Exhibit 10(z)
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EXECUTION COPY
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
May 6, 2010,
among
LIZ CLAIBORNE, INC.,
MEXX EUROPE B.V.,
JUICY COUTURE EUROPE LIMITED,
and
LIZ CLAIBORNE CANADA INC.,
as Borrowers,
The GUARANTORS Party Hereto,
The LENDERS Party Hereto
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and US Collateral Agent,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,
as Canadian Administrative Agent and Canadian Collateral Agent,
J.P. MORGAN EUROPE LIMITED,
as European Administrative Agent and European Collateral Agent,
BANK OF AMERICA, N.A.,
as Syndication Agent,
and
WACHOVIA CAPITAL FINANCE CORPORATION (NEW ENGLAND), NATIONAL
ASSOCIATION, SUNTRUST BANK and GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agents
J.P. MORGAN SECURITIES INC., BANC OF AMERICA SECURITIES LLC, WELLS FARGO
CAPITAL FINANCE, LLC and SUNTRUST ROBINSON HUMPHREY, INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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Page |
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ARTICLE I Definitions |
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1 |
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SECTION 1.01 Defined Terms |
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1 |
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SECTION 1.02 Classification of Loans and Borrowings |
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71 |
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SECTION 1.03 Terms Generally |
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71 |
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SECTION 1.04 Accounting Terms; GAAP |
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73 |
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SECTION 1.05 Currency Translations |
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74 |
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ARTICLE II The Credits |
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74 |
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SECTION 2.01 Commitments |
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74 |
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SECTION 2.02 Loans and Borrowings |
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75 |
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SECTION 2.03 Requests for Borrowing of Revolving Loans |
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77 |
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SECTION 2.04 Protective Advances |
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78 |
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SECTION 2.05 Swingline Loans |
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80 |
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SECTION 2.06 Letters of Credit |
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85 |
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SECTION 2.07 Funding of Borrowings |
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90 |
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SECTION 2.08 Interest Elections |
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91 |
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SECTION 2.09 Termination and Reduction of Commitments; Increase in Commitments |
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93 |
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SECTION 2.10 Repayment of Loans; Evidence of Debt |
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96 |
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SECTION 2.11 Prepayment of Loans |
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98 |
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SECTION 2.12 Fees |
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100 |
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SECTION 2.13 Interest |
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101 |
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SECTION 2.14 Alternate Rate of Interest |
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102 |
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SECTION 2.15 Increased Costs |
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103 |
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SECTION 2.16 Break Funding Payments |
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105 |
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SECTION 2.17 Taxes |
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105 |
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SECTION 2.18 Payments Generally; Allocation of Proceeds; Sharing of Set-offs |
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110 |
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SECTION 2.19 Mitigation Obligations; Replacement of Lenders |
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113 |
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SECTION 2.20 Returned Payments |
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114 |
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SECTION 2.21 Bankers Acceptances |
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114 |
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SECTION 2.22 Circumstances Making Bankers Acceptances Unavailable |
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118 |
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SECTION 2.23 Defaulting Lenders |
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119 |
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ARTICLE III Representations and Warranties |
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121 |
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SECTION 3.01 Organization; Powers |
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121 |
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SECTION 3.02 Authorization; Enforceability |
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121 |
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SECTION 3.03 Governmental Approvals; No Conflicts |
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122 |
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SECTION 3.04 Financial Condition; No Material Adverse Change |
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122 |
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SECTION 3.05 Properties |
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123 |
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SECTION 3.06 Litigation and Environmental Matters |
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123 |
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SECTION 3.07 Compliance with Laws and Agreements |
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123 |
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SECTION 3.08 Investment Company Status |
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124 |
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- i -
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Page |
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SECTION 3.09 Taxes |
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124 |
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SECTION 3.10 ERISA; Benefit Plans |
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124 |
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SECTION 3.11 Disclosure |
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126 |
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SECTION 3.12 No Default |
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126 |
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SECTION 3.13 Solvency |
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126 |
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SECTION 3.14 Insurance |
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128 |
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SECTION 3.15 Capitalization and Subsidiaries |
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128 |
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SECTION 3.16 Security Interest in Collateral |
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128 |
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SECTION 3.17 Employment Matters |
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128 |
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SECTION 3.18 Common Enterprise |
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129 |
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SECTION 3.19 Centre of Main Interests |
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129 |
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SECTION 3.20 Regulation H |
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129 |
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SECTION 3.21 Certain Documents |
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129 |
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ARTICLE IV Conditions |
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129 |
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SECTION 4.01 Effective Date |
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129 |
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SECTION 4.02 Each Credit Event |
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134 |
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ARTICLE V Affirmative Covenants |
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135 |
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SECTION 5.01 Financial Statements; Borrowing Base and Other Information |
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135 |
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SECTION 5.02 Notices of Material Events |
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139 |
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SECTION 5.03 Existence; Conduct of Business |
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140 |
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SECTION 5.04 Payment of Obligations |
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141 |
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SECTION 5.05 Maintenance of Properties |
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141 |
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SECTION 5.06 Books and Records; Inspection Rights |
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141 |
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SECTION 5.07 Compliance with Laws |
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141 |
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SECTION 5.08 Use of Proceeds |
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144 |
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SECTION 5.09 Insurance |
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144 |
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SECTION 5.10 Casualty and Condemnation |
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144 |
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SECTION 5.11 Appraisals |
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144 |
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SECTION 5.12 Field Examinations |
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145 |
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SECTION 5.13 [Reserved] |
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145 |
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SECTION 5.14 Additional Collateral; Further Assurances |
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145 |
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SECTION 5.15 Financial Assistance |
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147 |
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SECTION 5.16 Collateral Access Agreements and Deposit Account Control Agreements |
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147 |
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SECTION 5.17 Transfer of Accounts of Specified European Loan Parties |
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148 |
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SECTION 5.18 European Cash Management |
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148 |
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SECTION 5.19 Post-Closing Obligations |
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148 |
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ARTICLE VI Negative Covenants |
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149 |
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SECTION 6.01 Indebtedness |
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150 |
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SECTION 6.02 Liens |
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152 |
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SECTION 6.03 Fundamental Changes |
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155 |
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SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions |
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156 |
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SECTION 6.05 Asset Sales |
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159 |
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SECTION 6.06 [Reserved] |
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160 |
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- ii -
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Page |
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SECTION 6.07 [Reserved] |
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161 |
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SECTION 6.08 Swap Agreements |
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161 |
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SECTION 6.09 Restricted Payments; Certain Payments of Indebtedness |
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161 |
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SECTION 6.10 Transactions with Affiliates |
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164 |
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SECTION 6.11 Restrictive Agreements |
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164 |
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SECTION 6.12 Amendment of Material Documents |
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165 |
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SECTION 6.13 [Reserved] |
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165 |
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SECTION 6.14 Sale and Leaseback Transaction |
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165 |
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SECTION 6.15 Changes in Fiscal Periods |
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165 |
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SECTION 6.16 Minimum Aggregate Availability |
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166 |
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ARTICLE VII Events of Default |
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166 |
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ARTICLE VIII The Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent and the Collateral Agents |
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170 |
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ARTICLE IX Miscellaneous |
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178 |
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SECTION 9.01 Notices |
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178 |
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SECTION 9.02 Waivers; Amendments |
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181 |
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SECTION 9.03 Expenses; Indemnity; Damage Waiver |
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183 |
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SECTION 9.04 Successors and Assigns |
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186 |
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SECTION 9.05 Survival |
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189 |
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SECTION 9.06 Counterparts; Integration; Effectiveness |
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189 |
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SECTION 9.07 Severability |
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190 |
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SECTION 9.08 Right of Setoff |
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190 |
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SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process |
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190 |
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SECTION 9.10 WAIVER OF JURY TRIAL |
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191 |
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SECTION 9.11 Headings |
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191 |
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SECTION 9.12 Confidentiality |
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191 |
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SECTION 9.13 Several Obligations; Nonreliance; Violation of Law |
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192 |
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SECTION 9.14 USA PATRIOT Act |
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193 |
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SECTION 9.15 Disclosure |
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193 |
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SECTION 9.16 Appointment for Perfection |
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193 |
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SECTION 9.17 Interest Rate Limitation |
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193 |
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SECTION 9.18 Waiver of Immunity |
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194 |
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SECTION 9.19 Currency of Payment |
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194 |
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SECTION 9.20 Conflicts |
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195 |
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SECTION 9.21 Parallel Debt |
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195 |
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SECTION 9.22 Canadian Anti-Money Laundering Legislation |
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196 |
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SECTION 9.23 Subordination |
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197 |
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SECTION 9.24 Process Agent |
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197 |
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SECTION 9.25 No Novation |
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198 |
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SECTION 9.26 UK Loan Parties |
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198 |
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SECTION 9.27 French Loan Guarantor |
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198 |
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SECTION 9.28 Greek Loan Party |
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198 |
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SECTION 9.29 Netherlands Security Agreements |
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198 |
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SECTION 9.30 Reaffirmation and Accession by the Loan Parties |
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199 |
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- iii -
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Page |
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ARTICLE X Loan Guaranty |
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199 |
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SECTION 10.01 Guaranty |
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199 |
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SECTION 10.02 Guaranty of Payment |
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204 |
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SECTION 10.03 No Discharge or Diminishment of Loan Guaranty |
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205 |
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SECTION 10.04 Defenses Waived |
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206 |
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SECTION 10.05 Rights of Subrogation |
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206 |
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SECTION 10.06 Reinstatement; Stay of Acceleration |
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206 |
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SECTION 10.07 Information |
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206 |
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SECTION 10.08 [Reserved] |
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207 |
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SECTION 10.09 Maximum Liability |
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207 |
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SECTION 10.10 Limitations on Enforcement in respect of German Loan Parties |
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207 |
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SECTION 10.11 Contribution |
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210 |
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SECTION 10.12 Liability Cumulative |
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210 |
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SECTION 10.13 Place of Performance |
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210 |
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ARTICLE XI The Borrower Representative |
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211 |
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SECTION 11.01 Appointment; Nature of Relationship |
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211 |
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SECTION 11.02 Powers |
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211 |
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SECTION 11.03 Employment of Agents |
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211 |
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SECTION 11.04 Notices |
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212 |
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SECTION 11.05 Successor Borrower Representative |
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212 |
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SECTION 11.06 Execution of Loan Documents; Borrowing Base Certificate |
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212 |
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SECTION 11.07 Reporting |
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212 |
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SCHEDULES:
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Schedule 1.01(a)
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Commitment Schedule |
Schedule 1.01(b)
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Eligible Real Property |
Schedule 1.01(c)
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Mandatory Cost Formula |
Schedule 1.01(d)
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Mortgaged Properties |
Schedule 1.01(e)
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Specified Loan Documents |
Schedule 2.06
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Existing Letters of Credit |
Schedule 3.05
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Real Property |
Schedule 3.06
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Disclosed Matters |
Schedule 3.10
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Foreign Benefit Arrangements and Foreign Pension Plans |
Schedule 3.14
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Insurance |
Schedule 3.15
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Capitalization and Subsidiaries |
Schedule 3.16
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Filing Jurisdictions |
Schedule 5.19
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Post-Closing Obligations |
Schedule 6.01
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Existing Indebtedness |
Schedule 6.02
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Existing Liens |
Schedule 6.04
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Existing Investments |
Schedule 6.11
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Existing Restrictions |
Schedule 8
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European Collateral Agent Security Trust Provisions |
- iv -
EXHIBITS:
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Exhibit A
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Form of Assignment and Assumption |
Exhibit B-1
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Form of Aggregate Borrowing Base Certificate |
Exhibit B-2
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Form of US Borrowing Base Certificate |
Exhibit B-3
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Form of Canadian Borrowing Base Certificate |
Exhibit B-4
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Form of European Borrowing Base Certificate |
Exhibit B-5
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Form of UK Borrowing Base Certificate |
Exhibit C
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Form of Compliance Certificate |
Exhibit D
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Form of Joinder Agreement |
Exhibit E
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Form of Exemption Certificate |
Exhibit F-1
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Form of In-house Opinion of Liz Claiborne, Inc. |
Exhibit F-2
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Form of Legal Opinion of Kramer Levin Naftalis & Frankel LLP |
Exhibit G
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Form of Discount Note |
Exhibit H
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Form of Intercreditor Agreement |
Exhibit I
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Form of Borrowing Request |
- v -
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 6, 2010 (as it may be
amended or modified from time to time, this Agreement), among LIZ CLAIBORNE, INC., MEXX
EUROPE B.V., JUICY COUTURE EUROPE LIMITED, LIZ CLAIBORNE CANADA INC., the other Loan Parties from
time to time party hereto, the Lenders party hereto, 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., as Syndication Agent, and WACHOVIA
CAPITAL FINANCE CORPORATION (NEW ENGLAND), SUNTRUST BANK and GENERAL ELECTRIC CAPITAL CORPORATION,
as Documentation Agents, amends and restates in full the Amended and Restated Credit Agreement,
dated January 12, 2009 (as amended, restated, supplemented or otherwise modified prior to the date
hereof, the Existing 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, and the
other agents party thereto.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
ABR, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.
Acceptance Fee has the meaning assigned to such term in Section 2.21(m).
Acceptance Obligations means, as to any Loan Party, any and all obligations of such
Loan Party, whether absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof), arising under or
evidenced by any bills of exchange, drafts or similar instruments drawn on any Loan Party and
accepted by such Loan Party (whether payable at sight, on demand or at any specified time) that are
purchased or otherwise assigned or payable to (whether by endorsement or otherwise) or held by any
Lender or any Affiliate of any Lender; provided that (i) for the avoidance of doubt, in no
event shall Acceptance Obligations include any obligations relating to BA Drawings, (ii) at or
prior to the time that any such obligation is incurred, the applicable Lender or its Affiliate
(other than JPMCB) shall have delivered written notice to the Administrative Agent of such
obligation and that it constitutes an Acceptance Obligation entitled to the benefits of the
Collateral Documents and (iii) the aggregate principal amount of all Acceptance Obligations
outstanding at any one time shall not exceed $10,000,000.
Account means, individually and collectively, any Account referred to in any
Security Agreement.
Account Control Agreement means, individually and collectively, any Deposit Account
Control Agreement and any agreement in writing in form and substance reasonably satisfactory to the
applicable Collateral Agent, by and among any Loan Party, the applicable Collateral Agent and any
securities intermediary in respect of any relevant securities account.
Account Debtor means any Person obligated on an Account.
Account Party means any Loan Party other than a US Loan Party, Canadian Loan Party,
Netherlands Loan Party, UK Loan Party or German Loan Party.
Acquired JV Interests has the meaning assigned to such term in Section 6.04(s).
Adjusted Funding Amount means, on any Interim Calculation Date, the excess of (i)
the aggregate principal amount of European Swingline Loans outstanding on such date over (ii) the
aggregate principal amount of the European Swingline Loans with respect to which the European
Administrative Agent has requested a Settlement pursuant to Section 2.05(c).
Adjusted LIBO Rate means, with respect to any Eurocurrency Borrowing for any
Interest Period, an interest rate per annum equal to (a) (i) the LIBO Rate for such Interest Period
multiplied (if applicable) by (ii) the Statutory Reserve Rate, plus (b) the
Mandatory Cost (in each case, rounded upwards, if necessary, to the next 1/16 of 1%).
Administrative Agent means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent for the Lenders hereunder, and its successors in such capacity.
Administrative Questionnaire means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
Agency Agreement means the Agency Agreement, dated as of July 6, 2006, between Liz
Claiborne, Inc., as issuer, JPMorgan Chase Bank, N.A. and J.P. Morgan Bank Luxembourg S.A.
Agents means, individually and collectively, the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, the US Collateral Agent, the Canadian
Collateral Agent, the European Collateral Agent, the Syndication Agent and the Documentation
Agents.
Aggregate Availability means, with respect to all the Borrowers, at any time, an
amount equal to (a) the lesser of (i) the aggregate amount of the Commitments and (ii) the
Aggregate Borrowing Base minus (b) the total Revolving Exposure.
2
Aggregate Borrowing Base means the aggregate amount of the US Borrowing Base, the
Canadian Borrowing Base, the UK Borrowing Base and the European Borrowing Base; provided
that the maximum amount of (a) the Canadian Borrowing Base which may be included in the Aggregate
Borrowing Base is the Canadian Sublimit, (b) the UK Borrowing Base which may be included in the
Aggregate Borrowing Base is the UK Sublimit and (c) the European Borrowing Base which may be
included in the Aggregate Borrowing Base is the European Sublimit.
Aggregate Borrowing Base Certificate means a certificate, signed and certified as
accurate and complete by a Financial Officer of the Borrower Representative, in substantially the
form of Exhibit B-1.
Aggregate Credit Exposure means, at any time, the aggregate Credit Exposure of all
the Lenders.
Agreement has the meaning assigned to such term in the preamble hereto.
Alabama Property means that certain real property located at Lot 1, according to the
Interstate Industrial Park Plat No. 7, as said Map appears of record in the office of the Judge of
Probate of Montgomery County, Alabama in Plat Book 42, at Page 120.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month interest period in effect
on such day (or if such day is not a Business Day, the immediately preceding Business Day)
plus 1%, provided that, for the avoidance of doubt, for purposes of this
definition, the Adjusted LIBO Rate for any day shall be based on the rate appearing on the Reuters
BBA Libor Rates Page 3750 (or on any successor or substitute page of such page) at approximately
11:00 a.m. London time on such day (or if such day is not a Business Day, the immediately preceding
Business Day). Any change in the Alternate Base Rate due to a change in the Prime Rate, the
Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the
effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted
LIBO Rate, respectively.
Alternate Rate means, for any day, the sum of (a) a rate per annum selected by the
Administrative Agent, in its reasonable discretion based on market conditions in consultation with
the Borrower Representative (or the applicable Borrower) and the Lenders, plus (b) the
Applicable Spread for Eurocurrency Loans, plus (c) the Mandatory Cost. When used in
reference to any Loan or Borrowing, Alternate Rate refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate
Rate.
AML Legislation has the meaning assigned to such term in Section 9.22(a).
Applicable Commitment Fee Rate means, for any day relating to each of Facility A and
Facility B, with respect to the commitment fees payable hereunder, the applicable rate per annum
set forth below, based upon the daily average Commitment Utilization Percentage during the most
recent fiscal quarter of the Company:
3
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Applicable |
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Commitment |
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Commitment Utilization Percentage |
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Fee Rate |
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Category 1 > 50% |
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0.50 |
% |
Category 2 ≤ 50% |
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0.75 |
% |
For purposes of the foregoing, the Applicable Commitment Fee Rate shall be determined as of
the end of each fiscal quarter of the Company; provided that the Commitment Utilization
Percentage shall be deemed to be in Category 2 (A) at any time that an Event of Default has
occurred and is continuing (other than an Event of Default arising from the failure to deliver any
Borrowing Base Certificate) or (B) at the option of the Administrative Agent or at the request of
the Required Lenders if the Borrowers fail to deliver any Borrowing Base Certificate that is
required to be delivered by them pursuant to Section 5.01, during the period from the expiration of
the time for delivery thereof until each such Borrowing Base Certificate is so delivered.
Applicable Percentage means, with respect to any Facility A Lender or Facility B
Lender, (a) with respect to Revolving Loans, LC Exposure, Swingline Loans or Protective Advances, a
percentage equal to a fraction the numerator of which is such Lenders Facility A Commitment or
Facility B Commitment, as applicable, and the denominator of which is the aggregate amount of the
Facility A Commitments or Facility B Commitments, as applicable (or, if the Facility A Commitments
or Facility B Commitments, as applicable, have terminated or expired, such Lenders share of the
total Facility A Revolving Exposure or Facility B Revolving Exposure, respectively, at that time);
provided that in the case of Section 2.23(c) when a Specified Defaulting Lender shall
exist, Applicable Percentage pursuant to this clause (a) shall mean the percentage equal to a
fraction the numerator of which is such Lenders Facility A Commitments or Facility B Commitments,
as applicable, and the denominator of which is the aggregate amount of the Facility A Commitments
or Facility B Commitments (disregarding any Specified Defaulting Lenders Commitment), as
applicable and (b) with respect to the Aggregate Credit Exposure, a percentage based upon its share
of the Aggregate Credit Exposure and the aggregate amount of unused Facility A Commitments or
Facility B Commitments, as applicable.
Applicable Spread means, for any day, with respect to any ABR Loan, Canadian Prime
Rate Loan, Eurocurrency Loan, BA Drawing or Overnight LIBO Loan, as the case may be, the applicable
rate per annum set forth below under the caption ABR Spread, Eurocurrency Spread, Canadian
Prime Spread, BA Drawing Spread or Overnight LIBO Spread, as the case may be, based upon the
daily average Aggregate Availability during the most recent fiscal quarter of the Company (the
Average Aggregate Availability); provided that until the completion of one full
fiscal quarter after the Effective Date, the Applicable Spread shall be the applicable rate per
annum set forth below in Category 2:
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Canadian |
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BA |
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Overnight |
|
Average Aggregate |
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ABR |
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Eurocurrency |
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Prime |
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Drawing |
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LIBO |
|
Availability |
|
Spread |
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Spread |
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Spread |
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|
Spread |
|
|
Spread |
|
Category 1 |
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|
2.25 |
% |
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|
3.25 |
% |
|
|
2.25 |
% |
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|
3.25 |
% |
|
|
3.25 |
% |
>$200,000,000 |
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4
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Canadian |
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BA |
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|
Overnight |
|
Average Aggregate |
|
ABR |
|
|
Eurocurrency |
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|
Prime |
|
|
Drawing |
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|
LIBO |
|
Availability |
|
Spread |
|
|
Spread |
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|
Spread |
|
|
Spread |
|
|
Spread |
|
Category 2 |
|
|
2.50 |
% |
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|
3.50 |
% |
|
|
2.50 |
% |
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|
3.50 |
% |
|
|
3.50 |
% |
≤ $200,000,000 but
>$125,000,000 |
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Category 3 |
|
|
2.75 |
% |
|
|
3.75 |
% |
|
|
2.75 |
% |
|
|
3.75 |
% |
|
|
3.75 |
% |
≤ $125,000,000 |
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For purposes of the foregoing, the Applicable Spread shall be determined as of the end of each
fiscal quarter of the Company based upon the Aggregate Borrowing Base Certificate that is delivered
from time to time pursuant to Section 5.01, with any changes to the Applicable Spread resulting
from changes in the Average Aggregate Availability to be effective on the first day of the first
month following delivery of such Aggregate Borrowing Base Certificate; provided that the
Average Aggregate Availability shall be deemed to be in Category 3 (A) at any time that an Event of
Default has occurred and is continuing (other than an Event of Default arising from the failure to
deliver any Borrowing Base Certificate) or (B) if the Company fails to deliver any Borrowing Base
Certificate that is required to be delivered pursuant to Section 5.01, during the period from the
expiration of the time for delivery thereof until five days after each such Borrowing Base
Certificate is so delivered; provided further that if any Borrowing Base
Certificate is at any time restated or otherwise revised or if the information set forth in any
Borrowing Base Certificate otherwise proves to be false or incorrect such that the Applicable
Spread would have been higher than was otherwise in effect during any period, without constituting
a waiver of any Default or Event of Default arising as a result thereof, interest due under this
Agreement shall be immediately recalculated at such higher rate for any such applicable periods and
shall be due and payable on demand.
Approved Fund has the meaning assigned to such term in Section 9.04.
Assignment and Assumption means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form
approved by the Administrative Agent.
Attorney has the meaning assigned to such term in Article VIII.
Auditors Determination has the meaning set forth in Section 10.10(c).
Austrian Collateral Document means any document governed by Austrian law and
creating a security interest over any Account or over any other property of any European Loan Party
in favor of the European Collateral Agent or any Lender, any Issuing Bank or any other Person to
which any European Loan Party or Canadian Loan Party owes any monies or incurs any obligations or
other liabilities under any Loan Document (which, for the purpose of this defined term shall
include the Existing Credit Agreement), in a form satisfactory to the European Collateral Agent, as
the same may be amended, restated or otherwise modified from time to time.
Availability Period means the period from and including the Effective Date to but
excluding Maturity Date.
5
Available Commitments means, at any time, the aggregate amount of the Commitments
then in effect minus the total Revolving Exposure at such time; provided that in
calculating the total Revolving Exposure for the purpose of determining the Available Commitment
pursuant to Section 2.12(a), the aggregate principal amount of Swingline Loans then outstanding
shall be deemed to be zero.
Average Aggregate Availability shall have the meaning set forth in the definition of
Applicable Spread set forth herein.
BA Drawing means B/As accepted and purchased, and any BA Equivalent Loan made in
lieu of such acceptance and purchase, on the same date and as to which a single Contract Period is
in effect.
BA Equivalent Loan means an extension of credit made by a Non BA Lender pursuant to
Section 2.21(j).
Bankers Acceptance and B/A means a bill of exchange, including a
depository bill issued in accordance with the Depository Bills and Notes Act (Canada), denominated
in Canadian Dollars, drawn by the Canadian Borrower and accepted by a Facility B Lender and shall
include a Discount Note except where the context otherwise requires.
Banking Services means each and any of the following bank services provided to any
Loan Party by any Lender or any of its Affiliates: (a) commercial credit cards, (b) stored value
cards, (c) purchasing cards and (d) treasury, depositary or cash management services (including,
without limitation, controlled disbursement, automated clearinghouse transactions, return items,
overdrafts and interstate depository network services) or any similar transaction.
Banking Services Obligations of the Loan Parties, means any and all obligations of
the Loan Parties, whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor) in connection with Banking Services.
Banking Services Reserves means all Reserves which the Administrative Agent from
time to time establishes in its Permitted Discretion for Banking Services then provided or
outstanding.
Bankruptcy Code means the provisions of Title 11 of the United States Code, 11 USC.
§§ 101 et seq., as amended, or any similar federal or state law for the relief of
debtors.
Belgian Loan Guarantor has the meaning assigned to such term in Section 10.01(q).
Board means the Board of Governors of the Federal Reserve System of the United
States of America (or any successor thereto).
Bookrunners means, individually or collectively, J.P. Morgan Securities Inc., Banc
of America Securities LLC, Wells Fargo Capital Finance, LLC and SunTrust Robinson Humphrey, Inc.,
in their respective capacities as joint bookrunners hereunder.
6
Borrower or Borrowers means, individually or collectively, the Company,
the Canadian Borrower, the UK Borrower and the European Borrower.
Borrower Representative means the Company, in its capacity as contractual
representative of the Borrowers pursuant to Article XI.
Borrowing means (a) Revolving Loans of the same Facility, Type and currency, made,
converted or continued on the same date and, in the case of Eurocurrency Loans, as to which a
single Interest Period is in effect and, in the case of BA Drawings, as to which a single Contract
Period is in effect, (b) a Swingline Loan and (c) a Protective Advance.
Borrowing Base means, individually and collectively, each of the Aggregate Borrowing
Base, the US Borrowing Base, the Canadian Borrowing Base, the UK Borrowing Base and the European
Borrowing Base.
Borrowing Base Certificate means, individually and collectively, each of the
Aggregate Borrowing Base Certificate, the US Borrowing Base Certificate, the Canadian Borrowing
Base Certificate, the UK Borrowing Base Certificate and the European Borrowing Base Certificate.
Borrowing Request means a request by the Borrower Representative (or the applicable
Borrower) for a Borrowing of Revolving Loans, in accordance with Section 2.03, in substantially the
form of Exhibit I.
Business Day means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, (a) when used in connection with a Eurocurrency Loan, any Swingline Loan
made by the European Swingline Lender or any Facility B Letter of Credit other than a Canadian
Letter of Credit, the term Business Day shall also exclude any day on which banks are not open
for dealings in deposits in the applicable currency in the London interbank market, (b) when used
in connection with a Facility B Swingline Loan, Facility B Letter of Credit or Eurocurrency Loan,
in each case denominated in Euros, the term Business Day shall also exclude any day which is not
a TARGET Day (as determined by the Administrative Agent), (c) when used in connection with any
European Loan, European Swingline Loan or European Letter of Credit, the term Business Day shall
also exclude any day on which commercial banks in the Netherlands are authorized or required by law
to remain closed, (d) when used in connection with any UK Loan, UK Swingline Loan or UK Letter of
Credit, the term Business Day shall also exclude any day on which commercial banks in London,
England are authorized or required by law to remain closed, (e) when used in connection with any
Canadian Loan or Canadian Letter of Credit or any Loan or Letter of Credit issued in Canadian
Dollars, the term Business Day shall also exclude any day on which commercial banks in Toronto,
Canada are authorized or required by law to remain closed, (f) when used in connection with any
Loan denominated in Sterling, the term Business Day shall also exclude any day on which
commercial banks in London, England are authorized or required by law to remain closed and (g) when
used in connection with any Loan denominated in Yen, the term Business Day shall also exclude any
day on which commercial banks in Tokyo, Japan are authorized or required by law to remain closed;
provided further that notwithstanding anything to the contrary in this definition,
when used in connection with any Loan denominated in Euros to the UK Borrower or the European
7
Borrower, the term Business Day shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in London, England, are authorized or required by law to remain
closed.
Canadian Administrative Agent means JPMorgan Chase Bank, N.A., Toronto Branch, in
its capacity as administrative agent for the Facility B Lenders hereunder, and its successors in
such capacity (or such of its Affiliates as it may designate from time to time).
Canadian Availability means (a) the lesser of (x) the Canadian Sublimit and (y) the
sum of (i) the Canadian Borrowing Base plus (ii) solely to the extent the total Revolving
Exposure relating to the Canadian Borrower exceeds the Canadian Borrowing Base, the US Availability
(calculated without giving effect to any Canadian US Borrowing Base Utilization), minus (b)
the total Revolving Exposure relating to the Canadian Borrower.
Canadian Benefit Plans means any plan, fund, program, policy or agreement, whether
oral or written, formal or informal, funded or unfunded, insured or uninsured, providing employee
benefits, including medical, hospital care, dental, sickness, accident, disability, life insurance,
pension, retirement, supplemental retirement or savings benefits, maintained by any Loan Party or
any Subsidiary of any Loan Party or under which any Loan Party or any Subsidiary of any Loan Party
has any actual or potential liability with respect to any employee or former employee, but
excluding any Canadian Pension Plans.
Canadian Borrower means Liz Claiborne Canada Inc.
Canadian Borrowing Base means, at any time, with respect to the Canadian Loan
Parties, the sum of:
(a) 100% of the aggregate cash balances denominated in dollars or Canadian Dollars in
depositary accounts of the Canadian Loan Parties constituting investment accounts that are
held at JPMorgan Chase Bank, N.A. or any Affiliate thereof approved by the Administrative
Agent and subject to an Account Control Agreement and upon which the Canadian Collateral
Agent has a first priority perfected Lien for the benefit of the Agents, the applicable
Lenders and the applicable Issuing Banks, subject only to Liens permitted pursuant to
Section 6.02(f), plus
(b) the sum of (i) the product of (A) 85% multiplied by (B) the Canadian Loan
Parties Eligible Accounts at such time, minus the Dilution Reserve related to the
Canadian Loan Parties, and (ii) the product of (A) 90% multiplied by (B) the
Canadian Loan Parties Eligible Credit Card Account Receivables at such time, plus
(c) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Retail Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the Canadian Loan Parties Eligible Retail Inventory (other than
Eligible LC Inventory), valued at the lower of cost (determined on a first-in-first-out
basis) or market value, at such time, plus
8
(d) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Wholesale Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the Canadian Loan Parties Eligible Wholesale Inventory (other than
Eligible LC Inventory), valued at the lower of cost (determined on a first-in-first-out
basis) or market value, at such time, plus
(e) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Retail Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the Canadian Loan Parties Eligible Retail LC Inventory, valued at the
lower of cost (determined on a first-in-first-out basis) or market value, at such time,
plus
(f) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Wholesale Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the Canadian Loan Parties Eligible Wholesale LC Inventory, valued at
the lower of cost (determined on a first-in-first-out basis) or market value, at such time,
minus
(g) without duplication, applicable Reserves established by the Administrative Agent in
its Permitted Discretion.
The Administrative Agent may, in its Permitted Discretion, adjust Reserves (subject to Section
9.02(b)) used in computing the Aggregate Borrowing Base and the Canadian Borrowing Base, with any
such changes to be effective two Business Days after delivery of notice thereof to the Borrower
Representative and the Lenders. The Canadian Borrowing Base at any time shall be determined by
reference to the most recent Canadian Borrowing Base Certificate delivered to the Administrative
Agent pursuant to Section 5.01(g) of this Agreement.
Canadian Borrowing Base Certificate means a certificate, signed and certified as
accurate and complete by a Financial Officer of the Borrower Representative, in substantially the
form of Exhibit B-3.
Canadian Collateral Agent means JPMorgan Chase Bank, N.A., Toronto Branch, in its
capacity as collateral agent, security trustee and fondé de pouvoir for itself, the Administrative
Agent, the Issuing Banks and the Lenders, and its successors in such capacity (or such of its
Affiliates as it may designate from time to time).
Canadian Dollars and C$ means dollars in the lawful currency of Canada.
Canadian Funding Office means the office of JPMorgan Chase Bank, N.A., Toronto
Branch specified in Section 9.01 or such other office as may be specified from time to time by the
Administrative Agent by written notice to the Canadian Borrower and the relevant Lenders.
Canadian Group Member means any Subsidiary of the Company (including the Canadian
Borrower) organized under the laws of Canada or any province or other political subdivision
thereof.
9
Canadian Letter of Credit means any Letter of Credit or similar instrument
(including a bank guarantee) acceptable to the applicable Issuing Bank issued hereunder for the
purpose of providing credit support for the Canadian Borrower.
Canadian Loans means, individually and collectively, the Canadian Revolving Loans,
the Canadian Swingline Loans and the Canadian Protective Advances.
Canadian Loan Party means any Loan Party (including the Canadian Borrower) organized
under the laws of Canada or any province or other political subdivision thereof.
Canadian Pension Plans means any pension plan, supplemental pension, retirement
savings, deferred profit sharing or other retirement income plan or arrangement of any kind,
registered or unregistered, established, maintained or contributed to by a Loan Party or any
Subsidiary of a Loan Party for its employees or former employees, but does not include the Canada
Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province
of Quebec, respectively.
Canadian Prime Rate means on any day, the greater of (a) the annual rate of interest
announced from time to time by the Canadian Administrative Agent as being its reference rate then
in effect for determining interest rates on Canadian Dollar-denominated commercial loans made by it
in Canada and (b) the CDOR Rate for a one month term in effect from time to time plus 100 basis
points per annum.
Canadian Prime Rate Loan means a Loan denominated in Canadian Dollars the rate of
interest applicable to which is based upon the Canadian Prime Rate.
Canadian Protective Advance has the meaning assigned to such term in Section 2.04.
Canadian Reaffirmation Agreement means the Canadian Reaffirmation Agreement, dated
as of the date hereof, among the Canadian Loan Parties party thereto and the Canadian Collateral
Agent for the benefit of the Agents, the applicable Lenders and the applicable Issuing Banks, as
the same may be amended, restated or otherwise modified from time to time.
Canadian Revolving Loan means a Revolving Loan made to the Canadian Borrower.
Canadian Security Agreement means that certain Canadian Pledge and Security
Agreement dated January 12, 2009, between the Canadian Loan Parties party thereto and the Canadian
Collateral Agent for the benefit of the Agents, the applicable Lenders and the applicable Issuing
Banks, as the same may be amended, restated or otherwise modified from time to time, the Canadian
Reaffirmation Agreement, and any other pledge or security agreement entered into, on or after the
date of this Agreement, by any other Canadian Loan Party (as required by this Agreement or any
other Loan Document for the purpose of creating a Lien on the property of any Canadian Loan Party
(or any other property located in the Canada)), as the same may be amended, restated or otherwise
modified from time to time.
Canadian Sublimit means $40,000,000, as such sublimit may be reduced or terminated
in accordance with Section 2.09.
10
Canadian Swingline Lender means JPMorgan Chase Bank, N.A., Toronto Branch, in its
capacity as lender of Canadian Swingline Loans hereunder, and its successors and assigns in such
capacity.
Canadian Swingline Loan has the meaning assigned to such term in Section 2.05(a)(v).
Canadian US Borrowing Base Utilization means the excess of (i) the total Revolving
Exposure relating to the Canadian Borrower minus (ii) the Canadian Borrowing Base.
Capital Expenditures means, for any period, with respect to any Person, the
aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or leasing
(pursuant to a capital lease) of fixed or capital assets or additions to equipment (including
replacements, capitalized repairs and improvements during such period) that should be capitalized
under GAAP on a consolidated balance sheet of such Person and its Subsidiaries (it being understood
that Capital Expenditures shall not include any portion of the purchase price of a Permitted
Acquisition that is required to be capitalized under GAAP).
Capital Impairment has the meaning set forth in Section 10.10.
Capital Lease Obligations of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a consolidated balance sheet of such Person under GAAP, and the
amount of such obligations shall be the capitalized amount thereof determined in accordance with
GAAP.
CDOR Rate means on any day, with respect to a particular term as specified herein,
the annual rate of discount or interest which is the arithmetic average of the discount rates for
such term applicable to Canadian Dollar bankers acceptances identified as such on the Reuters
Screen CDOR Page at approximately 10:00 A.M. on such day, or if such day is not a Business Day,
then on the immediately preceding Business Day (as adjusted by the Canadian Administrative Agent
after 10:00 A.M. to reflect any error in any posted rate or in the posted average annual rate). If
the rate does not appear on the Reuters Screen CDOR Page as contemplated above, then the CDOR Rate
on any day shall be calculated as the arithmetic average of the annual discount rates for such term
applicable to Canadian Dollar bankers acceptances of, and as quoted by, the Schedule I Reference
Banks, as of 10:00 A.M. on that day, or if that day is not a Business Day, then on the immediately
preceding Business Day.
Change in Control means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934 and the rules and regulations of the U.S. Securities and Exchange
Commission thereunder as in effect on the date hereof) of Equity Interests representing more than
50% of the aggregate ordinary voting power represented by the issued and outstanding Equity
Interests of the Company; (b) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Company by Persons who were neither (i) nominated by the board of
directors of the Company, or a committee thereof, nor (ii) appointed by directors so nominated; (c)
the Company shall cease to own, directly or indirectly, free and
11
clear of all Liens or other encumbrances (other than Liens created pursuant to any Loan
Document), 100% of the outstanding voting Equity Interests of the Borrowers (other than the
Company) on a fully diluted basis (other than any directors qualifying shares of any Borrower); or
(d) the occurrence of a Put Event.
