Exhibit 10.2.2
EXHIBIT A
to
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this Assignment and
Acceptance) dated as of , 200_ is made between (the
Assignor) and (the Assignee).
WITNESSETH:
WHEREAS, Wachovia Bank, National Association, in its capacity as agent pursuant to the
Loan Agreement (as hereinafter defined) acting for and on behalf of the financial institutions
which are parties thereto as lenders (in such capacity, Agent), and the financial
institutions which are parties to the Loan Agreement as lenders (individually, each a Lender
and collectively, Lenders) have entered or are about to enter into financing arrangements
pursuant to which Agent and Lenders may make loans and advances and provide other financial
accommodations to Delta Apparel, Inc., M.J. Soffe Co. and Junkfood Clothing Company
(collectively, Borrowers) as set forth in the Third
Amended and Restated Loan and Security Agreement, dated
September _____, 2007, by and among
Borrowers, Agent and Lenders (as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, the Loan Agreement), and the other
agreements, documents and instruments referred to therein or at any time executed and/or delivered
in connection therewith or related thereto (all of the foregoing, together with the Loan
Agreement, as the same now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, being collectively referred to herein as the
Financing Agreements);
WHEREAS, as provided under the Loan Agreement, Assignor committed to making Loans (the
Committed Loans) to Borrowers in an aggregate amount not
to exceed $100,000,000 (the
Commitment);
WHEREAS, Assignor wishes to assign to Assignee [part of the] [all] rights and obligations
of Assignor under the Loan Agreement in respect of its Commitment in an amount equal to
$
(the Assigned Commitment Amount) on the terms and subject to the conditions
set forth herein and Assignee wishes to accept assignment of such rights and to assume such
obligations from Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject
to the terms and conditions of this Assignment and Acceptance, Assignor hereby
sells, transfers and assigns to Assignee, and Assignee hereby purchases, assumes and undertakes
from Assignor, without recourse and without representation or warranty (except as provided in
this Assignment and Acceptance) an interest in (i) the Commitment and each of the Committed
Loans of Assignor and (ii) all related rights, benefits,
obligations, liabilities and
indemnities of the Assignor under and in connection with the Loan Agreement and the other
Financing Agreements, so that after giving effect thereto, the Commitment of Assignee
shall be as set
forth below and the Pro Rata Share of Assignee shall be ( %) percent.
(b) With effect on and after the Effective Date (as defined in Section 5 hereof),
Assignee shall be a party to the Loan Agreement and succeed to all of the rights and be
obligated to
perform all of the obligations of a Lender under the Loan Agreement, including the
requirements
concerning confidentiality and the payment of indemnification, with a Commitment in an
amount
equal to the Assigned Commitment Amount. Assignee agrees that it will perform in
accordance with
their terms all of the obligations which by the terms of the Loan Agreement are required
to be
performed by it as a Lender. It is the intent of the parties hereto that the Commitment
of Assignor
shall, as of the Effective Date, be reduced by an amount equal to the Assigned Commitment
Amount
and Assignor shall relinquish its rights and be released from its obligations under the
Loan
Agreement to the extent such obligations have been assumed by
Assignee; provided, that,
Assignor
shall not relinquish its rights under Sections 2.1, 6.4, 6.8 and 6.9 of the Loan
Agreement to the extent
such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth herein, on the
Effective Date Assignees Commitment will be $ .
(d) After giving effect to the assignment and assumption set forth herein, on
the
Effective Date Assignors Commitment will be $ (as such amount may be further
reduced by any other assignments by Assignor on or after the date hereof).
2. Payments.
(a) As consideration for the sale, assignment and transfer contemplated in Section 1
hereof, Assignee shall pay to Assignor on the Effective Date in immediately available
funds an
amount equal to $ , representing Assignees Pro Rata Share of the principal amount of
all Committed Loans.
(b) Assignee shall pay to Agent the processing fee in the amount specified in
Section 13.7(a) of the Loan Agreement.
3. Reallocation of Payments. Any interest, fees and other payments
accrued to the
Effective Date with respect to the Commitment, Committed Loans and outstanding Letters of
Credit
shall be for the account of Assignor. Any interest, fees and other payments accrued on
and after the
Effective Date with respect to the Assigned Commitment Amount shall be for the account of
Assignee. Each of Assignor and Assignee agrees that it will hold in trust for the other
party any
interest, fees and other amounts which it may receive to which the other party is
entitled pursuant to
the preceding sentence and pay to the other party any such amounts which it may receive
promptly
upon receipt.
4. Independent Credit Decision. Assignee acknowledges that it has received a
copy of
the Loan Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent
financial statements of Borrowers and their Subsidiaries, and such other documents and
information
as it has deemed appropriate to make its own credit and legal analysis and decision to
enter into this
Assignment and Acceptance and agrees that it will, independently and without reliance
upon
Assignor, Agent or any Lender and based on such documents and information as it shall
deem
-2-
appropriate at the time, continue to make its own credit and legal decisions in
taking or not taking action under the Loan Agreement.
5. Effective
Date; Notices.
(a) As between Assignor and Assignee, the effective date for this Assignment
and Acceptance shall be , 20 (the Effective Date); provided, that, the following
conditions precedent have been satisfied on or before the Effective Date:
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this Assignment and Acceptance shall be executed
and delivered by Assignor and Assignee; |
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the consent of Agent as required for an effective assignment of the Assigned Commitment
Amount by Assignor to Assignee shall have been duly obtained and shall be in full force and
effect as of the Effective Date; |
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written notice of such assignment, together with payment instructions, addresses and related
information with respect to Assignee, shall have been given to Administrative Borrower and
Agent; Assignee shall pay to Assignor all amounts due to Assignor under this Assignment and
Acceptance; and |
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the processing fee referred to in Section 2(b)
hereof shall have been paid to Agent. |
(b) Promptly following the execution of this Assignment and Acceptance,
Assignor shall deliver to Administrative Borrower and Agent, for acknowledgment by
Agent, a
Notice of Assignment in the form attached hereto as Schedule 1.
6. [Agent. [INCLUDE ONLY IF ASSIGNOR IS AN AGENT]
(a) Assignee hereby appoints and authorizes Assignor in its capacity as Agent to
take such action as agent on its behalf to exercise such powers under the Loan Agreement
as are
delegated to Agent by Lenders pursuant to the terms of the Loan Agreement.
(b) Assignee shall assume no duties or obligations held by Assignor in its
capacity as Agent under the Loan Agreement.]
7. Withholding Tax. Assignee (a) represents and warrants to Assignor,
Agent and
Borrowers that under applicable law and treaties no tax will be required to be withheld
by Assignee,
Agent or Borrowers with respect to any payments to be made to Assignee hereunder or
under any of
the Financing Agreements, (b) agrees to furnish (if it is organized under the laws of
any jurisdiction
other than the United States or any State thereof) to Agent and Borrowers, prior to the
time that
Agent or Borrowers are required to make any payment of principal, interest or fees
hereunder,
duplicate executed originals of either U.S. Internal Revenue Service Form W-8BEN or
W-8ECI, as
applicable (wherein Assignee claims entitlement to the benefits of a tax treaty that
provides for a
complete exemption from U.S. federal income withholding tax on all payments hereunder)
and
agrees to provide new such Forms upon the expiration of any previously delivered
form or
comparable statements in accordance with applicable U.S. law and. regulations and
amendments
thereto, duly executed and completed by Assignee, and (c) agrees to comply with all
applicable U.S. laws and regulations with regard to such withholding tax exemption.
-3-
8. Representations and Warranties.
(a) Assignor represents and warrants that (i) it is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free and clear of
any security
interest, lien, encumbrance or other adverse claim, (ii) it is duly organized and existing
and it has the
full power and authority to take, and has taken, all action necessary to execute and
deliver this
Assignment and Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill its
obligations
hereunder, (iii) no notices to, or consents, authorizations or approvals of, any Person are
required
(other than any already given or obtained) for its due execution, delivery and performance
of this
Assignment and Acceptance, and apart from any agreements or undertakings or filings
required by
the Loan Agreement, no further action by, or notice to, or filing with, any Person is
required of it for
such execution, delivery or performance, and (iv) this Assignment and Acceptance has been
duly
executed and delivered by it and constitutes the legal, valid and binding obligation of
Assignor,
enforceable against Assignor in accordance with the terms hereof, subject, as to
enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of general application
relating to
or affecting creditors rights and to general equitable principles.
