FIRST AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT
EXHIBIT
10.2
FIRST AMENDMENT TO AMENDED
AND RESTATED FINANCING AGREEMENT
This
FIRST AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT (this “Amendment”) is
entered into as of September 9, 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 collectively with Group, the Parent,
Frederick’s and Stores, individually, a “Borrower”, and collectively, the
“Borrowers”), and Xxxxx Fargo Retail Finance II, LLC, a Delaware limited
liability company, in its capacity as Lender and as arranger and agent for the
Lenders (in such capacity, the “Agent”).
RECITALS
A. WHEREAS,
the Borrowers, the Lenders and the Agent are parties to that certain Amended and
Restated Financing Agreement, dated as of January 28, 2008 (as heretofore
amended, restated or otherwise modified, the “Financing
Agreement”);
B. WHEREAS,
the Borrowers have requested that the Agent and the Lenders agree to certain
modifications to the Financing Agreement;
C. WHEREAS,
the Agent and the Lenders are willing to agree to such modifications upon the
terms and subject to the conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Agent, the Lenders and the Borrowers agree as
follows:
1. Definitions. Unless
otherwise defined herein, initial capitalized terms have the meanings given to
them in the Financing Agreement.
2. Amendments. Upon
the Amendment Effective Date (as hereinafter defined), the Financing Agreement
is hereby amended as follows:
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A.
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The
definition of “Qualified Import Letter of Credit” in Section 1.01 of the
Financing Agreement is amended and restated to read in its entirety as
follows:
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“ “Qualified Import Letter of
Credit” means an Import Letter of Credit that, as of any date of
determination, (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) expires within forty five (45) days after such date of determination,
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).”
3. Conditions to
Effectiveness.
(a) This
Amendment shall become effective upon the satisfaction (or waiver by the Agent)
of each of the following conditions (the first date on which said conditions
have been so satisfied (or so waived), the “Amendment Effective
Date”):
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(i)
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The
Borrowers, the Agent and the Lenders shall each have executed and
delivered two originals of this
Amendment;
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(ii)
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on
the Amendment Effective Date, no Default or Event of Default shall exist;
and
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(iii)
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The
Borrowers shall have paid all reasonable fees, costs and expenses of the
Agent and the Lenders in connection with this Amendment, including,
without limitation, the fees and expenses of Proskauer Rose,
LLP.
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(b) If
the Amendment Effective Date shall not have occurred by the close of business
(New York time) on September 9, 2008 (or such later time as the Agent consents
to in writing), this Amendment shall be deemed rescinded, null and
void.
4. No
Waiver. Except as expressly stated herein, nothing herein
shall be deemed to constitute a waiver of compliance with, or other modification
of, any term or condition contained in the Financing Agreement or any other Loan
Document and nothing contained herein shall constitute a course of conduct or
dealing among the parties hereto. Except as expressly stated herein,
the Agent and the Lenders reserve all rights, privileges and remedies under the
Loan Documents.
5. Representations. In
order to induce the Agents and the Lenders to execute this Amendment, the
Borrowers hereby represent, warrant and covenant to the Agent and the Lenders
that as of the date hereof and as of the Amendment Effective Date (which
representations, warranties and covenants shall survive execution and delivery
of this Amendment):
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(i)
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the
Borrowers are duly organized, validly existing and in good standing under
the laws of their respective jurisdictions of
formation;
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(ii)
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the
Borrowers have the power and authority to execute, deliver and perform
their obligations under this
Amendment;
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(iii)
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the
execution, delivery and performance by the Borrowers of this Amendment has
been duly authorized by all necessary action and does not and will not
require any registration with, consent or approval of, notice to or action
by, any other Person;
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(iv)
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this
Amendment constitutes the legal, valid and binding obligation of the
Borrowers, enforceable against the Borrowers in accordance with its terms;
and
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(v)
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no
Default or Event of Default exists.