Change in Law means (a) the adoption of any law, rule, regulation, treaty, practice
or concession after the date of this Agreement, (b) any change in any law, rule, regulation,
treaty, practice or concession or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or any Issuing Bank (or,
for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank or by
such Lenders or such Issuing Banks holding company, if any) with any request, guideline,
directive, notice, ruling, statement or policy or practice statement (whether or not having the
force of law) of any Governmental Authority made or issued after the date of this Agreement.
Charges has the meaning assigned to such term in Section 9.17.
Class, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Swingline Loans or Protective
Advances.
Code means the Internal Revenue Code of 1986, as amended from time to time.
Collateral means any and all property or rights owned, leased or operated by a
Person covered by the Collateral Documents and any and all other property or rights owned, leased
or operated by any Loan Party, now existing or hereafter acquired, that may at any time be or
become subject to a security interest or Lien in favor of the applicable Collateral Agent (on
behalf of the Agents, the Lenders, and the Issuing Banks) pursuant to the Collateral Documents in
order to secure the Secured Obligations.
Collateral Access Agreement means, individually and collectively, each Collateral
Access Agreement referred to in any Security Agreement.
Collateral Agent means, individually and collectively, the US Collateral Agent,
Canadian Collateral Agent and European Collateral Agent.
Collateral Document means, individually and collectively, each Security Agreement,
each Mortgage and each other document granting a Lien upon any of the Collateral as security for
payment of the Secured Obligations.
Collection Account means, individually and collectively, each Collection Account
referred to in any Security Agreement.
Commitment means, with respect to each Lender, individually and collectively, the
Facility A Commitment and the Facility B Commitment of such Lender.
Commitment Schedule means the Schedule attached hereto as Schedule 1.01(a).
12
Commitment Utilization Percentage means, on any date, the percentage equivalent to a
fraction (a) with respect to Facility A, (i) the numerator of which is the total Facility A
Revolving Exposure and (ii) the denominator of which is the aggregate amount of the Facility A
Commitments (or, on any day after termination of the Facility A Commitments, the aggregate amount
of the Facility A Commitments in effect immediately preceding such termination) and (b) with
respect to Facility B, (i) the numerator of which is the total Facility B Revolving Exposure and
(ii) the denominator of which is the aggregate amount of the Facility B Commitments (or, on any day
after termination of the Facility B Commitments, the aggregate amount of the Facility B Commitments
in effect immediately preceding such termination).
Company means Liz Claiborne, Inc., a Delaware corporation.
Company Plan means any Plan, Foreign Pension Plan or Foreign Benefit Arrangement,
whether in effect on the date hereof or hereafter adopted.
Confidential Information Memorandum means the Confidential Information Memorandum
dated April 2010 relating to the Borrowers and the Transactions.
Consolidated EBITDA means, for any period, Consolidated Net Income from Continuing
Operations Attributable (determined in accordance with GAAP) to the Company for such period
plus (a) without duplication and to the extent reflected as a charge in the statement of
such Consolidated Net Income for such period, the sum of (i) income or franchise tax expense for
such period, (ii) Consolidated Interest Expense for such period, (iii) all amounts attributable to
depreciation and amortization expense for such period, (iv) any items of loss resulting from the
sale of assets other than in the ordinary course of business for such period, (v) any non-cash
charges for tangible or intangible impairments or asset write downs for such period (excluding any
write downs for write-offs of Inventory), (vi) any other extraordinary non-cash charges for such
period (but excluding any non-cash charge in respect of an item that was included in Consolidated
Net Income in a prior period and any non-cash charge that relates to the write-down or write-off of
inventory) and (vii) cash restructuring charges, cash charges in connection with store closures and
other non-recurring cash charges, in each case, related to cost reduction and brand exiting related
activities, incurred on or prior to the first anniversary of the Effective Date in an aggregate
amount not to exceed $30,000,000, minus (b) without duplication and to the extent included
in Consolidated Net Income, (i) any items of gain resulting from the sale of assets other than in
the ordinary course of business for such period, (ii) any cash payments made during such period in
respect of non-cash charges described in clause (a)(v) or (a)(vi) taken in a prior period, (iii)
any interest income for such period and (iv) any extraordinary gains and any non-cash items of
income for such period, all calculated for the Company and its Subsidiaries on a consolidated basis
in accordance with GAAP. Notwithstanding anything to the contrary set forth herein, for purposes
of calculating the Fixed Charge Coverage Ratio, Consolidated EBITDA shall include discontinued
operations of the Company and its Subsidiaries, as defined by GAAP, until the applicable restated
financial statements reflecting such discontinuation are available.
Consolidated Interest Expense means, with reference to any period, total interest
expense (including that attributable to Capital Lease Obligations) of the Company and its
Subsidiaries for such period with respect to all outstanding Indebtedness of the Company and its
13
Subsidiaries (including all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers acceptance financing and net costs under Swap Agreements
in respect of interest rates to the extent such net costs are allocable to such period in
accordance with GAAP), calculated on a consolidated basis for the Company and its Subsidiaries for
such period in accordance with GAAP.
Consolidated Net Income means, for any period, the consolidated net income (or loss)
of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated or amalgamated with the
Company or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary) in which the Company or any of its Subsidiaries has an ownership interest, except to
the extent that any such income is actually received by the Company or such Subsidiary in the form
of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by such Subsidiary is
not at the time permitted by the terms of any contractual obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
Contract Period means the term selected by the Canadian Borrower applicable to
Bankers Acceptances in accordance with Section 2.21(b).
Contractual Obligation means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.
Control means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. Controlling and Controlled
have meanings correlative thereto.
Corresponding Debt has the meaning assigned to such term in Section 9.21.
Credit Card Account Receivables means any receivables due to any Loan Party from the
credit card issuer in connection with purchases from and other goods and services provided by such
Loan Party on the following credit cards: Visa, MasterCard, American Express, Diners Club,
Discover, JCB, Carte Blanche and such other credit cards as the Administrative Agent shall
reasonably approve from time to time, in each case which have been earned by performance by such
Loan Party but not yet paid to such Loan Party by the credit card issuer or the credit card
processor, as applicable.
Credit Exposure means, as to any Facility A Lender or Facility B Lender at any time,
the sum of (a) such Lenders Facility A Revolving Exposure or Facility B Revolving Exposure, as
applicable, at such time, plus (b) an amount equal to its Applicable Percentage, if any, of
the aggregate principal amount of Facility A Protective Advances or Facility B Protective Advances,
as applicable, outstanding at such time.
Currency of Payment has the meaning assigned to such term in Section 9.19.
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Custodian has the meaning assigned to such term in Article VIII.
Customer Credit Liability Reserves means, at any time, 50% of the aggregate
remaining value at such time of outstanding gift certificates and gift cards sold by the Loan
Parties entitling the holder thereof to use all or a portion of the certificate or gift card to pay
all or a portion of the purchase price of Inventory.
Danish Kroner refers to the lawful currency of Denmark.
Default means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
Defaulting Lender means any Lender, as determined by the Administrative Agent, that
has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swingline
Loans within three Business Days of the date required to be funded by it hereunder, (b) notified
any Borrower, the Administrative Agent, any Issuing Bank, any Swingline Lender or any Lender in
writing that it does not intend to comply with any of its funding obligations under this Agreement
or has made a public statement to the effect that it does not intend to comply with its funding
obligations under this Agreement or under other agreements in which it commits to extend credit,
(c) failed, within three Business Days after request by the applicable Administrative Agent, to
confirm that it will comply with the terms of this Agreement relating to its obligations to fund
prospective Loans and participations in then outstanding Letters of Credit and Swingline Loans, (d)
otherwise failed to pay over to the applicable Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within three Business Days of the date when due, unless
the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that
has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or
has had a receiver, interim receiver, receiver and manager, administrator, liquidator, conservator,
trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment or has a parent
company that has become the subject of a bankruptcy or insolvency proceeding, or has had a
receiver, interim receiver, receiver and manager, administrator, liquidator, conservator, trustee
or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or appointment.
Defaulting Loan Party has the meaning set forth in Section 9.27(a).
Departing Lender has the meaning assigned to such term in Section 2.19(b).
Deposit Account Control Agreement means, individually and collectively, each
Deposit Account Control Agreement referred to in any Security Agreement or, in the case of any
Security Agreement other than the US Security Agreement or the Canadian Security Agreement, any
similar documentation or requirements necessary to perfect the security over the subject account
referred to in such Security Agreement.
Designated German Subsidiaries means Mexx Modehandels GmbH, a German limited
liability company (GmbH) having its registered office at Korschenbroich, Germany with registered
number HRB 5316 (commercial register of the local court of Neuss), Mexx Holding
15
GmbH, a German limited liability company (GmbH) having its registered office at
Korschenbroich, Germany with registered number HRB 5294 (commercial register of the local court of
Neuss), Verwaltungsgesellschaft Mexx Direct GmbH, a German limited liability company (GmbH) having
its registered office at Korschenbroich, Germany with registered number HRB 13778 (commercial
register of the local court of Neuss), Mexx Deutschland GmbH, a German limited liability company
(GmbH) having its registered office at Korschenbroich, Germany with registered number HRB 3035
(commercial register of the local court of Neuss) and Mexx Direct GmbH & Co. KG, a German limited
partnership (KG) having its registered office at Korschenbroich, Germany with registered number HRA
6551(commercial register of the local court of Neuss).
Designated Loan Party means Mexx Austria GmbH, Mexx Direct Holding B.V., Mexx Europe
B.V., Mexx Holding GmbH, Mexx Hellas EPE, Mexx Luxembourg S.Á.R.L., Mexx Modehandels GmbH, Mexx
Modehandels AG, Liz Claiborne 3 B.V. and Mexx Europe International B.V.
Dilution Factors means, without duplication, with respect to any period, the
aggregate amount of all deductions, credit memos, returns, adjustments, allowances, bad debt
write-offs and other non-cash credits which are recorded to reduce accounts receivable in a manner
consistent with current and historical accounting practices of the Loan Parties.
Dilution Ratio means, at any date, the amount (expressed as a percentage) equal to
(a) the aggregate amount of the applicable Dilution Factors for the 12 most recently ended fiscal
months divided by (b) total gross sales of the applicable Loan Parties for the 12 most
recently ended fiscal months.
Dilution Reserve means, at any date, the applicable Dilution Ratio
multiplied by the Eligible Accounts of the applicable Loan Parties, as the context may
require, on such date; provided that at all times that the Dilution Ratio is less than
5.0%, the Dilution Reserve shall be zero.
Disclosed Matters means the actions, suits and proceedings and the environmental
matters existing on the Effective Date and disclosed on Schedule 3.06.
Discount Note means a non-interest bearing promissory note denominated in Canadian
Dollars, substantially in the form of Exhibit G, issued by the Canadian Borrower to a Non BA Lender
to evidence a BA Equivalent Loan.
Discount Proceeds means for any Bankers Acceptance issued hereunder, an amount
calculated on the applicable Borrowing date or date of conversion or continuation by multiplying
(a) the face amount of the Bankers Acceptance by (b) the quotient obtained by dividing (i) one by
(ii) the sum of one plus the product of (A) the Discount Rate applicable to the Bankers Acceptance
and (B) a fraction, the numerator of which is the applicable Contract Period and the denominator of
which is 365, with the quotient being rounded up or down to the fifth decimal place and .00005
being rounded up.
Discount Rate means with respect to an issue of Bankers Acceptances with the same
maturity date, (a) for a Revolving Lender which is a Schedule I Lender, the CDOR Rate for the
16
appropriate term and (b) for a Revolving Lender which is not a Schedule I Lender, the
arithmetic average (rounded upwards to the nearest multiple of 0.01%) of the actual discount rates
(expressed as annual rates) for B/As for such term accepted by the Schedule II/III Reference Banks
established in accordance with their normal practices at or about 10:00 A.M. (Toronto time) on the
date of issuance but not to exceed the actual rate of discount applicable to B/As established
pursuant to clause (a) for the same B/A issue plus 10 basis points per annum.
Document has the meaning assigned to such term in the US Security Agreement.
Documentation Agent means, individually and collectively, Wachovia Capital Finance
Corporation (New England), SunTrust Bank and General Electric Capital Corporation, in their
respective capacities as Documentation Agent.
Dollar Equivalent means, on any date of determination, (a) with respect to any
amount expressed in Euros, Sterling, Canadian Dollars, Yen or any other currency other than
dollars, the amount of dollars that would be required to purchase the amount of such currency based
upon the Spot Selling Rate as of such date of determination and (b) with respect to any amount
expressed in dollars, such amount.
dollars or $ means the lawful money of the United States of America unless
otherwise specified.
Domestic Subsidiary means any Subsidiary organized under the laws of any
jurisdiction within the United States.
Draft means (i) a blank bill of exchange, within the meaning of the Bills of
Exchange Act (Canada), drawn by the Canadian Borrower on a Facility B Lender, denominated in
Canadian Dollars and bearing such distinguishing letters and numbers as such Lender may determine,
but which at such time, except as otherwise provided herein, has not been completed or accepted by
such Lender or (ii) a depository bill within the meaning of the Depository Bills and Notes Act
(Canada); provided however that the Administrative Agent may require such Facility
B Lender to use a general form of Bankers Acceptance satisfactory to the Canadian Borrower and
such Lender, each acting reasonably, provided by the Administrative Agent for such purpose in place
of the Lenders own form.
Effective Date means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).
Eligible Accounts means, at any time, the Accounts of any Loan Party which in
accordance with the terms hereof are eligible as the basis for the extension of Revolving Loans and
Swingline Loans and the issuance of Letters of Credit hereunder. Eligible Accounts shall not
include any Account:
(a) which is not subject to a first priority perfected security interest in favor of
the applicable Collateral Agent (for the benefit of the Agents, the applicable Lenders and
the applicable Issuing Banks);
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(b) which is subject to any Lien other than (i) a Lien in favor of the applicable
Collateral Agent (for the benefit of the Agents, the applicable Lenders, the applicable
Issuing Banks and any other holder of applicable Secured Obligations), (ii) a Permitted
Encumbrance pursuant to clause (a) of the definition of Permitted Encumbrance which does
not have priority over the Lien in favor of the applicable Collateral Agent (for the benefit
of the Agents, the applicable Lenders and the applicable Issuing Banks), (iii) Prior Claims
that are unregistered and that secure amounts that are not yet due and payable and (iv) the
Permitted Second Priority Lien;
(c) (i) with respect to which the scheduled due date is more than 60 days after the
original invoice date, (ii) which is unpaid more than (A) 120 days (or, with respect to
Royalty Accounts, 180 days) after the date of the original invoice therefor; or (B) 60 days
after the original due date, or (iii) which has been written off the books of the applicable
Loan Party or otherwise designated as uncollectible (in determining the aggregate amount
from the same Account Debtor that is unpaid hereunder there shall be excluded the amount of
any net credit balances relating to Accounts due from an Account Debtor which are unpaid
more than 120 days from the date of invoice or more than 60 days from the due date);
(d) which is owing by an Account Debtor for which more than 50% of the Accounts owing
from such Account Debtor and its Affiliates are ineligible hereunder (it being understood
that in making any such determination, the face amount of the ineligible Accounts owing from
such Account Debtor shall be reduced by the amount of all actual discounts (including early
pay discounts), claims, credits or credits pending, promotional program allowances, price
adjustments or other allowances (including any amount that any Loan Party may be obligated
to rebate to an Account Debtor pursuant to the terms of any agreement or understanding
(written or oral)) applicable thereto);
(e) which is owing by an Account Debtor to the extent the aggregate amount of Accounts
owing from such Account Debtor and its Affiliates to such Loan Party exceeds 10% of the
aggregate amount of Eligible Accounts of such Loan Party; provided that (i) no
Accounts owing by Macys, Kohls, JCPenneys, El Corte Inglés or TJX shall be ineligible
solely because of this clause (e) unless the aggregate amount of Accounts owing from any
such Account Debtor and its Affiliates to such Loan Party exceeds (x) 25%, in the case of
Kohls, Macys and JCPenneys, (y) the lesser of 35% and $10,000,000, in the case of El
Corte Inglés, and (z) 15%, in the case of TJX, in each case, of the aggregate amount of
Eligible Accounts of such Loan Party, (ii) no Accounts of any Canadian Loan Party owing by
Hudson Bay, Sears or Costco shall be ineligible solely because of this clause (e) unless the
aggregate amount of Accounts owing from any such Account Debtor and its Affiliates to such
Canadian Loan Party exceeds (x) 25%, in the case of Hudson Bay and (y) 20%, in the case of
Sears and Costco, in each case, of the aggregate amount of Eligible Accounts of such
Canadian Loan Party and (iii) no Accounts owing by any Investment Grade Account Debtor shall
be ineligible solely because of this clause (e);
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(f) with respect to which any covenant, representation, or warranty contained in this
Agreement or in any applicable Security Agreement has been breached or is not true;
(g) which (i) does not arise from the sale of goods or performance of services (for the
avoidance of doubt, Royalty Accounts and RSB Accounts shall be deemed to arise from the
performance of services) in the ordinary course of business, (ii) is not evidenced by an
invoice or other documentation reasonably satisfactory to the Administrative Agent which has
been sent to the Account Debtor, (iii) represents a progress billing, (iv) is contingent
upon any Loan Partys completion of any further performance, (v) represents a sale on a
bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment,
cash-on-delivery or any other repurchase or return basis or (vi) relates to payments of
interest or service or finance charges;
(h) for which the goods giving rise to such Account have not been shipped to the
Account Debtor or for which the services giving rise to such Account have not been performed
by the applicable Loan Party or which is otherwise recorded as deferred revenue or if such
Account was invoiced more than once;
(i) with respect to which any check or other instrument of payment has been returned
uncollected for any reason to the extent of such returned payment;
(j) which is owed by an Account Debtor that (i) has applied for or been the subject of
a petition or application for, suffered, or consented to the appointment of any receiver,
custodian, trustee, administrator, liquidator or similar official for such Account Debtor of
its assets, (ii) has had possession of all or a material part of its property taken by any
receiver, custodian, trustee or liquidator, (iii) has filed, or had filed against it, under
any Insolvency Laws, any assignment, application, request or petition for liquidation,
reorganization, compromise, arrangement, adjustment of debts, stay of proceedings,
adjudication as bankrupt, winding-up, or voluntary or involuntary case or proceeding, (iv)
has admitted in writing its inability to pay its debts as they become due, or (v) has ceased
operation of its business;
(k) which is owed by an Account Debtor which (i) does not maintain its chief executive
office (or its domicile, for the purposes of the Quebec Civil Code) in the United States,
Canada or, solely with respect to any Account Debtor of any Netherlands Loan Party or UK
Loan Party (or, with respect to Accounts in an aggregate amount not to exceed $10,000,000,
any Account Debtor of any US Loan Party or Canadian Loan Party), Norway, Switzerland or any
Permitted European Member State or (ii) is not organized under any applicable law of the
United States, any state of the United States or the District of Columbia, Canada or any
province or other political subdivision of Canada or, solely with respect to any Account
Debtor of any Netherlands Loan Party or UK Loan Party (or, with respect to Accounts in an
aggregate amount not to exceed $10,000,000, any Account Debtor of any US Loan Party or
Canadian Loan Party), Norway, Switzerland or any Permitted European Member State, unless, in
any such case, such Account is backed by a letter of credit reasonably acceptable to the
Administrative Agent
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which is in the possession of, has been assigned to and is directly drawable by the
Administrative Agent;
(l) which is owed in any currency other than (i) dollars, Euros, or Canadian Dollars,
with respect to Accounts of the Canadian Loan Parties, (ii) dollars, Canadian Dollars, or
Euros, with respect to Accounts of the US Loan Parties, (iii) dollars, Euros, Sterling,
Danish Kroner or Swedish Kronor, with respect to Accounts of the Specified European Loan
Parties, or (iv) dollars, Euros, or Sterling, with respect to Accounts of the UK Loan
Parties; provided that the aggregate amount of Eligible Accounts denominated in
Danish Kroner and Swedish Kronor at any time shall not exceed 5.0% of all Eligible Accounts
at such time;
(m) which is owed by the government (or any department, agency, public corporation, or
instrumentality thereof, excluding states of the United States of America) of any country
and except to the extent that the subject Account Debtor is (i) the federal government of
the United States of America and, with respect to Accounts in excess of $5,000,000
(individually or in the aggregate) at any time, has complied with the Federal Assignment of
Claims Act of 1940, as amended (31 USC. § 3727 et seq. and 41 USC. § 15 et seq.), (ii) the
federal government of Canada and has complied with the Financial Administration Act
(Canada), as amended, (iii) the federal government of the Netherlands, or (iv) the federal
government of Germany, as applicable, and any other steps necessary to perfect the Lien of
the applicable Collateral Agent in such Account have been complied with to the satisfaction
of such applicable Collateral Agent;
(n) which is owed by any Affiliate, employee, officer, director, agent or stockholder
(other than any stockholder of the Company) of any Loan Party;
(o) which is evidenced by any promissory note, judgment, chattel paper or instrument;
(p) which is owed by an Account Debtor or any Affiliate of such Account Debtor to which
any Loan Party is indebted, but only to the extent of such indebtedness, or is subject to
any security, deposit, progress payment, retainage or other similar advance made by or for
the benefit of an Account Debtor, in each case to the extent thereof;
(q) which is subject to any counterclaim, deduction, defense, setoff or dispute but
only to the extent of any such counterclaim, deduction, defense, setoff or dispute;
(r) which is owed by an Account Debtor located in any jurisdiction which requires
filing of a Notice of Business Activities Report or other similar report in order to
permit such Loan Party to seek judicial enforcement in such jurisdiction of payment of such
Account, unless such Loan Party has filed such report or qualified to do business in such
jurisdiction;
(s) with respect to which such Loan Party has made any agreement with the Account
Debtor for any reduction thereof, other than discounts and adjustments given in
20
the ordinary course of business, or any Account which was partially paid and such Loan
Party created a new receivable for the unpaid portion of such Account;
(t) which does not comply in all material respects with the requirements of all
applicable laws and regulations, whether federal, provincial, territorial, state or local,
including without limitation the Federal Consumer Credit Protection Act, the Federal Truth
in Lending Act and Regulation Z of the Board;
(u) which is for goods that have been sold under a purchase order or pursuant to the
terms of a contract or other agreement or understanding (written or oral) that indicates or
purports that any Person other than such Loan Party has or has had an ownership interest in
such goods, or which indicates any party other than such Loan Party as payee or remittance
party;
(v) which was created on cash on delivery terms;
(w) which is subject to any limitation on assignments or other security interests
(whether arising by operation of law, by agreement or otherwise), unless the applicable
Collateral Agent has determined that such limitation is not enforceable;
(x) which is governed by the laws of any jurisdiction other than the United States, any
state thereof or the District of Columbia, Canada or any province or other political
subdivision of Canada (with respect to an Account Debtor of any Canadian Loan Party), the
Netherlands (with respect to an Account Debtor of the European Borrower), England and Wales
(with respect to an Account Debtor of the UK Borrower) or (with respect to RSB Accounts in
an amount not to exceed $500,000) Germany;
(y) in respect of which the Account Debtor is a consumer within applicable consumer
protection legislation;
(z) which was acquired or originated by any Person acquired directly or indirectly by
the Company after the date hereof until such time as a field exam in respect of such
Accounts reasonably satisfactory to the Administrative Agent, in its Permitted Discretion,
has been completed;
(aa) which is owed by an Account Debtor in respect of which the Company or any of its
Subsidiaries has received notice of any proceedings or actions which are threatened or
pending against such Account Debtor which would reasonably be expected to affect the value
of the Account as Collateral or the likelihood of payment by the Account Debtor;
(bb) which is a Credit Card Account Receivable;
(cc) which is not owned by a Loan Party or such Loan Party does not have good or
marketable title to such Account;
(cc) which the Administrative Agent in its Permitted Discretion determines may not be
paid by reason of the Account Debtors inability to pay; or
21
(dd) which is an RSB Account until such time as (x) a field exam in respect of such
Accounts reasonably satisfactory to the Administrative Agent and (y) diligence with respect
to RSB reasonably satisfactory to the Administrative Agent has been completed.
In determining the amount of an Eligible Account, the face amount of an Account may, in the
Administrative Agents Permitted Discretion, be reduced by, without duplication, to the extent not
reflected in such face amount, (i) the amount of all sales, advances or prepayments, accrued and
actual discounts (including early pay discounts), claims, credits or credits pending, promotional
program allowances, price adjustments, finance charges or other allowances (including any amount
that any Loan Party may be obligated to rebate to an Account Debtor pursuant to the terms of any
agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in
respect of such Account but not yet applied by such Loan Party to reduce the amount of such
Account. Standards of eligibility may be made more restrictive (and such increased restrictiveness
subsequently reversed in whole or in part) from time to time solely by the Administrative Agent in
the exercise of its Permitted Discretion, with any such changes to be effective two Business Days
after delivery of notice thereof to the Borrower Representative and the Lenders.
Eligible Credit Card Account Receivable means any Credit Card Account Receivable
that (i) has been earned and represents the bona fide amounts due to a Loan Party from a credit
card processor and/or credit card issuer, and in each case originated in the ordinary course of
business of the applicable Loan Party and (ii) is not excluded as an Eligible Credit Card Account
Receivable pursuant to any of clauses (a) through (i) below. Without limiting the foregoing, to
qualify as an Eligible Credit Card Account Receivable, a Credit Card Account Receivable shall
indicate no person other than a Loan Party as payee or remittance party. Eligible Credit Card
Account Receivable shall not include any Credit Card Account Receivable if:
(a) such Credit Card Account Receivable is not owned by a Loan Party or such Loan Party
does not have good or marketable title to such Credit Card Account Receivable;
(b) such Credit Card Account Receivable does not constitute an Account (as defined in
the UCC or, with respect to the Canadian Borrower, the PPSA) or such Credit Card Account
Receivable has been outstanding more than five Business Days;
(c) the credit card issuer or credit card processor of the applicable credit card with
respect to such Credit Card Account Receivable is the subject of any bankruptcy or
insolvency proceedings;
(d) such Credit Card Account Receivable is not a valid, legally enforceable obligation
of the applicable credit card issuer with respect thereto;
(e) such Credit Card Account Receivable is not subject to a properly perfected first
priority security interest in favor of the applicable Collateral Agent (for the benefit of
the Agents, the applicable Lenders and the applicable Issuing Banks), or is subject to any
Lien whatsoever other than any Lien created pursuant to the Loan Documents, any Permitted
Encumbrances contemplated by the processor agreements and for which
22
appropriate Reserves (as determined by the Administrative Agent in its Permitted
Discretion) have been established and the Permitted Second Priority Lien;
(f) such Credit Card Account Receivable does not conform in all material respects to
all representations, warranties or other provisions in the Loan Documents or in the credit
card agreements relating to such Credit Card Account Receivable;
(g) such Credit Card Account Receivable is subject to risk of set-off, non-collection
or not being processed due to unpaid and/or accrued credit card processor fee balances, to
the extent of the lesser of the balance of such Credit Card Account Receivable or unpaid
credit card processor fees;
(h) such Credit Card Account Receivable is evidenced by chattel paper or an
instrument of any kind unless such chattel paper or instrument is in the possession of
the Administrative Agent, and to the extent necessary or appropriate, endorsed to the
Administrative Agent; or
(i) such Credit Card Account Receivable does not meet such other usual and customary
eligibility criteria for Credit Card Account Receivables as the Administrative Agent may
determine from time to time in its Permitted Discretion.
In determining the amount to be so included in the calculation of the value of an Eligible
Credit Card Account Receivable, the face amount thereof shall be reduced by, without duplication,
to the extent not reflected in such face amount, (i) the amount of all customary fees and expenses
in connection with any credit card arrangements and (ii) the aggregate amount of all cash received
in respect thereof but not yet applied by the Loan Party to reduce the amount of such Eligible
Credit Card Account Receivable.
Eligible Inventory means, at any time, the Inventory of a Loan Party which in
accordance with the terms hereof is eligible as the basis for the extension of Revolving Loans and
Swingline Loans and the issuance of Letters of Credit hereunder. Eligible Inventory shall not
include any Inventory:
(a) which is not subject to a first priority perfected Lien in favor of the applicable
Collateral Agent (for the benefit of the Agents, the applicable Lenders and the applicable
Issuing Banks);
(b) which is subject to any Lien other than (i) a Lien in favor of the applicable
Collateral Agent (for the benefit of the Agents, the applicable Lenders, the applicable
Issuing Banks and any other holder of applicable Secured Obligations), (ii) a Permitted
Encumbrance pursuant to clause (a) or (b) of the definition of Permitted Encumbrance
hereunder which does not have priority over the Lien in favor of the applicable Collateral
Agent (for the benefit of the Agents, the applicable Lenders and the applicable Issuing
Banks), (iii) Prior Claims that are unregistered and that secure amounts that are not yet
due and payable and (iv) the Permitted Second Priority Lien;
(c) which, in the Administrative Agents Permitted Discretion, is determined to be slow
moving, obsolete, unmerchantable, defective, used, unfit for sale, not salable
23
at prices approximating at least the cost of such Inventory in the ordinary course of
business, or unacceptable due to age, type, category and/or quantity (it being understood
that in the use of such Permitted Discretion, the Administrative Agent may take into account
whether such Inventory was treated as slow moving or otherwise unfit for sale in the
calculation of the applicable Net Orderly Liquidation Value);
(d) with respect to which any covenant, representation, or warranty contained in this
Agreement or any applicable Security Agreement has been breached or is not true;
(e) in which any Person other than the applicable Loan Party shall (i) have any direct
or indirect ownership, interest or title to such Inventory or (ii) be indicated on any
purchase order or invoice with respect to such Inventory as having or purporting to have an
interest therein;
(f) which is not finished goods or which constitutes work-in-process, raw materials
(other than raw materials located in the United States at any property owned by such Loan
Party or at any location leased by such Loan Party for which a Collateral Access Agreement
has been delivered to the Administrative Agent and continues to be in effect), spare or
replacement parts, subassemblies, packaging and shipping material, manufacturing supplies,
samples, prototypes, displays or display items, bill-and-hold goods, goods that are returned
or marked for return, repossessed goods, defective or damaged goods, goods held by a Loan
Party on consignment, or goods which are not of a type held for sale in the ordinary course
of business;
(g) which is not located in the United States, Canada (with respect to Inventory owned
by any US Loan Party or Canadian Loan Party), England, Wales and Ireland (with respect to
Inventory owned by any UK Loan Party), the Netherlands (with respect to Inventory owned by
any Netherlands Loan Party) or Germany (to the extent the European Borrower retains title to
such Inventory pursuant to an agreement that is satisfactory to the European Administrative
Agent and the aggregate amount of such Inventory does not exceed $15,000,000) or is in
transit from vendors and suppliers (it being understood, for the avoidance of doubt, that
any such Inventory that is in transit from any Loan Party to a warehouse owned or leased by
such Loan Party shall not be excluded pursuant to this clause (g) solely because such
Inventory is in transit so long as, in the case of any such Inventory in transit to a
warehouse leased by such Loan Party, either the Administrative Agent has received a
Collateral Access Agreement in respect thereof that continues to be in effect or a Rent
Reserve has been taken); provided that such Inventory in transit with a common
carrier from vendors and suppliers may be included as eligible pursuant to this clause (g)
so long as (1) the applicable Administrative Agent shall have received (x) a true and
correct copy of the bill of lading and other shipping documents for such Inventory, (y)
evidence of satisfactory casualty insurance naming the applicable Collateral Agent as loss
payee and otherwise covering such risks as the Administrative Agent may reasonably request,
and (z) if the bill of lading is (A) non-negotiable and the inventory is in transit to the
United States or Canada, a duly executed Collateral Access Agreement from the applicable
customs broker for such Inventory or (B) negotiable, confirmation that the bill is issued in
the name of the applicable Loan Party and consigned to the order of the Collateral Agent,
and an
24
acceptable agreement has been executed with the Loan Partys customs broker, in which
the customs broker agrees that it holds the negotiable bill as agent for the applicable
Collateral Agent and has granted the applicable Collateral Agent access to the Inventory,
(2) the common carrier is not an Affiliate of the applicable vendor, supplier, distribution
center or initial Group Member, as applicable and (3) the aggregate amount of such Inventory
in transit (w) in the US Borrowing Base shall not exceed $35,000,000, (x) in the European
Borrowing Base shall not exceed $15,000,000, (y) in the Canadian Borrowing Base shall not
exceed $5,000,000, and (z) in the UK Borrowing Base shall not exceed $10,000,000, in each
case at any time;
(h) which is located in any (i) warehouse, cross-docking facility, distribution center,
regional distribution center or depot or (ii) any retail store located in a jurisdiction
providing for a common law or statutory landlords lien (or any retail store location in the
Province of Quebec in respect of which the landlord has filed a hypothec) on the personal
property of tenants, which lien or hypothec would be prior or superior to that of the
applicable Collateral Agent (for the benefit of the Agents, the applicable Lenders and the
applicable Issuing Banks), in each case leased by the applicable Loan Party unless (A) the
lessor has delivered to the Administrative Agent a Collateral Access Agreement which remains
in effect or (B) a Rent Reserve has been established by the Administrative Agent which Rent
Reserve may be reduced if a subsequent Collateral Access Agreement has been received by the
Administrative Agent;
(i) which is located in any third party warehouse or is in the possession of a bailee
(other than a third party processor but including any ecommerce service provider) and is not
evidenced by a Document (other than bills of lading to the extent permitted pursuant to
paragraph (g) above), unless (i) such warehouseman or bailee has delivered to the
Administrative Agent a Collateral Access Agreement which remains in effect and such other
documentation as the Administrative Agent may require or (ii) a Rent Reserve has been
established by the Administrative Agent which Rent Reserve may be reduced if a subsequent
Collateral Access Agreement has been received by the Administrative Agent;
(j) which is being processed offsite at a third party location or outside processor, or
is in-transit to or from said third party location or outside processor;
(k) which is the subject of a consignment by any Loan Party as consignor;
provided that Inventory of the Netherlands Loan Parties, in an aggregate amount not
to exceed $5,000,000, located in the Netherlands or Germany shall not be excluded pursuant
to this clause (l) solely because such Inventory is subject to a four wall concession
arrangement so long as a Rent Reserve has been established by the Administrative Agent;
(l) which is distressed Inventory, as determined by the Administrative Agent in its
Permitted Discretion;
(m) which contains or bears any intellectual property rights licensed to any Loan Party
unless the Administrative Agent is satisfied that it may sell or otherwise dispose of such
Inventory without (i) the consent of each applicable licensor, (ii) infringing the rights of
such licensor, (iii) violating any contract with such licensor, or (iv) incurring any
liability with respect to payment of royalties other than royalties
25
incurred pursuant to sale of such Inventory under the current licensing agreement;
provided however that any such Inventory bearing Intellectual Property
licensed to LC LIBRA, LLC pursuant to the Existing Donna Karan License shall not be
ineligible solely pursuant to this clause (m);
(n) which is not reflected in a current perpetual inventory report of such Loan Party
(unless such Inventory is reflected in a report to the Administrative Agent as in transit
Inventory and constitutes Eligible LC Inventory);
(o) for which reclamation rights have been asserted by the seller;
(p) (i) for which any contract relating to such Inventory expressly includes retention
of title in favor of the vendor or supplier thereof or (ii) for which any contract relating
to such Inventory does not address retention of title and the relevant Loan Party has not
represented to the Administrative Agent that there is no retention of title in favor of the
vendor or supplier thereof; provided that Inventory of a Loan Party other than a US
Loan Party of the types described in clauses (i) and (ii) above shall not be excluded from
Eligible Inventory solely pursuant to this clause (p) in the event that (x) the European
Administrative Agent shall have received evidence satisfactory to it that the full purchase
price of such Inventory has, or will have, been paid prior to or upon the delivery of such
Inventory to a Loan Party or (y) a Letter of Credit has been issued under this Agreement for
the purchase of such Inventory; or
(q) which the Administrative Agent deems not to be Eligible Inventory based on such
credit and collateral considerations as the Administrative Agent in its Permitted
Discretion, deems appropriate;
provided that in determining the value of the Eligible Inventory, such value shall be
reduced by, without duplication, any amounts representing (a) Vendor Rebates; (b) costs included in
Inventory relating to advertising; (c) the shrink reserve; (d) the unreconciled discrepancy between
the general inventory ledger and the perpetual Inventory ledger, to the extent the general
Inventory ledger reflects less Inventory than the perpetual inventory ledger; and (e) a reserve for
Inventory which is designated to be returned to vendor or which is recognized as damaged or off
quality by the applicable Loan Party.
Standards of eligibility may be made more restrictive (and such increased restrictiveness
subsequently reversed in whole or in part) from time to time solely by the Administrative Agent in
the exercise of its Permitted Discretion, with any such changes to be effective two Business Days
after delivery of notice thereof to the Borrower Representative and the Lenders.
Eligible Juicy Couture Trademark Amount means $10,000,000; provided that
such amount shall amortize quarterly on a straight-line basis to zero over two years commencing at
the end of the first full fiscal quarter following the Effective Date; provided
further that the Eligible Juicy Couture Trademark Amount shall be reduced on a pro rata
basis, determined by reference to the allocated value of each Juicy Couture Trademark, to the
extent that (i) any such Juicy Couture Trademark is no longer owned by a US Loan Party or (ii) the
US Collateral Agent does not have a perfected first priority Lien in such Juicy Couture Trademark.
26
Eligible Kate Spade Trademark Amount means $3,000,000; provided that such
amount shall amortize quarterly on a straight-line basis to zero over two years commencing at the
end of the first full fiscal quarter following the Effective Date; provided further
that the Eligible Kate Spade Trademark Amount shall be reduced on a pro rata basis, determined by
reference to the allocated value of each Kate Spade Trademark, to the extent that (i) any such Kate
Spade Trademark is no longer owned by a US Loan Party or (ii) the US Collateral Agent does not have
a perfected first priority Lien in such Kate Spade Trademark.