(b) Assignor makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in connection
with the Loan
Agreement or any of the other Financing Agreements or the execution,
legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Agreement or any other
instrument or
document furnished pursuant thereto. Assignor makes no representation or warranty in
connection
with, and assumes no responsibility with respect to, the solvency, financial condition or
statements of
Borrowers, Guarantors or any of their respective Affiliates, or the performance or observance by
Borrowers, Guarantors or any other Person, of any of their respective obligations under the
Loan Agreement or any other instrument or document furnished in connection therewith.
(c) Assignee represents and warrants that (i) it is duly organized and existing and
it has full power and authority to take, and has taken, all action necessary to execute
and deliver this
Assignment and Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill its
obligations
hereunder, (ii) no notices to, or consents, authorizations or
approvals of, any Person are
required
(other than any already given or obtained) for its due execution, delivery and performance
of this
Assignment and Acceptance, and apart from any agreements or undertakings or filings
required by
the Loan Agreement, no further action by, or notice to, or filing with, any Person is
required of it for
such execution, delivery or performance, and (iii) this Assignment and Acceptance has been
duly
executed and delivered by it and constitutes the legal, valid and binding obligation of
Assignee,
enforceable against Assignee in accordance with the terms hereof, subject, as to
enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of general application
relating to
or affecting creditors rights to general equitable principles.
9. Further Assurances. Assignor and Assignee each hereby agree to execute and
deliver such other instruments, and take such other action, as either party may reasonably
request in
connection with the transactions contemplated by this Assignment and Acceptance, including
the
delivery of any notices or other documents or instruments to Borrowers or Agent, which may
be
required in connection with the assignment and assumption contemplated hereby.
10. Miscellaneous
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(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or delay by either
party hereto in exercising any right, power or privilege hereunder shall operate as a waiver
thereof and any waiver of any breach of the provisions of this Assignment and Acceptance
shall be without prejudice to any rights with respect to any other for further breach
thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) Assignor and Assignee shall each pay its own costs and expenses incurred in
connection with the negotiation, preparation, execution and performance of this Assignment
and
Acceptance.
(d) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to constitute one
and the
same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA.
Assignor and Assignee each irrevocably submits to the non-exclusive jurisdiction of any
State or
Federal court sitting in Fulton County, Georgia over any suit, action or proceeding arising
out of or
relating to this Assignment and Acceptance and irrevocably agrees that all claims in
respect of such
action or proceeding may be heard and determined in such Georgia State or Federal court.
Each party
to this Assignment and Acceptance hereby irrevocably waives, to the fullest extent it may
effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding.
(f) TO THE EXTENT PERMITTED BY APPLICABLE LAW, ASSIGNOR
AND ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS ASSIGNMENT AND ACCEPTANCE, THE LOAN AGREEMENT, ANY OF THE OTHER
FINANCING AGREEMENTS OR ANY RELATED DOCUMENTS AND AGREEMENTS OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER
ORAL OR WRITTEN).
IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment and Acceptance to be
executed and delivered by their duly authorized officers as of the date first above written.
-5-
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
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Re: Delta Apparel, Inc., M.J. Soffe Co. and Junkfood Clothing Company
Ladies and Gentlemen:
Wachovia Bank, National Association, in its capacity as agent pursuant to the Loan
Agreement (as hereinafter defined) acting for and on behalf of the financial institutions
which are parties thereto as lenders (in such capacity, Agent), and the financial
institutions which are parties to the Loan Agreement as lenders (individually, each a
Lender and collectively, Lenders) have entered or are about to enter into financing
arrangements pursuant to which Agent and Lenders may make loans and advances and provide other
financial accommodations to Delta Apparel, Inc., M.J. Soffe Co. and Junkfood Clothing Company
(collectively, Borrowers) as set forth in the Third Amended and Restated Loan and Security
Agreement, dated September __, 2007, by and among Borrowers, Agent and Lenders (as the same
now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, the Loan Agreement), and the other agreements, documents and instruments referred
to therein or at any time executed and/or delivered in connection therewith or related thereto
(all of the foregoing, together with the Loan Agreement, as
the same now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to herein as the Financing
Agreements). Capitalized terms not otherwise defined herein shall have the respective
meanings ascribed thereto in the Loan Agreement.
1. We hereby give you notice of, and request your consent to, the assignment by
(the Assignor) to
(the Assignee) such that after
giving effect to the assignment Assignee shall have an interest equal to (_%) percent of the
total Commitments pursuant to the Assignment and Acceptance Agreement attached hereto (the
Assignment and Acceptance). We understand that the Assignors Commitment shall be reduced by
$ , as the same may be further reduced by other assignments on or after the date hereof.
2. Assignee agrees that, upon receiving the consent of Agent to such assignment,
Assignee will be bound by the terms of the Loan Agreement as fully and to the same extent
as if
Assignee were the Lender originally holding such interest under the Loan Agreement.
3. The following administrative details apply to Assignee:
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Address: |
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Attention: |
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Telephone: |
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Telecopier: |
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(B)
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Payment instructions: |
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4. You are entitled to rely upon the representations, warranties and covenants of
each of
Assignor and Assignee contained in the Assignment and Acceptance.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Notice of Assignment and
Acceptance to be executed by their respective duly authorized officials, officers or agents as of
the date first above mentioned.
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Very truly yours, |
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[NAME OF ASSIGNOR] |
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By: |
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Title: |
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[NAME OF ASSIGNEE] |
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By: |
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Title: |
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ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO: |
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AGENT: |
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent |
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By: |
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Title: |
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BORROWERS*: |
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DELTA APPAREL, INC. |
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By: |
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Title: |
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M.J. SOFFE CO. |
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By: |
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Title: |
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JUNKFOOD CLOTHING COMPANY |
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By: |
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Title: |
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No signature of Borrowers required if a Default or Event of Default exists. |
-3-
EXHIBIT B
PRICING GRID
For the period after the Closing Date until Borrowers deliver the required financial
statements and compliance certificate for the fiscal quarter ending December 29, 2007,
the applicable margin for Prime Rate Loans will be 0% and the applicable margin for
Eurodollar Rate Loans will be 1.75%. Thereafter, the applicable margin will be increased
or decreased on a quarterly basis, based upon the following pricing grid:
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When Average Alternate |
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Excess Availability or |
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Applicable |
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Fixed Charge Coverage Ratio |
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Prime Rate |
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Margin |
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Rate Margin |
Level 1
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≥ $35,000,000
or >2.5:1
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-.50%
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1.25 |
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Level 2
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≥ $25,000,000 < $35,000,000
or ≥ 2.0:1 and less than 2.5:1
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-.25%
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1.50 |
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Level 3
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>15,000,000 <$25,000,000
or ≥ 1.5:1 and less than 2.0:1
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0 |
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1.75 |
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Level 4
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≤ 15,000,000
or less than 1.5:1
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.25 |
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2.00 |
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At any time that an Event of Default exists, the applicable margin shall be
adjusted immediately to the margin applicable for Level 4. For the avoidance of doubt,
Borrowers shall be entitled to the Level most favorable to Borrowers in which either the
Average Alternate Excess Availability or Fixed Charge Coverage Ratio test is met for such
Level.
The term Average Alternate Excess Availability shall mean, at any time, the
average of the
aggregate amount of the Alternate Excess Availability of Borrowers, as calculated by
Agent, for the immediately preceding calendar quarter for which Agent has received Borrowers
financial statements and compliance certificate as required by Section 9.6 of the Agreement.
The applicable margin shall be calculated and established once each fiscal quarter,
effective as of the first day of such calendar quarter following Agents receipt of the
required financial statements and compliance certificate, and shall remain in effect until
adjusted thereafter as of the first day of a subsequent calendar quarter.
In the event that any financial statement or compliance certificate delivered by Borrowers for
any period is shown to be inaccurate (whether such inaccuracy is discovered at any time during
the effectiveness of Credit Facility or up to six months thereafter), and such inaccuracy, if
corrected, would have led to the application of a higher applicable margin for any period than
the applicable margin applied for such period, then (i) Borrowers shall immediately deliver to
Agent a correct compliance certificate for such period, (ii) the applicable margin for such
period shall be deemed to be the applicable margin that would have been in effect for such
period had the financial statement or compliance certificate delivered by Borrowers not
contained the inaccuracy, and (iii) Borrowers shall immediately pay to Agent the accrued
additional interest owing as a result of such increased applicable margin for such period.
