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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE
TRUST INDENTURE ACT OF 1939
LOEHMANN'S HOLDINGS INC.
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(NAME OF APPLICANT)
2500 HALSEY STREET, BRONX, NY, 10461
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
11% Senior Notes due 2005 $45,000,000
Approximate date of issuance: September 15, 2000
Name and address of agent for service: Robert Glass
c/o Loehmann's, Inc.
2500 Halsey Street
Bronx, New York 10461
(718) 409-2000
With a copy to:
John C. Kennedy, Esq.
Paul, Weiss, Rifkind,
Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
GENERAL
1. GENERAL INFORMATION. Furnish the following as to the applicant:
(a) Form of organization.
A corporation.
(b) State or other sovereign power under the laws of which organized.
Delaware.
2. SECURITIES ACT EXEMPTION APPLICABLE. State briefly the facts relied
upon by the applicant as a basis for the claim that registration of
the indenture securities under the Securities Act of 1933 is not
required.
Loehmann's Holdings Inc., a Delaware corporation (the "Company"), proposes
to issue, as part of the Second Amended Plan of Reorganization of Loehmann's,
Inc. (as modified on July 28, 2000, the "Plan of Reorganization"), its 11%
Senior Notes due 2005 (the "Senior Notes"). Pursuant to the Plan of
Reorganization, the creditors of Loehmann's, Inc. will receive, at their
election, Senior Notes and/or common stock of the Company, in the amounts
specified in the Plan of Reorganization. On July 28, 2000, the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court") approved
the Company's Disclosure Statement accompanying the Plan of Reorganization (as
modified on July 28, 2000,
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the "Disclosure Statement") as containing "adequate information" for the purpose
of soliciting votes of holders of claims against Loehmann's, Inc. for acceptance
or rejection of the Plan of Reorganization (Case No. 99-1138(MFW)). A copy of
the Disclosure Statement, with the Plan of Reorganization annexed thereto as an
exhibit, is attached hereto as Exhibit T3E. The Senior Notes are to be issued
under an indenture (the "Senior Note Indenture") between the Company and United
States Trust Company of New York, a form of which is attached hereto as Exhibit
T3C.
The Company believes that the issuance of the Senior Notes is exempt from
the registration requirements of the Securities Act of 1933 (the "Securities
Act") pursuant to Section 1145(a)(1) of the United States Bankruptcy Code (the
"Bankruptcy Code"). Generally, Section 1145(a)(1) of the Bankruptcy Code exempts
the issuance of securities from the registration requirements of the Securities
Act and equivalent state securities and "blue sky" laws if the following
conditions are satisfied: (i) the securities are issued by a debtor, an
affiliate participating in a joint plan of reorganization with the debtor, or a
successor of the debtor under a plan of reorganization, (ii) the recipients of
the securities hold a claim against, an interest in, or a claim for an
administrative expense against, the debtor, and (iii) the securities are issued
entirely in exchange for the recipient's claim against or interest in the
debtor, or are issued "principally" in such exchange and "partly" for cash or
property. The Company believes that the issuance of securities contemplated by
the Plan of Reorganization will satisfy the aforementioned requirements.
AFFILIATIONS
3. AFFILIATES. Furnish a list or diagram of all affiliates of the
applicant and indicate the respective percentages of voting securities or other
bases of control.
The following sets forth the relationship among the Company and all of its
affiliates, including their respective percentages of voting securities, as of
August 4, 2000.
OWNERS OF COMPANY
The Company was incorporated on August 2, 2000, and has not issued any
stock. The directors and officers of the Company are Robert N. Friedman and
Robert Glass.
The following diagram sets forth the relationship among the Company and
all of its affiliates, including their respective percentages of voting
securities, upon the effectiveness of the Plan of Reorganization (the "Effective
Date").
1. OWNERS OF COMPANY % *
a. Officers and Directors as a group..............12.0
b. Alpine Associates, L.P.........................14.4
* Assumes that certain distribution elections are made in connection
with the Plan of Reorganization.
2. SUBSIDIARY OF COMPANY (100% owned)
a. Loehmann's, Inc.