Eligible LC Inventory means the value of the undrawn face amount of commercial and
documentary Letters of Credit issued relating to the purchase price of Inventory that has or will
be shipped to a Loan Partys location (as to which, in the case of locations leased by a Loan
Party, a Collateral Access Agreement has been obtained, or appropriate Rent Reserves have been
taken) and which Inventory (a) is or will be owned by a Loan Party, (b) is fully insured on terms
reasonably satisfactory to the applicable Collateral Agent, (c) is subject to a first priority Lien
upon such goods in favor of the applicable Collateral Agent (except for any possessor Lien upon
such goods in the possession of a freight carrier or shipping company securing only the freight
charges for the transportation of such goods to such Loan Party and other Permitted Encumbrances),
(d) is evidenced or deliverable pursuant to documents, notices, instruments, statements and bills
of lading that have been delivered to the applicable Collateral Agent or an agent acting on its
behalf, and (e) is otherwise deemed to be Eligible Inventory hereunder; provided that the
Aggregate Availability represented by the Eligible LC Inventory in (w) the US Borrowing Base shall
not exceed $60,000,000, (x) the Canadian Borrowing Base shall not exceed $15,000,000, (y) the
European Borrowing Base shall not exceed $25,000,000, and (z) the UK Borrowing Base shall not
exceed $20,000,000, in each case at any time. The applicable Collateral Agent shall have the right
to establish, modify, or eliminate Reserves against Eligible LC Inventory from time to time in its
Permitted Discretion. In addition, the applicable Collateral Agent shall have the right, from time
to time, to adjust any of the criteria set forth above and to establish new criteria with respect
to Eligible LC Inventory in its Permitted Discretion, subject to the approval of the Administrative
Agent in the case of adjustments, new criteria or the elimination of Reserves which have the effect
of making more credit available or are otherwise adverse to the Lenders; provided
however, for the avoidance of doubt, no such approval shall be required in the case of any
adjustment or the elimination of Reserves caused by operation of the provisions of this Agreement
relating to the Aggregate Borrowing Base.
Eligible Liz Claiborne Trademark Amount means $12,000,000; provided that
such amount shall amortize quarterly on a straight-line basis to zero over two years commencing at
the end of the first full fiscal quarter following the Effective Date; provided
further that the Eligible Liz Claiborne Trademark Amount shall be reduced on a pro rata
basis, determined by reference to the allocated value of each Liz Trademark, to the extent that (i)
any such Liz Trademark is no longer owned by a US Loan Party or (ii) the US Collateral Agent does
not have a perfected first priority Lien in such Liz Trademark.
Eligible Lucky Brand Trademark Amount means $5,000,000; provided that such
amount shall amortize quarterly on a straight-line basis to zero over two years commencing at the
end of the first full fiscal quarter following the Effective Date; provided further
that the Eligible Lucky Brand Trademark Amount shall be reduced on a pro rata basis, determined by
reference to the allocated value of each Lucky Brand Trademark, to the extent that (i) any such
Lucky Brand
27
Trademark is no longer owned by a US Loan Party or (ii) the US Collateral Agent does not have
a perfected first priority Lien in such Lucky Brand Trademark.
Eligible Real Property means, the real property listed on Schedule 1.01(b)
owned by any US Loan Party and any other real property that is approved by the Administrative Agent
on or prior to the second anniversary of the Effective Date, located in the United States and owned
by any US Loan Party, in each case (i) in respect of which an appraisal report has been delivered
to the Administrative Agent in form, scope and substance reasonably satisfactory to the
Administrative Agent, (ii) in respect of which the Administrative Agent is satisfied that all
actions necessary or desirable in order to create a perfected first priority Lien for the benefit
of the US Collateral Agent on such real property have been taken, including, the filing and
recording of Mortgages and that such real property is not subject to any other Lien (other than
those permitted under clauses (a), (b), (f) and (g) of the definition of Permitted Encumbrance,
under Section 6.02(k) and other than the Permitted Second Priority Lien), (iii) in respect of which
an environmental assessment report has been completed and delivered to the Administrative Agent in
form and substance reasonably satisfactory to the Administrative Agent, (iv) which is adequately
protected by fully-paid valid title insurance with endorsements and in amounts acceptable to the
Administrative Agent, insuring that the US Collateral Agent, for the benefit of the Agents, the
Lenders and the Issuing Banks, shall have a perfected first priority Lien on such real property,
evidence of which shall have been provided in form and substance satisfactory to the Administrative
Agent, and (v) if required by the Administrative Agent: (A) an ALTA survey has been delivered for
which all necessary fees have been paid and which is dated no more than 30 days prior to the date
on which the applicable Mortgage is recorded, certified to Administrative Agent and the issuer of
the title insurance policy in a manner satisfactory to the Administrative Agent by a land surveyor
duly registered and licensed in the state in which such Eligible Real Property is located and
acceptable to the Administrative Agent, and shows all buildings and other improvements, any offsite
improvements, the location of any easements, parking spaces, rights of way, building setback lines
and other dimensional regulations and the absence of encroachments, either by such improvements or
on to such property, and other defects, other than encroachments and other defects acceptable to
the Administrative Agent; (B) in respect of which local counsel for the applicable US Loan Parties
in states in which the Eligible Real Property is located have delivered a letter of opinion with
respect to the enforceability and perfection of the Mortgages and any related fixture filings in
form and substance reasonably satisfactory to the Administrative Agent; and (C) in respect of which
the applicable US Loan Party shall have used its reasonable commercial efforts to obtain estoppel
certificates executed by all tenants of such Eligible Real Property and such other consents,
agreements and confirmations of lessors and third parties have been delivered as the Administrative
Agent may deem necessary in its reasonable discretion, together with evidence that all other
actions that the Administrative Agent may deem necessary in order to create perfected first
priority Liens on the property described in the Mortgages have been taken.
Eligible Retail Inventory means Eligible Inventory that is Retail Inventory.
Eligible Retail LC Inventory means Eligible LC Inventory that is Retail Inventory.
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Eligible Trademark Amount means the aggregate amount of the Eligible Liz Claiborne
Trademark Amount, the Eligible Kate Spade Trademark Amount, the Eligible Juicy Couture Trademark
Amount and the Eligible Lucky Brand Trademark Amount.
Eligible Wholesale Inventory means Eligible Inventory that is Wholesale Inventory.
Eligible Wholesale LC Inventory means Eligible LC Inventory that is Wholesale
Inventory.
EMU Legislation means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.
Environmental Laws means all laws (including common law), rules, regulations, codes,
ordinances, orders-in-council, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority, relating to the
environment, preservation or reclamation of natural resources, the management, presence, release or
threatened release of any harmful or deterious substance or to health and safety matters.
Environmental Liability means any liability, contingent or otherwise (including any
liability for damages, costs of environmental investigation or remediation, fines, penalties or
indemnities), directly or indirectly resulting from or based upon (a) violation of or obligation
under any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment
or disposal of any Hazardous Materials, (c) the presence of or exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
Environmental Reserve means reserves relating to environmental matters affecting any
Eligible Real Property deemed necessary by the Administrative Agent from time to time in its
Permitted Discretion.
Equity Interests means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that,
together with any Loan Party, is treated as a single employer under Section 414 of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day
notice period referred to in Section 4043(c) of ERISA is waived); (b) the existence with
29
respect to any Plan of a non-exempt prohibited transaction, as defined in Section 406 of
ERISA and Section 4975(f)(3) of the Code; (c) any failure of any Plan to satisfy the minimum
funding standard applicable to such Plan (as such term is defined in Sections 412 and 430 of the
Code or Section 302 of ERISA), whether or not waived; (d) the filing pursuant to Section 412(c) of
the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan, the failure to make by its due date a required installment under Section
430(j) of the Code with respect to any Plan or the failure of any Loan Party or ERISA Affiliate to
make any required contribution to any Multiemployer Plan; (e) the incurrence by any Loan Party or
any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any
Plan including, without limitation, the imposition of any Lien in favor of the PBGC or any Plan;
(f) the receipt by any Loan Party or any ERISA Affiliate from the PBGC or a Plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan under Section 4042 of ERISA; (g) a determination that any Plan is, or is
expected to be, in at risk status (within the meaning of Section 430 of the Code or Section 303
of ERISA); (h) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (i)
the receipt by any Loan Party or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from any Loan Party or any ERISA Affiliate of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected
to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or in endangered or
critical status within the meaning of Section 432 of the Code or Section 305 of ERISA.
Euro or refers to the single currency of the Participating Member
States.
Euro Notes Documentation means the Existing Euro Notes and all other agreements and
instruments executed in connection therewith.
Euro Notes Refinancing Debt has the meaning assigned to such term in Section 6.01.
Eurocurrency when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
European Account Transfer Trigger Event means the first date after the Effective
Date on which a Full Cash Dominion Period is in effect.
European Administrative Agent means J.P. Morgan Europe Limited, in its capacity as
administrative agent for the Facility B Lenders hereunder, and its successors in such capacity (or
such of its Affiliates as it may designate from time to time).
European Availability means (a) the lesser of (x) the European Sublimit and (y) the
sum of (i) the European Borrowing Base plus (ii) solely to the extent the total Revolving
Exposure relating to the European Borrower exceeds the European Borrowing Base, the US Availability
(calculated without giving effect to any European US Borrowing Base Utilization), minus (b)
the total Revolving Exposure relating to the European Borrower.
European Borrower means Mexx Europe B.V.
30
European Borrowing Base means, at any time, with respect to the Netherlands Loan
Parties, the sum of:
(a) 100% of the aggregate cash balances denominated in dollars, Euros, Sterling or Yen
in depositary accounts of the Netherlands Loan Parties constituting investment accounts that
are held at JPMorgan Chase Bank, N.A. or any Affiliate thereof approved by the
Administrative Agent and subject to an Account Control Agreement and upon which the European
Collateral Agent has a first priority perfected Lien for the benefit of the Agents, the
applicable Lenders and the applicable Issuing Banks, subject only to Liens permitted
pursuant to Section 6.02(f), plus
(b) the product of (i) 85% multiplied by (ii) the Netherlands Loan Parties
Eligible Accounts at such time, minus the Dilution Reserve related to the
Netherlands Loan Parties, plus
(c) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Retail Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the Netherlands Loan Parties Eligible Retail Inventory (other than
Eligible LC Inventory), valued at the lower of cost (determined on a first-in-first-out
basis) or market value, at such time, plus
(d) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Wholesale Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the Netherlands Loan Parties Eligible Wholesale Inventory (other than
Eligible LC Inventory), valued at the lower of cost (determined on a first-in-first-out
basis) or market value, at such time, plus
(e) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Retail Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the Netherlands Loan Parties Eligible Retail LC Inventory, valued at
the lower of cost (determined on a first-in-first-out basis) or market value, at such time,
plus
(f) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Wholesale Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the Netherlands Loan Parties Eligible Wholesale LC Inventory, valued
at the lower of cost (determined on a first-in-first-out basis) or market value, at such
time, minus
(g) without duplication, applicable Reserves established by the Administrative Agent in
its Permitted Discretion.
The Administrative Agent may, in its Permitted Discretion, adjust Reserves (subject to Section
9.02(b)) used in computing the Aggregate Borrowing Base and the European Borrowing Base, with any
such changes to be effective two Business Days after delivery of notice thereof to
31
the Borrower Representative and the Lenders in accordance with Section 11.04 of this
Agreement. The European Borrowing Base at any time shall be determined by reference to the most
recent European Borrowing Base Certificate delivered to the Administrative Agent pursuant to
Section 5.01(g) of this Agreement.
European Borrowing Base Certificate means a certificate, signed and certified as
accurate and complete by a Financial Officer of the Borrower Representative, in substantially the
form of Exhibit B-4.
European Collateral Agent means J.P. Morgan Europe Limited, in its capacity as
collateral agent and security trustee for itself, the Administrative Agent, the Issuing Banks and
the Lenders, and its successors in such capacity (or such of its Affiliates as it may designate
from time to time).
European Group means, collectively, each Netherlands Group Member, each German Group
Member and each UK Group Member.
European Letter of Credit means any Letter of Credit or similar instrument
(including a bank guarantee) acceptable to the applicable Issuing Bank issued hereunder for the
purpose of providing credit support for the European Borrower.
European Loan Parties means, individually and collectively, the Netherlands Loan
Parties, the German Loan Parties, the UK Loan Parties and any other Loan Party that is organized in
a member State of the European Union, Norway or Switzerland.
European Loans means, individually and collectively, the European Revolving Loans,
the European Swingline Loans and the European Protective Advances.
European Protective Advance has the meaning assigned to such term in Section 2.04.
European Revolving Loan means a Revolving Loan made to the European Borrower.
European Security Agreement means any document creating a security interest over any
Account of any Specified European Loan Party in favor of the European Collateral Agent in a form
satisfactory to the European Collateral Agent (that is not already included within the definitions
of German Security Agreement or Netherlands Security Agreement), as the same may be amended,
restated or otherwise modified from time, and any other document creating a security interest over
property of any Specified European Loan Party in favor of the European Collateral Agent in a form
satisfactory to the European Collateral Agent, on or after the date of this Agreement (that is not
already included within the definitions of German Security Agreement or Netherlands Security
Agreement), as the same may be amended, restated or otherwise modified from time to time, and any
Austrian Collateral Document (to the extent not otherwise a European Security Agreement).
European Sublimit means, $100,000,000, as such sublimit may be reduced or terminated
in accordance with Section 2.09.
32
European Swingline Lender means J.P. Morgan Europe Limited, in its capacity as
lender of European Swingline Loans hereunder, and its successors and assigns in such capacity.
European Swingline Loan has the meaning set forth in Section 2.05(a)(iii).
European US Borrowing Base Utilization means the excess of (i) the total Revolving
Exposure relating to the European Borrower minus (i) the European Borrowing Base.
Events of Default has the meaning assigned to such term in Article VII.
Excluded Taxes means, with respect to the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, any Collateral Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
any Loan Party hereunder or any other Loan Document, (a) any Other Connection Taxes, (b) U.S.
federal withholding Tax (with respect to payments made by the Company), Canadian withholding tax
(with respect to payments made by the Canadian Borrower), Netherlands withholding tax (with respect
to payments made by the European Borrower), U.K. withholding tax (with respect to payments made by
the UK Borrower) whichever is applicable, imposed by a Requirement of Law (after giving effect to
the delivery of applicable tax forms) in effect at the time a Foreign Lender (other than an
assignee under Section 2.19(b)) becomes a party hereto (or designates a new lending office under
Section 2.19(a)), with respect to any payment made by or on account of any obligation of the
Company, the Canadian Borrower, the European Borrower or the UK Borrower, whichever is applicable,
to such Foreign Lender (other than any such payment made by such Person in a capacity other than as
a Borrower), except to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive additional amounts
with respect to such withholding Tax under clause (a) of Section 2.17, (c) Taxes attributable to a
Lenders (or, if required to provide forms under Section 2.17(g), a Lenders beneficial owners)
failure to comply with Section 2.17(g), (d) any withholding Tax imposed as a result of a Lenders
failure to provide forms described in Section 2.17(g) if such failure is solely due to the legal
restrictions imposed under the secrecy laws of the jurisdiction where such Lender is organized or
(e) any U.S. Federal withholding Taxes imposed by FATCA other than by reason of a Change in Law.
Existing Convertible Notes means the Companys 6% Convertible Senior Notes due 2014.
Existing Convertible Note Documents means the indenture under which the Existing
Convertible Notes are issued and all other instruments, agreements and other documents evidencing
or governing the Existing Convertible Notes or providing for any other right in respect thereof.
Existing Credit Agreement shall have the meaning set forth in the preamble hereto.
Existing Donna Karan License means the License Agreement, dated as of December 13,
1997, between Donna Karan Studio LLC, as licensor and LC LIBRA, LLC, as licensee, as amended,
restated, supplemented or otherwise modified on or prior to the Original Effective Date.
33
Existing Euro Notes means the Companys existing 350,000,000 5% notes due 2013.
Existing Letters of Credit means the letters of credit referred to on Schedule
2.06 hereto, which letters of credit have been issued by an Issuing Bank or any Lender.
Existing Loan Documents means the Loan Documents under and as defined in the
Existing Credit Agreement.
Existing Mortgages means each of the mortgages, deeds of trust or other agreements
made pursuant to the Existing Credit Agreement by any US Loan Party in favor or the US Collateral
Agent.
Facility means, individually and collectively, Facility A and Facility B.
Facility A means the Facility A Commitments and the extensions of credit made
thereunder.
Facility A Commitment means, with respect to each Facility A Lender, the commitment,
if any, of such Lender to make Facility A Revolving Loans and to acquire participations in Facility
A Letters of Credit, Facility A Protective Advances and Facility A Swingline Loans, expressed as an
amount representing the maximum possible aggregate amount of such Lenders Facility A Revolving
Exposure hereunder, as such commitment may be reduced or increased from time to time pursuant to
(a) Section 2.09 and (b) assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lenders Facility A Commitment is set forth on the Commitment Schedule, or
in the Assignment and Assumption pursuant to which such Lender shall have assumed its Facility A
Commitment, as applicable. The initial aggregate amount of the Lenders Facility A Commitments is
$150,000,000.
Facility A Credit Exposure means, with respect to any Facility A Lender at any time,
the sum of such Lenders Facility A Revolving Exposure plus an amount equal to such Lenders
Applicable Percentage of the aggregate principal amount of Facility A Protective Advances
outstanding at such time.
Facility A LC Exposure means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Facility A Letters of Credit at such time for the account of the Company
plus (b) the aggregate amount of all LC Disbursements in respect of Facility A Letters of
Credit that have not yet been reimbursed by or on behalf of the Company at such time. The Facility
A LC Exposure of any Lender at any time shall be its Applicable Percentage of the total Facility A
LC Exposure at such time.
Facility A Lenders means the Persons listed on the Commitment Schedule as
having a Facility A Commitment and any other Person that shall acquire a Facility A Commitment
pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Assumption.
Facility A Letter of Credit means any letter of credit or similar instrument
(including a bank guarantee) issued under this Agreement that is (a) reasonably acceptable to the
applicable Issuing Bank and (b) issued pursuant to Facility A for the purpose of providing credit
support for
34
the Company. For the avoidance of doubt, unless the context otherwise requires, references
herein to Facility A Letters of Credit shall include any time draft presented under a Facility A
Letter of Credit.
Facility A Loans means, individually and collectively, the Facility A Revolving
Loans, the Facility A Swingline Loans and the Facility A Protective Advances.
Facility A Obligations means all unpaid principal of and accrued and unpaid interest
on the Facility A Loans (or which would have accrued but for the commencement of any bankruptcy,
insolvency, receivership or similar proceeding, regardless of whether allowed or allowable in such
proceeding), all Facility A LC Exposure, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Loan Parties to the Facility A Lenders or
to any Facility A Lender, the Administrative Agent, any Issuing Bank in respect of a Facility A
Letter of Credit or any indemnified party arising under the Loan Documents, in each case, whether
direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
incurred.
Facility A Protective Advance has the meaning assigned to such term in Section 2.04.
Facility A Revolving Exposure means, with respect to any Facility A Lender at any
time, the sum of the outstanding principal amount of such Lenders Facility A Revolving Loans and
its Facility A LC Exposure plus an amount equal to its Applicable Percentage of the
aggregate principal amount of Facility A Swingline Loans outstanding at such time.
Facility A Revolving Loans has the meaning assigned to such term in Section 2.01.
Facility A Swingline Loan has the meaning assigned to such term in Section
2.05(a)(i).
Facility A Swingline Sublimit means $15,000,000.
Facility B means the Facility B Commitments and the extensions of credit made
thereunder.
Facility B Borrower means, individually and collectively, the Company (in its
capacity as a Borrower under Facility B), the European Borrower, the Canadian Borrower and the UK
Borrower.
Facility B Commitment means, with respect to each Facility B Lender, the commitment,
if any, of such Lender to make Facility B Revolving Loans and to acquire participations in Facility
B Letters of Credit, Facility B Protective Advances and Facility B Swingline Loans, expressed as an
amount representing the maximum possible aggregate amount of such Lenders Facility B Revolving
Exposure hereunder, as such commitment may be reduced or increased from time to time pursuant to
(a) Section 2.09 and (b) assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lenders Facility B Commitment is set forth on the Commitment Schedule, or
in the Assignment and Assumption pursuant to which such Lender shall have assumed its Facility B
Commitment, as applicable. The initial aggregate amount of the Lenders Facility B Commitments is
$200,000,000.
35
Facility B Credit Exposure means, with respect to any Facility B Lender at any time,
the sum of such Lenders Facility B Revolving Exposure plus an amount equal to such Lenders
Applicable Percentage of the aggregate principal amount of Facility B Protective Advances
outstanding at such time.
Facility B LC Exposure means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Facility B Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements in respect of Facility B Letters of Credit that have not yet been
reimbursed by or on behalf of a Facility B Borrower at such time. The Facility B LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total Facility B LC Exposure at
such time.
Facility B Lenders means the Persons listed on the Commitment Schedule as
having a Facility B Commitment and any other Person that shall acquire a Facility B Commitment
pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party
hereto pursuant to an Assignment and Assumption.
Facility B Letter of Credit means any letter of credit or similar instrument
(including a bank guarantee) issued under this Agreement that is (a) acceptable to the applicable
Issuing Bank and (b) issued pursuant to Facility B for the purpose of providing credit support for
a Facility B Borrower. For the avoidance of doubt, unless the context otherwise requires,
references herein to Facility B Letters of Credit shall include any time draft presented under a
Facility B Letter of Credit.
Facility B Loans means, individually and collectively, the Facility B Revolving
Loans, the Facility B Swingline Loans and the Facility B Protective Advances.
Facility B Obligations means all unpaid principal of and accrued and unpaid interest
on the Facility B Loans (or which would have accrued but for the commencement of any bankruptcy,
insolvency, receivership or similar proceeding, regardless of whether allowed or allowable in such
proceeding), all Facility B LC Exposure, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Loan Parties to the Facility B Lenders or
to any Facility B Lender, the Administrative Agent, the Issuing Bank in respect of a Facility B
Letter of Credit or any indemnified party arising under the Loan Documents, in each case, whether
direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter
incurred.
Facility B Protective Advances means, collectively, the European Protective
Advances, the Canadian Protective Advances, the UK Protective Advances and the Facility B US
Protective Advances.
Facility B Revolving Exposure means, with respect to any Facility B Lender at any
time, the sum of the outstanding principal amount of such Lenders Facility B Revolving Loans and
its Facility B LC Exposure plus an amount equal to its Applicable Percentage of the
aggregate principal amount of Facility B Swingline Loans outstanding at such time.
Facility B Revolving Loans has the meaning assigned to such term in Section 2.01.
36
Facility B Swingline Loans means, collectively, the European Swingline Loans, the
Canadian Swingline Loans, the UK Swingline Loans and the Facility B US Swingline Loans.
Facility B Swingline Sublimit means $40,000,000.
Facility B US Protective Advance has the meaning assigned to such term in Section
2.04.
Facility B US Swingline Loan has the meaning assigned to such term in Section
2.05(a)(ii).
FATCA means Section 1471 or 1472 of the Code and regulations or official
interpretations thereof.
Federal Funds Effective Rate means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
Financial Officer means the Executive Vice President Chief Financial Officer,
chief financial officer, principal accounting officer, treasurer, assistant treasurer, controller
or assistant controller or similar officer of the Borrower Representative or any Loan Party.
Finnish Loan Party has the meaning assigned to such term in Section 10.01(j).
Fixed Charges means, with reference to any period, without duplication, Consolidated
Interest Expense required to be paid in cash, plus income taxes paid in cash (net of any
income tax refund received, but in no event less than zero), plus scheduled principal
payments on Indebtedness made during such period (including Capital Lease Obligation payments),
plus dividends or distributions paid in cash, plus cash contributions to any
Pension Plan all calculated for the Company and its Subsidiaries on a consolidated basis in
accordance with GAAP.
Fixed Charge Coverage Ratio means, the ratio, determined as of the end of each
fiscal month of the Company for the most-recently ended twelve fiscal months, of (a) Consolidated
EBITDA minus the unfinanced portion of Capital Expenditures, to (b) Fixed Charges, all
calculated for the Company and its Subsidiaries on a consolidated basis in accordance with GAAP.
Notwithstanding anything to the contrary set forth herein, for purposes of calculating the Fixed
Charge Coverage Ratio, Fixed Charge Coverage Ratio shall include discontinued operations of the
Company and its Subsidiaries, as defined by GAAP, until the applicable restated financial
statements reflecting such discontinuation are available.
Flood Insurance has the meaning assigned to such term in Section 4.01(o)(v).
37
Foreign Benefit Arrangements means any employee benefit arrangement mandated by
non-US law that is maintained or contributed to by any Loan Party or any of its Subsidiaries or
Affiliates, including for the avoidance of doubt any Canadian Benefit Plan.
Foreign Borrowing Base means the aggregate amount of the Canadian Borrowing Base,
the UK Borrowing Base and the European Borrowing Base.
Foreign Lender means any Lender or Issuing Bank, (a) with respect to any Borrower
other than the Company and any Tax, that is treated as foreign or non-resident by the jurisdiction
imposing such Tax, (b) with respect to the Company, (1) that, is not a United States person as
defined by section 7701(a)(30) of the Code (a US Person), or (2) that is a partnership or other
entity treated as a partnership for United States federal income tax purposes which is a US Person,
but only to the extent the beneficial owners (including indirect partners if its direct partners
are partnerships or other entities treated as partnerships for United States federal income tax
purposes are US Persons) are not US Persons.
Foreign Loan Parties means, individually and collectively, the Loan Parties other
than the US Loan Parties.
Foreign Pension Plan means any employee benefit plan (within the meaning of Section
3(3) of ERISA, whether or not subject to ERISA) that is not subject to US law and is maintained or
contributed to by any Loan Party or any of its Subsidiaries or Affiliates, including any Canadian
Pension Plan.
Foreign Subsidiary means any Subsidiary that is not a Domestic Subsidiary.
Free Reserves Available for Distribution has the meaning assigned to such term in
Section 10.01(n)(ii).
French Guaranteed Obligations means, with respect to any French Loan Guarantor (i)
all Facility B Obligations, (ii) all Banking Services Obligations, (iii) all Acceptance Obligations
and (iv) all Secured Swap Obligations, in each case, of or owing by any European Loan Party and/or
Canadian Loan Party to one or more Lenders or their respective Affiliates, and any other
obligations and other actual or contingent liabilities from time to time incurred from time to time
incurred by a European Loan Party and/or a Canadian Loan Party to any Guaranteed Party under the
Loan Documents; provided that the amount of all such obligations shall be limited to all
outstanding amounts borrowed by the relevant French Loan Guarantor from the European Borrower (it
being understood, for the avoidance of doubt, that no obligations owed by any US Loan Party to any
Guaranteed Party shall be guaranteed by a French Loan Guarantor under this Agreement).
French Intercompany Loan means the outstanding amount of any one or all of the
intercompany loans advanced by the European Borrower to Mexx Boutiques SARL or to any other French
Loan Guarantor.
French Loan Guarantor means (i) Mexx Boutiques SARL a French société à
responsabilité limitée registered under number 343 317 699 RCS Paris whose registered office is
38
at 23 Bis Rue Nieuport, 92150 Suresnes (France) and (ii) any other Loan Guarantor incorporated
in France.
Full Cash Dominion Period means any Level 1 Minimum Aggregate Availability Period
(provided that a Full Cash Dominion Period may be discontinued no more than twice in any
period of twelve consecutive months).
Funding Accounts has the meaning assigned to such term in Section 4.01(g).
GAAP means generally accepted accounting principles in the United States of America.
German Account Pledge Agreement means any document governed by German law creating a
security interest over any Account of any German Loan Party or of the European Borrower in favor of
the European Collateral Agent in a form satisfactory to the European Collateral Agent.
German Bankruptcy Reserve means reserves for fees payable to an insolvency
administrator pursuant to Section 171 of the German Insolvency Code (Insolvenzordnung).
German Global Assignment Agreement means a German assignment agreement creating a
security interest over receivables of any German Loan Party in favor of the European Collateral
Agent in a form satisfactory to the European Collateral Agent.
German Group Member means, collectively, any Subsidiary of the Company (including
the Designated German Subsidiaries) incorporated or otherwise formed under the laws of Germany.
German IP Transfer and Assignment Agreement means any document creating a security
interest over all intellectual property rights, patents, trademarks, know-how and utility models
owned by any German Loan Party in favor of the European Collateral Agent and in a form approved by
the European Collateral Agent.
German Land Charge Deed means all deeds entered into by any German Loan Party in a
form approved by the European Collateral Agent pursuant to which the German Loan Party grants a
land charge on its real estate property in favor of the European Collateral Agent, accompanied by
an acceptance of debt (Übernahme der perönlichen Haftung) being immediately enforceable
(Unterwerfung unter die sofortige Zwangsvollstreckung) in accordance with section 800 of the German
code of civil procedure (Zivilproszessordnung) in favor of the European Collateral Agent.
German Law Security Agreement has the meaning assigned to such term in Article VIII.
German Loan Party means any Loan Party organized under the laws of Germany.
39
German Partnership Interest Pledge Agreement means any agreement creating a security
interest over the partnership interests in Mexx Direct GmbH & Co. KG or any other Germany Loan
Party organized as a limited partnership under German law.
German Security Agreement means each German Account Pledge Agreement, each German
Global Assignment Agreement, each German IP Transfer and Assignment Agreement, each German Land
Charge Deed, each German Partnership Interest Pledge Agreement, each German Security Purpose
Agreement, each German Share Pledge Agreement, each German Security Transfer Agreement, and each
German Security Trust Agreement as the same may be amended, restated or otherwise modified from
time to time, and any other pledge or security agreement entered into or acknowledged or consented
to (as appropriate), after the date of this Agreement, by any other German Loan Party (as required
by this Agreement or any other Loan Document for the purpose of creating a Lien on the property of
any German Loan Party (or any other property located in Germany)), as the same may be amended,
restated or otherwise modified from time to time.
German Security Purpose Agreement means any document determining the security
purpose of the security interest created under each German Land Charge Deed and entered into by
each German Loan Party in a form approved by the European Collateral Agent.
German Security Transfer Agreement means any document creating a security interest
over all assets (including but not limited to Inventory, stock machinery, equipment, fittings etc.)
owned by any German Loan Party or any Netherlands Loan Party and situated on any German Loan
Partys business premises, in favor of the European Collateral Agent and in a form approved by the
European Collateral Agent.
German Security Trust Agreement means any document determining how the security
created by or pursuant to any German Security Agreement is to be held and administered by the
European Administrative Agent for and on behalf of the Lenders, in a form approved by the European
Collateral Agent.
German Share Pledge Agreement means any document creating a security interest over
the shares in each German Loan Party, in favor of the European Collateral Agent in a form approved
by the European Collateral Agent.
Global Headquarters means the Companys global headquarters located at 1 Claiborne
Avenue, North Bergen, New Jersey 07047.
Governmental Authority means the government of the United States of America, Canada,
the Netherlands, Germany, Austria, England and Wales or any other nation or any political
subdivision thereof, whether state, provincial, territorial, municipal or local; the European
Central Bank, the Council of Ministers of the European Union or any other supranational body; and
any agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
40
Greek Account Pledge Agreement means a document creating a security interest over
any Account of any Greek Loan Party in favor of the European Collateral Agent in a form
satisfactory to the European Collateral Agent.
Greek Loan Party means any Loan Party organized under the laws of Greece.
Group Member means any Loan Party other than an Account Party.
Guarantee of or by any Person (the guarantor) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the primary
obligor) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or other obligation;
provided that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.
Guaranteed Obligations has the meaning assigned to such term in Section 10.01.
Guaranteed Parties has the meaning assigned to such term in Section 10.01.
Hazardous Materials means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, contaminants, wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or wastes of any nature regulated
pursuant to or that could result in liability under any Environmental Law.
High Season means all times other than Low Season.
Hong Kong Intercompany Loan means the intercompany loan made by the Company to Mexx
Europe International BV on May 23, 2001, and assigned by the Company to Liz Claiborne International
Limited on December 4, 2008.
Hong Kong Intercompany Receivable means the intercompany receivable, owing to Liz
Claiborne International Limited from the Company and certain of its Subsidiaries, representing
accrued commissions for sourcing and related services.
Hong Kong Subordination Agreement means that certain Subordination Agreement, dated
as of January 12, 2009, among Liz Claiborne International Limited and the Loan Parties, in form and
substance reasonably acceptable to the Administrative Agent.
Immaterial Amendment has the meaning assigned to such term in Section 4.02.
41
Indebtedness of any Person means, without duplication, (a) all obligations of such
Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments or bankers acceptances, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such Person, (e) all obligations
of such Person in respect of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit and
letters of guaranty for Indebtedness, (j) all obligations, contingent or otherwise, of such Person
in respect of bankers acceptances, (k) obligations under any liquidated earn-out and (l) any other
Off-Balance Sheet Liability. The Indebtedness of any Person shall include, without duplication,
the Indebtedness of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such Persons ownership
interest in or other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
Indemnification Claim has the meaning set forth in Section 9.27(a).
Indemnified Taxes means Taxes other than Excluded Taxes and Other Taxes.
Indemnitee has the meaning assigned to such term in Section 9.03(b).
Information has the meaning assigned to such term in Section 9.12.
Insolvency Laws means each of the Bankruptcy Code, the Insolvency Act 1986, the
Council Regulation 1346/2000/EC on insolvency proceedings (European Union), the Bankruptcy and
Insolvency Act (Canada), the Companies Creditors Arrangement Act (Canada), the Winding-Up and
Restructuring Act (Canada) and any other applicable state, provincial, territorial or federal
bankruptcy laws, each as now and hereafter in effect, any successors to such statutes and any other
applicable insolvency or other similar law of any jurisdiction, including any law of any
jurisdiction permitting a debtor to obtain a stay or a compromise of the claims of its creditors
against it and including any rules and regulations pursuant thereto.
Intellectual Property means, individually and collectively, all worldwide
intellectual property and proprietary rights of any kind, including but not limited to, trademarks,
service marks, tradenames, copyrights, patents, trade secrets, industrial designs, internet domain
names, including any applications and registrations pertaining thereto and with respect to
trademarks, service marks and tradenames, the goodwill of the business symbolized thereby and
connected with the use thereof.
Intercompany Obligations means loans, advances, trade payables, credit financing or
borrowings among Mexx Europe Holding BV and its direct or indirect Subsidiaries.
42
Intercompany Note means the intercompany note dated as of January 12, 2009 entered
into by the Loan Parties (as the same has been amended, supplemented or otherwise modified from
time to time).
Intercompany Services Receivables means intercompany receivables owing from Loan
Parties to non-Loan Parties representing accrued payables in respect of services rendered to such
Loan Parties, solely to the extent that the obligations of the Loan Parties in connection therewith
are subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent.
Intercreditor Agreement means that certain Intercreditor Agreement, dated as of
January 12, 2009, substantially in the form of Exhibit H hereto, among the US Collateral
Agent, the Administrative Agent, the US Loan Parties and SunTrust Equity Funding, LLC.
Interest Election Request means a request by the Borrower Representative (or the
applicable Borrower) to convert or continue a Borrowing of Revolving Loans in accordance with
Section 2.08.
Interest Payment Date means (a) with respect to any ABR Loan, Canadian Prime Rate
Loan or Overnight LIBO Loan (including, in each case, a Swingline Loan), the first day of each
calendar month, (b) with respect to any Eurocurrency Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months duration after the first day
of such Interest Period, (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid and (d) with respect to any Loan, the Maturity Date.
Interest Period means with respect to any Eurocurrency Borrowing, the period
commencing on the date of such Borrowing and ending (i) on the numerically corresponding day in the
calendar month that is one, two, three or six (or, if agreed to by all Lenders under the relevant
Facility, 12) months thereafter, as the Borrower Representative may elect or (ii) solely as
explicitly set forth in Section 2.05(c), the date that is one week thereafter; provided
that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency
Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (b) in the case of
clause (i) above, any Interest Period pertaining to a Eurocurrency Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last Business Day of the
last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made, and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
Interim Calculation Date means each Business Day occurring during an Interim Period.
Interim Period means any period commencing on the first Business Day after any
Settlement Request Date with respect to any European Swingline Loan and ending on the Settlement
Date that is the associated therewith.
43
Inventory means, individually and collectively, Inventory, as referred to in any
Security Agreement.
Investment Grade Account Debtor means an Account Debtor that, at the time of
determination, has a corporate credit rating and/or family rating, as applicable, of BBB- or higher
by S&P or Baa3 or higher by Moodys.
Irish Debenture means the debenture, dated the date hereof, from Juicy Couture
Ireland Ltd. in favor of J.P. Morgan Europe Limited.
Issuing Bank means, individually and collectively, JPMorgan Chase Bank, N.A., Bank
of America, N.A. and Wells Fargo Bank, National Association, together with any other Lenders
reasonably acceptable to the Administrative Agent, each in its capacity of the issuer of Letters of
Credit and its successors in such capacity as provided in Section 2.06(i). Any Issuing Bank may,
in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such
Issuing Bank (including pursuant to assignments of existing Letters of Credit), in which case the
term Issuing Bank shall include any such Affiliate with respect to Letters of Credit issued
(including following any such assignment) by such Affiliate.
ITA means the Income Tax Act (Canada), as amended.
Italian Collateral Document has the meaning set forth in Article VIII.
JCPenney License Agreement means the License Agreement by and between the Company,
J. C. Penney Corporation, Inc., J. C. 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.
Joinder Agreement has the meaning assigned to such term in Section 5.14.
JPMCB means JPMorgan Chase Bank, N.A., a national banking association, in its
individual capacity, and its successors.
Juicy Couture Trademark means any current or future Trademarks owned, controlled,
licensed or used by Juicy Couture, Inc. or any of its Affiliates or the successors or assigns
thereof that comprise or contain the name Juicy and/or Couture and/or any variations,
stylizations or derivatives of any such Trademarks.
Juicy Debenture means the debenture, dated as of the date hereof, between the UK
Borrower and the European Collateral Agent, as the same may be amended, restated or otherwise
modified from time to time.
Kate Spade JV Agreement means the agreement governing the joint venture by and
between Kate Spade LLC and Sanei International Co., Ltd.
