Exhibit 10.17
[Execution]
AMENDMENT NO. 7 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 7 TO LOAN AND SECURITY AGREEMENT, dated as of February 26, 2005, entered into by and among Wachovia Bank, National Association, successor by merger to Congress Financial Corporation (Florida), in its capacity as agent acting for and on behalf of the parties to the Loan Agreement (as hereinafter defined) as lenders (in such capacity, “Agent”), the parties to the Loan Agreement as lenders (individually a “Lender” and collectively, “Lenders”), Supreme International, LLC, a Delaware limited liability company formerly known as Supreme International, Inc.(“Supreme”), Jantzen, LLC, a Delaware limited liability company formerly known as Jantzen, Inc. (“Jantzen”), Perry Ellis Menswear, LLC, a Delaware limited liability company formerly known as Perry Ellis Menswear, Inc. (“Perry Ellis Menswear”), Salant Holding LLC, a Delaware limited liability company formerly known as Salant Holding Corporation (“Salant Holding” and together with Supreme, Jantzen and Perry Ellis Menswear, each individually an “Existing Borrower” and collectively, “Existing Borrowers”), Farah Manufacturing (U.K.) Limited, a private limited company incorporated in England and Wales (“Farah UK” or “New Borrower”), Perry Ellis International, Inc., a Florida corporation (“Parent”), PEI Licensing, Inc., a Delaware corporation (“PEI Licensing”), Jantzen Apparel, LLC, a Delaware limited liability company formerly known as Jantzen Apparel Corp. (“Jantzen Apparel”), Supreme Real Estate I, LLC, a Florida limited liability company (“Supreme I”), Supreme Real Estate II, LLC, a Florida limited liability company (“Supreme II”), Supreme Realty, LLC, a Florida limited liability company (“Supreme Realty”), Supreme Munsingwear Canada Inc., a Canada corporation (“Supreme Canada”), Perry Ellis Shared Services Corporation, a Delaware corporation (“PE Shared Services”), Winnsboro DC, LLC, a Delaware limited liability company (“Winnsboro”), Tampa DC, LLC, a Delaware limited liability company (“Tampa DC”), Perry Ellis International Group Holdings Limited, a private company incorporated under the laws of Ireland having its principal place of business in the Bahamas (“Group Holdings” and together with PE Shared Services, Winnsboro and Tampa DC, each a “New Guarantor” and collectively, “New Guarantors”) and Perry Ellis Real Estate, LLC, a Delaware limited liability company formerly known as Perry Ellis Real Estate Corporation (“PE Real Estate” and, together, with Parent, PEI Licensing, Jantzen Apparel, Supreme I, Supreme II, Supreme Realty and Supreme Canada, each individually an “Existing Guarantor” and collectively, “Existing Guarantors”).
WITNESSETH :
WHEREAS, Agent, Lenders, Existing Borrowers and Existing Guarantors have entered into financing arrangements pursuant to which Lenders (or Agent on behalf of Lenders) have made and may make loans and advances and provide other financial accommodations to Existing Borrowers as set forth in the Loan and Security Agreement, dated October 1, 2002, by and among Agent, Lenders, Existing Borrowers and Existing Guarantors, as amended by Amendment No. 1 to Loan and Security Agreement, dated June 19, 2003, Amendment No. 2 to
Loan and Security Agreement, dated September 22, 2003, Amendment No. 3 to Loan and Security Agreement, dated December 1, 2003, Amendment No. 4 to Loan and Security Agreement, dated February 25, 2004, Amendment No. 5 to Loan and Security Agreement, dated July 1, 2004 and Amendment No. 6 to Loan and Security Agreement, dated as of September 30, 2004 (as the same may hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced, the “Loan Agreement”, and together with all agreements, documents and instruments at any time executed and/or delivered in connection therewith or related thereto, as from time to time amended, modified, supplemented, extended, renewed, restated, or replaced, collectively, the “Financing Agreements”);
WHEREAS, Parent and Sellers (as hereinafter defined) have entered into the Asset Purchase Agreement, dated as of December 16, 2004 (the “Tropical Asset Purchase Agreement” as hereinafter further defined), pursuant to which Parent or one or more affiliates designated by Parent have agreed to acquire the Acquired Assets and the Acquired Stock (each as hereinafter defined) in accordance with the terms of the Tropical Asset Purchase Agreement;
WHEREAS, Existing Borrowers, New Borrower, Existing Guarantors and New Guarantors have requested that Agent and Lenders amend the Loan Agreement to provide for Agent and Lenders to make loans and advances and provide other financial accommodations to New Borrower under the terms and conditions of the Loan Agreement and that New Borrower become an additional Borrower under the Loan Agreement, as amended hereby, and in connection therewith have requested that the Loan Agreement be amended in order to (a) add New Borrower as an additional Borrower, subject to the provisions set forth herein and in the Loan Agreement, (b) add each New Guarantor as an additional Guarantor, subject to the provisions set forth herein and in the Loan Agreement, (c) add the grant by New Borrower and each New Guarantor to Agent, for itself and the benefit of Lenders, of a security interest in and lien upon the assets and properties of New Borrower and each New Guarantor, and (d) make certain other amendments to the Loan Agreement; and
WHEREAS, by this Amendment No. 7, Agent, Lenders, Existing Borrowers, Farah UK, Existing Guarantors and New Guarantors desire and intend to evidence such consent and amendments.
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Definitions.
1.1Additional Definitions. As used herein, the following terms shall have the meanings given to them below, and the Loan Agreement and the other Financing Agreements are hereby amended to include, in addition and not in limitation, the following definitions:
(a) “Acquired Assets” shall mean the assets (excluding the Acquired Stock) used in the Sellers’ business of selling branded apparel products to retailers, which have been acquired by Supreme and certain other Borrowers and Guarantors pursuant to the Tropical Asset Purchase Agreement.
(b) “Acquired Intellectual Property” shall mean the intellectual property of the Sellers, other than the International Trademark Interests of Sellers, which have been acquired by PEI Licensing from the Sellers pursuant to the Tropical Acquisition Agreements.
(c) “Acquired Real Estate” shall mean the distribution center of the Sellers located in Tampa, Florida, which has been acquired by Tampa DC from the Sellers pursuant to the Tropical Acquisition Agreements.
(d) “Acquired Remaining Assets” shall mean the Acquired Assets (other than the Acquired Intellectual Property, the International Trademark Interests of Sellers, the Acquired Real Estate and the Acquired Shared Services Assets), which have been acquired by Supreme from the Sellers pursuant to the Tropical Acquisition Agreements.
(e) “Acquired Shared Services Assets” shall mean those certain assets consisting of furniture, fixtures, office equipment, computers and computer software of the Sellers, which have been acquired by PE Shared Services from the Sellers pursuant to the Tropical Acquisition Agreements.
(f) “Acquired Stock” shall mean all of the issued and outstanding shares of Capital Stock of Farah UK, which have been acquired by Group Holdings pursuant to the Tropical Asset Purchase Agreement.
(g) “Amendment No. 7” shall mean Amendment No. 7 to Loan and Security Agreement, by and among Agent, Lenders, Existing Borrowers, New Borrower, Existing Guarantors and New Guarantors, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
(h) “Bankruptcy Code” shall mean the United States Bankruptcy Code, being Title 11 of the United States Code, as the same now exists or may from time to time hereafter be amended, modified, recodified or supplemented, together with all official rules, regulations and interpretations thereunder or related thereto.
(i) “Bankruptcy Court” shall mean the United States Bankruptcy Court for the Middle District of Florida.
(j) “Bankruptcy Sale Order” shall mean the Order and Findings of Fact and Conclusions of Law Authorizing and Approving Motion of the Debtors for an Order Authorizing the Sale of Assets and Assumption and Assignment of Executory Contracts and Leases to Perry Ellis International, Inc. free and clear of all Liens, Claims, Encumbrances and Interests, which was entered by the Bankruptcy Court on February 10, 2005 in the Chapter 11 Cases.
(k) “Chapter 11 Cases” shall mean, collectively, the Chapter 11 Cases of the Sellers pending in the Bankruptcy Court, designated as Case No 8:04-6K-24134.
(l) “Collateral Assignment of Acquisition Agreements” shall mean the Collateral Assignment of Acquisition Agreements, dated of even date herewith, by and between Parent and Agent.
(m) “Consent to Collateral Assignment” shall mean the Consent to Collateral Assignment of Acquisition Agreements, dated of even date herewith, by Sellers in favor of Agent.
(n) “Existing Guarantees” shall mean, collectively the following (as heretofore amended, supplemented or otherwise modified): (i) each of the Guarantees, dated October 1, 2002, by Existing Borrowers and Existing Guarantors in favor of the Agent, (ii) each of the Guarantees, dated as of June 19, 2003, by certain Existing Borrowers and certain Existing Guarantors in favor of Agent and (iii) each of the Guarantees, dated as of June 19, 2003, by Supreme Canada in favor of Agent.
(o) “Farah UK” or “New Borrower” shall mean Farah Manufacturing (U.K.) Limited, a private limited company incorporated in England and Wales, and its successors and assigns.
(p) “Foreign Loan Parties” shall mean, collectively, Farah UK Supreme Canada and Group Holdings.
(q) “New Guarantors” shall mean, collectively, the following (together with their respective successors and assigns): (i) Perry Ellis Shared Services Corporation, a Delaware corporation; (ii) Winnsboro DC, LLC, a Delaware limited liability company; (iii) Tampa DC, LLC, a Delaware limited liability company; and (iv) Perry Ellis International Group Holdings Limited, a private limited company incorporated under the laws of Ireland having its principal place of business in the Bahamas.
(r) “Priority Payables” shall mean, as to Farah UK at any time, (a) the full amount of the liabilities of Farah UK at such time which (i) have a trust imposed to provide for payment or a security interest, pledge, lien or charge ranking senior to or pari passu with security interests, liens or charges securing the Obligations on any of the Eligible Accounts or Eligible Inventory of such Borrower under law in the United Kingdom or (ii) have a right imposed to provide for payment ranking senior to or pari passu with the Obligations under local or national law, including, but not limited to, claims which would be payable in priority to the Obligations pursuant to paragraph 99(3) of Schedule B1 to the Insolvency Act of 1986, and (b) the amount equal to sixty five (65%) percent multiplied by the aggregate Value of the Eligible Inventory of Farah UK which Agent considers is subject to retention of title by a supplier or a right of a supplier to recover possession thereof, where such supplier’s right has priority over the security interests, liens or charges securing the Obligations, including, without limitation, Eligible Inventory subject to a right of a supplier to repossess goods pursuant to any applicable laws granting revendication or similar rights to unpaid suppliers or any similar laws of the United Kingdom.
(s) “Restructuring Supplemental Financing Agreements” shall mean, collectively, the following (as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced): (i) a Pledge and Security Agreement by Parent in favor of Agent with respect to all of the issued and outstanding membership interests in Supreme, Jantzen, Perry Ellis Menswear, PE Real Estate, Tampa DC, Winnsboro and Salant Holding, (ii) a Pledge and Security Agreement by PEI Licensing in favor of Agent with respect
to all of the issued and outstanding membership interests in Jantzen Apparel, (iii) a Pledge and Security Agreement by Supreme I and Supreme II in favor of Agent with respect to all of the issued and outstanding membership interests in Supreme Realty, and (iv) a Pledge and Security Agreement by Parent in favor of Agent with respect to all of the issued and outstanding Capital Stock of PE Shared Services.
(t) “Sellers” shall mean, collectively, (a) Tropical Sportswear Int’l Corporation, a Florida corporation, (b) Savane International Corp., a Texas corporation, (c) TSI Brands, Inc., a Delaware corporation, (d) Apparel Network Corp., a Florida corporation, (e) TSIL, Inc., a Delaware corporation, and (f) Farah Offshore Sourcing Company, a Cayman Islands corporation; each sometimes individually referred to as a “Seller”.
(u) “Tropical Acquisition” shall mean, collectively, (i) the acquisition by Supreme and other Borrowers and Guarantors of certain assets of Sellers and (ii) the acquisition by Group Holdings of all of the outstanding Capital Stock of Farah UK, each in accordance with the Tropical Acquisition Agreements.
(v) “Tropical Acquisition Agreements” shall mean, collectively, the following (as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced): (a) Tropical Asset Purchase Agreement and (b) all agreements, documents or instruments executed or delivered in connection therewith.
(w) “Tropical Asset Purchase Agreement” shall mean the Asset Purchase Agreement, dated as of December 16, 2004, by and among Sellers, Farah UK and Parent.
(x) “Tropical Supplemental Financing Agreements” shall mean, collectively, the following (as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated, or replaced): (i) the Guarantee by Existing Borrowers, Existing Guarantors and New Guarantors in favor of Agent, for itself and the benefit of Lenders, with respect to the Obligations of Farah UK, (ii) the Share Mortgage by Parent in favor of Agent with respect to all of the issued and outstanding shares of Group Holdings to secure the guarantee by Parent of the Obligations of the Foreign Loan Parties, (iii) the Mortgage Over Shares by Group Holdings in favor of Agent with respect to all of the issued and outstanding shares of Farah UK, (iv) the Share Mortgage by Parent in favor of Agent with respect to sixty-five (65%) percent of the issued and outstanding shares of Group Holdings to secure the guarantee by Parent of the Obligations of US Loan Parties, (v) the Debenture by Farah UK in favor of Agent, (vi) the Debenture by Group Holdings in favor of Agent, (vii) the amendment to the Trademark Collateral Assignment and Security Agreement by PEI Licensing in favor of Agent, (viii) the Patent Collateral Assignment and Security Agreement by PEI Licensing in favor of Agent, (ix) the Deposit Account Control Agreements by and among Agent, Farah UK and the depository bank at which the deposit accounts of Farah UK are maintained (or letters of notice and an acknowledgement thereof in form and substance satisfactory to Agent), (x) the Collateral Assignment of Acquisition Agreements by Parent in favor of Agent, and (xi) all other agreements, documents and instruments executed and/or delivered in connection with this Amendment No. 7 and any of the foregoing.
(y) “US Loan Parties” shall mean, collectively, all Existing Borrowers, New Borrower, Existing Guarantors and New Guarantors, excluding the Foreign Loan Parties.
1.2Amendments to Definitions.
(a) Each reference to the term “Applicable Margin” in the Loan Agreement or any other Financing Agreement is hereby amended to mean, at any time, as to the Interest Rate for Prime Rate Loans and the Interest Rate for Eurodollar Rate Loans the applicable percentage (on a per annum basis) set forth below if either (i) the sum of: (A) the Quarterly Average Excess Availability for the immediately preceding fiscal quarter plus (B) the Excess Cash as of the last day of the immediately preceding fiscal quarter is at or within the amounts indicated for such percentage or (ii) the Leverage Ratio as of the last day of the immediately preceding fiscal quarter (which ratio for this purpose shall be calculated based on the four (4) immediately preceding fiscal quarters) is at or within the levels indicated for such percentage:
| | | | | | | | | | | | |
Tier | | Quarterly Average Excess Availability plus Excess Cash | | Leverage Ratio | | Applicable
Prime
Rate Margin | | | Applicable
Eurodollar
Rate Margin | |
| 1 | | $80,000,000 or more | | 1.75 to 1.00 or less | | | 0 | % | | | 1.60 | % |
| 2 | | Greater than or equal to $65,000,000 and less than $80,000,000 | | Greater than 1.75 to 1.00 but equal to or less than 2.00 to 1.00 | | | 0 | % | | | 1.80 | % |
| | | | |
| 3 | | Greater than or equal to $50,000,000 and less than $65,000,000 | | Greater than 2.00 to 1.00 but equal to or less than 3.00 to 1.00 | | | .25 | % | | | 2.00 | % |
| | | | |
| 4 | | Greater than or equal to $40,000,000 and less than $50,000,000 | | Greater than 3.00 to 1.00 but equal to or less than 4.00 to 1.00 | | | .25 | % | | | 2.25 | % |
| | | | |
| 5 | | Less than $40,000,000 | | Greater than 4.00 to 1.00 | | | .50 | % | | | 2.50 | % |
provided,that, (A) the Applicable Margin shall be calculated and established once each fiscal quarter (commencing with the fiscal quarter ending on July 31, 2005) and shall remain in effect until adjusted thereafter at the end of the next fiscal quarter and (B) the Applicable Margin shall be the lower percentage set forth above based on (1) the sum of the Quarterly Average Excess Availability and the Excess Cash as provided above or (2) the Leverage Ratio.
(b) Each reference to the term “Borrower” or “Borrowers” in the Loan Agreement or any of the other Financing Agreements is hereby amended to include, in addition and not in limitation, New Borrower.
(c) Each reference to the term “Collateral” in the Loan Agreement is hereby amended to include, in addition and not in limitation, the assets and properties of New Borrower and New Guarantors at any time subject to the security interest or lien of Agent for itself and the benefit of Lenders, including the assets and properties described in Section 11 of this Amendment No. 7.
(d) Each reference to the term “Commitment” in the Loan Agreement or any other Financing Agreement is hereby amended to mean, at any time, as to each Lender, the principal amount set forth on Schedule 1 to the Loan Agreement opposite such Lender’s name or on Schedule 1 to the Assignment and Acceptance pursuant to which such Lender became a Lender under the Loan Agreement in accordance with the provisions of Section 13.7 of the Loan Agreement, as the same may be adjusted from time to time in accordance with the terms of the Loan Agreement; sometimes being collectively referred to as the “Commitments”.
(e) Clause (e) of the definition of “Eligible Accounts” in Section 1.28 of the Loan Agreement is amended by deleting the phrase “the United States of America or Canada” from each place it appears and replacing it with “the United States or Canada (in the case of Accounts of each Borrower other than Farah UK) or the United Kingdom (in the case of Accounts of Farah UK)”.
(f) The reference to the amount of “$30,000,000” in the definition of the term “Eligible Factor Receivables” in the Loan Agreement is hereby deleted and replaced with “$50,000,000”.
(g) Clause (n) of the definition of “Eligible Inventory” in Section 1.30 of the Loan Agreement is hereby amended by deleting such clause and replacing it with the following: “(n) Inventory of a Borrower (other than Farah UK) located outside the United States of America or Canada, or Inventory of Farah UK located outside the United Kingdom; and (o) Inventory sold under a licensed trademark or tradename or which contains or uses a medium subject to a licensed trademark, tradename or copyright unless either (i) Agent shall be satisfied that Agent has the right to sell or dispose of such inventory or (ii) Agent shall have received a letter agreement, in form and substance satisfactory to Agent, duly authorized, executed and delivered by the licensor and the applicable Borrower.”
(h) All references to the term “Fee Letter” in the Loan Agreement and any of the other Financing Agreements and each such reference is hereby amended to include, in addition and not in limitation, the letter agreement, dated of even date with Amendment No. 7, by and among Borrowers and Wachovia Bank, National Association, as successor by merger to Congress Financial Corporation (Florida), setting forth certain fees payable by Borrowers and Guarantors, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
(i) Each reference to the term “Financing Agreements” in the Loan Agreement and any of the other Financing Agreements is hereby amended to include, in addition and not in limitation, collectively, this Amendment No. 7, the Tropical Supplemental Financing Agreements and the Restructuring Supplemental Financing Agreements.
(j) Each reference to the term “Guarantor” or “Guarantors” in the Loan Agreement or any of the other Financing Agreements is hereby amended to include, in addition and not in limitation, each New Guarantor.
(k) Each reference to the term “Information Certificate” in the Loan Agreement or any of the other Financing Agreements is hereby amended to mean the Second Amended and Restated Information Certificate with respect to Borrowers and Guarantors (including New Borrower and New Guarantors), which is attached to this Amendment No. 7 as Exhibit A hereto.
(l) Each reference to the term “Interest Rate” in the Loan Agreement or any of the other Financing Agreements is hereby amended to mean:
(a) Subject to clauses (b) and (c) below:
(i) as to Prime Rate Loans, a rate equal to the Prime Rate;
(ii) as to Eurodollar Rate Loans, a rate equal to one and six-tenths of one (1.60%) percent per annum in excess of the Adjusted Eurodollar Rate (in each case, based on the Eurodollar Rate applicable for the relevant Interest Period, whether such rate is higher or lower than any rate previously quoted to a Borrower).
(b) Subject to clause (c) below, effective as of the first (1st) day of the second month of each fiscal quarter (commencing with the fiscal quarter ending on July 31, 2005), the Interest Rate payable by each Borrower shall be increased or decreased, as the case may be, (i) as to Prime Rate Loans, to the rate equal to the Applicable Margin for Prime Rate Loans on a per annum basis in excess of the Prime Rate, and (ii) as to Eurodollar Rate Loans, to the rate equal to the Applicable Margin for Eurodollar Rate Loans on a per annum basis in excess of the Adjusted Eurodollar Rate.
(c) Notwithstanding anything to the contrary contained in clauses (a) or (b) above, the Applicable Margin otherwise used to calculate the Interest Rate for Prime Rate Loans and Eurodollar Rate Loans shall be the highest percentage set forth in the definition of the term Applicable Margin for each category of Loans (without regard to the amount of Quarterly Average Excess Availability or the Leverage Ratio) plus two (2%) percent per annum, at Agent’s option, (i) for the period (A) from and after the effective date of termination or non-renewal of the Loan Agreement until Agent and Lenders have
received full and final payment of all outstanding and unpaid Obligations which are not contingent and cash collateral or letter of credit, as Agent may specify, in the amounts and on the terms required under Section 13.1 of the Loan Agreement for contingent Obligations (notwithstanding entry of a judgment against any Borrower or Guarantor) and (B) from and after the date of the occurrence of an Event of Default and for so long as such Event of Default is continuing and (ii) on Loans to a Borrower at any time outstanding in excess of the Borrowing Base of such Borrower (whether or not such excess(es) arise or are made with or without the knowledge or consent of Agent or any Lender and whether made before or after an Event of Default).
(m) Each reference to the term “Inventory Loan Limit” in the Loan Agreement or any of the other Financing Agreements is hereby amended to mean $90,000,000.
(n) Each reference to the term “Maximum Credit” in the Loan Agreement or any of the other Financing Agreements is hereby amended to mean $175,000,000.
(o) The definition of “Reserves” in Section 1.104 of the Loan Agreement is hereby amended by deleting the period at the end of clause (vii) of such definition and replacing it with the following: “, (viii) to reflect the amount of the Priority Payables and (ix) to reflect the Agent’s good faith estimate of the amount of any reserve necessary to reflect changes in applicable currency exchange rates of currency exchange markets.”
1.3Interpretation. For purposes of this Amendment No. 7, unless otherwise defined herein, all capitalized terms used herein which are defined in the Loan Agreement shall have the meanings given to such terms in the Loan Agreement.
2.Consent. Subject to the terms and conditions contained herein, to the extent such consent is or may be required under the Loan Agreement, Agent and Lenders hereby consents to the acquisition by Group Holdings of the Acquired Stock and the acquisition by certain Borrowers and Guarantors of the Acquired Assets, in each case in accordance with the terms of the Tropical Asset Purchase Agreement as in effect of the date hereof. Notwithstanding anything to the contrary contained in this Amendment, the Loan Agreement or any of the other Financing Agreements, in no event shall any Accounts or Inventory of Farah UK be deemed to be Eligible Accounts or Eligible Inventory until Agent shall have conducted a field examination and other due diligence with respect thereto that is satisfactory to Agent (and, at Agent’s option, obtained an appraisal of the Inventory of Farah UK in form and substance satisfactory to Agent) and then only to the extent the criteria for Eligible Accounts and Eligible Inventory are satisfied with respect thereto in accordance with the terms of the Loan Agreement (or such other or additional criteria as Agent may, at its option, establish with respect thereto in accordance with the Loan Agreement and subject to such Reserves as Agent may establish in accordance with the Loan Agreement).
