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 Wells 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:
|
|
|
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:
|
“ “
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 bill 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
bill of lading shall have been issued by the carrier (other than a
bill 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 ”):
|
|
|
The Borrowers,
the Agent and the Lenders shall each have executed and delivered
two originals of this Amendment;
|
|
|
|
on the
Amendment Effective Date, no Default or Event of Default shall
exist; and
|
|
|
|
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.
|
(b) If
the Amendment Effective Date shall not have occurred by the close
of business (New
|