Kate Spade Trademark means any current or future Trademarks owned, controlled,
licensed or used by Kate Spade LLC or any of its Affiliates or the successors or assigns thereof
44
that comprise or contain the name Kate and/or Spade and/or any variations, stylizations or
derivatives of any such Trademarks.
Law of 2002 has the meaning set forth in Section 10.01(i).
LC Collateral Account has the meaning assigned to such term in Section 2.06(j).
LC Disbursement means a payment made by an Issuing Bank pursuant to a Letter of
Credit, including in respect of a time draft presented thereunder. The date of an LC Disbursement
shall be the date of payment by such Issuing Bank under such Letter of Credit or a time draft
presented thereunder, as the case may be.
LC Exposure means, at any time, the sum of the Facility A LC Exposure and the
Facility B LC Exposure.
LC Sublimit $200,000,000; provided that the aggregate LC Exposure in respect
of standby Letters of Credit shall not exceed $65,000,000.
LCE Debenture means the debenture, dated as of the date hereof, between the Liz
Claiborne Europe and the European Collateral Agent, as the same may be amended, restated or
otherwise modified from time to time.
Lead Arrangers means, individually or collectively, J.P. Morgan Securities Inc.,
Banc of America Securities LLC, Wells Fargo Capital Finance, LLC and SunTrust Robinson Humphrey,
Inc., in their capacity as joint lead arrangers, and each of their successors in such capacity.
Lenders means the Facility A Lenders and the Facility B Lenders. Unless the context
otherwise requires, the term Lenders includes the Swingline Lenders.
Letter of Credit means, individually and collectively, each Facility A Letter of
Credit and each Facility B Letter of Credit.
Letter of Credit Request has the meaning assigned to such term in Section 2.06(a).
Licensed Inventory Reserve means reserves for accrued royalties owing to Donna Karan
Studio or any Affiliate thereof at any time that the most recent Collateral Report or Inventory
appraisal delivered to the Administrative Agent or the US Collateral Agent indicates a turnover
rate for the applicable Inventory that is equal to or greater than 75 days.
LIBO Rate means, with respect to any Eurocurrency Borrowing for any Interest Period,
the rate appearing on the applicable Reuters Screen (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate quotations comparable
to those currently provided on such page of such Service, as determined by the Administrative Agent
or the European Administrative Agent, as applicable, from time to time for purposes of providing
quotations of interest rates applicable to deposits in the relevant currency in the London
interbank market) at approximately 11:00 a.m., London time, on the Quotation Day, as the rate for
deposits in the relevant currency with a maturity comparable to such Interest
45
Period. In the event that such rate is not available at such time for any reason, then the
LIBO Rate with respect to such Eurocurrency Borrowing for such Interest Period shall be
the rate at which deposits in the relevant currency of $5,000,000 (or, the case of a currency other
than dollars, an approximate equivalent thereof as determined by the Administrative Agent) and for
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds to prime banks in the London interbank market
at approximately 11:00 a.m., London time on the Quotation Day.
Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
Liz Trademark means any current or future Trademarks owned, controlled, licensed or
used by the Company or any of its Affiliates or the successors or assigns thereof that comprise or
contain the name Liz and/or Claiborne and/or any variations, stylizations or derivatives of any
such Trademarks.
Loan Documents means this Agreement, any promissory notes issued pursuant to the
Agreement, any Letter of Credit applications, the Collateral Documents, the Loan Guaranty, the
Intercreditor Agreement, the Specified Loan Documents and all other agreements, instruments,
documents and certificates identified in Section 4.01 executed and delivered to, or in favor of,
the Administrative Agent, any Collateral Agent or any Lenders and including all other pledges,
powers of attorney, consents, assignments, contracts, notices, letter of credit agreements and all
other written matter whether heretofore, now or hereafter executed by or on behalf of any Loan
Party, or any Responsible Officer of any Loan Party, and delivered to the Administrative Agent, any
Collateral Agent or any Lender in connection with the Agreement or the transactions contemplated
thereby. Any reference in the Agreement or any other Loan Document to a Loan Document shall
include all appendices, exhibits or schedules thereto, and all amendments, restatements,
supplements or other modifications thereto, and shall refer to the Agreement or such Loan Document
as the same may be in effect at any and all times such reference becomes operative.
Loan Guarantor means (a) each US Loan Party, with respect to the Secured Obligations
of the other US Loan Parties, the Canadian Loan Parties and the European Loan Parties, (b) each
Canadian Loan Party, with respect to the Secured Obligations of the other Canadian Loan Parties and
the European Loan Parties, and (c) each European Loan Party, with respect to the Secured
Obligations of the other European Loan Parties and the Canadian Loan Parties.
Loan Guaranty means (i) Article X of this Agreement and (ii) each separate
guaranty, in form and substance reasonably satisfactory to the Administrative Agent, delivered by
any Foreign Subsidiary (which guaranty shall be governed by the laws of the country in which such
Foreign Subsidiary is located if the Administrative Agent requests that such law govern such
guaranty), in each case as it may be amended or modified and in effect from time to time.
46
Loan Parties means (i) the Company, the Companys domestic Subsidiaries and any
other Subsidiaries of the Company that guarantee (or are directly liable for) the Synthetic Lease
Obligations, (ii) the European Borrower and its wholly-owned Subsidiaries organized under the laws
of the Netherlands or England and Wales, (iii) the Canadian Borrower and its wholly-owned
Subsidiaries organized under the laws of Canada or any province, territory or other political
subdivision thereof, (iv) the Designated German Subsidiaries and each of their wholly-owned
Subsidiaries organized under the laws of Germany, (v) the UK Borrower and its wholly-owned
Subsidiaries organized under the laws of England and Wales or Ireland, in each case with respect to
clauses (i) through (v) above, to the extent such entity is a party to any Loan Guaranty, and (vi)
each other Subsidiary who is a party hereto on the date hereof or becomes a party to this Agreement
pursuant to a Joinder Agreement or executes a separate Loan Guaranty and their respective
successors and assigns; provided that the Administrative Agent and the Company may agree in
writing that any inactive or less than wholly-owned Subsidiary shall not be a Loan Party hereunder.
Loans means the loans and advances made by the Lenders pursuant to this Agreement,
including Revolving Loans, Swingline Loans and Protective Advances and including BA Drawings.
Local Time means, (a) local time in London with respect to the times for the
determination of Dollar Equivalent, for the receipt of Borrowing Requests for Facility B Loans
other than Canadian Loans, and Facility B Letter of Credit Requests (other than in respect of
Canadian Letters of Credit) to an Issuing Bank, of any disbursement by the European Administrative
Agent of Facility B Loans other than Canadian Loans and for payment by the Borrowers with respect
to Facility B Loans other than Canadian Loans and reimbursement obligations in respect of Facility
B Letters of Credit other than Canadian Letters of Credit, (b) local time in New York, with respect
to the times for the receipt of Borrowing Requests of Facility A Loans, Facility A Letter of Credit
Requests to an Issuing Bank, for receipt and sending of notices by and disbursement by the
Administrative Agent or any Lender and any Issuing Bank and for payment by the Company with respect
to Facility A Loans and reimbursement obligations in respect of Facility A Letters of Credit, (c)
local time in London, with respect to the times for the determination of LIBO Rate and Overnight
LIBO Rate, (d) local time in Toronto, with respect to the times for receipt of Borrowing Requests
of Canadian Loans, Canadian Letter of Credit Requests to an Issuing Bank, for receipt and sending
of notices by and disbursement by the Canadian Administrative Agent or any Lender and any Issuing
Bank and for payment by the Canadian Borrower with respect to Canadian Loans and reimbursement
obligations in respect of Canadian Letters of Credit, (e) otherwise, if a place for any
determination is specified herein, the local time at such place of determination and (f) otherwise,
New York time.
Lock Box Agreement means, individually and collectively, each Lock Box Agreement
referred to in any Security Agreement.
Low Season means, for any period of determination of any Borrowing Base, (i) with
respect to Retail Inventory, the period commencing the first day of each fiscal year of the Company
and ending the last day of the August fiscal month of the Company of such year and (ii) with
respect to Wholesale Inventory, the period commencing the first day of the November
47
fiscal month of the Company of each year and ending the last day of the July fiscal month of
the Company of the following year.
Lucky Brand Purchase Agreement means that certain Stockholders Agreement, dated May
21, 1999, by and among Lucky Brand Dungarees, Inc., a Delaware corporation, the Company, Montesano
Family Trust, Perlman Family Trust and Trent D. Merrill as in effect on the Original Effective Date
(including as amended by the First Amendment to the Stockholders Agreement, dated as of January 28,
2005 and the Second Amendment to the Stockholders Agreement, dated as of September 20, 2007).
Lucky Brand Trademark means any current or future Trademarks owned, controlled,
licensed or used by Lucky Brand Dungarees, Inc. or any of its Affiliates or the successors or
assigns thereof that comprise or contain the name Lucky and/or Dungarees and/or any variations,
stylizations or derivatives of any such Trademarks.
Luxembourg Loan Guarantor has the meaning set forth in Section 10.01(i).
Mac & Jac Purchase Agreement means the Earn-Out Purchase Agreement by and among
0745557 B.C. LTD., Liz Claiborne, Inc., Eric Karls and Eric Karls, as Trustee of The Karls Family
Trust, dated as of January 26, 2006, as in effect on the Original Effective Date.
Management Notification has the meaning set forth in Section 10.10(c).
Mandatory Cost means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01(c).
Margin Stock means margin stock, as such term is defined in Regulation U of the
Board.
Material Adverse Effect means a material adverse effect on (a) the business, assets,
property, operations or condition, financial or otherwise, of the Loan Parties, taken as a whole,
(b) the ability of any Loan Party to perform any of its obligations under the Loan Documents to
which it is a party, (c) the Collateral, any Collateral Agents Lien (for the benefit of the
Agents, the applicable Lenders and the applicable Issuing Banks) on the Collateral, or the priority
of any such Lien, or (d) the rights of or benefits available to the Administrative Agent, European
Administrative Agent, Canadian Administrative Agent, any Collateral Agent, any Issuing Bank or the
Lenders under any Loan Document.
Material Indebtedness means (i) Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Company and its Subsidiaries in an aggregate principal amount exceeding $40,000,000 and (ii) the
Synthetic Lease Obligations. For purposes of determining Material Indebtedness, the obligations
of any Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that such Borrower or such Subsidiary
would be required to pay if such Swap Agreement were terminated at such time.
48
Material Subsidiary means, as of any date of determination, any Subsidiary (a) whose
total assets at the last day of the Test Period ending on the last day of the most recent fiscal
period for which financials have been or were required to be delivered pursuant to Section 5.01(a),
(b) or (c) were equal to or greater than 5.0% of the Total Assets of the Company and its
Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or greater
than 5.0% of the consolidated revenues of the Company and its Subsidiaries for such period, in each
case determined in accordance with GAAP; provided that (x) if, at any time and from time to
time after the Effective Date, Subsidiaries that are not Material Subsidiaries have, in the
aggregate, (i) total assets at the last day of such Test Period equal to or greater than 5.0% of
the Total Assets of the Company and its Subsidiaries at such date or (ii) revenues during such Test
Period equal to or greater than 5.0% of the consolidated revenues of the Company and its
Subsidiaries for such period, in each case determined in accordance with GAAP, then the Company
shall, on the date on which financial statements for such fiscal period are delivered pursuant to
this Agreement, designate in writing to the Administrative Agent one or more of such Subsidiaries
as Material Subsidiaries and (y) each Borrower (other than Company) shall at all times be
designated a Material Subsidiary.
Maturity Date means the earliest to occur of (i) August 6, 2014 or (ii) any earlier
date on which the Commitments are reduced to zero or otherwise terminated pursuant to the terms
hereof; provided that (x) in the event that the Existing Euro Notes are not refinanced,
purchased or defeased prior to April 8, 2013, the Maturity Date, as determined pursuant to clause
(i) hereof, shall be April 8, 2013 (it being understood that if any such refinancing or extension
shall provide for a maturity date that is earlier than 91 days following August 6, 2014, the
Maturity Date, as determined pursuant to clause (i) hereof, shall be the date that is 91 days prior
to the maturity date of such notes); and (y) in the event that the Existing Convertible Notes are
not refinanced, purchased or defeased prior to March 15, 2014, the Maturity Date, as determined
pursuant to clause (i) hereof, shall be March 15, 2014 (it being understood that if any such
refinancing or extension shall provide for a maturity date that is earlier than 91 days following
August 6, 2014, the Maturity Date, as determined pursuant to clause (i) hereof, shall be the date
that is 91 days prior to the maturity date of such notes).
Maximum Liability has the meaning assigned to such term in Section 10.09.
Maximum Rate has the meaning assigned to such term in Section 9.17.
Mexx Trademark means any current or future Trademarks owned, controlled, licensed or
used by Mexx Europe B.V. or any of its Affiliates or the successors or assigns thereof that
comprise or contain the name Mexx and/or variations, stylizations, or derivatives of any such
Trademarks.
Minimum Aggregate Availability Period means (including by reference to the Levels
described below), any period (a) commencing on the first date that Aggregate Availability for a
period of three consecutive Business Days (or, with respect to any Level 1 Minimum Aggregate
Availability Period, one Business Day) is less than the greater of:
|
|
|
Level 1:
|
|
(i) $65,000,000 and (ii) an amount equal to 17.5% of the
Commitments then in effect; |
49
|
|
|
Level 2:
|
|
(i) $87,500,000 and (ii) an amount equal to 25% of the
Commitments then in effect, but more than Level 1; and |
|
|
|
Level 3:
|
|
(i) $109,375,000 and (ii) an amount equal to 31.25% of the
Commitments then in effect, but more than Level 1 and Level 2; |
and (b) ending after Aggregate Availability is greater than the amounts set forth above (with
respect to the applicable Level) for 30 consecutive days. For the avoidance of doubt, at any time
that Aggregate Availability is equal to or greater than the amounts set forth in Level 2 or Level 3
above, Aggregate Availability shall also be deemed to be greater than the applicable Level(s) below
such Level of Aggregate Availability and each Minimum Aggregate Availability Period Level shall
include each lesser Level.
Moodys means Moodys Investors Service, Inc.
Mortgage means any mortgage, hypothec, deed of trust, debenture, legal charge or
other agreement which conveys or evidences a Lien in favor of the applicable Collateral Agent, for
the benefit of the Agents, the applicable Lenders and the applicable Issuing Banks, on real
property of a Loan Party, including any amendment, modification or supplement thereto.
Mortgaged Properties means the real properties listed on Schedule 1.01(d)
and noted thereon as to which the applicable Collateral Agent for the benefit of the Agents, the
applicable Lenders and the applicable Issuing Banks shall be granted a Lien pursuant to the
Mortgages.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
Net Orderly Liquidation Value means, with respect to Inventory, equipment or
intangibles of any Person, the orderly liquidation value thereof as determined in a manner
reasonably acceptable to the Administrative Agent by an appraiser acceptable to the Administrative
Agent, net of all costs of liquidation thereof.
Net Proceeds means, with respect to any event, (a) the cash proceeds received in
respect of such event including any cash received in respect of any non-cash proceeds (including
any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but excluding any
interest payments), but only as and when received, net of (b) the sum of (i) all reasonable fees
and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset (including pursuant to
a sale and leaseback transaction), the amount of all payments required to be made as a result of
such event to repay Indebtedness (other than Loans and (with respect to dispositions of Collateral)
Synthetic Lease Obligations) secured by such asset or otherwise subject to mandatory prepayment as
a result of such event and (iii) the amount of all taxes paid (or reasonably estimated to be
payable) and the amount of any reserves established to fund contingent liabilities
50
reasonably estimated to be payable, in each case during the year that such event occurred or
the next succeeding year and that are directly attributable to such event (as determined reasonably
and in good faith by a Financial Officer of the Borrower Representative).
Netherlands means the Kingdom of the Netherlands in Europe.
Netherlands Group Member means any Subsidiary of the Company (including the European
Borrower) incorporated or otherwise formed under the laws of the Netherlands.
Netherlands Intercompany Receivable Amount means, on any date, an amount equal to
the excess of (i) the aggregate amount of Specified Cash Collections held by the Subsidiaries of
the European Borrower over (ii) 400,000.
Netherlands Loan Party means, individually and collectively, any Loan Party
(including the European Borrower) incorporated or otherwise formed under the laws of the
Netherlands; provided that for purposes of the definition of the European Borrowing Base,
Netherlands Loan Party shall include Liz Claiborne Europe to the extent it continues to be a Loan
Party hereunder.
Netherlands Security Agreement means (a) each Netherlands law (undisclosed) pledge
over receivables, (b) each Netherlands law (disclosed) pledge over receivables, (c) each
Netherlands law (disclosed) pledge over intercompany receivables, (d) each Netherlands law
non-possessory pledge of movable assets, (e) each Netherlands law pledge over Intellectual Property
rights, (f) each Netherlands law (disclosed) pledge over a bank account or (g) each Netherlands
Share Pledge Agreement, in each case dated as of January 13, 2009, among any Netherlands Loan Party
and the European Collateral Agent, as the same may be amended, restated or otherwise modified from
time to time, and any other pledge or security agreement entered into, after the date of this
Agreement, by any Netherlands Loan Party (as required by this Agreement or any other Loan Document
for the purpose of creating a Lien on the property of any Netherlands Loan Party (or any other
property located in the Netherlands)), as the same may be amended, restated or otherwise modified
from time to time.
Netherlands Share Pledge Agreement means any document creating a security interest
over the shares in each Netherlands Loan Party, in favor of the European Collateral Agent in a form
approved by the European Collateral Agent.
Non BA Lender means a Lender that cannot or does not as a matter of policy accept
bankers acceptances.
Non-Consenting Lender has the meaning assigned to such term in Section 9.02(e).
Non-Funding Lender has the meaning assigned to such term in Section 2.07(b).
Non-Paying Guarantor has the meaning assigned to such term in Section 10.11.
Norwegian Loan Party means, individually and collectively, any Loan Party
incorporated or otherwise formed under the laws of Norway.
51
Obligated Party has the meaning assigned to such term in Section 10.02.
Obligations means the Facility A Obligations and the Facility B Obligations.
Off-Balance Sheet Liability of a Person means (a) any repurchase obligation or
liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any
indebtedness, liability or obligation under any so-called synthetic lease transaction entered
into by such Person, or (c) any indebtedness, liability or obligation arising with respect to any
other transaction which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the balance sheets of such Person (other than operating leases).
Ohio Property means the land, building and improvements located at 8741 Jacquemin
Drive, West Chester, Ohio, together with all rights, easements and appurtenances thereto, and all
fixtures and equipment located thereon or used in connection therewith which as of the Effective
Date are subject to the Synthetic Lease and/or related capital leases, as applicable.
Option Assets has the meaning assigned to such term under the JCPenney License
Agreement.
Original Effective Date means the Effective Date as defined in the Existing Credit
Agreement.
Other Connection Taxes means, with respect to the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, any Collateral Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed as a result of a
present or former connection between such recipient and the jurisdiction imposing such Tax (other
than connections arising from such recipient having executed, delivered, or become a party to,
performed its obligations or received payments under, received or perfected a security interest
under, sale or assignment of an interest in any Loan or Loan Document, engaged in any other
transaction pursuant to, or enforced, any Loan Documents) and (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other jurisdiction in which the
relevant Borrower is located.
Other Taxes means all present or future stamp, court or documentary Taxes and any
other excise, property, intangible, recording, filing or similar Taxes arising from any payment
made under, from the execution, delivery, performance, enforcement or registration of, or from the
receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document.
Overnight LIBO means, when used in reference to any Loan or Borrowing, whether such
Loan or the Loan comprising such Borrowing accrues interest at a rate determined by reference to
the Overnight LIBO Rate.
Overnight LIBO Rate means, with respect to any Overnight LIBO Borrowing or overdue
amount, (a) the rate of interest per annum (rounded upwards, if necessary, to the next 1/16 of 1%)
at which overnight deposits in Euros, Sterling, Canadian Dollars, dollars or Yen, as applicable, in
an amount approximately equal to the amount with respect to which such rate is
52
being determined, would be offered for such day by a branch or Affiliate of JPMCB in the
London interbank market for such currency to major banks in the London interbank market
plus (b) the Mandatory Cost.
PA Exposure means, at any time, the aggregate principal amount of all Protective
Advances outstanding at such time. The PA Exposure of any Lender at any time shall be its
Applicable Percentage of the total PA Exposure at such time.
Parallel Debt has the meaning assigned to such term in Section 9.21.
Participant has the meaning assigned to such term in Section 9.04.
Participant Register has the meaning set forth in Section 9.04(g)(i).
Participating Member State means each State so described in any EMU Legislation, and
includes, without limitation, each member State of the European Community that adopts or has
adopted the Euro as its lawful currency in accordance with EMU Legislation.
Patriot Act has the meaning set forth in Section 9.14.
Paying Guarantor has the meaning assigned to such term in Section 10.11.
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
Pennsylvania Property means that certain real property located at One Liz Way, Mount
Pocono, Pennsylvania.
Pension Plan means any employee pension benefit plan (as defined in Section 3(2) of
ERISA) in respect of which any Loan Party or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an employer as defined in Section
3(5) of ERISA, and any Foreign Pension Plan.
Permitted Acquisition means any acquisition by the Company or any other Group
Member, whether by purchase, merger, amalgamation or otherwise, of all or substantially all of the
assets of, all of the Equity Interests of, or a business line or unit or a division of, any Person;
provided that:
(a) such acquisition shall be consensual;
(b) such acquisition shall be consummated in accordance with all Requirements of Law,
except where the failure to so comply would not reasonably be expected to have a Material
Adverse Effect;
(c) in the case of the acquisition of Equity Interests, (i) all of the Equity Interests
(except for any such securities in the nature of directors qualifying shares) acquired or
otherwise issued by such Person or any newly formed Subsidiary of any Borrower in connection
with such acquisition shall be directly and beneficially owned
53
100% by the Company or any other Group Member and (ii) such newly acquired Subsidiary
shall be a Loan Party and the Company and its Subsidiaries shall have complied with Section
5.14 with respect thereto; and
(d) in the case of any acquisition in excess of $35,000,000 (whether paid in cash,
securities, the assumption of debt (including to the extent that any continuing debt would
be newly reflected on a consolidated balance sheet of the Company) or otherwise), the
Company shall furnish to the Administrative Agent at least five Business Days prior to such
proposed acquisition a certificate from a Financial Officer of the Borrower Representative
evidencing compliance with Section 6.04(n), together with such detailed information relating
thereto as the Administrative Agent may reasonably request to demonstrate such compliance;
and
provided further that it is understood that to the extent the assets acquired are
to be included in any Borrowing Base, due diligence (including, without limitation, field exams and
appraisals) in respect of such acquired assets satisfactory to the Administrative Agent, in its
Permitted Discretion, shall have been completed.
Permitted Company Deferral Plan means the Liz Claiborne, Inc. Outside Directors
Deferral Plan, as in effect on the date hereof.
Permitted Discretion means a determination made in good faith and in the exercise of
reasonable (from the perspective of a secured asset-based lender) business judgment.
Permitted Encumbrances means:
(a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;
(b) carriers, warehousemens, mechanics, materialmens, repairmens, landlords and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being contested in compliance
with Section 5.04, but excluding, for greater certainty, any landlord hypothecs registered
in the province of Quebec;
(c) pledges and deposits made in the ordinary course of business in compliance with
workers compensation, unemployment insurance and other social security laws or regulations;
(d) Liens granted and deposits made to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not constitute an Event of Default
under paragraph (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and other encumbrances on real
property (whether owned or leased) or any interest therein, imposed by law or arising
54
or granted in the ordinary course of business, that do not secure any monetary
obligations and do not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of any Loan Party or any of its
Subsidiaries;
(g) solely with respect to any Mortgaged Property, matters shown on Schedule B
Section II of the title insurance policy delivered with respect thereto; and
(h) Liens in favor of a credit card processor arising in the ordinary course of
business under any processor agreement;
provided that the term Permitted Encumbrances shall not include any Lien securing
Indebtedness.
Permitted European Member State means any member state of the European Union that
was a member state prior to May 2004.
Permitted Fee Receiver means any US Fee Receiver that, with respect to any fees paid
under Section 2.12 (other than commitment fees), delivers to the Company and the Administrative
Agent, on or prior to the date on which such Person becomes a party hereto (and from time to time
thereafter upon the request of the Company and the Administrative Agent, unless such Lender or
Issuing Bank becomes legally unable to do so solely as a result of a Change in Law after becoming a
party hereto), accurate and duly completed copies (in such number as requested) of one or more of
Internal Revenue Service Forms W-9, W-8ECI, W-8EXP, W-8BEN or W-8IMY (together with, if applicable,
one of the aforementioned forms duly completed from each direct or indirect beneficial owner of
such Lender or Issuing Bank) or any successor thereto that entitle such Lender or Issuing Bank to a
complete exemption from U.S. withholding tax on such payments (provided that, in the case
of an Internal Revenue Service Form W-8BEN, a Lender or Issuing Bank providing such form shall
qualify as a Permitted Fee Receiver only if such form establishes such exemption on the basis of
the business profits or other income articles of a tax treaty to which the United States is a
party and provides a U.S. taxpayer identification number), in each case together with such
supplementary documentation as may be prescribed by applicable law to permit the Company or the
Administrative Agent to determine whether such Lender or Issuing Bank is entitled to such complete
exemption.
Permitted Investments means:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, a Governmental Authority of the United States, Canada (with
respect to investments made by any Canadian Group Member), the Netherlands (with respect to
investments made by any Netherlands Group Member), Germany (with respect to investments made
by any German Group Member) or England and Wales (with respect to investments made by any UK
Group Member), (or by any agency thereof, as applicable, to the extent such obligations are
backed by the full faith and credit of such government), in each case maturing within one
year from the date of acquisition thereof;
55
(b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moodys;
(c) investments in certificates of deposit, bankers acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States, Canada (with respect to
investments made by any Canadian Group Member), the Netherlands (with respect to investments
made by any Netherlands Group Member), Germany (with respect to investments made by any
German Group Member), England and Wales (with respect to investments made by any UK Group
Member) or any State or Province or other political subdivision thereof, as applicable, in
each case, which has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above; and
(e) money market funds that (i) (x) comply with the criteria set forth in the U.S.
Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940 or (y)
are money market mutual funds (as defined in National Instrument 81-102 Mutual Funds) that
are reporting issuers (as defined as Ontario securities law) in the Province of Ontario,
(ii) are rated AAA by S&P or Aaa by Moodys and (iii) have portfolio assets of at least
$5,000,000,000.
Permitted Lien means Liens permitted by Section 6.02.
Permitted Second Priority Lien shall have the meaning assigned to such term in
Section 6.02(s).
Person means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
Plan means any employee benefit plan (as defined in Section 3(3) of ERISA),
including any employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee
pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee
welfare benefit plan and an employee pension benefit plan, and in respect of which any Loan Party
or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an employer as defined in Section 3(5) of ERISA.
PP&E Component means, at any time of determination of the US Borrowing Base, the
lesser of (x) $30,000,000 and (y) 50% of the fair market value of the Eligible Real Property on the
Effective Date (or, in the case of any real property on which a Mortgage is granted to the US
Collateral Agent after the Effective Date, on the date such Mortgage is granted) (such amount to
amortize monthly on a straight-line basis to zero over five years commencing at the end of the
first full fiscal quarter following the Effective Date (or, in the case of any real property on
which a
56
Mortgage is granted to the US Collateral Agent after the Effective Date, at the end of the
first full fiscal quarter following the date such Mortgage is granted)).
PPSA means the Personal Property Security Act (Ontario), including the regulations
thereto; provided that, if perfection or the effect of perfection or non-perfection or the
priority of any Lien created hereunder or under any other Loan Document on the Collateral is
governed by the personal property security legislation or other applicable legislation with respect
to personal property security in effect in a jurisdiction other than Ontario, PPSA means the
Personal Property Security Act or such other applicable legislation in effect from time to time in
such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect
of perfection or non-perfection or priority.
Prepayment Event means any termination or voluntary reduction of the Commitments
pursuant to Section 2.09(b) or (c).
Prime Rate means (a) for the purpose of dollar-denominated Loans made available to
the Company, the rate of interest per annum publicly announced from time to time by JPMCB as its
prime rate at its offices at 270 Park Avenue in New York City or any successor executive office,
and (b) for the purpose of dollar-denominated Loans made available to the Canadian Borrower, the
rate of interest per annum publicly announced from time to time by the Canadian Administrative
Agent as its prime rate for dollar-denominated commercial loans made in Canada; each change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.
Prior Claims means all Liens created by applicable Canadian law (in contrast with
Liens voluntarily granted) which rank or are capable of ranking prior to or pari passu with the
Liens created by the Collateral Documents (or interests similar thereto under applicable law)
including for amounts owing for employee source deductions, vacation pay, goods and services taxes,
sales taxes, harmonized sales taxes, municipal taxes, workers compensation, Quebec corporate
taxes, pension fund obligations and overdue rents.
Pro Forma Basis means, with respect to any test hereunder in connection with any
event, that such test shall be calculated after giving effect on a pro forma basis
for the period of such calculation to (i) such event as if it happened on the first day of such
period or (ii) the incurrence of any Indebtedness by the Company or any Subsidiary and any
incurrence, repayment, issuance or redemption of other Indebtedness of the Company or any
Subsidiary occurring at any time subsequent to the last day of the Test Period and on or prior to
the date of determination, as if such incurrence, repayment, issuance or redemption, as the case
may be, occurred on the first day of the Test Period (it being understood that, in connection with
any such pro forma calculation prior to the delivery of financial statements for
the first fiscal month ended after the Effective Date, such calculation shall be made in a manner
satisfactory to the Administrative Agent in its Permitted Discretion).
Projections has the meaning assigned to such term in Section 5.01(f).
Protective Advances has the meaning assigned to such term in Section 2.04.
Put Event means a Put Event as defined in Schedule 2 to the Agency Agreement.
57
Quebec Security Documents means a deed of hypothec executed by any Loan Party from
time to time and any other related documents, bonds, debentures or pledge agreements required to
perfect a Lien in favor of the applicable Collateral Agent in the province of Quebec.
Quotation Day means, in respect of the determination of the LIBO Rate for any period
for Loans (a) in Sterling, the day which is the Business Day that is the first day of such Interest
Period, (b) in Euro, the day that is two Target Days prior the first day of such Interest Period
and (c) in dollars, Canadian Dollars or Yen, the day that is two Business Days prior to the first
day of such Interest Period.
Register has the meaning assigned to such term in Section 9.04.
Related Parties means, with respect to any specified Person, such Persons
Affiliates and the respective directors, officers, employees, agents and advisors of such Person
and such Persons Affiliates.
Relevant Loan Party has the meaning assigned to such term in Section 9.21(a).
Rent Reserve means (a) with respect to any store, warehouse, cross-docking facility,
distribution center, regional distribution center, depot or other location where any Inventory
subject to Liens arising by operation of law is located and with respect to which no Collateral
Access Agreement is in effect, a reserve equal to the greater of (i) two (or, in the case of any
store, warehouse, cross-docking facility, distribution center, regional distribution center, depot
or other location located in Canada, the Netherlands, England and Wales or Germany, three) months
rent or (ii) if such facility is located in the Province of Quebec, the fixed amount of any
prior-ranking hypothec registered in favor of the applicable landlord, at such store, warehouse,
cross-docking facility, distribution center, regional distribution center, depot or other location
and (b) with respect to any Inventory subject to a four wall concession arrangement, a reserve
equal to the lesser of (x) the sum of (i) three months rent of the concessionaire plus (ii) three
months fees owing from the applicable Loan Party to the concessionaire and (y) the value of such
Inventory, valued at the lower of cost (determined on a first-in-first-out basis) or market value.
Report means reports prepared by the Administrative Agent or another Person showing
the results of appraisals, field examinations or audits pertaining to the assets of any Loan Party
from information furnished by or on behalf of any Loan Party, after the Administrative Agent has
exercised its rights of inspection pursuant to this Agreement, which Reports shall be distributed
to the Lenders by the Administrative Agent.
Reported Acceptance Obligations means Acceptance Obligations of any Loan Party owing
to one or more Lenders or their respective Affiliates; provided that, as of any date of
determination, such obligations shall constitute Reported Acceptance Obligations solely to the
extent that the Lender party thereto or its Affiliate (other than JPMCB) shall have reported the
amount of such outstanding obligations to the Administrative Agent as of the last day of the
previous fiscal quarter on or prior to the date that is 15 days following the end of such fiscal
quarter (or (x) prior to the date that is 15 days following the end of the first fiscal quarter
following the Effective Date, within 15 days of the Effective Date such Lender or Affiliate shall
58
have reported the amount of such outstanding obligations as of the Effective Date, and (y)
within 10 days of any request therefor by the Administrative Agent, such Lender or Affiliate shall
have reported the amount of such outstanding obligations as of any other date reasonably requested
by the Administrative Agent).
Reported Banking Services Obligations means Banking Services Obligations of any Loan
Party owing to one or more Lenders or their respective Affiliates; provided that, as of any
date of determination, such obligations shall constitute Reported Banking Services Obligations
solely to the extent that the Lender party thereto or its Affiliate (other than JPMCB) shall have
reported the amount of such outstanding obligations to the Administrative Agent as of the last day
of the previous fiscal quarter on or prior to the date that is 15 days following the end of such
fiscal quarter (or (x) prior to the date that is 15 days following the end of the first fiscal
quarter following the Effective Date, within 15 days of the Effective Date such Lender or Affiliate
shall have reported the amount of such outstanding obligations as of the Effective Date, and (y)
within 10 days of any request therefor by the Administrative Agent, such Lender or Affiliate shall
have reported the amount of such outstanding obligations as of any other date reasonably requested
by the Administrative Agent).
Reported Secured Swap Obligations means Secured Swap Obligations of any Loan Party
owing to one or more Lenders or their respective Affiliates; provided that, as of any date
of determination, such obligations shall constitute Reported Secured Swap Obligations solely to the
extent that as of any date of determination, such Lender party thereto or its Affiliate (other than
JPMCB) shall have reported the amount of such outstanding Swap Obligations to the Administrative
Agent as of the last day of the previous fiscal quarter on or prior to the date that is 15 days
following the end of such fiscal quarter (or (x) prior to the date that is 15 days following the
end of the first fiscal quarter following the Effective Date, within 15 days of the Effective Date
such Lender or Affiliate shall have reported the amount of such outstanding obligations as of the
Effective Date and (y) within 10 days of any request therefor by the Administrative Agent, such
Lender or Affiliate shall have reported the amount of such outstanding Swap Obligations as of any
other date reasonably requested by the Administrative Agent).
Reporting Date has the meaning assigned to such term in Section 5.19.
Required Facility B Lenders means, at any time, Lenders having Credit Exposure and
unused Commitments with respect to Facility B representing more than 50% of the sum of the total
Credit Exposure and unused Commitments with respect to Facility B at such time.
Required Lenders means, at any time, Lenders having Credit Exposure and unused
Commitments representing more than 50% of the sum of the total Credit Exposure and unused
Commitments at such time.
Requirement of Law means, as to any Person, the Certificate of Incorporation (or
Certificate of Amalgamation, as applicable) and By Laws or other organizational, constating or
governing documents of such Person (including, without limitation, any Memorandum and any
Articles), and any law, treaty, rule or regulation or determination of an arbitrator or a court or
59
other Governmental Authority, in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject.
Reserves means, individually and collectively, and without duplication, Customer
Credit Liability Reserves, Rent Reserves, Licensed Inventory Reserves, unpaid taxes and other
government reserves, the Environmental Reserve, reserves for accrued and unpaid interest on the
Secured Obligations (other than interest owing pursuant to the Synthetic Lease Documentation),
Dilution Reserves and any other reserves which the Administrative Agent deems necessary, in its
Permitted Discretion, to maintain (including, without limitation, Banking Services Reserves,
reserves for consignees, warehousemens and bailees charges (unless a Collateral Access Agreement
shall be in effect with respect to the subject property), reserves for Swap Obligations, reserves
for Acceptance Obligations, reserves in connection with RSB Accounts, reserves for shipping and
transportation costs, reserves for excise taxes, reserves for processor fees, the German Bankruptcy
Reserve, reserves for contingent liabilities of any Loan Party, reserves for uninsured losses of
any Loan Party, reserves for uninsured, underinsured, un-indemnified or under-indemnified
liabilities or potential liabilities with respect to any litigation and reserves for taxes, fees,
assessments, reserves for fees of collecting banks, reserves for the prescribed part of a UK Loan
Partys net property that would be made available for the satisfaction of its unsecured liabilities
pursuant to §176A of the Insolvency Act 1986, reserves with respect to liabilities of a UK Loan
Party which constitute preferential debts pursuant to §386 of the Insolvency Act 1986 and other
governmental charges and Prior Claims) with respect to the Collateral or any Loan Party.
Responsible Officer means the chief executive officer, president, vice president,
secretary, assistant secretary or chief financial officer of any Person, but in any event, with
respect to financial matters, the chief financial officer of such Person.
Restricted Payment means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Company or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Company or any option, warrant or
other right to acquire any such Equity Interests in the Company.
Retail Inventory means Inventory located at, or in transit to, any retail store.
Revolving Exposure means the sum of the Facility A Revolving Exposure plus
the Facility B Revolving Exposure.
Revolving Exposure Limitations has the meaning set forth in Section 2.01.
Revolving Loan means a Loan made pursuant to Section 2.01.
Rhode Island Property means the land, building and improvements located at One
Powder Hill Road, Lincoln, Rhode Island, together with all rights, easements and appurtenances
thereto, and all fixtures and equipment located thereon or used in connection therewith which as of
the Effective Date are subject to the Synthetic Lease and/or the related capital leases, as
applicable.
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Royalty Account means an Account of a Loan Party evidencing royalty payments owed to
such Loan Party in connection with the licensing of such Loan Partys trademarks.
RSB means RSB Retail+Service Bank GmbH, Kornwestheim, Germany.
RSB Account means an Account of the European Borrower evidencing payments owed to
the European Borrower from RSB pursuant to the Unitex Agreement.
S&P means Standard & Poors Ratings Services, a division of The McGraw Hill
Companies, Inc.
Schedule I Lender means any Lender named on Schedule I to the Bank Act (Canada).