3.Assumption of Obligations; Amendments to Guarantees and Financing Agreements.
3.1 New Borrower hereby expressly (a) agrees to perform, comply with and be bound by all terms, conditions and covenants of the Loan Agreement and the other Financing Agreements applicable to Existing Borrowers as applied to New Borrower, with the same force and effect as if New Borrower had originally executed and been an original Borrower signatory to the Loan Agreement and the other Financing Agreements, (b) is deemed to make as to itself and the Existing Borrowers, and is, in all respects, bound by all representations and warranties made by Existing Borrowers to Agent and Lenders set forth in the Loan Agreement or in any of the other Financing Agreements, (c) agrees that Agent, for itself and the benefit of Lenders, shall have all rights, remedies and interests, including security interests in and liens upon the Collateral granted to Agent pursuant to Section 11 hereof, under and pursuant to the Loan Agreement and the other Financing Agreements, with respect to New Borrower and its properties and assets with the same force and effect as Agent, for itself and the benefit of Lenders, has with respect to Existing Borrowers and their respective assets and properties, as if New Borrower had originally executed and had been an original Borrower signatory, as the case may be, to the Loan Agreement and the other Financing Agreements, and (d) assumes and agrees to be liable to Agent and Lenders for all Obligations of the Foreign Loan Parties under, contained in, or arising pursuant to the Loan Agreement or any of the other Financing Agreements to the same extent as if New Borrower had originally executed and had been an original Borrower signatory, as the case may be, to the Loan Agreement and the other Financing Agreements.
3.2 Each Existing Borrower, in its capacity as Guarantor of the payment and performance of the Obligations of the other Existing Borrowers, and each Guarantor (other than Group Holdings) hereby agrees that each of the Existing Guarantees is hereby amended to include each of Winnsboro, Tampa DC and PE Shared Services as an additional guarantor party signatory thereto, and each of Winnsboro, Tampa DC and PE Shared Services hereby agrees that the Existing Guarantees are hereby amended to include each of Winnsboro, Tampa DC and PE Shared Services as an additional guarantor party signatory thereto, and each of Winnsboro, Tampa DC and PE Shared Services hereby expressly (a) assumes and agrees to be directly liable to Agent and Lenders, jointly and severally with Existing Borrowers and Existing Guarantors signatories thereto, for payment and performance of all Obligations (as defined in the Existing Guarantees), (b) agrees to perform, comply with and be bound by all terms, conditions and covenants of the Existing Guarantees with the same force and effect as if each of Winnsboro, Tampa DC and PE Shared Services had originally executed and been an original party signatory to each of the Existing Guarantees as Guarantor, and (c) agrees that Agent and Lenders shall have rights, remedies and interests with respect to each of Winnsboro, Tampa DC and PE Shared Services and their respective property under the Existing Guarantees with the same force and effect as if each of Winnsboro, Tampa DC and PE Shared Services had originally executed and been an original party signatory to each of the Existing Guarantees as Guarantor.
4.Cover Page of Loan Agreement. Without imposing any duties, obligations or liabilities whatsoever on Wachovia Capital Markets, LLC, the cover page to the Loan Agreement is hereby amended by adding the following immediately above the date contained on such cover page:
“WACHOVIA CAPITAL MARKETS, LLC, as Sole Lead Arranger, Manager and Bookrunner”
5.Concentration. Section 1.28(n) of the Loan Agreement is hereby amended by deleting such section in its entirety and substituting the following therefor:
“(n) the aggregate amount of such Accounts owing by a single account debtor (other than Wal-Mart, Kohls, Mervyns, J.C. Penney, Target, Sears Roebuck & Co., or Federated and May on a combined basis) do not constitute more than fifteen (15%) percent of the aggregate amount of all otherwise Eligible Accounts and such Accounts owing by each of Kohls, Wal-Mart, or Federated and May on a combined basis in each case do not constitute more than twenty-five (25%) percent of the aggregate amount of all otherwise Eligible Accounts and such Accounts owing by each of Mervyns, J.C. Penney, Target or Sears Roebuck & Co. do not in each case constitute more than twenty (20%) percent of the aggregate amount of all otherwise Eligible Accounts (but the portion of the Accounts not in excess of the applicable percentages may be deemed Eligible Accounts);”
6.Loans. Section 2.1(b) of the Loan Agreement is hereby amended by:
6.1 deleting “$60,000,000” from clause (iii) of such Section and substituting the amount of “$90,000,000” therefor; and
6.2 deleting the period at the end of such Section and adding the following immediately at the end thereof:
“; and (iv) the aggregate amount of Loans and Letter of Credit Accommodations outstanding at any time to Farah UK shall not exceed the lesser of (A) the Borrowing Base of Farah UK at such time or (B) $5,000,000”.
7.Letter of Credit Accommodations. Section 2.2(e) of the Loan Agreement is hereby amended by deleting the reference therein to “$30,000,000” and substituting the amount of “$60,000,000” therefor.
8.Fees. Section 3.2(a) of the Loan Agreement is hereby deleted in its entirety and the following substituted therefor:
“(a) Borrowers shall pay to Agent for the ratable benefit of Lenders monthly an unused line fee at a rate equal to the percentage (on a per annum basis) set forth below calculated upon the amount by which $70,000,000 for the period commencing October 1 of each year and ending on March 31 of the immediately following year, or $50,000,000 for the period commencing April 1 of each year and ending on September 30 of such year, exceeds the average daily principal balance of the outstanding Loans and Letter of Credit Accommodations during the immediately preceding month (or part thereof) while the Loan Agreement is in effect and for so long thereafter as any Obligations are
outstanding. Such fee shall be payable on the first day of each month in arrears. The percentage used for determining the unused line fee shall be one-quarter of one (.25%) percent;provided,that, effective as of the first (1st) day of the second month of each fiscal quarter (commencing with the fiscal quarter ending on July 31, 2005), the percentage used for determining the unused line fee shall be as set forth below if either (i) the sum of the Quarterly Average Excess Availability for the immediately preceding fiscal quarter plus the Excess Cash as of the last day of the immediately preceding fiscal quarter is at or within the amounts indicated for such percentage or (ii) the Leverage Ratio as of the last day of the immediately preceding fiscal quarter (which ratio for this purpose shall be calculated based on the four (4) immediately preceding fiscal quarters) is at or within the levels indicated for such percentage:
| | | | | | |
Quarterly Average Excess Availability plus Excess Cash | | Leverage Ratio | | Unused Line
Fee Percentage | |
| $80,000,000 or more | | 1.75 to 1.00 or less | | | .25 | % |
| | |
| Greater than or equal to $65,000,000 and less than $80,000,000 | | Greater than 1.75 to 1.00 but equal to or less than 2.00 to 1.00 | | | .25 | % |
| | |
| Greater than or equal to $50,000,000 and less than $65,000,000 | | Greater than 2.00 to 1.00 but equal to or less than 3.00 to 1.00 | | | .25 | % |
| | |
| Greater than or equal to $40,000,000 and less than $50,000,000 | | Greater than 3.00 to 1.00 but equal to or less than 4.00 to 1.00 | | | .375 | % |
| | |
| Less than $40,000,000 | | Greater than 4.00 to 1.00 | | | .375 | % |
provided, that, (A) the unused line fee percentage shall be calculated and established once each fiscal quarter (commencing with the fiscal quarter ending on July 31, 2005) and (B) the unused line fee percentage shall be the lower percentage set forth above based on (1) the sum of the Quarterly Average Excess Availability plus the Excess Cash as provided above or (2) the Leverage Ratio.”
9.Collection of Accounts. Section 6.3(a) of the Loan Agreement is hereby amended by deleting such Section in its entirety and substituting the following therefor:
“(a) Borrowers and Guarantors shall establish and maintain, at their expense, blocked accounts or lockboxes and related blocked accounts (in either case, “Blocked Accounts”), as Agent may specify, with such banks as are acceptable to Agent
into which Borrowers and Guarantors shall promptly deposit and direct their respective account debtors to directly remit all payments on Receivables and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner. Borrowers and Guarantors shall deliver, or cause to be delivered to Agent a Deposit Account Control Agreement (or in the case of Farah UK, letters of notice and acknowledgment in form and substance satisfactory to Agent) duly authorized, executed and delivered by each bank where a Blocked Account is maintained as provided in Section 5.2 hereof or at any time. Agent shall instruct the depository banks at which the Blocked Accounts of the US Loan Parties are maintained to transfer the funds on deposit in such Blocked Accounts to such operating bank account of the US Loan Parties as Borrower Agent may specify in writing to Agent until such time as Agent shall notify the depository bank otherwise. Without limiting any other rights or remedies of Agent or Lenders, Agent may, at its option, instruct the depository banks at which the Blocked Accounts of the US Loan Parties are maintained to transfer all available funds received or deposited into such Blocked Accounts to the Agent Payment Account at any time that either: (i) an Event of Default shall exist or have occurred and be continuing, or (ii) the aggregate Excess Availability of Borrowers is less than $35,000,000. Agent shall send to Borrower Agent a copy of any such written instruction sent by Agent to such depository bank promptly thereafter. In the event that, at any time after Agent has instructed such depository banks to transfer such funds to the Agent Payment Account, each of the conditions set forth in clauses (i) and (ii) above do not exist or have not occurred and are not continuing for a period of thirty (30) consecutive days, upon Borrower Agent’s written request received by Agent within five (5) Business Days after the end of such thirty (30) day period, Agent shall instruct such depository banks to transfer the funds on deposit in such accounts to such operating deposit account of the US Loan Parties as Borrower Agent may specify in writing to Agent until such time as Agent is entitled to notify and shall notify the depository bank otherwise as provided above. Notwithstanding anything contained herein to the contrary, (x) funds on deposit in the Blocked Accounts of Foreign Loan Parties shall be transferred to the Agent Payment Account unless Agent otherwise directs and (y) no payments received by Agent from Farah UK (whether into the Agent Payment Account or otherwise) shall be applied to any Obligations other than Obligations of Farah UK. Borrowers and Guarantors agree that all payments made to such Blocked Accounts or other funds received and collected by Agent or any Lender, whether in respect of the Receivables, as proceeds of
Inventory or other Collateral or otherwise shall be treated as payments to Agent and Lenders in respect of the Obligations and therefore shall constitute the property of Agent and Lenders to the extent of the then outstanding Obligations.”
10.Collateral Reporting. Section 7.1(a)(iii) of the Loan Agreement is hereby amended by inserting the following immediately before the semicolon at the end of clause (E) of such Section: “and (F) a report of the Priority Payables, and (G) the Leverage Ratio for the most recently ended fiscal quarter, the Quarterly Average Excess Availability for the most recently ended fiscal quarter, the Excess Cash as of the last day of the most recently ended fiscal quarter, and a schedule of the calculations used in determining, as of the end of such fiscal quarter, the foregoing.”
11.Grant of Security Interest by New Borrower and New Guarantors.
11.1 Without limiting the provisions of Section 3 hereof, the Loan Agreement and the other Financing Agreements, (i) to secure payment and performance of all Obligations, each New Guarantor (other than Group Holdings) hereby grants to Agent, for itself and the benefit of Lenders, (ii) to secure payment and performance of all Obligations of New Borrower, New Borrower hereby grants to Agent, for itself and the benefit of Lenders, and (iii) to secure payment and performance of all Obligations of the Foreign Loan Parties, Group Holdings hereby grants to Agent, for itself and the benefit of Lenders, in each case a continuing security interest in, a lien upon, and a right of set off against, and hereby assigns to Agent, for itself and the benefit of Lenders, as security, all personal property and interests in personal property of New Borrower and each New Guarantor, whether now owned or hereafter acquired or existing, and wherever located, including:
(a) all Accounts;
(b) all general intangibles, including, without limitation, all Intellectual Property;
(c) all goods, including, without limitation, Inventory and Equipment;
(d) all chattel paper, including, without limitation, all tangible and electronic chattel paper;
(e) all instruments, including, without limitation, all promissory notes;
(f) all documents;
(g) all deposit accounts;
(h) all letters of credit, banker’s acceptances and similar instruments for which New Borrower or a New Guarantor is a beneficiary or otherwise entitled to any payment (contingent or otherwise), and including all letter-of-credit rights;
(i) all supporting obligations and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of Receivables and other Collateral, including (i) rights and remedies under or relating to guaranties, contracts of suretyship, letters of credit and credit and other insurance related to the Collateral, (ii) rights of stoppage in transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or secured party, (iii) goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, Receivables or other Collateral, including returned, repossessed and reclaimed goods, and (iv) deposits by and property of account debtors or other persons securing the obligations of account debtors;
(j) all (i) investment property (including securities, whether certificated or uncertificated, securities accounts, security entitlements, commodity contracts or commodity accounts) and (ii) monies, credit balances, deposits and other property of New Borrower or a New Guarantor now or hereafter held or received by or in transit to Agent, any Lender or its Affiliates or at any other depository or other institution from or for the account of New Borrower or a New Guarantor, whether for safekeeping, pledge, custody, transmission, collection or otherwise;
(k) all commercial tort claims, including, without limitation, those identified in the Information Certificate;
(l) to the extent not otherwise described above, all Receivables;
(m) all Records; and
(n) all products and proceeds of the foregoing, in any form, including insurance proceeds and all claims against third parties for loss or damage to or destruction of or other involuntary conversion of any kind or nature of any or all of the other Collateral.
11.2 Notwithstanding anything to the contrary contained in this Section 11 above, the types or items of Collateral described in this Section 11 shall not include any rights or interest in any contract, license or license agreement covering personal property of New Borrower or any New Guarantor, if under the terms of such contract, license or license agreement, or applicable law with respect thereto, the grant of a security interest or lien therein to Agent is prohibited and such prohibition has not been or is not waived or the consent of the other party to such contract, license or license agreement has not been or is not otherwise obtained;provided,that, the foregoing exclusion shall in no way be construed (a) to apply if any such prohibition is unenforceable under the UCC or other applicable law or (b) so as to limit, impair or otherwise affect Agent’s unconditional continuing security interests in and liens upon any rights or interests of New Borrower or any New Guarantor in or to monies due or to become due under any such contract, license or license agreement (including any Receivables).
11.3 Notwithstanding anything to the contrary contained in the Loan Agreement, this Amendment or any of the other Financing Agreements, the Collateral consisting of Capital Stock of any Foreign Loan Party which secures the Obligations of US Loan Parties shall not exceed sixty-five (65%) percent of the issued and outstanding Capital Stock of such Foreign Loan Party.
11.4 Notwithstanding anything to the contrary contained in this Amendment, the Loan Agreement or any of the other Financing Agreements:
(a) as of the date hereof, with respect to all Foreign Loan Parties (other than Supreme Canada) (i) no security interest granted by any such Foreign Loan Party under any of the Financing Agreements shall secure any Obligations of the US Loan Parties, (ii) no such Foreign Loan Party (whether as a guarantor or otherwise) shall be liable in respect of any Obligations of the US Loan Parties and (iii) no security interest or guarantee (or purported grant of security interest or guarantee) under the Financing Agreements or other term of the Financing Agreements shall apply to any Obligation to the extent that it would result in the granting of a security interest or guarantee or performance of such term constituting unlawful financial assistance within the meaning of section 151 of the Companies Act of England and Wales or Section 60 of the Irish Companies Act, 1963 as amended; and
(b) from and after the date hereof, Agent, without the consent of the Required Lenders or all Lenders, shall have the right, in its sole discretion, (i) to modify or amend the guaranty executed by Supreme Canada in favor of Agent so that, after giving effect to any such amendment or modification, (A) any security interest granted by Supreme Canada under any of the Financing Agreements shall not secure any Obligations of the US Loan Parties, and (B) Supreme Canada (whether as a guarantor or otherwise) shall not be liable in respect of any Obligations of the US Loan Parties and (ii) to modify or amend the Pledge and Security Agreement, dated as of October 1, 2002, executed and delivered by Parent in favor of Agent, so that, after giving effect thereto, only sixty five (65%) percent of the outstanding Capital Stock of Supreme Canada shall be pledged to Agent as collateral for the Parent’s guarantee of the Obligations of US Loan Parties to Agent and Lenders.
11.5 The grant of a security interest in the Collateral of the Foreign Loan Parties in favor of Agent under the laws of Ireland, England and Wales is further evidenced by other Financing Agreements.
12.Use of Proceeds. Notwithstanding anything to the contrary contained in the Loan Agreement, Borrowers shall use a portion of the proceeds of the Loans for payments of the purchase price required to be paid to Sellers pursuant to and in accordance with the terms of the Tropical Acquisition Agreements as in effect on the date hereof and cost, expenses and fees incurred in connection with the preparation, negotiation, execution and delivery of this Amendment No. 7;provided,that, none of the proceeds of any Loan to Farah UK shall be used to pay any portion of the purchase price for the Acquired Stock.
13.Liens. Section 9.8 of the Loan Agreement is hereby amended by (a) deleting the period at the end of subsection (p) of such Section and replacing it with “; and” and (b) adding at the end of such Section new subsections as follows:
“(q) the security interests in and liens and mortgages upon Real Property of Borrowers and Guarantors or their Subsidiaries to secure the Indebtedness permitted under Section 9.9(r) hereof; and
(r) the security interests and liens on assets of Subsidiaries incorporated or formed outside of the United States of America which are neither Borrowers nor Guarantors to secure Indebtedness in an outstanding amount not to exceed $1,000,000 at any time.”
14.Indebtedness.
(a) Section 9.9(f)(iv) of the Loan Agreement is hereby amended by inserting the following immediately before the comma at the end of such Section: “, and except that Parent may, after prior written notice to Agent, amend the terms thereof to permit Borrowers and Guarantors to consummate certain assets sales and to permit Borrowers and Guarantors to incur certain indebtedness in each case pursuant to an amendment that is in form and substance satisfactory to Agent.”
(b) Section 9.9(j) of the Loan Agreement is hereby amended by (i) deleting “$60,000,000” from clause (ii) of such Section and replacing it with “$110,000,000” and (ii) inserting the following immediately before the comma at the end of clause (iv) of such Section: “and except that, Borrowers may, after prior written notice to Agent, amend a Letter of Credit Facility Agreement with a Letter of Credit Issuer to increase the amount of Indebtedness permitted outstanding thereunder so long as (A) the aggregate outstanding amount of all Indebtedness under the Letter of Credit Facilities shall not exceed $110,000,000 at any time and (B) Agent shall have received an amendment to the Letter of Credit Intercreditor Agreement with such Letter of Credit Issuer, in form and substance satisfactory to Agent, duly authorized, executed and delivered by such Letter of Credit Issuer, Borrowers and Guarantors (it being understood that in no event shall Borrowers or Guarantors obtain under the Letter of Credit Facility any commercial letter of credit which supports the purchase of Inventory unless such letter of credit requires Borrowers and Guarantors to pay the reimbursement obligation under such letters of credit on the day on which a drawing is made under such letter of credit),”.
(c) Section 9.9 of the Loan Agreement is hereby amended by (i) deleting the period at the end of subsection (q) of such Section and replacing it with “; and” and (ii) adding at the end of such Section a new subsection as follows:
“(r) Indebtedness of Borrowers and Guarantors and their Subsidiaries arising after the effective date of Amendment No. 7 pursuant to a mortgage loan in immediately available funds by a financial institution to Borrowers and Guarantors and their Subsidiaries based on the value of Real Property of Borrowers and Guarantors and their Subsidiaries,provided,that, as to such Indebtedness, (i) Agent shall have received not less than thirty (30) days prior written notice of the intention of Borrowers and Guarantors and their Subsidiaries to incur such Indebtedness, which notice shall set forth in reasonable detail satisfactory to Agent, the amount of such proposed Indebtedness, the person to whom such Indebtedness is proposed to be owed, the proposed interest rate, schedule of repayments and maturity date with respect thereto and such other information with respect thereto as Agent may request, (ii) Agent shall have received true, correct and complete copies of all agreements, documents and instruments
evidencing or otherwise related to such Indebtedness, as duly authorized, executed and delivered by the parties thereto, (iii) promptly following Agent’s request, Agent shall have received a Collateral Access Agreement with respect to the Real Property subject to the mortgage and lien to secure such Indebtedness from the person to whom such Indebtedness is owed, duly authorized, executed and delivered by such person, in form and substance satisfactory to Agent, (iv) such Indebtedness shall be incurred by Borrowers and Guarantors and their Subsidiaries in a bona fide arm’s length transaction, (v) such Indebtedness shall not be owed to any shareholder, officer, director, agent, employee or other Affiliate of any Borrower or Guarantor or Subsidiary, (vi) Borrowers, Guarantors and their Subsidiaries shall cause the person to whom such Indebtedness is owed to remit all of the proceeds of the loan giving rise to such Indebtedness directly to Agent for application to the Obligations or, if such Indebtedness is incurred in connection with the purchase of Real Property permitted under Section 9.10(k) hereof, to pay the purchase price of such Real Property, the cost of improvement of such Real Property or other amounts related to either of the foregoing, (vii) in no event shall Borrowers, Guarantors or their Subsidiaries make, or be required to make, payments in respect of the principal balance of such Indebtedness in any twelve (12) consecutive month period that in the aggregate exceed the amount equal to twenty (20%) percent of the original principal amount of such Indebtedness, (viii) Real Property of Borrowers, Guarantors and their Subsidiaries, the value of which is the basis for such loan, shall be the only collateral for such Indebtedness, (ix) in no event shall the aggregate amount of all such Indebtedness exceed $10,000,000 outstanding at any time, (x) as of the date of incurring such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred, and (xi) Borrowers, Guarantors and their Subsidiaries shall furnish to Agent all notices or demands in connection with such Indebtedness either received by any Borrower or Guarantor or on its behalf promptly after the receipt thereof, or sent by any Borrower or Guarantor or on its behalf, concurrently with the sending thereof, as the case may be.”
15.Loans, Investments, Etc.
