24-DEC-03
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Updating
of the US State Trademark Database is provided by license with and
permission of CT Corsearch.
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International
Register
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Date
Updated: 17-JAN-2008
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Gazette
of International Marks no. 47/2007, dated 27-DEC-2007
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Unpublished
Applications made available by the WIPO as of
08-JAN-2008
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Schedules
63
Domain
Names
Domain Name
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Expiration
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xxxxxxxxxxxx.xxx
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6/10/2011
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xxxxxxxxxxxxxxxxx.xxx
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6/13/2012
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xxxxxxxxxxxx.xxx
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5/20/2012
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Schedules
64
Schedule
6.01(w)
MATERIAL
CONTRACTS
A. Material Contracts of FOH
Holdings, Inc. and Subsidiaries
Merger
Related Agreements
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1.
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Agreement
and Plan of Merger and Reorganization dated as of December 18, 2006, as
amended, by and among FOH Holdings, Fred Merger Corp. and Frederick’s of
Hollywood Group Inc.
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2.
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Amendment
dated as of June 8, 2007 to Agreement and Plan of Merger and
Reorganization dated as of December 18, 2006 among the FOH Holdings, Fred
Merger Corp., and Frederick’s of Hollywood Group
Inc.
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3.
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Amendment
dated as of November 27, 2007 to Agreement and Plan of Merger and
Reorganization dated as of December 18, 2006 among FOH Holdings, Fred
Merger Corp. and Frederick’s of Hollywood Group
Inc.
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4.
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Voting
Agreement dated as of December 18, 2006 between Frederick’s of Hollywood
Group Inc. and TTG Apparel.
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5.
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Stockholders
Agreement dated December 18, 2006 among Frederick’s of Hollywood Group
Inc., FOH Holdings, Fursa, Fursa Managed Accounts and Tokarz
Investments.
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6.
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Standby
Purchase Agreement dated December 18, 2006 among Frederick’s of Hollywood
Group Inc. and the Standby
Purchasers.
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7.
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Escrow
Agreement dated as of January 28, 2008 between Frederick’s of Hollywood
Group Inc. and Patrick Brennan and Michael
Tokarz.
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8.
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Shareholders
Agreement dated as of January 28, 2008 by and among Fursa Group, TTG and
Frederick’s of Hollywood Group Inc.
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9.
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Registration
Rights Agreement dated as of January 28, 2008 by and among Frederick’s of
Hollywood Group Inc., Fursa Group and TTG
Group.
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10.
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Guarantor
Warrant
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Financing,
Loan and Security Agreements
11.
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Amended
and Restated Tranche A/B and Tranche C Term Loan Agreement amended and
restated as of June 30, 2005, as amended by Amendment No. 1 dated July 20,
2005, and Amendment No. 2 dated November 23, 2005, by and
between FOH Holdings, Inc., Frederick’s of Hollywood, Inc., Fredererick's
of Hollywood Stores, Inc., Xxxxxxxxxx.xxx, Inc., Hollywood Mail Order, LLC
and Mellon HBV SPV LLC, as agent, and Mellon HBV Master
Rediscovered Opportunity Fund LP and Amendment No. 3 dated January 28,
2008, by and between Frederick's of Hollywood Group, Inc., FOH Holdings,
Inc. Frederick’s of Hollywood, Inc., Fredererick's of Hollywood Stores,
Inc., Xxxxxxxxxx.xxx, Inc., Hollywood Mail Order, LLC and Fursa SPV LLC
(f/k/a Mellon HBV SPV LLC), as agent, and Fursa Master
Rediscovered Opportunity Fund LP (f/k/a Mellon HBV Master Rediscovered
Opportunity Fund LP)
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12.
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Tranche
C Term Note in the amount of $2,649,066 dated June 30, 2005 granted by
Frederick’s of Hollywood, Inc. in favor of Mellon HBV Master Rediscovered
Opportunities Fund L.P.
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13.
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Tranche
C Term Note in the amount of $7,792,417.62 dated June 30, 2005 granted by
Frederick’s of Hollywood, Inc. in favor of Mellon HBV SPV
LLC.
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14.
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General
Security Agreement dated January 7, 2003 among Company and certain of its
subsidiaries, as pledgors, Crédit Agricole Indosuez, as collateral agent,
and Mellon HBV Master Rediscovered Opportunities Fund, L.P., Crédit
Agricole Indosuez, Indosuez Capital Funding IIA, Limited, ML CLO XV
Pilgrim America (Cayman), Ltd., and Smoky River CDO, L.P., as
lenders.
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Schedules
65
15.
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Securities
Pledge Agreement dated January 7, 2003, as amended, among Company and
certain of its subsidiaries, as pledgors, Crédit Agricole Indosuez, as
collateral agent, and Mellon HBV Master Rediscovered Opportunities Fund,
L.P., Crédit Agricole Indosuez, Indosuez Capital Funding IIA, Limited, ML
CLO XV Pilgrim America (Cayman), Ltd., and Smoky River CDO, L.P., as
secured parties.
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16.
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Intellectual
Property Security Agreement dated January 7, 2003, as amended, among
Company and certain of its subsidiaries, as pledgors, Crédit Agricole
Indosuez, as collateral agent, and Mellon HBV Master Rediscovered
Opportunities Fund, L.P., Crédit Agricole Indosuez, Indosuez Capital
Funding IIA, Limited, ML CLO XV Pilgrim America (Cayman), Ltd., and Smoky
River CDO, L.P., as secured
parties.
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17.
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Collateral
Assignment of Trademarks dated January 7, 2003 made by Frederick’s of
Hollywood, Inc. in favor of Crédit Agricole Indosuez, as
agent.
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18.
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Collateral
Assignment of Copyrights dated January 7, 2003 made by Hollywood Mail
Order LLC in favor of Crédit Agricole Indosuez, as
agent.
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19.
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Intercreditor
and Subordination Agreement dated January 7, 2003, as amended, among
Company and certain of its subsidiaries, as obligors, Crédit Agricole
Indosuez, as collateral agent, and Mellon HBV Master Rediscovered
Opportunities Fund, L.P., Crédit Agricole Indosuez, Indosuez Capital
Funding IIA, Limited, ML CLO XV Pilgrim America (Cayman), Ltd., and Smoky
River CDO, L.P., as subordinated creditors, and Wells Fargo Retail
Finance, LLC.
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20.
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Standby
Letter of Credit in the amount of $750,000 issued August 20, 2004 to PNC
Bank National Association pursuant to Section 6 of Lease Agreement by and
between WXI, Sun Real Estate Limited Partnership, as landlord, and
Frederick's of Hollywood, Inc., as tenant, dated August 19,
2004.
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21.
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Debt
Conversion Agreement dated January 28, 2008, among Company and its
subsidiaries and the Tranche A/B
Lenders.
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Real
Property Leases
22.
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Lease
Agreement by and between WXI, Sun Real Estate Limited Partnership, as
landlord, and Frederick's of Hollywood, Inc., as tenant, dated August 19,
2004, for corporate headquarter premises located at 6255 Sunset Boulevard,
Los Angeles, CA 90028, and First Amendment dated July 20, 2007,
between USA Sunset Media LLC, as successor in interest to landlord, and
tenant.
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23.
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Lease
Agreement by and between Ryan Companies USA Inc., as landlord, and
Frederick's of Hollywood, Inc., as tenant, dated September 25, 1998 for
Distribution Center premises at 5005 S. 40th
Street, Phoenix, AZ 85040, and amended by First Amendment dated
August 1, 1999, Second Amendment dated January 12, 2000, Third Amendment
dated February 15, 2002, and Fourth Amendment dated May 9, 2005, between
Cotton Fredericks, LLC as successor in interest to landlord, and
tenant.
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24.
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Lease
Agreement by and between Hollywood Associates LLC, as landlord, and
Frederick's of Hollywood Stores Inc., as tenant, dated March 2, 2005 for
Flagship Store at 6751 Hollywood Boulevard, Los Angeles,
CA 90028.
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Employment
Related Agreements
25.
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Employment
Agreement effective as of August 1, 2007 between Company and Linda
LoRe.
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26.
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Employment
Agreement effective as of August 1, 2007 between Company and John
Schulman.
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27.
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Employment
Agreement effective as of October 15, 2007 between Company and Gary
Marcotte.
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28.
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Equity
Incentive Agreement dated December 14, 2007 between Company and Linda
LoRe.
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Schedules
66
29.
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Equity
Incentive Agreement dated December 13, 2007 between Company and John
Schulman.
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Service
and/or License Agreements
30.
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Amendment
to Printing Agreement of April 16, 2001 dated March 29, 2006 between
Frederick’s of Hollywood and Quebecor World and Printing Agreement dated
April 16, 2001 between Frederick’s of Hollywood and Quebecor
World.
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31.
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Amended
and Restated Returns Management Services Agreement dated May 24, 2005
between Frederick’s of Hollywood, Inc. and Newgistics,
Inc.
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32.
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Program
Development and Administration Agreement dated August 13, 2003 between
Provell, Inc. and Frederick’s of Hollywood, Inc. and First Amendment to
Program
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Insurance
Policies
33.
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National
Union Fire Insurance Company Directors, Officers and Private Company
Liability Policy No. 695-98-58 held by Company with an aggregate limit of
liability of $25,000,000.
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34.
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National
Union Fire Insurance Company Employment Practices Liability Policy No.
695-98-64 held by Company with an aggregate limit of liability of
$10,000,000.
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35.
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National
Union Fire Insurance Company of Pittsburgh, Pa. Employee Benefit Plan
Fiduciary Liability Policy No. 695-98-72 held by Company with an aggregate
limit of liability of $4,000,000.
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36.
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National
Union Fire Insurance Company of Pittsburgh, Pa. Crime Guard Coverage
Policy No. 695-98-53 held by Company with a limit of liability of
$1,000,000.
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37.
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American
International Specialty Lines Insurance Company Internet Media and Network
Security Liability Insurance Policy No. 673-27-53 held by Company and
Frederick’x.xxx with limit of liability for internet media liability of
$3,000,000.
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38.
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The
American Guarantee and Liability Insurance Company Commercial General
Liability Policy No. CPO 2817541-00, with limit of liability of
$2,000,000.
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39.
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The
Zurich American Insurance Company Automobile Liability Policy No. CPO
2817541-00 with limit of liability of
$1,000,000.
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40.
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The
American Guarantee and Liability Insurance Company Excess Liability Policy
No. UMB 2817542-00 with limit of liability of
$3,000,000.
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41.
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Federal
Insurance Company Excess Liability Policy as policy number 7982-0638 with
limit of liability of $20,000,000.
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42.
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Hartford
Underwriters Insurance Company/Twin City Insurance Company Workers’
Compensation Insurance Policy No. 72 WE NT5500 (all States other than
Hawaii) with limit of liability of
$1,000,000.
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43.
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Hartford
Underwriters Insurance Company Workers’ Compensation Insurance Policy No.
72 WB NT 5583 (Hawaii only) with limit of liability of
$1,000,000.
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44.
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Zurich
American Insurance Company Property Insurance Policy No. CPO 2817541-00
with limits of liability of $38,171,005 (building and contents),
$38,827,005 (inventory), $13,183,274 (loss of income); and $11,083,994
(blanket for Florida and Hawaii).
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Schedules
67
B. Material Contracts of
Frederick’s of Hollywood Group Inc.
Agreement
and Plan of Merger and Reorganization and Related Agreements
|
1.
|
Agreement
and Plan of Merger and Reorganization dated as of December 18, 2006, as
amended, by and among FOH Holdings, Fred Merger Corp. and Frederick’s of
Hollywood Group Inc.
|
|
2.
|
Amendment
dated as of June 8, 2007 to Agreement and Plan of Merger and
Reorganization dated as of December 18, 2006 among the FOH Holdings, Fred
Merger Corp., and Frederick’s of Hollywood Group
Inc.
|
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3.
|
Amendment
dated as of November 27, 2007 to Agreement and Plan of Merger and
Reorganization dated as of December 18, 2006 among FOH Holdings, Fred
Merger Corp. and Frederick’s of Hollywood Group
Inc.
|
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4.
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Voting
Agreement dated as of December 18, 2006 between Frederick’s of Hollywood
Group Inc. and TTG Apparel.
|
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5.
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Stockholders
Agreement dated December 18, 2006 among Frederick’s of Hollywood Group
Inc., FOH Holdings, Fursa, Fursa Managed Accounts and Tokarz
Investments.
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6.
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Standby
Purchase Agreement dated December 18, 2006 among Frederick’s of Hollywood
Group Inc. and the Standby
Purchasers.
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7.
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Escrow
Agreement dated as of January 28, 2008 between Frederick’s of Hollywood
Group Inc. and Patrick Brennan and Michael
Tokarz.
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8.
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Shareholders
Agreement dated as of January 28, 2008 by and among Fursa Group, TTG and
Frederick’s of Hollywood Group Inc.
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9.
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Registration
Rights Agreement dated as of January 28, 2008 by and among Frederick’s of
Hollywood Group Inc., Fursa Group and TTG
Group.
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10.
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Warrant,
dated January 28, 2008, to purchase, Frederick’s of Hollywood Group common
stock issued to Tokarz Investments,
LLC.
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11.
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Warrant,
dated January 18, 2008, to purchase Frederick’s of Hollywood Group common
stock issued to Fursa Master Global Event Driven Fund
L.P.
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12.
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Accounts
Receivable Financing Agreement dated as of June 30, 2006 between The CIT
Group/Commercial Services, Inc. and Frederick’s of Hollywood Group
Inc.
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13.
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Inventory
Security Agreement dated as of June 30, 2006 between The CIT
Group/Commercial Services, Inc. and Frederick’s of Hollywood Group
Inc.
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14.
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Letter
of Credit Agreement dated as of June 30, 2006 between The CIT
Group/Commercial Services, Inc. and Frederick’s of Hollywood Group
Inc.
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Employment
Related Agreements
15.
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1988
Amended and Restated Non-Qualified Stock Option
Plan.
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16.
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1994
Incentive Stock Option Plan.
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17.
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2000
Performance Equity Plan.
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18.
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1998
Senior Executive Incentive Plan, as
amended
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19.
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Agreement
dated as of July 1, 1999 between Mark M. David and Frederick’s of
Hollywood Group Inc. providing for retirement benefits to Mr.
David.
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20.
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Employee
Stock Ownership and Capital Accumulation Plan, as amended. [Terminated
effective 12/31/07].
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21.
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Amended
and Restated Employment Agreement dated as of October 3, 2006 between
Melvyn Knigin and Frederick’s of Hollywood Group Inc., and amendment
thereto, dated as of November 28,
2006.
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Schedules
68
22.
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Restricted
Stock Agreement dated as of October 3, 2006 between Melvyn Knigin and
Frederick’s of Hollywood Group Inc.
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23.
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Letter
dated January 28, 2003 from Melvyn Knigin to Frederick’s of Hollywood
Group Inc. for the surrender and forfeiture of Mr. Knigin’s stock
options.
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24.
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Amended
and Restated Employment Agreement dated as of October 13, 2006 between
Saul Pomerantz and Frederick’s of Hollywood Group Inc., and amendment
thereto, dated as of November 28,
2006.
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25.
|
Amended
and Restated Employment Agreement dated as of January 24, 2008 between
Thomas Rende and Frederick’s of Hollywood Group
Inc.
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26.
|
Stock
Agreement dated as of January 28, 2008 between Thomas Rende and
Frederick’s of Hollywood Group Inc.
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27.
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Employment
Agreement dated as of September 7, 2006 between Mark Ryan and Frederick’s
of Hollywood Group Inc.
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28.
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Non-Employee
Director Compensation Plan effective January 1,
2005
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29.
|
Cinema
Etoile Commission Calculation effective September 5,
2006.
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30.
|
Employment
agreement with Daniel Bernstein dated August 3, 2004. Daniel
Bernstein resigned in June 2005 and the non-compete provision of his
agreement (section 5.4) became
effective.
|
31.
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Employment
termination agreement with Howard Radziminsky effective September 28,
2006.
|
32.
|
Key-man
Term-Life Insurance Policy on Melvyn Knigin – Face amount $5,000,000,
Frederick’s of Hollywood Group Inc. is the
beneficiary.
|
Stock
Option Agreements
33.
|
Stock
Option Agreement, dated January 29, 1997, between Saul Pomerantz and
Frederick’s of Hollywood Group Inc.
|
34.
|
Stock
Option Agreement, dated January 29, 1997, between Shelley Pomerantz and
Frederick’s of Hollywood Group Inc.
|
35.
|
Stock
Option Agreement, dated January 29, 1997 between Thomas Rende and
Frederick’s of Hollywood Group Inc.
|
36.
|
Stock
Option Agreement, dated November 4, 1998, between Saul Pomerantz and
Frederick’s of Hollywood Group Inc.
|
37.
|
Stock
Option Agreement, dated November 4, 1998, between Saul Pomerantz and
Frederick’s of Hollywood Group Inc.
|
38.
|
Stock
Option Agreement, dated November 4, 1998 between Thomas Rende and
Frederick’s of Hollywood Group Inc.
|
39.
|
Stock
Option Agreement, dated December 21, 1999 between Howard Radziminsky and
Frederick’s of Hollywood Group Inc.
|
40.
|
Stock
Option Agreement, dated February 22, 2000 between Saul Pomerantz and
Frederick’s of Hollywood Group Inc.
|
41.
|
Stock
Option Agreement, dated February 22, 2000 between Thomas Rende and
Frederick’s of Hollywood Group Inc.
|
42.
|
Stock
Option Agreement, dated April 13, 2000 between Howard Radziminsky and
Frederick’s of Hollywood Group Inc.
|
43.
|
Stock
Option Agreement, dated January 3, 2001 between Howard Radziminsky and
Frederick’s of Hollywood Group Inc.
|
44.
|
Stock
Option Agreement, dated December 6, 2004 between Peter Cole and
Frederick’s of Hollywood Group Inc.
|
Schedules
69
45.
|
Stock
Option Agreement, dated December 6, 2004 between John Eisel and
Frederick’s of Hollywood Group Inc.
|
46.
|
Stock
Option Agreement, dated December 6, 2004 between Michael Salberg and
Frederick’s of Hollywood Group Inc.
|
47.
|
Stock
Option Agreement, dated December 6, 2004 between Joel Simon and
Frederick’s of Hollywood Group Inc.
|
48.
|
Stock
Option Agreement, dated December 10, 2004 between Saul Pomerantz and
Frederick’s of Hollywood Group Inc.
|
49.
|
Stock
Option Agreement, dated December 10, 2004 between Thomas Rende and
Frederick’s of Hollywood Group Inc.
|
50.
|
Stock
Option Agreement, dated February 9, 2006 between Juan Barrera and
Frederick’s of Hollywood Group Inc.
|
51.
|
Stock
Option Agreement, dated February 9, 2006 between Michelle Clark and
Frederick’s of Hollywood Group Inc.
|
52.
|
Stock
Option Agreement, dated October 2, 2006 between Mark Ryan and Frederick’s
of Hollywood Group Inc.
|
53.
|
Stock
Option Agreement, dated October 3, 2006 between Mel Knigin and Frederick’s
of Hollywood Group Inc.
|
54.
|
Stock
Option Agreement, dated October 13, 2006 between Tina Kelly and
Frederick’s of Hollywood Group Inc.
|
55.
|
Stock
Option Agreement, dated October 13, 2006 between Albin Zila and
Frederick’s of Hollywood Group Inc.
|
56.
|
Stock
Option Agreement, dated October 13, 2006 between Saul Pomerantz and
Frederick’s of Hollywood Group Inc.
|
57.
|
Stock
Option Agreement, dated October 13, 2006 between Thomas Rende and
Frederick’s of Hollywood Group Inc.
|
58.
|
Form
of Non-Employee Director Non-Qualified Stock Option Agreement dated
December 6, 2004.
|
59.
|
Form
of Non-Qualified Stock Option Agreement (relating to 50,000 shares) dated
as of April 9, 2007 between Frederick’s of Hollywood Group Inc. and
Performance Enhancement Partners,
LLC.
|
60.
|
Stock
Option Agreement, dated January 28, 2008, between Thomas Rende and
Frederick’s of Hollywood Group Inc.
|
61.
|
Stock
Option Agreement dated January 28, 2008, between Saul Pomerantz and
Frederick’s of Hollywood Group Inc.
|
62.
|
Non-Qualified
Stock Option Agreement dated January 28, 2008 between Frederick’s of
Hollywood Group Inc. and Performance Enhancement Partners,
LLC.
|
Consulting
Agreements
63.
|
Consulting
Agreement dated as of January 1, 2003 between BENJAM Consulting LLC and
Frederick’s of Hollywood Group Inc. replacing the Agreement dated as of
July 1, 1999 between Mark M. David and Frederick’s of Hollywood Group Inc.
for Mr. David’s consulting
services.
|
64.
|
Amendment,
dated as of September 19, 2005, to Consulting Agreement dated as of
January 1, 2003 between BENJAM Consulting LLC and Frederick’s of Hollywood
Group Inc.
|
65.
|
Consulting
Agreement, dated as of May 3, 2004 between Frederick’s of Hollywood Group
Inc. and LLI, Inc.
|
66.
|
Letter
Agreement, dated June 30, 2006, between Frederick’s of Hollywood Group
Inc. and each of Xxxx Xxxxx and Xxxxxxx
Xxxxxxx.
|
Schedules
70
67.
|
Consulting
Agreement dated as of April 9, 2007 between Frederick’s of Hollywood Group
Inc. and Performance Enhancement Partners,
LLC.
|
License
Agreements
68.
|
Memorandum,
dated July 8, 2004, from LLI, Inc. and Xxxxxxx Xxxxx to Cinejour Lingerie
Inc. and Frederick’s of Hollywood Group
Inc.
|
Leases
69.
|
Lease
Contract and Agreement, dated November 29, 2000 by and between Pearl River
Country, MS and Frederick’s of Hollywood Group Inc. for the property
located at 000 Xxxxxxx 00 Xxxxx, Xxxxxxxxxxx,
XX.
|
70.
|
Agreement
of Lease, dated as of March 2001, between Green 180 Madison LLC (Landlord)
and Frederick’s of Hollywood Group Inc. (Tenant) and Lease Modification
and Extension Agreement, dated as of May 2, 2006 by and between 180
Madison Owners LLC (successor in interest to Green 180 Madison LLC) and
Frederick’s of Hollywood Group Inc.
|
71.
|
Agreement
of Lease, dated as of September 8, 2000, between Eleven Fifteen Associates
and Frederick’s of Hollywood Group Inc. for the entire 11th
floor of 0000 Xxxxxxxx, XX, XX.
|
72.
|
Agreement
of Lease, dated as of September 8, 2000, between Eleven Fifteen Associates
and Frederick’s of Hollywood Group Inc. for the rear portion of the tenth
floor of 0000 Xxxxxxxx XX, XX a/k/a 0 Xxxx 00xx
Xxxxxx.
|
73.
|
Value
Plan Lease Agreement, dated June 13, 2006, between IBM Credit LLC and
Frederick’s of Hollywood Group Inc.
|
Service
Agreements
74.
|
Master
Agreement, dated August 18, 2006, between AT&T and Frederick’s of
Hollywood Group Inc.
|
75.
|
Software
Support Services Agreement, dated September 18, 2006, between Payformance
Corporation and Frederick’s of Hollywood Group
Inc.
|
76.
|
Trading
Partner Agreement dated October 6, 2005 between GXS, Inc. and Frederick’s
of Hollywood Group Inc. and an Amendment to that agreement dated July 1,
2006.
|
77.
|
Recovery
Services Agreement, dated April 1, 2006, between Sungard Availability
Services LP and Frederick’s of Hollywood Group Inc., Amended May 1,
2006.
|
78.
|
Service
Agreement, dated February 1, 2004, between Frederick’s of Hollywood Group
Inc. and XXXXXxxxx.xxx, Inc.
|
79.
|
Directed
Trustee Agreement, dated December 2, 2003, by and among Frederick’s of
Hollywood Group Inc. and Counsel Trust Company (401k
Trustee).
|
80.
|
Investment
Advisory Agreement, dated December 3, 2002, between USICG Advisors, Inc.
and Frederick’s of Hollywood Group
Inc.
|
81.
|
Retirement
Plan Service Agreement, dated as of April 1, 2005, between Frederick’s of
Hollywood Group Inc. and Xxxxx Group,
Inc.
|
82.
|
Letter
of Acceptance of Appointment as Trustee to the Employee Stock Plan, dated
September 20, 2002 from GreatBanc Trust
Company.
|
83.
|
Executive
Search Agreement, dated April 13, 2006, between Xxxxxxxx Xxxxxx and
Xxxxxxxx and Xxxxxxxxx’x of Hollywood Group Inc., and Extension Agreement
dated July 19, 2006.
|
Agreements
Terminable by or Requiring Notice to the Other Party or Parties Upon a Change in
Control
84.
|
Directors
and Officers Insurance Policy with Illinois National Insurance Company for
policy period from May 19, 2006 to May 19,
2007.
|
Schedules
71
SCHEDULE
6.01(z)
NAME;
JURISDICTION OF ORGANIZATION;
ORGANIZATIONAL ID NUMBER;
CHIEF PLACE OF BUSINESS; FEIN
Name/Chief Place of Business
|
Jurisdiction of
Incorporation/Formation
|
Organizational ID
|
FEIN
|
|||
FREDERICK’S
OF HOLLYWOOD GROUP INC.
0000
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
New
York
|
None
|
00-0000000
|
|||
FOH
HOLDINGS, INC.
0000
Xxxxxx Xxxxxxxxx
0xx
Xxxxx
Xxxxxxxxx,
XX 00000
|
Delaware
|
2749384
|
00-0000000
|
|||
FREDERICK'S
OF HOLLYWOOD, INC.
0000
Xxxxxx Xxxxxxxxx
0xx
Xxxxx
Xxxxxxxxx,
XX 00000
|
Delaware
|
0580404
|
00-0000000
|
|||
FREDERICK'S
OF HOLLYWOOD STORES, INC.
