W I T N E S S E T H :
EX-10.1 2 c82212exv10w1.htm EXHIBIT 10.1 Exhibit 10.1
EXHIBIT 10.1
EXECUTION COPY
FIRST AMENDMENT, dated as of March 2, 2009 (this First Amendment), 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, 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 Borrowers have requested certain amendments to the Credit Agreement as set forth herein; and
WHEREAS, the Required Lenders have consented to the requested amendments as set forth herein;
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. Amendments to Section 1.01 (Defined Terms). Section 1.01 of the Credit Agreement is hereby amended as follows:
(a) by inserting in alphabetical order the following new definitions:
First Amendment the First Amendment, dated as of March 2, 2009, to this Agreement.
First Amendment Effective Date as defined in the First Amendment.
(b) by inserting the following at the end of the definition of Consolidated EBITDA:
Notwithstanding anything to the contrary set forth herein, for purposes of calculating the Fixed Charge Coverage Ratio for the fiscal month of December 2008 or for any of the first eleven (11) fiscal months of 2009, Consolidated EBITDA shall exclude discontinued operations of the Company and its Subsidiaries, as defined by GAAP.; and
(c) by inserting the following at the end of the definition of Fixed Charge Coverage Ratio:
Notwithstanding anything to the contrary set forth herein, for purposes of calculating the Fixed Charge Coverage Ratio for the fiscal month of December 2008 or for any of the first eleven (11) fiscal months of 2009, Fixed Charge Coverage Ratio shall exclude discontinued operations of the Company and its Subsidiaries, as defined by GAAP..
3. Effectiveness of Amendment. This First Amendment shall become effective on and as of the date (such date the First Amendment Effective Date) of the execution and delivery of this First Amendment by the Borrowers, the Administrative Agent and the Required Lenders.
4. Representations and Warranties. The Borrowers hereby represent that as of the First Amendment Effective Date 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 after giving effect to the amendments contemplated herein.
5. 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.
6. Counterparts. This First Amendment 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.
7. Severability. Any provision of this First Amendment 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.
8. Integration. This First Amendment and the other Loan Documents represent the 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.
9. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT 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 First Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
LIZ CLAIBORNE, INC., as a Borrower and as the Borrower Representative | ||||
By | /s/ Andrew C. Warren | |||
Name: | Andrew C. Warren | |||
Title: | Executive Vice President and Chief Financial Officer | |||
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 | |||
J.P. MORGAN EUROPE LIMITED, as European Administrative Agent and European Collateral Agent | ||||
By | /s/ Tim Jacob | |||
Name: | Tim Jacob | |||
Title: | Senior Vice President | |||
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 | |||
BANK OF AMERICA, N.A., as Lender | ||||
By | /s/ Christine Hutchinson | |||
Name: | Christine Hutchinson | |||
Title: | Principal | |||
SIGNATURE PAGE TO THE FIRST AMENDMENT
BANK OF AMERICA, N.A., CANADA BRANCH, as Lender | ||||
By | /s/ Medina Sales de Andrade | |||
Name: | Medina Sales de Andrade | |||
Title: | Vice President | |||
BANK OF AMERICA, N.A., as Lender | ||||
By | /s/ Bernisi Morrin | |||
Name: | Bernisi Morrin | |||
Title: | Operations Manager GCIB Credit Services supporting Business Capital Europe Vice-President | |||
SUNTRUST BANK, as Lender | ||||
By | /s/ Patrick Wiggins | |||
Name: | Patrick Wiggins | |||
Title: | Vice President | |||
WACHOVIA BANK, NATIONAL ASSOCIATION, individually, as Documentation Agent and Lender | ||||
By | /s/ Tom Harper | |||
Name: | Tom Harper | |||
Title: | Managing Director | |||
HSBC Business Credit (USA) Inc., as Lender | ||||
By | /s/ Kysha Pierre-Louis | |||
Name: | Kysha Pierre-Louis | |||
Title: | Vice President | |||
SIGNATURE PAGE TO THE FIRST AMENDMENT
CITIBANK, N.A., as Lender | ||||
By | /s/ Thomas Halsch | |||
Name: | Thomas Halsch | |||
Title: | Director & Vice President | |||
U.S. Bank, N.A., as Lender | ||||
By | /s/ Frances W Josephic | |||
Name: | Frances W Josephic | |||
Title: | Vice President | |||
COMERICA BANK, as Lender | ||||
By | /s/ Liesl Eckhardt | |||
Name: | Liesl Eckhardt | |||
Title: | Assistant Vice President | |||
THE HUNTINGTON NATIONAL BANK, as Lender | ||||
By | /s/ Jeff Blendick | |||
Name: | Jeff Blendick | |||
Title: | Vice President | |||
UNION BANK, N.A., as Lender | ||||
By | /s/ Ching Lim | |||
Name: | Ching Lim | |||
Title: | Vice President | |||
ING BANK NV, as Lender | ||||
By | /s/ Els Streng | |||
Name: | E.C. Streng | |||
Title: | Director | |||
By | /s/ Marcel Peijs | |||
Name: | ||||
Title: | Director | |||
SIGNATURE PAGE TO THE FIRST AMENDMENT