(a) Section 9.10(c) of the Loan Agreement is hereby amended by deleting such Section and replacing it with the following:
“(c) the existing equity investments of each Borrower and Guarantor as of the date hereof in its Subsidiaries, except that, on the effective date of Amendment No. 7, Parent may make a capital contribution to Group Holdings in an amount not to exceed
$12,000,000, so long as Group Holdings immediately applies the proceeds of such capital contribution to pay the purchase price for the Acquired Stock and the International Trademark Interests of Sellers purchased from the Sellers; provided, that, (i) such capital contribution shall be funded solely with proceeds of the intercompany loan made by Supreme to Parent in accordance with Section 9.10(g)((iv) hereof and (ii) no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any such Subsidiaries;”
(b) Section 9.10(g) of the Loan Agreement is hereby amended by adding the following clauses immediately after the end of clause (iii) of such Section:
“(iv) no US Loan Party shall make any loans to any Foreign Loan Party (unless otherwise consented to by Agent in writing),exceptthat (A) on the effective date of Amendment No. 7, Supreme may make a loan to Parent so long as Parent immediately applies the proceeds of such loan to make a capital contribution to Group Holdings in an amount not to exceed $12,000,000 and Group Holdings immediately applies the proceeds of such capital contribution to pay the purchase price for the Acquired Stock and the Sellers’ International Trademark Interests, and (B) US Loan Parties may make loans to Farah UK in an aggregate outstanding amount not to exceed $500,000 at any time so long as, as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(v) Farah UK shall not make any loans to any other Borrower or Guarantor;”
(c) Section 9.10 of the Loan Agreement is hereby amended by (i) deleting the period at the end of subsection (j) of such Section and replacing it with “; and” and (ii) adding at the end of such Section a new subsection as follows:
“(k) the purchase by any Borrower or Guarantor or Subsidiary of Real Property located outside the United States, provided, that, each of the following conditions is satisfied as determined by Agent in good faith:
(i) as of the date of such purchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any payment in connection with such acquisition and after giving effect thereto, the aggregate
amount of the Excess Availability of Borrowers shall have been not less than $15,000,000 for each of the immediately preceding ten (10) consecutive days and the aggregate amount of the Excess Availability of Borrowers shall be not less than $15,000,000 after giving effect to any such payment,
(iii) Agent shall have received not less than ten (10) Business Days’ prior written notice of the proposed purchase and such information with respect thereto as Agent may reasonably request, including (A) the proposed date and amount of the acquisition, (B) a list and description of the Real Property to be purchased, and (C) the total purchase price for the Real Property to be purchased (and the terms of payment of such purchase price),
(iv) promptly upon Agent’s request, the Borrower or Guarantor or Subsidiary purchasing such Real Property shall deliver or cause to be delivered to Agent, true, correct and complete copies of all agreements, documents and instruments relating to such purchase,
(v) the Real Property purchased by any Borrower or Guarantor or Subsidiary shall be free and clear of any security interest, mortgage, pledge, lien, charge or other encumbrance (other than those permitted in this Agreement) and Agent shall have received evidence satisfactory to it of the same,
(vi) the purchase by any Borrower or Guarantor or Subsidiary of such Real Property shall not violate any law or regulation or any order or decree of any court or Governmental Authority in any material respect and shall not and will not conflict with or result in the breach of, or constitute a default in any respect under, any material agreement, document or instrument to which such Borrower, or Guarantor or Subsidiary or any Affiliate is a party or may be bound, or result in the creation or imposition of, or the obligation to grant, any lien, charge or encumbrance upon any of the property of such Borrower, or Guarantor or Subsidiary or any Affiliate (other than those permitted in this Agreement) or violate any provision of the certificate of incorporation, by-laws, certificate of formation, operating agreement or other organizational documentation of such Borrower or Guarantor or Subsidiary,
(vii) such purchase shall be in a bona fide arms’ length transaction with a person that is not an Affiliate of any Borrower or Guarantor,
(viii) no Borrower or Guarantor shall become obligated with respect to any Indebtedness, nor any of its property become subject to any security interest or lien, pursuant to such purchase unless such Borrower or Guarantor could incur such Indebtedness or create such security interest or lien hereunder or under the other Financing Agreements, and
(ix) promptly upon Agent’s request, Agent shall have received, in form and substance satisfactory to Agent, (A) all Collateral Access Agreements and other consents, waivers, acknowledgments and other agreements from third persons which Agent may reasonably deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral, and (B) such other agreements, documents and instruments as Agent may request in connection therewith.”
16.Minimum EBITDA. Section 9.17 of the Loan Agreement is hereby deleted in its entirety and the following substituted therefor:
“9.17Minimum EBITDA. At any time that the aggregate amount of the Excess Availability is less than $35,000,000, (a) the EBITDA of Parent and its Subsidiaries (on a consolidated basis) for the preceding twelve (12) consecutive months (treated as a single accounting period) as of the end of the most recent fiscal month for which Agent or any Lender has received financial statements of Borrowers or Guarantors, shall be not less than $50,000,000 (after giving effect to the EBITDA of Farah UK and its Subsidiaries on a pro forma basis in a manner satisfactory to Agent) and (b) the EBITDA of Parent and its Subsidiaries (on a consolidated basis) as of the end of the most recent two (2) fiscal months, on a combined basis, for which Agent or any Lender has received financial statements of Borrowers or Guarantors shall be positive.”
17.Expenses. Section 9.19(f) of the Loan Agreement is hereby amended by deleting the reference therein to “$750” and substituting the amount of “$850” therefor.
18.Collateral Matters. Section 12.11 of the Loan Agreement is hereby amended by inserting the following new clauses immediately at the end of such Section:
“(e) If, after the date hereof, Borrowers and Guarantors incur Indebtedness from a Person other than a Lender in accordance with the terms of this Agreement and Borrowers and Guarantors are required to grant a first priority perfected security interest in certain Intellectual Property to secure such Indebtedness, then Agent shall agree to subordinate its security interest in such Intellectual Property pursuant to an intercreditor agreement between Agent and the holder of such Indebtedness;
provided, that, (i) no Default or Event of Default shall exist or have occurred and be continuing and (ii) the terms of such intercreditor agreement shall be reasonably satisfactory to Agent.
(f) Each Lender authorizes Agent to enter into, execute, deliver and carry out the terms of the intercreditor agreement described in Section 12.11(e) hereof.”
19.Schedules to Loan Agreement. The Loan Agreement is hereby amended by adding a new Schedule 1 thereto in the form of Exhibit B to this Amendment No. 7.
20.Representations, Warranties and Covenants. Borrowers and Guarantors (including New Borrower and New Guarantors) jointly and severally, represent, warrant and covenant with and to Agent and Lenders as follows, which representations, warranties and covenants shall survive the execution and delivery hereof:
20.1 This Amendment No. 7, the Tropical Supplemental Financing Agreements and the Restructuring Supplemental Financing Agreements have been duly authorized, executed and delivered by all necessary action on the part of each Borrower and Guarantor which is a party hereto and thereto and, if necessary, their respective stockholders, and is in full force and effect as of the date hereof, as the case may be, and the agreements and obligations of Borrowers and Guarantors contained herein and therein constitute legal, valid and binding obligations of Borrowers and Guarantors enforceable against them in accordance with their terms except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (b) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
20.2 No action of, or filing with, or consent of any Governmental Authority (other than the filing of UCC financing statements, the filing of the Share Mortgage granted by Group Holdings in favor of Agent and the Debenture granted by Farah UK in favor of the Agent with the Companies House in England and the filing of particulars of each of the Share Mortgages granted by Parent in favor of Agent and the Debenture executed by Group Holdings in favor of the Agent with the Companies Registration Office in Ireland), and no approval or consent of any other party, is required to authorize, or is otherwise required in connection with, the execution, delivery and performance of this Amendment No. 7, the Tropical Supplemental Financing Agreements and the Restructuring Supplemental Financing Agreements (other than the consent and/or acknowledgement of the relevant depository bank in relation to the Deposit Account Control Agreements (or notices and acknowledgements, as the case may be) with the banks at which the deposit accounts of Farah UK are maintained).
20.3 None of the transactions contemplated by this Amendment No. 7, the Tropical Supplemental Financing Agreements or the Restructuring Supplemental Financing Agreements are in contravention of any applicable law, or the terms of any agreement to which any Borrower or Guarantor is a party or by which any property of any Borrower or Guarantor is bound.
20.4 Agent will have on or prior to the date thirty (30) days from the date hereof, a valid and perfected first priority security interest in the assets of New Borrower and New Guarantors, subject only to the liens indicated on Schedule 8.4 to the Information Certificate and the other liens permitted under Section 9.8 of the Loan Agreement.
20.5 After giving effect to the amendments provided for herein, including the new Information Certificate included with this Amendment No. 7, all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements, each as amended hereby, are true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent any such representation or warranty is made as of an earlier specified date, in which case such representation or warranty shall have been true and correct as of such date.
20.6 After giving effect to the amendments provided for herein and the Tropical Acquisition and other transactions contemplated hereby and in the Tropical Acquisition Agreements, each Borrower (including New Borrower) is not insolvent (as such term is defined in the US Bankruptcy Code and any applicable state law) or will not become insolvent, and does not have unreasonably small capital after the consummation of the transactions contemplated hereby and thereby to continue to engage in its business and has not incurred liabilities as a result of the transactions contemplated hereby and thereby that are beyond its ability to pay as such liabilities mature.
20.7 The Tropical Acquisition Agreements and the transactions contemplated thereby have been duly executed, delivered and performed in accordance with their terms, including the fulfillment (not the waiver, except as disclosed and consented to by Agent) of all conditions precedent set forth therein. Pursuant to the Tropical Acquisition Agreements and the transactions contemplated thereby, Group Holdings has acquired and has good and marketable title to the Acquired Stock and the International Trademark Interests of Sellers, PEI Licensing has acquired and has good and marketable title to the Acquired Intellectual Property, Tampa DC has acquired and has good and marketable title to the Acquired Real Estate, PE Shared Services has acquired and has good and marketable title to the Acquired Shared Services Assets, and Supreme has acquired and has good and marketable title to the Acquired Remaining Assets, in each case free and clear of all claims, liens, pledges and encumbrances of any kind, except as permitted under Section 9.8 of the Loan Agreement. The Acquired Assets consist solely of the Acquired Intellectual Property, the Acquired Real Estate, the Acquired Shared Services Assets, the International Trademark Interests of Sellers and the Acquired Remaining Assets. The total amount of the purchase price and other consideration required to be paid by Borrowers and Guarantors for the Acquired Stock and the Acquired Assets does not exceed $88,500,000.
20.8 All actions and proceedings required by the Tropical Acquisition Agreements, the Bankruptcy Sale Order, applicable law or regulation (including, but not limited to, compliance with the Hart-Scott-Rodino Anti-Trust Improvements Act of 1976, as amended and all applicable securities laws) have been taken and the transactions contemplated thereby have been duly and validly taken and consummated.
20.9 Agent has, on or before the date hereof, received from Borrowers, true, complete and correct copies of the Bankruptcy Sale Order, the Tropical Acquisition Agreements, and all notices, instruments, documents and agreements related thereto, including all exhibits and schedules thereto.
20.10 Borrowers and Guarantors shall take such steps and execute and deliver, and cause to be executed and delivered, to Agent, such additional UCC financing statements and termination statements, and other and further agreements, documents and instruments as Agent may require in order to more fully evidence, perfect and protect Agent’s first priority security interest in the Collateral (including the Collateral of New Borrower and New Guarantors).
20.11 As of the date hereof, no Default or Event of Default exists or has occurred and is continuing.
20.12 As of date hereof, the aggregate commitments of the Letter of Credit Issuers under the Letter of Credit Facility Agreements is $60,000,000 and the maturity date of the obligations of Borrowers under the Letter of Credit Facility Agreements is not earlier than May 31, 2005.
20.13 No court of competent jurisdiction has issued any injunction, restraining order or other order which prohibits consummation of the transactions described in the Tropical Acquisition Agreements or the Bankruptcy Sale Order and no governmental or other action or proceeding has been commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Tropical Acquisition Agreements or the Bankruptcy Sale Order.
20.14 The Bankruptcy Sale Order has been duly entered and all conditions contained therein have been fully complied with and satisfied, is valid, subsisting and continuing, has not been revoked, remanded, vacated, appealed, modified, reversed on appeal or revoked, remanded, vacated, reversed or modified by any Bankruptcy or District Court Judge, is final and non-appealable and is not subject to any pending appeal and includes a finding that Borrowers and Guarantors have undertaken the transactions contemplated by the Tropical Acquisition Agreements in good faith, as that term is used in Section 363(m) of the Bankruptcy Code, and as such, is entitled to all of the protections afforded thereby.
20.15 Prior to the consummation of the sale of the Acquired Assets by Seller, each Person who was revealed as holding a lien on or security in any of the Acquired Assets in the lien searches provided by Borrowers and Guarantors to Agent before the sale of the Acquired Assets, received written notice of the intention of Sellers to sell the Acquired Assets.
21.Conditions Precedent. The effectiveness of the consent and amendments contained herein shall only be effective upon the satisfaction (or waiver by Agent) of each of the following conditions precedent in a manner satisfactory to Agent:
21.1 Agent shall have received executed counterparts of this Amendment No. 7 (including all schedules and exhibits hereto), the Restructuring Supplemental Financing Agreements and the Tropical Supplemental Financing Agreements, duly authorized, executed and delivered by the respective party or parties hereto;
21.2 [Intentionally Omitted];
21.3 each of the Tropical Acquisition Agreements and the transactions contemplated thereby shall have been or shall be duly authorized, executed and delivered by the respective parties thereto prior to or contemporaneously with the effectiveness thereof;
21.4 Agent shall have received, in form and substance satisfactory to Agent, true, correct and complete copies of the Bankruptcy Sale Order and the Tropical Acquisition Agreements, duly executed, authorized and delivered by each of the parties thereto;
21.5 all conditions precedent to the obligations of the parties to the Tropical Acquisition Agreements shall have been fulfilled (and not merely waived, except if approved in writing by Agent), at or before the consummation of the Tropical Acquisition;
21.6 all actions and proceedings required by the Tropical Acquisition Agreements, the Bankruptcy Sale Order, applicable law or regulation and the transactions contemplated thereby shall have been duly and validly taken in accordance with the terms thereof, and all required consents thereto under any agreement, document or instrument to which Borrowers, Guarantors or any of their affiliates is a party or by which any of its or their properties are bound, and all applicable consents or approvals of each Governmental Authority, shall have been obtained and be in full force and effect;
21.7 no court of competent jurisdiction shall have issued any injunction, restraining order or other order which prohibits the consummation of the transactions described in the Bankruptcy Sale Order, Tropical Acquisition Agreements or the Financing Agreements or modifies such transactions, and no governmental or other action or proceeding shall have been commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Bankruptcy Sale Order, the Tropical Acquisition Agreements or the Financing Agreements;
21.8 Agent shall have received UCC, Federal and State tax lien and judgment searches with respect to New Borrower (where applicable), New Guarantors (where applicable) and Sellers in all relevant jurisdictions, as determined by Agent;
21.9 Agent shall have received evidence of insurance and loss payee endorsements (as applicable) required under the Loan Agreement and under the other Financing Agreements with respect to New Borrower, New Guarantors and the Acquired Assets, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee;
21.10 the aggregate amount of the Closing Excess Availability of Borrowers as determined by Agent, as of the date hereof, shall be not less than $40,000,000 after giving effect to the closing of the Tropical Acquisition and the Loans made or to be made and Letter of Credit Accommodations issued or to be issued in connection with the Tropical Acquisition and the other transactions contemplated hereunder and the amount of any fees and expenses payable in connection therewith (for purposes of this Section 21.10, “Closing Excess Availability” shall mean, as to Borrowers, the amount, as determined by Agent, calculated at any date, equal to: (a) the Borrowing Base (without regard to the Loan Limit limitation as set forth in Section 1.10(a)(ii) of the definition of Borrowing Base) of all Borrowers (after giving effect to any
Reserves other than any Reserves in respect of Letter of Credit Accommodations),minus (b) the sum of (i) the amount of all then outstanding and unpaid Obligations of Borrowers plus (ii) the amount of all Reserves then established in respect of Letter of Credit Accommodations, plus (iii) the aggregate amount of all then outstanding and unpaid trade payables and other obligations of Borrowers which are outstanding more than sixty (60) days past due as of such time (other than trade payables or other obligations being contested or disputed by Borrowers in good faith);
21.11 Agent shall have received, in form and substance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to evidence and effectuate the termination by the existing lenders to Sellers and Farah UK of any interest in and to any assets of Farah UK or Acquired Assets, duly authorized, executed and delivered by it or each of them, including, but not limited to, UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party with respect to the Acquired Assets;
21.12 no material adverse change shall have occurred in the assets, business or prospects of Borrowers and Guarantors since the date of Agent’s latest field examination (not including for this purpose the field review referred to in Section 20.13 below) and no change or event shall have occurred which would impair the ability of any Borrower or Guarantor to perform its obligations hereunder or under any of the other Financing Agreements to which it is a party or of Agent or any Lender to enforce the Obligations or realize upon the Collateral;
21.13 Agent shall have completed a field review of the Records and such other information with respect to the Acquired Assets as Agent may require to determine the amount of Loans available to Borrowers (other than New Borrower) (including, without limitation, current perpetual inventory records and/or roll-forwards of Accounts and Inventory through the date of closing and test counts of the Inventory in a manner satisfactory to Agent, together with such supporting documentation as may be necessary or appropriate, and other documents and information that will enable Agent to accurately identify and verify the Collateral), the results of which in each case shall be satisfactory to Agent, not more than three (3) Business Days prior to the date hereof;
21.14 Agent shall have received evidence, in form and substance satisfactory to Agent, that Agent has a valid perfected first priority security interest in all of the Collateral (other than the Senior Note Priority Collateral, the Factor Priority Collateral and the Letter of Credit Issuer Priority Collateral);
21.15 Agent shall have received (a) Borrowers’ projected financial statements for the period from the date hereof through January 31, 2006 which shall be prepared on a monthly basis, together with a certificate, dated the date hereof, of the chief financial officer or chief executive officer of Parent stating that such projected financial statements were prepared by such officer of Parent in good faith and are based on assumptions that are believed by such officer in good faith to be reasonable in light of all facts and circumstances known to Parent at such time, all of which shall be reasonably satisfactory to Agent and (b) a turnaround plan with respect to the Acquired Assets and operations of Farah UK, which shall be in form and substances satisfactory to Agent;
21.16 Agent shall have received, in form and substance satisfactory to Agent, all consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the Collateral (including the Collateral of New Borrower and New Guarantors) or to effectuate the provisions of this Amendment No.7 and the other Financing Agreements;
21.17 Agent shall have received, in form and substance satisfactory to Agent, the Information Certificate duly authorized, executed and delivered by Borrowers and Guarantors;
21.18 Agent shall have received, in form and substance satisfactory to Agent, (i) the Collateral Assignment of Acquisition Agreements, duly authorized, executed and delivered by Parent and (ii) the Consent to the Collateral Assignment, duly authorized, executed and delivered by Sellers;
21.19 Agent shall have received a written report of a current appraisal of the Inventory of Borrowers and Guarantors by an appraiser acceptable to Agent, on which Agent and Lenders shall be expressly permitted to rely, in form, scope and methodology satisfactory to Agent, setting forth the net orderly liquidation value (and on such other basis as Agent may request of each type of category of Inventory and expressing such value as a percentage of the cost of such Inventory);
21.20 Agent and Lenders shall be satisfied that, immediately after giving effect to the transactions contemplated to occur under this Amendment No. 7 on the date hereof, Parent and each Borrower is Solvent.
21.21 New Borrower and New Guarantors shall have authorized Agent to prepare and file such Uniform Commercial Code financing statements and other documents and instruments which Agent has determined are necessary to perfect or continue perfecting the security interests of Agent in all of the assets now or hereafter owned by New Borrower or New Guarantors;
21.22 Agent shall have received originals of the shares of the stock certificates representing one hundred percent (100%) of the issued and outstanding shares of the Capital Stock of PE Shared Services, together with a related stock power executed in blank;
21.23 Agent shall have received, in form and substance satisfactory to Agent, either (a) Deposit Account Control Agreements by and among Agent, New Borrower and each bank where such New Borrower has a collection account, in each case, duly authorized, executed and delivered by such bank and New Borrower, or (b) letters of notice and acknowledgement, duly authorized, executed and delivered by New Borrower and each bank where New Borrower has a collection account;
21.24 Agent shall have received a copy of the Certificate of Incorporation (or comparable document), and all amendments thereto, for each New Guarantor certified by the Secretary of State (or the equivalent governmental authority) of its jurisdiction of incorporation as of a recent date certifying that each of the foregoing documents remains in full force and effect and has not been modified or amended, except as described therein;
21.25 Agent shall have received, in form and substance satisfactory to Agent, (a) the Officer’s Certificate of Directors’ Resolutions, Corporate By-Laws, Incumbency and Shareholder’s Consent of each US Loan Party that is a corporation (except as to Parent, without the Shareholder’s Consent) and (b) the Officer’s Certificate of Members’ and Managers’ Resolutions, Operating Agreement, Incumbency and Members’ Consent of each US Loan Party that is a limited liability company, in each case evidencing the adoption and subsistence of resolutions approving the execution, delivery and performance by each US Loan Party of this Amendment No. 7, the Tropical Supplemental Financing Agreements and the Restructuring Supplemental Financing Agreements to which it is a party;
21.26 Agent shall have received original good standing certificates (or its equivalent) from the Secretary of State (or comparable official) from each jurisdiction where each New Guarantor (other than Group Holdings) conducts business;
21.27 Agent shall have received, in form and substance satisfactory to Agent, a legal opinion of counsel to Borrowers (except Farah UK, as to which the legal opinion shall be provided to the Agent by Denton Wilde Sapte) and Guarantors (except Group Holdings, as to which the legal opinion shall be provided to the Agent by McCann FitzGerald) with respect to the matters contemplated by this Amendment No. 7, the Tropical Supplemental Financing Agreements, the Tropical Acquisition Agreements and Restructuring Supplemental Financing Agreements, and including opinions of counsel qualified in such jurisdictions as Agent may specify;
21.28 No Default or Event of Default shall exist or have occurred and be continuing;
21.29 No court of competent jurisdiction shall have issued any injunction, restraining order or other order with respect to the Bankruptcy Sale Order which otherwise prohibits the consummation of the transactions described in the Bankruptcy Sale Order, the Tropical Acquisition Agreements or the Financing Agreements or modifies such transactions, and no governmental or other action or proceeding shall have been commenced, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the Bankruptcy Sale Order, the Tropical Acquisition Agreements or the Financing Agreements; and
21.30 Agent shall have received a certified copy of the Bankruptcy Sale Order, in form and substance satisfactory to Agent, as duly entered by the Bankruptcy Court in the Chapter 11 Cases and the time within which any Person may contest or appeal from the Bankruptcy Sale Order shall have expired (or the Bankruptcy Court shall have entered an order that the stay described in Bankruptcy Rule 6004(g) does not apply to the Bankruptcy Sale Order), without such contest or appeal having been taken and the Bankruptcy Sale Order shall,interalia, (i) contain a finding that Parent has undertaken the transactions contemplated by the Tropical Acquisition Agreements in good faith, as that term is used in Section 363(m) of the Bankruptcy Code, and as such, is entitled to all of the protections afforded thereby and (ii) authorize Sellers to sell the Acquired Assets, free and clear of any security interests, liens, claims or encumbrances and to execute, deliver and perform the terms and provisions of all of the Tropical Acquisition Agreements; and
21.31 Agent shall have received, in form and substances satisfactory to Agent, the Fee Letter by Borrowers in favor of Wachovia Bank, National Association;
21.32 Agent shall have received, in form and substance satisfactory to Agent, a certified copy of the memorandum and articles of association, certificate of incorporation and certificate of incorporation on change of name (if any) or other constitutional documents of each Foreign Loan Party, together with a certified copy of the register of members of such Foreign Loan Party;
21.33 Agent shall have received, in form and substances satisfactory to Agent, a certified copy of the resolutions of the board of directors of each Foreign Loan Party approving such Foreign Loan Party’s entry into the Financing Agreements to which it is a party together with any other authorization necessary or desirable for the entry into and performance of the Financing Agreements to which such Foreign Loan Party is a party or which create guarantees or security for the Obligations of such Foreign Loan Party;
21.34 Agent shall have received, in form and substance satisfactory to Agent, a director’s certificate executed by a director of each Foreign Loan Party (a) certifying that all corporation action required to enable such Foreign Loan Party to enter into, execute and perform its obligations under the Financing Agreements to which it is a party and to authorize the transactions contemplated therein has been taken, (b) setting out the specimen signatures of those persons authorized to execute those Financing Agreements to which such Foreign Loan Party is a party on behalf of such Foreign Loan Party, and (c) certifying that the performance by such Foreign Loan Party of its rights and obligations under the Financing Agreements would not contravene any agreement to which it is a party or by which it is bound;
21.35 Agent shall have received a certified copy of each notice required to be dispatched pursuant to any Debenture included in the Tropical Supplemental Financing Agreements and acknowledgements from all recipients of such notices as required by such Debenture or agreement by the relevant recipient of the form of acknowledgement to be given by it;
21.36 Agent shall have received a copy of the mandate for each Blocked Account in the United Kingdom duly completed (so far as possible) by New Borrower and evidence satisfactory to Agent that such Blocked Accounts have been opened;
21.37 Agent shall have received satisfactory results to all final company and winding up searches in relation to each Foreign Loan Party; and
21.38 Agent shall have received stock certificates representing one hundred percent (100%) of the issued and outstanding shares of Capital Stock of Farah UK, sixty-five (65%) percent of the issued and outstanding shares of Capital Stock of Group Holdings and thirty-five percent (35%) of the issued and outstanding shares of Capital Stock of Group Holdings, in each case together with a related stock power executed in blank.