0000
Xxxxxx Xxxxxxxxx
0xx
Xxxxx
Xxxxxxxxx,
XX 00000
|
Nevada
|
C16109-98
|
00-0000000
|
|||
XXXXXXXXXX.XXX,
INC.
0000
Xxxxxx Xxxxxxxxx
0xx
Xxxxx
Xxxxxxxxx,
XX 00000
|
Nevada
|
C9434-99
|
00-0000000
|
|||
HOLLYWOOD
MAIL ORDER, LLC
0000
Xxxxxx Xxxxxxxxx
0xx
Xxxxx
Xxxxxxxxx,
XX 00000
|
Nevada
|
LLC5354-99
|
00-0000000
|
Schedules
72
Schedule
6.01(ee)
CREDIT CARD
PROCESSORS
1. Agreement
between Paymentech, LP and Frederick's of Hollywood Stores, Inc. dated
January 10, 2003.
2. Agreement
between Paymentech, LP and Hollywood Mail Order, LLC, dated February 6,
2003.
Schedules
73
Schedule
7.01(a)
COLLATERAL REPORTING
REQUIREMENTS
Please
note that requirements below apply to both Frederick’s and Movie Star unless
otherwise noted.
Weekly:
Borrowing
Base Certificate of Exhibit J hereto, with summary backup Inventory information
(inclusive of list of supporting documents for Eligible Inventory, Eligible
Credit Card Accounts, and Eligible Trade Receivables portions of Borrowing Base
Certificate)
Monthly:
On the
15th
Day following month-end:
|
·
|
Inventory
Stock Ledger by Department (Frederick’s) and Inventory Stock Ledger (Movie
Star)
|
|
·
|
Inventory
Certificate (in Agent’s format) – inclusive of Sales to Stock
percents
|
|
·
|
Inventory
Aging Report
|
|
·
|
A/P
Aging (which is called the Cash Requirements report for
Xxxxxxxxxx)
|
On the
30th
Day following month-end:
|
·
|
Financial
Snapshot (Sales, AR, Inventory, gross
margin)
|
|
·
|
Statement
of Store Activity (in Agent’s format) for
Frederick’s
|
|
·
|
Detailed
summary of capital expenditures
|
Quarterly:
On the
45th
Day following Quarter-End:
|
·
|
Rent,
Tax & Insurance Compliance Certificate (in Agent’s
format)
|
|
·
|
Officer’s
Compliance Certificate (in Agent’s
format)
|
|
·
|
Reconciliation
of Inventory Stock Ledger (System) and General
Ledger
|
|
·
|
Quarterly
Financial Statements (10Q)
|
Annually:
On the
90th
Day following Year-End:
|
·
|
Audited
final year-end financial statements within 90 days after fiscal
year-end
|
Within 30
Days of Year-End:
|
·
|
Business
Plan detailing the income statement, balance sheet, and statement of cash
flows by month for both Frederick’s, Movie Star and
consolidated
|
Any other
reports as to the collateral or financial condition may be requested on an as
needed basis.
Schedules
74
Schedule
7.01(m)
COLLATERAL
LOCATIONS
See
Schedule 6.01(o)
Schedules
75
Schedule
7.01(v)
POST EFFECTIVE DATE
OBLIGATIONS
[None]
Schedules
76
Schedule
7.02(b)
LIENS
New York
State tax warrant issued against Movie Star, Inc. by New York State Department
of Taxation and Finance in the amount of $11,777.52, effective as of November
10, 1988.
Docketing
date: 11/17/1988
Effective
date: 11/10/1988
Clerk/
Seq #: EBERHARD 035
Index
Number: 0000
Schedules
77
Schedule
7.02(f)
EXISTING
INVESTMENTS
[None]
Schedules
78
Schedule
7.02(l)
LIMITATIONS ON DIVIDENDS AND
OTHER PAYMENT RESTRICTIONS
[None]
Schedules
79
EXECUTION
COPY
EXHIBIT
A
AMENDED
AND RESTATED
REVOLVING
CREDIT NOTE
$25,000,000
|
Dated: January
28, 0000
|
Xxx
Xxxx, Xxx Xxxx
|
FOR VALUE RECEIVED, Frederick’s of
Hollywood Group Inc., a New York corporation (“Group”), FOH Holdings, Inc., a
Delaware corporation (the “Parent”), Frederick’s of Hollywood, Inc., a Delaware
corporation (“Frederick’s”), Frederick’s of Hollywood Stores, Inc., a Nevada
corporation (“Stores”), Hollywood Mail Order, LLC, a Nevada limited liability
company (“Mail Order, and collectively, with Group, the Parent, Frederick’s and
Stores, each individually, a “Borrower”, and collectively, the “Borrowers”),
HEREBY JOINTLY AND SEVERALLY PROMISE TO PAY to the order of XXXXX FARGO RETAIL
FINANCE II, LLC, a Delaware limited liability company (the “Lender”), (i) the
principal amount of TWENTY FIVE MILLION DOLLARS ($25,000,000), or if less, the
aggregate unpaid principal amount of the Revolving Loans made by the Lender to
the Borrowers, payable on the Maturity Date and (ii) interest on the unpaid
principal amount of all Revolving Loans, from the date hereof until all such
principal amounts are paid in full, at such interest rates, and payable at such
times, as are specified in the Financing Agreement.
Notwithstanding any other provision of
this Revolving Credit Note, interest paid or becoming due hereunder shall in no
event exceed the maximum rate permitted by applicable law. Both
principal and interest are payable in lawful money of the United States of
America in immediately available funds to the Agent at its office designated for
such purpose in the Financing Agreement, or such other office as the
Agent may designate.
This Revolving Credit Note evidences
Revolving Loans under, is subject to the terms and conditions of, and has been
issued by the Borrowers in accordance with the terms of, that certain Amended
and Restated Financing Agreement dated as of January 28, 2008 (as the same may
be amended, restated or otherwise modified from time to time, the “Financing
Agreement”), by and among the Borrowers, the financial institutions from time to
time party thereto as Lenders, and Xxxxx Fargo Retail Finance II, LLC, as Agent,
and is one of the Revolving Credit Notes referred to therein and is secured by
the Collateral Documents. Capitalized terms used herein and not
otherwise defined herein shall have the meanings set forth in the Financing
Agreement.
The Financing Agreement, among other
things, contains provisions for the acceleration of the maturity of the unpaid
principal amount of this Revolving Credit Note upon the happening of certain
stated events of default and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions specified
therein.
EXECUTION
COPY
This
Revolving Credit Note is a registered note and, as provided in the Financing
Agreement, this Revolving Credit Note and the Revolving Loans evidenced hereby
may be transferred in whole or in part only upon surrender of this Revolving
Credit Note to the Agent for registration of transfer or exchange (and in the
case of a surrender for registration of transfer, duly endorsed or accompanied
by a written instrument of transfer, duly executed by the registered holder of
this Revolving Credit Note or its attorney duly authorized in writing), at which
time a new Revolving Credit Note for a like principal amount will be issued to,
and registered in the name of, the permitted transferee as provided in Section
12.07(b) of the Financing Agreement. Reference in this Revolving
Credit Note to a “holder” shall mean the person or entity in whose name this
Revolving Credit Note is at the time registered in the register maintained by
the Agent as provided in Section 12.07(b) of the Financing Agreement and, prior
to due presentment for registration of transfer, the Agent, the Lenders and the
Borrowers may treat such person or entity as the owner of this Revolving Credit
Note for the purposes of receiving payment and all other purposes, and the
Borrowers will not be affected by any notice to the contrary.
This
Revolving Credit Note amends, restates and supersedes that certain Revolving
Credit Note, dated as of January 7, 2003 (the “Existing Note”), by
Mail Order, the Parent, Frederick’s and Stores to the order of the Lender, and
is issued in substitution thereof. The Borrowers confirm that the
indebtedness outstanding under and evidenced by the Existing Note has not been
repaid, satisfied or discharged, but for all purposes has been amended and
extended as provided herein and that the indebtedness evidenced by this
Revolving Credit Note on the date hereof constitutes the same indebtedness that
was outstanding under the Existing Note prior to such amendment and
extension.
Each Borrower and each Guarantor of
this Revolving Credit Note waives presentment for payment, demand, protest and
notice of dishonor, and all other demands and notice in connection with the
delivery, acceptance, performance, default or enforcement, of this Revolving
Credit Note, except such notices as may be expressly required to be delivered
thereto pursuant to the terms of the Financing Agreement, and assents to any
extension or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other Person primarily or secondarily liable.
This Revolving Credit Note shall be
governed by, and construed and interpreted in accordance with, the internal laws
of the State of New York applicable to contracts made and to be performed
therein without consideration as to choice of law.
[Remainder
of this page intentionally left blank.]
EXECUTION
COPY
IN
WITNESS WHEREOF, each Borrower has caused this Revolving Credit Note to be
signed by its duly authorized officer as of the date and year first set forth
above.
FREDERICK’S
OF HOLLYWOOD GROUP INC.
|
|
By:
|
|
Name:
|
|
Title:
|
|
FOH
HOLDINGS, INC.
|
|
By:
|
|
Name:
|
|
Title:
|
|
FREDERICK’S
OF HOLLYWOOD, INC.
|
|
By:
|
|
Name:
|
|
Title:
|
|
FREDERICK’S
OF HOLLYWOOD STORES, INC.
|
|
By:
|
|
Name:
|
|
Title:
|
HOLLYWOOD
MAIL ORDER, LLC
|
|
By:
FOH Holdings, Inc., its Manager
|
|
By:
|
|
Name:
|
|
Title:
|
EXHIBIT
B
FORM OF
GUARANTY
GUARANTY,
dated [___________], made by [NAME OF GUARANTOR], a [_____________] (“Guarantor”), in favor
of each of the Lenders (as hereinafter defined) and Xxxxx Fargo Retail Finance
II, LLC, as agent for the Lenders (the “Agent”) pursuant to
the Financing Agreement referred to below.
WITNESSETH
WHEREAS,
Xxxxxxxxxx of Hollywood Group Inc., a New York corporation (“Group”), FOH
Holdings, Inc., a Delaware corporation (the “Parent”), Frederick’s
of Hollywood, Inc., a Delaware corporation (“Frederick’s”),
Frederick’s of Hollywood Stores, Inc., a Nevada corporation (“Stores”), Hollywood
Mail Order LLC, a Nevada limited liability company (“Mail Order”; together
with the Group, Parent, Frederick’s and Stores, each, a “Borrower” and
collectively, the “Borrowers”), the
financial institutions from time to time party thereto (each individually a
“Lender” and
collectively, the “Lenders”), and the
Agent are parties to an Amended and Restated Financing Agreement, dated as of
January [__], 2008 (such Agreement, as amended, restated or otherwise modified
from time to time, being hereinafter referred to as the “Financing
Agreement”);
WHEREAS,
pursuant to the Financing Agreement, the Lenders have agreed to make certain
revolving credit loans to the Borrowers and to provide a subfacility for the
issuance of letters of credit for the account of the Borrowers;
WHEREAS,
Group directly or indirectly owns all of the issued and outstanding shares of
capital stock of Guarantor;
WHEREAS,
it is a condition precedent to the making of any Revolving Loan or the provision
of any Letter of Credit or Letter of Credit Guaranty pursuant to the Financing
Agreement that Guarantor shall have executed and delivered to the Agent and the
Lenders a guaranty guaranteeing the obligations of the Borrowers under the Loan
Documents (as defined in the Financing Agreement);
WHEREAS,
the Borrowers and the Guarantor are mutually dependent on each other in the
conduct of their respective businesses as an integrated operation, with the
credit needed from time to time by the Guarantor often being provided through
financing obtained by the Borrowers and the ability of the Borrowers to obtain
such financing being dependent on the successful operations of the Guarantor;
and
WHEREAS,
Guarantor has determined that its execution, delivery and performance of this
Guaranty directly benefit, and are within the purposes and in the best interests
of, Guarantor;
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Lenders to make and maintain the Revolving Loans pursuant to
the Financing Agreement, Guarantor hereby agree with the Lenders and the Agent
as follows:
SECTION
1. Definitions. Reference
is hereby made to the Financing Agreement for a statement of the terms thereof.
All terms used in this Guaranty which are defined therein and not otherwise
defined herein shall have the same meanings herein as set forth
therein.
SECTION
2. Guaranty. Guarantor
hereby (i) irrevocably, absolutely and unconditionally guarantees the prompt
payment by the Borrowers, as and when due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), of all
amounts now or hereafter owing in respect of the Revolving Credit Notes, the
Financing Agreement and the other Loan Documents, whether for principal,
interest (including, without limitation, interest accruing on or after the
commencement of any Insolvency Proceeding relating to a Borrower), Bank Product
Obligations, Reimbursement Obligations, Letter of Credit Obligations, premiums,
indemnities, fees, costs, expenses (including, without limitation, fees, costs
and expenses arising or accruing on or after the commencement of any Insolvency
Proceeding relating to a Borrower), or otherwise, and whether accruing before or
subsequent to the commencement of any Insolvency Proceeding relating to a
Borrower (notwithstanding the operation of the automatic stay under Section
362(a) of the Bankruptcy Code), and the due performance and observance by each
Borrower of its other obligations now or hereafter existing in respect of the
Loan Documents (collectively, the “Obligations”); and
(ii) agrees to pay any and all expenses (including counsel fees, costs and
expenses) incurred by the Agent, the L/C Issuer and the Lenders in enforcing any
of their rights under this Guaranty. Without limiting the generality of the
foregoing, Guarantor’s liability shall extend to all amounts that constitute
part of the Obligations and would be owed by a Borrower under the Financing
Agreement or other Loan Documents but for the fact that such document is
unenforceable or not allowable due to the existence of an Insolvency Proceeding
involving a Borrower.
SECTION
3. Guarantor’s Obligations
Unconditional.
(a) Guarantor
hereby guarantees that the Obligations will be paid strictly in accordance with
the terms of the Loan Documents, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent, the L/C Issuer or the Lenders with respect thereto.
Guarantor agrees that its guarantee constitutes a guaranty of payment when due
and not of collection and waives any right to require that any resort be made by
the Agent, the L/C Issuer or the Lenders to any Collateral. The obligations of
Guarantor under this Guaranty are independent of the obligations under the
Financing Agreement and the other Loan Documents, and a separate action or
actions may be brought and prosecuted against Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against any Borrower or
any other Loan Party or whether any Borrower or any other Loan Party is joined
in any such action. The liability of Guarantor hereunder shall be absolute and
unconditional irrespective of: (i) any lack of validity or enforceability of any
Loan Document or any agreement or instrument relating thereto; (ii) any change
in the time, manner or place of payment of, or in any other term in respect of,
all or any of the Obligations, or any other amendment or waiver of or consent to
any departure from any provision of any Loan Document (including the creation or
existence of any Obligations in excess of the amount permitted by any lending
formulas contained in the Loan Documents or the amount evidenced by the Loan
Documents); (iii) any exchange or release of, or non-perfection of any Lien on
or security interest in, any Collateral, or any release or amendment or waiver
of or consent to any departure from any other guaranty, for all or any of the
Obligations; (iv) the existence of any claim, set-off, defense or other right
that Guarantor may have at any time against any Person, including, without
limitation, the Agent, the L/C Issuer or any of the Lenders, or (v) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, any Borrower or any Loan Party in respect of the Obligations or
Guarantor in respect hereof.
2
(b) This
Guaranty (i) is a continuing guaranty and shall remain in full force and effect
until such date on which all of the Obligations and all other expenses to be
paid by the Guarantor pursuant hereto shall have been Paid in Full after the
Total Revolving Credit Commitment shall have been terminated and the Letters of
Credit are cancelled or cash collateralized and (ii) shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
of any of the Obligations is rescinded or must otherwise be returned by the
Agent, the L/C Issuer or any Lender, in connection with an Insolvency Proceeding
with respect to a Borrower or otherwise, all as though such payment had not been
made. As used herein, “Paid in Full” means
the indefeasible, full and final payment in cash, in immediately available
funds, of all the Obligations (whether or not any of the Obligations shall have
been voided, disallowed or subordinated pursuant to any provision of the
Bankruptcy Code, any applicable state fraudulent conveyance law, any other law
in connection with an Insolvency Proceeding or otherwise) after (A) the
termination of the Revolving Credit Commitments and (B) (1) the termination of
all Letters of Credit and all Letter of Credit Guaranties or (2) the receipt by
the Agent of cash collateral (or at the Agent’s option, a letter of credit
issued for the account of the applicable Loan Parties and at the expense of the
applicable Loan Parties, in form and substance satisfactory to the Agent, by an
issuer acceptable to the Agent and payable to the Agent as beneficiary) in such
amounts as the Agent determines are reasonably necessary to secure the Agent and
the Lenders from loss, cost, damage or expense, including attorneys’ fees, costs
and expenses, in connection with any contingent Obligations, including issued
and outstanding Letters of Credit and Letter of Credit Guaranties and checks or
other payments provisionally credited to the Obligations and/or as to which the
Agent or any Lender has not yet received final and indefeasible payment. All
Letters of Credit and Letter of Credit Guaranties shall be cash collateralized
(or collateralized by such letter of credit) by an amount equal to one hundred
four percent (104%) of the greatest amount for which the Letters of Credit and
Letter of Credit Guaranties then existing may be drawn, plus the amount of any
fees and expenses payable in connection therewith through the end of the latest
expiration date of any such Letters of Credit and Letter of Credit Guaranties.
The expressions “prior payment in full”, “payment in full”, “paid or satisfied
in full” and “paid in full” (whether or not such expressions are capitalized)
and other similar phrases shall have correlative meanings.
3
SECTION
4. Waivers.
(a) Guarantor
hereby waives: (i) promptness and diligence; (ii) notice of acceptance and
notice of the incurrence of any Obligation by the Borrowers; (iii) notice of any
actions taken by the Agent, the L/C Issuer, the Borrowers, any Loan Party or any
Lender under any Loan Document or any other agreement or instrument relating
thereto; (iv) all other notices, demands and protests, and all other formalities
of every kind in connection with the enforcement of the Obligations or of the
obligations of Guarantor hereunder, the omission of or delay in which, but for
the provisions of this Section 4, might constitute grounds for relieving
Guarantor of its obligations hereunder; (v) any right to compel or direct the
Agent, the L/C Issuer or the Lenders to seek payment or recovery of any amounts
owed under this Guaranty from any one particular fund or source; (vi) any
requirement that the Agent protect, secure, perfect or insure any security
interest or Lien or any property subject thereto or exhaust any right or take
any action against any Borrower, any Loan Party or any other Person or any
Collateral; and (vii) any other defense available to Guarantor. Guarantor
agrees that the Agent, the L/C Issuer and the Lenders shall have no obligation
to xxxxxxxx any assets in favor of Guarantor or against or in payment of any or
all of the Obligations.
(b) To
the fullest extent permitted by applicable law, Guarantor hereby waives: (i) any
rights to assert against any of the Agent, the L/C Issuer or a Lender any
defense (legal or equitable), set-off, counterclaim, or claim which Guarantor
may now or at any time hereafter have against the Borrowers or any other party
liable to any of the Agent, the L/C Issuer or a Lender; (ii) any defense,
set-off, counterclaim, or claim, of any kind or nature, arising directly or
indirectly from the present or future lack of perfection, sufficiency, validity,
enforceability of the Guarantied Obligations or any security therefor, or any
defense based on suretyship or impairment of collateral; (iii) any defense
arising by reason of any claim or defense based upon an election of remedies by
any of the Agent, the L/C Issuer or a Lender, including any defense based upon
an election of remedies by any of the Agent, the L/C Issuer or a Lender under
the provisions of §§ 580d and 726 of the California Code of Civil Procedure, or
any similar law of California or any other jurisdiction; and (iv) the benefit of
any statute of limitations affecting Guarantor’s liability hereunder or the
enforcement thereof, and any act which shall defer or delay the operation of any
statute of limitations applicable to the Obligations shall similarly operate to
defer or delay the operation of such statute of limitations applicable to
Guarantor’s liability hereunder.
(c) If
any of the Obligations at any time are secured by a mortgage or deed of trust
upon real property, the Agent, the L/C Issuer or a Lender may elect, in their
sole discretion, upon a default with respect to the Obligations, to foreclose
such mortgage or deed of trust judicially or nonjudicially in any manner
permitted by law, before or after enforcing this Guaranty, without diminishing
or affecting the liability of Guarantor hereunder. Guarantor understands that
(i) by. virtue of the operation of California’s antideficiency law applicable to
nonjudicial foreclosures or any similar laws of any other jurisdiction, an
election by the Agent, the L/C Issuer or a Lender nonjudicially to foreclose
such a mortgage or deed of trust probably would have the effect of impairing or
destroying rights of subrogation, reimbursement, contribution, or indemnity of
Guarantor against the Borrowers or other guarantors or sureties, and (ii) absent
the waiver given by Guarantor herein, such an election would estop the Agent,
the L/C Issuer and the Lenders from enforcing this Guaranty against Guarantor.
Understanding the foregoing, and understanding that the Guarantor hereby is
relinquishing a defense to the enforceability of this Guaranty, Guarantor hereby
waives any right to assert against the Lenders any defense to the enforcement of
this Guaranty, whether denominated “estoppel” or otherwise, based on or arising
from an election by the Agent, the L/C Issuer or a Lender nonjudicially to
foreclose any such mortgage or deed of trust. Guarantor understands
that the effect of the foregoing waiver may be that Guarantor may have liability
hereunder for amounts with respect to which Guarantor may be left without rights
of subrogation, reimbursement, contribution, or indemnity against the Borrowers
or other guarantors or sureties. Guarantor also agrees that the “fair market
value” provisions of Section 580a of the California Code of Civil Procedure or
any similar laws of any other jurisdiction shall have no applicability with
respect to the determination of Guarantor’s liability under this
Guaranty.
4
(d) Without
limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor waives all rights and defenses that Guarantor may have if
the Borrowers’ debt is secured by real property. This means, among other
things:
(i) The
Agent, the L/C Issuer and the Lenders may collect from Guarantor without first
foreclosing on any real or personal property collateral that may be pledged by
the Borrowers.
(ii) If
the Agent, the L/C Issuer and the Lenders foreclose on any real property
collateral that may be pledged by the Borrowers:
(1) the
amount of the debt may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the sale
price.
(2) the
Agent, the L/C Issuer and the Lenders may collect from Guarantor even if the
Agent, the L/C Issuer and the Lenders, by foreclosing on the real property
collateral, have destroyed any right Guarantor may have to collect from the
Borrowers.
This is
an unconditional and irrevocable waiver of any rights and defenses Guarantor may
have if the Borrowers’ debt is secured by real property. These rights and
defenses are based upon Section 580a, 580b, 580d, or 726 of the California Code
of Civil Procedure or any similar laws of California or any other
jurisdiction.
(e) WITHOUT
LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTY, GUARANTOR HEREBY WAIVES, TO THE MAXIMUM EXTENT SUCH WAIVER IS
PERMITTED BY LAW, ANY AND ALL BENEFITS OR DEFENSES ARISING DIRECTLY OR
INDIRECTLY UNDER ANY ONE OR MORE OF CALIFORNIA CIVIL CODE §§ 2799, 2808, 2809,
2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845, 2847, 2848, 2849, AND
2850, CALIFORNIA CODE OF CIVIL PROCEDURE §§ 580a, 580b, 580c, 580d, AND 726, AND
CHAPTER 2 OF TITLE 14 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR LAWS OF
CALIFORNIA OR ANY OTHER JURISDICTION.
(f) WITHOUT
LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER PROVISION SET FORTH IN THIS
GUARANTY, GUARANTOR WAIVES ALL RIGHTS AND DEFENSES ARISING OUT OF AN ELECTION OF
REMEDIES BY THE AGENT AND THE LENDERS, EVEN THOUGH THAT ELECTION OF REMEDIES,
SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT TO SECURITY FOR A GUARANTIED
OBLIGATION, HAS DESTROYED GUARANTOR’S RIGHTS OF SUBROGATION AND REIMBURSEMENT
AGAINST THE BORROWERS BY THE OPERATION OF SECTION 580d OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE OR ANY SIMILAR LAWS OF CALIFORNIA OR ANY OTHER JURISDICTION OR
OTHERWISE.
5
SECTION
5. Subrogation. Guarantor
agrees not to exercise any rights which it may acquire by way of subrogation
hereunder, by any payment made by it hereunder or otherwise, until such date
after the Final Maturity Date on which all of the Obligations and all other
fees, costs and expenses to be paid by the Guarantor pursuant hereto shall have
been Paid in Full. If any amount shall be paid to Guarantor on account of such
subrogation rights at any time when all of the Obligations and all such other
expenses shall not have been paid in full, such amount shall be held in trust
for the benefit of the Agent, the L/C Issuer and the Lenders, shall be
segregated from the other funds of the Guarantor and shall forthwith be paid
over to the Agent to be applied in whole or in part by the Agent against the
Obligations, whether matured or unmatured, and all such other expenses in
accordance with the terms of the Financing Agreement. If (i) Guarantor shall
make payment to the Agent of all or any portion of the Obligations and (ii) all
of the Obligations and all such other fees, costs and expenses shall be paid in
full, the Agent will, at Guarantor’s request, execute and deliver to Guarantor
(without recourse, representation or warranty) appropriate documents necessary
to evidence the transfer by subrogation to Guarantor of an interest in the
Obligations resulting from such payment by Guarantor, such subrogation to be
fully subject and subordinate, however, to the collection by the Agent, the L/C
Issuer and the Lenders of all other amounts due to the Agent, the L/C Issuer and
the Lenders by the Borrowers and each other Loan Party under the Financing
Agreement and the other Loan Documents.
SECTION
6. Representations and
Warranties. Guarantor, jointly and severally, hereby
represents and warrants as follows:
(a) Guarantor
(i) is a corporation, limited liability company or partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization as set forth on the first page hereof, (ii) has all requisite power
and authority to execute, deliver and perform this Agreement and each other Loan
Document to be executed and delivered by it pursuant hereto and to consummate
the transactions contemplated hereby and thereby, and (iii) is duly qualified to
do business and is in good standing in each jurisdiction in which the character
of the properties owned or leased by it or in which the transaction of its
business makes such qualification necessary.
