Exhibit 10(m)(vi)
EX-10.M(VI) 3 c96532exv10wmxviy.htm EXHIBIT 10(M)(VI) Exhibit 10(m)(vi)
EXHIBIT 10(m)(vi)
EXECUTION COPY
CONSENT AND WAIVER, dated as of June 12, 2009 (this Consent), to the Amended and Restated Credit Agreement, dated as of January 12, 2009 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement), among Liz Claiborne, Inc., Mexx Europe B.V., Liz Claiborne Canada Inc., the other Loan Parties from time to time party thereto, the Lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and US Collateral Agent, J.P. Morgan Europe Limited, as European Administrative Agent and European Collateral Agent, JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian Administrative Agent and Canadian Collateral Agent, Bank of America, N.A. and SunTrust Bank, as Syndication Agents, and Wachovia Bank, National Association, as Documentation Agent.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, the Syndication Agents, the Documentation Agent, the Administrative Agent, the European Administrative Agent and the Canadian Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Company has requested that the Administrative Agent, with the consent of the Required Lenders, permit the Company to issue and sell (the Offering) its convertible debt securities in an aggregate face amount of up to $145,000,000 (the Convertible Securities); to purchase call options (the Call Options) with respect to shares of its common stock as a hedge of its obligations under the Convertible Securities; to sell warrants (the Warrants) with respect to shares of its common stock with a higher strike price in connection therewith; and to exercise any rights and perform any of its obligations under any of the Convertible Securities, the Call Options, the Warrants and any related agreements or undertakings, including without limitation any obligation of the Company pursuant to any conversion, exercise or termination thereof, and any payment, prepayment or delivery with respect thereto, whether at maturity or upon conversion, exercise or termination thereof, and whether in cash or through the issuance or delivery of shares of its common stock or any combination thereof (all of the foregoing, collectively, the Convertible Transactions);
WHEREAS, in connection with the Offering, the Borrowers have requested that the Lenders waive compliance with certain terms in the Credit Agreement in the manner provided for herein; and
WHEREAS, the Administrative Agent and the Lenders are willing to consent to the Offering and the Convertible Transactions and agree to the requested waivers subject to the provisions of this Consent;
NOW, THEREFORE, in consideration of the premises contained herein, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein which are defined in the Credit Agreement are used herein as therein defined.
2. Consent and Waiver. Notwithstanding anything to the contrary set forth in the Credit Agreement, the Lenders hereby consent to the Offering and the Convertible Transactions and waive any violations of Sections 6.01, 6.02 (solely to the extent resulting from the existence of the Call Options) 6.04, 6.05 (solely to the extent resulting from the sale of the Warrants), 6.08 and 6.09 of the Credit Agreement that might otherwise result therefrom (it being understood that the consummation of the Offering and the Convertible Transactions shall be deemed not to utilize any baskets set forth in such
Sections); provided that no Default or Event of Default shall have occurred and be continuing immediately prior to, or result from, the consummation of the Offering (after giving effect to this Consent).
3. Representations and Warranties. The Borrowers hereby represent that as of the Effective Date (as defined below) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents is true and correct in all material respects as if made on and as of such date (it being understood and agreed that any representation or warranty that by its terms is made as of a specific date shall be required to be true and correct in all material respects only as of such specified date), and no Default or Event of Default has occurred and is continuing.
4. Effectiveness of Consent. This Consent shall become effective on and as of the date (such date the Effective Date) of satisfaction of the following conditions:
(a) execution and delivery of this Consent by the Borrowers, the other Loan Parties, the Administrative Agent and the Required Lenders;
(b) to the extent the issuance of the Convertible Securities is consummated on or prior to the Effective Date, the Administrative Agent shall have received an executed copy of all material agreements or instruments governing or evidencing any of the Convertible Securities, all in form and substance reasonably acceptable to the Administrative Agent; and
(c) receipt by the Administrative Agent of all fees and expenses reimbursable under Section 7 below for which invoices have been presented (including the reasonable fees and expenses of legal counsel).
5. Conditions Subsequent. The Borrowers acknowledge and agree that this Consent shall terminate and be of no further force and effect on the earlier of (a) August 31, 2009 if the issuance of the Convertible Securities shall not have been consummated on or prior to such date on terms reasonably satisfactory to the Administrative Agent and (b) the date that is 3 days following receipt by the Company or any of its Subsidiaries of the Net Proceeds of such issuance if the Loans shall not have been repaid during such period in an amount equal to (i) the amount of such Net Proceeds, less (ii) the portion of the cost of the Call Options that is not offset by the net proceeds of the Warrants (or, if less, the aggregate principal amount of Loans outstanding on such date), without any corresponding reduction in the Commitments.