22.Effect of this Amendment. This Amendment No.7 and the instruments and agreements delivered pursuant hereto constitute the entire agreement of the parties with respect to the subject matter hereof and thereof, and supersede all prior oral or written communications,
memoranda, proposals, negotiations, discussions, term sheets and commitments with respect to the subject matter hereof and thereof. Except as expressly amended pursuant hereto and except for the consent expressly granted herein, no other changes or modifications or waivers to the Financing Agreements are intended or implied, and in all other respects the Financing Agreements are hereby specifically ratified, restated and confirmed by all parties hereto as of the effective date hereof. To the extent that any provision of the Loan Agreement or any of the other Financing Agreements are inconsistent with the provisions of this Amendment No. 7, the provisions of this Amendment No.7 shall control.
23.Further Assurances. Each Borrower and Guarantor shall execute and deliver such additional documents and take such additional action as may be reasonably requested by Agent or Lenders to effectuate the provisions and purposes of this Amendment No.7.
24.Governing Law. The rights and obligations hereunder of each of the parties hereto shall be governed by and interpreted and determined in accordance with the internal laws of the State of Florida (but excluding any principles of conflicts of law or other rule of law that would cause the application of the law of any jurisdiction other than the laws of the State of Florida).
25.Binding Effect. This Amendment No.7 shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
26.Counterparts. This Amendment No.7 may be executed in any number of counterparts, but all of such counterparts shall together constitute but one and the same agreement. In making proof of this Amendment No.7, it shall not be necessary to produce or account for more than one counterpart thereof signed by each of the parties hereto. Delivery of an executed counterpart of this Amendment No.7 by telecopier shall have the same force and effect as delivery of an original executed counterpart of this Amendment No.7. Any party delivering an executed counterpart of this Amendment No.7 by telecopier also shall deliver an original executed counterpart of this Amendment No.7, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment No.7 as to such party or any other party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 7 to be duly executed and delivered by their authorized officers as of the day and year first above written.
| | |
| SUPREME INTERNATIONAL, LLC, |
| formerly known as Supreme International, Inc. |
| |
| By: | | Perry Ellis International, Inc., |
| | its Managing Member |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | VP – Finance |
|
| JANTZEN, LLC, |
| formerly known as Jantzen, Inc. |
| |
| By: | | Perry Ellis International, Inc., |
| | its Managing Member |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | VP – Finance |
|
| PERRY ELLIS MENSWEAR, LLC, |
| formerly known as Perry Ellis Menswear, Inc. |
| |
| By: | | Perry Ellis International, Inc., |
| | its Managing Member |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | VP – Finance |
|
| SALANT HOLDING LLC, |
| formerly known as Salant Holding Corporation |
| |
| By: | | Perry Ellis International, Inc., |
| | its Managing Member |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | VP – Finance |
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
| | |
| FARAH MANUFACTURING (U.K.) LIMITED |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Director |
|
PERRY ELLIS INTERNATIONAL GROUP HOLDINGS LIMITED |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Director / Secretary |
|
| PEI LICENSING, INC. |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Treasurer |
|
| SUPREME MUNSINGWEAR CANADA, INC. |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Treasurer |
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
| | |
| JANTZEN APPAREL, LLC, |
| formerly known as Jantzen Apparel Corp. |
| |
| By: | | PEI Licensing, Inc., |
| | its Managing Member |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Treasurer |
|
| SUPREME REAL ESTATE I, LLC |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Manager |
|
| SUPREME REAL ESTATE II, LLC |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Manager |
|
| SUPREME REALTY, LLC |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Manager |
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
| | |
| PERRY ELLIS SHARED SERVICES |
| CORPORATION |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | Treasurer |
|
| WINNSBORO DC, LLC |
| |
| By: | | Perry Ellis International, Inc., |
| | its Managing Member |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | VP Finance |
|
| TAMPA DC, LLC |
| |
| By: | | Perry Ellis International, Inc., |
| | its Managing Member |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | VP - Finance |
|
| PERRY ELLIS REAL ESTATE, LLC, |
formerly known as Perry Ellis Real Estate Corporation |
| |
| By: | | Perry Ellis International, Inc., |
| | its Managing Member |
| |
| By: | | /s/ Rosemary B. Trudeau |
| Title: | | VP - Finance |
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
AGREED:
WACHOVIA BANK, NATIONAL ASSOCIATION,
successor by merger to Congress Financial Corporation,
as Agent and a Lender
| | |
| By: | | /s/ L Forte |
| Title: | | EVP |
THE CIT GROUP/COMMERCIAL SERVICES, INC.
| | |
| By: | | /s/ William Shulman |
| Title: | | Vice President |
THE ISRAEL DISCOUNT BANK OF NEW YORK
| | |
| By: | | /s/ David Keinan |
| Title: | | EVP & COO |
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRECEDING PAGE]
HSBC BANK USA, NATIONAL ASSOCIATION
| | |
| By: | | /s/ Bruce Wicks |
| Title: | | Firs Vice President |
HSBC BUSINESS CREDIT (USA) INC.
| | |
By: | | /s/ M Tandeen |
| Title: | | Vice President |
EXHIBIT A
TO
AMENDMENT NO. 7
Information Certificate
See Attached
A - 1
AMENDED and RESTATED
INFORMATION CERTIFICATE
OF
PERRY ELLIS INTERNATIONAL, INC
AND ITS SUBSIDIARES
Dated: February 26, 2005,
Congress Financial Corporation (Florida), as Agent
777 Brickell Avenue
Miami, Florida 33131
In connection with certain financing provided or to be provided by Congress Financial Corporation (Florida) in its capacity as agent acting for and on behalf of certain lenders (in such capacity, “Agent”) and such lenders (collectively, “Lenders”), each of the undersigned (individually, a “Company” and, collectively, the “Companies”) jointly and severally represents and warrants to Agent and Lenders the following information about it, its organizational structure and other matters of interest to Agent and Lenders:
| 1. | The full and exact name of each Company as set forth in its certificate of incorporation (or its certificate of formation or other organizational document filed with the applicable state governmental authority, as the case may be) is as follows: |
See Exhibit A hereto.
| 2. | Each Company uses and owns the following trade name(s) in the operation of its business (e.g. billing, advertising, etc.; note: do not include names which are product names only): |
| | |
Company | | Trade Names |
| N/A | | N/A |
| 3. | Each Company is a registered organization of the following type (for example, corporation, limited partnership, limited liability company, etc.): |
| | | | |
Company | | Type | |
| |
See Exhibit A hereto. | | | | |
A - 2
| 4. | Each Company was organized on the date indicated for such company below, under the laws of the State indicated below for such Company, and each Company is in good standing under the laws of such State. |
| | | | | | | | |
Company | | Date of
Organization | | | Jurisdiction of
Organization | |
| | |
See Exhibit A hereto. | | | | | | | | |
| 5. | The organizational identification number of each Company issued by its jurisdiction of organization is as set forth below (or if none is issued by the jurisdiction of organization indicate “none”): |
| | | | | | | | |
Company | | Date of
Organization | | | Jurisdiction of
Organization | |
| | |
See Exhibit A hereto. | | | | | | | | |
| 6. | The Federal Employer Identification Number of each Company is as follows: |
| | | | | | | | |
Company | | Date of
Organization | | | Jurisdiction of
Organization | |
| | |
See Exhibit A hereto. | | | | | | | | |
| 7. | Each Company is duly qualified and authorized to transact business as a foreign organization in the following states and is in good standing in such states: |
| | | | |
Company | | Jurisdiction | |
| |
See Exhibit A hereto. | | | | |
| 8. | Since the date of its organization, the name of each Company as set forth in its organizational documentation as filed of record with the applicable state authority has been changed as follows: |
| | | | |
Company | | Date of
Change | | Prior
Name |
A - 3
See Exhibit A for name changes and changes in type of entity.
In June 1999, Supreme International Corporation changed its name to Perry Ellis International, Inc., a Florida corporation.
| 9. | In the last five years, Perry Ellis International, Inc. (“Perry Ellis”) has made or entered into the following mergers or acquisitions in excess of $1.0 million: |
| | i. | In December 2005, Perry Ellis entered into an asset purchase agreement with Tropical Sportswear Int’l Corporation and certain of its subsidiaries to purchase certain domestic operating assets and the capital stock of Farah Manufacturing (U.K.) Limited for $88.5 million, subject to an adjustment based on Tropical’s accounts receivable and inventory as of the closing date. |
| | ii. | In October 2003, Jantzen Apparel Corp. acquired the Redsand business from Redsand Inc. pursuant to an asset purchase agreement for approximately $1.75 million. |
| | iii. | In June 2003, Perry Ellis acquired Salant Corporation for approximately $91.0 million pursuant to an agreement and plan of merger. |
| | iv. | In March 2002, Perry Ellis acquired the Jantzen business pursuant to an asset purchase agreement from subsidiaries of VF Corporation for approximately $24.0 million. |
| | v. | In November 2000, Perry Ellis acquired various trademarks, including the Mondo di Marco® trademark from the bankruptcy estate of Mondo, Inc. for $1.75 million. |
| | vi. | In July 2000, Perry Ellis acquired the Pro-Player, Artex, Fun Gear and Salem Sportswear from the bankruptcy estate of Fruit of the Loom, Inc. for approximately $1.30 million. |
| 10. | The chief executive office and mailing address of each Company is located at the address indicated for such Company on Schedule 8.2 hereto. |
| 11. | The books and records of each Company pertaining to accounts, contract rights, inventory, and other assets are located at the addresses indicated for such Company on Schedule 8.2 hereto. |
| 12. | Each Company has other places of business and/or maintains inventory or other assets only at the addresses (indicate whether locations are owned, leased or operated by third parties and if leased or operated by third parties, their name and address) indicated for such Company on Schedule 8.2 hereto. |
A - 4
| 13. | The places of business or other locations of any assets used by each Company during the last four (4) months other than those listed above are as indicated for such Company on Schedule 8.2 hereto. |
| 14. | Each Company’s assets are owned and held free and clear of liens, mortgages, pledges, security interests, encumbrances or charges except as set forth on Schedule 8.4 hereto. |
| 15. | There are no judgments or litigation pending by or against any Company, its subsidiaries and/or affiliates or any of its officers/principals, except as set forth on Schedule 8.6 hereto. |
| 16. | Each Company is in compliance with all environmental laws applicable to its business or operations except as set forth on Schedule 8.8 hereto. |
| 17. | No Company has any deposit accounts, investment accounts, securities account or similar accounts with any bank, savings and loan or other financial institution, except as set forth on Schedule 8.10 hereto for the purposes and of the types indicated therein. |
| 18. | No Company owns or licenses any trademarks, patents, copyrights or other intellectual property, except as set forth on Schedule 8.11 hereto (indicate type of intellectual property and whether owned or licensed, registration number, date of registration, and, if licensed, the name and address of the licensor). |
| 19. | Each Company is affiliated with, or has ownership in, the corporations (including subsidiaries) and other organizations set forth on Schedule 8.12 hereto. |
| 20. | The names of the stockholders (or members or partners, including general partners and limited partners) of each Company and their holdings are as set forth on Schedule 8.12 hereto (if stock or other interests are widely held indicate only holders owning 10% or more of the voting stock or other interests). |
| 21. | No Company is a party to or bound by an collective bargaining or similar agreement with any union, labor organization or other bargaining agent except as set forth on Schedule 8.13 hereto (indicate date of agreement, parties to agreement, description of employees covered, and date of termination). |
| 22. | No Company is a party to or bound by any “material contract” except as set forth on Schedule 8.15 hereto. For this purpose a “material contract” means any contract or other agreement, written or oral, of such Company required to be filed with the Securities and Exchange Commission. |
A - 5
| 23. | No Company has any “indebtedness” except as set forth on Schedule 9.9 hereto. For this purpose, the term “indebtedness” means any liability, whether or not contingent, in respect of borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Company or only to a portion thereof) or evidenced by bonds, notes, debentures or similar instruments; representing the balance deferred and unpaid of the purchase price of any property or services (except any such balance that constitutes an account payable to a trade creditor (whether or not an Affiliate) created, incurred, assumed or guaranteed by such Company in the ordinary course of business of such Person in connection with obtaining goods, materials or services that is not overdue by more than ninety (90) days, unless the trade payable is being contested in good faith); all obligations as lessee under leases which have been, or should be, in accordance with generally accepted accounting principles recorded as capital leases; any contractual obligation, contingent or otherwise, of such Company to pay or be liable for the payment of any indebtedness described in this definition of another party, including, without limitation, any such indebtedness, directly or indirectly guaranteed, or any agreement to purchase, repurchase, or otherwise acquire such indebtedness, obligation or liability or any security therefor, or to provide funds for the payment or discharge thereof, or to maintain solvency, assets, level of income, or other financial condition; all obligations with respect to redeemable stock and redemption or repurchase obligations under any Capital Stock or other equity securities issued by such Person; all reimbursement obligations and other liabilities of such Company with respect to surety bonds (whether bid, performance or otherwise), letters of credit, banker’s acceptances or similar documents or instruments issued for such Company’s account; and all indebtedness of such Company in respect of indebtedness of another party for borrowed money or indebtedness of another party otherwise described in this definition which is secured by any consensual lien, security interest, collateral assignment, conditional sale, mortgage, deed of trust, or other encumbrance on any asset of such Company, whether or not such obligations, liabilities or indebtedness are assumed by or are a personal liability of such Company, all as of such time. |
| 24. | No Company has made any loans or advances or guaranteed or otherwise become liable for the obligations of any others, except as set forth on Schedule 9.10 hereto. |
| 25. | No Company has any chattel paper (whether tangible or electronic) or instruments as of the date hereof, except as follows: |
None.
| 26. | No Company has any commercial tort claims as breach of contract. There is no provision in the certificate of incorporation, certificate of formation, articles of organization, by-laws or operating agreement of any Company (as applicable) or the other organizational documents of such Company, or in the laws of the State of its organization, requiring any vote or consent of it shareholders, members or other holders of the equity interests therein to borrow or to authorize the mortgage or pledge of or creation of a security interest in any assets of such Company or any subsidiary. Such power is vested exclusively in its Board of Directors (or in the case of a limited partnership, the general partner that is the signatory hereto, or in the case of a limited liability company, the manager that is the signatory hereto). |
A - 6
| 27. | The officers of each Company and their respective titles are as follows: |
See Exhibit A hereto.
The following will have signatory powers as to all transactions of each Company with Lender:
George Feldenkreis, Oscar Feldenkreis, George Pita and Rosemary B. Trudeau
| 28. | The members of the Board of Directors of each Company (or, if the Company is a limited partnership, the general partner or, if the Company is a limited liability company, the managers) are: |
See Exhibit A hereto.
| 29. | At the present time, there are no delinquent taxes due (including, but not limited to, all payroll taxes, personal property taxes, real estate taxes or income taxes). |
| 30. | Certified Public Accountants for each Company is the firm of: |
Name: Deloitte & Touche
Address: 200 South Biscayne Boulevard, Miami, Florida 33131
Partner Handling Relationship: Carlos Sabater
Were statements uncertified for any fiscal year? No
Agent and Lenders shall be entitled to rely upon the foregoing in all respects and each of the undersigned is duly authorized to execute and deliver this Information Certificate on behalf of the Company for which he or she is signing.
| | |
| Very truly yours, |
|
| PERRY ELLIS INTERNATIONAL, INC. |
| |
| By: | | 
|
| | Rosemary B. Trudeau, Vice President - Finance |
A - 7
SCHEDULE 8.2
to
INFORMATION CERTIFICATE
Locations
| | A. | Company: Perry Ellis International, Inc. and Its Subsidiaries |
3000 N.W. 107th Avenue, Miami, Florida 33172
| | 2. | Location of Books and Records |
3000 N.W. 107th Avenue, Miami, Florida 33172
| | 3. | Locations of Inventory, Equipment and Other Assets |
| | | | | | |
Address | | Owned/Leased/ Third Party* | | Name/Address of Lessor or
Third Party, as Applicable | | Perry Ellis entity with
Operations |
| | | |
4902 West Waters Avenue
Tampa, Florida 33634 | | Owned | | — | | Supreme |
| | | |
3000 N.W. 107th Avenue Miami, Florida 33172 | | Owned | | — | | Supreme |
| | | |
411 N.E. 19th Avenue Portland, Oregon 97232 | | Leased | | Jantzen, Inc. 411 N.E. 19th Avenue Portland, Oregon 97323 | | Jantzen |
| | | |
101 Mountain View Drive
Seneca, South Carolina 29672 | | Owned | | — | | Jantzen/ Supreme |
| | | |
1411 Broadway, 24th Floor
New York, New York 10018 | | Leased | | Trizechan-Swig LLC | | Jantzen |
A - 8
| | | | | | |
Address | | Owned/Leased/ Third Party* | | Name/Address of Lessor or
Third Party, as Applicable | | Perry Ellis entity with
Operations |
| | | |
4902 West Waters Avenue
Tampa, Florida 33634 | | Owned | | — | | Supreme |
| | | |
777 N.W. 72nd Avenue
Miami, Florida 33126 | | Leased | | Miami International Mart Realty, Inc. | | Supreme |
| | | |
5905 Kennedy Road
Mississauga, Ontario
Canada L4Z263 | | Third Party | | Steele Imports | | Supreme Canada |
| | | |
25 West 39th Street New York, New York 10018 | | Leased | | Tommy Hilfiger U.S.A., Inc. | | Supreme/PEI Licensing |
| | | |
15255 Alton Parkway
Suite 300 Irvine, California 92618 | | Leased | | Alton Plaza Property, Inc. | | Redsand, a division of Supreme International LLC |
| | | |
14760 Don Julian City of Industry, California 91746 | | Third Party | | Third Party Enterprises, Inc. | | Supreme |
| | | |
| 2423 East Firestone Blvd. Southgate, California 90280 | | Third Party | | Service Connection, Inc. | | Supreme |
| | | |
7525 N.W. 48th Street
Miami, Florida 33166 | | Leased | | George Feldenkreis | | Supreme |
| | | |
4810 N.W. 74th Avenue
Miami, Florida | | Leased | | George Feldenkreis | | Supreme |
| | | |
Crittal Road
Witham, Essex, United Kingdom | | Leased | | Ampleforth Developments (Witham) Limited | | Farah UK |
| | | |
| 111 Avenue of the Americas | | Leased | | Trizechan-Swig LLC | | Perry Ellis Menswear |
A - 9
| | | | | | |
Address | | Owned/Leased/ Third Party* | | Name/Address of Lessor or
Third Party, as Applicable | | Perry Ellis entity with
Operations |
| | | |
4902 West Waters Avenue
Tampa, Florida 33634 | | Owned | | — | | Supreme |
| | | |
Dallas Market Center Space No. 2A70 2300 Stemmons Freeway Dallas, Texas 75207 | | Leased | | Dallas Market Center Co. Ltd. | | Perry Ellis Menswear |
| | | |
8500 Higuera Street Culver City, Ca 90232 | | Leased | | Rick Solomon Enterprises | | Axis Division, Salant Holding |
| | | |
5880 W. Jefferson Boulevard Studio A Los Angeles, California | | Leased | | Rodeo Properties, LLC | | Axis Division, Salant Holding |
| | | |
1350 Avenue of the Americas New York, NY 10036 | | Leased | | | | Tricot Division, Salant Holding
|
| | | |
392 US 321 Bypass Winnboro, SC 29180 | | Owned | | — | | Perry Ellis Menswear |
| | | |
264 US 321 Bypass Winnboro, SC 29180 | | Leased | | Killeen Properties LLC | | Perry Ellis Menswear |
PERRY ELLIS STORES DIVISION
Lease Expiration Schedule as of 01/31/2005
See Perry Ellis Menswear LLC Listing of Retail Stores in Schedule 8.15
A - 10
SCHEDULE 8.4
to
INFORMATION CERTIFICATE
Existing Liens
| | | | | | |
Name of Company | | Name of Secured Party | | Description Of Collateral | | File No. of Financing Statement/
Jurisdiction (Optional) |
| | | |
| Jantzen, Inc. | | 105 Capital | | Color Copier | | 44337 / Oregon |
| | | |
| | VISY Recycling, Inc. | | Bailor VG-HDP Bailor MP7245 | | 1203258 / South Carolina |
| | | |
| Supreme International, Inc. | | Ikon Office Solutions, Inc. | | See attachment 8.4(a) | | 9800000280685 / Florida |
| | | |
| Jantzen Apparel Corp. | | State Street Bank and Trust Company | | See attachment 8.4(b) | | 20760276 / Delaware |
| | | |
| Supreme Realty, LLC | | State Farm Life Insurance Company | | See attachment 8.4(c) | | 200201586442/ Florida |
| | | |
| | | | Same as Florida filing | | 20501/3266 Miami-Dade, Florida |
| | | |
| Perry Ellis International, Inc. | | HSBC Bank USA | | All personal property owned or hereinafter acquired | | 200200151000/ Florida |
| | | |
| | State Street Bank and Trust Company | | See attachment 8.4(d) | | 200200703054 / Florida |
| | | |
| | Winthrop Resources Corporation | | See attachment 8.4(e) | | 200201122349 / Florida |
| | | |
| | IDB Bank | | See attachment 8.4(g) | | 200201828799 / Florida |
| | | |
| | Commercebank | | See attachment 8.4(h) | | 20020189046X Florida |
A - 11
| | | | | | |
Name of Company | | Name of Secured Party | | Description Of Collateral | | File No. of Financing Statement/
Jurisdiction (Optional) |
| | | |
| | Citicorp Vendor Finance, Inc. | | Canon CLC 1120/CP 240 | | 235521 / New York |
A - 12
A - 13
Attachment 8.4(b)
SCHEDULE A
| | |
Debtor | | Secured Party |
| |
| JANTZEN APPAREL CORP. | | STATE STREET BANK AND TRUST COMPANY, AS COLLATERAL AGENT |
The financing statement covers all of the Debtor’s right, title and interest in and to each of the following, in each case, as to each type of property described below, owned by the Debtor, wherever located and existing (collectively, the “Collateral”):
| | (a) | all trademarks, service marks, collective marks, trade dress, logos, slogans, designs, domain names, trade names, business names, corporate names and other source identifiers, whether or not registered, whether currently in use or not, including, without limitation, all common law rights and registrations and applications for registration thereof, and all other marks registered in or applied for in the U.S. Patent and Trademark Office or in any office or agency of any State or Territory of the United States or any foreign country (but excluding any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity and enforceability of such intent-to-use trademark applications under applicable law) and all rights therein provided by international treaties or conventions, all extensions and renewals of any of the foregoing, together in each case with the goodwill of the business connected therewith and symbolized thereby, and all rights corresponding thereto throughout the world and all other rights of any kind whatsoever of the Debtor accruing thereunder or pertaining thereto (the “Trademarks”); |
| | (b) | all agreements, permits, consents, orders and franchises, in each case relating to the Trademarks and all proceeds, income, royalties and other payments now or hereafter due and/or payable with respect thereto, subject, in each case, to the terms of such agreements, permits, authorizations and franchises; |
| | (c) | any and all claims for damages and injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to the Collateral with the right, but not the obligation, to sue for and collect, or otherwise recover, such damages; and |
| | (d) | all proceeds of the Collateral for, and supporting obligations relating to, any and all of the Collateral (including, without limitation, the proceeds, collateral and supporting obligations that constitute property of the types described in clauses (a) through (c) and, to the extent not otherwise included, all (i) payments under insurance with respect to the Collateral (whether or not the Secured Party is the loss payee thereof), or any damages, indemnity, warranty or guaranty, payable by reason of loss or damage to or otherwise with respect, to any of the foregoing Collateral and (ii) cash proceeds of the foregoing. |
A - 14
Attachment 8.4(c)
EXHIBIT A
to
Financing Statement
naming Supreme Realty, LLC, as Debtor
and State Farm Life Insurance Company, as Secured Party
1.Improvements. All of Debtor’s right, title and interest in and to all buildings, structures and other improvements now or hereafter constructed, erected, installed, placed or situated upon that piece, parcel and tract (or those pieces, parcels or tracts) of land (the “Real Estate”) located in Miami-Dade County, Florida legally more particularly described onExhibit B attached hereto and by this reference thereto made a part hereof (collectively, the “Improvements”);
2.Appurtenances. All of Debtor’s estate, claim, demand, right, title and interest, now owned or hereafter acquired, including, without limitation, any after acquired title, franchise, license, remainder, or reversion, in and to (i) any land or vaults lying within the right-of-way of any street, avenue, way, passage, highway or alley, open or proposed, vacated or otherwise, adjoining the Real Estate; (ii) any and all alleys, sidewalks, streets, avenues, strips and gores of land adjacent, belonging or appertaining to the Real Estate and Improvements; (iii) all rights of ingress and egress to and from the Real Estate and all adjoining properties; (iv) storm and sanitary sewer, water, gas, electric, railway, telephone and all other utility services relating to the Real Estate and Improvements; (v) all land use, zoning and development rights and approvals, all air rights, water, water rights, water stock, gas, oil, minerals, coal and other substances of any kind or character underlying or relating to the Real Estate or any part thereof; and (vi) each and all of the tenements, hereditaments, easements, appurtenances, or other rights, liberties, reservations, allowances and privileges relating to the Real Estate or the Improvements or in any way now or hereafter appertaining thereto, including homestead and any other claim at law or in equity (collectively, the “Appurtenances”);
3.Leases. All leasehold estates and the right, title and interest of Debtor in, to and under any and all leases, subleases, management agreements, arrangements, concessions or agreements, written or oral, relating to the use and occupancy of the Real Estate and Improvements or any portion thereof now or hereafter existing or entered into (collectively, the “Leases”);
A.Rents. All rents, issues, profits, proceeds, income, revenues, royalties, advantages, avails, claims against guarantors, security and other deposits (whether in cash or other form), advance rentals and any and all other payments or benefits now or hereafter derived, directly or indirectly, from the Real Estate and Improvements, whether under the Leases or otherwise (collectively, the “Rents”);
5.Contract Rights, All right, title and interest of Debtor in and to any and all contracts, written or oral, express or implied, now existing or hereafter entered into or arising, in any manner related to the Improvement, use, operation, sale, conversion or other disposition of any interest in, including, without limitation, all options to purchase or lease the Real Estate or Improvements or any portion thereof or interest therein, or any other rights, interests or greater estates in the rights and properties comprising the Collateral (as hereinafter defined and described), whether now owned or hereafter acquired by Debtor (collectively, the “Contract Rights’);
6.Intangible Personal Property. All general intangibles of Debtor, including without limitation, goodwill, trademarks, trade names, option rights, permits, licenses, insurance policies and the proceeds therefrom, rights of action and books and records relating, directly or indirectly to the Real Estate and Improvements (collectively, the “Intangible Personal Property”);
A - 15
Attachment 8.4(c) (Cont.)