Schedule I Reference Banks means Royal Bank of Canada and Bank of Montreal or any
bank named on Schedule I to the Bank Act (Canada) as otherwise agreed by the Administrative Agent
and the Borrower Representative.
Schedule II/III Reference Banks means JPMorgan Chase Bank, N.A., Toronto Branch, or
any two other banks named on Schedule II or Schedule III to the Bank Act (Canada) as otherwise
agreed by the Administrative Agent and the Borrower Representative.
Scheduled Bank Accounts has the meaning assigned to such term in Section 5.19.
Secured Obligations means all Obligations, together with all Synthetic Lease
Obligations, Banking Services Obligations, Acceptance Obligations and Secured Swap Obligations.
Secured Swap Obligations means Swap Obligations of any Loan Party owing to one or
more Lenders or their respective Affiliates; provided that at or prior to the time that any
transaction relating to such Swap Obligation is executed, the Lender party thereto or its Affiliate
(other than JPMCB) shall have delivered written notice to the Administrative Agent that such a
transaction has been entered into and that it constitutes a Secured Swap Obligation entitled to the
benefits of the Collateral Documents.
Security Agreement means, individually and collectively, any US Security Agreement,
any Canadian Security Agreement, any Quebec Security Documents, any European Security Agreement,
any Netherlands Security Agreement, any German Security Agreement and/or any UK Security Agreement.
Settlement has the meaning assigned to such term in Section 2.05(c).
Settlement Date has the meaning assigned to such term in Section 2.05(c).
Settlement Request Date has the meaning assigned to such term in Section 2.05(c).
Spanish Loan Party means any Loan Party organized under the laws of Spain.
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Spanish Security Agreements means (a) the public deed formalizing (elevando a
publico) the agreement of release of a pledge over a collection account and creation of a new
pledge over a collection account, granted on January 13, 2009 before the Notary Public of Madrid,
Mr. José Miguel Lombardía, by and among MEXX EUROPE B.V as Pledgor and JP MORGAN EUROPE LIMITED as
European Collateral Agent, acting in its own name and behalf and in the name and for the benefit of
the Secured Parties (as defined therein) and (b) the public deed formalizing (elevando a publico)
the agreement of release of a pledge over bank accounts and creation of a new pledge over bank
accounts, granted on January 13, 2009 before the Notary Public of Madrid, Mr. José Miguel
Lombardía, by and among MEXX SOUTHERN EUROPE, S.L as Pledgor and JP MORGAN EUROPE LIMITED as
European Collateral Agent, acting in its own name and behalf and in the name and for the benefit of
the Secured Parties (as defined therein).
Specified Cash Collections means cash collections of Affiliates of the European
Borrower representing proceeds from the sale by such Affiliate of Inventory acquired, directly or
indirectly, from the European Borrower, the payment for which is currently accounted for as an
intercompany receivable on the books of the European Borrower.
Specified Defaulting Lender means any Lender that is a Defaulting Lender pursuant to
clauses (a), (b), (d) or (e) of the definition thereof set forth herein.
Specified European Loan Parties means the European Loan Parties other than the UK
Loan Parties.
Specified German Guarantor has the meaning set forth in Section 10.10.
Specified Loan Documents means the US Reaffirmation Agreement, the Canadian
Reaffirmation Agreement, the Irish Debenture, the UK Security Agreements and each other agreement
set forth on Schedule 1.01(e).
Spot Selling Rate means, on any date, as determined by the Administrative Agent, the
spot selling rate posted by Reuters on its website for the sale of the applicable currency for
dollars at approximately 11:00 a.m., Local Time, two Business Days prior to such date (the
Applicable Quotation Date); provided that if, for any reason, no such spot rate
is being quoted, the spot selling rate shall be determined by reference to such publicly available
service for displaying exchange rates as my be selected by the Administrative Agent, or, in the
event no such service is selected, such spot selling rate shall instead be the rate determined by
the Administrative Agent as the spot rate of exchange in the market where its foreign currency
exchange operations in respect of the applicable currency are then being conducted, at or about
11.00 a.m. Local Time, on the Applicable Quotation Date for the purchase of the relevant currency
for delivery two Business Days later.
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to
62
as Eurocurrency Liabilities in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any reserve percentage.
Sterling and £ refers to the lawful currency of the United Kingdom.
Subordinated Indebtedness of a Person means any Indebtedness of such Person the
payment of which is subordinated to payment of the Secured Obligations to the written satisfaction
of the Administrative Agent.
subsidiary means (i) with respect to any Person (the parent) at any date,
any corporation, limited liability company, partnership, association or other entity the accounts
of which would be consolidated with those of the parent in the parents consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent and (ii) any subsidiary within the meaning of
§1159 of the UK Companies Act 2006 and any subsidiary undertaking within the meaning of §1162 of
the UK Companies Act 2006.
Subsidiary means any direct or indirect subsidiary of the Company or a Loan Party,
as applicable.
Supermajority Lenders means, at any time, Lenders having Credit Exposure and unused
Commitments representing at least 662/3% of the sum of the total Credit Exposure and
unused Commitments at such time.
Swap Agreements means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrowers or the Subsidiaries shall be
a Swap Agreement.
Swap Obligations of a Person means any and all obligations of such Person, whether
absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
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(a) any and all Swap Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Swap Agreement transaction.
Swedish Kronor refers to the lawful currency of Sweden.
Swedish Loan Party has the meaning assigned to such term in Section 10.01(m).
Swingline Exposure means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.
Swingline Lender means, individually and collectively, the US Swingline Lender, the
European Swingline Lender, the Canadian Swingline Lender and the UK Swingline Lender, as the
context may require.
Swingline Loan means, individually and collectively, each US Swingline Loan, each
European Swingline Loan, each Canadian Swingline Loan and each UK Swingline Loan, as the context
may require.
Swiss Federal Withholding Tax means the source withholding tax currently imposed at
a rate of 35% pursuant to the Federal Law of 13 October 1965 concerning the Withholding Tax
(Bundesgesetz vom 13. Oktober 1965 über die Verrechnungssteuer).
Swiss Loan Party has the meaning assigned to such term in Section 10.01(n)(i).
Syndication Agent means Bank of America, N.A., in its capacity as Syndication Agent.
Synthetic Lease Amendment means the Seventh Amendment to Master Agreement, dated the
date hereof, among the Company, Liz Claiborne Accessories, Inc. SunTrust Bank, as lessor, the
lenders party thereto and SunTrust Equity Funding, LLC, as agent.
Synthetic Lease Documentation means the 2006 Synthetic Lease and all other
Operative Documents (as such term is defined in Appendix A to the 2006 Synthetic Lease), in each
case as amended, supplemented or otherwise modified from time to time in accordance with the terms
hereof.
Synthetic Lease Obligations means all Obligations (as defined in Appendix A to the
2006 Synthetic Lease) and any other obligations of the Company or any of its Subsidiaries
outstanding pursuant to the Synthetic Lease Documentation.
Synthetic Lease Reserves means, at any time, the amount of the Synthetic Lease
Obligations outstanding at such time.
TARGET Day means any day on which (i) TARGET2 is open for settlement of payments in
Euro and (ii) banks are open for dealings in deposits in Euro in the London interbank market.
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TARGET2 means the Trans-European Automated Real-time Gross Settlement Express
Transfer payment system which utilizes a single shared platform and which was launched on November
19, 2007.
Taxes means any and all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other similar charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
Test Period means the most recent period of twelve consecutive fiscal months of the
Company ended on or prior to such time (taken as one accounting period) in respect of which
financial statements for each month, quarter or fiscal year in such period have been (or have been
required to be) delivered pursuant to Section 5.01(a), 5.01(b) or 5.01(c), as applicable.
Total Assets means, at any date, the amount that would, in conformity with GAAP, be
set forth opposite the caption total assets (or any like caption) on a consolidated balance sheet
of the Company and the Subsidiaries.
Trademark has the meaning set forth in the US Security Agreement.
Trademark Disposition Date has the meaning assigned to such term in Section 6.05(l).
Trademark Secured Debt shall have the meaning assigned to such term in Section
6.02(p)
Transactions means the execution, delivery and performance by the Loan Parties of
this Agreement and the other Loan Documents, the borrowing by the Borrowers of Loans and other
credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder
and the guarantees and grants of security interests provided herein and therein.
Transfer Date has the meaning assigned to such term in Section 5.18(b).
2006 Synthetic Lease means the Amended and Restated Master Lease Agreement, dated as
of November 21, 2006 (as amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof), between SunTrust Bank, as Lessor and the Company and Liz
Claiborne Accessories, Inc. as Lessees.
Type, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate, the Alternate Base Rate, the Canadian Prime Rate or the Overnight LIBO Rate, or
whether such Loan is a BA Drawing.
UCC means the Uniform Commercial Code as in effect from time to time in the State of
New York or any other state the laws of which are required to be applied in connection with the
issue of perfection of security interests.
UK Availability means (a) the lesser of (x) the UK Sublimit and (y) the sum of (i)
the UK Borrowing Base plus (ii) solely to the extent the total Revolving Exposure relating
to the UK Borrower exceeds the UK Borrowing Base, the US Availability (calculated without giving
effect
65
to any UK US Borrowing Base Utilization), minus (b) the total Revolving Exposure
relating to the UK Borrower.
UK Bank Account Charge means the bank account charge, dated as of the date hereof,
among Mexx Europe International, Mexx Holding International B.V. and the European Collateral Agent,
as the same may be amended, restated or otherwise modified from time to time.
UK Borrower means Juicy Couture Europe Limited.
UK Borrowing Base means, at any time, with respect to the UK Loan Parties, the sum
of:
(a) 100% of the aggregate cash balances denominated in dollars, Euros, Sterling or Yen
in depositary accounts of the UK Loan Parties constituting investment accounts that are held
at JPMorgan Chase Bank, N.A. or any Affiliate thereof approved by the Administrative Agent
and subject to an Account Control Agreement and upon which the European Collateral Agent has
a first priority perfected Lien for the benefit of the Agents, the applicable Lenders and
the applicable Issuing Banks, subject only to Liens permitted pursuant to Section 6.02(f),
plus
(b) the product of (i) 85% multiplied by (ii) the UK Loan Parties Eligible
Accounts at such time, minus the Dilution Reserve related to the UK Loan Parties,
plus
(c) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Retail Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the UK Loan Parties Eligible Retail Inventory (other than Eligible LC
Inventory), valued at the lower of cost (determined on a first-in-first-out basis) or market
value, at such time, plus
(d) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Wholesale Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the UK Loan Parties Eligible Wholesale Inventory (other than Eligible
LC Inventory), valued at the lower of cost (determined on a first-in-first-out basis) or
market value, at such time, plus
(e) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Retail Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the UK Loan Parties Eligible Retail LC Inventory, valued at the lower
of cost (determined on a first-in-first-out basis) or market value, at such time,
plus
(f) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Wholesale Inventory
identified in the most recent Inventory appraisal ordered by the Administrative Agent
multiplied by the UK Loan Parties Eligible Wholesale LC Inventory, valued at the
lower of cost (determined on a first-in-first-out basis) or market value, at such time,
minus
66
(g) without duplication, applicable Reserves established by the Administrative Agent in
its Permitted Discretion.
The Administrative Agent may, in its Permitted Discretion, adjust Reserves (subject to Section
9.02(b)) used in computing the Aggregate Borrowing Base and the UK Borrowing Base, with any such
changes to be effective two Business Days after delivery of notice thereof to the Borrower
Representative and the Lenders. The UK Borrowing Base at any time shall be determined by reference
to the most recent UK Borrowing Base Certificate delivered to the Administrative Agent pursuant to
Section 5.01(g) of this Agreement.
UK Borrowing Base Certificate means a certificate, signed and certified as accurate
and complete by a Financial Officer of the Borrower Representative, in substantially the form of
Exhibit B-5.
UK Debenture means, individually and collectively, the Juicy Debenture and the LCE
Debenture.
UK Group Member means any Subsidiary of the Company (including the UK Borrower)
organized under the laws of England and Wales.
UK Letter of Credit means any Letter of Credit or similar instrument (including a
bank guarantee) acceptable to the applicable Issuing Bank issued hereunder for the purpose of
providing credit support for the UK Borrower.
UK Loans means, individually and collectively, the UK Revolving Loans, the UK
Swingline Loans and the UK Protective Advances.
UK Loan Party means any Loan Party (including the UK Borrower) organized under the
laws of England and Wales; provided that for purposes of the definition of UK Borrowing
Base, UK Loan Parties shall not include Liz Claiborne Europe.
UK Protective Advance has the meaning assigned to such term in Section 2.04.
UK Revolving Loan means a Revolving Loan made to the UK Borrower.
UK Security Agreements means the UK Debentures, the UK Shares Charge, the UK Bank
Account Charge and any Collateral Document governed by English Law.
UK Shares Charge means the shares charge, dated as of the date hereof, between the
Company and the European Collateral Agent, as the same may be amended, restated or otherwise
modified from time to time.
UK Sublimit means $20,000,000, as such sublimit may be reduced or terminated in
accordance with Section 2.09.
UK Swingline Lender means J.P. Morgan Europe Limited, in its capacity as lender of
UK Swingline Loans hereunder, and its successors and assigns in such capacity.
67
UK Swingline Loan has the meaning assigned to such term in Section 2.05(a)(iv).
UK US Borrowing Base Utilization means the excess of (i) the total Revolving
Exposure relating to the UK Borrower minus (ii) the UK Borrowing Base.
United States and US means the United States of America.
Unitex Agreement means the central settlement agreement to be entered into between
unitex GmbH, RSB and the European Borrower, in form and substance reasonably acceptable to the
Administrative Agent, as the same may be amended or modified from time to time in a manner not
adverse to the Lenders.
Unitex Transaction means the entering into of the Unitex Agreement by the parties
thereto.
Unliquidated Obligations means, at any time, any Secured Obligations (or portion
thereof) that are contingent in nature or unliquidated at such time, including any Secured
Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under a letter
of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in
nature at such time; or (iii) an obligation to provide collateral to secure any of the foregoing
types of obligations.
Upstream- or Cross-stream Obligations has the meaning assigned to such term in
Section 10.01(n)(i).
US Availability means an amount equal to (i) the US Borrowing Base minus
(ii) the total Revolving Exposure relating to the Company minus (iii) the Canadian US
Borrowing Base Utilization minus (iv) the European US Borrowing Base Utilization
minus (v) the UK US Borrowing Base Utilization; but in no event greater than the total
Commitments minus the total Revolving Exposure.
US Borrowing Base means, at any time, with respect to the US Loan
Parties, the sum of:
(a) 100% of the aggregate cash balances denominated in dollars in depositary accounts
of the US Loan Parties constituting investment accounts that are held at JPMorgan Chase
Bank, N.A. or any Affiliate thereof approved by the Administrative Agent and subject to an
Account Control Agreement and upon which the US Collateral Agent has a first priority
perfected Lien for the benefit of the Agents, the Lenders and the Issuing Banks, subject
only to Liens permitted pursuant to Section 6.02(f), plus
(b) the sum of (i) the product of (A) 85% multiplied by (B) the US Loan
Parties Eligible Accounts at such time, minus the Dilution Reserve related to the
US Loan Parties and (ii) the product of (A) 90% multiplied by (B) the US Loan
Parties Eligible Credit Card Account Receivables at such time, plus
(c) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Retail Inventory
68
identified in the most recent inventory appraisal ordered by the Administrative Agent
multiplied by the US Loan Parties Eligible Retail Inventory (other than Eligible LC
Inventory), valued at the lower of cost (determined on a first-in-first-out basis) or market
value, at such time, plus
(d) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Wholesale Inventory
identified in the most recent inventory appraisal ordered by the Administrative Agent
multiplied by the US Loan Parties Eligible Wholesale Inventory (other than Eligible
LC Inventory), valued at the lower of cost (determined on a first-in-first-out basis) or
market value, at such time, plus
(e) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Retail Inventory
identified in the most recent inventory appraisal ordered by the Administrative Agent
multiplied by the US Loan Parties Eligible Retail LC Inventory, valued at the lower
of cost (determined on a first-in-first-out basis) or market value, at such time,
plus
(f) the product of 85% multiplied by the High Season or Low Season, as
applicable, Net Orderly Liquidation Value percentage in respect of Wholesale Inventory
identified in the most recent inventory appraisal ordered by the Administrative Agent
multiplied by the US Loan Parties Eligible Wholesale LC Inventory, valued at the
lower of cost (determined on a first-in-first-out basis) or market value, at such time,
plus
(g) the PP&E Component, plus
(h) prior to the Trademark Disposition Date, the Eligible Trademark Amount,
minus
(i) the Synthetic Lease Reserves, minus
(j) without duplication, applicable Reserves established by the Administrative Agent in
its Permitted Discretion.
The Administrative Agent may, in its Permitted Discretion, adjust Reserves (subject to Section
9.02(b)) used in computing the Aggregate Borrowing Base and the US Borrowing Base, with any such
changes to be effective two Business Days after delivery of notice thereof to the Borrower
Representative and the Lenders. The US Borrowing Base at any time shall be determined by reference
to the most recent US Borrowing Base Certificate delivered to the Administrative Agent pursuant to
Section 5.01(g) of this Agreement.
US Borrowing Base Certificate means a certificate, signed and certified as accurate
and complete by a Financial Officer of the Borrower Representative, in substantially the form of
Exhibit B-2.
US Collateral means the Collateral as defined in the US Security Agreement.
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US Collateral Agent means JPMCB, in its capacity as collateral agent and security
trustee for itself, the Administrative Agent, the Issuing Banks and the Lenders, and its successors
in such capacity.
US Fee Receiver means any Person that receives, or through a participating interest
participates in, any payments of fees from a US Person under Section 2.12 (other than commitment
fees).
US Letter of Credit means any letter of credit or similar instrument (including a
bank guarantee) acceptable to the applicable Issuing Bank issued in dollars for the purpose of
providing credit support for the Company.
US Loan Party means, individually and collectively, any Loan Party (including the
Company) organized under the laws of the United States.
US Pledged Note means any Pledged Note, as defined in the US Security Agreement.
US Pledged Stock means any Pledged Stock, as defined in the US Security Agreement
US Protective Advance means a Protective Advance made to or for the account of the
Company.
US Reaffirmation Agreement means the Reaffirmation Agreement and First Amendment,
dated as of the date hereof, among the Company, the other US Loan Parties, and the Administrative
Agent.
US Revolving Loan means a Revolving Loan made to the Company.
US Security Agreement means that certain US Pledge and Security Agreement, dated as
of January 12, 2009, between the US Loan Parties party thereto and the US Collateral Agent (for the
benefit of the Agents, the Lenders and the Issuing Banks), the US Reaffirmation Agreement and any
other pledge or security agreement entered into, after the date of this Agreement, by any US Loan
Party (as required by this Agreement or any other Loan Document for the purpose of creating a Lien
on the property of any Loan Party organized in the US (or any other property located therein)), or
any other Person, as the same may be amended, restated or otherwise modified from time to time.
US Swingline Lender means JPMCB, in its capacity as lender of US Swingline Loans
hereunder, and its successors and assigns in such capacity.
US Swingline Loan has the meaning assigned to such term in Section 2.05(a)(iv).
U.S. Tax Compliance Certificate has the meaning assigned to such term in Section
2.17(g)(iii).
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Utilized Excess US Availability means (a) the total Facility B Revolving Exposure
relating to the Canadian Borrower, the UK Borrower and the European Borrower minus (b) the sum of
(i) the lesser of (x) the Canadian Borrowing Base and (y) the total Facility B Revolving Exposure
relating to the Canadian Borrower, (ii) the lesser of (x) the European Borrowing Base and (y) the
total Facility B Revolving Exposure relating to the European Borrower and (iii) the lesser of (x)
the UK Borrowing Base and (y) the total Facility B Revolving Exposure relating to the UK Borrower;
provided that if (b) is greater than (a), the Utilized Excess US Availability shall be
deemed to be zero.
VAT means any tax imposed by EC Directive 2006/112/EC on the Common System of value
added tax and any national legislation implementing that directive, together with any legislation
supplemental thereto, and any other tax of a similar nature and all penalties, cost and interest
related thereto.
Vendor Rebates means, with respect to any Loan Party, credits earned from vendors
for volume purchases that reduce net inventory costs for such Loan Party.
Wholesale Inventory means Inventory located at, or in transit to, any warehouse.
wholly owned means, with respect to a Subsidiary of any Person, a Subsidiary of such
Person, all of the outstanding Equity Interests of which (other than (x) directors qualifying
shares and (y) shares issued to foreign nationals to the extent required by applicable law) are
owned by such Person and/or by one or more wholly owned Subsidiaries of such Person.
Withdrawal Liability means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
Withholding Agent has the meaning assigned to such term in Section 2.17(a).
Working Capital means, at any date, the excess of current assets of the Company and
its Subsidiaries on such date over current liabilities of the Company and its Subsidiaries on such
date, all determined on a consolidated basis in accordance with GAAP.
Yen and ¥ refer to the lawful currency of Japan.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Facility, (e.g., a Facility A Loan), Class (e.g., a
Revolving Loan) or by Type (e.g., a Eurocurrency Loan), by Facility and Class (e.g., a
Facility A Revolving Loan) or by Class and Type (e.g., a Eurocurrency Revolving Loan).
Borrowings also may be classified and referred to by Class (e.g., a Borrowing of Revolving Loans)
or by Type (e.g., a Eurocurrency Borrowing) or by Class and Type (e.g., a Eurocurrency Borrowing
of Revolving Loans).
SECTION 1.03 Terms Generally. (a) The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms. The words
include, includes and including shall be deemed to be followed by the phrase without
71
limitation. The word will shall be construed to have the same meaning and effect as the
word shall. Unless the context requires otherwise (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications set forth herein),
(ii) any reference herein to any Person shall be construed to include such Persons successors and
assigns, (iii) the words herein, hereof and hereunder, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(iv) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to
refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (v) the words
asset and property shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.
(b) In this Agreement, where it relates to a Netherlands Loan Party, a reference to:
(i) a necessary action to authorize, where applicable, includes without
limitation:
(A) any action required to comply with the Works Councils Act of the
Netherlands (Wet op de ondernemingsraden); and
(B) obtaining an unconditional positive advice (advies) from the
competent works council(s);
(C) gross negligence includes grove schuld;
(D) negligence includes schuld;
(ii) a security interest includes any mortgage (hypotheek), pledge (pandrecht),
retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right
of retention (recht van retentie), right to reclaim goods (recht van reclame), and,
in general, any right in rem (beperkte recht), created for the purpose of granting
security (goederenrechtelijk zekerheidsrecht);
(iii) willful misconduct includes opzet;
(iv) a winding-up, administration or dissolution (and any of those terms)
includes a Netherlands entity being declared bankrupt (failliet verklaard) or
dissolved (ontbonden);
(v) a moratorium includes surséance van betaling and granted a moratorium
includes surséance verleend;
(vi) any step or procedure taken in connection with insolvency proceedings
includes a Netherlands entity having filed a notice under section 36 of the Dutch
Tax Collection Act (Invorderingswet 1990);
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(vii) an administrative receiver includes a curator;
(viii) an administrator includes a bewindvoerder; and
(ix) an attachment includes a beslag.
(c) In this Agreement, where it relates to a German Loan Party, a reference to:
(i) a necessary action to authorize, where applicable, includes without
limitation, obtaining an unconditional positive advice from the competent works
council(s);
(ii) gross negligence includes grobe Fahrlässigkeit;
(iii) negligence includes Fahrlässigkeit;
(iv) a security interest includes any mortgage (Grundschuld, Hypothek), pledge
(Pfandrecht), retention of title arrangement (Eigentumsvorbehalt), right of
retention (Zurückbehaltungsrecht), right to reclaim goods (Herausgabeansprüche),
and, in general, any right in rem created for the purpose of granting security;
(v) a winding-up, administration or dissolution (and any of those terms)
includes a German entity being declared bankrupt (insolvent) or dissolved
(ausfgelöst);
(vi) any step or procedure taken in connection with insolvency proceedings
includes a German entity having applied for bankruptcy (Insolvenzantrag) or the
opening of bankruptcy proceedings (Insolvenzeröffnung); and
(vii) an administrator includes an Insolvenzverwalter or Sachverständiger.
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower Representative notifies the
Administrative Agent that the Borrowers request an amendment to any provision hereof to eliminate
the effect of any change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the Borrower
Representative that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such change in GAAP or in
the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect
and applied immediately before such change shall have become effective until such notice shall
have been withdrawn or such provision amended in accordance herewith. In the event that historical
accounting practices, systems or reserves relating to the components of the Aggregate Borrowing
Base or the Borrowing Base of any Borrower are modified in a manner that is adverse to the Lenders
in any material respect, the Borrowers will agree to maintain such additional
73
reserves (for purposes of computing the Aggregate Borrowing Base and the Borrowing Base of
each Borrower) in respect to the components of the Aggregate Borrowing Base and the Borrowing Base
of each Borrower and make such other adjustments (which may include maintaining additional
reserves, modifying the advance rates or modifying the eligibility criteria for the components of
the Aggregate Borrowing Base and the Borrowing Base of each Borrower).
SECTION 1.05 Currency Translations. (a) For purposes of this Agreement and the other
Loan Documents, where the permissibility of a transaction or determinations of required actions or
circumstances depend upon compliance with, or are determined by reference to, amounts stated in
dollars, such amounts shall be deemed to refer to dollars or Dollar Equivalents and any requisite
currency translation shall be based on the Spot Selling Rate and the permissibility of actions
taken under Article VI shall not be affected by subsequent fluctuations in exchange rates
(provided that if Indebtedness is incurred to refinance, replace or renew other
Indebtedness, and such refinancing or renewal would cause the applicable dollar denominated
limitation to be exceeded if calculated at the Spot Selling Rate, such dollar denominated
restriction shall be deemed not to have been exceeded so long as (i) such refinancing, replacement
or renewal Indebtedness is denominated in the same currency as such Indebtedness being refinanced,
replaced or renewed and (ii) the principal amount of such refinancing or renewal Indebtedness does
not exceed the principal amount of such Indebtedness being refinanced or renewed except as
permitted under Section 6.01).
(b) For purposes of all calculations and determinations under this Agreement, any amount in
any currency other than dollars shall be deemed to refer to dollars or Dollar Equivalents and any
requisite currency translation shall be based on the Spot Selling Rate, and all certificates
delivered under this Agreement, shall express such calculations or determinations in dollars or
Dollar Equivalents.
(c) The Administrative Agent shall determine the Dollar Equivalent of (x) the Credit Exposure
based on the Spot Selling Rate (i) as of the end of each fiscal quarter of the Company, (ii) on or
about the date of the related notice requesting any extension of credit hereunder and (iii) on any
other date, in its reasonable discretion and (y) any other amount to be converted into Dollars in
accordance with the provisions hereof at the time of such conversion.
ARTICLE II
The Credits
SECTION 2.01 Commitments. Subject to the terms and conditions set forth herein, (a)
each Facility A Lender agrees to make Revolving Loans (the Facility A Revolving Loans)
from time to time during the Availability Period to the Company in dollars and (b) each Facility B
Lender agrees to make Revolving Loans (including, with respect to the Canadian Borrower, by way of
BA Drawings in accordance with Section 2.21) (the Facility B Revolving Loans) from time
to time during the Availability Period to (w) the Company in dollars, Canadian dollars, Euros,
Sterling and Yen, (x) the Canadian Borrower in dollars and Canadian dollars, (y) the European
Borrower in dollars, Euros and Sterling and (z) the UK Borrower in dollars, Euros and Sterling, if,
in each case after giving effect thereto:
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(i) the Facility A Credit Exposure or Facility B Credit Exposure of any Lender
would not exceed such Lenders Facility A Commitment or Facility B Commitment, as
the case may be;
(ii) the total Facility A Credit Exposure would not exceed the aggregate amount
of the Facility A Commitments;
(iii) the total Facility B Credit Exposure would not exceed the aggregate
amount of the Facility B Commitments;
(iv) Canadian Availability shall not be less than zero;
(v) European Availability shall not be less than zero;
(vi) US Availability shall not be less than zero;
(vii) UK Availability shall not be less than zero;
(viii) the total Facility B Revolving Exposure relating to the European
Borrower would not exceed the European Sublimit;
(ix) the total Facility B Revolving Exposure relating to the Canadian Borrower
would not exceed the Canadian Sublimit;
(x) the total Facility B Revolving Exposure relating to the UK Borrower would
not exceed the UK Sublimit; and
(xi) the total Revolving Exposure relating to the Company denominated in
Canadian dollars, Euros, Sterling and Yen shall not exceed the Dollar Equivalent of
$50,000,000.
subject, in the case of each of clauses (iv), (v), (vi) and (vii) above, to the
Administrative Agents, European Administrative Agents or Canadian Administrative Agents
authority, as applicable, in their sole discretion, to make Protective Advances pursuant to
the terms of Section 2.04 (the limitations in the foregoing clauses (i) through (xi), the
Revolving Exposure Limitations). Within the foregoing limits and subject to the
terms and conditions set forth herein, each Borrower may borrow, prepay and reborrow its
Revolving Loans. For the avoidance of doubt, so long as the Revolving Exposure Limitations
shall have been met, subject to the terms and conditions set forth herein, the entire amount
of the Commitments under each of Facility A and Facility B shall be available to the Company
in dollars.
SECTION 2.02 Loans and Borrowings. (a) Each Loan (other than a Swingline Loan) shall
be made as part of a Borrowing consisting of Loans of the same Facility, Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the applicable Facility and
Class. Each Protective Advance and Swingline Loan shall be made in accordance with the procedures
set forth in Sections 2.04 and 2.05, respectively.
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(b) Subject to Section 2.14 and Section 2.21, (i) each Borrowing of Facility A
Revolving Loans shall be comprised entirely of ABR Loans or Eurocurrency Loans as the
Company may request in accordance herewith, (ii) each Facility B Borrowing of US Revolving
Loans shall be comprised entirely of Eurocurrency Loans, (iii) each Borrowing of Canadian
Revolving Loans denominated in Canadian Dollars shall be comprised entirely of Canadian
Prime Rate Loans or, pursuant to Section 2.21, BA Drawings, (iv) each Borrowing of Canadian
Revolving Loans in dollars shall be comprised entirely of ABR Loans or Eurocurrency Loans as
the Canadian Borrower may request in accordance herewith, (v) each Borrowing of European
Revolving Loans shall be comprised entirely of Eurocurrency Loans and (vi) each Borrowing of
UK Revolving Loans shall be comprised entirely of Eurocurrency Loans. Each Facility A
Swingline Loan and each Canadian Swingline Loan denominated in dollars shall be an ABR Loan,
each Canadian Swingline Loan denominated in Canadian Dollars shall be a Canadian Prime Rate
Loan, and each Facility B Swingline Loan other than a Canadian Swingline Loan shall be an
Overnight LIBO Loan. Each Lender may make any Eurocurrency Loan to any Borrower by causing,
at its option, any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Lenders to make Loans in accordance with the terms hereof or Borrowers to repay any such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurocurrency Borrowing of
Revolving Loans, such Borrowing shall be in an aggregate amount that is an integral multiple
of $1,000,000 (or in the case of any currency other than dollars, an approximate equivalent
thereof as determined by the Administrative Agent, European Administrative Agent or Canadian
Administrative Agent, as applicable) and not less than $5,000,000 (or in the case of any
currency other than dollars, an approximate equivalent thereof as determined by the
Administrative Agent, European Administrative Agent or Canadian Administrative Agent, as
applicable). ABR Borrowings of Revolving Loans and Canadian Prime Rate Borrowings of
Revolving Loans may be in any amount. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more than
a total of (i) 8 Eurocurrency Borrowings outstanding under Facility A, (ii) 6 Eurocurrency
Borrowings of the European Borrower, (iii) 3 Eurocurrency Borrowings of the Canadian
Borrower, (iv) 3 Eurocurrency Borrowings of the UK Borrower or (v) 6 Eurocurrency Borrowings
of the Company that are Facility B Borrowings.
(d) At the commencement of each Contract Period for any BA Drawing of Revolving Loans,
such Borrowing shall be in an aggregate face amount that is an integral multiple of
C$1,000,000 and not less than C$5,000,000; provided that there shall not at any time
be more than a total of 5 BA Drawings outstanding.
(e) Notwithstanding any other provision of this Agreement, neither the Borrower
Representative nor any Borrower shall be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
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(f) Each Facility A Loan shall be made in dollars, each Facility B Loan to the Company
shall be made in dollars, Euros, Canadian Dollars, Sterling or Yen, each Facility B Loan to
the Canadian Borrower shall be made in dollars or Canadian Dollars and each Facility B Loan
to the European Borrower or the UK Borrower shall be made in dollars, Euros or Sterling.
SECTION 2.03 Requests for Borrowing of Revolving Loans. Subject to Section 2.21, to
request a Borrowing of Revolving Loans, the Borrower Representative (or the applicable Borrower)
shall notify (i) the Administrative Agent, in the case of a requested Borrowing of Facility A
Revolving Loans, (ii) the European Administrative Agent, in the case of any request for Facility B
Revolving Loans other than Canadian Revolving Loans and (iii) the Canadian Administrative Agent, in
the case of any request for Canadian Revolving Loans, in each case either in writing with, in the
case of clauses (ii) and (iii) above, a copy to the Administrative Agent (delivered, in the case of
any notice to the European Administrative Agent, by facsimile or, in the case of any notice to the
Administrative Agent or the Canadian Administrative Agent, by hand delivery, facsimile or .pdf
transmission) in a form approved by the Administrative Agent, the European Administrative Agent
and/or the Canadian Administrative Agent, as applicable, and signed by the Borrower Representative
(or the applicable Borrower) or by telephone as follows:
(a) in the case of an ABR Borrowing by the Company, not later than 12:00 p.m., Local
Time (or in case of any such Borrowing, the proceeds of which are to be applied to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.06(e), not later than
9:00 a.m., Local Time) on the date of the proposed Borrowing,
(b) in the case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of the proposed Borrowing,
(c) in the case of a BA Drawing, 12:00 p.m., Local Time, three Business Days before the
date of the proposed Borrowing, and
(d) in the case of a Canadian Prime Rate Borrowing or an ABR Borrowing by the Canadian
Borrower, not later than 12:00 p.m., Local Time two Business Days before the date of the
proposed Borrowing;
Each telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by facsimile
(in the case of any request delivered to the European Administrative Agent) or by hand delivery,
facsimile or .pdf transmission (in the case of any request delivered to the Administrative Agent or
the Canadian Administrative Agent), with a copy (in the case of any request delivered to the
European Administrative Agent or Canadian Administrative Agent) delivered to the Administrative
Agent, of a written Borrowing Request in a form approved by the Administrative Agent, the European
Administrative Agent and/or the Canadian Administrative Agent, as applicable, and signed by the
Borrower Representative (or the Borrower making such request). Each such telephonic and written
Borrowing Request shall specify the following information in compliance with Section 2.01:
(i) the name of the applicable Borrower;
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(ii) the aggregate amount of the requested Borrowing and a breakdown of the
separate wires comprising such Borrowing;
(iii) the Facility under which such Borrowing shall be made;
(iv) the date of such Borrowing, which shall be a Business Day;
(v) in the case of a Borrowing requested on behalf of a Facility B Borrower,
the currency of the requested Borrowing;
(vi) whether such Borrowing is to be an ABR Borrowing, a Canadian Prime Rate
Borrowing, a BA Drawing or a Eurocurrency Borrowing; and
(vii) in the case of a Eurocurrency Borrowing, the initial Interest Period to
be applicable thereto, which shall be a period contemplated by the definition of the
term Interest Period and in the case of a BA Drawing, the initial Contract Period
to be applicable thereto, which shall be a period contemplated by the definition of
the term Contract Period.