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6. Counterparts. This
Amendment may be executed by the parties hereto in any number of separate
counterparts, each of which when so executed, shall be deemed an original and
all said counterparts when taken together shall be deemed to constitute but one
and the same instrument.
7. Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the Borrowers and their successors and permitted assigns, and the
Lenders and the Agent and their successors and permitted assigns.
8. Further
Assurance. The Borrowers hereby agree from time to time, as
and when requested by the Agent, to execute and deliver or cause to be executed
and delivered, all such documents, instruments and agreements and to take or
cause to be taken such further or other action as the Agent may reasonably deem
necessary or desirable in order to carry out the intent and purposes of this
Amendment.
9. GOVERNING
LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
ITS CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
10. Severability. Wherever
possible, each provision of this Amendment shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.
11. Reaffirmation. Each
Borrower hereby ratifies and reaffirms all of its payment and performance
obligations, contingent or otherwise, under each of the Loan Documents to which
it is a party (after giving effect hereto). Each Borrower hereby
acknowledges that, except as expressly modified herein, each of the Loan
Documents, remains in full force and effect and is hereby ratified and
reaffirmed.
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12. Acknowledgment of Rights;
Release of Claims. Each Borrower hereby acknowledges that:
(a) it has no defenses, claims or set-offs to the enforcement by the Agent
or the Lenders of the liabilities, obligations and agreements of the Borrowers
under the Financing Agreement or other Loan Documents on the date hereof; and
(b) to its knowledge, the Agent and the Lenders have fully performed all
undertakings and obligations owed to it as of the date hereof. In
consideration of the Agent and the Lenders entering into this Amendment, each
Borrower hereby irrevocably releases and forever discharges the Agent, the
Lenders and their respective Affiliates, and each such Person’s respective
directors, officers, employees, agents, attorneys and representatives (each, a
“Released
Person”) of and from all damages, losses, claims, demands, liabilities,
obligations, actions or causes of action whatsoever which such Borrower may now
have or claim to have against any Released Person for or because of any matter
or thing done, omitted or suffered to be done or omitted by any of the Released
Persons prior to and including the date hereof and on account of or in any way
concerning, arising out of or founded upon the Financing Agreement or any other
Loan Document, whether presently known or unknown and of every nature and extent
whatsoever. This Section 12 shall survive the termination of the
Financing Agreement and payment in full of the Obligations
thereunder.
[Signature
Pages Follow]
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IN WITNESS WHEREOF, the parties hereto
have caused this First Amendment to Amended and Restated Financing Agreement to
be duly executed by their respective duly authorized officers as of the date
first written above.
BORROWERS:
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FREDERICK’S
OF HOLLYWOOD GROUP INC.
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By:
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/s/ Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
Chief Financial Officer
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FOH
HOLDINGS, INC.
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By:
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/s/ Xxxxx XxXx
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Name:
Xxxxx XxXx
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Title:
President and CEO
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FREDERICK’S
OF HOLLYWOOD, INC.
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By:
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/s/ Xxxxx XxXx
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Name:
Xxxxx XxXx
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Title:
President and CEO
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FREDERICK’S
OF HOLLYWOOD STORES, INC.
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By:
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/s/ Xxxxx XxXx
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Name:
Xxxxx XxXx
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Title:
President and CEO
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HOLLYWOOD
MAIL ORDER, LLC
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By:
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FOH
Holdings, Inc., its Manager
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By: /s/ Xxxxx XxXx
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Name:
Xxxxx XxXx
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Title:
President and
CEO
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AGENT
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XXXXX
FARGO RETAIL FINANCE II, LLC
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By:
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/s/ Xxxxxx Xxxx
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Name: Xxxxxx
Xxxx
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Title: Vice
President
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LENDER
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XXXXX
FARGO RETAIL FINANCE II, LLC
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By:
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/s/ Xxxxxx Xxxx
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Name: Xxxxxx
Xxxx
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Title: Vice
President
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