7.Tangible Personal Property, All right, title and interest of Debtor in and to all fixtures, equipment and tangible personal property of every kind, nature or description attached or affixed to or situated upon or within the Real Estate or Improvements, or both, provided the same are used, usable or intended to be used for or in connection with any present or future use, occupation, operation, maintenance, management or enjoyment of the Real Estate and Improvements (collectively, the “Tangible Personal Property”);
8.Proceeds. All proceeds of the conversion, voluntary or involuntary, of any of the Collateral into cash or other liquidated claims, or that are otherwise payable for injury to, or the taking or requisitioning of the Collateral, including all insurance and condemnation proceeds paid or payable with respect to the Collateral (collectively, the “Proceeds”);
9.Tax and Insurance Deposits. All sums deposited by Debtor to Secured Party, in escrow for the payment of real estate and other taxes and insurance premiums payable on and with respect to the Real Estate and Improvements (collectively, the “Tax and Insurance Deposits”):
10.Right to Encumber. All of Debtor’s right, power or privilege to further hypothecate or encumber all or any portion of the property, rights and interests comprising the Collateral described herein as security for any debt or obligation; it being intended by this provision that Debtor be divested of the right, power and privilege to further hypothecate or encumber, or to grant a mortgage upon or a security interest in any of the Collateral as security for the payment of any debt or the performance of any obligation without Secured Party’s prior written consent (the “Right to Encumber”); and
11.Other Rights and Interests. All other property, rights, interests, estates or claims of every name, kind, character or nature, both in law and in equity, which Debtor now has or may hereafter acquire in the Real Estate and Improvements and all other property, rights, interests, estates or claims of any name, kind, character or nature or properties now owned or hereafter acquired in the other properties, rights and interests comprising the Collateral as defined and described herein (collectively, “Other Rights and Interest”),
All of the foregoing-described property, rights and interests, including the Improvements, Appurtenances, Leases, Rents, Contract Rights, Intangible Personal Property, Tangible Personal Property, Proceeds, Tax and Insurance Deposits, Right to Encumber and Other Rights and Interests, being collectively referred to herein as the “Property.”
IT IS EXPRESSLY PROVIDED, HOWEVER, that the property, rights and interests included within the foregoing definition of “property” shall not include any fixtures, equipment or tangible personal property which is (i) owned by tenants or lessees of Debtor and of the Real Estate and Improvements or any part or parts thereof, (ii) owned by any lessors of fixtures, equipment or personal property leased any such tenants, or (iii) owned by any other occupant of the Real Estate and Improvements which is not the Debtor.
A - 16
Attachment 8.4(c) (Cont.)
EXHIBIT B
to
Financing Statement
naming Supreme Realty, LLC, as Debtor
and State Farm Life Insurance Company, as Secured Party
LEGAL DESCRIPTION
PARCEL 1: Lots 3, 4, 5, 6, 7, 8 and the South 14.39 feet of Lots 2 and 9, all in Block 6, of B.I.P. SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 146, Page 22, of the Public Records of Dade County, Florida.
PARCEL 2: Together with those easements appurtenant to and for the benefit of the above-described Parcel 1 granted in and created in that certain Declaration of Covenants, Conditions and Restrictions For Beacon Industrial Park filed in Official Records Book 16525 at Pages 0623etseq. of the Public Records of Miami-Dade County, Florida, as amended by that certain First Amendment to Declaration of Covenants, Conditions and Restrictions For Beacon Industrial Park filed in Official Records Book 16829 at Pages 3806etseq. of the Public Records of Miami-Dade County, Florida.
A - 17
Attachment 8.4(d)
SCHEDULE A
| | |
Debtor | | Secured Party |
| |
| PERRY ELLIS INTERNATIONAL, INC. | | STATE STREET BANK AND TRUST COMPANY, AS COLLATERAL AGENT |
The financing statement covers all of the Debtor’s right, title and interest in and to each of the following, in each case as to each type of property described below, owned by the Debtor, wherever located and existing (collectively, the “Collateral”):
| | (a) | all trademarks, service marks, collective marks, trade dress, logos, slogans, designs, domain names, trade names, business names, corporate names and other source identifiers, whether or not registered, whether currently in use or not, including, without limitation, all common law rights and registrations and applications for registration thereof, and all other marks registered in or applied for in the U.S. Patent and Trademark Office or in any office or agency of any State or Territory of the United States or any foreign country (but excluding any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the “grant of a security interest therein would impair the validity and enforceability of such intent-to-use trademark applications under applicable law) and all rights therein provided by international treaties or conventions, all extensions and renewals of any of the foregoing, together in each case with the goodwill of the business connected therewith and symbolized thereby, and all rights corresponding thereto throughout the world and all other rights of any kind whatsoever of the Debtor accruing thereunder or pertaining thereto (the“Trademarks”); |
| | (b) | all agreements, permits, consents, orders and franchises, in each case relating to the Trademarks and all proceeds, income, royalties and other payments now or hereafter due and/or payable with respect thereto, subject, in each case, to the terms of such agreements, permits, authorizations and franchises; |
| | (c) | any and all claims for damages and injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to the Collateral with the right, but not the obligation, to sue for and collect, or otherwise recover, such damages; and |
| | (d) | all proceeds of the Collateral for, and supporting obligations relating to, any and all of the Collateral (including, without limitation, the proceeds, collateral and supporting obligations that constitute property of the types described in clause! (a) through (c) and to the extent not otherwise included, all (i) payments under insurance with respect to the Collateral (whether or not the Secured Party is the loss payee thereof), or any damages, indemnity, warranty or guaranty, payable by reason of loss or damage to or otherwise with respect to any of the foregoing Collateral and (ii) cash proceeds of the foregoing. |
A - 18
A - 19
A - 20
A - 21
SCHEDULE 8.6
to
INFORMATION CERTIFICATE
Pending Litigation
None
SCHEDULE 8.8
to
INFORMATION CERTIFICATE
Environmental Compliance
Each Company is in compliance with all environmental laws applicable to it.
A - 22
SCHEDULE 8.10
to
INFORMATION CERTIFICATE
Deposit Accounts; Investment Accounts
INFORMATION TO CERTIFICATE
DEPOSIT ACCOUNTS
| | | | | | | | |
Deposit Accounts: | | | | | | | | |
| | | |
Name of Company | | Name & Address of Bank | | Account No. | | | Purpose |
| | | |
| Perry Ellis International, Inc | | Bank of America | | | * | | | Collection Account/Concentratior |
| | | |
| BBI Retail LLC | | Bank of America | | | * | | | Collection Account |
| | | |
| Jantzen Apparel LLC | | Bank of America | | | * | | | Collection Account Subject to Loc |
| | | |
| Jantzen Apparel LLC | | Bank of America | | | * | | | Collection Account |
| | | |
| PEI Licensing, Inc. | | Bank of America | | | * | | | Collection Account |
| | | |
| Supreme International, LLC | | Bank of America | | | * | | | Collection Account Subject to Loc |
| | | |
| Perry Ellis Int’l Group Holdings | | Bank of America | | | * | | | Collection Account |
| | | |
| Perry Ellis Int’l Europe, Ltd | | Bank of America | | | * | | | Collection Account |
| | | |
| Perry Ellis Menswear, LLC | | Bank of America | | | * | | | Collection Account Subject to Loc |
| | | |
| Supreme International Inc. dba Tropical Sportswear | | Bank of America | | | * | | | Collection Account Subject to Loc |
| | | |
| Supreme International Inc. dba Tropical Sportswear/Savane | | Bank of America | | | * | | | Collection Account Subject to Loc |
| | | |
| Perry Ellis International, Inc | | Bank of America | | | * | | | Money Purchase Pension Plan |
| | | |
| Perry Ellis International Inc | | Bank of America | | | * | | | Employee Benefit Account (Flex: |
| | | |
| Perry Ellis International, Inc | | Bank of America | | | * | | | Employee Benefit Account (Trans |
| | | |
| I Retail Corp | | HSBC US | | | * | | | Collection Account (Store) |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 23
| | | | | | | | |
| Original Penguin | | | | | | | | |
| | | |
| Perry Ellis Menswear, LLC | | Bank of America | | | * | | | Depository Plus/ receive cash sw 4 store accounts) |
| | | |
| DISBURSEMENT ACCOUNTS | | | | | | | | |
| | | |
Disbursement Accounts: | | | | | | | |
| | | |
Name of Company | | Name & Address of Bank | | Account No. | | | Purpose |
| | | |
| Perry Ellis International, Inc | | Bank of America | | | * | | | Funding Account |
| | | |
| Perry Ellis International | | Bank of America | | | * | | | Primary Payables |
| | | |
| BBI Retail | | Bank of America | | | * | | | Payables |
| | | |
| BBI Retail | | Bank of America | | | * | | | Payroll |
| | | |
| Perry Ellis international | | Bank of America | | | * | | | Payroll |
| | | |
| PEI Licensing, Inc. | | Bank of America | | | * | | | Payables/Payroll |
| | | |
| Supreme International, LLC | | Bank of America | | | * | | | Payables/Payroll |
| | | |
| Supreme International LLC/dba Tropical Sportswear Payables | | Bank of America | | | | | | Payables |
| | | |
| Supreme International LLC/dba Tropical Sportswear Payables | | Bank of America | | | | | | Payroll |
| | | |
| Jantzen Apparel, LLC | | Bank of America | | | * | | | Payables/Payroll |
| | | |
| Jantzen, LLC | | Bank of America | | | * | | | Payables/payroll |
| | | |
| Perry Ellis Menswear, LLC | | Bank of America | | | * | | | Payables |
| | | |
| Perry Ellis Menswear, LLC | | Bank of America | | | * | | | Payroll |
| | | |
| Salant Holding, LLC | | Bank of America | | | * | | | Payroll |
| | | |
| Supreme Munsingwear Canada (US Dollars) | | HSBC Canada | | | * | | | Payables |
| | | |
| Supreme Munsingwear Canada (Canadian Dollars) | | HSBC Canada | | | * | | | Payables & Collections |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 24
| | | | | | |
| Perry Ellis International | | HSBC USA (L/C) | | * | | Payment of L/C’s Outstanding |
| | | |
| Perry Ellis International | | Commercebank (L/C) | | * | | Payment of L/C’s Outstanding |
| | | |
| Perry Ellis International | | IDB Bank of NY | | * | | Payment of L/C’s Outstanding |
| | | |
| Perry Ellis Europe | | Credit Lyonnais | | * | | Payable payments |
| | | |
| Perry Ellis menswear, LLC Petty Cash | | Bank of America | | * | | Petty Cash Account for Axis Di |
| | | | | | | | | | |
| | Farah Manufacturing Bank Details | | | | | | | | |
| | | |
| | | | | Account No | | | Balance | |
Business Permium | | Barclays Bank Business Centre Witham Branch PO Box 3692 Witham | | | * | | | | €262,190.03 | |
| | | |
Current Account | | Barclays Bank Business Centre Witham Branch PO Box 3692 Witham | | | * | | | | € 6.00 | |
| | | |
US Dollar Account | | Barclays Bank Business Centre Witham Branch PO Box 3692 Witham | | | * | | | | $265,520.45 | |
| | | |
Sales Ledger Recpt | | Barclays Bank Business Centre Witham Branch PO Box 3692 Witham | | | * | | | | € 13,355.66 | |
| | | |
Euro | | Barclays Bank Business Centre Witham Branch PO Box 3692 Witham | | | * | | | | € 49,480.64 | |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 25
| | | | | | | | | | |
Dublin Euro | | Irish Branch 47/48 St Stephens Green Dublin 2 Ireland | | | * | | | € | 94,107.93 | |
| | | |
Holland Euro | | Fortis Bank PO Box 941 1000 AX Amsterdam Netherlands | | | * | | | € | 23,173.36 | |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 26
Part 3 - Investment and Other Accounts
| | | | | | | | | | | | | | |
Name of Company | | Name and Address of Broker or Other Institution | | Account No. | | | Purpose | | Types of
Investments | | Balance as of
February 26, 2005 | |
Perry Ellis | | Bank of America | | | * | | | Investment | | Money
market and
fixed rate
term
investments | | $ | 0 | |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 27
| | | | |
| Foreign | | | | |
| | |
| Citibank | | * | | Birdhill - Hong Kong Checking |
| | |
Citibank Citibank Tower, 47th floor, | | * | | Manhattan Far East - Hong Kong |
Citibank Plaza 3 Garden Road, Central Hong Kong | | * | | Manhattan Far East - Hong Kong |
OPEN STORE BANK ACCTS
| | | | | | |
STORE# | | STORE LOCATION | | BANK NAME | | ACCT# |
| 1508 | | FRANKLIN MILLS, PA | | CITIZENS BANK | | * |
| | | | PO BOX 34789 | | |
| | | | PHILADEPHIA, PA 19101 | | |
| | | |
| 1509 | | WRENTHAM, MA | | WRENTHAM CO-OP BANK | | * |
| | | | 102 SOUTH STREET | | |
| | | | WRENTHAM, MA 02093 | | |
| | | |
| 1510 | | SAWGRASS MILLS, FL | | BANK OF AMERICA | | * |
| | | | SUNRISE, FL | | |
| | | | | | |
| | | |
| 1513 | | RIVERHEAD, NY | | SUFFOLK COUNTNY NATIONAL BANK | | * |
| | | | 1201 OSTRANDER AVENUE | | |
| | | | RIVERHEAD, NY 11901-9000 | | |
| | | |
| 1514 | | MYRTLE BEACH, SC | | BANK OF AMERICA | | * |
| | | |
| 1516 | | DAWSONVILLE, GA | | UNITED COMMUNITY BANK | | * |
| | | | PO BOX 159 | | |
| | | | DAWSONVILLE, GA 30534-0159 | | |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 28
| | | | | | |
| 1518 | | KATY, TX | | BANK OF AMERICA | | * |
| | | | ZBA | | |
| | | |
| 1519 | | JERSEY GARDENS, NJ | | FLEET BANK | | * |
| | | | 1201 CORBIN STREET | | |
| | | | ELIZABETH, NJ 07201 | | |
| | | |
| 1520 | | CONCORD, NC | | FIRST CITIZENS BANK | | * |
| | | | 18 LAKE CONCORD ROAD | | |
| | | | CONCORD, NC 28025 | | |
| | | |
| 1521 | | DESTIN, FL | | AMSOUTH BANK OF FLORIDA | | * |
| | | | 91 OLD HIGHWAY 98 | | |
| | | | DESTIN, FL 32541 | | |
| | | |
| 1522 | | NAPLES, FL | | BANK OF AMERICA | | * |
| | | | ZBA | | |
| | | |
| 1523 | | CAMARILLO, CA | | SANTA BARBARA BANK & TRUST | | * |
| | | | 2310 EAST PONDEROSA DRIVE | | |
| | | | CAMARILLO, CA 93010 | | |
| | | |
| 1524 | | ORLANDO, FL | | SUNTRUST BANK | | * |
| | | | PO BOX 628096 | | |
| | | | ORLANDO, FL 32897 | | |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 29
| | | | | | |
| 1525 | | ALPINE, CA | | BORREGO SPRINGS BANK | | * |
| | | | 5005 WILLOWS ROAD,SUITE F-102 | | |
| | | | ALPINE, CA 91901 | | |
| | | |
| 1526 | | ALLLEN, TX | | AMERICAN NATIONAL BANK OF TX | | * |
| | | | 720 GREENVILLE AVE | | |
| | | | ALLEN, TX 75002 | | |
| | | |
| 1528 | | POTOMAC MILLS, VA | | RIGGS BANK, N.A. | | * |
| | | | 2720 POTOMAC MILLS CIRCLE | | |
| | | | WOODBRIDGE, VIRGINIA 22192 | | |
| | | |
| 1529 | | NAPA, CA | | VINTAGE BANK | | * |
| | | | 3271 BROWN VALLEY ROAD | | |
| | | | PO BOX 2200 | | |
| | | | NAPA, CA 94558-0298 | | |
| | | |
| 1530 | | OPRY MILLS, TN | | BANK OF AMERICA | | * |
| | | | NASHVILLE, TN | | |
| | | |
| 1534 | | PRIMM, NV | | BANK OF AMERICA | | * |
| | | | CHARLOTTE, NC | | |
| | | |
| 1536 | | GILROY, CA | | BANK OF AMERICA | | * |
| | | | ZBA | | |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 30
| | | | | | |
| 1538 | | LAWRENCEVILLE, GA | | FIRST NATIONAL OF GWINNETT | | * |
| | | | 2734 MEADOW CHURCH ROAD | | |
| | | | AURORA, OH 44202 | | |
| | | |
| 1540 | | LAS VEGAS, NV 2 | | BANK OF AMERICA | | * |
| | | | ZBA | | |
| | | |
| 1541 | | AURORA, IL | | OLD SECOND NATIONAL BANK | | * |
| | | | 37 SOUTH RIVER STREET | | |
| | | | AURORA, IL 60506-4172 | | |
| | | |
| 1542 | | LAKEWOOD, CO | | 1ST BANK OF COLORADO | | * |
| | | | 10403 WEST COLFAX AVENUE | | |
| | | | LAKEWOOD, CO 80215 | | |
| | | |
| 1543 | | ORLANDO, FL | | BANK OF AMERICA | | * |
| | | | TAMPA, FLORIDA | | |
| | | |
| 1544 | | LAS VEGAS, NV | | BANK OF AMERICA | | * |
| | | |
| 3607 | | SAN MARCOS, TX | | FROST NATIONAL BANK | | * |
| | | | PO BOX 1600 | | |
| | | | SAN ANTONIO, TX 78296-1400 | | |
| | | |
| 3608 | | TANNERSVILLE, PA | | FIRST NATIONAL OF PALMERTON | | * |
| | | | PO BOX 152 | | |
| | | | TANNERSVILLE, PA 18372 | | |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 31
| | | | | | |
| 3610 | | CABAZON, CA | | WELLS FARGO BANK | | * |
| | | | PO BOX 6995 | | |
| | | | PORTLAND, OR 97228-6995 | | |
| | | |
| 3612 | | HARRIMAN, NY | | M & T BANK | | * |
| | | | 23 LAKE STREET | | |
| | | | MONROE, NY 10950 | | |
| | | |
| 3651 | | CLINTON, CT | | LIBERTY BANK | | * |
| | | | 8 EAST MAIN STREET | | |
| | | | CLINTON, CT 06413 | | |
| | | |
| 3656 | | MILPITAS, CA | | BANK OF AMERICA | | * |
| | | | MILPITIS, CA 95035 | | |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A - 32
SCHEDULE 8.11
to
INFORMATION CERTIFICATE
Intellectual Property
| I. | Company: Perry Ellis International, Inc. and Its Subsidiaries |
A. Trademarks
1.Owned
See Exhibit B hereto for the trademarks acquired in connection with the Tropical transaction.
2.Licensed
See Exhibit B hereto.