6. Reconfirmation. Each of the Loan Guarantors party hereto hereby (a) consents to the transactions contemplated by this Consent and (b) acknowledges and agrees that the guarantees and grants of security interests made by such party contained in the Credit Agreement and the other Loan Documents are, and shall remain, in full force and effect after giving effect to this Consent and all previous amendments to the Credit Agreement.
7. Expenses. The Borrowers agree to pay and reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred in connection with the preparation and delivery of this Consent, including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent.
8. Effect. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Loan Documents shall remain unamended and not waived and shall continue to be in full force and effect.
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9. Counterparts. This Consent may be executed in any number of counterparts by the parties hereto (including by facsimile transmission), each of which counterparts when so executed shall be an original, but all the counterparts shall together constitute one and the same instrument.
10. Severability. Any provision of this Consent which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
11. Integration. This Consent and the other Loan Documents represent the entire agreement of the Loan Parties, the Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
12. GOVERNING LAW. THIS CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
BORROWERS LIZ CLAIBORNE, INC. | ||||
By: | /s/ Nicholas Rubino | |||
Name: | Nicholas Rubino | |||
Title: | Senior Vice President, Chief Legal Officer General Counsel and Secretary | |||
LIZ CLAIBORNE CANADA, INC. | ||||
By: | /s/ Nicholas Rubino | |||
Name: | Nicholas Rubino | |||
Title: | Director | |||
MEXX EUROPE B.V. | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
LOAN PARTIES LIZ CLAIBORNE, INC. | ||||
By: | /s/ Nicholas Rubino | |||
Name: | Nicholas Rubino | |||
Title: | Senior Vice President, Chief Legal Officer, General Counsel and Secretary | |||
LIZ CLAIBORNE CANADA INC. | ||||
By: | /s/ Nicholas Rubino | |||
Name: | Nicholas Rubino | |||
Title: | Director | |||
MEXX EUROPE B.V. | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
C&C CALIFORNIA, INC. JUICY COUTURE, INC. SKYLARK SPORT MARKETING CORPORATION DB NEWCO CORP. NONEE I HOLDING, LLC (f/k/a ENYCE HOLDING LLC) NONEE I, LLC (f/k/a ENYCE, L.L.C.) HAVANA LLC KATE SPADE LLC L. C. AUGUSTA, INC. L.C. CARIBBEAN HOLDINGS, INC. LC LIBRA, LLC L.C. LICENSING, INC. L.C. SERVICE COMPANY, INC. L.C. SPECIAL MARKETS, INC. LCI ACQUISITION U.S., INC. LCI HOLDINGS, INC. LCI INVESTMENTS, INC. BOODLE, INC. (f/k/a LCI LAUNDRY, INC.) LIZ CLAIBORNE ACCESSORIES, INC. LIZ CLAIBORNE ACCESSORIES-SALES, INC. LIZ CLAIBORNE COSMETICS, INC. LIZ CLAIBORNE EXPORT, INC. LIZ CLAIBORNE FOREIGN HOLDINGS, INC. LIZ CLAIBORNE JAPAN, INC. LIZ CLAIBORNE PUERTO RICO, INC. LIZ CLAIBORNE SALES, INC. LIZ CLAIBORNE SHOES, INC. LUCKY BRAND DUNGAREES, INC. LUCKY BRAND DUNGAREES STORES, INC. MONET INTERNATIONAL, INC. MONET PUERTO RICO, INC. SEGRETS, INC. WESTCOAST CONTEMPO PROMENADE, INC. WESTCOAST CONTEMPO RETAIL, INC. WESTCOAST CONTEMPO (U.S.A.) INC. | ||||
By: | /s/ Andrew C. Warren | |||
Name: | Andrew C. Warren | |||
Title: | Chief Financial Officer |
SIGNATURE PAGE TO THE CONSENT
WESTCOAST CONTEMPO FASHIONS LIMITED | ||||
By: | /s/ Nicholas Rubino | |||
Name: | Nicholas Rubino | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX AUSTRIA GMBH | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX BELGIUM NV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX SCANDINAVIA FINLAND OY | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
RETRAIN NV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX BOUTIQUES SARL | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX DEUTSCHLAND GMBH | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX DIRECT GMBH & CO KG | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX HOLDING GMBH | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX MODEHANDELS GMBH | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