If no election as to the Type of Borrowing of Revolving Loans is specified, then (A) a Borrowing of
Facility A Revolving Loans or Canadian Revolving Loans requested in dollars shall be an ABR
Borrowing, (B) a Borrowing of Canadian Revolving Loans requested in Canadian Dollars shall be a
Canadian Prime Rate Borrowing and (C) a Borrowing of Facility B Revolving Loans other than Canadian
Revolving Loans shall be a Eurocurrency Borrowing with an Interest Period of one month. If no
Interest Period is specified with respect to any requested Eurocurrency Borrowing of Revolving
Loans, then the applicable Borrower shall be deemed to have selected an Interest Period of one
months duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent, the Canadian Administrative Agent or the European Administrative
Agent, as applicable, shall advise each Lender of the details thereof and of the amount of such
Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04 Protective Advances. (a) Subject to the limitations set forth below, the
Administrative Agent, the European Administrative Agent or the Canadian Administrative Agent, as
applicable, is authorized by the Borrowers and the Lenders, from time to time in the Administrative
Agents, the European Administrative Agents or the Canadian Administrative Agents, as the case
may be, sole discretion (but, in each case, shall have absolutely no obligation to), to make (i) in
the case of the Administrative Agent, Loans to the Company in dollars on behalf of the Facility A
Lenders (each such Loan, a Facility A Protective Advance), (ii) in the case of the
European Administrative Agent, Loans to the Company in dollars, Euros, Sterling, Yen or Canadian
dollars on behalf of the Facility B Lenders (each such Loan, a Facility B US Protective
Advance), (iii) in the case of the European Administrative Agent, Loans to the European
Borrower in dollars, Sterling or Euros on behalf of the Facility B Lenders (each such Loan, a
European Protective Advance), (iv) in the case of the Canadian Administrative Agent,
Loans to the Canadian Borrower in Canadian Dollars or dollars on behalf of the Facility B Lenders
(each such Loan, a Canadian Protective Advance), and/or (v) in the case of the European
Administrative Agent, Loans to the UK Borrower in dollars, Euros or Sterling on behalf of the
Facility B Lenders (each such Loan, a UK Protective Advance),
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which the Administrative Agent, European Administrative Agent or Canadian Administrative
Agent, as applicable, in its Permitted Discretion, deems necessary or desirable (i) to preserve or
protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the
amount of, repayment of the Loans and other Obligations or (iii) to pay any other amount chargeable
to or required to be paid by the applicable Borrower pursuant to the terms of this Agreement,
including payments of reimbursable expenses (including costs, fees, and expenses as described in
Section 9.03) and other sums payable under the Loan Documents (any of such Loans are herein
referred to as Protective Advances); provided that no Protective Advance may
remain outstanding for more than 45 days; provided further that the aggregate
amount of (A) Facility A Protective Advances outstanding at any time shall not (x) exceed
$5,000,000 or (y) when added to the total Facility A Revolving Exposure, exceed the aggregate
amount of the Facility A Commitments, (B) Canadian Protective Advances outstanding at any time
shall not (x) exceed $2,500,000, (y) when added to the total Facility B Revolving Exposure relating
to the Canadian Borrower, exceed the Canadian Sublimit or (z) when added to the sum of the total
Facility B Revolving Exposure, the European Protective Advances, the UK Protective Advances and the
Facility B US Protective Advances, exceed the aggregate amount of the Facility B Commitments, (C)
European Protective Advances outstanding at any time shall not (x) exceed $7,500,000, (y) when
added to the total Facility B Revolving Exposure relating to the European Borrower, exceed the
European Sublimit or (z) when added to the sum of the total Facility B Revolving Exposure, the
Canadian Protective Advances, the UK Protective Advances and the Facility B US Protective Advances,
exceed the aggregate amount of the Facility B Commitments, (D) UK Protective Advances outstanding
at any time shall not (x) exceed $5,000,000, (y) when added to the total Facility B Revolving
Exposure relating to the UK Borrower, exceed the UK Sublimit or (z) when added to the sum of the
total Facility B Revolving Exposure, the Canadian Protective Advances, the European Protective
Advances and the Facility B US Protective Advances, exceed the aggregate amount of the Facility B
Commitments, and (E) Facility B US Protective Advances outstanding at any time shall not (x) exceed
$5,000,000 or (y) when added to the sum of the total Facility B Revolving Exposure, the European
Protective Advances, the UK Protective Advances and the Canadian Protective Advances, exceed the
aggregate amount of the Facility B Commitments. Protective Advances may be made even if the
conditions precedent set forth in Section 4.02 have not been satisfied. The Protective Advances
shall be secured by the Liens in favor of each applicable Collateral Agent (for the benefit of the
Agents, the applicable Lenders and the applicable Issuing Banks) in and to the Collateral and shall
constitute Obligations hereunder. All Facility A Protective Advances and Canadian Protective
Advances denominated in dollars shall be ABR Borrowings, all Canadian Protective Advances
denominated in Canadian Dollars shall be Canadian Prime Rate Borrowings and all Facility B
Protective Advances denominated in dollars, Euros, Sterling or Yen and all US Protective Advances
denominated in Canadian Dollars shall be Overnight LIBO Borrowings. The Administrative Agents,
European Administrative Agents and/or Canadian Administrative Agents, as the case may be,
authorization to make Protective Advances may be revoked at any time by the Required Lenders. Any
such revocation must be in writing and shall become effective prospectively upon the Administrative
Agents, European Administrative Agents or Canadian Administrative Agents (as applicable) receipt
thereof. At any time that there is sufficient Aggregate Availability and the conditions precedent
set forth in Section 4.02 have been satisfied, the Administrative Agent, European Administrative
Agent, or Canadian Administrative Agent, as applicable, may request the Lenders to make a Revolving
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Loan, in the currency in which the applicable Protective Advance was denominated, to repay a
Protective Advance. At any other time the Administrative Agent, European Administrative Agent or
Canadian Administrative Agent (as applicable) may require the Lenders to fund, in the currency in
which the applicable Protective Advance was denominated, their risk participations described in
Section 2.04(b). It is agreed that the Administrative Agent, the European Administrative Agent or
the Canadian Administrative Agent, as applicable, shall endeavor, but without any obligation, to
notify the Borrower Representative promptly after the making of any Protective Advance.
(b) Upon the making of a Protective Advance (whether before or after the occurrence of a
Default) by the Administrative Agent, the European Administrative Agent or the Canadian
Administrative Agent, as applicable, in accordance with the terms hereof, each Facility A Lender or
Facility B Lender, as applicable, shall be deemed, without further action by any party hereto, to
have unconditionally and irrevocably purchased from the Administrative Agent, the European
Administrative Agent or the Canadian Administrative Agent, as applicable, without recourse or
warranty, an undivided interest and participation in such Facility A Protective Advance or Facility
B Protective Advance, as applicable, in proportion to its Applicable Percentage. From and after
the date, if any, on which any Lender is required to fund (and has funded) its participation in any
Protective Advance purchased hereunder, the Administrative Agent, the European Administrative Agent
or the Canadian Administrative Agent, as applicable, shall promptly distribute to such Lender, such
Lenders Applicable Percentage of all payments of principal and interest and all proceeds of
Collateral received by the Administrative Agent, European Administrative Agent or Canadian
Administrative Agent, as applicable, in respect of such Protective Advance.
SECTION 2.05 Swingline Loans. (a) The Swingline Loans.
(i) The Administrative Agent, the US Swingline Lender and the Facility A
Lenders agree that in order to facilitate the administration of this Agreement and
the other Loan Documents, promptly after the Borrower Representative delivers a
Borrowing Request to the Administrative Agent and the US Swingline Lender requesting
an ABR Borrowing under Facility A on behalf of the Company to be made pursuant to
this Section 2.05(a)(i), and provided that such ABR Borrowing request is
received by the Administrative Agent and the US Swingline Lender not later than
11:00 a.m., New York time, the US Swingline Lender may elect to have the terms of
this Section 2.05(a)(i) apply to such Borrowing Request by advancing, on behalf of
the Facility A Lenders and in the amount so requested, same day funds to the Company
on the date such request is received to the Funding Account(s) (each such Loan, a
Facility A Swingline Loan), with settlement among them as to the Facility
A Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c).
Each Facility A Swingline Loan shall be subject to all the terms and conditions
applicable to other ABR Loans funded by the Facility A Lenders, except that all
payments thereon shall be payable to the US Swingline Lender solely for its own
account. In addition, no Facility A Swingline Loan shall be made if, after giving
effect thereto:
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(A) the Borrowers would not be in compliance with the Revolving
Exposure Limitations; or
(B) the aggregate principal amount of the outstanding Facility A
Swingline Loans would exceed the Facility A Swingline Sublimit.
(ii) The European Administrative Agent, the European Swingline Lender and the
Facility B Lenders agree that in order to facilitate the administration of this
Agreement and the other Loan Documents, promptly after the Borrower Representative
delivers a Borrowing Request to the European Administrative Agent (with a copy to
the Administrative Agent) requesting a Eurocurrency Borrowing under Facility B on
behalf of the Company to be made pursuant to this Section 2.05(a)(ii), and
provided that such Eurocurrency Borrowing request is received by the
European Administrative Agent not later than 10 a.m., London time, the European
Swingline Lender may elect to have the terms of this Section 2.05(a)(ii) apply to
such Borrowing Request by advancing, on behalf of the Facility B Lenders and in the
amount so requested, same day funds to the Company on the date (A) such request is
received, in the case of any such Borrowing denominated in dollars, Canadian
Dollars, Euros or Sterling or (B) that is one Business Day after the date such
request is received, in the case of any such Borrowing denominated in Yen, to the
Funding Account(s) (each such Loan, a Facility B US Swingline Loan), with
settlement among them as to the Facility B US Swingline Loans to take place on a
periodic basis as set forth in Section 2.05(c). Each Facility B US Swingline Loan
shall be subject to all the terms and conditions applicable to other Revolving Loans
funded by the Facility B Lenders, except that (i) such Facility B US Swingline Loan
shall accrue interest at a rate determined by reference to the Overnight LIBO Rate
and (ii) all payments thereon shall be payable to the European Swingline Lender
solely for its own account. In addition, no Facility B US Swingline Loan shall be
made if, after giving effect thereto:
(A) the Borrowers would not be in compliance with the Revolving
Exposure Limitations;
(B) the aggregate principal amount of the outstanding Facility B
Swingline Loans would exceed the Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the outstanding Facility B US
Swingline Loans would exceed $15,000,000.
(iii) The European Administrative Agent, the European Swingline Lender and the
Facility B Lenders agree that in order to facilitate the administration of this
Agreement and the other Loan Documents, promptly after the Borrower Representative
delivers a Borrowing Request to the European Administrative Agent (with a copy to
the Administrative Agent) requesting a Eurocurrency Borrowing on behalf of the
European Borrower to be made pursuant to this Section 2.05(a)(iii) (or the European
Borrower delivers such
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Borrowing Request), and provided that such Eurocurrency Borrowing
request is received by the European Administrative Agent not later than 10:00 a.m.,
London time, the European Swingline Lender may elect to have the terms of this
Section 2.05(a)(iii) apply to such Borrowing Request by advancing, on behalf of the
Facility B Lenders and in the amount so requested, same day funds to the European
Borrower on the date such Borrowing Request is received to the Funding Account(s)
(each such Loan, a European Swingline Loan), with settlement among them as
to the European Swingline Loans to take place on a periodic basis as set forth in
Section 2.05(c). Each European Swingline Loan shall be subject to all the terms and
conditions applicable to other European Revolving Loans funded by the Facility B
Lenders, except that (i) such European Swingline Loan shall accrue interest at a
rate determined by reference to the Overnight LIBO Rate and (ii) all payments
thereon shall be payable to the European Swingline Lender solely for its own
account. In addition, no European Swingline Loan shall be made if, after giving
effect thereto:
(A) the Borrowers would not be in compliance with the Revolving
Exposure Limitations;
(B) the aggregate principal amount of the outstanding Facility B
Swingline Loans would exceed the Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the outstanding European
Swingline Loans would exceed $15,000,000.
(iv) The European Administrative Agent, the UK Swingline Lender and the
Facility B Lenders agree that in order to facilitate the administration of this
Agreement and the other Loan Documents, promptly after the Borrower Representative
delivers a Borrowing Request to the European Administrative Agent (with a copy to
the Administrative Agent) requesting a Eurocurrency Borrowing on behalf of the UK
Borrower to be made pursuant to this Section 2.05(a)(iv) (or the UK Borrower
delivers such Borrowing Request), and provided that such Eurocurrency
Borrowing request is received by the European Administrative Agent not later than
10:00 a.m., London time, the UK Swingline Lender may elect to have the terms of this
Section 2.05(a)(iv) apply to such Borrowing Request by advancing, on behalf of the
Facility B Lenders and in the amount so requested, same day funds to the UK Borrower
on the date such Borrowing Request is received to the Funding Account(s) (each such
Loan, a UK Swingline Loan), with settlement among them as to the UK
Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c).
Each UK Swingline Loan shall be subject to all the terms and conditions applicable
to other UK Revolving Loans funded by the Facility B Lenders, except that (i) such
UK Swingline Loan shall accrue interest at a rate determined by reference to the
Overnight LIBO Rate and (ii) all payments thereon shall be payable to the UK
Swingline Lender solely for its own account. In addition, no UK Swingline Loan
shall be made if, after giving effect thereto:
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(A) the Borrowers would not be in compliance with the Revolving
Exposure Limitations;
(B) the aggregate principal amount of the outstanding Facility B
Swingline Loans would exceed the Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the outstanding UK Swingline
Loans would exceed $5,000,000.
(v) The Canadian Administrative Agent, the Canadian Swingline Lender and the
Facility B Lenders agree that in order to facilitate the administration of this
Agreement and the other Loan Documents, promptly after the Borrower Representative
delivers a Borrowing Request to the Canadian Administrative Agent and the Canadian
Swingline Lender (with a copy to the Administrative Agent) requesting a Canadian
Prime Rate Borrowing or an ABR Borrowing on behalf of the Canadian Borrower (or the
Canadian Borrower requests such Borrowing) to be made pursuant to this Section
2.05(a)(v), and provided that such Canadian Prime Rate Borrowing request or
ABR Borrowing request, as applicable, is received by the Canadian Administrative
Agent and the Canadian Swingline Lender not later than 11 a.m., Local Time, the
Canadian Swingline Lender may elect to have the terms of this Section 2.05(a)(v)
apply to such Borrowing Request by advancing, on behalf of the Facility B Lenders
and in the amount so requested, same day funds to the Canadian Borrower on the date
such Borrowing Request is received to the Funding Account(s) (each such Loan, a
Canadian Swingline Loan), with settlement among them as to the Canadian
Swingline Loans to take place on a periodic basis as set forth in Section 2.05(c).
Each Canadian Swingline Loan shall be subject to all the terms and conditions
applicable to other Loans funded by the Facility B Lenders that are Canadian Prime
Rate Loans or Canadian Loans that are ABR Loans, as applicable, except that all
payments thereon shall be payable to the Canadian Swingline Lender solely for its
own account. In addition, no Canadian Swingline Loan shall be made if, after giving
effect thereto:
(A) the Borrowers would not be in compliance with the Revolving
Exposure Limitations;
(B) the aggregate principal amount of the outstanding Facility B
Swingline Loans would exceed the Facility B Swingline Sublimit; or
(C) the aggregate principal amount of the outstanding Canadian
Swingline Loans would exceed $5,000,000.
(b) Lender Participations. Upon the making of a Facility A Swingline Loan or a
Facility B Swingline Loan (whether before or after the occurrence of a Default and
regardless of whether a Settlement has been requested with respect to such Swingline Loan),
each Facility A Lender or Facility B Lender, as applicable, shall be deemed, without further
action by any party hereto, to have unconditionally and irrevocably
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purchased from the applicable Swingline Lender, the Administrative Agent, the European
Administrative Agent or the Canadian Administrative Agent, as the case may be, without
recourse or warranty, an undivided interest and participation in such Swingline Loan in
proportion to its Applicable Percentage of the Facility A Commitments or Facility B
Commitments, as applicable. The applicable Swingline Lender, the Administrative Agent, the
Canadian Administrative Agent or the European Administrative Agent may, at any time, require
the applicable Lenders to fund, in the currency in which the applicable Swingline Loan was
denominated, their participations. From and after the date, if any, on which any Lender is
required to fund (and has funded) its participation in any Swingline Loan purchased
hereunder, the Administrative Agent, the Canadian Administrative Agent or the European
Administrative Agent, as applicable, shall promptly distribute to such Lender, such Lenders
Applicable Percentage of all payments of principal and interest and all proceeds of
Collateral received by such Agent in respect of such Loan.
(c) Swingline Settlements. Each of the Administrative Agent, the Canadian
Administrative Agent and the European Administrative Agent, on behalf of the US Swingline
Lender, the European Swingline Lender, the UK Swingline Lender or the Canadian Swingline
Lender, as applicable, shall request settlement (a Settlement) with the Facility A
Lenders or Facility B Lenders, as applicable, on at least a weekly basis or on any earlier
date that the Administrative Agent elects, by notifying the applicable Lenders of such
requested Settlement by facsimile or e-mail no later than 11:00 a.m. Local Time (i) on the
date of such requested Settlement (the Settlement Date) with regard to US
Swingline Loans, (ii) two Business Days prior to the Settlement Date with regard to Canadian
Swingline Loans (or on the date of such requested Settlement, if a Default or an Event of
Default has occurred and is continuing) and (iii) two Business Days prior to the Settlement
Date with regard to European Swingline Loans and UK Swingline Loans (or on the date of such
requested Settlement, if a Default or an Event of Default has occurred and is continuing)
(the date of any request made pursuant to clauses (i), (ii) or (iii) above, a
Settlement Request Date). Each Facility A Lender or Facility B Lender, as
applicable (other than the Swingline Lenders, in the case of the Swingline Loans) shall
transfer, in the currency in which the applicable Loan was denominated, the amount of such
Lenders Applicable Percentage of the outstanding principal amount of the applicable Loan
with respect to which Settlement is requested to the Administrative Agent, the Canadian
Administrative Agent or the European Administrative Agent, as applicable, to an account of
such Agent as such Agent may designate, not later than 2:00 p.m., Local Time, on such
Settlement Date. Settlements may occur during the existence of a Default and whether or not
the applicable conditions precedent set forth in Section 4.02 have then been satisfied.
Such amounts transferred to the applicable Agent shall be applied against the amounts of the
applicable Swingline Lenders Swingline Loans and, together with such Swingline Lenders
Applicable Percentage of such Swingline Loan, shall (so long as no Event of Default pursuant
to clause (h) or (i) of Article VII shall have occurred and be continuing) constitute
Revolving Loans of such applicable Lenders (and shall no longer constitute Swingline Loans).
Any such amounts comprising Revolving Loans and transferred to the applicable Agent to be
applied against Swingline Loans made pursuant to Section 2.05(a)(ii), 2.05(a)(iii) or
2.05(a)(iv) shall constitute Eurocurrency Revolving Loans with an Interest Period of one
week. If any such amount referred to in this clause (c) is not transferred to the
applicable Agent by any applicable
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Lender on such Settlement Date, the applicable Swingline Lender shall be entitled to
recover such amount on demand from such Lender together with interest thereon as specified
in Section 2.07.
SECTION 2.06 Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower Representative may request the issuance of Letters of
Credit for its own account or for the account of another Borrower (or any Borrower may request the
issuance of Letters of Credit for its own account), in a form reasonably acceptable to the
Administrative Agent, European Administrative Agent or Canadian Administrative Agent, as
applicable, and the applicable Issuing Bank (a Letter of Credit Request), at any time and
from time to time during the Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower Representative or any Borrower to, or
entered into by the Borrower Representative or any Borrower with, an Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower Representative (or the applicable Borrower) shall hand deliver or
facsimile (or transmit by electronic communication, if arrangements for doing so have been approved
by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (in the
case of Facility A Letters of Credit), the Canadian Administrative Agent (in the case of Canadian
Letters of Credit) with a copy to the Administrative Agent, or the European Administrative Agent
(with respect to European Letters of Credit, UK Letters of Credit and US Letters of Credit that are
Facility B Letters of Credit) with a copy to the Administrative Agent, prior to 9:00 a.m., Local
Time, at least three Business Days prior to the requested date of issuance, amendment, renewal or
extension, a Letter of Credit Request, or identifying the Letter of Credit to be amended, renewed
or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of Credit is to expire (which shall comply with
paragraph (c) of this Section), the amount of such Letter of Credit, the currency of such Letter of
Credit (which shall be in dollars, in the case of each Facility A Letter of Credit, dollars,
Sterling or Euros, in the case of each Facility B Letter of Credit issued on behalf of the European
Borrower or the UK Borrower, dollars or Canadian Dollars, in the case of each Facility B Letter of
Credit issued on behalf of the Canadian Borrower or dollars, Canadian Dollars, Euros, Sterling or
Yen, in the case of each Facility B Letter of Credit issued on behalf of the Company), the name and
address of the beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the
applicable Borrower also shall submit a letter of credit application on such Issuing Banks
standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of
each Letter of Credit the Borrowers shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the aggregate LC Exposure shall not
exceed the LC Sublimit, (ii) the aggregate principal amount of outstanding Letters of Credit that
are standby Letters of Credit shall not exceed $65,000,000 and (iii) the Borrowers shall be in
compliance with the Revolving Exposure Limitations.
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(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension), subject to automatic extension or renewal for successive one-year periods (but in no
event shall such renewed Letter of Credit expire on a date that is later than the date set forth in
clause (ii) below) and (ii) the date that is five Business Days prior to the Maturity Date (it
being understood that any Letter of Credit that provides for time drafts to be submitted thereunder
shall have an expiry date which is in advance of such date five Business Days prior to the Maturity
Date by the number of days contemplated for such time drafts).
(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of any
Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Facility A Lender,
with respect to a Facility A Letter of Credit, or each Facility B Lender, with respect to a
Facility B Letter of Credit, and each Facility A Lender or Facility B Lender, as applicable, hereby
acquires from the applicable Issuing Bank, a participation in such Letter of Credit equal to such
Lenders Applicable Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, (i) each Facility A Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, (ii) with respect to any
Facility B Letter of Credit other than a Canadian Letter of Credit, each Facility B Lender hereby
absolutely and unconditionally agrees to pay to the European Administrative Agent and (iii) with
respect to any Canadian Letters of Credit, each Facility B Lender hereby absolutely and
unconditionally promises to pay the Canadian Administrative Agent, in each case in the same
currency as the applicable LC Disbursement, for the account of the applicable Issuing Bank, such
Lenders Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed
by the applicable Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to such Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the applicable Borrower shall reimburse such LC Disbursement by paying to (i) the
Administrative Agent (in the case of any Facility A Letter of Credit), (ii) the European
Administrative Agent (with respect to any Facility B Letter of Credit other than a Canadian Letter
of Credit) and (iii) the Canadian Administrative Agent (with respect to any Canadian Letter of
Credit), in each case in the currency in which the applicable Letter of Credit was issued, an
amount equal to such LC Disbursement not later than 1:00 p.m., Local Time, on the date that such LC
Disbursement is made, if the Borrower Representative or the applicable Borrower shall have received
notice of such LC Disbursement prior to 12:00 p.m., Local Time, on such date, or, if such notice
has not been received by the Borrower Representative or the applicable Borrower prior to such time
on such date, then not later than 12:00 p.m., Local Time, on (i) the Business Day that the Borrower
Representative or the applicable Borrower receives such notice, if such notice is received prior to
12:00 p.m., Local Time, on the day of receipt, or
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(ii) the Business Day immediately following the day that the Borrower Representative or the
applicable Borrower receives such notice, if such notice is not received prior to such time on the
day of receipt; provided that the Borrower Representative on behalf of the applicable
Borrower (or the applicable Borrower) may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.05 that such payment be financed with a Borrowing of
Revolving Loans or a Swingline Loan in an equivalent amount and like currency and, to the extent so
financed, the Borrowers obligation to make such payment shall be discharged and replaced by the
resulting Borrowing of Revolving Loans or a Swingline Loan; provided further that
no such payment shall be permitted to be financed with a Eurocurrency Borrowing. If any Borrower
fails to make such payment when due, the Administrative Agent, the Canadian Administrative Agent or
the European Administrative Agent, as applicable, shall notify each Facility A Lender or Facility B
Lender, as applicable, of the applicable LC Disbursement, the payment then due from the applicable
Borrower in respect thereof and such Lenders Applicable Percentage thereof. Promptly following
receipt of such notice, each applicable Lender shall pay to the Administrative Agent, the Canadian
Administrative Agent or the European Administrative Agent, as applicable, in the same currency as
the applicable LC Disbursement, its Applicable Percentage of the payment then due from the
applicable Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by
such Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the applicable Agent shall promptly pay to the applicable Issuing
Bank the amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent, the Canadian Administrative Agent or the European Administrative Agent, as
the case may be, of any payment from a Borrower pursuant to this paragraph, such Agent shall
distribute such payment to the applicable Issuing Bank or, to the extent that Lenders have made
payments pursuant to this paragraph to reimburse the applicable Issuing Bank, then such Agent shall
distribute such payment to such Lenders and the applicable Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse the applicable
Issuing Bank for any LC Disbursement (other than the funding of Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the Borrowers or the Loan
Guarantors of their respective obligations to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrowers obligations to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrowers obligations hereunder. No Administrative Agent, Collateral Agent, Lender or Issuing
Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or
in connection with the issuance or transfer of any Letter of Credit or any payment or failure to
make any payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or
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delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the applicable Issuing
Bank; provided that the foregoing shall not be construed to excuse the applicable Issuing
Bank from liability to any Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Borrowers to the extent
permitted by applicable law) suffered by such Borrower that are caused by the applicable Issuing
Banks failure to exercise care when determining whether drafts and other documents presented under
a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the
absence of gross negligence or willful misconduct on the part of an Issuing Bank (as finally
determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of a Letter of Credit, the applicable
Issuing Bank may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or information to the
contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The applicable Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for payment under a
Letter of Credit. The applicable Issuing Bank shall promptly notify the Administrative Agent,
Canadian Administrative Agent or the European Administrative Agent, as applicable, and the Borrower
Representative (or applicable Borrower) by telephone (confirmed by facsimile or .pdf transmission)
of such demand for payment and whether such Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving such notice shall not
relieve the Borrowers or the Loan Guarantors of their obligations to reimburse the applicable
Issuing Bank and the applicable Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then,
unless a Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and including the date such
LC Disbursement is made to but excluding the date that a Borrower reimburses such LC Disbursement,
at the rate per annum then applicable to (x) ABR Revolving Loans, in the case of an LC Disbursement
in respect of a Facility A Letter of Credit or a Canadian Letter of Credit denominated in dollars,
(y) Canadian Prime Rate Loans, in the case of an LC Disbursement in respect of a Canadian Letter of
Credit denominated in Canadian Dollars, and (z) Overnight LIBO Loans, in the case of an LC
Disbursement in respect of Facility B Letters of Credit other than Canadian Letters of Credit;
provided that, if the Borrowers fail to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.13(e) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on
and after the date of payment by any Lender pursuant to paragraph (d) or (e) of this Section to
reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.
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(i) Replacement of the Issuing Banks. Any Issuing Bank may be replaced at any time by
written agreement among the Borrower Representative, the Administrative Agent (not to be
unreasonably withheld or delayed), the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of an Issuing Bank. At the
time any such replacement shall become effective, each Borrower shall pay all unpaid fees accrued
for the account of the replaced Issuing Bank pursuant to Section 2.12(b) owing by it. From and
after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the
rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to
be issued thereafter and (ii) references herein to the term Issuing Bank shall be deemed to refer
to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required (or permitted) to issue additional Letters of
Credit or to renew existing Letters of Credit. If any Issuing Bank (or with respect to any Issuing
Bank that is an Affiliate of a Lender hereunder, if any such Lender that is an Affiliate thereof)
assigns, in one transaction or a series of transactions, all of its Loans and Commitments hereunder
pursuant to Section 9.04, such Issuing Bank shall be deemed to have agreed to be replaced by the
Administrative Agent as an Issuing Bank pursuant to this Section 2.06(i) and no notification to the
Lenders shall be required.
(j) Cash Collateralization. If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower Representative receives notice from the Administrative Agent or
the Required Lenders demanding the deposit of cash collateral pursuant to this paragraph or if any
of the other provisions hereof require cash collateralization (or, on the Business Day on or
immediately following the maturity of the Loans if the Loans have been accelerated, without any
further notice), the Borrowers shall deposit in an account with the applicable Collateral Agent, in
the name of such Collateral Agent and for the benefit of the Agents, the applicable Lenders and the
applicable Issuing Banks (each an LC Collateral Account), an amount, in cash and in the
currency in which the applicable Letters of Credit are denominated, equal to 103% of the LC
Exposure as of such date plus accrued and unpaid interest thereon; provided that
the obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to any Borrower described in clause (h) or (i) of
Article VII. Such deposit shall be held by the applicable Collateral Agent as collateral for the
payment and performance of the Secured Obligations. Each Collateral Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account or such
account shall be subject to a Deposit Account Control Agreement and/or acknowledgement of notice,
as applicable, and each Borrower hereby grants the applicable Collateral Agent (for the benefit of
the Agents, the applicable Lenders and the applicable Issuing Banks) a security interest in the LC
Collateral Accounts. Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of each Collateral Agent and at each
Borrowers risk and expense, such deposits shall not bear interest. Interest or profits, if any,
on such investments shall accumulate in such account. Moneys in such account shall be applied by
each Collateral Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it
has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of
the
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reimbursement obligations of such Borrowers for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure
representing more than 50% of the total LC Exposure), be applied to satisfy other Secured
Obligations. If the Borrowers are required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the applicable Borrower or Borrower Representative for the account
of the applicable Borrower within two Business Days after all such Defaults have been cured or
waived.
(k) On the Effective Date, (i) each Existing Letter of Credit, to the extent outstanding,
shall be automatically and without further action by the parties thereto deemed converted into a
Letter of Credit under the applicable Facility (as reflected on Schedule 2.06) at the
request of the Company pursuant to this Section 2.06 and subject to the provisions hereof as if
each such Existing Letter of Credit had been issued on the Effective Date, (ii) each such Existing
Letter of Credit shall be included in the calculation of LC Exposure and Facility A LC Exposure
or Facility B LC Exposure, as applicable, and (iii) all liabilities of the Company and the other
Loan Parties with respect to such Existing Letters of Credit shall constitute Obligations.
(l) Reporting. Unless otherwise requested by the Administrative Agent, each Issuing
Bank shall report in writing to the Administrative Agent (and the Administrative Agent shall notify
the European Administrative Agent and/or the Canadian Administrative Agent, as applicable) (i) on
each Business Day, the aggregate undrawn amount of all outstanding Letters of Credit issued by it
(including a breakdown of the aggregate undrawn amount of all standby Letters of Credit and all
trade Letters of Credit issued by it), (ii) on each Business Day on which such Issuing Bank expects
to issue, amend, renew or extend any Letter of Credit, whether such Letter of Credit is a trade,
financial or performance Letter of Credit, and the aggregate face amount of the Letters of Credit
to be issued, amended, renewed or extended by it on such date, and no Issuing Bank shall be
permitted to issue, amend, renew or extend such Letter of Credit without first notifying the
Administrative Agent as set forth herein, (iii) on each Business Day on which such Issuing Bank
makes any LC Disbursement, the date of such LC Disbursement and the amount and currency of such LC
Disbursement and (iv) on any other Business Day, such other information as the Administrative Agent
shall reasonably request, including but not limited to prompt verification of such information as
may be requested by the Administrative Agent.
SECTION 2.07 Funding of Borrowings. (a) Each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately available funds by 2:00
p.m., Local Time, to the account of the Administrative Agent, the Canadian Administrative Agent or
the European Administrative Agent, as applicable, in an amount equal to such Lenders Applicable
Percentage; provided that Swingline Loans shall be made as provided in Section 2.05. Each
of the Administrative Agent, the Canadian Administrative Agent and the European Administrative
Agent, as applicable, will make such Loans available to the Borrower Representative (or, if
directed by the Borrower Representative, to the account of the applicable Borrower) by promptly
crediting the amounts so received, in like funds, to the Funding Account(s); provided that
Revolving Loans made to finance the reimbursement of (i) an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Administrative Agent, the Canadian Administrative Agent or the
European Administrative Agent, as applicable, to the applicable Issuing Bank and (ii) a Protective
Advance shall be retained by the Administrative
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Agent, the Canadian Administrative Agent or the European Administrative Agent, as applicable,
and disbursed in its discretion.
(b) Unless the Administrative Agent, the Canadian Administrative Agent or the European
Administrative Agent, as applicable, shall have received notice from a Lender prior to the proposed
date of any Borrowing that such Lender will not make available to the Administrative Agent, the
Canadian Administrative Agent or the European Administrative Agent, as applicable, such Lenders
share of such Borrowing, the Administrative Agent, the Canadian Administrative Agent or the
European Administrative Agent, as applicable, may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the applicable Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, the Canadian Administrative Agent or the European Administrative Agent, as
applicable (a Non-Funding Lender), then the applicable Lender and the Borrowers agree
(jointly and severally with each other Borrower, but severally and not jointly with the applicable
Lenders) to pay to the Administrative Agent, the Canadian Administrative Agent or the European
Administrative Agent, as applicable, forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the applicable
Borrower to but excluding the date of payment to the Administrative Agent, the Canadian
Administrative Agent or the European Administrative Agent, as applicable, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent, the Canadian Administrative Agent or the European Administrative Agent, as
applicable, in accordance with banking industry rules on interbank compensation or (ii) in the case
of the Borrowers, the interest rate applicable to ABR Loans (in the case of dollar-denominated
amounts), Canadian Prime Rate Loans (in the case of Canadian Dollar-denominated amounts) or
Overnight LIBO Loans (in the case of Euro, Yen or Sterling-denominated amounts). If such Lender
pays such amount to the Administrative Agent, the Canadian Administrative Agent or the European
Administrative Agent, as applicable, then such amount shall constitute such Lenders Loan included
in such Borrowing. Notwithstanding the foregoing, the Borrowers shall preserve their rights and
remedies against any Non-Funding Lender which has not made Loans required by the terms and
provisions hereof.
SECTION 2.08 Interest Elections. (a) Each Borrowing of Revolving Loans initially shall
be of the Type specified in the applicable Borrowing Request and (i) in the case of a Eurocurrency
Borrowing of Revolving Loans, shall have an initial Interest Period as specified in such Borrowing
Request and (ii) in the case of BA Drawings, shall have a Contract Period as specified in such
Borrowing Request. Thereafter, the Borrower Representative may elect to convert such Borrowing to
a different Type, to convert BA Drawings to Canadian Prime Rate Loans, to convert Canadian Prime
Rate Loans (other than Swingline Loans) into BA Drawings or to continue such Borrowing and, in the
case of a Eurocurrency Borrowing of Revolving Loans, may elect Interest Periods therefor, all as
provided in this Section. The Borrower Representative may elect different options with respect to
different portions of the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall not apply to
Swingline Borrowings or Protective Advances, which may not be converted or continued.
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(b) To make an election pursuant to this Section, the Borrower Representative shall notify the
(i) Administrative Agent, with respect to each Facility A Revolving Loan, (ii) the European
Administrative Agent (with a copy to the Administrative Agent), with respect to any Facility B
Revolving Loan other than a Canadian Revolving Loan, and (iii) the Canadian Administrative Agent
(with a copy to the Administrative Agent) with respect to any Canadian Revolving Loan, of such
election by telephone by the time that a Borrowing Request would be required under Section 2.03 if
the Borrowers were requesting a Borrowing of Revolving Loans of the Type resulting from such
election to be made on the effective date of such election, subject to clause (f) below in the case
of BA Drawings. Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by facsimile to the European Administrative Agent or by hand delivery, facsimile
or .pdf transmission to the Administrative Agent or the Canadian Administrative Agent, as
applicable, of a written Interest Election Request in a form approved by the Administrative Agent,
the Canadian Administrative Agent or the European Administrative Agent, as applicable, and signed
by the Borrower Representative.
(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:
(A) the Borrower, the Facility and the Borrowing to which such Interest
Election Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be allocated
to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (C) and (D) below shall be specified for each resulting
Borrowing);
(B) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(C) whether the resulting Borrowing is to be an ABR Borrowing, a
Eurocurrency Borrowing, a Canadian Prime Rate Borrowing, an Overnight LIBO
Rate Borrowing or a BA Drawing; and
(D) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the term
Interest Period and if the resulting Borrowing is a BA Drawing, the
Contract Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the term
Contract Period.
If any such Interest Election Request requests a Eurocurrency Borrowing but does not specify an
Interest Period, then the Borrowers shall be deemed to have selected an Interest Period of one
months duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent, the
Canadian Administrative Agent or the European Administrative
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Agent, as applicable, shall advise each Lender of the details thereof and of such Lenders
portion of each resulting Borrowing.
(e) If the Borrower Representative fails to deliver a timely Interest Election Request with
respect to a Eurocurrency Borrowing of Revolving Loans prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to (i) an ABR Borrowing, in the case of a
Eurocurrency Borrowing of either Facility A Revolving Loans or Canadian Revolving Loans denominated
in dollars, (ii) a Eurocurrency Borrowing with an Interest Period of one month, in the case a
Eurocurrency Borrowing of Facility B Revolving Loans other than Canadian Revolving Loans and (iii)
a Canadian Prime Rate Borrowing, in the case of any BA Drawing. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower Representative, then, so
long as an Event of Default is continuing (i) no outstanding Borrowing of Revolving Loans may be
converted to or continued as a Eurocurrency Borrowing, (ii) no outstanding Canadian Prime Rate
Loans may be converted to BA Drawings, and (iii) unless repaid, (A) each Eurocurrency Borrowing of
Facility A Loans or of Canadian Revolving Loans denominated in dollars shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto, (B) each Eurocurrency Borrowing of
Facility B Revolving Loans other than Canadian Revolving Loans shall be converted at the end of the
Interest Period applicable thereto to a Eurocurrency Borrowing with an Interest Period of one month
(or such shorter period determined by the European Administrative Agent in its Permitted
Discretion) and (C) each BA Drawing shall be converted to, or repaid with the proceeds of, a
Canadian Prime Rate Borrowing at the end of the Contract Period applicable thereto.
(f) At or before 12:00 p.m. 3 Business Days before the last day of the Contract Period of any
BA Drawing, the Borrower Representative shall give to the Canadian Administrative Agent its written
Interest Election Request in respect of such BA Drawing which shall specify either that the
Canadian Borrower intends to repay the maturing B/As on such date or to continue to issue B/As on
such date to provide for the payment of the maturing B/As. If the Borrower Representative fails
to deliver such timely notice with respect to a BA Drawing prior to the end of the Contract Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such
Contract Period such Borrowing shall be converted to Canadian Prime Rate Loans. Upon the
conversion to or continuation of any Borrowing or portion thereof as a BA Drawing, the Discount
Proceeds that would otherwise be payable to the Canadian Borrower by each Facility B Lender
pursuant to Section 2.21(d) in respect of such new BA Drawing shall be applied against the
principal amount of such Borrowing (in the case of a conversion) or the reimbursement obligation
owed to such Lender in respect of such maturing B/As (in the case of a continuation) (collectively,
the maturing amounts) and the Canadian Borrower shall pay to such Facility B Lender an amount
equal to the excess of the maturing amounts over such Discount Proceeds.
SECTION 2.09 Termination and Reduction of Commitments; Increase in Commitments. (a)
Unless previously terminated, all Commitments shall terminate on the Maturity Date.
