Attached files
file | filename |
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10-K - FORM 10-K - Kate Spade & Co | c96532e10vk.htm |
EX-21 - EXHIBIT 21 - Kate Spade & Co | c96532exv21.htm |
EX-23 - EXHIBIT 23 - Kate Spade & Co | c96532exv23.htm |
EX-99 - EXHIBIT 99 - Kate Spade & Co | c96532exv99.htm |
EX-10.D - EXHIBIT 10(D) - Kate Spade & Co | c96532exv10wd.htm |
EX-31.B - EXHIBIT 31(B) - Kate Spade & Co | c96532exv31wb.htm |
EX-10.Y - EXHIBIT 10(Y) - Kate Spade & Co | c96532exv10wy.htm |
EX-32.A - EXHIBIT 32(A) - Kate Spade & Co | c96532exv32wa.htm |
EX-32.B - EXHIBIT 32(B) - Kate Spade & Co | c96532exv32wb.htm |
EX-31.A - EXHIBIT 31(A) - Kate Spade & Co | c96532exv31wa.htm |
EX-10.M(VII) - EXHIBIT 10(M)(VII) - Kate Spade & Co | c96532exv10wmxviiy.htm |
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.
2
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.
3
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. |
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By: | /s/ Nicholas Rubino | |||
Name: | Nicholas Rubino | |||
Title: | Senior Vice President,
Chief Legal Officer General Counsel and Secretary |
|||
LIZ CLAIBORNE CANADA, INC. |
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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. |
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By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
LIZ CLAIBORNE 3 BV |
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By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Managing Director |
SIGNATURE PAGE TO THE CONSENT
LIZ CLAIBORNE 2 BV |
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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 |
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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. |
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By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX SCANDINAVIA AKTIEBOLAG |
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By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX MODEHANDELS AG |
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By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX SWITZERLAND GMBH |
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By: | /s/ Gerard Johannes Berghuis | |||
Name: | Gerard Johannes Berghuis | |||
Title: | Director |
SIGNATURE PAGE TO THE CONSENT
MEXX LIMITED |
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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 |
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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 |
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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 |
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By: | /s/ Patrick Wiggins | |||
Name: | Patrick Wiggins | |||
Title: | Vice President |
SIGNATURE PAGE TO THE CONSENT
Bank of America, N.A., as Lender |
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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