Neither the recalculation of the applicable margin for such a period, nor the payment by
Borrowers of the accrued additional interest required, shall limit the rights of Agent and
Lenders with respect to their ability to charge interest at the Default Rate or to declare any
Event of Default or exercise any of their remedies during the existence of such an Event of
Default.
-2-
EXHIBIT C
FORM OF GUARANTEE
[intentionally
left blank no document was provided by lenders]
EXHIBIT D
INFORMATION CERTIFICATE
-4-
INFORMATION CERTIFICATE
OF
DELTA APPAREL, INC.
M.J. SOFFE CO.
AND
JUNKFOOD CLOTHING COMPANY
Dated: September 21, 2007
Wachovia
Bank, National Association
171 17th Street
4th Floor
Atlanta, Georgia 30363
In connection with certain financing (the Financing) provided or to be provided by you as
collateral and administrative agent (together with your successors in
such capacity, Agent) and,
together with certain other financial institutions, as lenders (collectively Lenders), the
undersigned Delta Apparel, Inc. (Delta), M.J. Soffe Co. (Soffe) and Junkfood Clothing Company
(Junkfood and, together with Delta and Soffe, the Companies) each represents and warrants to
Lender the following information about such Company, its organizational structure and other matters
of interest to Lender: |
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The full and exact name of the Company as set forth in its certificate of incorporation is
as follows: |
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Delta:
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Delta Apparel, Inc. |
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Soffe:
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M. J. Soffe Co. |
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Junkfood:
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Junkfood Clothing Company |
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The Companies use and own the following trade name(s) in the operation of their
business (e.g. billing, advertising, etc.): |
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Delta:
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Delta Apparel, Quail Hollow, Fun Tees* |
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Soffe:
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Soffe, Intensity Athletics* |
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Junkfood:
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Junkfood, Junkfood Clothing Company |
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names of divisions of Delta/Soffe |
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The Companies are registered organizations of the following type:. |
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Delta:
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corporation |
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Soffe:
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corporation |
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The Companies were organized on the following dates and under the laws of the
following states, and each Company is in good standing under laws of the state of its
organization. |
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Date
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State |
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Delta:
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December 10, 1999
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Georgia |
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Soffe:
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September 26, 2003
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North Carolina |
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Junkfood:
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July 13, 2005
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Georgia |
|
4. |
|
The organizational identification number of each Company issued by its jurisdiction of
organization is as follows: |
|
|
|
|
|
|
|
|
|
Delta:
|
|
|
K950538 |
|
|
|
|
|
|
|
|
|
|
Soffe:
|
|
|
0692669 |
|
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|
|
|
|
|
|
|
|
Junkfood:
|
|
|
0548727 |
|
|
5. |
|
The Federal Employer Identification Number of the Companies are as follows: |
|
|
|
|
|
|
|
Delta:
|
|
58-2508794 |
|
|
|
|
|
|
|
Soffe:
|
|
20-0262056 |
|
|
|
|
|
|
|
Junkfood:
|
|
20-3214619 |
|
6. |
|
The 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 except as
provided below: |
|
|
|
|
|
|
|
Delta:
|
|
Alabama, California, Florida, North Carolina, New Jersey, New York,
South Carolina, Tennessee |
|
|
|
|
|
|
|
Soffe:
|
|
California, Michigan, and New Jersey |
|
|
|
|
|
|
|
Junkfood:
|
|
California |
|
7. |
|
Since its date of organization, the names as set forth in each Companys organizational
documentation as filed of record with the applicable state authority has been changed as
follows: |
|
|
|
|
Soffe changed its name from MJS Acquisition Company on October 3, 2003. |
|
8. |
|
Since the date of organization, the Companies have made or entered into the following
mergers or acquisitions: |
|
|
|
|
Delta Consolidated Corporation merged into Delta as part of the Delta Woodside
Industries reorganization in 2000. |
|
|
|
|
Delta formed Soffe (which was named MJS Acquisition Company) to acquire all of the outstanding
stock of M. J. Soffe Co. (which was merged into Soffe as part of that acquisition), and that
acquisition was consummated on October 3, 2003. |
|
|
|
|
Delta received 2,496 of the 2,500 issued and outstanding shares of the stock of Delta Apparel
Honduras, S.A. as a contribution to capital in connection with the reorganization (four
directors of Delta each own one share of the stock of Delta Apparel Honduras). |
|
|
|
|
Delta organized Delta Cortes, S.A. and owns 2,499 of the 2,500 issued and outstanding shares of
its stock (Robert W. Humphreys owns one share of the stock of Delta Cortes,
S.A.) |
|
|
|
|
Delta organized Delta Campeche, S.A. de C.V. and owns 49 of the 50 issued and outstanding shares
of its stock (Robert W. Humphreys owns one share of the stock of Delta Campeche, S.A. de C.V.). |
|
|
|
|
On June 30, 1998, Soffe organized and became the sole
member of SAIM. On October 20, 1998, SAIM
acquired a 50% membership interest in each of Agencias 7000 S.A. and Soha Textiles, S.A., both
Costa Rican corporations. SAIM was dissolved on July 16, 2007. Agencias 7000 S.A. and Soha
Textiles, S.A. have also been dissolved. |
|
|
|
|
Delta formed Junkfood to acquire substantially all of the
assets of Liquid Blaino Designs, Inc.
d/b/a Junkfood. The closing of the asset purchase transaction occurred on August 22, 2005. |
|
|
|
|
On October 3, 2005, Soffe acquired substantially all of the assets of Intensity Athletics Inc. |
|
|
|
|
On October 2, 2006, Delta acquired substantially all of
the assets of Fun-Tees, Inc. (the
Fun-Tees Acquisition). |
|
|
|
|
In connection with the Fun-Tees Acquisition, Delta acquired
from Fun-Tees, Inc. all of the
membership interests in Textiles La Paz, LLC and 99.9% of the participation interests in
Campeche Sportswear, S. de R.L. de C.V. (Robert H. Humphreys owns a 0.1% participation interest
in Campeche Sportswear, S. de R.L. de C.V.). |
|
|
|
|
Delta Apparel Honduras, S.A. owns a 99% interest in Ceiba Textiles, S de R.L. (Robert H.
