Unassociated Document


    EXHIBIT
10.24

     


    THIRD AMENDMENT
TO

    AMENDED AND RESTATED
FINANCING AGREEMENT

    


    This
THIRD AMENDMENT TO AMENDED AND RESTATED FINANCING AGREEMENT (this “Amendment”)
is entered into as of October 23, 2009, by and among Frederick’s of Hollywood
Group Inc., a New York corporation (“Group”), FOH Holdings, Inc., a
Delaware corporation (the “Parent”), Frederick’s of Hollywood, Inc., a Delaware
corporation (“Frederick’s”), Frederick’s of Hollywood Stores, Inc., a
Nevada corporation (“Stores”), Hollywood Mail Order, LLC, a Nevada limited
liability company (“Mail Order” and collectively with Group, the Parent,
Frederick’s and Stores, individually, a “Borrower”, and collectively, the
“Borrowers”), and Wells Fargo Retail Finance II, LLC, a Delaware limited
liability company, in its capacity as Lender and as arranger and agent for the
Lenders (in such capacity, the “Agent”).

     

    RECITALS

    


    A.    WHEREAS,
the Borrowers, the Lenders and the Agent are parties to that certain Amended and
Restated Financing Agreement, dated as of January 28, 2008, as amended by that
certain First Amendment to Amended and Restated Financing Agreement, dated as of
September 9, 2008, as further amended by that certain Second Amendment to
Amended and Restated Financing Agreement, dated as of September 21, 2009 (as so
amended, the “Financing Agreement”);

     

    B.    WHEREAS,
the Borrowers have requested that the Agent and the Lenders agree to certain
further amendments to the Financing Agreement; and

     

    C.    WHEREAS,
the Agent and the Lenders are willing to agree to such amendments upon the terms
and subject to the conditions set forth herein.

     

    NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein
contained, and for other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Agent, the Lenders and the Borrowers agree as
follows:

     

    1.    Definitions.  Unless
otherwise defined herein, initial capitalized terms have the meanings given to
them in the Financing Agreement.

     

    2.    Amendments.  Upon
the Amendment Effective Date (as hereinafter defined) the Financing Agreement is
hereby amended as follows:

     

    a.)    Section
1.01 of the Financing Agreement is amended by amending and restating the
following defined terms (and related definitions) therein to read in their
entirety as follows:

     

    
      	
              (i)  

            	
              “Bridge Period”
      means the period commencing on the Bridge Facility Effective Date and
      ending upon the earlier of (x) August 1, 2010 or (y) the consummation of
      the Recapitalization Event.

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    
      	
              (ii)  

            	
              “Recapitalization
      Event” means the sale by one or more of the Borrowers, and the
      purchase thereof by a third party (not constituting a Loan Party), of
      Borrower(s)’ capital stock or notes  (which shall be
      subordinated to the Obligations on terms and conditions satisfactory to
      the Agent and the Required Lenders in their sole discretion), for not less
      than $4,400,000 in cash (net of all related fees, issuance discounts,
      costs and expenses) received by the Borrowers on or before August 1, 2010,
      pursuant to a transaction and agreements acceptable to the Agent and the
      Required Lenders in their sole
discretion.

            


    

     

    b.)    Section
7.01(x) of the Financing Agreement is amended and restated to read in its
entirety as follows:

     

    “(x)           Recapitalization.  The
Borrowers shall consummate the Recapitalization Event on or before August 1,
2010.

     

    3.    Conditions to
Effectiveness.  This Amendment shall become effective upon the
satisfaction (or waiver by the Agent) of each of the following conditions (the
first date on which said conditions have been so satisfied (or so waived), the
“Amendment Effective Date”):

     

    a.)    The
Borrowers, the Agent and the Lenders shall each have executed and delivered two
originals of this Amendment;

     

    b.)    On the
Amendment Effective Date, no Default or Event of Default shall
exist;

     

    c.)    The
Borrowers shall have paid all reasonable fees, costs and expenses of the Agent
and the Lenders in connection with this Amendment, including, without
limitation, the fees and expenses of Proskauer Rose, LLP.

     

    If the
Amendment Effective Date shall not have occurred by the close of business (New
York time) on October 25, 2009 (or such later time as the Agent consents to in
writing), this Amendment shall be deemed rescinded, null and void.

     

    4.    No
Waiver.  Except as expressly stated herein, nothing herein
shall be deemed to constitute a waiver of compliance with, or other modification
of, any term or condition contained in the Financing Agreement or any other Loan
Document and nothing contained herein shall constitute a course of conduct or
dealing among the parties hereto.  Except as expressly stated herein,
the Agent and the Lenders reserve all rights, privileges and remedies under the
Loan Documents.

     

    5.    Representations.  In
order to induce the Agents and the Lenders to execute this Amendment, the
Borrowers hereby represent, warrant and covenant to the Agent and the Lenders
that as of the date hereof and as of the Amendment Effective Date (which
representations, warranties and covenants shall survive execution and delivery
of this Amendment):

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    a.)    the
Borrowers are duly organized, validly existing and in good standing under the
laws of their respective jurisdictions of formation;

     

    b.)    the
Borrowers have the power and authority to execute, deliver and perform their
obligations under this Amendment;

     

    c.)    the
execution, delivery and performance by the Borrowers of this Amendment has been
duly authorized by all necessary action and does not and will not require any
registration with, consent or approval of, notice to or action by, any other
Person;

     

    d.)    this
Amendment constitutes the legal, valid and binding obligation of the Borrowers,
enforceable against the Borrowers in accordance with its terms; and

     

    e.)    no
Default or Event of Default exists.

