Contract
EXHIBIT 10(m)(vii)
EXECUTION VERSION
THIRD AMENDMENT, dated as of November 2, 2009 (this “Third 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,
X.X. Xxxxxx 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 Borrowers have requested certain amendments to the Credit Agreement as set forth
herein; and
WHEREAS, the 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). (a) Section 1.01 of the Credit
Agreement is hereby amended by inserting in alphabetical order the following new definitions:
“Acquired JV Interests” has the meaning assigned to such term in Section
6.04(s).
“JCPenney License Agreement” means the License Agreement by and between the
Company, X. X. Xxxxxx Corporation, Inc., X. X. Penney Company, Inc. and their subsidiaries,
dated as of October 7, 2009, as amended, supplemented or otherwise modified from time to
time in accordance with the terms hereof.
“Xxxx Xxxxx XX Agreement” means the agreement governing the joint venture by
and between Xxxx Spade LLC and Sanei International Co., Ltd.
“Option Assets” has the meaning assigned to such term under the JCPenney
License Agreement.
“Third Amendment” means the Third Amendment, dated as of November 2, 2009, to
this Agreement.
“Third Amendment Effective Date” has the meaning assigned to such term in the
Third Amendment.
“Trademark Disposition Date” has the meaning assigned to such term in Section
6.05(l).
(b) The definition of “Required Availability Amount” in Section 1.01 of the Credit Agreement
is hereby amended and restated in its entirety as follows:
“Required Availability Amount” means $90,000,000 (or, with respect to each
fiscal year, on any date (x) on or after the first day of the fiscal month of October of
such fiscal year and prior to the first day of the fiscal month of December of such fiscal
year, $75,000,000 and (y) on or after December 15th of such fiscal year and prior
to January 30th of the following fiscal year, $120,000,000).
(c) The definition of “US Borrowing Base” in Section 1.01 of the Credit Agreement is hereby
amended by deleting clause (h) thereof in its entirety and substituting in lieu thereof the
following new clause (h):
“(h) prior to the Trademark Disposition Date, the Eligible Trademark Amount,
minus”
3. Amendment to Section 2.11 (Prepayment of Loans). Section 2.11 of the Credit
Agreement is hereby amended by inserting the following new clause (f):
“(f) In the event and on each occasion that any Net Proceeds are received by or on
behalf of the Company or any Subsidiary in respect of any transaction permitted pursuant to
Section 6.05(l), the Borrowers shall, immediately after such Net Proceeds are received by
the Company or any Subsidiary, use 100% of such Net Proceeds to (i) prepay the Revolving
Loans and Swingline Loans and (ii) to the extent that such Net Proceeds exceed the amount of
the Revolving Loans and Swingline Loans outstanding, cash collateralize outstanding LC
Exposure.”
4. Amendment to Section 5.01 (Financial Statements; Borrowing Base and Other
Information). (a) Clause (g) of Section 5.01 of the Credit Agreement is hereby amended by
(i) deleting the words “during the Increased Reporting Period” immediately following the words
“Xxxxx 0 Xxxxxxx Xxxxxxxxx Availability Period or” in the fourth line thereof and (ii) inserting in
lieu thereof the words “at any time after the Third Amendment Effective Date”.
(b) Clause (h) of Section 5.01 of the Credit Agreement is hereby amended by (i) deleting the
words “during the Increased Reporting Period” immediately following the words “Xxxxx 0 Xxxxxxx
Xxxxxxxxx Availability Period or” in the fourth line thereof and (ii) inserting in lieu thereof the
words “at any time after the Third Amendment Effective Date”.
5. Amendment to Section 5.02 (Notices of Material Events). Section 5.02 of the Credit
Agreement is hereby amended by (i) deleting the period from the end of clause (h) thereof and
substituting therefor the phrase “; and”, and (ii) inserting the following new clause (i) at the
end thereof:
“(i) the entering into of, and any material amendments to, the Xxxx Xxxxx XX Agreement,
which notice shall be delivered, promptly after the same becomes effective, with a copy of
such agreement and amendments thereof delivered to the Administrative Agent simultaneously
therewith.”