(b) The
execution, delivery and performance by Guarantor of this Guaranty and each other
Loan Document to which Guarantor is a party (i) have been duly authorized by all
necessary action, (ii) do not and will not contravene its charter or by-laws,
its limited liability company or operating agreement or its certificate of
partnership or partnership agreement, as applicable, or any applicable law or
any contractual restriction binding on or affecting it or any of its properties,
(iii) do not and will not result in or require the creation of any Lien,
security interest or other charge or encumbrance upon or with respect to any of
its properties other than pursuant to any Loan Document, and (iv) do not and
will not result in any default, noncompliance, suspension, revocation,
impairment, forfeiture or nonrenewal of any permit, license, authorization or
approval applicable to it or its operations or any of its
properties.
6
(c) No
authorization, approval or other action by, and no notice to or filing with, any
Governmental Authority or other regulatory body is required in connection with
the due execution, delivery and performance by Guarantor of this Guaranty or any
of the other Loan Documents to which Guarantor is a party.
(d) Each
of this Guaranty and the other Loan Documents to which Guarantor is a party is a
legal, valid and binding obligation of Guarantor, enforceable against Guarantor
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws.
(e) There
is no pending or, to the best knowledge of Guarantor, threatened action, suit or
proceeding against Guarantor or to which any of the properties of Guarantor is
subject, before any court or other Governmental Authority or any arbitrator that
(i) could have a Material Adverse Effect or (ii) relates to the Financing
Agreement or any other Loan Document or any of the transactions contemplated
hereby or thereby.
(f) Guarantor
now has and will continue to have independent means of obtaining information
concerning the affairs, financial condition and business of the Borrowers and
the other Loan Parties, and has no need of, or right to obtain from, the Agent,
the L/C Issuer or any Lender any credit or other information concerning the
affairs, financial condition or business of any of the Borrowers or the other
Loan Parties that may come under the control of the Agent, the L/C Issuer or any
Lender.
SECTION
7. Right of
Set-off. Upon the occurrence and during the continuance of any
Event of Default, the Agent, the L/C Issuer and the Lenders may, and are hereby
authorized to, at any time and from time to time, without notice to Guarantor
(any such notice being expressly waived by Guarantor) and to the fullest extent
permitted by law, set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Agent, the L/C Issuer or any Lender to or for the credit
of the account of Guarantor against any and all obligations of the Guarantor now
or hereafter existing under this Guaranty, irrespective of whether or not the
Agent, the L/C Issuer or any Lender shall have made any demand under this
Guaranty and although such obligations may be contingent or unmatured. The
Agent, the L/C Issuer and the Lenders agree to notify the Guarantor promptly
after any such set-off and application made by the Agent or such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Agent, the L/C Issuer and the Lenders under this
Section 7 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Agent and the Lenders may
have.
SECTION
8. Notices,
Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed (by certified mail, postage
prepaid and return receipt requested), telecopied or delivered, if to Guarantor,
to it c/o Frederick’s at its address set forth in the Financing Agreement; if to
the Agent, to it at its address set forth in the Financing Agreement; or, as to
any such Person, at such other address as shall be designated by such Person in
a written notice to such other Persons complying as to delivery with the terms
of this Section 8. All such notices and other communications shall be effective
(i) if mailed, when received or three days after deposited in the mails,
whichever occurs first, (ii) if telecopied, when transmitted and a confirmation
is received, or (iii) if delivered, upon delivery.
7
SECTION
9. Consent to Jurisdiction;
Waiver of Immunities.
(a) Guarantor
hereby irrevocably submits to the jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern District of
the State of New York in any action, suit or proceeding arising out of or
relating to this Guaranty, and Guarantor hereby irrevocably agrees that all
claims in respect of such action, suit or proceeding may be heard and determined
in the State of New York or such federal court. Guarantor consents to the
service of any and all process in any such action, suit or proceeding by mailing
(by certified or registered mail, postage prepaid and return receipt requested)
or delivering a copy of such process to Guarantor at its address set forth in
Section 8 hereof or at such other address of which the Agent shall have been
notified pursuant thereto. Guarantor agrees that a final judgment in any such
action, suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.
(b) Nothing
in this Section 9 shall affect the right of the Agent to serve legal process in
any other manner permitted by law or affect the right of the Agent to bring any
action, suit or proceeding against Guarantor or its property in the courts of
any other jurisdictions.
(c) Guarantor
hereby expressly and irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
such action, suit or proceeding brought in any such court referred to above and
any claim that any such action, suit or proceeding has been brought in an
inconvenient forum. To the extent that Guarantor has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect to itself or its property, Guarantor hereby
irrevocably waives such immunity in respect of its obligations under this
Guaranty and the other Loan Documents.
(d) To
the extent that Guarantor has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, Guarantor hereby
irrevocably waives such immunity in respect of its obligations under this
Guaranty
(e) Guarantor
hereby expressly and irrevocably waives any right it may have to claim or
recover in any action, suit or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
SECTION
10. WAIVER OF JURY
TRIAL. GUARANTOR AND, BY ACCEPTANCE HEREOF, THE AGENT, THE L/C
ISSUER AND EACH LENDER WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS GUARANTY, THE LOAN
DOCUMENTS OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER
AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION
THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS
GUARANTY, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
8
SECTION
11. Miscellaneous.
(a) Guarantor
will make each payment hereunder in lawful money of the United States of America
and in immediately available funds to the Agent, for the benefit of the Lenders,
at such address specified by the Agent from time to time by notice to the
Guarantor.
(b) No
amendment of any provision of this Guaranty shall be effective unless it is in
writing and signed by Guarantor and the Agent, and no waiver of any provision of
this Guaranty, and no consent to any departure by Guarantor therefrom, shall be
effective unless it is in writing and signed by the Agent, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
(c) No
failure on the part of the Agent to exercise, and no delay in exercising, any
right hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any right preclude any
other or further exercise thereof or the exercise of any other right. The rights
and remedies of the Agent and the Lenders provided herein and in the other Loan
Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights of the Agent and the Lenders
under any Loan Document against any party thereto are not conditional or
contingent on any attempt by the Agent and the Lenders to exercise any of their
rights under any other Loan Document against such party or against any other
Person.
(d) Any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(e) This
Guaranty shall (i) be binding on Guarantor and its successors and assigns, and
(ii) inure, together with all rights and remedies of the Agent and the Lenders
hereunder, to the benefit of the Agent and the Lenders and their respective
successors, transferees and assigns. Without limiting the generality of clause
(ii) of the immediately preceding sentence, to the extent permitted by Section
12.07 of the Financing Agreement, any Lender may assign or otherwise transfer
any Revolving Credit Note held by it, and assign or otherwise transfer its
rights under any other Loan Document, to any other Person, and such other Person
shall thereupon become vested with all of the benefits in respect thereof
granted to the Lenders herein or otherwise. None of the rights or obligations of
Guarantor hereunder may be assigned or otherwise transferred without the prior
written consent of the Agent.
(f) This
Guaranty and the other Loan Documents represent the entire agreement of the
Guarantor, the Agent, the L/C Issuer and the other Lenders with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Agent, the L/C Issuer or any of the other Lenders relative
to the subject matter thereof not expressly set forth or referred to herein or
in the other Loan Documents.
9
(g) Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(h) [Reserved].
(i) This Guaranty shall be governed by
and construed in accordance with the law of the State of New
York.
10
IN WITNESS WHEREOF, Guarantor has
caused this Guaranty to be executed by an officer thereunto duly authorized, as
of the date first above written.
GUARANTOR:
|
||
[NAME
OF GUARANTOR]
|
||
By:
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||
Name:
|
||
Title:
|
EXHIBIT
C
FORM OF
NOTICE OF BORROWING
Xxxxx
Fargo Retail Finance II, LLC
as Agent
for the Lenders
party to
the Financing
Agreement
referred to below
Xxx
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: [_________________]
Ladies
and Gentlemen:
The
undersigned, [__________], a [_______] [_______] the Administrative Borrower
under and as defined in the Amended and Restated Financing Agreement dated as of
January [__], 2008 (the “Financing Agreement”, the terms defined therein being
used herein as therein defined), by and among the Administrative Borrower, FOH
Holdings, Inc., a Delaware corporation, Frederick’s of Hollywood, Inc., a
Delaware corporation, Frederick’s of Hollywood Stores, Inc., a Nevada
corporation, Hollywood Mail Order, LLC, a Nevada limited liability company, the
financial institutions from time to time party to the Financing Agreement
(collectively, the “Lenders”) and Xxxxx Fargo Retail Finance II, LLC, a Delaware
limited liability company, as agent for the Lenders (the “Agent”), hereby gives
you notice pursuant to Section 2.02 of the Financing Agreement that the
undersigned hereby requests a Revolving Loan under the Financing Agreement, and
in that connection sets forth below the information relating to such Revolving
Loan (the “Proposed Loan”) as required by Section 2.02 of the Financing
Agreement.
(i) The
aggregate principal amount of the Proposed Loan is $_________.
(ii) The
date of the Proposed Loan is ____ __, 20__.
The
undersigned hereby certifies that (i) the representations and warranties
contained in Article VI of the Financing Agreement and in each other Loan
Document, certificate or other writing delivered to the Agent, the Lenders or
the L/C Issuer pursuant thereto on or prior to the date hereof that are subject
to materiality or Material Adverse Effect qualifications are true and correct in
all respects and the representations and warranties contained in Article VI
of the Financing Agreement and in each other Loan Document, certificate or other
writing delivered to the Agent, the Lenders or the L/C Issuer pursuant hereto or
thereto on or prior to the date hereof that are not subject to materiality or
Material Adverse Effect qualifications are true and correct in all material
respects in each case, on and as of the date of the Proposed Loan, (ii) no
Default or Event of Default has occurred or is continuing or will result from
the making of the Proposed Loan to be made as of the date of the Proposed Loan,
and (iii) the conditions set forth in Section 5.02 of the Financing Agreement
have been satisfied as of the date of the Proposed Loan.
Very
truly yours,
|
|
[ADMINISTRATIVE
BORROWER]
|
|
By:
|
|
Name:
|
|
Title:
|
BAILEE
AGREEMENT
THIS
BAILEE AGREEMENT is entered into this [__] day of [_______], 20[__], by and
among [Frederick’s of Hollywood Group Inc., a New York corporation] [Xxxxxxxxxx
of Hollywood, Inc., a Delaware corporation] [Frederick’s of Hollywood Stores,
Inc., a Nevada corporation] [Hollywood Mail Order LLC, a Nevada limited
liability company] (“Company”), [NAME OF BAILEE] (“Bailee”), and Xxxxx Fargo
Retail Finance II, LLC (“Agent”), and is made with reference to the following
facts:
(A) From time to time, Bailee performs
[logistics services and makes advances for Company] [storage or transportation
services] with respect to now owned and hereafter acquired goods, documents of
title and other property (collectively, with proceeds of the foregoing, the
“Collateral”). Bailee holds [carrier’s and/or warehouse liens upon
the Collateral under Article 7 of the Uniform Commerical Code or other
applicable law] and/or [consensual security interests in the Collateral under
Article 9 of the Uniform Commercial Code or other applicable law].
(B) Lender is extending certain
financial accommodations to Company pursuant to certain financing arrangements
set forth in the Amended and Restated Financing Agreement, dated as of January
[__], 2008, by and among Company (and certain of its affiliates), as Borrower,
the financial institutions from time to time party thereto (the “Lenders”) and
Xxxxx Fargo Retail Finance II, LLC as the agent for the Lenders (as amended,
restated or otherwise modified from time to time, the “Financing Agreement”),
pursuant to which the Lenders have agreed to make loans to Company and assist
Company in obtaining letters of credit. Pursuant to the Financing
Agreement, Company granted a security interest in all of its assets, including
now owned and hereafter acquired goods, documents of title and other property
(including inventory) and without limitation all proceeds thereof, to the Agent
for the benefit of the Lenders to secure the obligations of Company and its
affiliates under the Loan Documents (as defined in the Financing
Agreement).
(C) The parties desire to establish the
relative priorities of Bailee’s and Agent’s liens and security
interests.
NOW, THEREFORE, the parties hereto
agree as follows:
1. Bailee
acknowledges that is has notification of Agent’s security interest in the
Collateral and that it holds the Collateral as bailee for Agent’s
benefit. Agent acknowledges that it has notification [(a) of Bailee’s
liens and security interests] [and (b) that Bailee has or expects to acquire a
purchase-money security interest in the Collateral]. [Agent is deemed
to have such notification each time Bailee performs services or makes advances
with respect to Collateral. Bailee’s liens and security interest have
priority over Agent’s security interest].
2. Bailee
represents that is has no knowledge at this time of any security interest or
other claims with respect to the Collateral, other than the security interests
set forth herein.
3. Upon
payment in full of all accrued and unpaid fees and charges which the Company may
owe to Bailee (collectively, the “Charges”), Bailee shall, upon written
direction by Agent: (a) deliver any or all Collateral in Bailee’s
possession or control to Agent or its stated designee; and (b) not comply with
instructions originated by Company, its agents, employees or other
representatives with respect to the disposition, delivery or release of
Collateral in Bailee’s possession or control.
4. Company
hereby releases Bailee from any and all claims and liability arising from
Bailee’s acting in accordance with any directions which Bailee in good faith
believes to have originated from Agent. Agent shall indemnify and
hold harmless Bailee for any claims for damages or personal injury or property
damage arising out of any acts or omissions by Agent, its agents, employees or
other representatives while on Bailee’s premises.
5. Bailee
acknowledges and agrees that it will not enforce any of its liens or security
interests in the Collateral without giving five (5) business days’ prior written
notice thereof to Agent, but failure to give such notice shall not impair
Bailee’s enforcement of its rights.
6. Prior
to delivery of Collateral, upon Agent’s request Bailee shall: (a)
notify Agent of the amount of accrued but unpaid Charges; and (b) permit Agent
at Bailee’s sole discretion to enter Bailee’s premises during business hours for
purposes of inspection of the Collateral.
7. This
Bailee Agreement does not impose any obligation or duty on Bailee or Agent other
than those expressed herein.
8. Notwithstanding
any course of dealing or other conduct, no provision of this Bailee Agreement
may be waived or modified, expect by a writing signed by all
parties.
9. Bailee
agrees to promptly notify Agent when the Charges exceed $[________]
USD.
10. In
the event that either party desires to terminate this Bailee Agreement, the
terminating party shall provide thirty (30) days written notice of its intention
to do so. During such 30-day notice period, all parties will continue
to cooperate with each other and undertake all such action as may be reasonably
required in connection with such termination. Such notice shall be
given to the following address for Agent and Bailee respectively:
Agent:
|
Bailee:
|
Xxxxx
Fargo Retail Finance II, LLC,
|
[NAME
OF BAILEE]
|
Xxx
Xxxxxx Xxxxx, 00xx
Xxxxx
|
[ADDRESS]
|
Xxxxxx,
Xxxxxxxxxxxxx 00000
|
[ADDRESS]
|
Attn: Xxxxxxxx
Xxxx
|
Attn: [__________]
|
Re: Frederick’s
of Hollywood, Inc.
Company:
c/o
Frederick’s of Hollywood, Inc.
0000
Xxxxxxxxx Xxxx.
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx
XxXx
Telephone: 000-000-0000
Telecopier: 000-000-0000
11. This
Bailee Agreement shall be construed under the internal substantive laws of
[________]. In the event of an action to enforce the terms of this
Bailee Agreement, the prevailing party shall be entitled to its attorneys’ fees
and costs.
XXXXX
FARGO RETAIL FINANCE II, LLC (“Agent”)
|
|
By
|
|
Its
|
|
[FREDERICK’S
OF HOLLYWOOD GROUP INC., a New
York
corporation]
|
|
[FREDERICK’S
OF HOLLYWOOD, INC., a Delaware
corporation]
|
|
[FREDERICK’S
OF HOLLYWOOD STORES, INC., a Nevada corporation]
|
|
[HOLLYWOOD
MAIL ORDER, LLC, a Nevada limited
liability
company, By: FOH Holdings, Inc., as its Manager]
|
|
(“Company”)
|
|
By
|
|
Its
|
|
[NAME
OF BAILEE] (“Bailee”)
|
|
By
|
|
Its
|
EXHIBIT
E
ACQUISITION
AGREEMENT
See
Agreement and Plan of Merger and Reorganization dated as of December
18,
2006, as
amended, by and among FOH Holdings, Xxxx Merger Corp. and
Frederick’s
of
Hollywood Group Inc., filed as Exhibit 2.1 to the Form 8-K dated December
18,
2006 and
filed with the SEC on December 20, 2006.
EXHIBIT
F
FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated
________ __, 20__
Reference
is made to the Amended and Restated Financing Agreement, dated as of January
[__], 2008 (as the same may be further amended, restated, supplemented or
otherwise modified from time to time, the “Financing Agreement”), by and among
Frederick’s of Hollywood Group Inc., a New York corporation, FOH Holdings, Inc.,
a Delaware corporation, Frederick’s of Hollywood, Inc., a Delaware corporation,
Frederick’s of Hollywood Stores, Inc., a Nevada corporation, Hollywood Mail
Order, LLC, a Nevada limited liability company (collectively, the “Borrowers”),
the financial institutions from time to time party thereto (each individually a
“Lender” and collectively, the “Lenders”), and Xxxxx Fargo Retail Finance II,
LLC, a Delaware limited liability company, as agent for the Lenders (in such
capacity, the “Agent”). Terms defined in the Financing Agreement are used herein
as therein defined.
_________________
(solely in its capacity as a Lender under the Financing Agreement) (the
“Assignor”) and _____________ (the “Assignee”) agree as follows:
1. The
Assignor hereby sells and assigns to the Assignee, without recourse,
representation or warranty, and the Assignee hereby purchases and assumes from
the Assignor, a _____%* interest (the “Assigned
Interest”) in and to all of the Assignor’s rights and obligations, solely as a
Lender, under the Financing Agreement and the other Loan Documents as of the
Effective Date (as defined below) (including, without limitation, (i) if the
Total Revolving Credit Commitment shall not have been terminated, the Assignor’s
Revolving Credit Commitment as in effect on the date hereof, (ii) the
outstanding principal amount of the Revolving Loans made by the Assignor, (iii)
the Assignor’s Pro Rata Share of the Letter of Credit Obligations and (iv) the
Revolving Credit Note evidencing the Assignor’s Revolving Loans).
2. The
Assignor (i) represents and warrants as of the date hereof that its Revolving
Credit Commitment (without giving effect to assignments thereof which have not
yet become effective) is $[___]; (ii) represents and warrants that it is the
legal and beneficial owner of the interest it is assigning hereunder; (iii)
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made by or in connection with
the Financing Agreement or any other Loan Document, the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Financing
Agreement, any other Loan Document, or any other instrument or document
furnished pursuant thereto; (iv) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Loan Parties or
the performance or observance by any Loan Party of any of its obligations under
the Financing Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto; and (v) attaches the Revolving Credit Note
referred to in paragraph 1 above, and requests that the Agent exchange the
Revolving Credit Note for new Revolving Credit Notes (appropriately dated so
that no loss of interest accrued prior to the date hereof shall result with
respect to the portion of the Revolving Loans assigned or the portion of the
Revolving Loans retained by the Assignor), consisting of a Revolving Credit Note
in the principal amount of $___________ , payable to the order of the Assignee,
and a Revolving Credit Note in the principal amount of $_____________ payable to
the order of the Assignor.
* Specify
percentage to no more than 4 decimal points.
(a) The
Assignee represents and warrants that it has become a party hereto solely in
reliance upon its own independent investigation of the financial and other
circumstances surrounding the Loan Parties, the Collateral, the Revolving Loans,
the Letters of Credit and all aspects of the transactions evidenced by or
referred to in the Loan Documents, or has otherwise satisfied itself thereto,
and that it is not relying upon any representation, warranty or statement
(except any such representation, warranty or statement expressly set forth in
this Agreement) of the Assignor in connection with the assignment made under
this Agreement. The Assignee further acknowledges that the Assignee will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based upon the Assignee’s review of such documents and information as
the Assignee deems appropriate at the time, make and continue to make its own
credit decisions in entering into this Agreement and taking or not taking action
under the Loan Documents. The Assignor shall have no duty or responsibility
either initially or on a continuing basis to make any such investigation or any
such appraisal on behalf of the Assignee or to provide the Assignee with any
credit or other information with respect thereto, whether coming into its
possession before the making of the initial extension of credit under the
Financing Agreement or at any time or times thereafter.
(b) The
Assignee represents and warrants to the Assignor that it has experience and
expertise in the making of loans such as the Revolving Loans or with respect to
the other types of credit which may be extended under the Financing Agreement;
that it has acquired its Assigned Interest for its own account and not with any
intention of selling all or any portion of such interest; and that it has
received, reviewed and approved copies of all Loan Documents.
(c) The
Assignor shall not be responsible to the Assignee for the execution,
effectiveness, accuracy, completeness, legal effect, genuineness, validity,
enforceability, collectibility or sufficiency of any of the Loan Documents or
for any representations, warranties, recitals or statements made therein or in
any written or oral statement or in any financial or other statements,
instruments, reports, certificates or any other documents made or furnished or
made available by the Assignor to the Assignee or by or on behalf of the Loan
Parties to the Assignor or the Assignee in connection with the Loan Documents
and the transactions contemplated thereby or for the financial condition or
business affairs of the Loan Parties or any other Person liable for the payment
of any Revolving Loans, Letter of Credit Obligations, other amounts owed in
connection with other extensions of credit under the Financing Agreement or
other Obligations or the value of the Collateral or any other matter. The
Assignor shall not be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Loan Documents or as to the use of the proceeds of the
Revolving Loans or Letters of Credit or other extensions of credit under the
Financing Agreement or as to the existence or possible existence of any Event of
Default or Default.
(d)
Each party to this Agreement represents and warrants to the
other party to this Agreement that it has full power and authority to enter into
this Agreement and to perform its obligations under this Agreement in accordance
with the provisions of this Agreement, that this Agreement has been duly
authorized, executed and delivered by such party and that this Agreement
constitutes a legal, valid and binding obligation of such party, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, moratorium or other similar laws affecting creditors’ rights
generally and by general equitable principles.
(e) Each
party to this Agreement represents and warrants that the making and performance
by it of this Agreement do not and will not violate any law or regulation of the
jurisdiction of its incorporation or any other law or regulation applicable to
it.
(f) Each
party to this Agreement represents and warrants that all consents, licenses,
approvals, authorizations, exemptions, registrations, filings, opinions and
declarations from or with any agency, department, administrative authority,
statutory corporation or judicial entity necessary for the validity or
enforceability of its obligations under this Agreement have been obtained, and
no governmental authorizations other than any already obtained are required in
connection with its execution, delivery and performance of this
Agreement.
(g) The
Assignor represents and warrants that it is the legal and beneficial owner of
the interest being assigned and that such interest is free and clear of any
Lien.
(h) The
Assignor makes no representation or warranty and assumes no responsibility with
respect to the operations, condition (financial or otherwise), business or
assets of the Loan Parties or the performance or observance by the Loan Parties
of any of their obligations under the Financing Agreement or any other Loan
Document.
(i) The
Assignee appoints and authorizes the Agent to take such action as an agent on
its behalf and to exercise such powers under the Loan Documents as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto.
(j) The
Assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Financing Agreement or any other Loan
Document are required to be performed by it as a Lender.
(k) The
Assignee confirms that it has received all documents and information it has
deemed appropriate to make its own credit analysis and decision to enter into
this Agreement.
(l) The
Assignee specifies as its address for notices the office set forth beneath its
name on the signature pages hereof.
IN WITNESS WHEREOF, the
parties hereto have caused this Assignment and Acceptance to be executed and
delivered as of the date first written above.
ASSIGNOR
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[_________________________________]
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By:
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Name:
|
||
Title:
|
ASSIGNEE
|
||
[_________________________________]
|
||
By:
|
||
Name:
|
||
Title:
|
[CONSENTED
TO BY ADMINISTRATIVE BORROWER1]
[_________________]
|
||
By:
|
||
Name:
|
||
Title:
|
||
[APPROVED
BY AGENT2]
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[_________________]
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By:
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Name:
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Title:
|
1 If
required pursuant to Section 12.07 of the Financing
Agreement.
2 If
required pursuant to Section 12.07 of the Financing
Agreement.
EXECUTION
COPY
EXHIBIT
G
PLEDGE
AND SECURITY AGREEMENT
PLEDGE
AND SECURITY AGREEMENT, dated as of January 28, 2008, by Frederick's of
Hollywood Group Inc., a New York corporation ("Pledgor"), for the
benefit of Xxxxx Fargo Retail Finance II, LLC, a Delaware limited liability
company, as arranger and agent for the Lenders (as defined below) party to the
Restated Financing Agreement referred to below (in such capacity, the "Agent").