     

    6.    Counterparts.  This
Amendment may be executed by the parties hereto in any number of separate
counterparts, each of which when so executed, shall be deemed an original and
all said counterparts when taken together shall be deemed to constitute but one
and the same instrument.

     

    7.    Successors and
Assigns.  This Amendment shall be binding upon and inure to the
benefit of the Borrowers and their successors and permitted assigns, and the
Lenders and the Agent and their successors and permitted assigns.

     

    8.    Further
Assurance.  The Borrowers hereby agree from time to time, as
and when requested by the Agent, to execute and deliver or cause to be executed
and delivered, all such documents, instruments and agreements and to take or
cause to be taken such further or other action as the Agent may reasonably deem
necessary or desirable in order to carry out the intent and purposes of this
Amendment.

     

    9.    GOVERNING
LAW.  THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
ITS CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).

     

    10.   Severability.  Wherever
possible, each provision of this Amendment shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Amendment shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Amendment.

     

    11.    Reaffirmation.  Each
Borrower hereby ratifies and reaffirms all of its payment and performance
obligations, contingent or otherwise, under each of the Loan Documents to which
it is a party (after giving effect hereto).  Each Borrower hereby
acknowledges that, except as expressly modified herein, each of the Loan
Documents, remains in full force and effect and is hereby ratified and
reaffirmed.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    12.   Acknowledgment of Rights;
Release of Claims.  Each Borrower hereby acknowledges that:
(a) it has no defenses, claims or set-offs to the enforcement by the Agent
or the Lenders of the liabilities, obligations and agreements of the Borrowers
under the Financing Agreement or other Loan Documents on the date hereof; and
(b) to its knowledge, the Agent and the Lenders have fully performed all
undertakings and obligations owed to it as of the date hereof.  In
consideration of the Agent and the Lenders entering into this Amendment, each
Borrower hereby irrevocably releases and forever discharges the Agent, the
Lenders and their respective Affiliates, and each such Person’s respective
directors, officers, employees, agents, attorneys and representatives (each, a
“Released
Person”) of and from all damages, losses, claims, demands, liabilities,
obligations, actions or causes of action whatsoever which such Borrower may now
have or claim to have against any Released Person for or because of any matter
or thing done, omitted or suffered to be done or omitted by any of the Released
Persons prior to and including the date hereof and on account of or in any way
concerning, arising out of or founded upon the Financing Agreement or any other
Loan Document, whether presently known or unknown and of every nature and extent
whatsoever.  This Section 12 shall survive the termination of the
Financing Agreement and payment in full of the Obligations
thereunder.

     

    [Signature
Pages Follow]

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    IN WITNESS WHEREOF, the parties hereto
have caused this Third Amendment to Amended and Restated Financing Agreement to
be duly executed by their respective duly authorized officers as of the date
first written above.

     

    
      
        
          
            
              
                	 	BORROWERS:	 
	 	 	 
	 	FREDERICK’S
      OF HOLLYWOOD GROUP INC.	 
	 	 	 
	 	 	 	 
	
                         

                      	
                        By:
      

                      	/s/ Thomas
      Rende	 
	 	 	Name:  Thomas
      Rende	 
	 	 	Title:  Chief
      Financial Officer	 


              

            

          

        

      

    

     

    
      	 	FOH
      HOLDINGS, INC.	 
	 	 	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Thomas
      Rende	 
	 	 	Name:  Thomas
      Rende	 
	 	 	Title:  Chief
      Financial Officer	 


    

     

    
      	 	FREDERICK’S
      OF HOLLYWOOD, INC.	 
	 	 	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Thomas
      Rende	 
	 	 	Name:  Thomas
      Rende	 
	 	 	Title:  Chief
      Financial Officer	 


    

     

    
      	 	FREDERICK’S
      OF HOLLYWOOD STORES, INC.	 
	 	 	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Thomas
      Rende	 
	 	 	Name:  Thomas
      Rende	 
	 	 	Title:  Chief
      Financial Officer	 


    

     

    
      
        
          
            	 	HOLLYWOOD
      MAIL ORDER, LLC	 
	 	 	 
	 	      
                    By:
      FOH Holdings, Inc., its Manager

                  	 
	 	 	 	 
	
                     

                  	
                    By:
      

                  	/s/ Thomas
      Rende	 
	 	 	Name:  Thomas
      Rende	 
	 	 	Title:  Chief
      Financial Officer	 


          

        

      

    


    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
      	 	AGENT	 
	 	 	 
	 	WELLS
      FARGO RETAIL FINANCE II, LLC	 
	 	 	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Joseph
      Burt	 
	 	 	Name:  Joseph
      Burt	 
	 	 	Title:  Vice
      President	 


    

     

    
      	 	LENDER	 
	 	 	 
	 	WELLS
      FARGO RETAIL FINANCE II, LLC	 
	 	 	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Joseph
      Burt	 
	 	 	Name:  Joseph
      Burt	 
	 	 	Title:  Vice
      President