B.Patents
In connection with the Tropical acquisition, PEI is acquiring the following three patents:
| | | | |
Patent Number | | Date Issued | | Description |
| 5,013,378 | | 5/17/91 | | Pleated trouser crease-forming method and machine improvements therefore |
| | |
| D 361,454 | | 8/22/95 | | Display stand |
| | |
| D 364,762 | | 12/5/95 | | File Display |
C.Copyrights
The only patterns and designs that we immediately send to the U.S. Copyright Office for official copyright registrations are those designs/patterns that we purchase from design studios. We obtain copyright assignments from the studios, and then we forward the patterns/designs to the U.S. Copyright Office for registration because, in the event that someone accuses our company of infringement, it is important to make sure that we properly own the designs that we purchase. Many of these patterns/designs are not even used by us, and it is very difficult to provide a full list of all of our copyrights because each copyright application/registration has anywhere from 2-30 designs/patterns. When a pattern/design is created by one of our own designers, we automatically own a common law copyright in it. Due to the number of designs/patterns that are constantly being created, it is virtually impossible to send out applications to the Copyright Office. Therefore, we only officially copyright our own designs when a situation arises where a third-party is copying our designs. In that case, we file an application that requests special handling. A special handling allows us to obtain a rushed copyright registration due to a pending litigation.
A - 33
SCHEDULE 8.12
to
INFORMATION CERTIFICATE
Subsidiaries; Affiliates; Investments
B.Subsidiaries (More than 50% owned by Company indicated)
| | | | | | | | | | | | | | | | |
Company | | Subsidiary | | | Jurisdiction of
Incorporation | | | | | | Percentage
Owned | |
| | | | |
See Exhibit A hereto. | | | | | | | | | | | | | | | | |
C.Affiliates (Less than 50% Owned by Company)
| | | | | | | | | | | | | | | | |
Company | | Affiliate | | | Jurisdiction of
Incorporation | | | | | | Percentage
Owned | |
| | | | |
See Exhibit A hereto. | | | | | | | | | | | | | | | | |
D.Affiliates (Subject to common ownership with Company)
| | | | | | | | | | | | | | | | |
Company | | Affiliate | | | Jurisdiction of
Incorporation | | | Parent | | | Percentage
Owned | |
| | | | |
See Exhibit A hereto. | | | | | | | | | | | | | | | | |
E.Shareholders (If widely held, only holders with more than 10%)
| | | | | | | | | | | | | | | | |
Company | | Shareholders | | | Jurisdiction of
Incorporation* | | | | | | Percentage
Owned | |
| | | | |
See Exhibit A hereto. | | | | | | | | | | | | | | | | |
| * | If shareholders are individuals, indicate “N/A”. |
A - 34
SCHEDULE 8.13
to
INFORMATION CERTIFICATE
Labor Matters
On September 9, 2002, the National Labor Relations Board (hereinafter, “NLRB”) supervised an election to determine whether a labor organization, the United Needletrades, Industrial and Textile Employees (hereinafter, the “Union”) would be certified as the exclusive bargaining agent for certain employees working in the Company’s Miami distribution center. The election results were 49 votes in favor of the Union and 55 against. The Union filed administrative objections to the election and, on April 15, 2003, the NLRB issued a Decision and Direction of Second Election, directing its Miami Region 12 Office to conduct a second election. The Union subsequently filed administrative charges alleging unfair labor practices on May 1, 2003. A second election was held on May 30, 2003. The results of that election were 30 votes in favor of the Union and 50 votes against the Union. The results of that election were certified final by the NLRB in May 2004, and any pending administrative issues relating to the election were either resolved or dismissed by the NLRB.
Perry Ellis is subject to a collective bargaining agreement in place at Perry Ellis Menswear LLC’s Winnsboro, South Carolina distribution facility. That agreement expires August 31, 2005.
A - 35
SCHEDULE 8.15
to
INFORMATION CERTIFICATE
Material Contracts
The following are Perry Ellis’ material contracts.
| | 1. | Form of Indemnification Agreement |
| | 2. | 1993 Stock Option Plan, 2002 Stock Option Plan |
| | 4. | Amendment to Business Lease between George Feldenkreis and Perry Ellis International, Inc. and its Subsidiaries relating to office facilities |
| | 6. | Amended and Restated Employment Agreement between Perry Ellis International, Inc. and its Subsidiaries and George Feldenkreis |
| | 7. | Amended and Restated Employment Agreement between Perry Ellis International, Inc. and its Subsidiaries and Oscar Feldenkreis |
| | 8. | Purchase and Sale Agreement dated as of December 28, 1998 among Salant Corporation, Frost Bros. Enterprises, Inc., Maquiladora Sur, S.A. de C.V. and Perry Ellis International, Inc. (the “Salant Purchase Sale Agreement”) |
| | 9. | First Amendment to the Salant Purchase and Sale Agreement dated as of February 24, 1999 |
| | 10. | Stock Purchase Agreement dated as of January 28, 1999 by and among Perry Ellis International, Inc. and Christopher C. Angell, Barbara Gallagher and Morgan Guaranty Trust Company of New York, as Trustees of the PEI Trust created under Par. E. of Article 3 of the Agreement dated November 19, 1985, as amended January 27, 1986 (the “Perry Ellis Purchase and Sale Agreement”) |
| | 11. | First Amendment to the Perry Ellis Purchase and Sale Agreement dated as of March 31, 1999 |
| | 12. | Loan and Security Agreement with Congress Financial Corporation, as amended |
| | 14. | Subordinated Note Indenture |
| | 15. | Perry Ellis International, Inc. Equity Compensation Plan |
| | 16. | Asset Purchase Agreement dated as of March 15, 2002 by and among Perry Ellis International, Inc., Jantzen, Inc. and VF Canada, Inc. |
A - 36
| | 16. | Employment Agreement between Alberto de Cardenas and Perry Ellis International, Inc. |
| | 17. | Agreement and Plan of Merger, date February 3, 2003, by and among Perry Ellis, Connor Acquisition Corp. and Salant Corporation. |
| | 18. | Asset Purchase agreement between Perry Ellis International Inc. and Tropical Sportswear International Corp. dated December 16, 2004. |
| | 19. | UNITE Memorandum of Understanding dated November 15, 2002 and draft agreement with the United Needle Trades, Industrial, Textile Employees, AFL-CIO September 1, 2002 – August 31, 2005. |
Employment Agreement between George Pita and Perry Ellis International, Inc
A-37
Real Estate Leases
Retail Division Lease Renewal Schedule (Sorted by Store #)
| | | | | | | | | | |
| | | | | | | | | Current | | |
| | | | | |
Store
# | | Store
State | | Store City | | Date
Opened | | Expiration Date | | ADDRESS |
| | | | | |
| 508 | | PA | | Philadelphia | | Apr-97 | | EXPIRED 6/4/2004 extended 12-31-05 | | FRANKLIN MILLS PO BOX 277867 ATLANTA, GA 30384 |
| | | | | |
| 509 | | MA | | Wrentham | | Oct-98 | | Jan-09 | | CPG PARTNERS, LP PO BOX 827727 PHILADELPHIA, PA 19182 |
| | | | | |
| 510 | | FL | | Sunrise | | Apr-00 | | Apr-05 | | SUNRISE MILLS PARTNERSHIP, PO BOX 277861 ATLANTA, GA 30384 |
| | | | | |
| 511 | | FL | | Ellenton | | Nov-98 | | Closed | | GULF COAST FACTORY SHOPS DEPT 140, PO BOX 17543 BALTIMORE, MD 21297 |
| | | | | |
| 513 | | NY | | Riverhead | | Sep-99 | | Sep-09 | | TANGER PROPERTIES LTD, PO BOX 65805 RV2PR1, CHARLOTTE, NC 28265 |
| | | | | |
| 514 | | SC | | Myrtle Beach | | Jul-99 | | Dec-04 | | COROC/MYRTLE BEACH LLC C.O TANGER PROPERTIES DTD, 3200 NORTHLINE AVENUE #530, GREENSBORO, NC 27408 |
| | | | | |
| 516 | | GA | | Dawsonville | | Aug-99 | | Jan-07 | | CHELSEA GCA REALTY PARTNERS, TENANT ID: DAW-PERRY, PO BOX 827727 PHILADELPHIA, PA 19182 |
| | | | | |
| 518 | | TX | | Katy | | Nov-99 | | Oct-05 | | KATY MILLS MALL LTD, PO BOX 100554, ATLANTA, GA 30384 |
| | | | | |
| 519 | | NJ | | Elizabeth | | Oct-99 | | Oct-09 | | JG ELIZABETH, LLC C/O HUNTINGTON NATIONAL BANK C.O GLIMCHER PROPERTIES LP, 150 EAST GAY STREET, COLUMBUS, OH 43215 |
A-38
| | | | | | | | | | |
| 520 | | NC | | Concord | | Sep-99 | | Sep-05 | | CONCORD MILLS LIMITED PARTNERSHIP, PO BOX 100451, ATLANTA, GA 30384 |
| | | | | |
| 521 | | FL | | Destin | | Jul-99 | | Jun-08 | | SILVER SANDS JOINT VENTURE, PO BOX 16167 MOBILE, AL 36616-0167 |
| | | | | |
| 522 | | FL | | Estero | | Jan-00 | | Jan-10 | | MIROMAR DEVELOPMENT INC, P O BOX 414935, BOSTON, MA 02241 |
| | | | | |
| 523 | | CA | | Camarillo | | Apr-00 | | Jan-08 | | CPG PARTNERS, LP PO BOX 827727, TENANT ID: CAM-PERRY PHILADELPHIA, PA 19182 |
| | | | | |
| 524 | | FL | | Orlando | | May-00 | | Jan-06 | | SIMON/CHELSEA ORLANDO DEVELOPMENT TENANT ID: ORL-PERRY, PO BOX 827733, PHILADELPHIA, PA 19182 |
| | | | | |
| 525 | | CA | | Alpine | | Jul-00 | | Aug-05 | | VIEJAS SPRINGS VILLAGE CENTER, 5005 WILLOWS ROAD #213, ALPINE, CA 91901 |
| | | | | |
| 526 | | TX | | Allen | | Oct-00 | | Jan-08 | | CHELSEA GCA REALTY PARTNERS, TENANT ID: AL-PERRY, PO BOX 827776 PHILADELPHIA, PA 19182 |
| | | | | |
| 527 | | MD | | Hanover | | Nov-00 | | Closed | | ARUNDEL MILLS LTD, C/O THE MILLS CORP, PO BOX 406130, ATLANTA, GA 30384 |
| | | | | |
| 528 | | VA | | Prince Williams | | May-00 | | May-05 | | POTOMAC MILLS OPERATING, PO BOX 277866, ATLANTA, GA 30384 |
| | | | | |
| 529 | | CA | | Napa | | Jun-00 | | Jan-07 | | CHELSEA GCA REALTY PARTNERS, TENANT ID: NV-PERRY, PO BOX 827788 PHILADELPHIA, PA 19192 |
| | | | | |
| 530 | | TN | | Nashville | | May-00 | | Dec-05 | | OPRY MILLS OPERATING CO. LLC, PO BOX 402242, ATLANTA, GA 30384 |
| | | | | |
| 534 | | NV | | Primm | | Mar-01 | | Mar-06 | | FASHION OUTLETS OF LAS VEGAS LLC, PO BOX 530465, ATLANTA, GA 30353 |
A-39
| | | | | | | | | | |
| 535 | | AL | | Foley | | Aug-01 | | closed | | COROC/RIVIERA LLC, P O BOX 80395, BALTIMORE, MD 2180 |
| | | | | |
| 536 | | CA | | Gilroy | | Jul-01 | | Jul-06 | | F/C GILROY DEVELOPMENT LLC, TENANT ID: GIL-PERRYE P O BOX 414572, BOSTON, MA 02241 |
| | | | | |
| 538 | | GA | | Lawrenceville | | Nov-01 | | Dec-06 | | SUGARLOAF MILLS, LP, PO BOX 402854, ATLANTA, GA 30384 |
| | | | | |
| 540 | | NV | | Las Vegas | | Jul-03 | | Jul-08 | | SIMON/CHELSEA ORLANDO DEVELOPMENT, PO BOX 827724, PHILADELPHIA, PA 19182 |
| | | | | |
| 541 | | IL | | Aurora | | May-04 | | * | | CHELSE CHICAGO DEVELOPMENT, PO BOX 827724, PHILADELPHIA, PA 19182 |
| | | | | |
| 542 | | CO | | Lakewood | | Nov-02 | | Dec-06 | | COLORADO MILLS LTD PARTNERSHIP, P O BOX 403087, ATLANTA, GA 30384 |
| | | | | |
| 543 | | FL | | Orlando | | Jan-02 | | Dec-07 | | INTERNATIONAL STATION, LTD, P O BOX 3661, MEMPHIS, TN 38173 |
| | | | | |
| 544 | | NV | | Las Vegas | | Nov 01 | | Dec-07 | | CHELSEA LAS VEGAS HOLDINGS LLC, TENANT ID: LAV-PERRY, PO BOX 82795, PHILADELPHIA, PA 19182 |
| | | | | |
| 545 | | WA | | Seattle | | | | * | | SEATTLE PREMIUM OUTLETS, CPG PARTNERS L.P., 105 EISENHOWER PARKWAY, ROSELAND NEW JERSEY 07068 |
| | | | | |
| 547 | | NJ | | Tinton Falls | | | | * | | JERSEY SHORE PREMIUM OUTLETS, CPG PARTNERS L.P., 105 EISENHOWER PARKWAY, ROSELAND NEW JERSEY 07068 |
| | | | | |
| 607 | | TX | | San Marcos | | 1992 | | Aug-08 | | SAN MARCOS FACTORY SHOPS, DEPT 120, PO BOX 17543, BALTIMORE, MD 21297 |
| | | | | |
| 608 | | PA | | Tannersville | | 1994 | | Dec-06 | | CHLESEA POCONO FINANCE LLC, TNENAT ID: TAN-PERRY, PO BOX 827653, PHILADELPHIA, PA 19182 |
| * | Portions of this document omitted pursuant to an application for an order for confidential treatment pursuant to Rule 24b-2 under the Exchange Act. Confidential portions of this document have been filed separately with the Securities and Exchange Commission. |
A-40
| | | | | | | | | | |
| 610 | | CA | | Cabazon | | 1995 | | May-05 | | DESERT HILLS PREMIUM OUTLETS, CPG PARTNERS LT, DH-PERRY, PO BOX 827727, PHILADELPHIA, PA 19182 |
| | | | | |
| 612 | | NY | | Central Valley | | Apr-01 | | Apr-06 | | CPG PARTNERS LTD, TENANT ID: WC-PERRY1, P O BOX 827727, PHILADELPHIA, PA 19182 |
| | | | | |
| 651 | | CT | | Clinton | | Sep-96 | | Sep-06 | | CPG PARTNERS LTD, TENANT ID: CLT-PERRY1, P O BOX 827727, PHILADELPHIA, PA 19182 |
| | | | | |
| 656 | | CA | | Milpitas | | Mar-01 | | Mar-06 | | MILPITAS MILLS LP, P O BOX 409714, ATLANTA, GA 30384 |
| | | | | |
| 660 | | DE | | Rehoboth | | Jun-96 | | closed | | COROC/REHOBOTH I LLC, P O BOX 80395, BALTIMORE, MD 21280 |
A-41
Existing Indebtedness
| | | | | | | | | | | | |
Company | | Name/Address of Payee | | Principal
Balance as of
1/31/2005 | | | Nature of Debt | | Term | |
Perry Ellis International, Inc. | | Congress Financial Corp. | | $ | 10,727,000 | | | Revolving Credit Facility | | | 2007 | |
| | | | |
Perry Ellis International, Inc. | | US Bank Corp. (formerly State Street) | | $ | 150,000,000 | | | 8 7/8% Senior Subordinated Notes | | | 2013 | |
| | | | |
Perry Ellis International, Inc. | | US Bank Corp. (formerly State Street) | | $ | 61,282,101 | | | 9 1/2% Senior Secured Notes | | | 2009 | |
| | | | |
Perry Ellis International, Inc. Supreme International, Inc. Jantzen, Inc. | | IDB Bank | | $ | 5,670,498 | | | Letter of Credit Facility for Purchase of Inventory | | | 2005 | |
| | | | |
Perry Ellis International, Inc. Supreme International, Inc. Jantzen, Inc. | | HSBC Bank USA | | $ | 36,565,613 | | | Letter of Credit Facility for Purchase of Inventory | | | (1) | |
| | | | |
Perry Ellis International, Inc. Supreme International, Inc. Jantzen, Inc. | | Commercebank, N.A. | | $ | 20,171,614 | | | Letter of Credit Facility for Purchase of Inventory | | | 2005 | |
A-42
| | | | | | | | | | | | |
Supreme Realty, LLC | | State Farm Life Insurance Company | | $ | 11,600,000 | | | Financing for Purchase of Real Property | | | 2009 | |
| | | | |
Perry Ellis International, Inc. | | Winthrop Resources Corporation | | $
| 32,110
per month |
| | Lease of Equipment | | | 2005 | |
A-43
| | | | | | | | | | | | | | |
Company | | Primary Obligor | | Name/Address of Payee | | Principal
Balance as
of
04/30/03 | | | Nature of Debt | | Term | |
| | | | | |
Supreme International, LLC. PEI Licensing, LLC Jantzen, LLC | | Perry Ellis International, Inc. | | | | $ | 150,000,000 | | | 8 7/8% Senior Subordinated Notes | | | 2013 | |
BBI Retail, L.L.C. Supreme Real Estate I, LLC Supreme Real Estate II, LLC Supreme Realty, LLC Supreme Munsingwear Canada, Inc. | | Perry Ellis International, Inc. | | | | $ | 61,282,101 | | | 9 1/2% Senior Secured Notes | | | 2009 | |
Perry Ellis International, Inc. | | Supreme Realty, LLC | | State Farm Life Insurance Company, One State Farm Plaza, E-3, Bloomington, IL 61710 | | $ | 11,600,000 | | | Financing for Purchase of Real Property | | | 2009 | |
A-44
SCHEDULE 9.10
to
INFORMATION CERTIFICATE
Loans and Advances
| | | | |
Company | | Name/Address of Debtor | | Outstanding Balance
Of Loan as of 01/31/2005 |
Supreme International, LLC | | Perry Ellis Europe | | $ |
| | BBI Retail, L.L.C. | | $ |
| | Jantzen, Inc. | | $ |
| | |
Jantzen, LLC | | Supreme Munsingwear Canada Inc. | | $ 0 |
| | |
Supreme Munsignwear Canada Inc. | | Supreme International, Inc. | | $ 0 |
See also Schedule 9.9 hereto.
A-45
EXHIBIT A
EXHIBIT A
Full and exact name of each company as set forth in its organizational documents; type of registered organization; date organized; jurisdiction of organization; standing in jurisdiction of organization; identification number in jurisdiction of organization; Federal Employer Identification Number; jurisdictions in which qualified and authorized to do transact business; standing in such jurisdictions; name changes; officers; board of directors; managers (in the case of limited liability companies); Subsidiaries (more than 50% owned); Affiliates (less than 50% owned); Affiliates (subject to common ownership); and Shareholders of each company are as follows:
PARENT (also an EXISTING GUARANTOR)
Perry Ellis International, Inc., a corporation, organized on April 5, 1967, under the laws of the State of Florida, and is in good standing under the laws of Florida. Florida organizational identification number is: 315500. The Federal Employer Identification Number is: 591162998. Qualified and authorized to transact business in Florida, and is in good standing in Florida. Changed name from Supreme International Corporation in June 1999.
Officers: George Feldenkreis; Chief Executive Officer and Chairman of the Board; Oscar Feldenkreis, President and Chief Operating Officer; George Pita, Chief Financial Officer; Fanny Hanono, Secretary; Albert de Cardenas, Senior Vice President and General Counsel; Rosemary B. Trudeau, Vice President – Finance; and Geri Mankoff, Assistant Secretary.
Directors: George Feldenkreis; Oscar Feldenkreis; Marc Balmuth; Ronald L. Buch; Salomon Hanono; Joseph P. Lacher; Gary Dix; and Leonard Miller.
Subsidiaries: Supreme International, LLC; Jantzen, LLC; PEI Licensing, Inc.; Supreme Munsingwear Canada, Inc.; Perry Ellis Real Estate, LLC; Perry Ellis Shared Services Corporation; Tampa DC, LLC; Perry Ellis Menswear, LLC; Salant Holding LLC; Winnsboro DC, LLC; Perry Ellis International (HK) Limited; Birdhill Limited; Perry Ellis International Group Holdings, Limited; Supreme International Co. Canada Limited (51%); Supreme International Corporation de Mexico, S.A. de C.V.; Perry Ellis International Europe SARL.
Affiliates: none
Shareholders: widely held; shareholders with more than 10% ownership are George Feldenkreis, Oscar Feldenkreis, FMR Corporation.
BORROWERS
Supreme International LLC (f/k/a Supreme International, Inc.), a corporation, organized on April 15, 2002, under the laws of the State of Delaware; qualified to do business in Delaware, Florida, New York, South Carolina, and Texas; in good standing under the laws of such States; converted to a Delaware limited liability company on January 31, 2005; in the process of applying for authority to do business in Arkansas, Florida, New York, South Carolina, and Texas. Organizational identification numbers for Delaware, Florida and South Carolina are 3514453, F02000004856 and N/A, respectively. The Federal Employer Identification Number is: 42-1534564. Changed name from Supreme International, Inc. on January 31, 2005.
A-46
Managers: Perry Ellis International, Inc.
Subsidiaries: Supreme Real Estate I, LLC; Supreme Real Estate II LLC
Affiliates: none
Members: Perry Ellis International, Inc.
Jantzen, LLC. (f/k/a Jantzen, Inc.), a corporation, organized on April 15, 2002, under the laws of the State of Delaware; qualified to do business in Oregon, South Carolina, Florida and New York; in good standing under the laws of such States; converted to a Delaware limited liability company on January 31, 2005; in the process of applying for authority to do business in Florida, Oregon and South Carolina. Organizational identification numbers for Florida, Oregon, and South Carolina are F02000004022, 3514448, , respectively. The Federal Employer Identification Number is: 42-1534560. Changed name from Jantzen, Inc. on January 31, 2005.
Managers: Perry Ellis International, Inc.
Subsidiaries: none
Affiliates: none
Members: Perry Ellis International, Inc.
Perry Ellis Menswear, LLC (f/k/a Perry Ellis Menswear, Inc.), a corporation, organized on April 9, 1987, under the laws of the State of Delaware; qualified to do business in Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Mexico, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Tennessee, South Carolina, Vermont, Texas, Washington, Virginia, West Virginia, Pennsylvania, and Wisconsin; in good standing under the laws of such States; converted to a Delaware limited liability company on January 31, 2005; and is in the process of applying for authority to do business in Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Mexico, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Tennessee, South Carolina, Vermont, Texas, Washington, Virginia, West Virginia, Pennsylvania, and Wisconsin. Delaware organizational identification number is: . The Federal Employer Identification Number is: 13-3402444. Changed name from Perry Ellis Menswear, Inc. on January 31, 2005; changed name from Salant Corporation on July 1, 2004.
Managers: Perry Ellis International, Inc.
A-47
Subsidiaries: Frost Brothers Enterprises, Inc.; Birdhill, Limited; Maquiladora Sur; Carrizo Manufacturing Co., Inc., So. De C.V. Ave.
Affiliates: none
Members: Perry Ellis International, Inc.