2
6. Amendment to Section 5.11 (Appraisals). Section 5.11 of the Credit Agreement is
hereby amended by inserting the words “, Intellectual Property” after each occurrence of the word
“Inventory”.
7. Amendment to Section 6.01 (Indebtedness). Section 6.01 of the Credit Agreement is
hereby amended by (i) deleting the word “and” from the end of clause (r) thereof, (ii) deleting the
period at the end of clause (s) thereof and substituting therefore the phrase “; and”, and (iii)
inserting the following new clause (t) at the end thereof:
“(t) unsecured Guarantees permitted by Section 6.04(s).”
8. Amendment to Section 6.02 (Liens). Section 6.02 of the Credit Agreement is hereby
amended by (i) deleting the word “and” from the end of clause (m) thereof, (ii) deleting the period
at the end of clause (n) thereof and substituting therefore the phrase “; and”, and (iii) inserting
the following new clause (o) at the end thereof:
“(o) Liens arising from any purchase option with respect to the Option Assets under the
JCPenney License Agreement.”
8. Amendment to Section 6.04 (Investments, Loans, Advances, Guarantees and
Acquisitions). Section 6.04 of the Credit Agreement is hereby amended by (i) deleting the word
“and” from the end of clause (q) thereof, (ii) inserting the word “and” at the end of clause (r)
thereof and (iii) inserting the following new clause (s) at the end thereof:
“(s) purchases of additional Equity Interests in Xxxx Spade Japan Co., Ltd. (such
Equity Interests, the “Acquired JV Interests”) pursuant to Article VI of the Xxxx
Xxxxx XX Agreement in an aggregate amount not to exceed $35,000,000 and any unsecured
Guarantee by the Company in respect thereof; provided that in the case of any
purchases made or any guarantee performed pursuant to this paragraph (s), both immediately
before and immediately after giving pro forma effect to such purchase or
performance, (i) no Default or Event of Default shall have occurred and be continuing and
(ii) the Aggregate Availability shall not be less than $75,000,000”.
9. Amendment to Section 6.05 (Asset Sales). Section 6.05 of the Credit Agreement is
hereby amended as follows:
(a) by (i) deleting the word “and” from the end of clause (j) thereof, (ii) deleting the comma
from the end of clause (k) thereof and substituting therefor the phrase “;” and (iii) inserting the
following new clauses (l) and (m) at the end thereof:
“(l) the sale of the Option Assets pursuant to the terms of the JCPenney License
Agreement (the date of the consummation of such sale, the “Trademark Disposition
Date”); provided that (i) the aggregate cash consideration received by the
Company on the Trademark Disposition Date in respect of such sale shall be the required
amounts set forth in Section 5.3 of the JCPenney License Agreement and (ii) the Net Proceeds
received by the Company and its Subsidiaries on the Trademark Disposition Date from such
sale shall be used to prepay the Loans and cash collateralize LC Exposure in accordance with
Section 2.11(f); and
(m) dispositions of property permitted by Section 6.04(p),”
(b) by (i) deleting “and (j)” in the last proviso thereof and inserting in lieu thereof “, (j)
and (l)” and (ii) inserting at the end of such proviso “(it being understood that as it relates
solely to the exercise of the “Year 10 Option Period” (as defined in the JCPenney License
Agreement) the payment of
3
the required cash amounts set forth in Section 5.3 of the JCPenney License Agreement shall
satisfy the foregoing cash consideration requirement)”.
10. Amendment to Section 6.11 (Restrictive Agreements). Section 6.11 of the Credit
Agreement is hereby amended by (a) deleting the word “and” from the end of clause (iii) thereof,
(b) deleting the period from the end of clause (iv) thereof and substituting therefor the phrase “,
and” and (c) adding the following new clause (v) at the end thereof:
“(v) clause (a) of the foregoing shall not apply to restrictions on the pledge of
Equity Interests in Xxxx Spade Japan Co., Ltd. pursuant to the Xxxx Xxxxx XX Agreement.”