WITNESSETH:
WHEREAS,
Pledgor, FOH Holdings, Inc., Frederick's of Hollywood, Inc., Frederick's of
Hollywood Stores, Inc., and Hollywood Mail Order, LLC (collectively, the
"Borrowers"), the lenders from time to time party thereto (such lenders,
together with their respective successors and assigns the "Lenders") and the
Agent are parties to that certain Amended and Restated Financing Agreement,
dated as of January 28, 2008 (such agreement, as amended or otherwise modified
from time to time, being hereinafter referred to as the "Restated Financing
Agreement");
WHEREAS,
pursuant to the terms and provisions of the Restated Financing Agreement, the
Lenders have agreed to make certain revolving credit loans to the Borrowers
(each a "Revolving
Loan" and collectively, the "Revolving Loans") and
to provide a subfacility for the issuance of letters of credit for the account
of the Borrowers;
WHEREAS,
it is a condition precedent to the making of any Revolving Loan or the provision
of any Letter of Credit or Letter of Credit Guaranty pursuant to the Restated
Financing Agreement that Pledgor shall execute and deliver to the Agent a pledge
and security agreement providing for the pledge to the Agent, for the benefit of
the Lender Group, of, and the grant to the Agent, for the benefit of the Lender
Group, of a security interest in and Lien on, outstanding Capital Stock (as
defined in the Restated Financing Agreement) and indebtedness from time to time
owned by Pledgor;
WHEREAS,
Pledgor has determined that the execution, delivery and performance of this
Agreement directly benefit, and are in the best interests of,
Pledgor;
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Lenders to make and maintain the Revolving Loans pursuant to
the Restated Financing Agreement and provide other financial accommodations to
the Borrowers, Pledgor agrees with the Agent, for the benefit of the Lender
Group, as follows:
SECTION
1. Definitions. Reference
is hereby made to the Restated Financing Agreement for a statement of the terms
thereof. All terms used in this Agreement which are defined in the
Restated Financing Agreement or in Article 8 or Article 9 of the Uniform
Commercial Code currently in effect in the State of New York (the "Code") and which are
not otherwise defined herein shall have the same meanings herein as set forth
therein. As used in this Agreement, “Applicable
Percentage” shall mean, with respect to any pledge hereunder of voting
Capital Stock issued by any Foreign Subsidiary, the greater of (x) 66% and (y)
such greater percentage that (1) could not reasonably be expected to cause
the undistributed earnings of such Foreign Subsidiary as determined for United
States federal income tax purposes to be treated as a deemed dividend to Pledgor
and (2) could not reasonably be expected to cause any other adverse tax
consequences to Pledgor or such Foreign Subsidiary.
SECTION
2. Pledge and Grant of Security
Interest. As collateral security for all of the Obligations
(as defined in Section 3 hereof), Pledgor hereby pledges and assigns to the
Agent, for the benefit of the Lender Group, and grants to the Agent, for the
benefit of the Lender Group, a continuing security interest in, the following
(the "Pledged
Collateral"):
(a) the
indebtedness described in Schedule I hereto and all other indebtedness from time
to time owned by Pledgor (the "Pledged Debt"), the
promissory notes and other instruments evidencing the Pledged Debt and all
interest, cash, instruments, investment property and other property from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Debt;
(b) the
shares of stock, partnership interests, member interests and other equity
interests described in Schedule II hereto (the "Pledged Shares"),
whether or not evidenced or represented by any stock certificate, certificated
security or other instrument, issued by the Persons described in such Schedule
II (the "Existing
Issuers"), the certificates representing the Pledged Shares, all options
and other rights, contractual or otherwise, in respect thereof (provided that with
respect to any Foreign Subsidiary, only the Applicable Percentage of all voting
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) Capital Stock of
such Foreign Subsidiary (or, if less than the Applicable Percentage, all such
equity interests owned by Pledgor) shall be pledged hereunder) and all
dividends, distributions, cash, instruments, investment property and other
property (including, without limitation, any stock dividend and any distribution
in connection with a stock split) from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Shares;
(c) the
shares of stock, partnership interests, member interests or other equity
interests at any time and from time to time acquired by Pledgor of any and all
Persons now or hereafter existing (provided that with
respect to any Foreign Subsidiary, only the Applicable Percentage of all voting
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) Capital Stock of
such Foreign Subsidiary (or, if less than the Applicable Percentage, all such
equity interests owned by Pledgor) shall be pledged hereunder), all or a portion
of such stock or other equity interests which are acquired by such Person at any
time (such Persons, together with the Existing Issuers, being hereinafter
referred to collectively as the "Pledged Issuers" and
individually as a "Pledged Issuer"), the
certificates representing such shares, partnership interests, member interests
or other interests, all options and other rights, contractual or otherwise, in
respect thereof and all dividends, distributions, cash, instruments, investment
property and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares,
partnership interests, member interests or other interests;
-2-
(d) all
additional shares of stock, partnership interests, member interests or other
equity interests from time to time acquired by Pledgor, of any Pledged Issuer
(provided that
with respect to any Foreign Subsidiary, only the Applicable Percentage of all
voting (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) Capital
Stock of such Foreign Subsidiary (or, if less than the Applicable Percentage,
all such equity interests owned by Pledgor) shall be pledged hereunder), the
certificates representing such additional shares, all options and other rights,
contractual or otherwise, in respect thereof and all dividends, distributions,
cash, instruments, investment property and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such additional shares, interests or equity;
(e) all
investment property, financial assets, securities, Capital Stock, other equity
interests, stock options and commodity contracts of Pledgor (provided that with
respect to any Foreign Subsidiary, only the Applicable Percentage of all voting
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) Capital Stock of
such Foreign Subsidiary (or, if less than the Applicable Percentage, all such
equity interests owned by Pledgor) shall be pledged hereunder), all notes,
debentures, bonds, promissory notes or other evidences of indebtedness of
Pledgor, and all other assets now or hereafter received or receivable with
respect to the foregoing;
(f) all
security entitlements of Pledgor in any and all of the foregoing;
and
(g) all
proceeds (including proceeds of proceeds) of any and all of the
foregoing;
in each
case, whether now owned or hereafter acquired by Pledgor and howsoever its
interest therein may arise or appear (whether by ownership, security interest,
Lien, claim or otherwise).
SECTION
3. Security for
Obligations. The security interest created hereby in the
Pledged Collateral constitutes continuing collateral security for all of the
following obligations, whether now existing or hereafter incurred (the
"Obligations"):
(a) the
prompt payment by the Borrowers and any other Loan Party, as and when due and
payable (by scheduled maturity, required prepayment, acceleration, demand or
otherwise), of all Obligations (as defined in the Restated Financing Agreement),
including, without limitation, (i) principal of and interest on the
Revolving Loans (including, without limitation, all interest that accrues after
the commencement of any Insolvency Proceeding of any Borrower, whether or not
the payment of such interest is unenforceable or is not allowable due to the
existence of such Insolvency Proceeding), (ii) all Reimbursement
Obligations and all interest thereon (including, without limitation, all
interest that accrues after the commencement of any Insolvency Proceeding of any
Borrower), whether or not the payment of such interest is unenforceable or is
not allowable due to the existence of such Insolvency Proceeding), and
(iii) all fees, commissions, expense reimbursements, indemnifications and
all other amounts due or to become due under the Restated Financing Agreement
and any other Loan Document; and
(b) the
due performance and observance by Borrowers and any other Loan Parties of all of
their other obligations from time to time existing in respect of the Loan
Documents.
-3-
SECTION
4. Delivery of the Pledged
Collateral.
(a) (i) All
promissory notes currently evidencing the Pledged Debt and all certificates
currently representing the Pledged Shares shall be delivered to the Agent, for
the benefit of the Lender Group, on or prior to the execution and delivery of
this Agreement. All other promissory notes, certificates and
instruments constituting Pledged Collateral from time to time or required to be
pledged to the Agent, for the benefit of the Lender Group, pursuant to the terms
hereof (the "Additional
Collateral") shall be delivered to the Agent promptly upon receipt
thereof by or on behalf of Pledgor. All such promissory notes,
certificates and instruments shall be held by or on behalf of the Agent pursuant
hereto and shall be delivered in suitable form for transfer by delivery or shall
be accompanied by duly executed instruments of transfer or assignment or undated
stock powers executed in blank, all in form and substance satisfactory to the
Agent. If any Pledged Collateral consists of uncertificated
securities, unless the immediately following sentence is applicable thereto,
Pledgor shall cause the Agent (or its designated custodian, nominee or other
designee), to become the registered holder thereof, or cause each issuer of such
securities to agree that it will comply with instructions originated by the
Agent with respect to such securities without further consent by
Pledgor. If any Pledged Collateral consists of security entitlements,
Pledgor shall transfer such security entitlements to the Agent (or its
designated custodian or nominee), or cause the applicable securities
intermediary to agree that it will comply with entitlement orders by the Agent
without further consent by Pledgor.
(ii) Within
five (5) days of the receipt by Pledgor of any Additional Collateral, a Pledge
Amendment, duly executed by Pledgor, in substantially the form of Annex I hereto
(a "Pledge
Amendment") shall be delivered to the Agent, in respect of the Additional
Collateral which must be pledged pursuant to this Agreement and the Restated
Financing Agreement. The Pledge Amendment shall from and after
delivery thereof constitute part of Schedules I and II
hereto. Pledgor hereby authorizes the Agent to attach each Pledge
Amendment to this Agreement and agrees that all promissory notes, certificates
or instruments listed on any Pledge Amendment delivered to the Agent shall for
all purposes hereunder constitute Pledged Collateral and Pledgor shall be deemed
upon delivery thereof to have made the representations and warranties set forth
in Section 5 with respect to such Additional Collateral.
(b) If
Pledgor shall receive, by virtue of Pledgor's being or having been an owner of
any Pledged Collateral, any (i) stock certificate (including, without
limitation, any certificate representing a stock dividend or distribution in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off or
split-off), promissory note or other instrument, (ii) option or right, whether
as an addition to, substitution for, or in exchange for, any Pledged Collateral,
or otherwise, (iii) dividends payable in cash (except such dividends permitted
to be retained by Pledgor pursuant to Section 7 hereof) or in securities or
other property or (iv) dividends or other distributions in connection with a
partial or total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in surplus, Pledgor shall receive such stock
certificate, promissory note, instrument, option, right, payment or distribution
in trust for the benefit of the Agent, shall segregate it from Pledgor's other
property and shall deliver it forthwith to the Agent, for the benefit of the
Lender Group, in the exact form received, with any necessary endorsement and/or
appropriate stock powers duly executed in blank, to be held by the Agent as
Pledged Collateral and as further collateral security for the
Obligations.
-4-
SECTION
5. Representations and
Warranties. Pledgor represents and warrants as
follows:
(a) Pledgor
(i) is a corporation, duly organized, validly existing and in good standing
under the laws of the state or jurisdiction of its organization, (ii) has all
requisite power and authority to execute, deliver and perform this Agreement and
each other Loan Document to be executed and delivered by it pursuant hereto and
to consummate the transactions contemplated hereby and thereby, and (iii) is
duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary, except where the
failure to be qualified or in good standing could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse
Effect.
(b) The
execution, delivery and performance by Pledgor of this Agreement (i) has been
duly authorized by all necessary action, (ii) doed not and will not contravene
its charter or by-laws, or any applicable law or any contractual restriction
binding on or affecting it or any of its properties, (iii) does not and will not
result in or require the creation of any Lien, security interest or other charge
or encumbrance upon or with respect to any of its properties other than pursuant
to this Agreement, and (iv) does not and will not result in any default,
noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of
any permit, license, authorization or approval applicable to it or its
operations or any of its properties, except where such default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
(c) The
Existing Issuers set forth in Schedule II hereto are the only Subsidiaries of
Pledgor existing on the date hereof. The Pledged Shares have been
duly authorized and validly issued and are fully paid and nonassessable and the
holders thereof are not entitled to any preemptive, first refusal or other
similar rights. All other shares of stock constituting Pledged
Collateral will be duly authorized and validly issued, fully paid and
nonassessable.
(d) The
promissory notes currently evidencing the Pledged Debt have been, and all other
promissory notes from time to time evidencing Pledged Debt, when executed and
delivered, will have been, duly authorized, executed and delivered by the
respective makers thereof, and all such promissory notes are or will be, as the
case may be, legal, valid and binding obligations of such makers, enforceable
against such makers in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws.
(e) Pledgor
is and will be at all times the legal and beneficial owner of its Pledged
Collateral free and clear of any Lien except for the Lien created by this
Agreement and the Permitted Liens.
(f) The
exercise by the Agent of any of its rights and remedies in accordance with the
terms of this Agreement will not contravene any law or any contractual
restriction binding on or affecting Pledgor or any of the properties of Pledgor
and will not result in or require the creation of any Lien upon or with respect
to any of the properties of Pledgor other than pursuant to this Agreement or the
other Loan Documents.
-5-
(g) No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority is required to be obtained or made by Pledgor for (i)
the due execution, delivery and performance by Pledgor of this Agreement, (ii)
the grant by Pledgor, or the perfection, of the Lien created hereby in the
Pledged Collateral or (iii) the exercise by the Agent, for the benefit of the
Lender Group, of any of its rights and remedies hereunder, except as may be
required in connection with any sale of any Pledged Collateral by laws affecting
the offering and sale of securities generally.
(h) This
Agreement creates a valid Lien in favor of the Agent, for the benefit of the
Lender Group, in the Pledged Collateral as security for the
Obligations. The Agent's having possession of the promissory notes
evidencing the Pledged Debt, the certificates representing the Pledged Shares
and all other certificates, instruments and cash constituting Pledged Collateral
from time to time results in the perfection of such Lien. Such Lien
is, or in the case of Pledged Collateral in which Pledgor obtains rights after
the date hereof, will be, a perfected, first priority Lien, subject only to the
Permitted Liens. All action necessary or desirable to perfect and
protect such Lien has been duly taken, except for the Agent's having possession
of certificates, instruments and cash constituting Pledged Collateral after the
date hereof.
SECTION
6. Covenants as to the Pledged
Collateral. So long as any principal of or interest on any
Revolving Loan, any Reimbursement Obligation, any Letter of Credit Obligation or
any other Obligation (whether or not due) shall remain unpaid or any Lender
shall have any Revolving Credit Commitment under the Restated Financing
Agreement, Pledgor shall, unless the Agent shall otherwise consent in
writing:
(a) keep
adequate records concerning the Pledged Collateral and permit the Agent or any
agents, designees or representatives thereof at any time or from time to time to
examine and make copies of and abstracts from such records;
(b) at
Pledgor's expense, promptly deliver to the Agent a copy of each notice or other
communication received by it in respect of the Pledged Collateral;
(c) at
Pledgor's expense, defend the Agent's right, title and security interest in and
to the Pledged Collateral against the claims of any Person;
(d) at
Pledgor's expense, at any time and from time to time, promptly execute and
deliver all further instruments and documents and take all further action that
may be necessary or desirable or that the Agent may reasonably request in order
to (i) perfect and protect, or maintain the perfection of, the security interest
and Lien purported to be created hereby, (ii) enable the Agent to exercise and
enforce its rights and remedies hereunder in respect of the Pledged Collateral
or (iii) otherwise effect the purposes of this Agreement, including, without
limitation, delivering to the Agent, after the occurrence and during the
continuation of an Event of Default, irrevocable proxies in respect of the
Pledged Collateral;
-6-
(e) not
sell, assign (by operation of law or otherwise), exchange or otherwise dispose
of any Pledged Collateral or any interest therein except as expressly permitted
by the Restated Financing Agreement;
(f) not
create or suffer to exist any Lien upon or with respect to any Pledged
Collateral except for the Lien created hereby or for any Permitted
Lien;
(g) not
make or consent to any amendment or other modification or waiver with respect to
any Pledged Collateral or enter into any agreement or permit to exist any
restriction with respect to any Pledged Collateral other than as expressly
permitted by the Restated Financing Agreement and the other Loan
Documents;
(h) except
as expressly permitted by the Restated Financing Agreement, not permit the
issuance of (i) any additional shares of any class of Capital Stock, partnership
interests, member interests or other equity of any Pledged Issuer, (ii) any
securities convertible voluntarily by the holder thereof or automatically upon
the occurrence or non-occurrence of any event or condition into, or exchangeable
for, any such shares of Capital Stock or (iii) any warrants, options, contracts
or other commitments entitling any Person to purchase or otherwise acquire any
such shares of Capital Stock; and
(i) not
take or fail to take any action which would in any manner impair the value or
enforceability of the Agent's security interest in and Lien on any Pledged
Collateral.
SECTION
7. Voting Rights, Dividends,
Etc. in Respect of the Pledged Collateral.
(a) So
long as no Event of Default shall have occurred and be continuing:
(i) Pledgor
may exercise any and all voting and other consensual rights pertaining to any
Pledged Collateral for any purpose not inconsistent with the terms of this
Agreement, the Restated Financing Agreement or the other Loan Documents;
provided, however, that (A) Pledgor will not exercise and shall refrain from
exercising any such right, as the case may be, if the Agent gives it notice
that, in the Agent's judgment, such action (or inaction) could reasonably be
expected to affect adversely in any material respect the value of any Pledged
Collateral or otherwise could reasonably be expected to have a Material Adverse
Effect and (B) Pledgor will give the Agent at least five (5) Business Days'
notice of the manner in which it intends to exercise, or the reasons for
refraining from exercising, any such right that could reasonably be expected to
affect adversely in any material respect the value of any Pledged Collateral or
otherwise could reasonably be expected to have a Material Adverse
Effect;
-7-
(ii) Pledgor
may receive and retain any and all dividends, interest or other distributions
paid in respect of the Pledged Collateral to the extent permitted by the
Restated Financing Agreement; provided, however, that any and all (A) dividends
and interest paid or payable other than in cash in respect of, and instruments
and other property received, receivable or otherwise distributed in respect of
or in exchange for, any Pledged Collateral, (B) dividends and other
distributions paid or payable in cash in respect of any Pledged Collateral in
connection with a partial or total liquidation or dissolution or in connection
with a reduction of capital, capital surplus or paid-in surplus, and (C) cash
paid, payable or otherwise distributed in redemption of, or in exchange for, any
Pledged Collateral, together with any dividend, interest or other distribution
or payment which at the time of such payment was not permitted by the Restated
Financing Agreement, shall be, and shall forthwith be delivered to the Agent to
hold as, Pledged Collateral and shall, if received by Pledgor, be received in
trust for the benefit of the Agent, shall be segregated from the other property
or funds of Pledgor, and shall be forthwith delivered to the Agent in the exact
form received with any necessary endorsement and/or appropriate stock powers
duly executed in blank, to be held by the Agent as Pledged Collateral and as
further collateral security for the Obligations; and
(iii) the
Agent will execute and deliver (or cause to be executed and delivered) to
Pledgor all such proxies and other instruments as Pledgor may reasonably request
for the purpose of enabling Pledgor to exercise the voting and other rights
which it is entitled to exercise pursuant to Section 7 (a)(i) hereof and to
receive the dividends, interest and/or other distributions which it is
authorized to receive and retain pursuant to paragraph (ii) of this
Section 7(a) hereof.
(b) Upon
the occurrence and during the continuance of an Event of Default:
(i) all
rights of Pledgor to exercise the voting and other consensual rights which it
would otherwise be entitled to exercise pursuant to Section 7(a)(i) hereof, and
to receive the dividends and interest payments which it would otherwise be
authorized to receive and retain pursuant to Section 7(a)(ii) hereof, shall
cease, and all such rights shall thereupon become vested in the Agent which
shall thereupon have the sole right to exercise such voting and other consensual
rights and to receive and hold as Pledged Collateral such dividends and interest
payments;
(ii) the
Agent is authorized to notify each debtor with respect to the Pledged Debt to
make payment directly to the Agent and may collect any and all moneys due or to
become due to Pledgor in respect of the Pledged Debt and Pledgor hereby
authorizes each such debtor to make such payment directly to the Agent without
any duty of inquiry;
(iii) without
limiting the generality of the foregoing, the Agent may at its option exercise
any and all rights of conversion, exchange, subscription or any other rights,
privileges or options pertaining to any of the Pledged Collateral as if it were
the absolute owner thereof, including, without limitation, the right to
exchange, in its discretion, any and all of the Pledged Collateral upon the
merger, consolidation, reorganization, recapitalization or other adjustment of
any Pledged Issuer, or upon the exercise by any Pledged Issuer of any right,
privilege or option pertaining to any Pledged Collateral, and, in connection
therewith, to deposit and deliver any and all of the Pledged Collateral with any
committee, depository, transfer agent, registrar or other designated agent upon
such terms and conditions as it may determine; and
(iv) all
dividends, distributions, interest and other payments which are received by
Pledgor contrary to the provisions of Section 7(b)(i) hereof shall be received
in trust for the benefit of the Agent shall be segregated from other funds of
Pledgor, and shall be forthwith paid over to the Agent as Pledged Collateral in
the exact form received with any necessary endorsement and/or appropriate stock
powers duly executed in blank, to be held by the Agent as Pledged Collateral and
as further collateral security for the Obligations.
-8-
SECTION
8. Additional Provisions
Concerning the Pledged Collateral.
(a) Pledgor
(i) authorizes the Agent to file any financing statements required hereunder or
under any other Loan Document), and any continuation statements or amendment
with respect thereto, in any appropriate filing office without the signature of
Pledgor and (ii) ratifies the filing of any financing statement, and any
continuation statement or amendment with respect thereto, filed without the
signature of Pledgor prior to the date hereof. A photocopy or other
reproduction of this Agreement or any financing statement covering the Pledge
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.
(b) Pledgor
hereby irrevocably appoints the Agent Pledgor's attorney-in-fact and proxy, with
full authority in the place and stead of Pledgor and in the name of Pledgor or
otherwise, from time to time in the Agent's discretion, to take any action and
to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement (subject to the rights of Pledgor
under Section 7(a) hereof), including, without limitation, to receive, endorse
and collect all instruments made payable to Pledgor representing any dividend,
interest payment or other distribution in respect of any Pledged Collateral and
to give full discharge for the same. This power is coupled with an
interest and is irrevocable until all of the Obligations are paid in full after
all Revolving Credit Commitments and Letter of Credit Obligations have been
terminated.
(c) If
Pledgor fails to perform any agreement or obligation contained herein, the Agent
itself may perform, or cause performance of, such agreement or obligation, and
the expenses of the Agent incurred in connection therewith shall be payable by
Pledgor pursuant to Section 10 hereof and shall be secured by the Pledged
Collateral.
(d) Other
than the exercise of reasonable care to assure the safe custody of the Pledged
Collateral while held hereunder, the Agent shall have no duty or liability to
preserve rights pertaining thereto and shall be relieved of all responsibility
for the Pledged Collateral upon surrendering it or tendering surrender of it to
Pledgor. The Agent shall be deemed to have exercised reasonable care
in the custody and preservation of the Pledged Collateral in its possession if
the Pledged Collateral is accorded treatment substantially equal to that which
the Agent accords its own property, it being understood that the Agent shall not
have responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any
Pledged Collateral, whether or not the Agent has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to preserve rights against
any parties with respect to any Pledged Collateral.
(e) The
powers conferred on the Agent hereunder are solely to protect its interest in
the Pledged Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Pledged Collateral in
its possession and the accounting for monies actually received by it hereunder,
the Agent shall have no duty as to any Pledged Collateral or as to the taking of
any necessary steps to preserve rights against prior parties or any other rights
pertaining to any Pledged Collateral.
-9-
(f) The
Agent may at any time in its discretion (i) without notice to Pledgor, transfer
or register in the name of the Agent or any of its nominees any or all of the
Pledged Collateral, subject only to the revocable rights of Pledgor under
Section 7(a) hereof, and (ii) exchange certificates or instruments constituting
Pledged Collateral for certificates or instruments of smaller or larger
denominations.
SECTION
9. Remedies Upon
Default. If any Event of Default shall have occurred and be
continuing:
(a) The
Agent may exercise in respect of the Pledged Collateral, in addition to other
rights and remedies provided for herein or otherwise available to it, all of the
rights and remedies of a secured party on default under the Code then in effect
in the State of New York; and without limiting the generality of the foregoing
and without notice except as specified below, sell the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any exchange
or broker's board or elsewhere, at such price or prices and on such other terms
as the Agent may deem commercially reasonable. Pledgor agrees that,
to the extent notice of sale shall be required by law, at least five (5) days'
notice to Pledgor of the time and place of any public sale of Pledged Collateral
owned by Pledgor or the time after which any private sale is to be made shall
constitute reasonable notification. The Agent shall not be obligated
to make any sale of Pledged Collateral regardless of whether or not notice of
sale has been given. The Agent may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it was
so adjourned.
(b) In
the event that the Agent determines to exercise its right to sell all or any
part of the Pledged Collateral pursuant to Section 9(a) hereof, Pledgor will, at
Pledgor's expense and upon request by the Agent: (i) execute and
deliver, and cause each issuer of such Pledged Collateral and the directors and
officers thereof to execute and deliver, all such instruments and documents, and
do or cause to be done all such other acts and things, as may be necessary or,
in the opinion of the Agent, advisable to register such Pledged Collateral under
the provisions of the Securities Act of 1933, as amended (the "Securities Act"),
and to cause the registration statement relating thereto to become effective and
to remain effective for such period as prospectuses are required by law to be
furnished, and to make all amendments and supplements thereto and to the related
prospectus which, in the opinion of the Agent, are necessary or advisable, all
in conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto, (ii)
cause each issuer of such Pledged Collateral to qualify such Pledged Collateral
under the state securities or "Blue Sky" laws of each jurisdiction, and to
obtain all necessary governmental approvals for the sale of the Pledged
Collateral, as requested by the Agent, (iii) cause each Pledged Issuer to make
available to its securityholders, as soon as practicable, an earnings statement
which will satisfy the provisions of Section 11(a) of the Securities Act, and
(iv) do or cause to be done all such other acts and things as may be necessary
to make such sale of such Pledged Collateral valid and binding and in compliance
with applicable law. Pledgor acknowledges the impossibility of
ascertaining the amount of damages which would be suffered by the Agent by
reason of the failure by Pledgor to perform any of the covenants contained in
this Section 9(b) and, consequently, agrees that, if Pledgor fails to perform
any of such covenants, it shall pay, as liquidated damages and not as a penalty,
an amount equal to the value of the Pledged Collateral on the date the Agent
demands compliance with this Section 9(b); provided, however, that the payment
of such amount shall not release Pledgor from any of its obligations under any
of the other Loan Documents.