Salant Holding, LLC (f/k/a Salant Holding Corporation), a corporation, organized on March 22, 2000, under the laws of the State of Delaware; qualified to do business in California, Delaware, Florida, and New York; in good standing under the laws of such States; converted to a Delaware limited liability company on January 31, 2005; and is in the process of applying for authority to do business in California, Delaware, Florida, and New York. Organizational identification numbers for California, Delaware, Florida, and New York are: , , , and , respectively. The Federal Employer Identification Number is: 13-4116384. Changed name from Salant Holding Corporation on January 31, 2005.
Managers: Perry Ellis International, Inc.
Subsidiaries: none
Affiliates: none
Members: Perry Ellis International, Inc.
EXISTING GUARANTORS
PEI Licensing, Inc., a corporation, organized on April 15, 2002, under the laws of the State of Delaware; qualified to do business in Florida and New York; in good standing under the laws of such States. Delaware, Florida and New York organizational identification numbers are 3514450, F02000004019 and N/A, respectively. The Federal Employer Identification Number is: 42-1534568.
Officers: Rachel Barnett, President; Rosemary B. Trudeau, Treasurer and Vice President, Finance; and Geri Lynn Mankoff, Secretary.
Directors: George Feldenkreis and George Pita.
Subsidiaries: Jantzen Apparel, LLC
Affiliates: none
Shareholders: Perry Ellis International, Inc.
A-48
Jantzen Apparel, LLC (f/k/a Jantzen Apparel Corporation)., a corporation, organized on June 15, 1993, under the laws of the State of Delaware; qualified to do business in New York and Oregon; in good standing under the laws of such States; converted to a Delaware limited liability company on January 31, 2005; and is in the process of applying for authority to do business in New York and Oregon. Delaware, New York and Oregon organizational identification numbers are 2340213, N/A and 097686-98, respectively. The Federal Employer Identification Number is: 51-0348614. Changed name from Jantzen Apparel, Inc. on January 31, 2005.
Managers: PEI Licensing, Inc.
Subsidiaries: none
Affiliates: none
Members: PEI Licensing, Inc.
Supreme Munsingwear Canada Inc., a corporation organized under the laws of Canada, organized on May 24, 1996, and is in good standing under the laws of such country. Canadian organizational identification number is: 326274-0. The Federal Employer Identification Number is: N/A.
Officers: Leonard Black, President; George Feldenkreis, Vice President; Oscar Feldenkreis, Vice President; Fanny Hanono, Vice President; Geri Lynn Mankoff, Vice President; and Rosemary Trudeau, Treasurer and Secretary.
Directors: Leonard Black
Subsidiaries: none
Affiliates: none
Shareholders: Perry Ellis International, Inc.
Supreme Realty, LLC, a limited liability company, organized on July 1, 2002, under the laws of the state of Florida, and is in good standing under the laws of Florida. Florida organizational identification number is: L02000016462. The Federal Employer Identification Number is: 90-0087796.
Managers: Rosemary Trudeau
Subsidiaries: none
Affiliates: none
Members: Supreme Real Estate I, LLC (50%) and Supreme Real Estate II, LLC (50%)
A-49
Supreme Real Estate I, LLC, a limited liability company, organized on June 19, 2002, under the laws of the State of Florida, and is in good standing under the laws of Florida. Florida organizational identification number is: L02000015313. The Federal Employer Identification Number is: N/A.
Managers: Rosemary Trudeau
Subsidiaries: Supreme Realty, LLC (50% ownership interest)
Affiliates: none
Members: Supreme International, Inc.
Supreme Real Estate II, LLC, a limited liability company, organized on June 19, 2002, under the laws of the State of Florida, and is in good standing under the laws of Florida. Florida organizational identification number is: L02000015314. The Federal Employer Identification Number is: N/A.
Managers: Rosemary Trudeau
Subsidiaries: Supreme Realty, LLC (50% ownership interest)
Affiliates: none
Members: Supreme International, Inc.
Perry Ellis Real Estate, LLC (f/k/a Perry Ellis Real Estate Corporation), a corporation, organized on May 9, 2002, under the laws of the State of Delaware; qualified to do business in South Carolina; in good standing under the laws of such State; converted to a Delaware limited liability company on January 31, 2005; in the process of applying for authority to do business in South Carolina. Delaware and South Carolina organizational identification numbers are 3523594 and , respectively. The Federal Employer Identification Number is: 74-3043466. Changed name from Perry Ellis Real Estate Corporation on January 31, 2005.
Managers: Perry Ellis International, Inc.
Subsidiaries: none
Affiliates: none
Members: Perry Ellis International, Inc.
A-50
NEW GUARANTORS
Perry Ellis Shared Services Corporation, a corporation, organized on December 22, 2004 under the laws of the state of Delaware; and in the process of applying for authority to do business in Florida, New Jersey, New York, Oregon and South Carolina. The Federal Employer Identification Number is: 20-2085469.
Officers: George Feldenkreis, President; Rosemary B. Trudeau, Treasurer and Secretary; and Luis Paez, Vice President
Directors: George Feldenkreis.
Subsidiaries: none
Affiliates: none
Shareholders: Perry Ellis International, Inc.
Perry Ellis International Group Holdings Limited, a company limited by shares, organized on March 15, 2002 under the laws of Ireland, and is in good standing under the laws of Ireland. The Federal Employer Identification Number is: N/A.
Officers: Rosemary Trudeau, Secretary
Directors: Keiron Hayes, Rosemary Trudeau, Geri Mankoff, and David Correa
Subsidiaries: none
Affiliates: none
Shareholder: Perry Ellis International, Inc.
Tampa DC, LLC, a limited liability company to be organized in February, 2005, under the laws of the State of Delaware, and will apply for authority to do business in Florida. The Federal Employer Identification Number is: N/A.
Managers: Perry Ellis International, Inc.
Subsidiaries: none
Affiliates: none
Members: Perry Ellis International, Inc.
A-51
Winnsboro DC, LLC, a limited liability company, organized January, 2005, under the laws of the State of Delaware; in the process of applying for authority to do business in South Carolina. The Federal Employer Identification Number is: N/A.
Managers: Perry Ellis International, Inc.
Subsidiaries: none
Affiliates: none
Members: Perry Ellis International, Inc.
OTHER COMPANIES (NON-BORROWERS AND NON-GUARANTORS)
Perry Ellis International (HK) Limited, a limited liability company, organized on July 13, 1979, under the laws of Hong Kong; in good standing under the laws of Hong Kong. The Federal Employer Identification Number is: N/A. Changed name from Salant Far East Limited on December 15, 2003.
Officers: George Feldenkreis, Oscar Feldenkreis, and Fanny Hanono.
Directors: Christin Suk Wah Cheung, George Feldenkreis, Oscar Feldenkreis, Fanny Hanono, Rosemary Trudeau, and Ping Shan Yim.
Subsidiaries: none
Affiliates: none
Shareholders: Perry Ellis International, Inc.
Perry Ellis International Europe Limited, a company limited by shares, organized on March 15, 2002 under the laws of Ireland; in good standing under the laws of Ireland. The Federal Employer Identification Number is: N/A.
Officers: Rosemary Trudeau, Secretary
Directors: Keiron Hayes, Rosemary Trudeau, Geri Mankoff, and David Correa
Subsidiaries: none
Affiliates: none
Shareholders: Perry Ellis International Group Holdings Limited.
A-52
Supreme International Co. Canada Limited, a corporation organized under the laws of Canada. The Federal Employer Identification Number is: N/A.
Officers: Jeff Otis
Directors: George Feldenkreis; and Jeff Otis
Subsidiaries: none
Affiliates: none
Shareholder: Perry Ellis International, Inc. 51% and Grand National Apparel 49%.
Grand Team Holdings Limited, a limited liability company, organized on January 5, 2005, under the laws of Hong Kong. The Federal Employer Identification Number is: N/A.
Officers: ????
Directors: George Feldenkreis, Fanny Hanono, and Bradley Arkin
Subsidiaries: none
Affiliates: none
Shareholder: Perry Ellis International International (HK) Limited
INACTIVE COMPANIES
Birdhill, Limited, a limited liability company, organized on October 8, 1982, under the laws of Hong Kong, and is in good standing under the laws of Hong Kong. The Federal Employer Identification Number is: N/A.
Officers: George Feldenkreis, Oscar Feldenkreis, and Fanny Hanono.
Directors: Christin Suk Wah Cheung, George Feldenkreis; Oscar Feldenkreis, Fanny Hanono, Rosemary Trudeau, and Ping Shan Yim.
Subsidiaries: none
Affiliates: none
Shareholders: Perry Ellis Menswear, LLC
A-53
Supreme International Corporation de Mexico, S.A. de C.V., a corporation, organized on July 8, 1997, under the laws of Mexico, and is in good standing under the laws of Mexico. Mexican organizational identification number is: N/A. The Federal Employer Identification Number is: N/A.
Officers: Rosemary Trudeau, President; Geri Mankoff, Treasurer; and Joseph Roisman, Secretary.
Directors: George Feldenkreis; and Rosemary Trudeau
Subsidiaries: none
Affiliates: none
Shareholders: Perry Ellis International, Inc.
Perry Ellis International Europe SARL, a company organized on , 2001 under the laws of France. The Federal Employer Identification Number is: N/A.
Officers: ????
Directors: ????
Subsidiaries: none
Affiliates: none
Shareholders: Perry Ellis International, Inc.
A-54
Exhibit B
Additional Trademarks acquired in connection with the Tropical transaction
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
“Stallion” design | | 1,233,672
SN 73/350,088 | | USA |
“Pocket Design only” (Long Horn & Loop Design) | | 1,556,896 | | USA |
180 Degree | | 837101 | | Australia |
180 degree | | 367/2000 | | Fiji |
180 Degree | | 609183 | | New Zealand |
Active 1 | | 1,117,335 | | USA |
AK American Khaki | | REG# 628,583
AP# 367903 | | Mexico |
AK American Khaki | | REG# 2,802,613
SN 75/615,925 | | USA |
American Weekend | | 2,798,805 REG
SN 76/401,346 | | USA |
Andrea York | | REG# 2,883,021
SN# 78/172441 | | USA |
Authentic Chino Casuals | | 219/2000 | | Fiji |
[ILLEGIBLE]Your Best | | 78/304306 | | USA |
Authentic Chino Casuals | | 2764305 Reg -
Principle 2026209 Reg.
New S/N 78/161575 | | USA |
Authentic Khaki Co | | SN 76/459507
2,758,636 REG | | USA |
Authentic Khaki Outdoor | | 2,376,780
SN 75/599,991 | | USA |
Authentic Khaki Stretch | | 2,485,519
75/390,569 | | USA |
B2B | | 840989 | | Australia |
B2B | | | | Fiji |
B2B | | 602616 | | New Zealand |
B2B | | 2,635,897 Reg
SN 75/736145 | | USA |
Banana Joe | | 842211 | | Australia |
Banana Joe | | 220/2000 | | Fiji |
Banana Joe | | 609354 | | New Zealand |
Banana Joe | | Reg. #4228465 Ap
#174123/97 | | Japan |
Banana Joe | | 75/289,595 | | USA |
Banana Joe | | Reg #4197988
S/N174122/97 | | Japan |
Banana Joe | | Reg #4398171
AP #174121/97 | | Japan |
A-55
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Banana Joe & SloMo | | 75/252,103 | | USA |
Bay to Bay | | 842,207 | | Australia |
Bay to Bay | | 221/2000 | | Fiji |
Bay to Bay | | 1,648,201 | | USA |
Bay to Bay | | 76/139,589 SN
2,503,905 | | USA |
Bay to Bay | | 609351 | | New Zealand |
Bay to Bay | | 75/264,823 SN
2,363,498 | | USA |
Bay to Bay | | REG# 485172 | | MEXICO |
Bay to Bay Crew | | 1,923,786 | | USA |
Bay to Bay Golf | | 75/744,234
2,590,240 | | USA |
Baysport | | 1,720,393 | | USA |
Beach Cords | | 78/371369 | | USA |
Because It’s Your Time | | 78/371329 | | USA |
Big Horn | | 1,959,169 | | USA |
Billy Boy | | 2,043,883 | | USA |
Blue Mist | | 75/644,822
2,523,091 | | USA |
Boston Bay | | 1,758,436 | | USA |
Brand X | | 734,210
SN 72/108,979 | | USA |
[ILLEGIBLE]ak Rank. In Style. | | 78/371357 | | USA |
C2C | | SN 78/345,399 | | USA |
Cactus Jack | | 2,384,676
SN 75/545,794 | | USA |
Carwood | | 429,337
SN 71/500,856 | | USA |
Charles Chastain | | 1,205,556 | | USA |
Concept to Consumer | | SN 78/345,418 | | USA |
Cool Hand | | 2,316,990
SN 75/303,50 | | USA |
Cool Play | | SN 76/447289
REG 2,781,510 | | USA |
Cottonwood Traders | | 1,715,925 | | USA |
Deep Dye | | SN 78243978 | | USA |
Design of a Seed Packet Attached to back pocket | | 1,959,592 | | USA |
E Joven (by Farah) | | TMA370611
AP#613917 | | Canada |
Dress Blues | | 78/304280 | | USA |
E-Core | | 2,472,104
75/656,745 | | USA |
Executive Cargo | | 2,789,630 REG
SN 76/426,281 | | USA |
Extreme Risk | | 2,063,928 | | USA |
Extreme Risk | | 2,324,759
SN 75/285,347 | | USA |
A-56
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Bay to Bay | | 2343822 REG | | United Kingdom |
F | | 1274311 | | United Kingdom |
F | | B1070247 | | United Kingdom |
F (Script “F” on Gold Tab) | | 890,940 | | USA |
F in circle | | 342162 AP#38053 | | Benelux |
F in Circle | | AP# 08809
REG# 8201 | | Brunei |
F in circle | | 19406 | | Fiji |
F in circle | | 1373724 REG#
817591 Orig # | | France |
F in circle | | 965014 AP#F27148 | | Germany |
F in circle | | 237518 | | Indonesia |
F in circle | | REG# 099676 | | Ireland |
F in circle | | 118342 | | New Zealand |
F in circle | | AP# 19762870
REG# 100181 | | Norway |
F in circle | | T77/71164Z | | Singapore |
F in circle | | REG# P288.007 | | Switzerland |
F in circle | | 302014 | | Australia |
F in circle | | AP# M/74825
REG# M/74825 | | Malaysia |
F in circle with Farah | | 342163 AP#38054 | | Benelux |
F in circle with Farah | | AP# 08808
REG# 8200 | | Brunei |
F in circle with Farah | | 30502 renew#
17242 Reg. | | Fiji |
F in circle with Farah | | 1373723 REG#
817590 Ori # | | France |
F in circle with Farah | | AP# M/74826
REG# M/74826 | | Malaysia |
F in circle with Farah | | 118343 | | New Zealand |
F in circle with Farah | | 45731 | | Philippines |
F in circle with Farah | | 77/71165H | | Singapore |
F (tab located in the seam by the pocket) | | 886,375 | | USA |
Faraflex | | 350469 | | Switzerland |
Farah | | REG# 48868 | | Algeria |
Farah | | AP# 2478365 | | Argentina |
Farah | | AP# 1816458
REG# 1490171
Original #1032047 | | Argentina |
Farah | | 227408 | | Australia |
Farah | | 300819 | | Australia |
Farah | | AP# AM 9-70
REG# 69432 | | Austria |
A-57
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Farah | | 7508 | | Bahamas Islands |
Farah | | 11663 | | Bangladesh |
Farah | | 81/1284 | | Barbados |
Farah | | 375131 AP#45847 | | Benelux |
Farah | | REG# 47725A
32386-A | | Bolivia |
Farah | | | | Brazil |
Farah | | REG# 812729943 | | Brazil |
Farah | | AP# 08807
REG# 8199 | | Brunei |
Farah | | REG# 10779 | | Bulgaria |
Farah | | 1212/BUR | | Burundi |
Farah | | TMA335442
AP#557161 | | Canada |
Farah | | 278691 Renewal
#189573 | | Chile |
Farah | | #416656 AP#249475 | | Chile |
Farah | | REG# 209910 | | China |
Farah | | AP# 247013
REG# 122578 | | Columbia |
Farah | | 66953 | | Costa Rica |
Farah | | 16195 | | Cyprus |
Farah | | REG# 163218 | | Czech Republic |
Farah | | AP# 1980 03226
REG# 1981 01211 | | Denmark |
Farah | | REG# 21799 | | Dominican Republic |
Farah | | REG# 109-74
2092-93 Renew # | | Ecuador |
Farah | | REG# 199 | | El Salvador |
Farah | | 10593 Reg.