11. Amendment to Section 6.12 (Amendment of Material Documents). Section 6.12 of the
Credit Agreement is hereby amended by (a) inserting the words “the JCPenney License Agreement,”
immediately following the words “Subordinated Indebtedness,” in the third line thereof, (b)
deleting the phrase “in each case” in the sixth line thereof and substituting therefor the phrase
“in the case of each of clause (a) and (b)” and (c) inserting the words “(including, for the
avoidance of doubt, any amendment or modification providing for an earlier Trademark Disposition
Date than as set forth in the JCPenney License Agreement in effect on the Third Amendment Effective
Date)” immediately following the words “would be materially adverse to the Lenders”.
12. Amendment to Section 6.16 (Fixed Charge Coverage Ratio). Section 6.16 of the
Credit Agreement is hereby deleted in its entirety and the following new Section 6.16 shall be
substituted in lieu thereof:
“6.16 Fixed Charge Coverage Ratio. During any period commencing on a date
(each a “Commencement Date”) on which Aggregate Availability has been less than the
Required Availability Amount for two (2) consecutive Business Days, and continuing until any
later date on which Aggregate Availability shall have exceeded the Required Availability
Amount for at least 30 consecutive days, the Loan Parties will not at any time during such
period permit the Fixed Charge Coverage Ratio, as of the last day of any fiscal month, for
any Test Period (including, for the avoidance of doubt, the Test Period in effect on the
applicable Commencement Date) ending during any period set forth below to be less than the
ratio set forth below opposite such period:
| Period | Fixed Charge Coverage Ratio | |
The Third Amendment
Effective Date through
July 3, 2010
|
1.25 to 1.00 | |
July 4, 2010 and thereafter
|
1.50 to 1.00” |
13. Release of Liens. Pursuant to Section 9.02(d) of the Credit Agreement, the
Lenders hereby authorize the US Collateral Agent to, and the US Collateral Agent hereby agrees to,
promptly release the Liens on the Option Assets granted to it by the Company upon the consummation
of the sale by the Company of such Option Assets pursuant to Section 6.05(l).
14. Representations and Warranties. The Borrowers hereby represent that as of the
Third 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
4
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.
15. Deemed Section 5.02(c) Notice. In accordance with Section 5.02(c) of the Credit
Agreement, the execution and delivery of this Third Amendment shall be deemed to be notice of the
creation of the Lien arising from any purchase option with respect to the Option Assets under the
JCPenney License Agreement.
16. Acknowledgements. The Company hereby acknowledges that (i) the Option Assets
shall continue to constitute Collateral pursuant to the US Security Agreement after the
effectiveness of the JCPenney License Agreement and (ii) that all payments made by X. X. Penney
Corporation, Inc. or any of its Affiliates to any Group Member pursuant to or in connection with
the JCPenney License Agreement shall be made pursuant to Section 2.10 of the Credit Agreement.
17. Effectiveness of Amendment. This Third Amendment shall become effective on and as
of the date (such date the “Third Amendment Effective Date”) of satisfaction of the
following conditions:
(a) execution and delivery of this Third Amendment by the Borrowers, the Administrative Agent,
the US Collateral Agent, the European Administrative Agent, the European Collateral Agent, the
Canadian Administrative Agent, the Canadian Collateral Agent and the Required Lenders;
(b) receipt by the Administrative Agent of an amendment fee for the account of each Lender
consenting to this Third Amendment by 5:00 P.M. (New York City time) on November 2, 2009, in an
amount equal to 0.25% of such Lender’s Commitment; and
(c) receipt by the Administrative Agent of all other fees required to be paid, and all
expenses for which invoices have been presented (including the reasonable fees and expenses of
legal counsel, and the fees and expenses of Xxxxxx Xxxxxxxx Group).
18. Expenses. The Borrowers agree to pay and reimburse the Administrative Agent for
all its reasonable costs and out-of-pocket expenses incurred in connection with the preparation and
delivery of this Third Amendment, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent.
19. 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.