-10-
(c) Notwithstanding
the provisions of Section 9(b) hereof, Pledgor recognizes that the Agent may
deem it impracticable to effect a public sale of all or any part of the Pledged
Shares or any other securities constituting Pledged Collateral and that the
Agent may, therefore, determine to make one or more private sales of any such
securities to a restricted group of purchasers who will be obligated to agree,
among other things, to acquire such securities for their own account, for
investment and not with a view to the distribution or resale
thereof. Pledgor acknowledges that any such private sale may be at
prices and on terms less favorable to the seller than the prices and other terms
which might have been obtained at a public sale and, notwithstanding the
foregoing, agrees that such private sales shall be deemed to have been made in a
commercially reasonable manner and that the Agent shall have no obligation to
delay sale of any such securities for the period of time necessary to permit the
issuer of such securities to register such securities for public sale under the
Securities Act. Pledgor further acknowledges and agrees that any
offer to sell such securities which has been (i) publicly advertised on a bona
fide basis in a newspaper or other publication of general circulation in the
financial community of New York, New York (to the extent that such an offer may
be so advertised without prior registration under the Securities Act) or (ii)
made privately in the manner described above to not less than fifteen bona fide
offerees shall be deemed to involve a "public disposition" for the purposes of
Section 9-610(c) of the Code (or any successor or similar, applicable statutory
provision) as then in effect in the State of New York, notwithstanding that such
sale may not constitute a "public offering" under the Securities Act, and that
the Agent may, in such event, bid for the purchase of such
securities.
(d) Any
cash held by the Agent as Pledged Collateral and all cash proceeds received by
the Agent in respect of any sale of, collection from, or other realization upon,
all or any part of the Pledged Collateral may, in the discretion of the Agent,
be held by the Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Agent pursuant to Section
10 hereof) in whole or in part by the Agent against, all or any part of the
Obligations in such order as the Agent shall elect consistent with the
provisions of the Restated Financing Agreement. Any surplus of such
cash or cash proceeds held by the Agent and remaining after the date all of the
Obligations have been paid in full after all Revolving Credit Commitments and
Letter of Credit Obligations have been terminated shall be paid over to Pledgor
or to such Person as may be lawfully entitled to receive such
surplus.
(e) In
the event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Agent is legally entitled, Pledgor
shall be liable for the deficiency, together with interest thereon at the
highest rate specified in the Restated Financing Agreement for interest on
overdue principal thereof or such other rate as shall be fixed by applicable
law, together with the costs of collection and the reasonable fees, costs and
expenses of any attorneys employed by the Agent to collect such
deficiency.
-11-
SECTION
10. Indemnity and
Expenses.
(a) Pledgor
agrees to indemnify and hold harmless the Agent (and all of its respective
officers, directors, employees, attorneys, consultants and agents) from and
against any and all claims, damages, losses, liabilities obligations, penalties,
costs and expenses (including, without limitation, legal fees, costs, expenses
and disbursements of counsel) to the extent that they arise out of or otherwise
result from this Agreement (including, without limitation, enforcement of this
Agreement), except, as to any such indemnified Person, claims, losses or
liabilities resulting solely and directly from such Person's gross negligence or
willful misconduct as determined by a final judgment of a court of competent
jurisdiction.
(b) Pledgor
agrees to pay to the Agent upon demand the amount of any and all costs and
expenses, including the fees, costs, expenses and disbursements of the Agent's
counsel and of any experts and agents, which the Agent may incur in connection
with (i) the preparation, negotiation, execution, delivery, recordation,
administration, amendment, waiver or other modification or termination of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale of,
collection from, or other realization upon, any Pledged Collateral, (iii) the
exercise or enforcement of any of the rights of the Agent hereunder, or (iv) the
failure by Pledgor to perform or observe any of the provisions
hereof.
SECTION
11. Notices,
Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed (by certified mail, postage
prepaid and return receipt requested), telecopied or delivered, if to Pledgor,
to it at the address of the Administrative Borrower specified in the Restated
Financing Agreement; if to the Agent, to it at the address specified in the
Restated Financing Agreement; or as to any such Person at such other address as
shall be designated by such Person in a written notice to such other Person
complying as to delivery with the terms of this Section 11. All such
notices and other communications shall be effective (a) if mailed (by
certified mail, postage prepaid and return receipt requested), when received or
three Business Days after deposit in the mails, whichever occurs first,
(b) if telecopied, when transmitted and confirmation is received,
provided same is on a Business Day and, if not, on the next Business Day; or
(c) if delivered, upon delivery, provided same is on a Business Day
and, if not, on the next Business Day.
SECTION
12. Security Interest
Absolute. All rights of the Agent, the Lenders and the L/C
Issuer, all Liens and all obligations of Pledgor hereunder shall be absolute and
unconditional irrespective of: (i) any lack of validity or
enforceability of the Restated Financing Agreement, any other Loan Document or
any other agreement or instrument relating thereto, (ii) any change in the time,
manner or place of payment of, or in any other term in respect of, all or any of
the Obligations, or any other amendment or waiver of or consent to any departure
from the Restated Financing Agreement or any other Loan Document, (iii) any
exchange or release of, or non-perfection of any Lien on, any Collateral, or any
release or amendment or waiver of or consent to departure from any guaranty, for
all or any of the Obligations, or (iv) any other circumstance which might
otherwise constitute a defense available to, or a discharge of Pledgor in
respect of the Obligations. All authorizations and agencies contained
herein with respect to any of the Pledged Collateral are irrevocable and powers
coupled with an interest.
-12-
SECTION
13. Miscellaneous.
(a) No
amendment of any provision of this Agreement shall be effective unless it is in
writing and signed by the Agent and Pledgor, and no waiver of any provision of
this Agreement, and no consent to any departure by Pledgor therefrom, shall be
effective unless it is in writing and signed by the Agent, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) No
failure on the part of the Agent, any Lender or the L/C Issuer to exercise, and
no delay in exercising, any right hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The rights and remedies of the Agent, the Lenders
and the L/C Issuer provided herein and in the Loan Documents are cumulative and
are in addition to, and not exclusive of, any rights or remedies provided by
law. The rights of the Agent, the Lenders and the L/C Issuer under
the applicable Loan Document against any party thereto are not conditional or
contingent on any attempt by the Agents, the Lenders or the L/C Issuer to
exercise any of their rights under any other document against such party or
against any other Person.
(c) Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(d) This
Agreement shall create a continuing security interest in and Lien on the Pledged
Collateral and shall (i) remain in full force and effect until the date the
Obligations are paid in full after the termination of all of the Revolving
Credit Commitments and the Letter of Credit Obligations, and (ii) be binding on
Pledgor and, by its acceptance hereof, the Agent, and its respective successors
and assigns, and shall inure, together with all rights and remedies of the
Agent, the Lenders and the L/C Issuer hereunder, to the benefit of each of the
Agent, the Lenders and the L/C Issuer and their respective successors,
transferees and assigns. Without limiting the generality of clause
(ii) of the immediately preceding sentence, the Agent, the Lenders and the L/C
Issuer may assign or otherwise transfer their respective rights and obligations
under this Agreement and any other Loan Document, to any other Person, and such
other Person shall thereupon become vested with all of the benefits in respect
thereof granted to the Agent, the Lenders and the L/C Issuer herein or
otherwise. Upon any such assignment or transfer, all references in
this Agreement to the Agent or Lenders shall mean the assignee of such Agent or
Lenders or the L/C Issuer. None of the rights or obligations
of Pledgor hereunder may be assigned or otherwise transferred without
the prior written consent of the Agent, and any such assignment or transfer
shall be null and void.
(e) On
the date the Obligations have been paid in full after the termination of the
Revolving Credit Commitments and the Letter of Credit Obligations and the
Restated Financing Agreement and the other Loan Documents have been terminated
(i) this Agreement and the security interest and Lien created hereby shall
terminate and all rights to the Pledged Collateral shall revert to Pledgor, and
(ii) the Agent will, upon Pledgor's request and at Pledgor's expense, (A) return
to Pledgor such of the Pledged Collateral as shall not have been sold or
otherwise disposed of or applied pursuant to the terms hereof and (B) execute
and deliver to Pledgor, without recourse, representation or warranty, such
documents as Pledgor shall reasonably request to evidence such
termination.
-13-
(f) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT
TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND THE EFFECT
OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST AND LIEN CREATED
HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED COLLATERAL
ARE GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
(g) Pledgor
hereby irrevocably and unconditionally:
(i) Submits
for itself and its property in any action, suit or proceeding relating to this
Agreement or any other Loan Document to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
thereof;
(ii) Agrees
that any such action, suit or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such
action, suit or proceeding in any such court or that such action, suit or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(iii) Consents
to the service of any and all process in any such action, suit or proceeding by
mailing (by certified or registered mail, postage prepaid and return receipt
requested) or delivering a copy of such process to Pledgor at its address set
forth in Section 11 hereof or at such other address of which the Agent shall
have been notified pursuant thereto;
(iv) To
the extent that Pledgor has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, Pledgor hereby irrevocably
waives such immunity in respect of its obligations under this Agreement and the
other Loan Documents;
(v) Agrees
that nothing herein shall affect the right of the Agent or any Lender to effect
service of process in any other manner permitted by law or shall limit the right
of the Agent or any Lender to xxx in any other jurisdiction; and
(vi) Waives
any right it may have to claim or recover in any legal action, suit or
proceeding referred to in this Section any special, exemplary, punitive or
consequential damages.
(h) This
Agreement may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which shall be deemed an
original, but all such counterparts shall constitute one and the same
agreement.
-14-
(i) The
Agent may, in its sole and absolute discretion, enforce the provisions hereof
against Pledgor without resorting to or regard to other collateral or other
sources of reimbursement for the Obligations and shall not be required to
proceed against all Borrowers jointly or seek payment from the all the Borrowers
or Guarantors ratably. The release or discharge of any other Borrower
or Guarantor by the Agent shall not release or discharge Pledgor from the
obligations of Pledgor hereunder.
-15-
IN
WITNESS WHEREOF, Pledgor has caused this Agreement to be executed and delivered
by its officer thereunto duly authorized, as of the date first above
written.
PLEDGOR:
|
||
FREDERICK'S
OF HOLLYWOOD GROUP, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
SCHEDULE
I
TO
PLEDGE
AND SECURITY AGREEMENT
PLEDGED
DEBT
None.
SCHEDULE
II
TO
PLEDGE
AND SECURITY AGREEMENT
Pledged
Shares
Pledgor
|
Name of Issuer
|
Number of Shares
|
Class
|
Certificate
Number
|
||||||||||||
ANNEX
A
TO
PLEDGE
AGREEMENT
PLEDGE
AMENDMENT
This
Pledge Amendment, dated _______________, is delivered pursuant to Section 4 of
the Pledge Agreement referred to below. The undersigned hereby agrees
that this Pledge Amendment may be attached to the Pledge Agreement, dated
January 28, 2008 (as amended or otherwise modified from time to time, the
"Pledge Agreement"), by the undersigned in favor of Xxxxx Fargo
Retail Finance II, LLC, as agent (the "Agent"), and that the promissory notes or
shares listed on this Pledge Amendment shall be hereby pledged and assigned to
the Agent and become part of the Pledged Collateral referred to in such Pledge
Agreement and shall secure all of the Obligations referred to in such Pledge
Agreement.
Pledged Debt
|
||||||||||||
Pledgor
|
Name of Payee
|
Description
|
Principal Amount
Outstanding as of
|
|||||||||
Pledged Shares
|
||||||||||||||||
Pledgor
|
Name of Issuer
|
Number
of Shares
|
Class
|
Certificate
Number(s)
|
||||||||||||
[PLEDGOR]
|
||
By:
|
||
Name:
|
||
Title:
|
EXECUTION
COPY
EXHIBIT
H
SECURITY
AGREEMENT
SECURITY
AGREEMENT, dated January 28, 2008, made by Frederick's of Hollywood Group Inc.,
a New York corporation ("Grantor"), in favor
of Xxxxx Fargo Retail Finance II, LLC, a Delaware limited liability company, as
arranger and agent for the Lenders (as defined below) party to the Financing
Agreement referred to below (in such capacity, the "Agent").
WITNESSETH:
WHEREAS,
the Grantor, FOH Holdings, Inc., Frederick’s of Hollywood, Inc., Frederick’s of
Hollywood Stores, Inc., Hollywood Mail Order, LLC (each a "Borrower", and
collectively, the "Borrowers") the
lenders from time to time party thereto (the "Lenders") and the
Agent are parties to an Amended and Restated Financing Agreement, dated as of
January 28, 2008 (as amended, restated or otherwise modified from time to
time, being hereinafter referred to as the "Financing
Agreement");
WHEREAS,
pursuant to the Financing Agreement, the Lenders have agreed to make certain
revolving credit loans to the Borrowers (each a "Loan" and
collectively, the "Loans"), and to
provide a subfacility for the issuance of letters of credit for the account of
the Borrowers;
WHEREAS,
it is a condition precedent to the making of any Loan or the provision of any
Letter of Credit or Letter of Credit Guaranty pursuant to the Financing
Agreement that Grantor shall have executed and delivered to the Agent a security
agreement providing for the grant to the Agent, for the benefit of the Lenders,
of a security interest in all personal property and fixtures of such
Grantor;
WHEREAS,
the Borrowers are mutually dependent on each other in the conduct of their
respective businesses as an integrated operation, with the credit needed from
time to time by Grantor often being provided through financing obtained by the
other Borrowers and the ability to obtain such financing being dependent on the
successful operations of all of the Borrowers as a whole; and
WHEREAS,
Grantor has determined that the execution, delivery and performance of this
Agreement directly benefit, and are in the best interest of,
Grantor;
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Lenders to make and maintain the Loans pursuant to the
Financing Agreement and provide other financial accommodations to the Borrowers,
the Grantor hereby agree with the Agent as follows:
SECTION
1. Definitions.
(a) Reference
is hereby made to the Financing Agreement for a statement of the terms
thereof. All terms used in this Agreement which are defined in the
Financing Agreement or in Article 9 of the Uniform Commercial Code (the "Code") as in effect
from time to time in the State of New York and which are not otherwise defined
herein shall have the same meanings herein as set forth therein.
(b)
The following terms shall have the respective meanings provided for in the
Code: "Accounts", "Cash Proceeds", "Chattel Paper", "Commercial Tort
Claim", "Commodity Account", "Commodity Contracts", "Deposit Account",
"Documents", "Equipment", "Fixtures", "General Intangibles", "Goods",
"Instruments", "Inventory", "Investment Property", "Letter-of-Credit Rights",
"Noncash Proceeds", "Payment Intangibles", "Proceeds", "Promissory Notes",
"Record", "Security Account", "Software", and "Supporting
Obligations."
(c) As
used in this Agreement, the following terms shall have the respective meanings
indicated below, such meanings to be applicable equally to both the singular and
plural forms of such terms:
"Books" means all
books and records, including all Records indicating, summarizing or evidencing
assets (including the Collateral) or liabilities, all Records relating to a
Person's business operations or financial condition, and all goods and General
Intangibles related to such information.
"Copyright Licenses"
means all licenses, contracts or other agreements, whether written or oral,
naming Grantor as licensee or licensor and providing for the grant of any right
to use or sell any works covered by any copyright (including, without
limitation, all Copyright Licenses set forth in Schedule II
hereto).
"Copyrights" means all
domestic and foreign copyrights, whether registered or unregistered, including,
without limitation, all copyright rights throughout the universe (whether now or
hereafter arising) in any and all media (whether now or hereafter developed), in
and to all original works of authorship fixed in any tangible medium of
expression, acquired or used by Grantor (including, without limitation, all
copyrights described in Schedule II hereto), all applications, registrations and
recordings thereof (including, without limitation, applications, registrations
and recordings in the United States Copyright Office or in any similar office or
agency of the United States or any other country or any political subdivision
thereof), all reissues, divisions, continuations, continuations in part and
extensions or renewals thereof, and all income, royalties, damages and payments
now and hereafter due or payable or both with respect to the foregoing,
including, without limitation, damages and payments for past, present or future
infringements or misappropriations thereof, all rights to xxx for past, present
and future infringements or misappropriations thereof, and all other rights
corresponding thereto throughout the world.
"Domain Name" means
xxxxxxxxxx.xxx or any other Internet domain name by which customers of Grantor
may access may access an Internet website through which Grantor conducts
business.
"Hosting Agent" means
any Person engaged to host or maintain any Website Collateral.
-2-
"Hosting Agreement"
means any agreement between Grantor and any Hosting Agent.
"Intellectual
Property" means the Copyrights, Patents and Trademarks.
"Licenses" means (a)
the Copyright Licenses, the Trademark Licenses and the Patent License, and all
other license agreements and covenants not to xxx with any other party with
respect to any Patent, Trademark, or Copyright, along with any and all (i)
renewals, extensions, supplements and continuations thereof, (ii) income,
royalties, damages, claims and payments now and hereafter due and/or payable to
Grantor with respect thereto, including the right to recover any damages and
payments for past, present and future breaches thereof, (iii) rights to xxx for
past, present and future breaches thereof and (iv) any other rights to use,
exploit or practice any or all of the Patents, Trademarks or Copyrights
throughout the world, in each case whether now owned or hereafter acquired by
Grantor, and (b) the Hosting Agreement and any other agreement relating to the
Website Collateral or any Website, or both.
"Patent Licenses"
means all licenses, contracts or other agreements, whether written or oral,
naming Grantor as licensee or licensor and providing for the grant of any right
to manufacture, use or sell any invention covered by any Patent (including,
without limitation, all Patent Licenses set forth in Schedule II
hereto).
"Patents" means all
domestic and foreign letters patent, design patents, utility patents, industrial
designs, inventions, trade secrets, ideas, concepts, methods, techniques,
processes, proprietary information, technology, know-how, formulae, rights of
publicity and other general intangibles of like nature, now existing or
hereafter acquired (including, without limitation, all domestic and foreign
letters patent, design patents, utility patents, industrial designs, inventions,
trade secrets, ideas, concepts, methods, techniques, processes, proprietary
information, technology, know-how and formulae described in Schedule II hereto),
all applications, registrations and recordings thereof (including, without
limitation, applications, registrations and recordings in the United States
Patent and Trademark Office, or in any similar office or agency of the United
States or any other country or any political subdivision thereof), and all
reissues, divisions, continuations, continuations in part and extensions or
renewals thereof.
"Trademark Licenses"
means all licenses, contracts or other agreements, whether written or oral,
naming Grantor as licensor or licensee and providing for the grant of any right
concerning any Trademark, together with any goodwill connected with and
symbolized by any such trademark licenses, contracts or agreements and the right
to prepare for sale or lease and sell or lease any and all Inventory now or
hereafter owned by Grantor and now or hereafter covered by such licenses
(including, without limitation, all Trademark Licenses described in Schedule II
hereto).
-3-
"Trademarks" means all
domestic and foreign trademarks, service marks, collective marks, certification
marks, trade names, business names, d/b/a's, Domain Names and other Internet
domain names, trade styles, designs, logos and other source or business
identifiers and all general intangibles of like nature, now or hereafter owned,
adopted, acquired or used by Grantor (including, without limitation, all
domestic and foreign trademarks, service marks, collective marks, certification
marks, trade names, business names, d/b/a's, Internet domain names, trade
styles, designs, logos and other source or business identifiers described in
Schedule II hereto), all applications, registrations and recordings thereof
(including, without limitation, applications, registrations and recordings in
the United States Patent and Trademark Office or in any similar office or agency
of the United States, any state thereof or any other country or any political
subdivision thereof), and all reissues, extensions or renewals thereof, together
with the entire product lines and goodwill of the business connected with and
symbolized by the foregoing, all income, royalties, damages and payments now and
hereafter due or payable or both with respect to the foregoing, including,
without limitation, damages and payments for past, present or future
infringements or misappropriations thereof, all rights to xxx for past, present
and future infringements or misappropriations thereof, and all other rights
corresponding thereto throughout the world, and all customer lists, formulae and
other Records of Grantor relating to the distribution of products and services
in connection with which any of such marks are used.
"Website" means an
Internet website accessible through a Domain Name, as may be modified from time
to time.
"Website Collateral"
means all data and content maintained by all Hosting Agents pursuant to the
Hosting Agreement or any other similar agreement with any other
Person.
SECTION
2. Grant of Security
Interest. As collateral security for all of the Obligations
(as defined in Section 3 hereof), Grantor hereby pledges and assigns to the
Agent, for the benefit of the Lender Group, and grants to the Agent, for the
benefit of the Lender Group, a continuing security interest in, all personal
property and Fixtures of Grantor, wherever located and whether now or hereafter
existing and whether now owned or hereafter acquired, of every kind and
description, tangible or intangible (the "Collateral"),
including, without limitation, the following:
(a) all
Accounts;
(b) all
Chattel Paper (whether tangible or electronic);
(c) the
Commercial Tort Claims specified on Schedule VI hereto;
(d) all
Deposit Accounts, all cash, and all other property from time to time deposited
therein and the monies and property in the possession or under the control of
the Agent, any Lender or any Subordinated Lender, or any affiliate,
representative, agent or correspondent of the Agent, such Lender or such
Subordinated Lender;
(e) all
Documents;
(f) all
Equipment;
(g) all
Fixtures;
(h) all
General Intangibles (including, without limitation, all Payment
Intangibles);
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(i) all
Goods;
(j) all
Instruments (including, without limitation, Promissory Notes);
(k) all
Inventory;
(l) all
Investment Property;
(m) all
Intellectual Property and all Licenses;
(n) all
Letter-of-Credit Rights;
(o) all
Supporting Obligations;
(p) all
other tangible and intangible personal property of Grantor (whether or not
subject to the Code), including, without limitation, the Website Collateral, all
bank and other accounts and all cash and all investments therein, all proceeds,
products, offspring, accessions, rents, profits, income, benefits, substitutions
and replacements of and to any of the property of Grantor described in the
preceding clauses of this Section 2 (including, without limitation, any proceeds
of insurance thereon and all causes of action, claims and warranties now or
hereafter held by Grantor in respect of any of the items listed above), and all
Books, correspondence, files and other Records, including, without limitation,
all tapes, desks, cards, Software, data and computer programs in the possession
or under the control of Grantor or any other Person from time to time acting for
Grantor that at any time evidence or contain information relating to any of the
property described in the preceding clauses of this Section 2 or are otherwise
necessary or helpful in the collection or realization thereof; and
(q) all
Proceeds, including all Cash Proceeds and Noncash Proceeds including without
limitation instruments representing obligations to pay amounts in respect of any
Patents, Trademarks, Copyrights or Licenses, and products of any and all of the
foregoing Collateral;
in each
case howsoever Grantor's interest therein may arise or appear (whether by
ownership, security interest, claim or otherwise).
SECTION
3. Security for
Obligations. The security interest created hereby in the
Collateral constitutes continuing collateral security for all of the following
obligations, whether now existing or hereafter incurred (the "Obligations"):
(a)the
prompt payment by each Borrower, as and when due and payable (by scheduled
maturity, required prepayment, acceleration, demand or otherwise), of all
Obligations (as defined in the Financing Agreement), including, without
limitation, (i) principal of and interest on the Revolving Loans (including,
without limitation, all interest that accrues after the commencement of any
Insolvency Proceeding of any Borrower, whether or not the payment of such
interest is unenforceable or is not allowable due to the existence of such
Insolvency Proceeding), (ii) all Reimbursement Obligations and all interest
thereon (including, without limitation, all interest that accrues after the
commencement of any Insolvency Proceeding of any Borrower, whether or not the
payment of such interest is unenforceable or is not allowable due to the
existence of such Insolvency Proceeding), and (iii) all fees, commissions,
expense reimbursements, indemnifications and all other amounts due or to become
due under any Loan Document; and
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(b) the
due performance and observance by each Borrower of all of its other obligations
from time to time existing in respect of the Loan Documents.
SECTION
4. Representations and
Warranties. Grantor represents and warrants as
follows:
(a)
Schedule I hereto sets forth (i) the exact legal name of Grantor, and (ii) the
organizational identification number of Grantor or states that no such
organizational identification number exists. The Perfection
Certificate dated January 28, 2008, a copy of which has been previously
delivered to the Agent, is true and correct in all respects.
(b)
Grantor (i) is a corporation, duly organized, validly existing and in good
standing under the laws of the state or jurisdiction of its organization as set
forth on Schedule I hereto, (ii) has all requisite power and authority to
execute, deliver and perform this Agreement and each other Loan Document to be
executed and delivered by it pursuant hereto and to consummate the transactions
contemplated hereby and thereby, and (iii) is duly qualified to do business and
is in good standing in each jurisdiction in which the character of the
properties owned or leased by it or in which the transaction of its business
makes such qualification necessary, except where the failure to be qualified or
in good standing could not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect.
(c) The
execution, delivery and performance by Grantor of this Agreement and each other
Loan Document to which Grantor is a party or will be a party (i) have been duly
authorized by all necessary action, (ii) do not and will not contravene its
charter or by-laws, or any applicable law or any contractual
restriction binding on or otherwise affecting Grantor or any of its properties,
(iii) do not and will not result in or require the creation of any Lien,
security interest or other charge or encumbrance upon or with respect to any of
its properties, and (iv) do not and will not result in any default,
noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of
any permit, license, authorization or approval applicable to it or its
operations or any of its properties, except where such default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
(d) This
Agreement is, and each other Loan Document to which Grantor is or will be a
party, when executed and delivered pursuant hereto, will be, a legal, valid and
binding obligation of Grantor, enforceable against Grantor in accordance with
its terms.
(e) There
is no pending or, to the knowledge of Grantor, threatened action, suit,
proceeding or claim before any Governmental Authority or any arbitrator, or any
order, judgment or award by any Governmental Authority or arbitrator, that may
adversely affect the grant by Grantor, or the perfection, of the security
interest purported to be created hereby in the Collateral, or the exercise by
the Agent of any of its rights or remedies hereunder.
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(f) All
taxes, assessments and other governmental charges imposed upon Grantor or any
property of Grantor (including, without limitation, all federal income and
social security taxes on employees' wages) and which have become due and payable
on or prior to the date hereof have been paid, except to the extent contested in
good faith by proper proceedings which stay the imposition of any penalty, fine
or Lien resulting from the non-payment thereof and with respect to which
adequate reserves have been set aside for the payment thereof in accordance with
GAAP.