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(b) The Borrowers may at any time terminate in full the Commitments and/or may at any time
terminate in full the European Sublimit, the UK Sublimit and/or the Canadian Sublimit upon (i) the
payment in full in cash of all outstanding Loans, European Loans, UK Loans or Canadian Loans, as
applicable, together with accrued and unpaid interest thereon and on any Letters of Credit,
European Letters of Credit, UK Letters of Credit or Canadian Letters of Credit, as applicable, (ii)
the cancellation and return of all outstanding Letters of Credit, European Letters of Credit or
Canadian Letters of Credit, as applicable (or alternatively, with respect to each applicable Letter
of Credit, the furnishing to the applicable Collateral Agent of a cash deposit in the currency in
which the applicable Letters of Credit are denominated (or at the discretion of the Administrative
Agent a back up standby letter of credit satisfactory to the Administrative Agent and in the
currency in which the applicable Letters of Credit are denominated) equal to 103% of the LC
Exposure as of such date), (iii) the payment in full in cash of the accrued and unpaid fees, if
applicable, and (iv) the payment in full in cash of all reimbursable expenses and other
Obligations, Obligations of the European Borrower, Obligations of the UK Borrower or Obligations of
the Canadian Borrower, as applicable, together with accrued and unpaid interest thereon. Upon the
termination in full of the European Sublimit and the satisfaction in full of the Obligations of the
European Borrower (other than Obligations in respect of contingent liabilities not then due), (x)
the European Borrower will be released from its obligations under this Agreement and the other Loan
Documents (including, but not limited to, all reporting obligations contained in Section 5.01
relating to the European Borrowing Base) in its capacity as such, other than in respect of
obligations which expressly survive the term of this Agreement, (y) all Collateral securing the
European Loans, and any Loan Guaranties of the European Loans, will be released and (z) all events
relating to any European Account Transfer Trigger Event will cease to have effect. Notwithstanding
the foregoing, the termination of the European Sublimit without a corresponding termination of the
Commitments shall have no effect on the availability to the Company of all or any portion of the
Facility B Commitments. Upon the termination in full of the UK Sublimit and the satisfaction in
full of the Obligations of the UK Borrower (other than Obligations in respect of contingent
liabilities not then due), (x) the UK Borrower will be released from its obligations under this
Agreement and the other Loan Documents (including, but not limited to, all reporting obligations
contained in Section 5.01 relating to the UK Borrowing Base) in its capacity as such, other than in
respect of obligations which expressly survive the term of this Agreement and (y) all Collateral
securing the UK Loans, and any Loan Guaranties of the UK Loans, will be released. Notwithstanding
the foregoing, the termination of the UK Sublimit without a corresponding termination of the
Commitments shall have no effect on the availability to the Company of all or any portion of the
Facility B Commitments. Upon the termination in full of the Canadian Sublimit and the satisfaction
in full of the Obligations of the Canadian Borrower (other than Obligations in respect of
contingent liabilities not then due excluding, for greater certainty, any Obligations in respect of
BA Drawings), (x) the Canadian Borrower will be released from its obligations under this Agreement
and the other Loan Documents (including, but not limited to, all reporting obligations contained in
Section 5.01 relating to the Canadian Borrowing Base) in its capacity as such, other than in
respect of obligations which expressly survive the term of this Agreement and (y) all Collateral
securing the Canadian Loans, and any Loan Guaranties of the Canadian Loans, will be released.
Notwithstanding the foregoing, the termination of the Canadian Sublimit without a corresponding
termination of the Commitments shall have no effect on the availability to the Company of all or
any portion of the Facility B Commitments. For the avoidance of doubt, all
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payments of principal, interest, fees and expenses, and the furnishing of cash deposits, in
each case contemplated in this Section 2.09(b) shall be made (i) to the Administrative Agent to the
extent such payment or deposit is made in connection with a Facility A Loan or Facility A Letter of
Credit, (ii) to the European Administrative Agent to the extent such payment or deposit is made in
connection with a Facility B Loan other than a Canadian Loan or a Facility B Letter of Credit other
than a Canadian Letter of Credit and (iii) to the Canadian Administrative Agent to the extent such
payment or deposit is made in connection with a Canadian Revolving Loan or Canadian Letter of
Credit.
(c) The Borrowers may from time to time reduce the Commitments; provided that (i) each
such reduction shall be in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000, (ii) each such reduction shall be applied to the Facility A Commitments and the
Facility B Commitments ratably in accordance with the aggregate amount of the Commitments at such
time, and (iii) the Borrowers shall not reduce the Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.10, the Borrowers would not be in
compliance with the Revolving Exposure Limitations.
(d) The Borrower Representative shall notify (x) the Administrative Agent of any election to
terminate or reduce the Facility A Commitments, (y) the European Administrative Agent (with a copy
to the Canadian Administrative Agent and the Administrative Agent) of any election to terminate or
reduce the Facility B Commitments, the European Sublimit or the UK Sublimit and (z) the Canadian
Administrative Agent (with a copy to the Administrative Agent) of any election to terminate or
reduce the Canadian Sublimit, in each case under paragraph (b) or (c) of this Section, at least
three Business Days prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent, European Administrative Agent or Canadian Administrative Agent, as
applicable, shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower Representative pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Borrower Representative may state that
such notice is conditioned upon the effectiveness of other credit facilities, in which case such
notice may be revoked by the Borrower Representative (by notice to the Administrative Agent on or
prior to the specified effective date) if such condition is not satisfied. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.
(e) The Borrowers shall have the right to request an increase of the Commitments by an
aggregate amount of up to $150,000,000 by obtaining additional Commitments, either from one or more
of the Lenders or another lending institution provided that (i) any such request for an
increase shall be in a minimum amount of $25,000,000, (ii) the Administrative Agent has approved
the identity of any such new Lender, such approval not to be unreasonably withheld or delayed,
(iii) any such new Lender assumes all of the rights and obligations of a Lender hereunder, and
(iv) the procedures described in Section 2.09(f) have been satisfied. Each such increase shall
increase the Facility A Commitments and the Facility B Commitments ratably in accordance with the
aggregate amount of the Commitments at such time.
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(f) Any amendment hereto providing for the increase of the Commitment of a Lender or addition
of a Lender shall be in form and substance reasonably satisfactory to the Administrative Agent and
shall only require the written signatures of the Administrative Agent, the Borrowers, the Loan
Parties party hereto and the Lender(s) being added or increasing their Commitment, subject only to
the approval of the Supermajority Lenders if any such increase would cause the Commitments to
exceed $500,000,000. As a condition precedent to such an increase, (a) the Loan Parties shall
deliver to the Administrative Agent a certificate of each Loan Party (in sufficient copies for each
Lender, if requested by the Administrative Agent) signed by an authorized officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or
consenting to such increase, (ii) certifying that any security and guarantee confirmations as may
have been reasonably requested by the Administrative Agent have been delivered and (iii) certifying
that, before and after giving effect to such increase, (A) the representations and warranties of
the Loan Parties contained in Article III and the other Loan Documents are true and correct, except
to the extent that such representations and warranties specifically refer to an earlier date, in
which case they are true and correct as of such earlier date, and (B) no Default shall have
occurred and be continuing and (b) each Loan Party shall deliver any confirmation of the security
interests or guarantee granted by it pursuant to the Loan Documents as the Administrative Agent may
reasonably request. In no event shall the interest rate applicable in respect of additional
Commitments or increases in Commitments made pursuant to this clause (f) be higher than the
interest rate paid and payable to the then existing Lenders in respect of their Commitments and the
terms applicable to such additional or increased Commitments shall be substantially the same as for
the existing Commitments).
(g) Within a reasonable time after the effective date of any increase, the Administrative
Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect
such increase and shall distribute such revised Commitment Schedule to each of the Lenders and the
Borrowers, whereupon such revised Commitment Schedule shall replace the old Commitment Schedule and
become part of this Agreement. On the Business Day following any such increase, all outstanding
ABR Loans shall be reallocated among the Lenders (including any newly added Lenders) in accordance
with the Lenders respective revised Applicable Percentages. Eurocurrency Loans shall not be
reallocated among the Lenders prior to the expiration of the applicable Interest Period in effect
at the time of any such increase.
SECTION 2.10 Repayment of Loans; Evidence of Debt. (a) The Borrowers hereby
unconditionally promise to pay to the Administrative Agent, the Canadian Administrative Agent or
the European Administrative Agent, as applicable (i) for the account of each applicable Lender the
then unpaid principal amount of each Revolving Loan on the Maturity Date, (ii) for the account of
each applicable Facility B Lender, the then unpaid principal amount of any BA Drawing in accordance
with Section 2.21, and (iii) the then unpaid amount of each Protective Advance on the earlier of
the Maturity Date and demand by such Agent. For the avoidance of doubt, all payments of principal
contemplated in this Section 2.10(a) shall be made (i) to the Administrative Agent to the extent
such payment is made in connection with a Facility A Revolving Loan or Facility A Protective
Advance, (ii) to the European Administrative Agent to the extent such payment is made in connection
with (x) a Facility B Revolving Loan other than a Canadian Revolving Loan or (y) a Facility B
Protective Advance other than a Canadian Protective Advance, and (iii) to the Canadian
Administrative Agent to the extent such payment is
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made in connection with a Canadian Revolving Loan, a BA Drawing or a Canadian Protective
Advance.
(b) On each Business Day during any Full Cash Dominion Period, the Administrative Agent, the
Canadian Administrative Agent or the European Administrative Agent, as applicable, shall apply,
subject to Section 2.18(b), and in a manner consistent with the last sentence of Section 2.09(b),
all funds credited to any applicable Collection Account as of 10:00 a.m., Local Time, on such
Business Day (whether or not immediately available) and made available to it by the applicable
Collateral Agent first to prepay any Protective Advances that may be outstanding, pro rata,
second to prepay the Swingline Loans and third to prepay other Revolving Loans
(without a corresponding reduction in Commitments). Any such application of funds shall be made
(i) from Collection Accounts of the US Loan Parties first in respect of Obligations of the
Company, as directed by the Company (or, if on such date the applicable conditions precedent set
forth in Section 4.02 have not been satisfied, in respect of the Obligations of the Company under
each Facility ratably in accordance with the then outstanding amounts thereof) and second
in respect of Obligations of the European Borrower, the UK Borrower and the Canadian Borrower, as
directed by the Company (or, if on such date the applicable conditions precedent set forth in
Section 4.02 have not been satisfied, in respect of the Obligations of the European Borrower, the
UK Borrower and the Canadian Borrower, as directed by the Administrative Agent), in each case, in a
manner consistent with the first sentence of this clause (b), (ii) from Collection Accounts of the
Specified European Loan Parties or the Canadian Loan Parties, solely in respect of Obligations of
the European Borrower, the UK Borrower and the Canadian Borrower, respectively, as directed by the
Company (or, if on such date the applicable conditions precedent set forth in Section 4.02 have not
been satisfied, in respect of the Obligations of the European Borrower, the UK Borrower and the
Canadian Borrower, as directed by the Administrative Agent), in a manner consistent with the first
sentence of this clause (b), and (iii) from Collection Accounts of the UK Borrower, solely in
respect of the Obligations of the UK Borrower, as directed by the Administrative Agent.
Notwithstanding the foregoing, in the event that (x) the Administrative Agent, the Canadian
Administrative Agent or the European Administrative Agent, as applicable, receives amounts pursuant
to this Section 2.10(b) in any currency in which no Obligations are then outstanding, the
Administrative Agent, the Canadian Administrative Agent or the European Administrative Agent, as
applicable, may elect to either (A) solely to the extent the conditions set forth in Section 4.02
have been met, return such amounts to the applicable Loan Party upon such Loans Party request, (B)
convert such amounts to another currency and apply such converted amounts to outstanding
Obligations pursuant to this Section 2.10(b) or (C) retain such amounts for a reasonable period of
time pending any action taken pursuant to clauses (A) or (B) above or (y) on any Interim
Calculation Date, the European Administrative Agent receives amounts from Collection Accounts of
the Specified European Loan Parties pursuant to this Section 2.10(b) in excess of the Adjusted
Funding Amount, the European Administrative Agent may elect to either (A) retain such excess
amounts for a reasonable period of time to fund future requests for European Swingline Loans
pursuant to Section 2.05, (B) apply such excess amounts to the Obligations outstanding on such date
pursuant to this Section 2.10(b) or (C) solely to the extent the conditions set forth in Section
4.02 have been met, return such amounts to the applicable Loan Party upon such Loan Partys
request.
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(c) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent, the Canadian Administrative Agent or the European Administrative Agent hereunder for the
account of the Lenders and each Lenders share thereof.
(e) The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this
Section shall be prima facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender, the Administrative Agent, the Canadian
Administrative Agent or the European Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Agreement.
(f) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrowers shall prepare, execute and deliver to such Lender a promissory note payable to
the order of such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.11 Prepayment of Loans. (a) The Borrowers shall have the right at any time
and from time to time, and without premium or penalty, to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (d) of this Section, except that the Borrowers
shall not prepay any BA Drawings except on the last day of the Contract Period applicable thereto
(subject to any mandatory prepayment requirements hereunder).
(b) Except for Protective Advances permitted under Section 2.04, in the event and on such
occasion that the Borrowers are not in compliance with the Revolving Exposure Limitations, the
Borrowers shall promptly prepay (or, in the case of LC Exposure, cash collateralize) Revolving
Loans, LC Exposure and/or Swingline Loans in an aggregate amount necessary such that, on a pro
forma basis following such prepayments or cash collateralization, the Borrowers shall be in
compliance with the Revolving Exposure Limitations (it being understood that, in order to comply
with this clause (b), the Borrowers shall prepay all such Revolving Loans and Swingline Loans prior
to any cash collateralization of LC Exposure hereunder).
(c) 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(g),
Section 6.05(l) or Section 6.05(q), the Borrowers shall, immediately after such
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Net Proceeds are received by the Company or any Subsidiary, prepay the Revolving Loans and
Swingline Loans in an aggregate amount equal to the lesser of (x) 100% of such Net Proceeds and (y)
the aggregate amount of Revolving Loans and Swingline Loans outstanding. However, notwithstanding
the foregoing, so long as no Event of Default shall have occurred and be continuing, if any
prepayment of Eurocurrency Loans would be required to be made under this Section 2.11(c) other than
on the last day of the Interest Period therefor, the Administrative Agent, at the direction of the
Borrower Representative, shall keep such funds in a non-interest bearing account and shall not
apply such funds to the prepayment of any such Eurocurrency Loan until the last day of such
Interest Period.
(d) The Borrower Representative shall notify the Administrative Agent, the Canadian
Administrative Agent and the European Administrative Agent, as applicable (and in the case of
prepayment of a Swingline Loan, the applicable Swingline Lender) by telephone (confirmed by
facsimile or, in the case of any notification to the Administrative Agent or the Canadian
Administrative Agent, .pdf transmission) of any prepayment hereunder (i) in the case of prepayment
of a Eurocurrency Borrowing of Revolving Loans, not later than 10:00 a.m., Local Time, two Business
Days before the date of prepayment, or (ii) in the case of prepayment of an ABR Borrowing of
Revolving Loans, a Canadian Prime Rate Borrowing of Revolving Loans or an Overnight LIBO Borrowing
of Revolving Loans, not later than 10:00 a.m., Local Time, on the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date and the principal amount of each
Borrowing or portion thereof to be prepaid; provided that, if a notice of prepayment is
given in connection with a conditional notice of termination of the Commitments as contemplated by
Section 2.09, then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.09. Promptly following receipt of any such notice relating to
a Borrowing of Revolving Loans, the applicable Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing of Revolving Loans shall be in an amount that
would be permitted in the case of an advance of a Borrowing of Revolving Loans of the same Type as
provided in Section 2.02. Each prepayment of a Borrowing of Revolving Loans shall be applied
ratably to the Revolving Loans included in the prepaid Borrowing. Prepayments shall be accompanied
by accrued but unpaid interest to the extent required by Section 2.13.
(e) For the avoidance of doubt, all payments of principal, interest or fees made pursuant to
this Section 2.11 shall be made (i) to the Administrative Agent to the extent such payment or
deposit is made in connection with a Facility A Loan or Facility A Letter of Credit, (ii) to the
European Administrative Agent to the extent such payment is made in connection with (x) a Facility
B Letter of Credit other than a Canadian Letter of Credit or (y) a Facility B Loan other than a
Canadian Loan, and (iii) to the Canadian Administrative Agent to the extent such payment is made in
connection with a Canadian Letter of Credit or a Canadian Loan.
(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 Indebtedness referred to in Section 6.02(p), the
Borrowers shall, immediately after such Net Proceeds are received by the Company or any Subsidiary,
prepay the Revolving Loans and Swingline Loans in an aggregate amount equal to the lesser of (x)
100% of such Net Proceeds and (y) the aggregate amount of Revolving Loans and Swingline Loans
outstanding. However, notwithstanding the foregoing, so long as no
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Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency
Loans would be required to be made under this Section 2.11(f) other than on the last day of the
Interest Period therefor, the Administrative Agent, at the direction of the Borrower
Representative, shall keep such funds in a non-interest bearing account and shall not apply such
funds to the prepayment of any such Eurocurrency Loan until the last day of such Interest Period.
(g) For the avoidance of doubt, no mandatory prepayment hereunder shall cause a permanent
reduction in the Commitments.
SECTION 2.12 Fees. (a) The Company agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable Commitment Fee Rate
on the average daily amount of the Available Commitment of such Lender under Facility A and
Facility B during the period from and including the Effective Date to but excluding the date on
which the Lenders Commitments terminate. Accrued commitment fees shall be payable in arrears on
the first Business Day of each calendar quarter and on the date on which the Commitments terminate,
commencing on the first such date to occur after the Effective Date. All commitment fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed. Notwithstanding anything to the contrary contained herein, all commitment fees shall be
paid by the Company to the Administrative Agent.
(b) The Borrowers agree to pay (i) to the Administrative Agent for the account of each
Facility A Lender a participation fee with respect to its participations in Facility A Letters of
Credit, (ii) to the European Administrative Agent for the account of each Facility B Lender a
participation fee with respect to its participations in Facility B Letters of Credit other than
Canadian Letters of Credit, (iii) to the Canadian Administrative Agent for the account of each
Facility B Lender a participation fee with respect to its participations in Canadian Letters of
Credit, which, in each case, shall accrue at the same Applicable Spread used to determine the
interest rate applicable to Eurocurrency Revolving Loans (or, in the case of documentary Letters of
Credit, 50% of such Applicable Spread) on the average daily amount of such Lenders applicable LC
Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of the date on which such
Lenders Commitment terminates and the date on which such Lender ceases to have any such LC
Exposure, and (iv) to the applicable Issuing Bank a fronting fee, which shall accrue at a rate per
annum to be agreed with each Issuing Bank on the average daily amount of the LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) relating to Letters of Credit
issued by such Issuing Bank during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as such Issuing Banks standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including the first day of
each calendar quarter shall be payable on the first Business Day of each calendar quarter and on
the date on which the Commitments terminate, commencing on the first such date to occur after the
date hereof; provided that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the Commitments terminate
shall be payable on demand. Any other fees payable to an
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Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed.
(c) The Borrowers agree to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrowers and the Administrative
Agent.
(d) All fees payable hereunder shall be paid on the dates due, in immediately available
dollars, to the Administrative Agent, European Administrative Agent or Canadian Administrative
Agent, as applicable, (or to the applicable Issuing Bank, in the case of fees payable to an Issuing
Bank) for distribution, in the case of commitment fees and participation fees, to the applicable
Lenders, ratably. Fees paid shall not be refundable under any circumstances.
SECTION 2.13 Interest. (a) The Loans comprising each ABR Borrowing (including each
Facility A Loan) shall bear interest at the Alternate Base Rate plus the Applicable Spread.
(b) The Loans comprising each Eurocurrency Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Spread.
(c) The Loans comprising each Overnight LIBO Borrowing (including each Facility B Swingline
Loan other than any Canadian Swingline Loan and each Facility B Protective Advance other than any
Canadian Protective Advance) shall bear interest at the Overnight LIBO Rate plus the Applicable
Spread.
(d) The Loans comprising each Canadian Prime Rate Borrowing shall bear interest at the
Canadian Prime Rate plus the Applicable Spread.
(e) Notwithstanding the foregoing, during the occurrence and continuance of an Event of
Default, the Administrative Agent or the Required Lenders may, at their option, by notice to the
Borrower Representative (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 9.02 requiring the consent of each Lender directly
affected thereby for reductions in interest rates), declare that (i) all Loans and participation
fees on account of Letters of Credit shall bear interest at 2% plus the rate otherwise applicable
to such Loans or participation fees, as applicable, as provided in the preceding paragraphs of this
Section or (ii) in the case of any other amount outstanding hereunder, (x) if such amount is
denominated in dollars, such amount shall accrue at 2% plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section, (y) if such amount is denominated in Euros, Sterling or
Yen, such amount shall accrue at 2% plus the rate applicable to Overnight LIBO Rate Loans as
provided in paragraph (c) of this Section and (z) if such amount is denominated in Canadian
Dollars, such amount shall accrue at 2% plus the rate applicable to Canadian Prime Rate Loans as
provided in paragraph (d) of this Section.
(f) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and upon termination of the Commitments; provided that (i) interest accrued
pursuant to paragraph (e) of this Section shall be payable on demand, (ii) in the event of
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any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan or Canadian
Prime Rate Loan prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurocurrency Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective date of such
conversion. Accrued interest shall be payable (i) to the Administrative Agent for the account of
each Facility A Lender, ratably, with respect to interest on any Facility A Revolving Loan or
Facility A Swingline Loan, (ii) to the Administrative Agent with respect to interest on any
Facility A Protective Advance, (iii) to the European Administrative Agent for the account of each
Facility B Lender, ratably, with respect to interest on any Facility B Revolving Loan other than
any Canadian Revolving Loan or any Facility B Swingline Loan other than any Canadian Swingline
Loan, (iv) to the European Administrative Agent with respect to interest on any European Protective
Advance, any UK Protective Advance or any Facility B US Protective Advance, (v) to the Canadian
Administrative Agent for the account of each Facility B Lender, ratably, with respect to interest
on a Canadian Revolving Loan or a Canadian Swingline Loan, and (vi) to the Canadian Administrative
Agent with respect to interest on any Canadian Protective Advance.
(g) All interest hereunder shall be computed on the basis of a year of 360 days, except that
(i) interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate
is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and shall be payable for the actual number of days elapsed, (ii) interest computed on
Loans and Letters of Credit denominated in Sterling shall be computed on the basis of a year of 365
days, and shall be payable for the actual number of days elapsed and (iii) interest and fees
computed on Loans and Letters of Credit denominated in Canadian Dollars shall be computed on the
basis of a year of 365 days (or 366 days in a leap year). The applicable Alternate Base Rate,
Canadian Prime Rate, Discount Rate, Adjusted LIBO Rate or Overnight LIBO Rate shall be determined
by the Administrative Agent, the Canadian Administrative Agent or the European Administrative
Agent, as applicable, and such determination shall be conclusive absent manifest error.
(h) For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of
interest or fees to which the rates of interest or fees provided in this Agreement and the other
Loan Documents (and stated herein or therein, as applicable, to be computed on the basis of 360
days or any other period of time less than a calendar year) are equivalent are the rates so
determined multiplied by the actual number of days in the applicable calendar year and
divided by 360 or such other period of time, respectively.
(i) All interest hereunder shall be paid in the currency in which the Loan giving rise to such
interest is denominated.
SECTION 2.14 Alternate Rate of Interest. (a) If prior to the commencement of any
Interest Period for a Eurocurrency Borrowing:
(A) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable
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means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(B) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders of
making or maintaining their Loans included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower Representative and the
Lenders by telephone, facsimile or .pdf transmission as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower Representative and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Borrowing of Revolving Loans to, or continuation of any Borrowing of
Revolving Loans as, a Eurocurrency Borrowing shall be ineffective, and any such request for a
continuation of a Eurocurrency Borrowing of Facility A Revolving Loans or Canadian Revolving Loans
denominated in dollars shall be deemed to be a request to convert such Borrowing to an ABR
Borrowing, (ii) if any Borrowing Request requests a Eurocurrency Borrowing of Facility A Revolving
Loans or Canadian Revolving Loans denominated in dollars, such Borrowing shall be made as an ABR
Borrowing and (iii) if any Borrowing Request requests (or any Interest Rate Election requests a
conversion to or continuation of) a Eurocurrency Borrowing of Facility B Revolving Loans other than
Canadian Revolving Loans denominated in dollars, such Borrowing shall be made as an Alternate Rate
Borrowing (and any request set forth in such Interest Rate Election shall be deemed to be a request
to convert such Borrowing to an Alternate Rate Borrowing).
(b) If at any time:
(A) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Overnight LIBO Rate; or
(B) the Administrative Agent is advised by the Required Lenders that
the Overnight LIBO Rate will not adequately and fairly reflect the cost to
such Lenders of making or maintaining their Loans included in any Overnight
LIBO Borrowing;
then the Administrative Agent shall give notice thereof to the Borrower Representative and the
Lenders by telephone, facsimile or .pdf transmission as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower Representative and the Lenders that the
circumstances giving rise to such notice no longer exist, any Overnight LIBO Borrowing shall be
made as an Alternate Rate Borrowing.
SECTION 2.15 Increased Costs. (a) If any Change in Law shall:
(A) subject any Lender or any Issuing Bank to any (or any increase in
any) Other Connection Taxes with respect to this Agreement or any other Loan
Document, any Letter of Credit, or any participation in a
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Letter of Credit or any Loan made or Letter of Credit issued by it,
except any such Taxes imposed on or measured by its net income or profits
(however denominated), capital taxes imposed by a Canadian Governmental
Authority or franchise taxes imposed in lieu of net income, profits or
Canadian capital taxes and except to the extent the Loan Parties have paid
additional amounts to such Lender or Issuing Bank with respect to such Taxes
pursuant to Section 2.17;
(B) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate or Overnight LIBO Rate) or any Issuing
Bank; or
(C) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurocurrency Loans,
Overnight LIBO Loans, Bankers Acceptances or BA Equivalent Loans made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurocurrency Loan or Overnight LIBO Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender or such Issuing Bank of participating in,
issuing or maintaining any Letter of Credit, Swingline Loan or Protective Advance, or of purchasing
or accepting Bankers Acceptances or making or maintaining BA Equivalent Loans or to reduce the
amount of any sum received or receivable by such Lender or such Issuing Bank hereunder (whether of
principal, interest or otherwise), then the Borrowers will pay to such Lender or such Issuing Bank,
as the case may be, such additional amount or amounts as will compensate such Lender or such
Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such Lenders or such
Issuing Banks capital or on the capital of such Lenders or such Issuing Banks holding company,
if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of
Credit, Swingline Loans or Protective Advances held by, such Lender, or the Letters of Credit
issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such
Lenders or such Issuing Banks holding company could have achieved but for such Change in Law
(taking into consideration such Lenders or such Issuing Banks policies and the policies of such
Lenders or such Issuing Banks holding company with respect to capital adequacy), then from time
to time the Borrowers will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lenders
or such Issuing Banks holding company for any such reduction suffered.
(c) A certificate of a Lender or any Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or such Issuing Bank or its holding company, as
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the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to
the Borrower Representative and shall be conclusive absent manifest error. The Borrowers shall pay
such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lenders or such Issuing Banks
right to demand such compensation; provided that the Borrowers shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Borrower Representative of the Change in Law giving rise to such
increased costs or reductions and of such Lenders or such Issuing Banks intention to claim
compensation therefor; provided further that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the 270-day period referred to above shall
be extended to include the period of retroactive effect thereof.
SECTION 2.16 Break Funding Payments. In the event of (a) the payment of any principal
of any Eurocurrency Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any Eurocurrency Loan other
than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurocurrency Loan on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice may be revoked under Section 2.09(d) and is revoked in
accordance therewith), or (d) the assignment of any Eurocurrency Loan other than on the last day of
the Interest Period applicable thereto as a result of a request by the Borrower Representative
pursuant to Section 2.19, then, in any such event, the Borrowers shall compensate each Lender for
the loss, cost and expense attributable to such event. In the case of a Eurocurrency Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurocurrency market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower Representative and shall be conclusive absent manifest
error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within
10 days after receipt thereof.
SECTION 2.17 Taxes. (a) Any and all payments by or on account of any obligation of
any Loan Party hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Taxes; provided that if any applicable law (as
determined in the good faith discretion of an applicable Withholding Agent (as defined below))
requires the deduction or withholding of any Taxes from any such payment (including, for the
avoidance of doubt, any such deduction or withholding required to be made by the applicable Loan
Party, the Administrative Agent, the European Administrative Agent, the Canadian
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Administrative Agent, any Collateral Agent or, in the case of any Lender that is treated as a
partnership for U.S. federal income tax purposes, by such Lender for the account of any of its
direct or indirect beneficial owners), the applicable Loan Party, the Administrative Agent, the
European Administrative Agent, the Canadian Administrative Agent, the applicable Collateral Agent,
the Lender or the applicable direct or indirect beneficial owner of a Lender that is treated as a
partnership for U.S. federal income tax purposes (any such person a Withholding Agent)
shall make such deductions and timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law and, if such Tax is an Indemnified Tax or Other Tax,
then the sum payable by the applicable Loan Party shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, the European Administrative Agent, the Canadian
Administrative Agent, each Collateral Agent, each Lender, any Issuing Bank or, in the case of any
Lender that is treated as a partnership or a disregarded entity for U.S. federal income tax
purposes, its direct or indirect beneficial owner, as the case may be, receives an amount equal to
the sum it would have received had no such deductions been made.
(b) The Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law. This paragraph (b) shall not apply to the extent that the Other
Taxes are compensated for by an increased payment under Section 2.17(a).
(c) The Loan Parties shall jointly and severally indemnify the Administrative Agent, the
European Administrative Agent, the Canadian Administrative Agent, each Collateral Agent, each
Lender and each Issuing Bank, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid or payable by the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, such Collateral Agent, such Lender (or its
beneficial owner) or such Issuing Bank in connection with the Loans or any amounts payable
hereunder or under any other Loan Documents or otherwise with respect to any Loan Document, as the
case may be (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower Representative by the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, a Collateral Agent, a Lender or an Issuing
Bank (with a copy to the Administrative Agent), as applicable, shall be conclusive absent manifest
error. This paragraph (c) shall not apply to the extent that the Indemnified Taxes or Other Taxes
are compensated for by an increased payment under Section 2.17(a) or a payment or reimbursement
under Section 2.17(b).
(d) Each Lender shall indemnify the Administrative Agent, the European Administrative Agent,
the Canadian Administrative Agent or any Collateral Agent, as applicable, within 10 days after
demand therefor, for the full amount of any Excluded Taxes attributable to such Lender that are
payable or paid by the Administrative Agent, the European Administrative Agent, the Canadian
Administrative Agent or any Collateral Agent, and reasonable expenses arising therefrom or with
respect thereto, whether or not such Excluded Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the
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amount of such payment or liability delivered to any Lender by the Administrative Agent shall
be conclusive absent manifest error.
(e) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Loan
Party to a Governmental Authority, the Borrower Representative shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
(f) Each US Fee Receiver hereby represents that it is a Permitted Fee Receiver and agrees, to
the extent legally entitled to do so, to update Internal Revenue Service Form W-9 (or its successor
form) or applicable Internal Revenue Service Form W-8 (or its successor form) upon any change in
such Persons circumstances or if such form expires or becomes inaccurate or obsolete, and to
promptly notify the Borrower Representative and the Administrative Agent if such Person becomes
legally ineligible to provide such form. In the case of a Lender that is a domestic partnership or
disregarded entity for U.S. federal income tax purposes, this requirement shall also apply to its
beneficial owners. As of the Effective Date, no Loan Parties will withhold on any fees paid under
this Agreement.
(g) Any Foreign Lender that is entitled to an exemption from or reduction of any applicable
withholding tax with respect to payments hereunder or under any other Loan Document shall deliver
to the Borrower Representative (with a copy to the Administrative Agent), at the time or times
reasonably requested by the Borrower Representative or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable law as will permit such payments to
be made without withholding or at a reduced rate of withholding of Tax. In addition, any Lender,
if requested by the Borrower Representative, the Administrative Agent or the European
Administrative Agent, the Canadian Administrative Agent or any Collateral Agent, shall deliver such
other documentation prescribed by applicable law or reasonably requested by the Borrower
Representative or the Administrative Agent as will enable the Borrower Representative, the
Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent or any
Collateral Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such forms shall not be required if the
Foreign Lender is not legally entitled to do so. Without limiting the generality of the foregoing,
in the case of the Company or any other US Loan Party, any Foreign Lender to the Company or any
other US Loan Party shall, to the extent it is legally entitled to do so, deliver to the Borrower
Representative and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrower Representative or the
Administrative Agent), whichever of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United States of
America is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
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(iii) in the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit E to the effect that such Foreign
Lender is not (A) a bank within the meaning of section 881(c)(3)(A) of the Code,
(B) a 10 percent shareholder of the Company within the meaning of section
881(c)(3)(B) of the Code, (C) a controlled foreign corporation described in
section 881(c)(3)(C) of the Code and (D) the interest payment in question is not
effectively connected with the United States trade or business conducted by such
Lender (a U.S. Tax Compliance Certificate) and (y) duly completed copies
of Internal Revenue Service Form W-8BEN,
(iv) to the extent a Foreign Lender is not the beneficial owner (for example,
where the Foreign Lender is a partnership or participating Lender granting a typical
participation), an Internal Revenue Service Form W-8IMY, accompanied by a Form
W-8ECI, W-8BEN, U.S. Tax Compliance Certificate, Form W-9, and/or other
certification documents from each beneficial owner, as applicable; provided
that, if the Foreign Lender is a partnership (and not a participating Lender) and
one or more beneficial owners of such Foreign Lender are claiming the portfolio
interest exemption, such Foreign Lender may provide a U.S. Tax Compliance
Certificate on behalf of each such beneficial owner, or
(v) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable law to permit the Borrower Representative to determine the withholding or
deduction required to be made.
In addition, if a payment made to a Lender under any Loan Document would be subject to U.S. Federal
withholding Tax imposed by FATCA if such Lender fails to comply with the applicable reporting
requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as
applicable), such Lender shall deliver to the Withholding Agent (A) a certification signed by the
chief financial officer, principal accounting officer, treasurer or controller and (B) other
documentation reasonably requested by the Withholding Agent sufficient for the Withholding Agent to
comply with its obligations under FATCA and to determine that such Lender has complied with such
applicable reporting requirements.
Each Lender agrees that if any form or certification previously delivered by it expires or becomes
obsolete or inaccurate in any respect, it shall update such form or certification or promptly
notify the Borrower Representative and the Administrative Agent in writing of its legal inability
to do so.
(h) If the Administrative Agent, the European Administrative Agent, the Canadian
Administrative Agent, any Collateral Agent, any Lender or any Issuing Bank determines, in its sole
discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it
has been indemnified pursuant to this Section 2.17 (including additional amounts paid by any Loan
Party pursuant to this Section), it shall pay to the indemnifying party an amount equal to such
refund (but only to the extent of indemnity payments made under this
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Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses (including any Taxes) of the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, such Collateral Agent, such Lender or such
Issuing Bank, as the case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided that such
indemnifying party, upon the request of the Administrative Agent, the European Administrative
Agent, the Canadian Administrative Agent, such Collateral Agent, such Lender or such Issuing Bank,
agrees to repay the amount paid over pursuant to this Section 2.17(h) (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Administrative
Agent, the European Administrative Agent, the Canadian Administrative Agent, such Collateral Agent,
such Lender or such Issuing Bank in the event the Administrative Agent, the European Administrative
Agent, the Canadian Administrative Agent, such Collateral Agent, such Lender or such Issuing Bank
is required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this paragraph (h), in no event will any Issuing Bank or Lender be required to pay any
amount to any Loan Party the payment of which would place the Issuing Bank or such Lender in a less
favorable net after-Tax position than the Issuing Bank or such Lender would have been in if the
indemnification payments or additional amounts giving rise to such refund had never been paid.
This paragraph shall not be construed to require the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, any Collateral Agent, any Lender or any
Issuing Bank to make available its Tax returns (or any other information relating to its Taxes
which it deems confidential) to the Borrowers or any other Person nor shall it be construed to
require the Administrative Agent, the European Administrative Agent, the Canadian Administrative
Agent, any Collateral Agent, any Lender or any Issuing Bank, as the case may be, to apply for or
otherwise initiate any refund contemplated in this Section 2.17.
(i) All amounts set out, or expressed to be payable under any Loan Document by any party to
the Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent, any
Collateral Agent, any Lender or any Issuing Bank which (in whole or in part) constitute the
consideration for a supply for VAT purposes shall be deemed to be exclusive of any VAT which is
chargeable in connection therewith. If, in connection with this Agreement, VAT is chargeable to,
or in respect of any payment made by any Loan Party to, the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, any Collateral Agent, any Lender or any
Issuing Bank, such Loan Party shall promptly pay to the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, such Collateral Agent, such Lender or such
Issuing Bank, as the case may be, an amount equal to the amount of such VAT (and the Administrative
Agent, the European Administrative Agent, the Canadian Administrative Agent, such Collateral Agent,
such Lender or such Issuing Bank, as the case may be, shall promptly provide an appropriate VAT
invoice to such party).
(j) For the avoidance of doubt and without duplication, where any party is required under any
Loan Document to reimburse the Administrative Agent, the European Administrative Agent, the
Canadian Administrative Agent, any Collateral Agent, any Lender or any Issuing Bank, as the case
may be, for any costs or expenses, that party shall also at the same time pay and indemnify each
such Administrative Agent, European Administrative Agent, the Canadian Administrative Agent,
Collateral Agent, any Lender or any Issuing Bank, as the case may be, against all VAT and any stamp
duty, registration or other similar tax payables, in each
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case incurred in connection with the entry into, performance or enforcement of any Loan
Document.
(k) The agreements in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
SECTION 2.18 Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The
Borrowers shall make each payment required to be made by them hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16
or 2.17, or otherwise) prior to 2:00 p.m., Local Time, on the date when due, in immediately
available funds, without set-off or counterclaim. Except as otherwise expressly set forth herein,
all payments of Loans shall be paid in the currency in which such Loans were made and shall be made
for the account of the relevant Lenders pro rata in accordance with the respective unpaid principal
amounts of the Loans made to the applicable Borrower held by them. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent, the European Administrative
Agent or the Canadian Administrative Agent, as applicable, be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All such payments shall
be made to (i) with respect to payments of Facility A Loans, LC Disbursements of any Issuing Bank
in respect of Facility A Letters of Credit, fronting fees payable to any Issuing Bank in respect of
Facility A Letters of Credit, fees payable pursuant to Section 2.12(a), participation fees in
respect of Facility A Letters of Credit payable pursuant to Section 2.12(b), and fees payable
pursuant to Section 2.12(c), the Administrative Agent at its offices at 10 South Dearborn,
22nd Floor, Chicago, Illinois 60603 USA, (ii) with respect to payments of Canadian
Loans, LC Disbursements of any Issuing Bank in respect of Canadian Letters of Credit, fronting fees
payable to any Issuing Bank in respect of Canadian Letters of Credit, the Canadian Administrative
Agent at its offices at 200 Bay Street, Royal Bank Plaza, Floor 18, Toronto M57 2J2 Canada and
(iii) for payments of Facility B Loans other than Canadian Loans, LC Disbursements of any Issuing
Bank in respect of Facility B Letters of Credit other than Canadian Letters of Credit, fronting
fees payable to any Issuing Bank in respect of Facility B Letters of Credit other than Canadian
Letters of Credit, the European Administrative Agent at its offices at 125 London Wall, London EC2Y
5AJ, United Kingdom, except payments to be made directly to an Issuing Bank or a Swingline Lender
as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and
9.03 shall be made directly to the Persons entitled thereto. Each of the Administrative Agent, the
European Administrative Agent and the Canadian Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate recipient, in like
funds, promptly following receipt thereof. If any payment hereunder shall be due on a day that is
not a Business Day, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be payable for the period
of such extension. All payments hereunder shall be made in dollars, except that all payments in
respect of Loans (and interest thereon) and LC Exposures shall be made in the same currency in
which such Loan was made or Letter of Credit issued. During any Full Cash Dominion Period, solely
for purposes of determining the amount of Loans available for borrowing purposes, checks (in
addition to immediately available funds applied pursuant to Section 2.10(b)) from collections of
items of payment and proceeds of any Collateral shall be applied in whole or in part against the
applicable Obligations as of 10:00 a.m., Local Time, on the Business Day of receipt, subject to
actual collection.