21340 Renewal # | | Fiji |
Farah | | AP#T197000569
REG# 59790 | | Finland |
Farah | | 13087492 | | France |
Farah | | 869369 AP#F20555 | | Germany |
Farah | | 1070177 AP#F32514 | | Germany |
Farah | | REG# 43442 | | Greece |
Farah | | 27985 | | Guatemala |
Farah | | 347/51 | | Haiti |
Farah | | REG# 20500 | | Honduras |
Farah | | AP# 1511/1975
REG# B569/1976 | | Hong Kong |
Farah | | 119076 | | Hungary |
Farah | | 598666 | | India |
Farah | | 287771 | | Indonesia |
Farah | | REG# 083332 | | Ireland |
Farah | | 39776 | | Israel |
A-58
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Farah | | REG# 560993 Renewal #872178 | | Italy |
Farah | | 15700 | | Jamaica |
Farah | | 1350237 | | Japan |
Farah | | REG # 13289 | | Jordan |
Farah | | REG# 21499 | | Kenya |
Farah | | 4919 | | Kuwait |
Farah | | 88,625 Reg. AP# 28024 | | Lebanon |
Farah | | SAR/17000 | | Malaysia |
Farah | | REG# A/18 139 | | Mauritius |
Farah | | 496,789 AP #24978 | | Mexico |
Farah | | REG# 235304 | | Mexico |
Farah | | 7671029 | | Monaco |
Farah | | 296 | | Mongolia |
Farah | | 25545 | | Morocco |
Farah | | 9508 | | Netherlands Antilles |
Farah | | B95828 | | New Zealand |
Farah | | REG# 235 RPI | | Nicaragua |
Farah | | 25248 | | Nigeria |
Farah | | AP# 19802140 REG# 108732 | | Norway |
Farah | | AP# 22678 | | Oman |
Farah | | REG# 61164 | | Pakistan |
Farah | | REG# 18906 | | Panama |
Farah | | AP# B263R REG# FT4028 | | Papua New Guinea |
Farah | | REG# 31103 | | Peru |
Farah | | AP. #93248 REG# 66892 | | Philippines |
Farah | | REG# 53505 | | Poland |
Farah | | REG# 161168 | | Portugal |
Farah | | 3729 | | Qatar |
Farah | | NP/332/RDC/2000 | | Republic of Congo |
Farah | | 4520/74 | | Republic of Congo |
Farah | | REG# 9152 AP# CMS263536 | | Romania |
Farah | | 58490 | | Russian Federation |
Farah | | 1154/brk | | Rwanda |
Farah | | AP# 14577 | | Sabah |
Farah | | AP# 17000 | | Sarawak |
Farah | | REG# 44/4 | | Saudi Arabia |
Farah | | 9910 | | Sierra Leone |
Farah | | T80/03368A | | Singapore |
A-59
| | | | |
Name | | Serial # or Registration # | | Country Filed |
Farah | | REG# 163281 | | Slovak Republic |
Farah | | B70/5827 | | South Africa |
Farah | | REG# 84241 AP# 11019-2002- Renewal | | South Korea |
Farah | | REG# 413164 | | Spain |
Farah | | REG# 15025 | | Sudan |
Farah | | AP#80-03794 REG# 175695 | | Sweden |
Farah | | 370.109 | | Switzerland |
Farah | | Renew# 10658 (1990) Renew# 23218 (2002) REG #24058 | | Syria |
Farah | | REG# 044661 | | Taiwan |
Farah | | AP# 412329 REG# KOR 141571 (class38#)49739 | | Thailand |
Farah | | 90.0112 | | Tunisia |
Farah | | REG# 75480 | | Turkey |
Farah | | REG# 13765 | | Uganda |
Farah | | REG# 3588 | | United Arab Emirates |
Farah | | B1215767 | | United Kingdom |
Farah | | 1070248 | | United Kingdom |
Farah | | REG# 279912 | | Uruguay |
Farah | | 558,581 | | USA |
Farah | | 1,330,960 | | USA |
Farah | | 1,009,976 | | USA |
Farah | | 706/74 | | Zimbabwe |
Farah (in Arabic) | | 50466 | | Egypt |
Farah (in Cyrillic) | | 58490 | | Russian Federation |
Farah Clothing Co. | | TMA366944 AP#613918 | | Canada |
Farah Clothing Co. | | 1,416,008 | | USA |
Farah F in a Circle | | 2,485,875 SN 75/737,904 | | USA |
Farah in Cyrillic | | REG# 10780 | | Bulgaria |
Farah in Katakana | | 1695761 | | Japan |
Farah Liberty State | | 2,233,066 | | United Kingdom |
Farah of Texas | | TMA171755 AP#323565 | | Canada |
Farah of Texas | | 627,029 | | USA |
Farah Original Khaki Company | | 842,209 | | Australia |
A-60
| | | | |
Name | | Serial # or Registration # | | Country Filed |
Farah Original Khaki Company | | 222/2000 | | Fiji |
Farah Original Khaki Company | | 609353 | | New Zealand |
Farah The Preference Slack | | T75/65945D | | Singapore |
Farah the Preference Slack | | 924,305 | | USA |
Farapress | | 350470 | | Switzerland |
Feather River Company | | 2,317,025 SN75/328,621 | | USA |
Ferrante by Farah | | AP# 012726 | | Ireland |
Ferrante By Farah | | 2279081 | | United Kingdom |
Ferrante Farah | | 1584372 | | United Kingdom |
Ferrante Farah | | AP# 49583 REG# 164199 | | Ireland |
Flexi by Farah | | 2268962 | | United Kingdom |
Flyers | | | | Mexico |
Flyers | | Reg# 2878092 SN 75/561,200 | | USA |
Flying Aces | | 2,273,013 SN75/390,404 | | USA |
Flywater | | 2,383,847 SN75/487,862 | | USA |
For Your Next Impossible Mission | | SN 78/410,327 | | USA |
For Your Next Possible Mission | | SN 78/410,319 | | USA |
Form Flex | | 78/281,667 | | USA |
Four Leaf Design (Savane Women’s) | | 2,448,358 SN 75/737,909 | | USA |
Frederick & Stone | | TMA404939 AP#685294 | | Canada |
Freedom | | 956,756 | | Australia |
Freedom Flex | | 78/241,443 | | USA |
Fresh Paint | | 2,217,895 App. 75/306,237 | | USA |
George W. | | 1,650,829 | | European Community |
Golf Club International | | 1,961,077 | | USA |
Great Basin | | 1,990,201 | | USA |
Grey Wolf | | 2,480,639 75/751134 | | USA |
Horse Creek | | 2,430,347 SN75/620,583 | | USA |
I’m Washable Wool | | 1,993,812 | | USA |
Internet Sportswear | | 2,285,995 SN75/263,192 | | USA |
Jimmy Boy | | 2,039,170 | | USA |
Johnny Boy | | 2,040,777 | | USA |
Johnny Boy | | 2,437,530 75/655,047 | | USA |
A-61
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Khaki Exchange | | 2,178,085 | | European Community |
Khaki Exchange | | App. # 2267319 | | United Kingdom |
Khaki Exchange by Farah | | 2,177,244 | | European Community |
Khaki Exchange by Farah | | 2,267,295 | | United Kingdom |
Khaki Exchange by Savane | | 2,177,095 | | European Community |
Khaki Exchange by Savane | | 2,267,243 | | United Kingdom |
Little Big Horn | | 1,955,267 | | USA |
Mac Dee | | 736,097
SN 72/129302 | | USA |
Manatee | | 1,722,055 | | USA |
Manatee | | 1,710,130 | | USA |
Manatee Magic | | 1,720,398 | | USA |
Michelangelo Buonarroti & Design | | 2423325
SN75/905,624 | | USA |
Micro-Flex | | 78/208,370 | | USA |
Motion Moves With You | | REG# 2861514
SN #78/192741 | | USA |
Natural Living | | 2,000,253 | | USA |
Natural Performer | | 1,895,623 | | USA |
[ILLEGIBLE] Public Works | | 2,383,598
SN75/334,850 | | USA |
OK Design | | REG# 47546
AP #61214 | | Bulgaria |
OK Design | | AP# 184176
REG# 255170 | | Czech Republic |
OK Design | | M-02-04434
REG# 176-776 | | Hungary |
OK Design | | 83087 | | Morocco |
OK Design | | AP# Z-155621 | | Poland |
OK Design | | M2002-05178
REG# 53006 | | Romania |
OK Design | | 2002716778 AP#
254911 REG# | | Russian Federation |
OK Design | | AP# 2777-2002
REG# 204507 | | Slovak Republic |
OK Design | | 2260686 | | United Kingdom |
OK design & Original Khaki Company | | REG# 47545
AP# 61213 | | Bulgaria |
OK design & Original Khaki Company | | 1104270 | | Canada |
OK design & Original Khaki Company | | AP# 184175
REG# 255169 | | Czech Republic |
OK design & Original Khaki Company | | 490463 | | Mexico |
OK design & Original Khaki Company | | AP# 2778-2002
REG# 204508 | | Slovak Republic |
A-62
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
OK design & The Original Khaki Company | | 2,039,863 | | USA |
OK design & Original Khaki Company | | Reg# 2879895
AP 76/264,324 | | USA |
Olevia St. & design | | 1,202,093
SN 73/257,525 | | USA |
Original Khaki CO | | 83086 | | Morocco |
Original Khaki Co | | M-02-04431
REG# 176-777 | | Hungary |
Original Khaki Co | | AP# Z-255622 | | Poland |
Original Khaki Co | | M2002-05179
REG# 53837 | | Romania |
Original Khaki Co | | 2002716779 | | Russian Federation |
Own Your Element | | 76139588
2,605,633 | | USA |
Paddle and Oars Co. | | 2,276,544
SN75/354,012 | | USA |
Personal Comfort | | 78/295,835 | | USA |
Personal Flex | | 78/293,591 | | USA |
Platinum Member | | 2,289,271
SN 75/273,440 | | USA |
Platinum Member logo | | 2,791,551 REG
SN 75/414,075 | | USA |
Platinum Signature | | 2,279,772
SN75/273,442 | | USA |
[ILLEGIBLE] | | 78/371337 | | USA |
[ILLEGIBLE] West | | 1,521,025 | | USA |
Process | | REG# 805377 | | China |
Process 2000 | | Ap #1922848
REG# 1592716 | | Argentina |
Process 2000 | | 506861 | | Australia |
Process 2000 | | AP# AM 3884/92
REG# 145043 | | Austria |
Process 2000 | | 37896 | | Bangladesh |
Process 2000 | | 519722 AP#784220 | | Benelux |
Process 2000 | | REG# 62317C | | Bolivia |
Process 2000 | | REG# 817917861 | | Brazil |
Process 2000 | | TMA423019
AP#710373 | | Canada |
Process 2000 | | AP# 389856
REG# 187186 | | Columbia |
Process 2000 | | AP# 70775
REG# 190963 | | Czech Republic |
Process 2000 | | AP# 1992 05618
REG# 1992 11050 | | Denmark |
Process 2000 | | REG# 58755 | | Dominican Republic |
Process 2000 | | REG# 145
AP# 3553/93 | | El Salvador |
Process 2000 | | AP#T199203862
REG# 136575 | | Finland |
A-63
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Process 2000 | | 92430112 | | France |
Process 2000 | | REG# 2 911 888
AP#F40718 | | Germany |
Process 2000 | | REG# 110338 | | Greece |
Process 2000 | | REG# 78017
AP# 93-6629 | | Guatemala |
Process 2000 | | AP#5587/1993
REG# 10311/1996 | | Hong Kong |
Process 2000 | | REG# 136440
AP#M9204135 | | Hungary |
Process 2000 | | AP# 924269
REG# 149096 | | Ireland |
Process 2000 | | REG# 635648
Renewal
#T02002C0002425 | | Italy |
Process 2000 | | 93/05487 | | Malaysia |
Process 2000 | | 426536 | | Mexico |
Process 2000 | | 220481 | | New Zealand |
Process 2000 | | REG# 067521 | | Panama |
Process 2000 | | REG# 63051 | | Philippines |
Process 2000 | | REGS 81572 | | Poland |
Process 2000 | | REG# 21917 | | Romania |
Process 2000 | | REG# 178046 | | Slovak Republic |
Process 2000 | | AP# 92-07017
REG# 249253 | | Sweden |
Process 2000 | | REG# 399.929 | | Switzerland |
Process 2000 | | REG# 689482 | | Taiwan |
Process 2000 | | REG# 139284 | | Turkey |
Process 2000 | | 1376939 | | United Kingdom |
Process 2000 | | REG# 270706 | | Uruguay |
Process 2000 | | 1,569,890 | | USA |
Pueblo | | 2,211,624 SN
75/210,750 | | USA |
Red Stitch | | 78/236218 | | USA |
Royal Palm | | 1,186,894 | | USA |
Royal Palm | | 2,137,530 | | USA |
Royal Palm | | 699,031 | | USA |
Saddle Backs | | 801,368
SN 72/211,344 | | USA |
Salt River | | 1,951,747 | | USA |
Savane | | 657303 | | Australia |
Savane | | AP# 1596/2000
REG# TM27968 | | Bahrain |
Savane | | 37895 | | Bangladesh |
Savane | | 5472 | | Belarus |
Savane | | REG# 821881566 | | Brazil |
Savane | | REG# 25470 | | Bulgaria |
Savane | | 369215 | | Canada |
A-64
| | | | |
Name | | Serial # or Registration # | | Country Filed |
Savane | | AP# 389858 REG# 153178 | | Columbia |
Savane | | REG# Z940841 | | Croatia |
Savane | | AP# 39450 REG# 2238-94 REN#44262 | | Ecuador |
Savane | | REG# 133 | | EI Salvador |
Savane | | REG# 19825 AP# 9401046 | | Estonia |
Savane | | 27104 | | Fiji |
Savane | | AP# 93-6628 | | Guatemala |
Savane | | REG#59222 AP#5556/93 | | Honduras |
Savane | | AP# 5588/1993 REG# 890/1996 | | Hong Kong |
Savane | | REG# 1099/2000 AP# 1987/2000 | | Iceland |
Savane | | REG# 317.995 AP#H4.HC.01-.01-8670 | | Indonesia |
Savane | | 25843 | | Jamaica |
Savane | | 3227868 | | Japan |
Savane | | 4324608 SN 10-32661 | | Japan |
Savane | | 48131AP# 45035 REG# | | Kuwait |
Savane | | M 37188 Ap M94-1814 | | Lativa |
Savane | | REG# 25878 | | Lithuania |
Savane | | 93/05486 | | Malaysia |
Savane | | REG# 684512 AP# 450421 | | Mexico |
Savane | | 247476 | | New Zealand |
Savane | | REG# 25997CC | | Nicaragua |
Savane | | AP# 2000-06423 REG# 211724 | | Norway |
Savane | | REG# 067523 | | Panama |
Savane | | REG# 62784 | | Philippines |
Savane | | REG# 349236 | | Portugal |
Savane | | REG# 604/19 68293 | | Saudi Arabia |
Savane | | T93/04128I | | Singapore |
Savane | | 9470731 | | Slovak Republic |
Savane | | REG# 291737 | | South Korea |
Savane | | AP# 00-04446 REG# 351141 | | Sweden |
Savane | | REG#KOR15585 AP# 248615 | | Thailand |
Savane | | AP# 94051792/T REG# 13723 | | Ukraine |
Savane | | REG# 31682 AP# 40250 | | United Arab Emirates |
A-65
| | | | |
Name | | Serial # or Registration # | | Country Filed |
Savane | | 2024250 | | United Kingdom |
Savane | | 2,111,463 SN75/976,537 | | USA |
Savane | | AP# N-4976/93 REG# 12597 | | Vietnam |
Savane | | 1,380,524 | | USA |
Savane & 4 Leaf | | 2,494,862 75/738460 | | USA |
Savane & Design | | REG# 156189 | | Russian Federation |
Savane & Golf ball | | AP# 52156 REG# 167158 | | Ireland |
Savane & Golf ball | | 250031 | | New Zealand |
Savane & Golf ball | | 2024031 | | United Kingdom |
Savane & Stylized Globe | | AP# AM3368/95 REG# 160725 | | Austria |
Savane & Stylized Globe | | 97498 | | Costa Rica |
Savane & Stylized Globe | | AP# 1995 05191 REG# 1997 05099 | | Denmark |
Savane & Stylized Globe | | AP#T199503978 REG# 202500 | | Finland |
Savane & Stylized Globe | | REG# 395 26 039.6 AP#395 26 039.6 | | Germany |
Savane & Stylized Globe | | AP# 52155 REG# 167157 | | Ireland |
Savane & Stylized Globe | | REG# 509385 | | Mexico |
Savane & Stylized Globe | | AP# 19954329 REG# 177813 | | Norway |
Savane & Stylized Globe | | REG# 432072 | | Switzerland |
Savane Elements | | 2,302,399 Reg. Sn 75/161696 | | USA |
Savane Friday Wear | | AP#T199401553 REG# 136665 | | Finland |
Savane Friday Wear | | AP# 47980 REG# 161357 | | Ireland |
Savane Friday Wear | | AP# 19942591 REG# 168710 | | Norway |
Savane Friday Wear | | REG# 90856 | | Poland |
Savane Friday Wear | | REG# 299291 | | Portugal |
Savane Friday Wear | | AP# 94-04288 REG# 302113 | | Sweden |
Savane Friday Wear | | 1567405 | | United Kingdom |
Savane Genuine Outfitters | | 459175 | | Australia |
Savane Genuine Outfitters | | 6807 | | Belize |
Savane Genuine Outfitters | | 170204 | | New Zealand |
Savane Genuine Outfitters | | 1336378 | | United Kingdom |
Savane Genuine Outfitters | | 1,380,529 | | USA |
Savane Original Khaki Company | | 842208 | | Australia |
A-66
| | | | |
Name | | Serial # or Registration # | | Country Filed |
Savane Original Khaki Company | | 217/2000 | | Fiji |
Savane Original Khaki Company | | 609352 | | New Zealand |
Savane Soft Wash & Globe | | 99630 | | Costa Rica |
Savane Soft Wash & Globe | | REG# 87058 | | Dominican Republic |
Savane Soft Wash & Globe | | REG# 717654 | | Italy |
Savane Soft Wash & Globe | | REG# 373813 | | South Korea |
Savane Soft Wash & Globe | | REG# 1973812 | | Spain |
Savane World of Savane | | 2,278,419 SN75/372,726 | | USA |
Savane World of Savane Farah | | 7107 | | Belize |
Savane World of Savane Farah | | TMA464587 AP#710405 | | Canada |
Savane World of Savane Farah | | 92432772 | | France |
Savane World of Savane Farah | | REG# 136434 | | Hungary |
Savane World of Savane Farah | | AP# 924268 REG# 154332 | | Ireland |
Savane World of Savane Farah | | REG# 635642 Renewal # T02002C002435 | | Italy |
Savane World of Savane Farah | | 220480 | | New Zealand |
Savane World of Savane Farah | | REG# 81571 | | Poland |
Savane World of Savane Farah | | REG# 285595 | | Portugal |
Savane World of Savane Farah | | REG# 22070 AP#282201 | | Romania |
Savane World of Savane Farah | | REG# 176262 | | Slovak Republic |
Savane World of Savane Farah | | REG# 1718289 | | Spain |
Savane World of Savane Farah | | REG# 400.199 | | Switzerland |
OK Design | | AP# 2002-025527 REG# 2002-025527 | | Turkey |
3 | | REG# 138720 | | Turkey |
Savane World of Savane Farah | | 583887 | | Australia |
Savane World of Savane Farah | | AP# 3885/92 REG# 145044 | | Austria |
Savane World of Savane Farah | | 521544 AP#784219 | | Benelux |
Savane World of Savane Farah | | AP#70774 REG# 184513 | | Czech Republic |
Savane World of Savane Farah | | REG# 2 043 687 AP#F41547 | | Germany |
Savane World of Savane Farah | | REG# 110337 | | Greece |
A-67
| | | | |
Name | | Serial # or Registration # | | Country Filed |
Savane World of Savane Farah | | 429314 | | Mexico |
Savane World of Savane Farah | | 1509517 | | United Kingdom |
Savane World of Savane No Wrinkle | | AP# 9531061 REG# 181827 | | Columbia |
Savane World of Savane No Wrinkle | | REG# 87059 | | Dominican Republic |
Savane World of Savane No Wrinkle | | AP# 27335 | | Fiji |
Savanna | | B1098563 | | United Kingdom |
Sawdust Company | | 2,267,682 Reg. 75/354,009 | | USA |
Sawtooth Mountains | | 1,955,268 | | USA |
Silk Blues | | 78/415736 | | USA |
Silk Blues | | 1,906,918 | | USA |
SloŸMo Sportswear | | Reg. 4,229,848 App 161158/97 | | Japan |
SloŸ Mo Sportswear | | 2,211,745 75/263,193 | | USA |
Soft as Savane | | 2,494,861 75/737912 | | USA |
Soft Wash | | AP# 3367/95 REG# 160527 | | Austria |
Soft Wash | | 574257 AP #849962 | | Benelux |
Soft Wash | | 777775 | | Canada |
Soft Wash | | AP# 9530914 REG# 181142 | | Columbia |
Soft Wash | | 103430 | | Costa Rica |
Soft Wash | | 27103 | | Fiji |
Soft Wash | | 95575797 | | France |
Soft Wash | | AP# 52154 REG# 170636 | | Ireland |
Soft Wash | | REG# 504935 | | Mexico |
Soft Wash | | 148876 | | Russian Federation |
Soft Wash | | 2012575 | | United Kingdom |
Soft Wash | | 2,283,456 SN74/608,246 | | USA |
Soft Wash No Wrinkles | | 662891 | | Australia |
Soft Wash No Wrinkles | | AP# 1995 05192 REG# 1996 02935 | | Denmark |
Soft Wash No Wrinkles | | 254796 | | New Zealand |
Soft Wash No Wrinkles | | 2,285,688 SN 74/608,245 | | USA |
Soft Wash No Wrinkles | | 27717 | | Fiji |
Spirit of the Wolves | | 2,001,847 | | USA |
Stain Protector | | REG# 2,900,931 SN 78/187,566 | | USA |
A-68
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Stallion & Design | | REG# 497372
AP# 01264/2002 | | Switzerland |
Steelworks | | 2,309,754
SN 75/390,568 | | USA |
Stone Mountain | | 209,103
SN 71/218,4741 | | USA |
Stretch Waistband | | 2,325,498
SN 75/523,128 | | USA |
Style Chief | | 440,916
SN 71/500,861 | | USA |
Stylized Globe Design | | 662890 | | Australia |
Stylized Globe Design | | 574258 AP# 849963 | | Benelux |
Stylized Globe Design | | 785645 | | Canada |
Stylized Globe Design | | AP# 9531220
REG# 181149 | | Columbia |
Stylized Globe Design | | AP# 1995 05193
REG# 1995 6060 | | Denmark |
Stylized Globe Design | | AP# 60040
REG# 697-97 | | Ecuador |
Stylized Globe Design | | REG# 192
AP#3420/95 | | El Salvador |
Stylized Globe Design | | 27336 | | Fiji |
Stylized Globe Design | | AP#T199503977
REG# 143225 | | Finland |
Stylized Globe Design | | 95575795 | | France |
Stylized Globe Design | | REG# 395 26 042
AP#395 26 042.6 | | Germany |
Stylized Globe Design | | REG# 83000 | | Guatemala |
Stylized Globe Design | | AP#9911/1995
REG# B152/1998 | | Hong Kong |
Stylized Globe Design | | REG# 383.436
AP# D95-23220 | | Indonesia |
Stylized Globe Design | | REG# 717655 | | Italy |
Stylized Globe Design | | 4008572 | | Japan |
Stylized Globe Design | | 250032 | | New Zealand |
Stylized Globe Design | | AP# 19954330
REG# 176739 | | Norway |
Stylized Globe Design | | REG# 363763 | | South Korea |
Stylized Globe Design | | REG# 432071
AP#8931-1995.8 | | Switzerland |
Stylized Globe Design | | 2024032 | | United Kingdom |
Stylized Globe Design | | 2,244,787 SN
74/608,248 | | USA |
Super Ply | | 799,666 Supplemental | | USA |
Tahoe River Outfitters | | SN# 1099311
REG # TNA607,560 | | Canada |
Tahoe River Outfitters | | 490,462 | | Mexico |
Tahoe River Outfitters | | 2,266,975 | | United Kingdom |
Tahoe River Outfitters | | 2,132,246 | | USA |
A-69
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Techworks | | 2,497,111
75/908374 | | USA |
Texas | | 1,580,471 | | European Community |
The Authentic Khaki Company | | 2,011,240 | | USA |
The Coal Mine Company | | 2,000,252 | | USA |
The Leader in Private Brands | | 2,117,132 | | USA |
The Leader of Brand and Private Brand | | REG# 2889725
SN# 76/415270 | | USA |
The Original Khaki Company “by Farah” | | 2,017,812 | | European Community |
The Original Khaki Company by Farah | | 2,245,040 | | United Kingdom |
The Original Khaki Company by Farah | | 2245040 | | United Kingdom |
The Original Texas Jean Company | | 1,802,644 | | European Community |
The Pant for the Impossible Mission | | SN 78/410,307 | | USA |
The Things We Value | | 1,928,428 | | USA |
Three Graces | | 1,990,305 | | USA |
Tilford & Stuart | | 487588 | | Australia |
Tilford & Stuart | | A487588 | | Austria |
Tilford & Stuart | | TMA379479
AP#608153 | | Canada |
Tilford & Stuart | | REG# 1 131 784
AP#36398 | | Germany |
Tilford & Stuart | | AP#882118
REG# 130491 | | Ireland |
Tilford & Stuart | | B1346342 | | United Kingdom |
Tilford & Stuart | | 2,276,403
SN75/276,350 | | USA |
Timberon River Company | | 2,296,272
SN 74/732,274 | | USA |
Total Khaki | | 76/445740 | | USA |
Trail Blazers | | 686,359 | | USA |
Treslana | | TMA431368
AP#685360 | | Canada |
Treslana | | REG# 2 036 915
AP#F40073 | | Germany |
Treslana | | AP# 117403
REG# 404055 | | Mexico |
Tropical | | 218/2000 | | Fiji |
Travel Intelligence | | SN 78/410,248 | | USA |
Travel Intelligent | | SN 78/410,293 | | USA |
Travel Smart | | SN 78/405,057 | | USA |
Tropical | | 1,646,084 | | USA |
Tropical Sportswear | | 1,960,833 | | USA |
Tropical Sportswear International | | 2,016,017 | | USA |
A-70
| | | | |
Name | | Serial # or
Registration # | | Country Filed |
Tropiwash | | 2,246,089 SN
75/465,356 | | USA |
TSI | | 1,911,480 | | USA |
TSI & Palm Tree | | 2,592,443 Reg
75/942,285 | | USA |
Two Pepper | | 842,205 | | Australia |
Two Pepper | | 2,173,011 | | European Community |
Two Pepper | | 216/2000 | | Fiji |
Two Pepper | | 609350 | | New Zealand |
Two Pepper Design | | AP #2359420 | | United Kingdom |
Two Pepper | | 2266974 | | United Kingdom |
Two Pepper | | 1,914,210 | | USA |
U.S. Trading Company | | 1,898,403 | | USA |
Universal Fit | | REG# 2890263
SN# 78/202,674 | | USA |
Unplugged | | 78/263,489 | | USA |
Unplugged On Your Own Time | | 78/263,513 | | USA |
US Trading Company | | 2,227,233 SN
75/285,346 | | USA |
Vintage Hardware Gently Weathered for Style | | REG# 2841234
SN# 76/450693 | | USA |
Vintage Wash | | 2,027,668
SN 74/631,574 | | USA |
Washout | | 1,725,844 | | USA |
Wet Process | | 1,883,020 | | USA |
Wff Wm. F Farah | | 1,879,828 | | USA |
White Dove | | Reg. #2466231 | | USA |
White Ice Company | | SN 75/354,010
2,362,691 | | USA |
Wildlife Refuge | | 1,683,029 | | USA |
Will Rogers | | 2177038 | | European Community |
Will Rogers | | REG# 490461 | | Mexico |
Will Rogers | | 2266973 | | United Kingdom |
Wm. F. Farah | | REG# 812729960 | | Brazil |
Wooden Nickel | | 1,773,697 | | USA |
Woodmere | | 1,738,437 | | USA |
Ziabo | | 1,718,286 | | USA |
Additional Licensed Trademarks since
PGA Tour® trademark licensed from PGA Tour, Inc. (PO Box 1065, Ponte Verde Beach, Florida 32004).
A-71
GUIDELINES FOR PREPARATION OF INFORMATION CERTIFICATE
Annexed hereto is a form of Information Certificate, which you should completecarefully andaccurately.
Please note:
1. The Information Certificate should be completed by you in consultation with your attorneys and accountants.
2. To the extent there is insufficient space provided in the Information Certificate for a response to any question, please include additional pages as exhibits to the certificate.
3. The Information Certificate should be returned to us as soon as possible since the information in it is necessary for us to prepare the loan documentation.
4. The Information Certificate will be included as an exhibit to the Loan and Security Agreement between us. The numbers of the schedules provided for in the Information Certificate correspond to the sections of the Loan and Security Agreement covering the applicable matter where such schedules are referenced.
If you have any questions in connection with the preparation of the Information Certificate, please let us know.
Thank you for your cooperation and we look forward to continuing to work with you.
CONGRESS FINANCIAL CORPORATION (FLORIDA)
A-72
EXHIBIT B
TO
AMENDMENT NO. 7
Schedule 1
Commitments
| | | | |
Lender | | Amount | |
| |
Wachovia Bank, National Association (successor by merger to Congress Financial Corporation (Florida)) | | $ | 75,000,000 | |
| |
The CIT Group/Commercial Services, Inc. | | $ | 48,000,000 | |
| |
The Israel Discount Bank of New York | | $ | 22,000,000 | |
| |
HSBC Bank USA, National Association | | $ | 15,000,000 | |
| |
HSBC Business Credit (USA) Inc. | | $ | 15,000,000 | |
| | | | |
| |
TOTAL | | $ | 175,000,000 | |
| | | | |
B-1