(g) All
Equipment, Fixtures, Goods and Inventory now existing are, and all Equipment,
Fixtures, Goods and Inventory hereafter existing will be, located at the
addresses specified therefor in Schedule III hereto. Grantor's chief
place of business and chief executive office, the place where Grantor keeps its
Books and Records concerning Accounts and all originals of all Chattel Paper are
located at the addresses specified therefor in Schedule III
hereto. None of the Accounts is evidenced by a Promissory Note or
other Instrument. Set forth in Schedule IV hereto is a complete and
accurate list, as of the date of this Agreement, of Deposit Account, Securities
Account and Commodities Account of Grantor, together with the name and address
of each institution at which each such Account is maintained, the account number
for each such Account and a description of the purpose of each such
Account. Set forth in Schedule II hereto is (i) a complete and
correct list of each trade name used by Grantor and (ii) the name of, and each
trade name used by, each person from which Grantor has acquired any substantial
part of the Collateral.
(h)
Grantor has delivered to the Agent complete and correct copies of each License
described in Schedule II hereto, including all schedules and exhibits thereto,
which represents all of the Licenses existing on the date of this
Agreement. Each such License sets forth the entire agreement and
understanding of the parties thereto relating to the subject matter thereof, and
there are no other agreements, arrangements or understandings, written or oral,
relating to the matters covered thereby or the rights of Grantor or any of its
Affiliates in respect thereof. Each License now existing is, and each
other License will be, the legal, valid and binding obligation of the parties
thereto, enforceable against such parties in accordance with its
terms. No default thereunder by any such party has occurred, nor does
any defense, offset, deduction or counterclaim exist thereunder in favor of any
such party, except where such default, either individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(i)
Grantors owns and controls, or otherwise possesses adequate rights to use, all
Trademarks, Patents and Copyrights, which are the only trademarks, patents,
copyrights, inventions, trade secrets, proprietary information and technology,
know-how, formulae, rights of publicity necessary to conduct its business in
substantially the same manner as conducted as of the date
hereof. Schedule II hereto sets forth a true and complete list of all
Intellectual Property and Licenses owned or used by Grantor as of the date
hereof. All of such Trademarks, Patents and Copyrights are subsisting
and in full force and effect, have not been adjudged invalid or unenforceable,
are valid and enforceable and have not been abandoned in whole or in
part. Except as set forth in Schedule II, none of such Intellectual
Property is the subject of any licensing or franchising
agreement. Grantor has no knowledge of any conflict with the rights
of others to any Intellectual Property and, to the best knowledge of, Grantor is
not now infringing or in conflict with any such rights of others in any material
respect, and to the best knowledge of Grantor, no other Person is now infringing
or in conflict in any material respect with any such properties, assets and
rights owned or used by Grantor. Grantor has not received any notice
that it is violating or has violated the trademarks, patents, copyrights,
inventions, trade secrets, proprietary information and technology, know-how,
formulae, rights of publicity or other intellectual property rights of any third
party. All Equipment, including, without limitation, computers,
servers, modems, monitors, printers, plotters, or memory storage devices, used
in connection with the creation, design, maintenance or operation of the
Websites (the "Related
Equipment") are owned by Grantors, except as otherwise set forth on
Schedule III attached hereto.
-7-
(j)
Grantors is and will be at all times the sole and exclusive owners of, or
otherwise have and will have adequate rights in, the Collateral free and clear
of any Lien except for (i) the Liens created by this Agreement and
(ii) Permitted Liens, except that any such Permitted Lien that covers any
Inventory, Account, Intellectual Property or Proceeds of the foregoing is junior
and subordinate of the Agent's Lien therein. No effective financing
statement or other instrument similar in effect covering all or any part of the
Collateral is on file in any recording or filing office except (A) such as
may have been filed in favor of the Agent relating to this Agreement and
(B) such as may have been filed to perfect or protect any Permitted
Liens.
(k) The
exercise by the Agent of any of its rights and remedies hereunder will not
contravene any law or any contractual restriction binding on or otherwise
affecting Grantor or any of its properties and will not result in or require the
creation of any Lien upon or with respect to any of its properties.
(l) No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or other regulatory body, or any other Person, is
required for (i) the grant by Grantor, or the perfection, of the security
interest purported to be created hereby in the Collateral or (ii) the
exercise by the Agent of any of its rights and remedies hereunder, except
(A) for the filing under the Uniform Commercial Code as in effect in the
applicable jurisdiction of the financing statements described in Schedule V
hereto, all of which financing statements have been duly filed and are in full
force and effect, (B) with respect to the perfection of the security
interest created hereby in the United States Intellectual Property, for the
recording of the appropriate Assignment for Security, substantially in the form
of Exhibit A hereto, in the United States Patent and Trademark Office or the
United States Copyright Office, as applicable, (C) with respect to the
perfection of the security interest created hereby in foreign Intellectual
Property and Licenses, for registrations and filings in jurisdictions located
outside of the United States and covering rights in such jurisdictions relating
to the Intellectual Property and Licenses, (D) with respect to the
perfection of the security interest created hereby in motor vehicles for which
the title to such motor vehicles is governed by a certificate of title or
ownership (collectively, the "Motor Vehicles"), for
the submission of an appropriate application requesting that the Lien of the
Agent be noted on the certificate of title or ownership, completed and
authenticated by Grantor, together with the certificate of title, with respect
to each Motor Vehicle, to the appropriate state agency, (E) with respect to any
action that may be necessary to obtain control in Collateral described in
Sections 5(i) and 5(k) hereof, the taking of such actions and (F) the taking
possession of all Documents, Chattel Paper, Instruments and cash constituting
Collateral.
-8-
(m) This
Agreement creates in favor of the Agent, for the benefit of the Lender Group, a
legal, valid and enforceable security interest in the Collateral, as security
for the Obligations. The Agent's having possession of all Documents,
Chattel Paper, Instruments and cash constituting Collateral and obtaining
control of all Collateral described in Sections 5(i) and 5(k) hereof from time
to time, the recording of the Assignments for Security executed pursuant hereto
in the United States Patent and Trademark Office and the United States Copyright
Office, as applicable, and the filing of the financing statements described in
Schedule V hereto and, with respect to Intellectual Property hereafter existing
and not covered by an Assignment for Security, the recording in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, of appropriate instruments of assignment, result in the perfection
of such security interests. Such security interests are, or in the
case of Collateral in which Grantor obtains rights after the date hereof, will
be, perfected, first priority security interests, subject only to the Permitted
Liens (except that any such Permitted Lien that covers any Inventory, Account,
Intellectual Property or Proceeds of the foregoing shall be junior and
subordinate to the Agent's Lien therein) and the recording of such instruments
of assignment. Such recordings and filings and all other action
necessary or desirable to perfect and protect such security interest have been
duly taken, except for (i) the Agent's having possession of Documents, Chattel
Paper, Instruments and cash constituting Collateral after the date hereof, (ii)
the Agent obtaining control of any Collateral described in Sections 5(i) and
5(k) of this Agreement after the date hereof and (iii) and the other filings and
recordations described in Section 4(l) hereof.
(n) Grantor
does not have any Commercial Tort Claims and is not aware of any such pending
claims, except for such claims described in Schedule VI.
SECTION
5. Covenants as to the
Collateral. So long as any principal of or interest on any
Revolving Loan, any Reimbursement Obligation, any Letter of Credit Obligation or
any other Obligation (whether or not due) shall remain unpaid or any Lender
shall have any Revolving Credit Commitment under the Financing Agreement, unless
the Agent shall otherwise consent in writing:
(a) Further
Assurances. Grantor will at its expense, at any time and from
time to time, promptly execute and deliver all further instruments and documents
and take all further action that may be necessary or desirable or that the Agent
may request in order (i) to perfect and protect the security interest
purported to be created hereby; (ii) to enable the Agent to exercise and
enforce its rights and remedies hereunder in respect of the Collateral; or
(iii) otherwise to effect the purposes of this Agreement, including,
without limitation: (A) marking conspicuously all Chattel Paper
and each License and, at the request of the Agent, each of its Records
pertaining to the Collateral with a legend, in form and substance satisfactory
to the Agent, indicating that such Chattel Paper, License or Collateral is
subject to the security interest created hereby, (B) if any Account shall
be evidenced by a Promissory Note or other Instrument or Chattel Paper, in a
face amount exceeding $10,000, delivering and pledging to the Agent hereunder
such Promissory Note, Instrument or Chattel Paper, duly endorsed and accompanied
by executed instruments of transfer or assignment, all in form and substance
satisfactory to the Agent, (C) executing and filing (to the extent, if any,
that Grantor's signature is required thereon) or authenticating the filing of,
such financing or continuation statements, or amendments thereto, as may be
necessary or desirable or that the Agent may request in order to perfect and
preserve the security interest purported to be created hereby,
(D) furnishing to the Agent from time to time statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral as the Agent may reasonably request, all in
reasonable detail, (E) if any Collateral shall be in the possession of a
third party, notifying such Person of the Agent's security interest created
hereby and obtaining a written acknowledgment from such Person that such Person
holds possession of the Collateral for the benefit of the Agent, which such
written acknowledgement shall be in form and substance satisfactory to the
Agent, (F) if at any time after the date hereof, Grantor acquires or holds
any Commercial Tort Claim, immediately notifying the Agent in a writing signed
by Grantor setting forth a brief description of such Commercial Tort Claim and
granting to the Agent a security interest therein and in the proceeds thereof,
which writing shall incorporate the provisions hereof and shall be in form and
substance satisfactory to the Agent, (G) upon the acquisition after the
date hereof by Grantor of any Motor Vehicle or other item of Equipment subject
to a certificate of title or ownership (other than a Motor Vehicle or item of
Equipment that is subject to a purchase money security interest permitted by the
Financing Agreement), cause the Agent to be listed as the lienholder on such
certificate of title or ownership within sixty (60) days of the acquisition
thereof, and within one hundred and twenty (120) days of the acquisition thereof
deliver evidence of the same to the Agent and (H) taking all actions
required by any earlier versions of the Uniform Commercial Code or by other law,
as applicable, in any relevant Uniform Commercial Code jurisdiction, or by other
law as applicable in any foreign jurisdiction.
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(b) Location of Equipment and
Inventory. Grantor will keep the Equipment and Inventory
(other than used Equipment and Inventory sold in the ordinary course of business
in accordance with Section 5(g) hereof) at the locations specified therefor in
Section 4(g) hereof or, (x) upon at least thirty (30) days' prior written
notice to the Agent, (y) the delivery to the Agent of a new Schedule III hereto
indicating each new location of the Equipment and Inventory, and (z) at such
other locations in the continental United States as Grantor may elect, provided that (i) all
action has been taken to grant to the Agent a perfected, first priority security
interest in such Equipment and Inventory (subject only to Permitted Liens), and
(ii) the Agent's rights in such Equipment and Inventory, including, without
limitation, the existence, perfection and priority of the security interest
created hereby in such Equipment and Inventory, are not adversely affected
thereby.
(c) Condition of
Equipment. Grantor will maintain or cause the Equipment to be
maintained and preserved in good condition, repair and working order as when
acquired and in accordance with any manufacturer's manual, ordinary wear and
tear excepted, and will forthwith, or in the case of any loss or damage to any
Equipment as quickly as practicable after the occurrence thereof, make or cause
to be made all repairs, replacements and other improvements in connection
therewith which are necessary or desirable, consistent with past practice, or
which the Agent may request to such end. Grantor will promptly
furnish to the Agent a statement describing in reasonable detail any loss or
damage in excess of $25,000 to any Equipment.
(d) Taxes,
Etc. Grantor agrees to pay promptly when due all property and
other taxes, assessments and governmental charges or levies imposed upon, and
all claims (including claims for labor, materials and supplies) against, the
Equipment and Inventory, except to the extent the validity thereof is being
contested in good faith by proper proceedings which stay the imposition of any
penalty, fine or Lien resulting from the non-payment thereof and with respect to
which adequate reserves have been set aside for the payment thereof in
accordance with GAAP.
-10-
(e) Insurance.
(i) Grantor
will, at its own expense, maintain insurance in accordance with Section 7.01(i)
of the Financing Agreement and the other terms and conditions of the Financing
Agreement. Each policy for liability insurance shall provide for all
losses to be paid on behalf of the Agent and Grantor as their respective
interests may appear, and each policy for property damage insurance shall
provide for all losses to be adjusted with, and paid directly to, the
Agent. Each such policy shall in addition (A) name Grantor and the
Agent as insured parties thereunder (without any representation or warranty by
or obligation upon the Agent) as their interests may appear, (B) contain an
agreement by the insurer that any loss thereunder shall be payable to the Agent
on its own account notwithstanding any action, inaction or breach of
representation or warranty by Grantor, (C) provide that there shall be no
recourse against the Agent for payment of premiums or other amounts with respect
thereto and (D) provide that at least thirty (30) days' prior written notice of
cancellation, lapse, expiration or other adverse change shall be given to the
Agent by the insurer. Grantor will, if so requested by the Agent,
deliver to the Agent original or duplicate policies of such insurance and, as
often as the Agent may reasonably request, a report of a reputable insurance
broker with respect to such insurance. Grantor will also, at the
request of the Agent, execute and deliver instruments of assignment of such
insurance policies and cause the respective insurers to acknowledge notice of
such assignment.
(ii) Reimbursement
under any liability insurance maintained by Grantor pursuant to this Section
5(e) may be paid directly to the Person who shall have incurred liability
covered by such insurance. In the case of any loss involving damage
to Equipment or Inventory any proceeds of insurance maintained by Grantor
pursuant to this Section 5(e) shall be paid to the Agent as to which paragraph
(iii) of this Section 5(e) is not applicable, Grantor will make or cause to be
made the necessary repairs to or replacements of such Equipment or Inventory,
and any proceeds of insurance maintained by Grantor pursuant to this Section
5(e) shall be paid by the Agent to Grantor as reimbursement for the costs of
such repairs or replacements.
(iii) All
insurance payments in respect of Equipment or Inventory shall be paid to the
Agent and, (A) prior to the occurrence and continuance of a Default or Event of
Default, applied in accordance with Section 2.05(c)(iii) of the Financing
Agreement, and (B) upon the occurrence and during the continuance of a Default
or Event of Default, applied as specified in Section 7(b) hereof.
(f) Provisions Concerning the
Accounts and the Licenses.
(i) Grantor
shall not, without the prior written consent of the Agent, change (A) its name,
identity or organizational structure or (B) its jurisdiction of incorporation as
set forth in Section 4(b) hereto. Grantor shall (x) immediately
notify the Agent upon obtaining an organizational identification number, if on
the date hereof Grantor did not have such identification number, and (y) keep
adequate records concerning the Accounts and Chattel Paper and permit
representatives of the Agent pursuant to the terms of the Financing Agreement to
inspect and make abstracts from such Records and Chattel Paper.
-11-
(ii) Grantor
will, except as otherwise provided in this subsection (f), continue to
collect, at its own expense, all amounts due or to become due under the
Accounts. In connection with such collections, Grantor may (and, at
the Agent's direction, will) take such action as Grantor or the Agent may deem
necessary or advisable to enforce collection or performance of the Accounts;
provided, however, that the
Agent shall have the right at any time, upon the occurrence and during the
continuance of an Event of Default, to notify the Account Debtors or obligors
under any Accounts of the assignment of such Accounts to the Agent and to direct
such Account Debtors or obligors to make payment of all amounts due or to become
due to Grantor thereunder directly to the Agent or its designated agent and,
upon such notification and at the expense of Grantor and to the extent permitted
by law, to enforce collection of any such Accounts and to adjust, settle or
compromise the amount or payment thereof, in the same manner and to the same
extent as Grantor might have done. After receipt by Grantor of a
notice from the Agent that the Agent has notified, intends to notify, or has
enforced or intends to enforce Grantor's rights against the Account Debtors or
obligors under any Accounts as referred to in the proviso to the immediately
preceding sentence, (A) all amounts and proceeds (including Instruments)
received by Grantor in respect of the Accounts shall be received in trust for
the benefit of the Agent hereunder, shall be segregated from other funds of
Grantor and shall be forthwith paid over to the Agent, in the same form as so
received (with any necessary endorsement) to be held as cash collateral and
either (i) credited to the Loan Account so long as no Event of Default
shall have occurred and be continuing or (ii) if an Event of Default shall have
occurred and be continuing, applied as specified in Section 7(b) hereof, and (B)
Grantor will not adjust, settle or compromise the amount or payment of any
Account or release wholly or partly any Account Debtor or obligor thereof or
allow any credit or discount thereon. In addition, upon the
occurrence and during the continuance of an Event of Default, the Agent may (in
its sole and absolute discretion) direct any or all of the banks and financial
institutions with which Grantor either maintains a Deposit Account or a lockbox
or deposits the proceeds of any Accounts to send immediately to the Agent by
wire transfer (to such account as the Agent shall specify, or in such other
manner as the Agent shall direct) all or a portion of such securities, cash,
investments and other items held by such institution. Any such
securities, cash, investments and other items so received by the Agent shall (in
the sole and absolute discretion of the Agent) be held as additional Collateral
for the Obligations or distributed in accordance with Section 7
hereof.
(iii) Upon
the occurrence and during the continuance of any breach or default under any
License referred to in Schedule II hereto by any party thereto other than
Grantor, (A) Grantor will, promptly after obtaining knowledge thereof, give
the Agent written notice of the nature and duration thereof, specifying what
action, if any, it has taken and proposes to take with respect thereto, (B)
Grantor will not, without the prior written consent of the Agent, declare or
waive any such breach or default or affirmatively consent to the cure thereof or
exercise any of its remedies in respect thereof, and (C) Grantor will, upon
written instructions from the Agent and at Grantor's expense, take such action
as the Agent may deem necessary or advisable in respect thereof.
(iv) Grantor
will, at its expense, promptly deliver to the Agent a copy of each notice or
other communication received by it by which any other party to any License
referred to in Schedule II hereto purports to exercise any of its rights or
affect any of its obligations thereunder, together with a copy of any reply by
Grantor thereto.
-12-
(v) Grantor
will exercise promptly and diligently each and every right which it may have
under each License (other than any right of termination) and will duly perform
and observe in all respects all of its obligations under each License and will
take all action necessary to maintain the Licenses in full force and
effect. Grantor will not, without the prior written consent of the
Agent, cancel, terminate, amend or otherwise modify in any respect, or waive any
provision of, any License referred to in Schedule II hereto.
(g) Transfers and Other
Liens.
(i) Except
to the extent expressly permitted by the Financing Agreement, Grantor will not
sell, assign (by operation of law or otherwise), lease, license, exchange or
otherwise transfer or dispose of any of the Collateral.
(ii)
Except to the extent expressly permitted by the Financing Agreement, Grantor
will not create, suffer to exist or grant any Lien upon or with respect to any
Collateral.
(h) Intellectual
Property.
(i) If
applicable, Grantor has duly executed and delivered the applicable Assignment
for Security in the form attached hereto as Exhibit A. Grantor
(either itself or through licensees) will, and will cause each licensee thereof
to, take all action necessary to maintain all of the Intellectual Property in
full force and effect, including, without limitation, using the proper statutory
notices and markings and using the Trademarks on each applicable trademark class
of goods in order to so maintain the Trademarks in full force, free from any
claim of abandonment for non-use, and Grantor will not (nor permit any licensee
thereof to) do any act or knowingly omit to do any act whereby any Intellectual
Property may become invalidated; provided, however, that so long
as no Event of Default has occurred and is continuing, Grantor shall not have an
obligation to use or to maintain any Intellectual Property (A) that relates
solely to any product or work, that has been, or is in the process of being,
discontinued, abandoned or terminated, (B) that is being replaced with
Intellectual Property substantially similar to the Intellectual Property that
may be abandoned or otherwise become invalid, so long as the failure to use or
maintain such Intellectual Property does not materially adversely affect the
validity of such replacement Intellectual Property and so long as such
replacement Intellectual Property is subject to the Lien created by this
Agreement or (C) that is substantially the same as other Intellectual Property
that is in full force and effect, so long as the failure to use or maintain such
Intellectual Property could not reasonably be expected to have a Material
Adverse Effect or on the validity of such replacement Intellectual Property and
so long as such other Intellectual Property is subject to the Lien and security
interest created by this Agreement. Grantor will not cause to be
taken all necessary steps in any proceeding before the United States Patent and
Trademark Office and the United States Copyright Office or any similar office or
agency in any other country or political subdivision thereof to maintain each
registration of the Intellectual Property (other than the Intellectual Property
described in the proviso to the immediately preceding sentence), including,
without limitation, filing of renewals, affidavits of use, affidavits of
incontestability and opposition, interference and cancellation proceedings and
payment of maintenance fees, filing fees, taxes or other governmental
fees. If any Intellectual Property is infringed, misappropriated,
diluted or otherwise violated in any material respect by a third party, the
Grantor shall (x) upon learning of such infringement, misappropriation, dilution
or other violation, promptly notify the Agent and (y) to the extent the Grantor
shall deem appropriate under the circumstances, promptly xxx for infringement,
misappropriation, dilution or other violation, seek injunctive relief where
appropriate and recover any and all damages for such infringement,
misappropriation, dilution or other violation, or take such other actions as the
Grantor shall deem appropriate under the circumstances to protect such
Intellectual Property. Grantor shall furnish to the Agent from time
to time (but, unless an Event of Default has occurred and is continuing, no more
frequently than quarterly) statements and schedules further identifying and
describing the Intellectual Property and Licenses and such other reports in
connection with the Intellectual Property and Licenses as the Agent may
reasonably request, all in reasonable detail and promptly upon request of the
Agent, following receipt by the Agent of any such statements, schedules or
reports, the Grantor shall modify this Agreement by amending Schedule II hereto,
as the case may be, to include any Intellectual Property and License which
becomes part of the Collateral under this Agreement and shall execute and
authenticate such documents and do such acts as shall be necessary or, in the
judgment of the Agent, desirable to subject such Intellectual Property and
Licenses to the Lien and security interest created by this
Agreement. Notwithstanding anything herein to the contrary, upon the
occurrence and during the continuance of an Event of Default, Grantor may not
abandon or otherwise permit any Intellectual Property to become invalid without
the prior written consent of the Agent, and if any Intellectual Property is
infringed, misappropriated, diluted or otherwise violated in any material
respect by a third party, the Grantor will take such action as the Agent shall
deem appropriate under the circumstances to protect such Intellectual
Property.
-13-
(ii) In
no event shall Grantor, either itself or through any agent, employee, licensee
or designee, file an application for the registration of any Trademark or
Copyright or the issuance of any Patent with the United States Patent and
Trademark Office or the United States Copyright Office, as applicable, or in any
similar office or agency of the United States or any country or any political
subdivision thereof unless it gives the Agent prior written notice
thereof. Upon request of the Agent, Grantor shall execute,
authenticate and deliver any and all assignments, agreements, instruments,
documents and papers as the Agent may reasonably request to evidence the Agent's
security interest hereunder in such Intellectual Property and the General
Intangibles of Grantor relating thereto or represented thereby, and Grantor
hereby appoints the Agent its attorney-in-fact to execute and/or authenticate
and file all such writings for the foregoing purposes, all acts of such attorney
being hereby ratified and confirmed, and such power (being coupled with an
interest) shall be irrevocable until the termination of all Commitments, the
repayment of all of the Obligations in full and the termination of each of the
Loan Documents.
-14-
(i) Deposit, Commodities and
Securities Accounts. Not more than thirty (30) days after the
date hereof, Grantor shall cause each bank and other financial institution
referred to in Schedule VI hereto to execute and deliver to the Agent a control
agreement, in form and substance satisfactory to the Agent, duly executed by
Grantor and such bank or financial institution, or enter into other arrangements
in form and substance satisfactory to the Agent, pursuant to which such
institution shall irrevocably agree, inter alia, that
(i) it will comply at any time with the instructions originated by the
Agent to such bank or financial institution directing the disposition of cash,
Commodity Contracts, securities, Investment Property and other items from time
to time credited to such account, without further consent of Grantor, which
instructions the Agent will not give to such bank or other financial institution
in the absence of a continuing Event of Default, (ii) all cash, Commodity
Contracts, securities, Investment Property and other items of Grantor deposited
with such institution shall be subject to a perfected, first priority security
interest in favor of the Agent, (iii) any right of set off, banker's Lien
or other similar Lien, security interest or encumbrance shall be fully waived as
against the Agent, and (iv) upon receipt of written notice from the Agent
during the continuance of an Event of Default, such bank or financial
institution shall immediately send to the Agent by wire transfer (to such
account as the Agent shall specify, or in such other manner as the Agent shall
direct) all such cash, the value of any Commodity Contracts, securities,
Investment Property and other items held by it. Without the prior
written consent of the Agent, Grantor shall not make or maintain any Deposit
Account, Commodity Account or Securities Account except for the accounts set
forth in Schedule IV hereto. The provisions of this paragraph 5(i)
shall not apply to Deposit Accounts specially and exclusively used for payroll,
payroll taxes and other employee wage and benefit payments to or for the benefit
of Grantor's salaried employees.
(j) Motor
Vehicles.
(i) Grantor
shall deliver to the Agent originals of the certificates of title or ownership
for the Motor Vehicles owned by it with the Agent listed as
lienholder.
(ii) If
requested by the Agent after the occurrence and during the continuance of a
Default or Event of Default, Grantor shall deliver to the Agent originals of the
certificates of title or ownership for all Motor Vehicles owned by it with the
Agent listed as lienholder, for the benefit of the Lender Group; provided that, the Agent shall
not be required to be listed as the lienholder if the Motor Vehicle is subject
to a purchase money security interest permitted by the Financing
Agreement.