Humphreys owns a 1% interest). Delta Apparel Honduras, S.A. also owns a 15% interest in Green
Valley Industrial Park, S.A. |
|
|
|
|
Delta is in the process of organizing and acquiring a 99% interest in Atled Holding Company
Honduras, S de R.L. (Robert H. Humphreys will own a 1% interest in Atled |
|
|
|
Holding Company Honduras, S de R.L.). Atled Holding Company is in the process of organizing and
acquiring a 99% interest in La Paz Honduras, S de R.L. (Robert H. Humphreys will own a 1%
interest in La Paz Honduras, S de R.L.). |
|
|
9. |
|
The chief executive office and mailing address of each Company is located at the address
set forth on part 1 of Schedule 8.2 hereto. |
|
|
10. |
|
The books and records of the Companies pertaining to accounts, contract rights,
inventory, and other assets are located at the addresses specified on part 2 of Schedule 8.2
hereto. |
|
|
11. |
|
The Companies have other places of business and/or maintain 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) set forth on part
3 of Schedule 8.2 hereto. |
|
|
12. |
|
Other than set forth on part 3 of Schedule 8.2, there are no places of business or other
locations of any assets used by the Companies during the last four (4) months, except for
1201 Abiline Place, Knoxville, TN 37917 (Knoxville Distribution Center). |
|
|
13. |
|
There are no judgments or litigation pending by or against any Company, its subsidiaries
and/or affiliates (excluding Delta Apparel Honduras, S.A., Delta Cortes, S.A., Delta
Campeche, S.A. de C.V., Campeche Sportswear, S de R.L. de C.V., Textiles La Paz,
LLC, and Ceiba Textiles, S de R.L.) or any of its officers/principals, except as set forth
on Schedule 8.6 hereto. |
|
|
14. |
|
Each Company is affiliated with, or has ownership in, the corporations (including
subsidiaries) and other organizations set forth on Schedule 8.13 hereto. |
|
|
15. |
|
The names of the stockholders (or members or partners, including general partners and
limited partners) of the Companies and their holdings are as set forth on Schedule 8.13
hereto. |
|
|
16. |
|
No Company has any chattel paper (whether tangible or electronic) or instruments as of
the date hereof, except for the Junkfood Seller Note. |
|
|
17. |
|
There is no provision in the certificate of incorporation or by-laws of any Company (as
applicable) or the other organizational documents of any 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 of its
subsidiaries. Such power is vested exclusively in its Board of Directors. |
|
|
18. |
|
The officers of each Company and their respective titles are as follows: |
|
|
|
|
|
|
|
Delta: |
|
|
|
|
|
|
|
|
|
Robert W. Humphreys
|
|
President and Chief Executive Officer |
|
|
Deborah H. Merrill
|
|
Vice President, Chief Financial Officer, and Treasurer |
|
|
Martha M. Watson
|
|
Vice President and Secretary |
|
|
David Palmer
|
|
Vice President and Assistant Treasurer |
|
|
|
|
|
|
|
Soffe: |
|
|
|
|
|
|
|
|
|
James F. Soffe
|
|
Chief Executive Officer |
|
|
Kenneth D. Spires
|
|
President |
|
|
Deborah H. Merrill
|
|
Vice President, Chief Financial Officer, and Treasurer |
|
|
Anthony M. Cimaglia
|
|
Vice President of Operations |
|
|
Keith Bilyeu
|
|
Vice President of Finance |
|
|
Robert W. Humphreys
|
|
Vice President |
|
|
Martha M. Watson
|
|
Vice President and Secretary |
|
|
|
|
|
|
|
Junkfood: |
|
|
|
|
|
|
|
|
|
Natalie Grof
|
|
Chief Executive Officer |
|
|
Blaine Halvorson
|
|
President |
|
|
Deborah H. Merrill
|
|
Vice President, Chief Financial Office and Treasurer |
|
|
Robert W. Humphreys
|
|
Vice President |
|
|
Martha M. Watson
|
|
Vice President and Secretary |
|
|
|
The following will have signatory powers as to all transactions of each Company
with Lender: |
|
|
|
|
|
Delta: |
|
|
|
|
|
Robert W. Humphreys |
|
|
Deborah H. Merrill |
|
|
Martha M. Watson |
|
|
David R. Palmer |
|
|
|
|
|
Soffe: |
|
|
|
|
|
Robert W. Humphreys |
|
|
Deborah H. Merrill |
|
|
Martha M. Watson |
|
|
David R. Palmer |
|
|
Kenneth D. Spires
Keith Bilyeu |
|
|
|
|
|
Junkfood: |
|
|
|
|
|
Robert W. Humphreys |
|
|
Deborah H. Merrill |
|
|
Martha M. Watson |
19. |
|
The members of the Board of Directors of each Company are: |
|
|
|
Delta: David S. Fraser, William F. Garrett, Elizabeth J. Gatewood, Robert W. Humphreys,
Dr. Max Lennon, E. Erwin Maddrey, II, Philip J. Mazzilli, Jr., Buck A. Mickel and David
Peterson |
|
|
|
Soffe: Robert W. Humphreys, E. Erwin Maddrey, II and Buck A. Mickel |
|
|
|
Junkfood: Robert W. Humphreys, E. Erwin Maddrey, II, Buck A. Mickel, Natalie Grof, and
Blaine Halvorson |
|
20. |
|
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). |
|
21. |
|
Certified Public Accountants for the Companies is the firm of: |
|
|
|
Name: Ernst & Young LLP
Address: Atlanta, Georgia
Partner Handling Relationship: Nick Franz
Were statements uncertified for any fiscal year?: No |
The foregoing gives effect to the closing of the transactions contemplated by the
Third
Amended and Restated Loan and Security Agreement dated September 21, 2007, among Agent, Lenders
and the Companies. Agent and Lenders shall be entitled to rely upon the foregoing in all
respects and the undersigned is duly authorized to execute and deliver this Information
Certificate on behalf of the Companies.
|
|
|
|
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|
|
Very truly yours, |
|
|
|
|
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|
|
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|
|
|
DELTA APPAREL, INC. |
|
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|
|
|
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|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: Deborah H. Merrill |
|
|
|
|
|
|
Title: Vice President, CFO and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
M. J. SOFFE CO. |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
Name: Deborah H. Merrill |
|
|
|
|
|
|
Title: Vice President, CFO and Treasurer |
|
|
|
|
|
|
|
|
|
|
|
JUNKFOOD CLOTHING COMPANY |
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
Name: Deborah H. Merrill |
|
|
|
|
|
|
Title: Vice President |
|
|
SCHEDULE 8.2
to
INFORMATION CERTIFICATE
Locations
A. |
|
Part 1 Chief Executive Office |
|
|
|
Delta:
|
|
2750 Premiere Parkway, Suite 100, Duluth, Georgia 30097 |
Soffe:
|
|
One Soffe Drive, Fayetteville, NC 28312 |
Junkfood:
|
|
2750 Premiere Parkway, Suite 100, Duluth, Georgia 30097 |
B. |
|
Part 2 Location of Books and Records |
|
|
|
In addition to the locations listed in part 1, the Companies have books and records in the
following locations: |
|
|
|
Delta: |
(1) Maiden Plant, P.O. Box 37, 100 West Pine Street, Maiden, NC 28650 maintains
accounts payable and payroll records related to the plant and its operations.
(2) 245
Manor Avenue, Concord, NC 28025 maintains sales, accounts payable,
accounts receivable, inventory, and payroll records related to FunTees division.
Payroll records are also kept at Deltas distribution centers in Cranberry, New Jersey,
Santa Fe Springs, California, Clinton, Tennessee and Miramar, Florida.
|
|
Soffe: One Soffe Drive , Fayetteville, NC 28312 |
Payroll records are also kept at Soffes distribution center in Santa Fe Springs,
California.
|
Junkfood: 11725 Mississippi Avenue, Los Angeles California |
C. |
|
Part 3 Locations of Inventory, Equipment and Other Assets |
|
|
|
Delta: |
|
|
|
|
|
|
|
Owned/Leased/ |
|
Name/Address of Lessor or |
Address |
|
Third Party1* |
|
Third Party, as Applicable |
Greenville Executive Offices
322 South Main Street
Greenville SC 29601
|
|
Leased
|
|
The Peace Center for the
Performing Arts
101 West Broad Street
Greenville, SC 29601 |
|
|
|
|
|
Duluth Executive Offices
2750 Premiere Parkway
Suite 100
Duluth, GA 30097
|
|
Leased
|
|
Duke Realty LP
75 Remittance Drive, Suite 3205
Chicago, IL |
|
|
|
|
|
FunTees Executive Office 245
Manor Avenue
Concord, NC 28025
|
|
Leased
|
|
Funco, Inc.
3496 Milford Court
Concord, NC 28027 |
|
|
|
|
|
Maiden Plant
P.O. Bx 37
100 West Pine Street
Maiden, NC 28650
|
|
Owned |
|
|
|
|
|
|
|
Fayette Plant
1015 Temple Avenue South,
Fayette, AL 35555
|
|
Owned |
|
|
|
|
|
|
|
Clinton Distrobution Center 370
JD Yarnell Industrial Parkway
Clinton, TN 37716
|
|
Owned |
|
|
|
|
|
|
|
New Jersey Distribution Center
Cranbury Business Park
Building #5
5 Santa Fe Way
Cranberry, NJ 08512
|
|
Leased
|
|
Prologis Management, Inc.
P.O. Box 198267
Atlanta, GA 30384-8267 |
|
|
|
1 |
|
Indicate in this column next to applicable address whether the location is owned by the
Company, leased by the Company or owned and operated by a third party (e.g., warehouse,
processor, consignee, etc.) |
|
|
|
|
|
|
|
Owned/Leased/ |
|
Name/Address of Lessor or |
Address |
|
Third Party1* |
|
Third Party, as Applicable |
Florida Distribution Center
11500 Miramar Parkway
Suite 100
Miramar, FL 33025
|
|
Leased
|
|
Industrial Property Fund VI, LLC
P.O. Box 404685
Atlanta, GA 30384-4685 |
|
|
|
|
|
California Distribution Center
13220 Orden Drive
Santa Fe Springs, CA 90670
|
|
Leased
|
|
Golden Springs Development
Company, LLC
13116 Imperial Highway
Santa Fe Springs, CA 90670 |
|
|
|
|
|
Alabama Distribution Center
110 North Bypass
Andalusia, Alabama
|
|
Leased
|
|
Andala Enterprises, Inc.