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MANAGEMENT AND CONTROL
4. DIRECTORS AND EXECUTIVE OFFICERS. List the names and complete mailing
addresses of all directors and executive officers of the applicant and all
persons chosen to become directors or executive officers. Indicate all offices
with the applicant held or to be held by each person named.
The following chart sets forth the directors and executive officers of
the Company, as of August 4, 2000. Except as otherwise noted below, the address
for each director and executive officer listed below is 2500 Halsey Street,
Bronx, New York 10461.
NAME OFFICE
Robert N. Friedman Chairman and CEO
Robert Glass President, Chief Operating Officer,
Secretary & Treasurer
The following chart sets forth the persons chosen to be directors and
executive officers of the Company upon the Effective Date.
NAME OFFICE
Robert N. Friedman Chairman and CEO
Robert Glass President, Chief Operating Officer,
Secretary & Treasurer
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5. PRINCIPAL OWNERS OF VOTING SECURITIES. Furnish the following
information as to each person owning 10 percent or more of the voting securities
of the applicant.
The Company was incorporated on August 2, 2000, and has not issued any
stock.
Upon the effectiveness of the Plan of Reorganization, the Company will
have the following principal owners:
<TABLE>
<CAPTION>
NAME AND COMPLETE TITLE OF CLASS AMOUNT OWNED PERCENTAGE OF
MAILING ADDRESS OWNED VOTING SECURITIES
OWNED*
------------------------------- ----------------------------- ------------------------------- ------------------------------
<S> <C> <C> <C>
Alpine Associates, L.P. Common 476,408 14.4 %
* Assumes that certain distribution elections are made in connection with the
Plan of Reorganization.
</TABLE>
UNDERWRITERS
6. UNDERWRITERS. Give the name and complete mailing address of (a) each
person who, within three years prior to the date of filing the application,
acted as an underwriter of any securities of the obligor which were outstanding
on the date of filing the application, and (b) each proposed principal
underwriter of the securities proposed to be offered. As to each person
specified in (a), give the title of each class of securities underwritten.
(a) None.
(b) None.
CAPITAL SECURITIES
7. CAPITALIZATION.(a) Furnish the following information as to each
authorized class of securities of the applicant.
As of August 4, 2000 (Insert date within 31 days)
<TABLE>
<CAPTION>
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
----------------------------------------------- --------------------------------- ------------------------------------
<S> <C> <C>
Common Stock, par value $.01 per share 1,000 shares 0 shares
</TABLE>
As of the Effective Date of the Plan of Reorganization
<TABLE>
<CAPTION>
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING*
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<S> <C> <C>
Common Stock, par value $.01 per share 10,000,000 shares 3,300,000 shares
Senior Notes $45,000,000 $25,000,000
</TABLE>
* Assumes that certain distribution elections are made in connection with the
Plan of Reorganization.
(b) Give a brief outline of the voting rights of each class of voting
securities referred to in paragraph (a) above.
Each outstanding share of the Company's Common Stock has, and will have,
one vote with respect to all matters subject to common stockholder vote.
Holders of the Senior Notes will not have any voting rights by reason of
ownership of those securities.
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INDENTURE SECURITIES
8. ANALYSIS OF INDENTURE PROVISIONS. Insert at this point the analysis of
indenture provisions required under Section 305(a)(2) of the Act.(1/)
(A) Events of Default and Notice of Default.