(iii) Grantor
hereby appoints the Agent as its attorney-in-fact, effective the date hereof and
terminating upon the termination of this Agreement, for the purpose of (A)
executing on behalf of Grantor title or ownership applications for filing with
appropriate state agencies to enable Motor Vehicles now owned or hereafter
acquired by Grantor to be retitled and the Agent listed as lienholder thereof,
(B) filing such applications with such state agencies, and (C) executing such
other documents and instruments on behalf of, and taking such other action in
the name of, Grantor as the Agent may deem necessary or advisable to accomplish
the purposes hereof (including, without limitation, for the purpose of creating
in favor of the Agent a perfected Lien on the Motor Vehicles and exercising the
rights and remedies of the Agent hereunder). This appointment as
attorney-in-fact is coupled with an interest and is irrevocable until all of the
Obligations are paid in full after the termination of the Revolving Credit
Commitments and all Letter of Credit Obligations and the termination of the
Financing Agreement and the other Loan Documents.
(iv) Any
certificates of title or ownership delivered pursuant to the terms hereof shall
be accompanied by odometer statements for each Motor Vehicle covered
thereby.
-15-
(v) So
long as no Event of Default shall have occurred and be continuing, upon the
request of Grantor, the Agent shall execute and deliver to Grantor such
instruments as Grantor shall reasonably request to remove the notation of the
Agent as lienholder on any certificate of title for any Motor Vehicle; provided
that any such instruments shall be delivered, and the release effective, only
upon receipt by the Agent of a certificate from Grantor, stating that the Motor
Vehicle, the Lien on which is to be released, is to be sold or has suffered a
casualty loss (with title thereto passing to the casualty insurance company
therefor in settlement of the claim for such loss), the amount that such Grantor
will receive as sale proceeds or insurance proceeds and whether or not such sale
proceeds or insurance proceeds are required by Section 2.05(c)(iii) of the
Financing Agreement to be paid to the Agent to be applied to the Obligations
and, to the extent required by Section 2.05 of the Financing Agreement, any
proceeds of such sale or casualty loss shall be paid to the Agent hereunder to
be applied to the Obligations then outstanding.
(k) Control. Grantor
hereby agrees to take any or all action that may be necessary or desirable or
that the Agent may request in order for the Agent to obtain control in
accordance with Sections 9-105 – 9-107 of the Code with respect to the following
Collateral: (i) Electronic Chattel Paper, (ii) Investment
Property and (iii) Letter-of-Credit Rights.
(l) Inspection and
Reporting. Grantor shall permit the Agent, or any agents or
representatives thereof or such professionals or other Persons as the Agent may
designate (i) to examine, inspect and make copies of and abstracts from
such Grantor's records and books of account, (ii) to visit and
inspect its properties, (iii) to verify materials, leases, notes, Accounts,
Inventory and other assets of such Grantor from time to time, (iii) to
conduct audits, physical counts, appraisals and/or valuations at the locations
of such Grantor, in each case as provided in the Financing Agreement and (iv) to
discuss such Grantor's affairs, finances and accounts with any of its directors,
officers, managerial employees, independent accountants or any of its other
representatives.
(m) Websites and Website
Collateral. Grantor will (i) maintain its Websites in
continuous operation, providing at least its current level of functionality with
respect to Grantor's business operations, (ii) maintain the Website Collateral
and Related Equipment at the Hosting Agent's premises and, notwithstanding
anything herein to the contrary, obtain the Agent's prior written consent prior
to any removal from or change in such location, (iii) permit the Agent, and
cause the Hosting Agent to permit the Agent, to inspect such Website Collateral
and Related Equipment at any time, (iv) promptly upon request by the Agent,
cause the administrative contact for the Domain Name to be changed to a person
designated by the Agent, and not permit any other change or revision in such
information without the prior written consent of the Agent, (v) maintain with
the records of the applicable domain name registrar a billing contact that has a
position within Grantor and has actual responsibility for taking whatever action
is necessary for maintenance of such Domain Names, (vi) pay all fees and charges
required for maintenance of such Domain Names at least thirty days before any
such fee or charge is due, and (vii) not obtain any License, whether of Software
or Intellectual Property, for use in connection with any of the Websites,
without the prior written consent of the Agent. Grantor shall furnish
to the Agent, promptly upon request, (A) a waiver and consent agreement executed
by the Hosting Agent in connection with the Website Collateral, such waiver and
consent to be in such form and upon such terms as are acceptable to the Agent,
and (B) an executed Registrant Name Change Agreement (or such other document
required by the applicable domain name registrar in connection with the change
of registrant for a Domain Name) providing for the naming of the Agent as
registrant for each of the Domain Names, to be held in escrow by the Agent until
the occurrence of an Event of Default.
-16-
SECTION
6. Additional Provisions
Concerning the Collateral.
(a) Grantor
hereby (i) authorizes the Agent to file, one or more financing or
continuation statements, and amendments thereto (which may identify the
collateral as all assets of the Grantor (or words of similar effect) or as being
of an equal or lesser scope or with greater detail), relating to the Collateral
and (ii) ratifies such authorization to the extent that the Agent has filed
any such financing or continuation statements, or amendments thereto, prior to
the date hereof. A photocopy or other reproduction of this Agreement
or any financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law.
(b) Grantor
hereby irrevocably appoints the Agent as its attorney-in-fact and proxy, with
full authority in the place and stead of Grantor and in the name of Grantor or
otherwise, from time to time in the Agent's discretion, to take any action and
to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement (subject to the rights of Grantor
under Section 5 hereof), including, without limitation, (i) to obtain and adjust
insurance required to be paid to the Agent pursuant to Section 5(e) hereof, (ii)
to ask, demand, collect, xxx for, recover, compound, receive and give
acquittance and receipts for moneys due and to become due under or in respect of
any Collateral, (iii) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper in connection with clause (i) or (ii)
above, (iv) to file any claims or take any action or institute any proceedings
which the Agent may deem necessary or desirable for the collection of any
Collateral or otherwise to enforce the rights of the Agent and the Lenders with
respect to any Collateral, and (v) to execute assignments, licenses and other
documents to enforce the rights of the Agent and the Lenders with respect to any
Collateral. This power is coupled with an interest and is irrevocable
until all of the Obligations are paid in full after the termination of all
Revolving Credit Commitments, and all Letter of Credit Obligations and the
termination of the Financing Agreement and the other Loan
Documents.
(c) For
the purpose of enabling the Agent to exercise rights and remedies hereunder, at
such time as the Agent shall be lawfully entitled to exercise such rights and
remedies, and for no other purpose, Grantor hereby grants to the Agent, to the
extent assignable, an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to Grantor) to use, assign, license or
sublicense any of the Intellectual Property now owned or hereafter acquired by
Grantor, wherever the same may be located, including in such license reasonable
access to all media in which any of the licensed items may be recorded or stored
and to all computer programs used for the compilation or printout
thereof. Notwithstanding anything contained herein to the contrary,
but subject to the provisions of the Financing Agreement that limit the right of
Grantor to dispose of its property and Section 5(h) hereof, so long as no Event
of Default shall have occurred and be continuing, Grantor may exploit, use,
enjoy, protect, license, sublicense, assign, sell, dispose of or take other
actions with respect to the Intellectual Property in the ordinary course of its
business. In furtherance of the foregoing, unless an Event of Default
shall have occurred and be continuing the Agent shall from time to time, upon
the request of Grantor, execute and deliver any instruments, certificates or
other documents, in the form so requested, which Grantor shall have certified
are appropriate (in Grantor's judgment) to allow it to take any action permitted
above (including relinquishment of the license provided pursuant to this clause
(c) as to any Intellectual Property). Further, upon the payment in
full of all of the Obligations after the cancellation or termination of the
Revolving Credit Commitments and Letter of Credit Obligations and the
termination of the Financing Agreement and the other Loan Documents, the Agent
(subject to Section 10(e) hereof) shall release and reassign to the Grantor all
of the Agent's right, title and interest in and to the Intellectual Property,
and the Licenses, all without recourse, representation or warranty
whatsoever. The exercise of rights and remedies hereunder by the
Agent shall not terminate the rights of the holders of any licenses or
sublicenses theretofore granted by Grantor in accordance with the second
sentence of this clause (c). Grantor hereby releases the Agent from
any claims, causes of action and demands at any time arising out of or with
respect to any actions taken or omitted to be taken by the Agent under the
powers of attorney granted herein other than actions taken or omitted to be
taken through the Agent's gross negligence or willful misconduct, as determined
by a final determination of a court of competent jurisdiction.
-17-
(d) If
Grantor fails to perform any agreement contained herein, the Agent may itself
perform, or cause performance of, such agreement or obligation, in the name of
Grantor or the Agent, and the expenses of the Agent incurred in connection
therewith shall be payable by the Grantor pursuant to Section 8 hereof and shall
be secured by the Collateral.
(e) The
powers conferred on the Agent hereunder are solely to protect its interest in
the Collateral and shall not impose any duty upon it to exercise any such
powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
(f) Anything
herein to the contrary notwithstanding (i) Grantor shall remain liable
under the Licenses and otherwise with respect to any of the Collateral to the
extent set forth therein to perform all of its obligations thereunder to the
same extent as if this Agreement had not been executed, (ii) the exercise
by the Agent of any of its rights hereunder shall not release Grantor from any
of its obligations under the Licenses or otherwise in respect of the Collateral,
and (iii) the Agent shall not have any obligation or liability by reason of
this Agreement under the Licenses or with respect to any of the other
Collateral, nor shall the Agent be obligated to perform any of the obligations
or duties of Grantor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
-18-
SECTION
7. Remedies Upon
Default. If any Event of Default shall have occurred and be
continuing:
(a) The
Agent may exercise in respect of the Collateral, in addition to the other rights
and remedies provided for herein or otherwise available to it, all of the rights
and remedies of a secured party upon default under the Code (whether or not the
Code applies to the affected Collateral), and also may (i) take absolute
control of the Collateral, including, without limitation, transfer into the
Agent's name or into the name of its nominee or nominees (to the extent the
Agent has not theretofore done so) and thereafter receive, for the benefit of
the Agent and the Lender Group, all payments made thereon, give all consents,
waivers and ratifications in respect thereof and otherwise act with respect
thereto as though it were the outright owner thereof, (ii) require Grantor
to, and Grantor hereby agrees that it will at its expense and upon request of
the Agent forthwith, assemble all or part of the Collateral as directed by the
Agent and make it available to the Agent at a place or places to be designated
by the Agent that is reasonably convenient to both parties, and the Agent may
enter into and occupy any premises owned or leased by Grantor where the
Collateral or any part thereof is located or assembled for a reasonable period
in order to effectuate the Agent's rights and remedies hereunder or under law,
without obligation to Grantor in respect of such occupation, and
(iii) without notice except as specified below and without any obligation
to prepare or process the Collateral for sale, (A) sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any of the Agent's offices or
elsewhere, for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as the Agent may deem commercially reasonable
and/or (B) lease, license or dispose of the Collateral or any part thereof
upon such terms as the Agent may deem commercially
reasonable. Grantor agrees that, to the extent notice of sale or any
other disposition of the Collateral shall be required by law, at least five (5)
days' notice to Grantor of the time and place of any public sale or the time
after which any private sale or other disposition of the Collateral is to be
made shall constitute reasonable notification. The Agent shall not be
obligated to make any sale or other disposition of Collateral regardless of
notice of sale having been given. The Agent may adjourn any public or
private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time and
place to which it was so adjourned. Grantor hereby waives any claims
against the Agent and the Lenders arising by reason of the fact that the price
at which the Collateral may have been sold at a private sale was less than the
price which might have been obtained at a public sale or was less than the
aggregate amount of the Obligations, even if the Agent accepts the first offer
received and does not offer the Collateral to more than one offeree, and waives
all rights that Grantor may have to require that all or any part of the
Collateral be marshalled upon any sale (public or private)
thereof. Grantor hereby acknowledges that (i) any such sale of
the Collateral by the Agent shall be made without warranty, (ii) the Agent
may specifically disclaim any warranties of title, possession, quiet enjoyment
or the like, and (iii) such actions set forth in clauses (i) and (ii)
above shall not adversely effect the commercial reasonableness of any such sale
of the Collateral. In addition to the foregoing, (i) upon
written notice to Grantor from the Agent, Grantor shall cease any use of the
Intellectual Property or any trademark, patent or copyright similar thereto for
any purpose described in such notice; (ii) the Agent may, at any time and from
time to time, upon five (5) days' prior notice to Grantor, license, whether
general, special or otherwise, and whether on an exclusive or non-exclusive
basis, any of the Intellectual Property, throughout the universe for such term
or terms, on such conditions, and in such manner, as the Agent shall in its sole
discretion determine; and (iii) the Agent may, at any time, pursuant to the
authority granted in Section 6 hereof (such authority being effective upon the
occurrence and during the continuance of an Event of Default execute and deliver
on behalf of a Grantor, one or more instruments of assignment of the
Intellectual Property (or any application or registration thereof), in form
suitable for filing, recording or registration in any country.
(b) Any
cash held by the Agent as Collateral and all Cash Proceeds received by the Agent
in respect of any sale of or collection from, or other realization upon, all or
any part of the Collateral may, in the discretion of the Agent, be held by the
Agent as collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Agent pursuant to Section 8 hereof) in
whole or in part by the Agent against, all or any part of the Obligations in
such order as the Agent shall elect, consistent with the provisions of the
Financing Agreement. Any surplus of such cash or Cash Proceeds held
by the Agent and remaining after payment in full of all of the Obligations after
the termination of all Revolving Credit Commitments and all Letter of Credit
Obligations and the termination of the Financing Agreement and the other Loan
Documents shall be paid over to whomsoever shall be lawfully entitled to receive
the same or as a court of competent jurisdiction shall direct.
-19-
(c) In
the event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Agent and the Lenders are legally
entitled, the Grantor shall be liable for the deficiency, together with interest
thereon at the highest rate specified in any applicable Loan Document for
interest on overdue principal thereof or such other rate as shall be fixed by
applicable law, together with the costs of collection and the reasonable fees,
costs, expenses and other client charges of any attorneys employed by the Agent
to collect such deficiency.
(d) Grantor
hereby acknowledges that if the Agent complies with any applicable state or
federal law requirements in connection with a disposition of the Collateral,
such compliance will not adversely effect the commercial reasonableness of any
sale or other disposition of the Collateral.
(e) The
Agent shall not be required to marshal any present or future collateral security
(including, but not limited to, this Agreement and the Collateral) for, or other
assurances of payment of, the Obligations or any of them or to resort to such
collateral security or other assurances of payment in any particular order, and
all of the Agent's rights hereunder and in respect of such collateral security
and other assurances of payment shall be cumulative and in addition to all other
rights, however existing or arising. To the extent that Grantor
lawfully may, Grantor hereby agrees that it will not invoke any law relating to
the marshalling of collateral which might cause delay in or impede the
enforcement of the Agent's rights under this Agreement or under any other
instrument creating or evidencing any of the Obligations or under which any of
the Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
Grantor hereby irrevocably waives the benefits of all such laws.
SECTION
8. Indemnity and
Expenses.
(a) Grantor
agrees to indemnify and hold the Agent harmless from and against any and all
claims, damages, losses, liabilities, obligations, penalties, fees, costs and
expenses (including, without limitation, legal fees, costs, expenses, and
disbursements of Agent's counsel) to the extent that they arise out of or
otherwise result from this Agreement (including, without limitation, enforcement
of this Agreement), except claims, losses or liabilities resulting solely and
directly from the Agent's gross negligence or willful misconduct, as determined
by a final judgment of a court of competent jurisdiction.
(b) Grantor
will upon demand pay to the Agent the amount of any and all costs and expenses,
including the reasonable fees, costs, expenses and disbursements of counsel for
the Agent and of any experts and agents (including, without limitation, any
collateral trustee which may act as agent of the Agent), which the Agent may
incur in connection with (i) the preparation, negotiation, execution,
delivery, recordation, administration, amendment, waiver or other modification
or termination of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any
Collateral, (iii) the exercise or enforcement of any of the rights of the
Agent hereunder, or (iv) the failure by Grantor to perform or observe any
of the provisions hereof.
-20-
SECTION
9. Notices,
Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed (by certified mail, postage
prepaid and return receipt requested), telecopied or delivered, if to Grantor,
to it in care of the Administrative Borrower at its address specified in the
Financing Agreement or as otherwise specified next to Grantor's signature below;
if to the Agent, to it at its address specified in the Financing Agreement; or
as to any such Person, at such other address as shall be designated by such
Person in a written notice to such other Person complying as to delivery with
the terms of this Section 9. All such notices and other
communications shall be effective (i) if mailed, when received or three
days after deposited in the mails, whichever occurs first, (ii) if telecopied,
when transmitted and confirmation received, or (iii) if delivered, upon
delivery.
SECTION
10. Security Interest
Absolute. All rights of the Agent, the Lenders and the L/C
Issuer, all Liens and all obligations of the Grantor hereunder shall be absolute
and unconditional irrespective of (a) any lack of validity or enforceability of
the Financing Agreement, any other Loan Document or any other agreement or
instrument relating thereto, (b) any change in the time, manner or place of
payment of, or in any other term in respect of, all or any of the Obligations,
or any other amendment or waiver of or consent to any departure from the
Financing Agreement or any other Loan Document, (c) any exchange or release of,
or non-perfection of any Lien on any Collateral, or any release or amendment or
waiver of or consent to departure from any guaranty, for all or any of the
Obligations, or (d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any of the Borrowers in respect of the
Obligations. All authorizations and agencies contained herein with
respect to any of the Collateral are irrevocable and powers coupled with an
interest.
SECTION
11. Miscellaneous.
(a) No
amendment of any provision of this Agreement shall be effective unless it is in
writing and signed by Grantor and the Agent, and no waiver of any provision of
this Agreement, and no consent to any departure by Grantor therefrom, shall be
effective unless it is in writing and signed by the Agent, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) No
failure on the part of the Agent to exercise, and no delay in exercising, any
right hereunder or under any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other
right. The rights and remedies of the Agent or any Lender provided
herein and in the other Loan Documents are cumulative and are in addition to,
and not exclusive of, any rights or remedies provided by law. The
rights of the Agent or any Lender under any Loan Document against any party
thereto are not conditional or contingent on any attempt by such Person to
exercise any of its rights under any other Loan Document against such party or
against any other Person, including but not limited to, any
Borrower.
-21-
(c) Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(d) This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until the later of (A) the payment in
full of the Obligations and (B) the termination of all of the Revolving Credit
Commitments and Letter of Credit Obligations and the termination of the
Financing Agreement and the other Loan Documents, and (ii) be binding on Grantor
and all other Persons who become bound as debtor to this Agreement in accordance
with §9-203(d) of the Code and shall inure, together with all rights and
remedies of the Agent and the Lenders hereunder, to the benefit of the Agent and
the Lenders and their respective permitted successors, transferees and
assigns. Without limiting the generality of clause (ii) of the
immediately preceding sentence, without notice to Grantor, the Agent and the
Lenders may assign or otherwise transfer their rights and obligations under this
Agreement and any other Loan Document, to any other Person and such other Person
shall thereupon become vested with all of the benefits in respect thereof
granted to the Agent and the Lenders herein or otherwise. Upon any
such assignment or transfer, all references in this Agreement to the Agent or
any such Lender shall mean the assignee of the Agent or such
Lender. None of the rights or obligations of Grantor hereunder may be
assigned or otherwise transferred without the prior written consent of the
Agent, and any such assignment or transfer shall be null and void.
(e) Upon
the satisfaction in full of the Obligations and the termination of all of the
Revolving Credit Commitments and the termination of the Financing Agreement and
all Letter of Credit Obligations and the other Loan Documents, (i) this
Agreement and the security interests created hereby shall terminate and all
rights to the Collateral shall revert to Grantor and (ii) the Agent will, upon
Grantor's request and at Grantor's expense, (A) return to Grantor such of the
Collateral as shall not have been sold or otherwise disposed of or applied
pursuant to the terms hereof and (B) execute and deliver to Grantor such
documents as Grantor shall reasonably request to evidence such termination, all
without any representation, warranty or recourse whatsoever.
(f) THIS
AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW
AND EXCEPT TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND
THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST CREATED
HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
(g) Grantor
hereby irrevocably and unconditionally:
(i) Submits
for itself and its property in any action, suit or proceeding relating to this
Agreement or any other Loan Document to which it is a party, or for recognition
and enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
thereof;
-22-
(ii) Agrees
that any such action, suit or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such
action, suit or proceeding in any such court or that such action, suit or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(iii) Consents
to the service of any and all process in any such action, suit or proceeding by
mailing (by certified or registered mail, postage prepaid and return receipt
requested) or delivering a copy of such process to Grantor at its address set
forth in Section 9 hereof or at such other address of which the Agent shall have
been notified pursuant thereto;
(iv) To
the extent that Grantor has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, Grantor hereby irrevocably
waives such immunity in respect of its obligations under this Agreement and the
other Loan Documents;
(v) Agrees
that nothing herein shall affect the right of the Agent or any Lender to effect
service of process in any other manner permitted by law or shall limit the right
of the Agent or any Lender to xxx in any other jurisdiction; and
(vi) Waives
any right it may have to claim or recover in any legal action, suit or
proceeding referred to in this Section any special, exemplary, punitive or
consequential damages.
(h) GRANTOR (AND BY ITS ACCEPTANCE OF THE
BENEFITS OF THIS AGREEMENT), THE AGENT WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR OTHER ACTION OF THE
PARTIES HERETO.
(i) Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(j) This
Agreement 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 constitute one in the same
Agreement.
(k) The
Agent may, in its sole and absolute discretion, enforce the provisions hereof
against the Grantor without resorting to or regard to other Collateral or other
sources of reimbursement for the Obligations and shall not be required to
proceed against all Borrowers jointly or seek payment from the all the Borrowers
or Guarantors ratably. The release or discharge of any other Borrower
or Guarantor by the Agent shall not release or discharge Grantor from the
obligations of such Person hereunder.
-23-
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
-24-
IN
WITNESS WHEREOF, Grantor has caused this Agreement to be executed and delivered
by its officer thereunto duly authorized as of the date first above
written.
BORROWER AND
GRANTOR:
|
||
FREDERICK'S
OF HOLLYWOOD GROUP, INC.
|
||
By:
|
||
Name:
|
||
Title:
|
-25-
SCHEDULE
I
LEGAL
NAME; ORGANIZATIONAL IDENTIFICATION NUMBERS; STATES OR
JURISDICTION
OF ORGANIZATION
Sched.
I-1
SCHEDULE
II
TRADEMARKS
AND TRADEMARK LICENSES;
PATENTS
AND PATENT LICENSES;
COPYRIGHTS
AND COPYRIGHT LICENSES
Sched.
II-1
SCHEDULE
III
LOCATIONS
OF GRANTOR
LOCATION
|
Description
of Location (State if Location
|
|
(i) contains
Equipment, Fixtures,
|
|
Goods
or Inventory,
|
|
(ii)
is chief place of business and
|
|
chief
executive office, or
|
|
(iii)
contains Books and Records concerning
Accounts
|
|
and
originals of Chattel Paper)
|
Sched.
III-1
SCHEDULE
IV
DEPOSIT
ACCOUNTS, SECURITIES ACCOUNTS AND COMMODITIES ACCOUNTS
Name
and Address
|
|||||
of
Institution
|
|||||
Maintaining Account
|
Account Number
|
Type of Account
|
|||
Sched.
IV-1
SCHEDULE
V
UCC-1
FINANCING STATEMENTS
Sched.
V-1
SCHEDULE
VI
COMMERCIAL
TORT CLAIMS
Sched.
VI-1
EXHIBIT
A
ASSIGNMENT FOR
SECURITY
[(TRADEMARKS)] [(PATENTS)]
[(COPYRIGHTS)]
WHEREAS,
____________________ (the "Assignor") [has
adopted, used and is using, and holds all right, title and interest in and to,
the trademarks and service marks listed on the annexed Schedule 1A, which
trademarks and service marks are registered or applied for in the United States
Patent and Trademark Office (the "Trademarks")] [holds
all right, title and interest in the letter patents, design patents and utility
patents listed on the annexed Schedule 1A, which patents are issued or applied
for in the United States Patent and Trademark Office (the "Patents")] [holds all
right, title and interest in the copyrights listed on the annexed Schedule 1A,
which copyrights are registered in the United States Copyright Office (the
"Copyrights")];
WHEREAS,
the Assignor and certain affiliates have entered into a Security Agreement,
dated January 28, 2008 (as amended or otherwise modified from time to time,
the "Security
Agreement"), in favor of Xxxxx Fargo Retail Finance II, LLC, as agent for
certain lenders (the "Assignee");
WHEREAS,
pursuant to the Security Agreement, the Assignor has assigned to the Assignee
and granted to the Assignee for the benefit of the lenders a continuing security
interest in all right, title and interest of the Assignor in, to and under the
[Trademarks, together with, among other things, the good-will of the business
symbolized by the Trademarks] [Patents] [Copyrights] and the applications and
registrations thereof, and all proceeds thereof, including, without limitation,
any and all causes of action which may exist by reason of infringement thereof
and any and all damages arising from past, present and future violations thereof
(the "Collateral"), to
secure the payment, performance and observance of the Obligations (as defined in
the Security Agreement);
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Assignor does hereby pledge, convey, sell,
assign, transfer and set over unto the Assignee and grants to the Assignee for
the benefit of the lenders a continuing security interest in the Collateral to
secure the prompt payment, performance and for the benefit of the lenders
observance of the Obligations.
The
Assignor does hereby further acknowledge and affirm that the rights and remedies
of the Assignee with respect to the Collateral are more fully set forth in the
Security Agreement, the terms and provisions of which are hereby incorporated
herein by reference as if fully set forth herein.
Exh.
A-1
IN
WITNESS WHEREOF, the Assignor has caused this Assignment to be duly executed by
its officer thereunto duly authorized as of _____________ __, 20__.
[GRANTOR]
|
||
By:
|
||
Name:
|
||
Title:
|
Exh.
A-2
STATE OF
____________
ss.:
COUNTY OF
__________
On this
____ day of _______________, 20__, before me personally came ________________,
to me known to be the person who executed the foregoing instrument, and who,
being duly sworn by me, did depose and say that s/he is the ________________ of
_______________________________________, a ____________________, and that he
executed the foregoing instrument in the firm name of
_______________________________________, and that s/he had authority to sign the
same, and s/he acknowledged to me that s/he executed the same as the act and
deed of said firm for the uses and purposes therein mentioned.