P.O. Box 9414
Pensacola, FL 32513 |
|
|
|
|
|
New York Sales Offices
1431 Broadway
New York, NY 10018
|
|
Leased
|
|
G&S Realty 1, LLC
450 7th
Avenue Penthouse
New York, NY 10123-0101 |
|
|
|
|
|
FunTees Design
2583 Armentrout Drive
Concord, NC
|
|
Leased
|
|
The Glass Interests, LLC
P.O. Box 442
Concord, NC 28026 |
|
|
|
|
|
FunTees Samples
Andrews Street, Plant 10
Concord, NC
|
|
Leased
|
|
DPM of the Carolinas, LLC
484 Cabarrus Avenue
Concord, NC 28027 |
|
|
|
|
|
Honduras Plant (approx. 70,000
square feet)
Zip Buena Vista
Carretera a Tegucigalapa
Villanueva, Cortes
Honduras, C.A.
|
|
Leased
|
|
ZIP Buena Vista, S.A.
Carretera a Tegucigalpa
Edificio Administrative
Villanueva, Cortes, Honduras |
|
|
|
|
|
Honduras Plant (approx. 52,000
square feet)
Zip Buena Vista
Carretera a Tegucigalapa
Villanueva, Cortes
Honduras, C.A.
|
|
Leased
|
|
ZIP Buena Vista, S.A.
Carretera a Tegucigalpa
Edificio Administrative
Villanueva, Cortes, Honduras |
|
|
|
|
|
|
|
Owned/Leased/ |
|
Name/Address of Lessor or |
Address |
|
Third Party1* |
|
Third Party, as Applicable |
Mexico Plant (Delta Campeche)
Barretera Federal 180
Clonia El Molon Tramo
Campeche-Bhamtocon,
Seybatlaya, Campeche Mexico
|
|
Leased
|
|
Consorcion de Servicios
de Campeche, S.A. de C.V.
Carretera antg a Hampolol K.M.
4.5 Colonia Fidel Velazquez
San Francisco de Campeche
Campeche Mexico |
|
|
|
|
|
Mexico Plant
(Campeche Sportswear)
Carretera antg a Hampolot
KM 4.5 Colonie Fidel
Velazquez
San Francisco
de Campeche
Campeche
Mexico
|
|
Leased
|
|
Consorcion de Servicios
de Campeche, S.A. de C.V.
Carretera antg a Hampolol K.M.
4.5 Colonia Fidel Velazquez
San Francisco de Campeche
Campeche Mexico |
|
|
|
|
|
El Salvador Plant
(Textiles La Paz) Km
461/2 Carretera a La
Herradura, Zona Franca El
Pedregal Rosario,
La Paz, El Salvador
|
|
Leased
|
|
Zona Franca de
Exportacion el Pedregal, S.A.
Km 46 ½ Carretera a La
Herradura Zona Franca El
Pedregel El Rosario
La Paz, El
Salvador |
|
|
|
|
|
Ceiba Textiles
Plant Green Valley
Industrial Park Kilometro
26 Carretera de Occidente
Quimistan Santa Barbara, Honduras
|
|
Leased
|
|
Green Valley Industrial
Park S.A. de C.V. Edificio
Administrativo Kilometro 26
Carretera de Occidente
Quimistan Santa Barbara,
Honduras |
|
|
|
|
|
|
|
Owned/Leased/ |
|
Name/Address of Lessor or |
Address |
|
Third Party1* |
|
Third Party, as Applicable |
Amitex Zona Franca
San Marco Edificio No. 5
San Marco, San Salvador,
El Salvador
|
|
Contractor |
|
|
|
|
|
|
|
Fashion Knits S.A.
de C.V. Calle 3 S/N X 20 Y 22 Rumbo Petac Halacho,
Yucatan, Mexico
|
|
Contractor |
|
|
|
|
|
|
|
Advance Print
Works, S.A. de C.V. Calle
Hecelchacanillo S/N Intl
Entre Av.Governadores Y
Calle Tamaulipas Col.
Santa Ana CP.24050
Campeche, Campeche,
Mexico
|
|
Contractor |
|
|
Soffe:
|
|
|
|
|
|
|
|
Name/Address
of Lessor or |
Address |
|
Owned/Leased/Third Party |
Third Party, as Applicable |
Fayetteville Executive Offices
and Plant
One Soffe Drive
Fayetteville, NC 28312
|
|
Owned |
|
|
|
|
|
|
|
Maintenance Shop
713 Dunn Road
Fayetteville, NC 28312
|
|
Owned |
|
|
|
|
|
|
|
Warehouse
824-826 Shannon Drive
Fayetteville, NC 28303
|
|
Leased
|
|
Dorothy McAllister
P.O. Box 1610
Pinehurst, NC 28374 |
|
|
|
|
|
Rowland Plant
13750 US 301 South
Rowland, NC
|
|
Owned |
|
|
|
|
|
|
|
Distribution Center
|
|
Leased
|
|
Middle Road Properties |
|
|
|
|
|
|
|
|
|
Name/Address of Lessor or |
Address |
|
Owned/Leased/Third Party |
|
Third Party, as Applicable |
1030 Fort Worth Avenue
Fayetteville, NC 28312
|
|
|
|
One Soffe Drive
Fayetteville, NC 28312 |
|
|
|
|
|
Lansing Distribution Center
919 Filley Street
Lansing, MI 48906
|
|
Leased
|
|
Spadafore Distributing Company
635 Filley Street
Lansing, MI 48906 |
|
|
|
|
|
California Distribution Center
13220 Orden Drive
Santa Fe Springs, CA 90670
|
|
Leased
|
|
Golden Springs Development
Company, LLC
13116 Imperial Highway Santa Fe Springs, CA 90670 |
|
|
|
|
|
New Jersey Distribution Center
Cranbury Business Park
Building #5
5 Santa Fe Way
Cranberry, NJ 08512
|
|
Leased
|
|
Prologis Management, Inc.
P.O. Box 198267
Atlanta, GA 30384-8267 |
|
|
|
|
|
Florida Distribution Center
11500 Miramar Parkway
Suite 100
Miramar, FL 33025
|
|
Leased
|
|
Industrial Property Fund VI, LLC
P.O. Box 404685
Atlanta, GA 30384-4685 |
|
|
|
|
|
Navy Exchange Building
3503 Mississippi Street
MF Recruit Store
Great Lakes, IL 60088
|
|
Third Party
[assigned space in
warehouse on United States
owned naval base] |
|
|
|
Soffe Outlet Store
49JR Road
Queens Square Shopping
Center
Selma, NC 27576
|
|
Leased
|
|
Abdalla Building Partnership
c/o Carolina Apparel
PO Box 249
Selma, NC 27576 |
|
|
|
|
|
All Star Lettering Co.
13220 Orden Drive
Santa Fe Springs, CA 90670
|
|
Decoration Contractor |
|
|
|
|
|
|
|
Amitex
Zona Franca San Marcas
Edificio No. 5
San Marcos,
|
|
Contractor |
|
|
|
|
|
|
|
|
|
|
|
Name/Address of Lessor or |
Address |
|
Owned/Leased/Third Party |
|
Third Party, as Applicable |
El Salvador, C.A. |
|
|
|
|
|
|
|
|
|
Apple Tree
Zona Franca San Marco
Edificio, San Salvador
El Salvador, CA
|
|
Contractor |
|
|
|
|
|
|
|
AMBAR Industries. Ltd.
Zona Franca La Vega
La Vega
Domincan Republic
|
|
Contractor |
|
|
|
|
|
|
|
AMBAR Industries, Ltd.
5901 Miami Lakes Drive East
Miami Lakes, FL 33104-6140
|
|
Contractor |
|
|
|
|
|
|
|
Chi Fung, S.A. de C.V.