The following are Events of Default under the Indenture:
(1) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and the Default continues for a
period of 30 days after such interest becomes due and payable;
(2) the Company defaults in the payment of the principal of or any
premium on any Security when the same becomes due and payable at maturity,
upon redemption or otherwise;
(3) the Company defaults in the performance of or breaches any of its
other agreements or covenants in or provisions of the Indenture (other than
an agreement or covenant a default in whose performance is elsewhere in
this Section of the Indenture specifically dealt with), and the default
continues for 30 days after the Company has been given written notice of
the default by the Trustee or the holders of 25% in principal amount of the
Outstanding Securities of that series;
(4) one or more defaults in the payment of the principal, any premium
or interest on other Indebtedness of the Company or any Subsidiary, which
Indebtedness has an outstanding principal amount of more than $ 10,000,000
individually or in the aggregate if such Indebtedness has attained final
maturity or if the holders of such Indebtedness have the right to
accelerate payment thereof, and, in each case, it remains unpaid;
(5) one or more judgments, orders or decrees are entered against the
Company or any Subsidiary involving a liability (not paid by insurance) of
$10,000,000 or more in the aggregate for all such judgments, orders and
decrees for the Company and all its Subsidiaries, a creditor shall have
commenced an enforcement proceeding and all such judgments, orders or
decrees have not been stayed or bonded pending appeal or otherwise within
60 days from the entry thereof; or
(6) the Company or any Subsidiary pursuant to or within the meaning
of Title 11 of the United States Code or any similar Federal or state law
for the relief of debtors (collectively, "Bankruptcy Law"):
(i) commences a voluntary case in bankruptcy or any other action
or proceeding for any other relief under any law affecting creditors'
rights that is similar to a Bankruptcy Law;
(ii) consents by answer or otherwise to the commencement against
it of an involuntary case;
(iii) seeks or consents to the appointment of a receiver,
trustee, assignee, liquidator, custodian or similar official
(collectively, a "Custodian") of it or for all or substantially all of
its Property;
(iv) makes a general assignment for the benefit of its creditors;
or
(v) admits in writing to its inability to pay its debts as the
same become due; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Subsidiary in an
involuntary case proceeding;
(ii) appoints a Custodian of the Company or any Subsidiary or for
all or substantially all of its Property; or
(iii) orders the liquidation of the Company or any Subsidiary,
and in each case the order or decree remains unstayed and in effect for 60 days,
or any dismissal, stay, rescission or termination ceases to remain in effect.
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(1/) All capitalized terms used in this Item 8 shall have the same meaning,
unless otherwise defined, as that provided in the Senior Note
Indenture.
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Within 30 days after a Responsible Officer of the Trustee
receives notice of the occurrence of any Default, the Trustee shall transmit by
mail to all holders of the Securities and any other persons entitled to receive
reports pursuant to Section 313(c) of the Trust Indenture Act notice of such
Default, unless such Default shall have been cured or waived; PROVIDED, HOWEVER,
that, except in the case of a Default in the payment of the principal of,
premium, if any, or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the holders of the Securities.
(B) Authentication and Delivery of the Notes and the Application of
Proceeds Thereof.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in the
Indenture duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities on behalf of the Trustee. Unless limited by
the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in the Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
The Securities are being issued to creditors of Loehmann's, Inc. in
accordance with the Plan of Reorganization.
(C) Release of Property Subject to the Lien of the Indenture.
The Company's obligations under the Securities issued under the
Indenture are not secured by any liens or security interests on any assets of
the Company. Accordingly, the Indenture does not contain any provisions with
respect to the release or the release and substitution of any property subject
to such a lien.
(D) Satisfaction and Discharge of Indenture.
The Indenture will cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Securities expressly
provided for therein) and the Trustee, upon Company Request and at the expense
of the Company, will execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when (a) either (1) all the Securities theretofore
authenticated and delivered (other than (i) Securities which were destroyed,
lost or stolen and which were replaced or paid or (ii) all Securities for whose
payment United States dollars have theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust) have been delivered to the Trustee for
cancellation; or (2) all such Securities not theretofore delivered to the
Trustee for cancellation (x) have become due and payable, (y) will become due
and payable at their Stated Maturity within one year or (z) are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company; and the Company has irrevocably deposited or caused to
be deposited with the Trustee as trust funds in trust an amount, in United
States dollars sufficient to pay and discharge the entire Indebtedness on the
Securities not theretofore delivered to the Trustee for cancellation, including
the principal of, premium, if any, and accrued interest on such Securities at
such Maturity, Stated Maturity or Redemption Date; (b) the Company has paid or
caused to be paid all other sums payable under the Indenture by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Independent Counsel each stating that (i) all conditions precedent
relating to the satisfaction and discharge of the Indenture have been complied
with and (ii) such satisfaction and discharge will not result in a breach or
violation of, or constitute a default under, the Indenture or any other material
agreement or instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound.