20. Counterparts. This Third Amendment may be executed in any number of counterparts
by the parties hereto (including by facsimile or electronic transmission), each of which
counterparts when so executed shall be an original, but all the counterparts shall together
constitute one and the same instrument.
21. Severability. Any provision of this Third 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.
5
22. Integration. This Third Amendment 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.
23. GOVERNING LAW. THIS THIRD AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
6
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment 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/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Senior Vice President, Chief Legal Officer General Counsel and Secretary |
|||
| LIZ CLAIBORNE CANADA, INC. |
||||
| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Director | |||
| MEXX EUROPE B.V. |
||||
| By: | /s/ Xxxxxx Xxxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx Xxxxxxxx | |||
| Title: | Director | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| JPMORGAN CHASE BANK, N.A., as Administrative Agent, US Collateral Agent and Lender |
||||
| By: | /s/ Xxxx Cuceinello | |||
| Name: | Xxxx Cuceinello | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| X.X. XXXXXX EUROPE LIMITED, as European Administrative Agent and European Collateral Agent |
||||
| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as Canadian Administrative Agent and Canadian Collateral Agent |
||||
| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| U.S. BANK NATIONAL ASSOCIATION, as
Lender |
||||
| By: | /s/ Xxxxxxx X Xxxxxxxx | |||
| Name: | Xxxxxxx X Xxxxxxxx | |||
| Title: | Vice President U.S. Bank, N.A. | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| UNION BANK, N.A., as
Lender |
||||
| By: | /s/ Xxxxx Xxx | |||
| Name: | Xxxxx Xxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| SUNTRUST BANK, as
Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| ING BANK NV, as Lender
|
||||
| By: | /s/ X. X. Xxxxxx | |||
| Name: | X. X. Xxxxxx | |||
| Title: | ||||
| By: | /s/ R. B. van Helbergen | |||
| Name: | R. B. van Helbergen | |||
| Title: | Director | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| ISRAEL DISCOUNT BANK OF NEW YORK, as Lender
|
||||
| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Assistant Vice President | |||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | First Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| HSBC BUSINESS CREDIT (USA) INC. as Lender
|
||||
| By: | /s/ Xxxxx X. Xxxxxx-Xxxxx | |||
| Name: | Xxxxx X. Xxxxxx-Xxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| THE HUNTINGTON NATIONAL BANK, as Lender |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Officer | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| BANQUE ARTESIA NEDERLAND N.V., as Lender |
||||
| By: | /s/ X. Xxxxxxxx | |||
| Name: | X. Xxxxxxxx | |||
| Title: | Branch Manager | |||
| By: | /s/ A.J.J. Xxxxxx | |||
| Name: | A.J.J. Xxxxxx | |||
| Title: | Sr Account Manager | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
FORTIS CAPITAL CORP, as Lender |
||||
| By: | /s/ Xxxxx Xxxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxxx | |||
| Title: | Director | |||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Director | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| COMERICA BANK, as Lender |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Assistant Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| CITIBANK, N.A, as Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| BANK OF AMERICA, N.A., as Lender |
||||
| By: | /s/ Xxxxxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxxxxx Xxxxxxxxxx | |||
| Title: | Principal | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| BANK OF AMERICA, N.A, as Lender |
||||
| By: | /s/ Bernisi Morrin | |||
| Name: | Bernisi Morrin | |||
| Title: | Vice President London Branch |
|||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| BANK OF AMERICA, N.A. (Canada branch), as Lender |
||||
| By: /s/ Xxxxxx Sales xx Xxxxxxx | ||||
| Name: | Xxxxxx Sales xx Xxxxxxx | |||
| Title: Vice President | ||||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| THE BANK OF NEW YORK MELLON, as
Lender |
||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender |
||||
| By: | /s/ Xxxxx Xxxxx Marks | |||
| Name: | Xxxxx Xxxxx Marks | |||
| Title: | Managing Director | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
| THE BANK OF TOKYO —
MITSUBISHI UFJ, LTD., as Lender |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Vice President & Manager | |||
SIGNATURE PAGE TO THE THIRD AMENDMENT