Carretera Troncol Del Norte
Km 12.5
Apopa, San Salvador
El Salvador
|
|
Contractor |
|
|
|
|
|
|
|
Hermonos Textiles
Zona Franca San Marco
San Salvador
|
|
Contractor |
|
|
Junkfood:
|
|
|
|
|
|
|
Owned/Leased/ |
|
Name/Address of Lessor or |
Address |
|
Third Party* |
|
Third Party, as Applicable |
11725 and 11727 Mississippi
Avenue, Los Angeles California
|
|
Leased
|
|
Mississippi Associates, Ltd.
433 N. Camden Drive, Suite 82-
Beverly Hills, CA 90210 |
|
|
|
|
|
Suite 314,
525 5th Avenue,
NY NY
|
|
Leased
|
|
525 Building Co., LLC
c/o Olmstead Properties
575 8th Avenue #2400
New York, NY 10018 |
|
|
|
|
|
3280 Industry Drive,
Signal Hill, CA 90755.
|
|
Third Party
|
|
Oceanaire Sportswear Inc.
(screen printer) |
SCHEDULE 8.6
to
INFORMATION CERTIFICATE
Pending Litigation
No Company makes any representation regarding any judgments or litigation pending or against its
officers or principals except judgments or litigation involving such individuals in their official
capacity as officers or principals of such Company.
Delta and Soffe:
On May 17, 2006, adversary proceedings were filed in U.S. Bankruptcy Court for the Eastern
District of North Carolina against both Delta Apparel, Inc. and M. J. Soffe Co. in which the
bankruptcy trustee, on behalf of the debtor National Gas Distributors, LLC, alleges that Delta and
Soffe each received avoidable transfers of property from the debtor. The amount of the claim is
approximately $0.7 million plus interest against Delta, and approximately $0.2 million plus
interest against Soffe. We contend that the claims of the trustee have no merit, and have filed
counterclaims, totaling approximately $0.4 million, in the adversary proceedings.
Delta:
Rafael Olay filed suit in Miami-Dade County, Florida against Delta alleging that he was injured
when he slipped on an exit ramp while exiting Deltas distribution center in Florida. Mr. Olay is a
truck driver for Dynasty Apparel Industries, Inc. and was picking up boxes of clothing at the
distribution center on the date of the accident. He alleges that the exit ramp had a build up of
grease or oil and that Delta was negligent in that it knew or should have known about a hazardous
condition and failed to warn of or correct the condition. Deltas insurance company is handling
this lawsuit.
Yesenia Castillo has filed a complaint with the EEOC against Delta alleging discrimination based
on sex and national origin (EEOC charge no 430-2007-01340). Delta has submitted a position
statement with the EEOC and has also responded to the EEOCs request for information.
Nicholas
Crespo filed a complaint against Delta on May 17, 2007 in Catawba County, North Carolina
alleging wrongful discharge, violation of the North Carolina Wage and Hour Act, and breach of
contract. Delta has removed the case to the United States Discourt Court for the Western District
of North Carolina.
Soffe:
Soffe has received an e-mail communication from DAndrea Brothers LLC, which claims to have a
registered trademark for Hooah. D Andrea Brothers LLC alleges that Soffes use of the word
Hooah on its shirts infringes its trademark and has demanded that Soffe discontinue its use or
pay royalties. Soffe intends to stop production of the shirts that incorporate the word Hooah.
Soffe has received an e-mail communication from Gregory James seeking compensation for ideas
he shared with Soffe with regard to an advertising campaign by Soffe in search of The Next Face of
Soffe.
Junkfood:
None.
SCHEDULE 8.13
to
INFORMATION CERTIFICATE
Subsidiaries;
Affiliates; Capitalization
A. Subsidiaries (More than 50% owned by
Company)
Delta:
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
Name |
|
Incorporation |
|
Percentage Owned |
M. J. Soffe Co. |
|
North Carolina |
|
|
100 |
% |
Junkfood Clothing Company |
|
Georgia |
|
|
100 |
% |
Delta
Apparel Honduras, S.A. |
|
Honduras |
|
|
100 |
%* |
Delta Cortes, S.A. |
|
Honduras |
|
|
100 |
%* |
Delta Campeche, S.A. de C.V. |
|
Mexico |
|
|
100 |
%* |
Textiles La Paz, LLC |
|
North Carolina |
|
|
100 |
% |
Campeche
Sportswear, S. de
R.L. de C.V. |
|
Mexico |
|
|
100 |
%* |
Ceiba Textiles, S de R.L. |
|
Honduras |
|
|
100 |
%* |
* |
|
See paragraph 8 of this Information Certificate. |
Delta is in the process of organizing Atled Holding Company Honduras, S de R.L. and La Paz
Honduras, S de R.L. as Honduran companies.
B. Affiliates
Delta
Apparel Honduras, S.A. has a 15% interest in Green Valley Industrial Park, S.A.
Delta is a publicly traded corporation. Persons who, to Deltas knowledge, beneficially
own more than 5% of the issued and outstanding stock are identified in Deltas proxy
statement filed on September 14, 2007 under the table entitled Stock Ownership of
Principal Shareholders and Management. From time to time, persons may acquire beneficial
ownership of more than 5% of Deltas outstanding capital stock and such persons are
required to make filings with the Securities and Exchange Commission to disclose such
ownership of Deltas capital stock.
C. Capitalization
Delta is a publicly traded corporation. See Section B. (Affiliates) above.
Each of Soffe and Junkfood is wholly owned by Delta.
Karims
Group owns 51%, Parkdale Mills, Inc. owns 24% and Elbatex owns 10% of Green Valley
Industrial Park, S.A.
See paragraph 8 of this Information Certificate.
SCHEDULE 1.21
to
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Commitments
|
|
|
|
|
|
|
|
|
|
|
|
|
Name of Lender |
|
Commitment |
|
1. |
|
|
Wachovia Bank, National Association |
|
$ |
60,000,000 |
|
|
2 |
|
|
The CIT Group/Commercial Services, Inc. |
|
$ |
20,000,000 |
|
|
3. |
|
|
IDB Bank |
|
$ |
20,000,000 |
|
- i -
Schedule 1.24
Customs Brokers
Smith Logistics International
10800 Northwest 97th Street
Suite 102
Miami, FL 33178
Contact: Igort Delhaya
Telephone 305 953 4100
Page and Jones
52 N. Jackson Street
POB 2167
Mobile, AL
Telephone 251-432-1646
US Customs and Trade Services
10801 N.W. 97th Street Suite 1
Miami, FL 33178
Telephone 305-477-7096
Schedule 1.47
Excluded Real Property
None.
Schedule 1.89
Permitted Holders
None.
Schedule 8.2
Chief Executive Office; Collateral Locations
Schedule 8.2 to the Information Certificate is incorporated by reference herein.
Schedule 8.4
Existing Liens
Delta:
1. Security interest granted to Gaston County Dyeing Machine Company securing a Gaston
County Millennium Dyeing Machine.
2. Security interest in favor of Vanguard Supreme securing Circular Knitting Machine.
3. Security interest in favor of Inter-Tel Leasing Inc. securing Access Telephone System.
4. Security interest in favor of Thompson Tractor Co., Inc. securing Caterpillar GCI 5K Lift
Truck.
5. Security interests in favor of Tubular Textile LLC and FB Commercial Finance, Inc. securing
lease of 40 Paknit II Folding Compactor
6. Notice filings for (or, if the underlying leases are deemed to be sales, liens on) certain
equipment and/or software leased by Delta from Fab-Con Machinery Development Corp.,
Citicorp Leasing, Inc., IBM Credit LLC, Inter-Tel Leasing Inc., GE
Capital,, Minolta Business
Systems, Konica Minolta Business Solutions USA, Inc.
7. Security interest of Thies Corporation in a Luft Roto Plus 2 Port Fabric Dyeing Machine
8.
Security interest of Sclavos International in a Sclavos Athena High Temperature Fabric Dyeing Machine
Soffe:
|
|
|
|
|
|
|
|
|
File No. of Financing |
Name and Address |
|
|
|
Statement/Jurisdiction |
of Secured Party |
|
Description of Collateral |
|
(Optional) |
Canon Financial
Services, Inc. 200
Commerce Square
Blvd. Burlington,
NJ 08016
|
|
Equipment Lease
|
|
99-5025/Cumberland
County Registrar of
Deeds |
|
|
|
|
|
Canon
Financial Services,
Inc. 200 Commerce
Square Blvd.