Any money deposited with the Trustee, or then held by the
Company, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal and premium, if any, or interest has become due and payable shall
promptly be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the
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Trustee, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in THE NEW YORK TIMES and THE WALL
STREET JOURNAL (national edition), and mail to each such holder, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such notification, publication
and mailing, any unclaimed balance of such money then remaining will promptly be
repaid to the Company.
Subject to the provisions of the previous paragraph, all United States
dollars deposited with the Trustee pursuant to Section 1201 of the Indenture
shall be held in trust and applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on the Securities for whose payment such United
States dollars have been deposited with the Trustee.
Notwithstanding the satisfaction and discharge of the Indenture, the
obligations of the Company to compensate the Trustee and, if United States
dollars shall have been deposited with the Trustee pursuant to subclause (2) of
Subsection (a) of this Section 1201 of the Indenture, the obligations of the
Trustee under the previous two paragraphs shall survive.
(E) Evidence as to Compliance with Conditions and Covenants.
The Company will deliver to the Trustee, on or before a date not more
than 60 days after the end of each fiscal quarter and not more than 120 days
after the end of each fiscal year of the Company, a written statement signed by
two executive officers of the Company, one of whom shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating whether or not, after a review of the activities of the
Company during such year or such quarter and of the Company's performance under
the Indenture, to the best knowledge, based on such review, of the signers
thereof, the Company has fulfilled all of its obligations and is in compliance
with all conditions and covenants under the Indenture throughout such year or
quarter, as the case may be, and, if there has been a Default specifying each
Default and the nature and status thereof and any actions being taken by the
Company with respect thereto.
When any Default or Event of Default has occurred and is continuing,
or if the Trustee or any holder of Securities or the trustee for or the holder
of any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed default, the Company
shall deliver to the Trustee by registered or certified mail or facsimile
transmission followed by hard copy an Officers' Certificate specifying such
Default, Event of Default, notice or other action, the status thereof and what
actions the Company is taking or proposes to take with respect thereto, within
five business days of its occurrence.
9. OTHER OBLIGORS. Give the name and complete mailing address of any
person, other than the applicant, who is an obligor upon the indenture
securities.
None
CONTENTS OF APPLICATION FOR QUALIFICATION. This application for
qualification comprises--
(a) Pages numbered 1 to 9, consecutively.
(b) The statement of eligibility and qualification of each trustee under
the indenture to be qualified (included as Exhibit 99.1 hereto).
(c) The following exhibits in addition to those filed as a part of the
statement of eligibility and qualification of each trustee.
Exhibit T3A. Certificate of Incorporation of the Company.
Exhibit T3B. By-Laws of the Company.
Exhibit T3C. Form of the Senior Note Indenture between the Company and
United States Trust Company of New York.
Exhibit T3D. Not applicable.
Exhibit T3E. A copy of the Disclosure Statement, as amended, regarding
the Plan of Reorganization, as amended, with certain exhibits
thereto.
Exhibit T3F. A cross reference sheet showing the location in the
Senior Note Indenture of the provisions inserted therein
pursuant to Sections 310 through 318(a), inclusive, of the
Trust Indenture Act of 1939 (included in Exhibit T3C).
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Exhibit 99.1 Statement of Eligibility on Form T-1
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Loehmann's Holdings Inc., a corporation organized and existing under
the laws of Delaware, has duly caused this application to be signed on its
behalf by the undersigned, thereunto duly authorized, and its seal to be
hereunto affixed and attested, all in the city of Bronx, and State of New York,
on the 3rd day of August, 2000.
(SEAL)
LOEHMANN'S HOLDINGS INC.
Attest: /S/ ROBERT N. FRIEDMAN By: /S/ ROBERT GLASS
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Name: Robert N. Friedman Name: Robert Glass
Title: Chairman and CEO Title: President and Secretary
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