VERWALTUNGSGESELLSCHAFT MEXX DIRECT MBH | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX HELLAS EPE | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
GIVEN UNDER THE COMMON SEAL OF MEXX IRELAND LIMITED | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director | |||
By: | /s/ Ivo Vliegen | |||
Name: | Ivo Vliegen | |||
Title: | Chief Financial Officer |
SIGNATURE PAGE TO THE CONSENT
MEXX ITALY S.R.L. | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX LUXEMBOURG S.À.R.L. | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
LIZ CLAIBORNE 3 BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
LIZ CLAIBORNE 2 BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
MEXX EUROPE HOLDING BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
MEXX EUROPE INTERNATIONAL BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
MEXX GROUP BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
MEXX HOLDING INTERNATIONAL BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
MEXX HOLDING NETHERLANDS BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
MEXX NEDERLAND BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
MEXX NEDERLAND RETAIL BV | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
MEXX SCANDINAVIA AS | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX SOUTHERN EUROPE, S.L. | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX SCANDINAVIA AKTIEBOLAG | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX MODEHANDELS AG | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX SWITZERLAND GMBH | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX LIMITED | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX DIRECT HOLDING B.V. | ||||
By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
JPMORGAN CHASE BANK, N.A., as Administrative Agent, US Collateral Agent and Lender | ||||
By: | /s/ Donna M. DiForio | |||
Name: | Donna M. DiForio | |||
Title: | Vice President |
SIGNATURE PAGE TO THE CONSENT
J.P. MORGAN EUROPE LIMITED, as European Administrative Agent and European Collateral Agent | ||||
By: | /s/ Tim Jacob | |||
Name: | Tim Jacob | |||
Title: | Senior Vice President |
SIGNATURE PAGE TO THE CONSENT
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as Canadian Administrative Agent and Canadian Collateral Agent | ||||
By: | /s/ Dan Howat | |||
Name: | Dan Howat | |||
Title: | Senior Vice President |
SIGNATURE PAGE TO THE CONSENT
SunTrust Bank, as Lender | ||||
By: | /s/ Patrick Wiggins | |||
Name: | Patrick Wiggins | |||
Title: | Vice President |
SIGNATURE PAGE TO THE CONSENT
Bank of America, N.A., as Lender | ||||
By: | /s/ Christine Hutchinson | |||
Name: | Christine Hutchinson | |||
Title: | Principal |
SIGNATURE PAGE TO THE CONSENT
Bank of America, N.A., as Lender | ||||
By: | /s/ Bernisi Morrin | |||
Name: | Bernisi Morrin | |||
Title: | VICE PRESIDENT LONDON BRANCH |
SIGNATURE PAGE TO THE CONSENT
Bank of America, N.A., Canada branch, as Lender | ||||
By: | /s/ Medina Sales de Andrade | |||
Name: | Medina Sales de Andrade | |||
Title: | Vice President |
SIGNATURE PAGE TO THE CONSENT
WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender | ||||
By: | /s/ Susan T. Gallagher | |||
Name: | Susan T. Gallagher | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
HSBC Business Credit (USA) Inc., as Lender | ||||
By: | /s/ Kysha A. Pierre Louis | |||
Name: | Kysha A. Pierre Louis | |||
Title: | Vice President |
SIGNATURE PAGE TO THE CONSENT
BANQUE ARTESIA NEDERLAND N.V., as Lender | ||||
By: | /s/ W. Hulstein | |||
Name: | W. Hulstein | |||
Title: | Branch Manager | |||
By: | /s/ A.J.J. Jacobs | |||
Name: | A.J.J. Jacobs | |||
Title: | Sr Account Manager |
SIGNATURE PAGE TO THE CONSENT
ISRAEL DISCOUNT BANK OF NEW YORK, as Lender | ||||
By: | /s/ Jeffrey S. Ackerman | |||
Name: | Jeffrey S. Ackerman | |||
Title: | Senior Vice President | |||
ISRAEL DISCOUNT BANK OF NEW YORK, as Lender | ||||
By: | /s/ Edward Behnen | |||
Name: | Edward Behnen | |||
Title: | AVP |
SIGNATURE PAGE TO THE CONSENT