Burlington, NJ
08016
|
|
Equipment Lease
|
|
19990080369/North
Carolina Secretary of
State |
In addition, pursuant to Contract No. 26575 dated May 1, 2003 and amended May 28, 2003
between Soffe and Cheraw Yarn Mills, Inc., Soffe granted to Cheraw Yam Mills, Inc. a security
interest in all goods sold by Cheraw Yarn Mills, Ins. to Soffe pursuant to the contract.
Pursuant to two Sales Contracts dated October 2, 2001 between Soffe and Gaston County Dyeing
Machine Company, Soffe granted to Gaston County Dyeing Machine Company a
security interest in all goods sold by Gaston County Dyeing Machine Company to Soffe
pursuant to the contracts.
Junkfood:
Factor Primary Collateral, as defined in the Factor Intercreditor Agreement.
Junkfood has the following existing lien with Continental Business Credit:
|
|
|
|
|
|
|
|
|
File No. of Financing |
Name and Address |
|
|
|
Statement/Jurisdiction |
of Secured Party |
|
Description of Collateral |
|
(Optional) |
Continental
Business
Credit, Inc.
21031
Ventura
Boulevard,
Suite 900
Woodland
Hills, CA
91364
|
|
All now existing and
future accounts
purchased by Junkfood,
instruments, chattel
paper, etc.; unpaid
sellers rights; rights
to any inventory the
sale of which creates
Accounts; reserves and
credit balances; cash
and non-cash proceeds of
Accounts, etc. blanket
filing
|
|
GA #060200608281
filed on July 3,
2006. |
Schedule 8.7
Permits
1. Wastewater Treatment NPDES Permit No. NC0006190, expires May 31, 2011.
2. Permit No. WQ0006984, Land Application of Wastewater Residuals, expires September
30, 2009.
3. Air Permit No. 03922R14, expires September 30, 2010
4. Underground Storage Tank Oeprating Permit; Certificate No. 2007001790, Expires
12/31/2007
5. Air Discharge Permit # 06997R06, expires September 30, 2010
6. Water
Use Permit # 2113RF, expires June 30, 2008
Schedule 8.9
Environmental Matters
Delta is not in compliance with the 1,000,000 gallon per day effluent flow limit under its NPDES
permit relating to its Maiden Plant. Delta informed the North Carolina DWQ Compliance Section of
this limit violation by letter dated June 18, 2007.
Soffes Fayetteville Plant does not have storm water discharge permit. Soffe intends to erect a
containment wall around the waste water tank at that facility and then apply for a storm water
discharge permit.
Schedule 8.11
Bank Accounts
The Companies maintain the following deposit accounts with Wachovia Bank, National Association:
Delta
Collection Account
Junkfood
Collection Account
Soffe
Collection Account
Delta
Disbursement Account
Delta
Payroll Account
Delta
Accounts Payable
Junkfood
Disbursement Acct
Soffe
Accounts Payable
Delta (FunTees)
Benefit Account
Delta (FunTees)
Division Account
* |
|
Portions of this exhibit have been omitted pursuant to a
request for confidential information and have been filed separately
with the Securities and Exchange Commission.
|
NC Factory Account
* |
|
Portions of this exhibit have been omitted pursuant to a
request for confidential information and have been filed separately
with the Securities and Exchange Commission.
|
Schedule
8.12
Intellectual Property
Delta:
Trademarks
|
|
|
|
|
DELTA EST. 1903 (Reg. No. 2,294,154)
|
|
PTO registration
|
|
Nov. 23, 1999 |
|
HEALTHKNIT (Reg. No. 1,955,069)
|
|
PTO registration
|
|
Feb. 6, 1996 |
|
ROYAL FIRST CLASS (Reg. No. 1,405,930)
|
|
PTO registration
|
|
Aug. 19, 1986 |
|
PRO WEIGHT (Reg. No. 1,463,625)
|
|
PTO registration
|
|
Nov. 3, 1987 |
|
HEALTHKNIT (Reg. No. 644,790)
|
|
PTO registration
|
|
Apr. 30, 1957 |
|
HEALTHKNIT (Reg. No. 543,705)
|
|
PTO registration
|
|
June 12, 1951 |
|
QUAIL HOLLOW (Reg. No. 936,138)
|
|
PTO registration
|
|
June 20, 1972 |
|
MAGNUM WEIGHT (App. No. 76/611,106)
|
|
PTO application
|
|
Nov. 29, 2005 |
|
FUN TEES (Reg. No. 1911515)
|
|
PTO registration
|
|
August 15, 1995 |
|
|
|
|
|
Listed on U.S. PTO website as being registered to another entity (Chadbourn,
Inc.) |
Domain Names
www.deltaapparel.com
www.funtees.com
http://campechesportswear.com
Soffe:
Trademarks
1. Owned
|
|
|
|
|
|
|
|
|
|
|
|
|
Expiration |
Trademark |
|
Registration Number |
|
Registration Date |
|
Date |
SOFFE (Word Mark)
|
|
1743249
|
|
Clothing, namely
jackets, jerseys, tee
shirts, shorts, sweat pants,
sweatshirts, and sweat suits
|
|
1/29/1992 (renewed) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Expiration |
Trademark |
|
Registration Number |
|
Registration Date |
|
Date |
SOFFE DRI (Design plus Words)
|
|
77012671
|
|
Approved for publication 8/23/07 |
|
SOFFE DRI COTTON (Design plus Words))
|
|
3053916
|
|
January 23, 2006 |
|
SOFFE DRI SWEATS (Design plus Words)
|
|
77012801
|
|
Approved for publication 8/23/07 |
|
SOFFE (Design plus Words)
|
|
3053916
|
|
January 31, 2006 |
|
|
|
|
|
Trademark Application |
|
Application/Serial Number |
|
Application Date |
Cape Fear Trading Company
(ITU Application)
|
|
76271105
|
|
June 14, 2001 The
final review before
registration has been
completed for this Intent
to Use application and it
will register in due
course as of
9/19/2007. |
Domain Names
www.soffe.com
www.mjsoffe.com
2. Licensed
The
following is a list of colleges and universities that have licensed trademarks to Soffe.
Trademark licenses for approximately 40 of these colleges and universities were granted to
Soffe by Licensing Resource Group pursuant to the Licensing Resource Group Standard Licensing
Agreement dated August 16, 1996, as amended. Trademark licenses for approximately 130 of these
colleges and universities were granted to Soffe by The Collegiate Licensing Company pursuant
to the License Agreement to Use Licensed Indicia of Member Universities dated May 17, 1995,
as amended. The remaining trademark licenses were granted to Soffe pursuant to individual
agreements with the applicable college or university.
Alabama at Birmingham
Alabama Express
Alabama at Tuscaloosa
Alaska at Anchorage, University
of
Appalachian State University
Arizona State University
Arizona, University of
Arkansas at Fayetteville,
University of
Arkansas at Monticello,
University of
Auburn University
Ball State University
Baylor University
Belmont University Bkst/NACS
Bemidji State University
Boise State
Boston College
Boston University
Bowling Green State
Bradley University
Brigham Young University
Brown University*
Bucknell Univ. Bookstore
Cal State at Long Beach
California at Berkeley,
University of
California at Davis, University
of
California State at Chico
California State at Fullerton
California State at Long Beach
Campbell University
Carnegie Mellon University
Carroll College Bookstore
Central Florida, University of
Central Missouri State
Central Washington University*
Charleston, College of
Cincinnati, University of
Citadel
Clarion University of PA
Clemson University
Coastal Carolina University
Colgate University
Colorado State University
Colorado, University of
Concordia College
Connecticut, University of
Cornell University
Creighton University
Dayton, University of
Delaware, University of
Denison University
Drake University
Duke University
East Carolina University
Eastern Washington Univ. Bkst.