_______________________________
Exh.
A-3
SCHEDULE 1A TO ASSIGNMENT
FOR SECURITY
[(TRADEMARKS AND TRADEMARK
APPLICATIONS)
Trademarks
and Trademark Applications Owned
by
______________________________]
[(PATENTS
AND PATENT APPLICATIONS)
Patents
and Patent Applications Owned
by
_____________________________]
[(COPYRIGHTS AND COPYRIGHT
APPLICATIONS)
Copyrights
and Copyright Applications owned
by_______________________________]
Exh.
C-4
TABLE OF
CONTENTS
Page
|
||
SECTION
1.
|
Definitions
|
1
|
SECTION
2.
|
Grant
of Security Interest
|
4
|
SECTION
3.
|
Security
for Obligations
|
5
|
SECTION
4.
|
Representations
and Warranties
|
6
|
SECTION
5.
|
Covenants
as to the Collateral
|
9
|
SECTION
6.
|
Additional
Provisions Concerning the Collateral
|
17
|
SECTION
7.
|
Remedies
Upon Default
|
19
|
SECTION
8.
|
Indemnity
and Expenses
|
20
|
SECTION
9.
|
Notices,
Etc
|
21
|
Security
Interest Absolute
|
21
|
|
SECTION
11.
|
Miscellaneous
|
21
|
Exhibit
I
Form
of Compliance Certificate
OFFICER’S
COMPLIANCE CERTIFICATE
Date
Xxxxx
Fargo Retail Finance II, LLC
Xxx
Xxxxxx Xxxxx, 00xx
Xxxxx
Xxxxxx,
XX 00000
RE:
Frederick’s of Hollywood Group Inc.
Financial Statement for:
|
Dear
Sir/Madam:
This
Certificate accompanies the above-described financial statement (the “Financial
Statement”, or Consolidated Statement of Operations) furnished to you by the
Borrower and is delivered in accordance with the Loan and Security Agreement
(the “Loan Agreement”) between the Borrower and Xxxxx Fargo Retail Finance II,
LLC. The terms used herein which are defined in the Loan Agreement
are used as so defined.
The
undersigned has reviewed the Financial Statement,
the Loan
Agreement, and each of the other Loan Documents, and
has made such inquiry as the undersigned deems appropriate. Following
such review, the undersigned, in his capacity as Chief Financial Officer CERTIFIES, to the best of his
knowledge, as follows:
(a)
|
The
financial statements delivered hereunder have been prepared in accordance
with GAAP (except for the lack of footnotes and being subject to year-end
audit adjustments) and fairly present in all material respects the
financial condition of Group and its
Subsidiaries.
|
(b)
|
The
representations and warranties of the Borrowers contained in the Loan
Agreement and the other Loan Documents are true and correct in all
material respects on and as of the date of such certificate, as though
made on and as of such date (except to the extent that any such
representations and warranties expressly relate solely to an earlier date,
in which case such representations and warranties were true and correct in
all material respects on such earlier
date)
|
(c)
|
All
rent, utility, lease trade liabilities and other obligations inclusive of
all taxes and insurance are current and being paid as agreed and there are
no held or post dated checks outstanding; unless a schedule is completed
with the details of all held or post dated checks and all past due
payments and the steps (if any) being taken or contemplated by the
Borrower to be taken on account thereof. Copies of any related
default,
cure or
late
notices concerning any obligations have been enclosed herein to you the
Lender.
|
(d)
|
No
event including a suspension event, immediate notice of which is to be
provided by the Borrower in accordance with the Loan Agreement, has
occurred, other than those events, written notice of which has previously
been provided and those events (if any) described
below:
|
(e)
|
There
have been no changes in Executive Officers of the Borrower and if so,
these have been communicated to Xxxxx Fargo Retail Finance and listed on a
separate sheet of paper.
|
(f)
|
There
does not exist any condition or event that constitutes a Default or Event
of Default (or, to the extent of any non-compliance, describing such
non-compliance as to which the undersigned may have knowledge and what
action the Borrowers have taken, are taking, or propose to take with
respect thereto).
|
Frederick’s
of Hollywood Group Inc.
|
XXXXX
FARGO RETAIL FINANCE, LLC
|
|||
Signature:
|
Reviewed
By:
|
|||
Printed
Name:
|
Title:
|
|||
Title:
|
Date:
|
|||
Date:
|
2
EXHIBIT
J
Form
of Borrowing Base Certificate
Frederick’s
of Hollywood Group Inc.
|
|||||||||||||
Date:
|
|||||||||||||
FAX
TO:
|
Updates:
|
Weekly
Update
|
|||||||||||
Accounts
Receivable:
|
|||||||||||||
Credit
Card Receivables (FOH)
|
As
of:
|
||||||||||||
Standard
Advance Rate on Cost:
|
|||||||||||||
Eligible
Credit Card Receivables
|
0
|
||||||||||||
Wholesale
Accounts Receivables
|
|||||||||||||
LESS:
|
Greater
than 60 Days Past Due
|
||||||||||||
Aged
Credits
|
|||||||||||||
Chargebacks
|
|||||||||||||
Cross
Aging
|
|||||||||||||
Foreign
Customers
|
|||||||||||||
Intercompany
|
|||||||||||||
Government
Receivables
|
|||||||||||||
Unapplied
Cash
|
|||||||||||||
Dilution
Reserve
|
|||||||||||||
Total
Wholesale Reserves
|
|||||||||||||
Standard
Advance Rate on Cost:
|
0.0
|
%
|
|||||||||||
Eligible
Wholesale Receivables
|
0
|
||||||||||||
Wal-Mart
Accounts Receivable
|
|||||||||||||
LESS:
|
Greater
than 60 Days Past Due
|
||||||||||||
Aged
Credits
|
|||||||||||||
Chargebacks
|
|||||||||||||
Cross Aging (excluded
per
LSA)
|
|||||||||||||
Foreign
Customers
|
|||||||||||||
Intercompany
Less Than 60 Days Past Due
|
|||||||||||||
Government
Receivables
|
|||||||||||||
Unapplied
Cash
|
|||||||||||||
Dilution
Reserve
|
|||||||||||||
Total
Wal-Mart Reserves
|
0
|
||||||||||||
Standard
Advance Rate on Cost:
|
|||||||||||||
Eligible
Wal-Mart Receivables
|
0
|
||||||||||||
TOTAL
ACCOUNTS RECEIVABLE
|
|
$
|
0
|
COST
|
|||||||||||||
Inventory:
|
|||||||||||||
Beginning
Frederick's Inventory Balance:
|
As
of:
|
||||||||||||
ADD:
|
Purchases
|
||||||||||||
Customer
Returns (n/a all numbers are net of returns)
|
|||||||||||||
Other
Adjustments (explain)
|
Vendor
Returns at Cost
|
||||||||||||
Total
Increases
|
0
|
||||||||||||
Inventory
Available for Sale
|
0
|
||||||||||||
LESS:
|
Cost
of Sales
|
||||||||||||
Markdowns
at Cost
|
|||||||||||||
Price
Adjustments
|
|||||||||||||
Physical
Adjustments (Shrink from Physical Inventories)
|
|||||||||||||
Other
Adjustments (explain)
|
Unit
Adjustment and General Markdowns
|
||||||||||||
Total
Reductions
|
0
|
||||||||||||
Ending
Frederick's Stock Ledger Inventory:
|
As
of:
|
01/00/00
|
0
|
||||||||||
LESS:
|
Shrink:
|
Year
to date retail sales
|
As
of:
|
01/00/00
|
0
|
||||||||
Year
to date direct sales
|
As
of:
|
01/00/00
|
0
|
||||||||||
(Year
to Date Sales to be reset twice annually after receipt & review of
physical inventory results)
|
|||||||||||||
IP
Location 393 - Over/Short discrepancies
|
01/00/00
|
||||||||||||
IP
Location 666 - Test of new SKUs
|
01/00/00
|
||||||||||||
IP
Location 888 - RTV/Damaged warehouse inventory
|
01/00/00
|
||||||||||||
IP
Locations 810-3000 - Returned Consigned Inventory
|
01/00/00
|
||||||||||||
IP
Location 975 - RTV Whs
|
01/00/00
|
||||||||||||
IP
Location 799 - Returns HMO
|
01/00/00
|
||||||||||||
Total
Inventory Reserves (updated weekly)
|
0
|
||||||||||||
ELIGIBLE
FREDERICK'S INVENTORY:
|
As
of:
|
01/00/00
|
0
|
||||||||||
Standard
Advance Rate on Cost (90% NRLV):
|
0.00
|
%
|
|||||||||||
TOTAL
FREDERICK'S STANDARD BORROWING BASE
|
0
|
COST
|
|||||||||||||
Movie
Star Stock Ledger Inventory:
|
As
of:
|
||||||||||||
In
Transit Inventory
|
100%
|
0
|
|||||||||||
LESS:
|
Shrink:
(Fixed)
|
||||||||||||
Inventory
in canada
|
0
|
||||||||||||
Work
in Process
|
0
|
||||||||||||
Other
Ineligble Inventory
|
0
|
||||||||||||
Total
Inventory Reserves (updated weekly)
|
|||||||||||||
ADD:
|
Eligible
L/C Inventory (capped at $15MM)
|
Total Outstanding:
|
|||||||||||
ADD:
|
Pending
Order Inventory
|
||||||||||||
Cost
Factor
|
|||||||||||||
Eligible
Pending Order Inventory (at cost)
|
0
|
||||||||||||
Standard
Advance Rate
|
|||||||||||||
Pending
Order Advance Rate
|
0.0
|
%
|
|||||||||||
TOTAL
MOVIE STAR STANDARD BORROWING BASE:
|
0
|
||||||||||||
LESS:
|
Gift
Certificates - % of open liability
|
As
of:
|
|||||||||||
Customer
Deposits - % of open liability
|
0
|
||||||||||||
Landlord
Lien Rent Reserves (PA, TX, WA)
|
|||||||||||||
Reserve
for Personal Property Taxes in Texas
|
Starting on
|
||||||||||||
Reserve
for Texas Sales Taxes
|
Starting on
|
||||||||||||
In
Transit Inventory 15%
|
0
|
||||||||||||
Availability
Reserve
|
|||||||||||||
Total
Availability Reserves (updated monthly)
|
0
|
||||||||||||
COMBINED
STANDARD INVENTORY BORROWING BASE
|
0
|
||||||||||||
Additional
Loan Term Collateral
|
|||||||||||||
TOTAL
STANDARD INVENTORY & ACCOUNTS RECEIVABLE BORROWING
BASE
|
$
|
0
|
AVAILABILITY CALCULATION
(due 10:00am PST for same-day funding)
Beginning
Principal Balance as of:
|
|||||||||||||
ADD:
|
Advances
through
|
||||||||||||
Fees
as of
|
|||||||||||||
Adjustments
|
|||||||||||||
Loan
|
|||||||||||||
LESS:
|
Payments
through
|
||||||||||||
Ending
Principal Balance Prior to Advance Request
|
$
|
0.00
|
|||||||||||
ADD:
|
Estimated
Accrued Interest
|
$
|
0.00
|
||||||||||
Loan
Balance Prior to Today's Request
|
$
|
0.00
|
|||||||||||
Net
Availability Prior to Today's Request
|
$
|
0.00
|
|||||||||||
Today's
Receipts
|
|||||||||||||
Total
Availability
|
$
|
0.00
|
|||||||||||
Today's
Advance Request:
|
|||||||||||||
Wire
#1 (Frederick's)
|
|||||||||||||
Wire
#2 (Movie Star)
|
|||||||||||||
Ending
Loan Balance Inclusive of Today's Receipts
|
$
|
0.00
|
|||||||||||
Total
L/C's Outstanding
|
Documentary:
|
+
|
Standby:
|
=
|
$
|
0.00
|
|||||||
(Not
to exceed $15.0MM)
|
|||||||||||||
Total
Exposure
|
$
|
0.00
|
|||||||||||
Excess
Availability
|
$
|
0.00
|
The
undersigned represents and warrants that the information set forth above is true
and complete. The undersigned grants a security interest in the
collateral reflected above to Xxxxx Fargo Retail Finance,
LLC. Frederick's of Hollywood Group, Inc. represents and
warrants that (a) said collateral complies with their representations, warrants,
and covenants contained in the Loan Agreement between lender and undersigned;
(b) no "Event of Default" (as defined in the Loan and Security Agreement under
Section 8) is presently in existence; and (c) all or a portion of the advance
request hereby will be utilized by the Borrower to cover 100% of the Borrower's
obligation for sales tax on account of sales since the most recent borrowing
under the Loan and Security Agreement.
Authorized
Signer:
|
Printed
Name:
|
Signature:
|
|||
WFRF Account
Manager:
|
Printed Name:
|
Signature:
|
XXXXX
FARGO
|
Exhibit
K
|
Application
for Commercial Letter of Credit
Created
By:
|
Xxxxx
Fargo Bank L/C No.:
|
Application
Date:
|
|
Status:
|
|
Last
Activity Date:
|
|
Type:
Irrevocable Commercial Letter of Credit
|
Applicant
Reference No.:
|
TO: Xxxxx
Fargo Foothill Import Letters of Credit
PLEASE
ISSUE AN IRREVOCABLE COMMERCIAL LETTER OF CREDIT ON SUBSTANTIALLY THE TERMS
BELOW:
ADVICE
METHOD:
PARTY
TO BE NAMED AS REQUESTING THE CREDIT:
|
BENEFICIARY:
|
|
CURRENCY/AMOUNT:
|
||
Drafts
At:
|
Sight
|
|
Tenor:
|
At
Sight
|
-Shipment Period:
-Presentation Period: Within 21
days after shipment, but within the validity of the credit.
-Partial Shipments are Not
Allowed
-Transhipment not
allowed.
-Letter of Credit is
Non-transferable.
Place of Taking in
Charge/Dispatch:
From/Place of Receipt:
Port of Loading/Airport of
Departure:
Port of Discharge/Airport of
Destination:
Place of Final
Destination/For
Transportation To/Place of
Delivery:
Unknown IncoTerm:
DESCRIPTION
OF GOODS:
REQUIRED
DOCUMENTS:
OTHER
TERMS AND CONDITIONS:
CONFIRMATION
INSTRUCTIONS:
SPECIAL
INSTRUCTIONS FOR ISSUING BANK STAFF ONLY:
AGREEMENT
OF CORRESPONDENT BANK/NON-BANK AFFILIATE: SUBMISSION OF THIS APPLICATION TO
ISSUING BANK NAMED ABOVE INDICATES OUR AGREEMENT TO THE PROVISIONS ON ALL THE
PAGES OF THIS APPLICATION, AND OUR AGREEMENT THAT THE CREDIT AND ITS ISSUANCE
WILL BE GOVERNED BY THE TERMS AND CONDITIONS OF THIS COMMERCIAL LETTER OF CREDIT
AGREEMENT BETWEEN US AND THE ISSUING BANK.
END
OF APPLICATION
|
Xxxxx
Fargo L/C number:
|
Applicant
Reference Number:
|
EXHIBIT
L
FORM OF
CREDIT CARD BANK
DEPOSITORY
ACCOUNT AGREEMENT
[DATE]
|
[Name
and
Address
of Credit Card
Depository
Bank]
Ladies
and Gentlemen:
We refer
to [Credit Card Agreement] dated _____________, ___ (as amended or otherwise
modified from time to time, the “Credit Card
Agreement”) between you and [Frederick’s of Hollywood Group Inc., a New
York corporation] [Frederick’s of Hollywood, Inc., a Delaware corporation]
[Frederick’s of Hollywood Stores, Inc., a Nevada corporation] [Hollywood Mail
Order LLC, a Nevada limited liability company] (the “Borrower”). The Borrower
has entered into an Amended and Restated Financing Agreement, dated as of
January [__], 2008 (as amended, restated or otherwise modified from time to
time, the “Financing
Agreement”), with certain financial institutions party thereto (the
“Lenders”) and
Xxxxx Fargo Retail Finance II, LLC, a Delaware limited liability company, as
agent for the Lenders (the “Agent”), pursuant to
which the Lenders have agreed to make loans to the Borrower and assist the
Borrower in obtaining letters of credit. Pursuant to the Financing Agreement,
the Borrower granted a security interest in all of its assets, including
inventory and any proceeds thereof, to the Agent for the benefit of the Lenders
to secure the obligations of the Borrower under the Loan Documents (as defined
in the Financing Agreement).
By
signing this letter agreement, you agree that from and after the date hereof,
all monies, instruments or other property owing under the Credit Card Agreement
to the Borrower shall be held for the benefit of the Agent, as secured party.
You hereby further agree, and the Borrower hereby irrevocably instructs you, to
transfer all amounts owing to the Borrower in accordance with the terms of the
Credit Card Agreement, in same day funds, to an account no. _________ maintained
with ____ at:
For
the account of:
|
Xxxxx
Fargo Retail Finance II, LLC
(Cash
Concentration Account)
Account
#:
|
(the
“Cash Concentration
Account”) or such other account designated in writing by the
Agent.
From and
after the date hereof, no officer or agent of the Borrower shall have the
authority to withdraw or transfer any funds owing under the Credit Card
Agreement and the Agent shall have the sole authority to give you instructions
with respect to the withdrawal or transfer of any funds owing under the Credit
Card Agreement including, without limitation, the authority to designate a new
Cash Concentration Account. The instructions set forth in this letter agreement
may only be changed upon written instruction from the Agent. Any correspondence
with the Agent should be to:
Xxxxx
Fargo Retail Finance II, LLC
|
|
Xxx
Xxxxxx Xxxxx
|
|
Xxxxx
0000
|
|
Xxxxxx,
Xxxxxxxxxxxxx 00000
|
|
Attention:
Business Finance Division Manager
|
|
Telephone:
(000) 000-0000
|
|
Telecopy:
(000) 000-0000
|
Very
truly yours,
|
||
[FREDERICK’S
OF HOLLYWOOD GROUP INC.]
|
||
[FREDERICK’S
OF HOLLYWOOD, INC.]
|
||
[FREDERICK’S
OF HOLLYWOOD STORES, INC.]
|
||
[HOLLYWOOD
MAIL ORDER, LLC
|
||
By:
FOH Holdings, Inc., as its Manager]
|
||
By:
|
||
Name:
|
||
Title:
|
2
XXXXX
FARGO RETAIL FINANCE II, LLC
|
||
as
Agent
|
||
By:
|
||
Name:
|
||
Title:
|
3
Acknowledged
and agreed to as
|
|||
of
the date first above written:
|
|||
[Date]
|
|||
[Credit
Card Depository Bank]
|
|||
By:
|
|||
Title:
|
4
EXHIBIT
M
COLLATERAL ACCESS
AGREEMENT
[LANDLORD]
[ADDRESS]
Re:
[PREMISES]
Ladies
and Gentlemen:
We understand that you are the owner of
certain real property located at [ADDRESS] (the “Premises”) which are presently
leased to [NAME OF TENANT] (“Tenant”), pursuant to a lease
between [LANDLORD] (“Landlord”) and Tenant dated on
or about [DATE] (the “Lease”).
Tenant and certain of its affiliates
(together, the “Companies”) have entered into
certain financing arrangements with Xxxxx Fargo Retail Finance II, LLC, as agent
(together with its successors and assigns, in such capacity, the “Agent”), and various
institutional investors (the “Lenders”), pursuant to which
the Companies have granted liens in favor of the Agent (for the benefit of
itself and the Lenders) in all of their personal property (collectively the
“Personal Property”), certain of which,
including without limitation the Companies’ inventory, equipment and books and
records, has been and will from time to time be located at the
Premises.
To induce the Lenders to provide such
financing arrangements to the Companies under such financing arrangements in
reliance upon the Personal Property as collateral, the Agent and the Companies
hereby request that Landlord acknowledge and agree, for the benefit of the Agent
and the Lenders, that:
1. Landlord
waives and relinquishes any lien, rights of levy or distraint, claim, security
interest or other interest Landlord may now or hereafter have in or with respect
to any of the Personal Property, whether for rent or otherwise. For
purposes hereof, the term “Personal Property” shall not include plumbing and
electrical fixtures, heating, ventilation and air conditioning, wall and floor
coverings, walls or ceilings and other fixtures not constituting trade
fixtures.
2. The
Personal Property may be installed in or located on the Premises and is not and
shall not be deemed a fixture or part of the real property but shall at all
times be considered personal property.
3. Landlord
hereby agrees that if Tenant defaults in its obligations to the Lenders or the
Agent and, as a result, the Agent seeks to enforce its security interest in the
Lease or the Personal Property, Landlord will permit the Agent, at the Agent’s
option, to (a) succeed to Tenant’s right, title and interest under the Lease, or
(b) enter into and remain in the Premises for up to ninety (90) days after the
Agent declares the default, provided that the Agent pays the rental payments due
under the Lease for the period of time that the Agent so uses the Premises, or
(c) remove the Personal Property from the Premises within a reasonable time, not
to exceed ninety (90) days after the Agent gives notice to Landlord of the
default, provided that the Agent pays the rental payments due under the Lease
for the period of time the Agent so uses the Premises and the Agent pays for any
damages caused by the Agent or its representatives in removing the Personal
Property from the Premises. Landlord further agrees that Landlord
will not hinder the Agent’s actions in enforcing its liens on the Personal
Property.
4. Landlord
agrees to send a copy of any written notice of a default under the Lease at the
time each notice is sent to any of the Companies to:
Xxxxx
Fargo Retail Finance II, LLC
One Boston Place – 00xx
Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxx
Xxxx
Upon
receipt of any such notice, Agent shall have the right, but not the obligation,
to cure such default within ten (10) days thereafter. Any payment
made or act done by Agent to cure any such default shall not constitute an
assumption of the Lease or any obligations of Tenant.
5. Landlord
shall notify all successor owners, transferees, Lenders and mortgagees of the
existence of this agreement and the terms contained herein.
The Companies agree that Landlord shall
have no liability to the Companies as a result of Landlord’s compliance
herewith. The agreements contained herein shall continue in force
until all obligations and liabilities of Companies to the Lenders and the Agent
are paid and performed in full and all financing arrangements between the
Lenders, the Agent and the Companies have been terminated. The statements and
agreements contained herein shall be binding upon, and shall inure to the
benefit of, the Agent, the Companies, Landlord, mortgagees of the Premises and
the successors and assigns of all of the foregoing.
(Signature
page follows)
Dated as
of this _____________ day of _____________________, 2008.
XXXXX
FARGO RETAIL FINANCE II, LLC, as Agent
|
||
By:
|
||
Name:
|
||
Title:
|
||
[TENANT]
|
||
By:
|
||
Name:
|
||
Title:
|
ACKNOWLEDGED
AND AGREED:
|
||
[LANDLORD]
|
||
By:
|
||
Name:
|
||
Title:
|
EXHIBIT
N
Form
of Libor Notice
LIBOR
BORROWING NOTICE
|
||||
To be completed by Client:
|
||||
Borrower:
|
||||
Libor
Supplemental Information:
|
||||
|
||||
|
||||
Amount:
|
$
|
|||
Interest
Period:
|
One two three or six (months - circle
one)
|
|||
Requested
by:
|
|
|||
Name
|
Title
|
Tel.
No. of person to call:
________________________________________________________
|
|||||
Fax
No. ________________________________________________________
|
|||||
Date:
|
Via
Fax and/or E-mail to Xxxxx Fargo Foothill:
Contact
and Phone #:
|
Xxxxxxxx
Xxxx
|
|
Phone:
|
(000)
000-0000
|
|
Fax
#:
|
(000)
000-0000
|
|
Email:
|
Xxxxxxxx.Xxxx@xxxxxxxxxx.xxx
|
|
cc:
|
Xxxxxxxxxxx/XxxxxXxxxxxxxxx@xxxxxxxxxx.xxx
|
EXHIBIT
O
Form
of Plan Projections
Projections
are by month for the next fiscal year
|
|||
MONTHLY
|
|||
Consolidated Statement of
Operations FOH Group
|
|||
Net
sales
|
|||
COGS,
Buying and Occupancy
|
|||
Gross
Profit
|
|||
GP
%
|
|||
SG&A
|
|||
Interest
Expense
|
|||
Net
Income /(Loss) before Tax
|
|||
Tax
@0%
|
|||
Net
Income from Cont. Oper. Before Preferred Stock Dividend
|
|||
Less
Preferred Stock Dividend
|
|||
Income
(loss) Avail. To Common Shareholders
|
|||
Add Backs
for EBITDA
|
|||
Interest
Expense
|
|||
Tax
|
|||
Depreciation
|
|||
Amortization
|
|||
EBITDA
|
|||
Other
|
|||
Stock
Compensation Expense
|
|||
Straight
Line Rent
|
|||
Adjusted
EBITDA
|
|||
BALANCE SHEET FOH
Group
|
|||
Assets
|
|||
Current
Assets:
|
|||
Cash
|
|||
Inventory(net)
|
|||
Accounts
Receivable
|
|||
Prepaid
Catalog Costs
|
|||
Other
Prepaids and Deposits
|
|||
Deferred
Tax
|
|||
Total
Current Assets
|
|||
PP&E(net)
|
|||
Trademarks
|
|||
Domain
Names
|
<
Other
Deposits
|
|||
Deferred
Income Taxes&Other Assets
|
|||
Total
Assets
|
|||
Current Liabilities:
|
|||
Accounts
Payable Merch
|
|||
Accounts
Payable Expense
|
|||
Customer
Deposits
|
|||
Gift
Certificates
|
|||
Return
Reserve
|
|||
Accrued
Vacation
|
|||
Accrued
Expenses
|
|||
Accrued
Interest
|
|||
Revolver
Loan
|
|||
Total
Current Liabilities
|
|||
Long-Term Liabilities:
|
|||
Deferred
Rent
|
|||
Restructure
Debt Tranche “C”
|
|||
Leased
Assets+LT Liab
|
|||
Deferred
Income Tax
|
|||
Total
Long-Term Liabilities
|
|||