Florida A&M
Florida Gulf Coast
Florida International University
Foundation
Florida State University
Florida, University of
Florida, University of (Gator Head)
Fresno State University
Georgetown College (Kentucky)
Georgia Southern College
Georgia Tech
Georgia Athletic Association
Gonzaga University
Grand Valley State University
Harvard University
Howard University
Idaho State
Illinois State University
Illinois, University of
Indiana University of
Indiana University Research & Tech
Pennsylvania
Iowa State
Iowa, University of*
IUPUI
Ivy Tech State College
Ivy Tech State (not bkst)
Jackson State University
Jacksonville State University
James Madison University
Kansas State University
Kansas, University of
Kent State University
Kentucky, University of
Kenyon College Bookstore
Kutztown University
Lafayette College
Lehigh University
Lincoln University
Louisiana at Lafayette,
University of
Louisiana at Monroe
Louisiana State University
Louisiana Tech University
Louisville, University of
Loyola College (Baltimore, MD)
Loyola University at New Orleans*
Loyola University (Chicago, IL)
Maine, University of
Marquette University
Marshall University
Maryland at Baltimore,
University of
Maryland, University of
McNeese State University
Memphis, University of
Miami University of Ohio
Miami, University of
Michigan State University
Michigan Technology
University*
Michigan, University of
Middle Tennessee State
Minnesota at Minneapolis,
University of
Minnesota at Moorhead,
University of*
Minnesota State University at
Mankato
Mississippi State University*
Mississippi Valley State
University*
Mississippi, University of
Missouri at Columbia,
University of
Missouri Western State College
Missouri-Kansas City
Montana State
Montana State at Billings
Montana, University of
Morehead State University
(Kentucky)
Murray State University
Nebraska at Omaha, University of
Nebraska, University of
Nevada at Las Vegas, University
of
Nevada at Reno, University of
New Hampshire, University of
New Mexico State
New Mexico, University of
New Orleans, University of
New York University
North Alabama, University of
North Carolina at Charlotte
North Carolina Central
University
North Carolina at Greensboro
North Carolina at Wilmington
North Carolina A&T, University
of
North Carolina State University
North Carolina, University of
North Dakota State
North Dakota State College of
Science
North Dakota, University of
North Dakota, University of
(New Sioux)
North Texas, Univ of
Northern Arizona University
Northern Colorado, University
of
Northern Illinois University
Northern Iowa, University of
Northwest Missouri State Univ
Northwestern State University
Northwestern University
Notre Dame, University of
Ohio State University
Ohio University
Oklahoma State University
Oklahoma, University of
Oregon State University
Oregon, University of
Penn State University
Pennsylvania, University of
Pittsburgh State University
Pittsburgh (PA), University of
Portland State University
Presbyterian College (PERF GRX)
Princeton University
Purdue University
Rice University
Richmond, University of
Rutgers University
Saint Louis University
San Diego State University
Slippery Rock University
South Alabama, University of
South Carolina, University of
South Dakota at Vermillion,
University of
San Francisco State University
San Jose State University
Sinclair Community College
South Dakota State University
South Florida, University of
Southeast Missouri State University
Southern Arkansas
Southern California, University of
Southern Illinois, University of
Southern Mississippi, University of
Southern University (Baton Rouge)
Southern Utah University
Southwest Missouri State University
St. Cloud State University
Stanford University
State University of NY at
Buffalo
State University of NY at
Fredonia
Stephen F. Austin University
Syracuse University
Tennessee at Knoxville,
University of
Tennessee Lady Vols
Tennessee State University
Texas at Austin, University of
Texas at El Paso, University of
Texas A&M University
Texas A&M University-Corpus Christi
Texas A&M University-Commerce
Texas at Brownsville
Texas at Dallas, Univ of
Taxas at Tyler, Univ of
Texas State Tech College
Texas State University
Texas Tech University
Toledo, University of
Troy State University
Tulsa, University of
UCLA
UIC Flames
UNC at Pembroke
University of North Carolina at
Asheville
University of Evansville
University of Georgia Bookstore
University of Montana-Western
University of West Georgia
Utah Valley State College
Bookstore
US Air Force Academy
US Army Accessions Command
US Military Academy at West
Point
US Naval Academy
Utah, State University
Utah, University of
Valdosta State University
Vanderbilt University
Vermont, University of
Villanova University
Virginia State University
Virginia Tech
Virginia, University of
Wake Forest University
Washburn University
Washington State University
Washington University (St.
Louis)
Washington, University of
West Point Crest, The
West Texas A&M University
West Virginia University
Western Carolina University
Western Kentucky, University
of
Western Michigan
Western Washington University
Wichita State University
William & Mary, College of
Wisconsin at Green Bay,
University of
Wisconsin at Madison,
University of
Wisconsin at River Falls,
University of
Wright State University
Wyoming, University of
Xavier University
Youngstown State University
Soffe has also been granted trademark licenses from the following licensors:
Airforce Nascar
Army of One Nascar
Black Ink Design
CLC
Licensing Resource Group
Ora McMillan
Richard B. Davies
Garigo Productions
David Deal
Diann Wall-Wilson
Dick Kramer Studios Inc.
Fabcom-Gulwing Machine
Margaret Hook
Kathi Hayes McCrainie
No Distractions
No Hair Sportswear LLC
Casey Martinez
NCAA Championship Womens Volleyball
NCAA Football Champions
NCAA Championship Basketball
No Distractions
Screenprint USA Inc.
Solana Graphic Design Studio
Stephen F Austin
White House Commission on Remembrance
Domain Name
www.soffe.com
Junkfood:
Trademarks/Trade Names
|
|
|
|
|
|
|
Mark/Name |
|
Country |
|
Application # |
|
Registration # |
Junk Food
|
|
United States
|
|
75/800,195
|
|
2,589,059 |
Junk Food
|
|
Canada
|
|
|
|
TMA685907 |
Junk Food
|
|
United States
|
|
78/218,446 |
|
|
Junk Food Gourmet
|
|
United States
|
|
78/560,398 |
|
|
Sweet N Sour
|
|
Canada
|
|
1162534
|
|
TMA666948 |
Vitamin T
|
|
Canada
|
|
1162536
|
|
Abandoned 5/29/06 |
Vitamin T
|
|
United States
|
|
76/383,769
|
|
2,863,263 |
Junk
Mail
(standard character
mark)
|
|
United States
|
|
78995344
|
|
3286389 (registered 8/28/07) |
Sweet and Sour
(Design plus Words)
|
|
United States
|
|
78828746
|
|
Opposition
period completed, a Notice
of Allowance has been
issued as of 5/22/2007 |
Domain Names
junkfoodforever.com
junkfoodclothing.com
Schedule 8.15
Labor Matters
None.
Schedule 8.17
Material Contracts
1. Amended and Restated Stock Purchase Agreement dated as of October 3, 2003 among
Delta Apparel, Inc., MJS Acquisition Company, M. J. Soffe Co., James F. Soffe, John D. Soffe,
and Anthony M. Cimaglia, as amended by First Amendment dated as of November 10, 2004.
2. Asset
Purchase Agreement dated as of August 22, 2005 among Delta Apparel, Inc.,
Junkfood Clothing Company, Liquid Blaino Designs, Inc., d/b/a
Junkfood Clothing, Natalie
Grof, and Blaine Halvorson.
3. Asset
Purchase Agreement dated as of August 17, 2006 among Delta
Apparel, Inc., FunTees, Inc., Henry T. Howe, James C. Poag, Jr.,
Beverly H. Poag, Lewis G. Reid, Jr., Kurt R.
Rawald, Larry L. Martin, Jr., Julius D. Cline and Marcus F. Weibel.
4. Industrial Lease Agreement dated as of October 3, 2003 between M. J. Soffe Co. and
Middle Road Properties, LLC.
5. Yarn
Supply Agreement dated as of January 5, 2005 between Delta Apparel, Inc. and
Parkdale Mills, LLC.
6. Factoring Agreement dated as of August 6, 2007 between Junkfood Clothing Company
and The CIT Group/Commercial Services, Inc.
Schedule 9.9
Existing Indebtedness
1. The Junkfood Seller Note.
2. Potential earn-out payments to sellers in connection with the Junkfood Acquisition.
3. The Junkfood Seller Guaranty.
4. Obligations pursuant to the ISDA Master Agreement dated as of December 27, 2006
between Wachovia Bank, National Association and Delta, Rate Collar Transaction
Confirmation dated April 2, 2007, and Swap Transaction Confirmation dated April 2, 2007.
5. Delta Apparel Honduras, S.A. may be liable for Indebtedness of Ceiba Textiles, S de R.L.
as a result of its ownership of a 15% equity interest in Ceiba Textiles, S de R.L.
Schedule 9.10
Loans, Investments, Guarantees, Etc.
See Schedule 9.9.
Schedule 9.12
Transactions with Affiliates
Ceiba Textiles, S de R.L leases property in Green Valley Industrial Park from Green Valley
Industrial Park, S.A.