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(b) Any proceeds of Collateral of any Loan Party received by the Administrative Agent or any
Collateral Agent (i) after an Event of Default has occurred and is continuing and the
Administrative Agent so elects or the Required Lenders so direct or (ii) at any other time, not
constituting (A) a specific payment of principal, interest, fees or other sum payable under the
Loan Documents (which shall be applied as specified by the Borrowers), (B) a mandatory prepayment
(which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from the
Collection Account (which shall be applied in accordance with Section 2.10(b)), shall be applied,
subject to the Intercreditor Agreement, ratably first, to pay any fees, indemnities, or
expense reimbursements including amounts then due to the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, any Collateral Agent and any Issuing Bank
from, or guaranteed by, such Loan Party under the Loan Documents (other than in connection with
Banking Services Obligations, Acceptance Obligations, Swap Obligations or Synthetic Lease
Obligations), second, to pay any fees or expense reimbursements then due to the Lenders
from, or guaranteed by, such Loan Party under the Loan Documents (other than in connection with
Banking Services, Acceptance Obligations, Swap Obligations or Synthetic Lease Obligations),
third, to pay interest due in respect of the Protective Advances owing by or guaranteed by
such Loan Party, ratably, fourth, to pay the principal of the Protective Advances owing by
or guaranteed by such Loan Party, ratably, fifth, to pay interest then due and payable on
the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, in each case
owing or guaranteed by such Loan Party, ratably, sixth, to prepay principal on the Loans
(other than the Protective Advances) and unreimbursed LC Disbursements owing or guaranteed by such
Loan Party, ratably, seventh, to pay an amount to the US Collateral Agent equal to 103% of
the aggregate undrawn face amount of all outstanding Letters of Credit issued on behalf of, or
guaranteed by, such Loan Party, to be held as cash collateral for such Obligations, eighth,
to the payment of any amounts owing with respect to Reported Banking Services Obligations, Reported
Acceptance Obligations and Reported Secured Swap Obligations owing or guaranteed by such Loan
Party, ratably, ninth, to the payment of any amounts owing with respect to Banking Services
Obligations (other than Reported Banking Services Obligations), Acceptance Obligations (other than
Reported Acceptance Obligations) and Secured Swap Obligations (other than Reported Secured Swap
Obligations) owing or guaranteed by such Loan Party, ratably, tenth, to the payment of any
other Secured Obligations (other than Synthetic Lease Obligations) due to the Administrative Agent,
the European Administrative Agent, the Canadian Administrative Agent, any Collateral Agent or any
Lender by, or guaranteed by, such Loan Party, ratably, and eleventh, any balance remaining
after the Secured Obligations shall have been paid in full and no Letters of Credit shall be
outstanding (other than Letters of Credit which have been cash collateralized in accordance with
the foregoing) shall be paid over to the applicable Loan Party at its Funding Account.
Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the
Borrower Representative, or unless a Default is in existence, none of the Administrative Agent, the
European Administrative Agent, the Canadian Administrative Agent, the Collateral Agents nor any
Lender shall apply any payment which it receives from Collateral Proceeds to any Eurocurrency Loan
of a Class, except (a) on the expiration date of the Interest Period applicable to any such
Eurocurrency Loan or (b) in the event, and only to the extent, that there are no outstanding ABR
Loans, Overnight LIBO Loans or Canadian Prime Rate Loans of the same Class and, in any such event,
the Borrowers shall pay the break funding payment required in accordance with Section 2.16. Each
of the Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent
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and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply
any and all such proceeds and payments to any portion of the Secured Obligations to maximize
realization of the Collateral (it being understood that, notwithstanding the foregoing, in no event
shall payments be made pursuant to levels eighth, ninth or tenth
above prior to the payment in full of all obligations described in levels first through
seventh above). Notwithstanding the foregoing, any such application of proceeds from
Collateral of the European Loan Parties and the Canadian Loan Parties shall be made solely in
respect of Obligations of the European Loan Parties and the Canadian Loan Parties.
(c) At the election of the Administrative Agent, the European Administrative Agent or the
Canadian Administrative Agent, as the case may be, all payments of principal, interest, LC
Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all
reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable by any
Borrower under the Loan Documents, may be paid from the proceeds of Borrowings made by such
Borrower hereunder whether made following a request by the Borrower Representative pursuant to
Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit
account of such Borrower maintained with the Administrative Agent, the European Administrative
Agent or the Canadian Administrative Agent. Each Borrower hereby irrevocably authorizes (i) the
Administrative Agent, the European Administrative Agent or the Canadian Administrative Agent, as
applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and
fees owing by such Borrower as it becomes due hereunder or any other amount due from such Borrower
under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including
Swingline Loans, but such a Borrowing may only constitute a Protective Advance if it is to
reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall
be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii)
the Administrative Agent, the European Administrative Agent or the Canadian Administrative Agent,
as applicable, to charge any deposit account of such Borrower maintained with such Agent for each
payment of principal, interest and fees owing by such Borrower as it becomes due hereunder or any
other amount due from such Borrower under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim, as a result of
Section 2.18(b) or otherwise, obtain payment in respect of any principal of or interest on any of
its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and
accrued interest thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans and participations
in LC Disbursements; provided that (i) if any such participations are purchased and all or
any portion of the payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made by the Borrowers
pursuant to and in accordance with the express terms of this Agreement (other than Section 2.18(b))
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC
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Disbursements to any assignee or participant, other than to the Borrowers or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so under applicable law,
that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise
against such Borrower rights of set-off and counterclaim with respect to such participation as
fully as if such Lender were a direct creditor of such Borrower in the amount of such
participation.
(e) Unless the Administrative Agent shall have received notice from the Borrower
Representative prior to the date on which any payment is due to the Administrative Agent for the
account of the Lenders or an Issuing Bank hereunder that the Borrowers will not make such payment,
the Administrative Agent, the European Administrative Agent or the Canadian Administrative Agent,
as applicable, may assume that the Borrowers have made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable
Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact
made such payment, then each of the Lenders or the applicable Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent, the European Administrative Agent and the
Canadian Administrative Agent, if applicable, forthwith on demand the amount so distributed to such
Lender or such Issuing Bank with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative Agent, the
European Administrative Agent or the Canadian Administrative Agent, if applicable, at a rate
determined by the relevant Administrative Agent in accordance with banking industry rules on
interbank compensation or, in the case of amounts due in dollars, the Federal Funds Effective Rate
if greater.
(f) If any Lender shall fail to make any payment required to be made by it hereunder, then the
Administrative Agent and, if applicable, the European Administrative Agent and/or the Canadian
Administrative Agent, may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by it for the account of such Lender to satisfy such Lenders
obligations hereunder until all such unsatisfied obligations are fully paid.
SECTION 2.19 Mitigation Obligations; Replacement of Lenders. If any Lender requests
compensation under Section 2.15, or if the Borrowers are required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, or
if any Lender is otherwise a Departing Lender (as defined below), then:
(a) such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.15 or 2.17, as the case may be, in the future, (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender (and
the Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender
in connection with any such designation or assignment) and (iii) would not breach any
applicable law;
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(b) the Borrowers may, at their sole expense and effort, require such Lender or any
Defaulting Lender (each herein, a Departing Lender), upon notice to the Departing
Lender and the Administrative Agent, to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04), all its interests, rights
and obligations under this Agreement to an assignee specified by the Borrowers that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrowers shall have received the prior written
consent of the Administrative Agent (and if a Commitment is being assigned, the Issuing
Banks), which consent shall not unreasonably be withheld or delayed, (ii) the Departing
Lender shall have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements, Swingline Loans and Protective Advances,
accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from
the assignee (to the extent of such outstanding principal and accrued interest and fees) or
the Borrowers (in the case of all other amounts), (iii) any processing and recordation fee
owing pursuant to Section 9.04(c)(iv) in connection with such assignment shall be paid by
the applicable Borrower and (iv) in the case of any such assignment resulting from a claim
for compensation under Section 2.15 or payments required to be made pursuant to Section
2.17, such assignment will result in a reduction in such compensation or payments. A
Departing Lender shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrowers to require such assignment and delegation cease to apply.
SECTION 2.20 Returned Payments. If after receipt of any payment which is applied to
the payment of all or any part of the Obligations, the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, any Collateral Agent, any Issuing Bank or
any Lender is for any reason compelled to surrender such payment or proceeds to any Person because
such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined
to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for
any other reason, then the Obligations or part thereof intended to be satisfied shall be revived
and continued and this Agreement shall continue in full force as if such payment or proceeds had
not been received by the Administrative Agent, the European Administrative Agent, the Canadian
Administrative Agent, such Collateral Agent, such Issuing Bank or such Lender. The provisions of
this Section 2.20 shall be and remain effective notwithstanding any contrary action which may have
been taken by the Administrative Agent, the European Administrative Agent, the Canadian
Administrative Agent, any Collateral Agent, any Issuing Bank or any Lender in reliance upon such
payment or application of proceeds. The provisions of this Section 2.20 shall survive the
termination of this Agreement.
SECTION 2.21 Bankers Acceptances. (a) The Canadian Borrower may issue Bankers
Acceptances denominated in Canadian Dollars for acceptance and purchase by the Facility B Lenders
in accordance with the provisions of Section 2.01, Section 2.03 and this Section 2.21.
(b) Term. Each Bankers Acceptance shall have a Contract Period of approximately
thirty days, sixty days, ninety days or one hundred and eighty days or (with the consent of each
affected Lender) two hundred and seventy days or three hundred and sixty-five
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days, subject to availability. No Contract Period shall extend beyond the Maturity Date. If
such Contract Period would otherwise end on a day that is not a Business Day, such Contract Period
shall end on the next preceding day that is a Business Day.
(c) Discount Rate. On each Borrowing date on which Bankers Acceptances are to be
accepted, the Canadian Administrative Agent shall advise the Canadian Borrower as to the Canadian
Administrative Agents determination of the applicable Discount Rate for the Bankers Acceptances
which any of the Facility B Lenders have agreed to purchase.
(d) Purchase. Each Facility B Lender agrees to purchase a Bankers Acceptance
accepted by it. The Canadian Borrower shall sell, and such Facility B Lender shall purchase, the
Bankers Acceptance at the applicable Discount Rate. Such Facility B Lender shall provide to the
Canadian Funding Office the Discount Proceeds less the Acceptance Fee payable by the Canadian
Borrower with respect to such Bankers Acceptance. Such proceeds will then be made available to
the Canadian Borrower by the Canadian Administrative Agent crediting an account as directed by the
Canadian Borrower with the aggregate of the amounts made available to the Canadian Administrative
Agent by such Facility B Lenders and in like funds as received by the Canadian Administrative
Agent.
(e) Sale. Each Facility B Lender may from time to time hold, sell, rediscount or
otherwise dispose of any or all Bankers Acceptances accepted and purchased by it.
(f) Power of Attorney for the Execution of Bankers Acceptances. To facilitate
borrowings under the Facility B Commitments by way of B/As, the Canadian Borrower hereby appoints
each Facility B Lender as its attorney to sign and endorse on its behalf, in handwriting or by
facsimile or mechanical signature as and when deemed necessary by such Facility B Lender, blank
forms of B/As. In this respect, it is each Facility B Lenders responsibility to maintain an
adequate supply of blank forms of B/As for acceptance under this Agreement. The Canadian Borrower
recognizes and agrees that all B/As required to be accepted and purchased by any Facility B Lender
and which are signed and/or endorsed on its behalf by a Facility B Lender shall bind the Canadian
Borrower as fully and effectually as if signed in the handwriting of and duly issued by the proper
signing officers of the Canadian Borrower. Each Facility B Lender is hereby authorized to issue
such B/As endorsed in blank in such face amounts as may be determined by such Facility B Lender;
provided that the aggregate amount thereof is equal to the aggregate amount of B/As
required to be accepted and purchased by such Facility B Lender. No Facility B Lender shall be
liable for any damage, loss or other claim arising by reason of any loss or improper use of any
such instrument except the gross negligence or willful misconduct of such Facility B Lender or its
officers, employees, agents or representatives. On request by the Canadian Borrower, a Facility B
Lender shall cancel all forms of B/As which have been pre-signed or pre-endorsed by or on behalf of
the Canadian Borrower and which are held by such Facility B Lender and have not yet been issued in
accordance herewith. Each Facility B Lender shall maintain a record with respect to B/As held by
it in blank hereunder, voided by it for any reason, accepted and purchased by it hereunder, and
cancelled at their respective maturities. Each Facility B Lender agrees to provide such records to
the Canadian Borrower at the Canadian Borrowers expense upon request.
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(g) Execution. Drafts drawn by the Canadian Borrower to be accepted as Bankers
Acceptances shall be signed by a duly authorized officer or officers of the Canadian Borrower or
the Borrower Representative or by their respective attorneys including attorneys appointed pursuant
to Section 2.21(f) above. Notwithstanding that any Person whose signature appears on any Bankers
Acceptance may no longer be an authorized signatory for the Canadian Borrower or Borrower
Representative, as applicable, at the time of issuance of a Bankers Acceptance, that signature
shall nevertheless be valid and sufficient for all purposes as if the authority had remained in
force at the time of issuance and any Bankers Acceptance so signed shall be binding on the
Canadian Borrower.
(h) Issuance. The Canadian Administrative Agent, promptly following receipt of a
notice of borrowing, continuation or conversion by way of Bankers Acceptances, shall advise the
applicable Facility B Lenders of the notice and shall advise each such Facility B Lender of the
face amount of Bankers Acceptances to be accepted by it and the applicable Contract Period (which
shall be identical for all Facility B Lenders). The aggregate face amount of Bankers Acceptances
to be accepted by a Facility B Lender shall be determined by the Administrative Agent by reference
to such Facility B Lenders Applicable Percentage of the issue of Bankers Acceptances, except
that, if the face amount of a Bankers Acceptance which would otherwise be accepted by a Facility B
Lender would not be C$100,000, or a whole multiple thereof, the face amount shall be increased or
reduced by the Canadian Administrative Agent in its sole discretion to C$100,000, or the nearest
whole multiple of that amount, as appropriate; provided that after such issuance, the
Borrowers shall be in compliance with the Revolving Exposure Limitations.
(i) Waiver of Presentment and Other Conditions. The Canadian Borrower waives
presentment for payment and any other defense to payment of any amounts due to a Facility B Lender
in respect of a Bankers Acceptance accepted and purchased by it pursuant to this Agreement which
might exist solely by reason of the Bankers Acceptance being held, at the maturity thereof, by
such Facility B Lender in its own right and the Canadian Borrower agrees not to claim any days of
grace if such Facility B Lender as holder sues the Canadian Borrower on the Bankers Acceptance for
payment of the amount payable by the Canadian Borrower thereunder. On the specified maturity date
of a B/A, or the date of any prepayment thereof in accordance with this Agreement, if earlier, the
Canadian Borrower shall pay to such Facility B Lender that has accepted such B/A the full face
amount of such B/A (or shall make provision for payment by way of conversion or continuation in
accordance with Section 2.08) in full and absolute satisfaction of its obligations with respect to
such B/A, and after such payment, the Canadian Borrower shall have no further liability in respect
of such B/A (except to the extent that any such payment is rescinded or reclaimed by operation of
law or otherwise) and such Facility B Lender shall be entitled to all benefits of, and will make
and otherwise be responsible for all payments due to the redeeming holder or any third parties
under, such B/A.
(j) BA Equivalent Loans by Non BA Lenders. Whenever the Canadian Borrower requests a
borrowing by way of Bankers Acceptances, each Non BA Lender shall, in lieu of accepting and
purchasing any B/As, make a Loan (a BA Equivalent Loan) to the Canadian Borrower in the
amount and for the same term as each Draft which such Lender would otherwise have been required to
accept and purchase hereunder. Each such Lender will provide to the Canadian Administrative Agent
the amount of Discount Proceeds of such BA Equivalent
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Loan for the account of the Canadian Borrower in the same manner as such Lender would have
provided the Discount Proceeds in respect of the Draft which such Lender would otherwise have been
required to accept and purchase hereunder. Each such BA Equivalent Loan will bear interest at the
same rate that would result if such Lender had accepted (and been paid an acceptance fee) and
purchased (on a discounted basis) a B/A for the relevant Contract Period (it being the intention of
the parties that each such BA Equivalent Loan shall have the same economic consequences for the
relevant Lenders and the Canadian Borrower as the B/A that such BA Equivalent Loan replaces). All
such interest shall be paid in advance on the date such BA Equivalent Loan is made, and will be
deducted from the principal amount of such BA Equivalent Loan in the same manner in which the
discounted portion of a B/A would be deducted from the face amount of the B/A. Subject to the
repayment requirements of this Agreement, on the last day of the relevant Contract Period for such
BA Equivalent Loan, the Canadian Borrower shall be entitled to convert each such BA Equivalent Loan
into another type of Loan, or to roll over each such BA Equivalent Loan into another BA Equivalent
Loan, all in accordance with the applicable provisions of this Agreement. Each Non BA Lender may,
at its discretion, request in writing to the Canadian Administrative Agent and the Canadian
Borrower that BA Equivalent Loans made by it shall be evidenced by Discount Notes.
(k) Terms Applicable to BA Equivalent Loans. For greater certainty, all provisions of
this Agreement that are applicable to B/As shall also be applicable, mutatis mutandis, to
BA Equivalent Loans, and notwithstanding any other provision of this Agreement, all references to
principal amounts or any repayment or prepayment of any Loans that are applicable to B/As or BA
Drawings shall be deemed to refer to the full face amount thereof in the case of B/As and to the
principal amount of any portion thereof consisting of BA Equivalent Loans. As set out in the
definition of Bankers Acceptances, that term includes Discount Notes and all terms of this
Agreement applicable to Bankers Acceptances (including the provisions of Section 2.21(f) relating
to their execution by the Facility B Lenders under power of attorney) shall apply equally to
Discount Notes evidencing BA Equivalent Loans with such changes as may in the context be necessary.
For greater certainty:
(i) the term of a Discount Note shall be the same as the Contract Period for
Bankers Acceptances accepted and purchased on the same Borrowing date in respect of
the same borrowing;
(ii) an acceptance fee will be payable in respect of a Discount Note and shall
be calculated at the same rate and in the same manner as the Acceptance Fee in
respect of a Bankers Acceptance; and
(iii) the Discount Rate applicable to a Discount Note shall be the Discount
Rate applicable to Bankers Acceptances accepted by a Facility B Lender that is not
a Schedule I Lender in accordance with the definition of Discount Rate on the same
Borrowing date or date of continuation or conversion, as the case may be, in respect
of the same borrowing for the relevant Contract Period.
(l) Depository Bills and Notes Act. At the option of the Canadian Borrower and any
Facility B Lender, Bankers Acceptances under this Agreement to be accepted by such
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Facility B Lender may be issued in the form of depository bills for deposit with The Canadian
Depository for Securities Limited pursuant to the Depository Bills and Notes Act (Canada). All
depository bills so issued shall be governed by the provisions of this Section 2.21.
(m) Acceptance Fees. Upon acceptance of a Bankers Acceptance by a Facility B Lender,
the Canadian Borrower shall pay to the Canadian Administrative Agent on behalf of such Facility B
Lender a fee (the Acceptance Fee) payable in Canadian Dollars, calculated on the face
amount of the Bankers Acceptance at a rate per annum equal to the Applicable Spread on the basis
of the number of days in the Contract Period for such Bankers Acceptance. Any adjustment to the
Acceptance Fee (including any adjustment as necessary to reflect the operation of Section 2.13(e))
shall be computed based on the number of days remaining in the Contract Period of such Bankers
Acceptances from and including the effective date of any change in the Applicable Spread. Any
increase in such Acceptance Fee shall be paid by the Canadian Borrower to the Canadian
Administrative Agent on behalf of the Facility B Lenders on the last day of the Contract Period of
the relevant Bankers Acceptance. Any decrease in such Acceptance Fee shall be paid by each
Facility B Lender to the Canadian Borrower, through the Canadian Administrative Agent, on the last
day of the Contract Period of the relevant Bankers Acceptance.
SECTION 2.22 Circumstances Making Bankers Acceptances Unavailable. (a) If prior to
the commencement of any Contract Period, (A) the Canadian Administrative Agent determines in good
faith, which determination shall be conclusive and binding on the Canadian Borrower, and notifies
the Canadian Borrower that, by reason of circumstances affecting the money market, there is no
readily available market for Bankers Acceptances, or (B) the Canadian Administrative Agent
determines (which determination shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Discount Rate or CDOR Rate, as applicable, for
such Contract Period; or (C) the Canadian Administrative Agent is advised by the Required Facility
B Lenders that the Discount Rate or CDOR Rate, as applicable, for such Contract Period will not
adequately and fairly reflect the cost to such Lenders of making or maintaining their portion of
such BA Drawings included in such Borrowing for such Contract Period then:
(i) the right of the Canadian Borrower to request a borrowing by way of BA
Drawing shall be suspended until the Canadian Administrative Agent determines that
the circumstances causing such suspension no longer exist and the Canadian
Administrative Agent so notifies the Canadian Borrower; and
(ii) any notice relating to a borrowing by way of BA Drawing which is
outstanding at such time shall be deemed to be a notice requesting a borrowing by
way of Canadian Prime Rate Loans (all as if it were a notice given pursuant to
Section 2.03).
(b) The Administrative Agent shall promptly notify the Canadian Borrower and the Facility B
Lenders of the suspension in accordance with Section 2.22(a) of the Canadian Borrowers right to
request a borrowing by way of BA Drawing and of the termination of such suspension.
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SECTION 2.23 Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 2.12(a);
(b) the Commitment and Revolving Exposure of such Defaulting Lender shall not be
included in determining whether all Lenders or the Required Lenders have taken or may take
any action hereunder (including any consent to any amendment or waiver pursuant to Section
9.02); provided that (x) any waiver, amendment or modification requiring the consent
of all Lenders or each affected Lender which affects such Defaulting Lender differently than
other affected Lenders shall require the consent of such Defaulting Lender and (y) for the
avoidance of doubt, the Commitment of any Defaulting Lender cannot be increased without such
Defaulting Lenders consent;
(c) if any Swingline Exposure, PA Exposure or LC Exposure exists at the time a Lender
becomes a Specified Defaulting Lender then:
(i) all or any part of such Swingline Exposure, PA Exposure and LC Exposure
shall be reallocated among the non-Specified Defaulting Lenders in accordance with
their respective Applicable Percentages but only to the extent (x) the sum of all
non-Specified Defaulting Lenders Credit Exposures plus, without duplication, such
Specified Defaulting Lenders PA Exposure, Swingline Exposure and LC Exposure, does
not exceed the total of all non-Specified Defaulting Lenders Commitments and (y)
the conditions set forth in Section 2.01 are satisfied at such time; and
(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrowers shall within one Business Day following notice
by the applicable Administrative Agent (x) first, prepay such PA Exposure and
Swingline Exposure and (y) second, cash collateralize such Defaulting Lenders LC
Exposure (after giving effect to any partial reallocation pursuant to clause (i)
above) in accordance with the procedures set forth in Section 2.06(j) for so long as
such LC Exposure is outstanding;
(iii) if the Borrowers cash collateralize any portion of such Specified
Defaulting Lenders LC Exposure pursuant to this Section 2.23(c), no Borrower shall
be required to pay any fees to such Specified Defaulting Lender pursuant to Section
2.12(b) with respect to such Specified Defaulting Lenders LC Exposure during the
period such Specified Defaulting Lenders LC Exposure is cash collateralized; or
(iv) if the LC Exposure of the non-Specified Defaulting Lenders is reallocated
pursuant to Section 2.23(c), then the fees payable to the Lenders pursuant to
Section 2.12(a) and Section 2.12(b) shall be adjusted in accordance with such
non-Specified Defaulting Lenders Applicable Percentages;
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The Administrative Agent, Canadian Administrative Agent or European Administrative Agent, as
applicable, shall promptly notify the Lenders of any reallocation described in this Section
2.23(c).
(d) so long as any Lender is a Defaulting Lender, no Swingline Lender shall be required
to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or increase
any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered
by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by
the Borrower in accordance with Section 2.23(c), and participating interests in any such
newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated
among non-Defaulting Lenders in a manner consistent with Section 2.23(c)(i) (and Defaulting
Lenders shall not participate therein); and
(e) any amount payable to such Defaulting Lender hereunder (whether on account of
principal, interest, fees or otherwise and including any amount that would otherwise be
payable to such Defaulting Lender pursuant to Section 2.18(d) but excluding Section 2.19(b))
shall, in lieu of being distributed to such Defaulting Lender, be retained by the
Administrative Agent in a segregated account and, subject to any applicable requirements of
law, be applied at such time or times as may be determined by the Administrative Agent (i)
first, to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent, the European Administrative Agent, the Canadian Administrative Agent or any
Collateral Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by
such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder, (iii) third, if so
determined by the Administrative Agent or requested by an Issuing Bank or Swingline Lender,
held in such account as cash collateral for future funding obligations of the Defaulting
Lender in respect of any existing or future participating interest in any Swingline Loan,
Letter of Credit or Protective Advance, (iv) fourth, to the funding of any Loan in respect
of which such Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent, (v) fifth, if so determined by the
Administrative Agent and the Borrowers, held in such account as cash collateral for future
funding obligations of the Defaulting Lender in respect of any Loans under this Agreement,
(vi) sixth, to the payment of any amounts owing to the Lenders or any Issuing Bank or
Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained
by any Lender or such Issuing Bank or Swingline Lender against such Defaulting Lender as a
result of such Defaulting Lenders breach of its obligations under this Agreement, (vii)
seventh, to the payment of any amounts owing to any Borrower as a result of any judgment of
a court of competent jurisdiction obtained by such Borrower against such Defaulting Lender
as a result of such Defaulting Lenders breach of its obligations under this Agreement, and
(viii) eighth, to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if such payment is (x) a prepayment of the principal
amount of any Loans or reimbursement obligations in respect of LC Disbursements which a
Defaulting Lender has funded its participation obligations and (y) made at a time when the
conditions set forth in Section 4.02 are satisfied, such payment shall be applied solely to
prepay the Loans of, and reimbursement
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obligations owed to, all non-Defaulting Lenders pro rata prior to being applied to the
prepayment of any Loans, or reimbursement obligations owed to, any Defaulting Lender.
(f) In the event that the Administrative Agent (or, in the case of any Facility B
Lender, the Canadian Administrative Agent and the European Administrative Agent), the
applicable Borrower(s), the applicable Issuing Bank(s) and the applicable Swingline
Lender(s) each agrees that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the Swingline Exposure, LC Exposure and
PA Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lenders
Commitments and on such date such Lender shall purchase at par such of the Loans of the
other Lenders (other than Swingline Loans) as the Administrative shall determine may be
necessary in order for such Lender to hold such Loans in accordance with its Applicable
Percentage.
ARTICLE III
Representations and Warranties
Each Loan Party represents and warrants to the Lenders that:
SECTION 3.01 Organization; Powers. Each of the Loan Parties and each of its
Subsidiaries is duly organized or incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization or incorporation, has all requisite power and
authority to carry on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02 Authorization; Enforceability. (a) The Transactions are within each Loan
Partys organizational powers and have been duly authorized by all necessary organizational actions
and, if required, actions by equity holders. The Loan Documents to which each Loan Party is a
party have been duly executed and delivered by such Loan Party and constitute a legal, valid and
binding obligation of such Loan Party, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, examination, reorganization, moratorium or other laws affecting
creditors rights generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(b) The choice of governing law provisions contained in this Agreement and each other Loan
Document to which any Loan Party is a party are enforceable in the jurisdictions where such Loan
Party is organized or incorporated or any Collateral of such Loan Party is located. Any judgment
obtained in connection with any Loan Document in the jurisdiction of the governing law of such Loan
Document will be recognized and be enforceable in the jurisdictions where such Loan Party is
organized or any Collateral is located.
(c) Subject to applicable Insolvency Laws and applicable principles of public policy, no
Foreign Loan Party, nor any of its property or assets has any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
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prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of
the jurisdiction in which such Foreign Loan Party is organized in respect of its obligations under
the Loan Documents to which it or its property or assets is subject.
(d) The Loan Documents to which each Foreign Loan Party is a party are in proper legal form
under the laws of the jurisdiction in which each such Foreign Loan Party is organized or
incorporated and existing (i) for the enforcement thereof against each such Foreign Loan Party
under the laws of each such jurisdiction and (ii) in order to ensure the legality, validity,
enforceability, priority or admissibility in evidence of such Loan Documents (provided that, with
respect such enforcement or admissibility, such documents may have to be translated into the
official language of the relevant jurisdiction which may be done at the time of enforcement or
admission, as applicable). It is not necessary to ensure the legality, validity, enforceability,
priority or admissibility in evidence of the Loan Documents to which any Foreign Loan Party is a
party that any such Loan Documents be filed, registered or recorded with, or executed or notarized
before, any court or other authority in the jurisdiction in which any such Foreign Loan Party is
organized or that any registration charge or stamp or similar tax be paid on or in respect of the
applicable Loan Documents or any other document, except for any such filing, registration,
recording, execution or notarization that is referred to in Section 3.16 or is not required to be
made until enforcement of the applicable Loan Document.
SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect
and except for filings necessary to perfect Liens created pursuant to the Loan Documents, (b) will
not violate any Requirement of Law applicable to any Loan Party or any of its Subsidiaries, (c)
except as could not reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Effect, will not violate or result in a default under any indenture, agreement or
other instrument binding upon any Loan Party or any of its Subsidiaries or its assets, or give rise
to a right thereunder to require any payment to be made by any Loan Party or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien, or require the
sharing of any Lien, on any asset of any Loan Party or any of its Subsidiaries, except as provided
in the Collateral Documents.
SECTION 3.04 Financial Condition; No Material Adverse Change. (a) The Company has
heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows as of and for the fiscal years ended January 3, 2009 and January
2, 2010, reported on by Deloitte & Touche LLP, a registered public accounting firm. Such financial
statements present fairly, in all material respects, the financial position and results of
operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP. Neither the Company nor any of its consolidated Subsidiaries
has any material Guarantee obligations, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including any interest rate or
foreign currency swap or exchange transaction or other obligation in respect of derivatives, that
are not reflected in the most recent financial statements referred to in this paragraph.
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(b) Except for the Disclosed Matters, since January 2, 2010, there has been no development,
event, or circumstance that has had, or could reasonably be expected to have, a Material Adverse
Effect.
SECTION 3.05 Properties. (a) As of the date of this Agreement, Schedule 3.05
sets forth the address of each parcel of real property that is owned or leased by each Group
Member. Each of such leases and subleases is valid and enforceable in accordance with its terms
and is in full force and effect, and no material default by any party to any such lease or sublease
exists, except, in the case of any such sublease, where such default or such failure to be valid
and enforceable could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Each of the Loan Parties and its Subsidiaries has good and indefeasible
(or in the Province of Ontario, Canada, marketable and insurable) title to, or valid leasehold
interests in, all its real and personal property, free of all Liens other than Permitted Liens and
the Permitted Second Priority Lien, except where failure would not reasonably be expected to have a
Material Adverse Effect.
(b) Each Loan Party and its Subsidiaries owns, or is licensed to use, all material
Intellectual Property that is necessary to its business as currently conducted and the use thereof
by the Loan Parties and its Subsidiaries does not infringe in any material respect upon the rights
of any other Person, and the Loan Parties rights thereto are not subject to any licensing
agreement or similar arrangement other than licenses in the ordinary course of business.
SECTION 3.06 Litigation and Environmental Matters. (a) There are no actions, suits or
proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of any Loan Party, threatened against or affecting the Loan Parties or any of their
Subsidiaries (i) that could reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or
the Transactions.
(b) Except for the Disclosed Matters (i) no Loan Party nor any of its Subsidiaries has
received notice of any claim with respect to any material Environmental Liability or knows of any
basis for it to have or be affected by any material Environmental Liability and (ii) except with
respect to any other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, no Loan Party nor any of its Subsidiaries (1) has
failed to comply with any applicable Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law or (2) has become subject to
any Environmental Liability.
(c) Since the Effective Date, there has been no change in the status of the Disclosed Matters
that, individually or in the aggregate, has resulted in, or materially increased the likelihood of,
a Material Adverse Effect.
SECTION 3.07 Compliance with Laws and Agreements. Each Loan Party and its
Subsidiaries is in compliance with all Requirements of Law applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.
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SECTION 3.08 Investment Company Status. No Loan Party nor any of its Subsidiaries is
an investment company as defined in, or subject to regulation under, the Investment Company Act
of 1940 or shall register as, conduct its business or take any action which shall cause it to be
registered for the purposes of the European Communities (Markets in Financial Instruments)
Regulations 2007.
SECTION 3.09 Taxes. Each Loan Party and its Subsidiaries has timely filed or caused
to be filed all Tax returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except Taxes that are being contested in good
faith by appropriate proceedings and for which such Loan Party or such Subsidiary, as applicable,
has set aside on its books adequate reserves. No tax liens have been filed and no claims are being
asserted with respect to any such taxes. Each Borrower is resident for Tax purposes only in the
jurisdiction of its establishment or incorporation as the case may be. Each Loan Party and its
Subsidiaries has withheld all employee withholdings and has made all employer contributions to be
withheld and made by it pursuant to applicable law on account of the Canada and Quebec pension
plans, employment insurance and employee income taxes. Each Loan Party and its Subsidiaries has,
where applicable, properly operated the PAYE System and has duly made all deductions and payments
required to be made in respect of national insurance contributions pursuant to UK Law.
SECTION 3.10 ERISA; Benefit Plans. (a) Except as could not reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect: (i) no ERISA Event has
occurred or is reasonably expected to occur; (ii) each Loan Party and each of its ERISA Affiliates
is in compliance with the applicable provisions of ERISA, the Code and any other federal, state or
local laws relating to the Plans, and with all regulations and published interpretations
thereunder; (iii) all amounts required by applicable law with respect to, or by the terms of, any
retiree welfare benefit arrangement maintained by any Loan Party or any of its ERISA Affiliates has
an obligation to contribute have been accrued in accordance with Statement of Financial Accounting
Standards No. 106; (iv) the present value of all accumulated benefit obligations under each Plan
(based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such amounts, exceed the
fair market value of the assets of such Plan allocable to such accrued benefits.
(b) No UK Loan Party nor any of its Subsidiaries or Affiliates is or has at any time after
April 27, 2004 been (i) an employer (for the purposes of Sections 38 to 51 of the UK Pensions Act
2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined
in the UK Pensions Schemes Act 1993), or (ii) connected with or an associate of (as those terms
are used in Sections 39 and 43 of the UK Pensions Act 2004) such an employer.
(c) As of the Effective Date, Schedule 3.10 lists all Foreign Benefit Arrangements and
Foreign Pension Plans currently maintained or contributed to by the Loan Parties and their
Subsidiaries. Except as could not reasonably be expected to result, individually or in the
aggregate, in a Material Adverse Effect: (i) all employer and employee contributions (including
insurance premiums) required from any Loan Party or any of its Subsidiaries or Affiliates by
applicable law or by the terms of any Foreign Benefit Arrangement or Foreign
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Pension Plan (including any policy held thereunder) have been made, or, if applicable, accrued
in accordance with normal accounting practices; (ii) the accrued benefit obligations of each
Foreign Pension Plan (based on those assumptions used to fund such Foreign Pension Plan) with
respect to all current and former participants do not exceed the assets of such Foreign Pension
Plan; (iii) each Foreign Pension Plan that is required to be registered has been registered and has
been maintained in good standing with applicable regulatory authorities; and (iv) each such Foreign
Benefit Arrangement and Foreign Pension Plan is in compliance (A) with all material provisions of
applicable law and all material applicable regulations and regulatory requirements (whether
discretionary or otherwise) and published interpretations thereunder with respect to such Foreign
Benefit Arrangement or Foreign Pension Plan and (B) with the terms of such plan or arrangement;
provided, however, that with respect to (ii), (iii) and (iv) above, Foreign Pension
Plan shall be read to exclude any government-run plan or scheme to which a Loan Party or any of
its Subsidiaries or Affiliates is required to make contributions under applicable law.
(d) (i) All pension schemes operated or maintained for the benefit of a Loan Party or any of
its Subsidiaries, Affiliates or ERISA Affiliates comply with all provisions of the relevant law and
employ reasonable actuarial assumptions; (ii) no Loan Party or any of its Subsidiaries, Affiliates
or ERISA Affiliates has any unsatisfied liability in respect of any pension scheme and there are no
circumstances which may give rise to any such liability; (iii) all pension schemes operated by or
maintained for the benefit of a Loan Party or any of its Subsidiaries, Affiliates or ERISA
Affiliates and/or any of its or their respective current or former employees are, to the extent
required by applicable law, funded or reserved; except in the case of subclauses (i), (ii) and
(iii), to the extent failure to do so (or, with the expiry of a grace period, the giving of notice,
the making of any determination under the Loan Documents or any combination of any of the foregoing
taking into account all remedies of the Loan Parties under the Loan Documents) could not reasonably
be expected to result, individually or in the aggregate, in a Material Adverse Effect.
(e) Except as could not reasonably be expected to result, individually or in the aggregate, a
Material Adverse Effect:
(i) There are no outstanding disputes concerning the assets held in any
Canadian Pension Plans or Canadian Benefit Plans pursuant to any funding agreement;
(ii) All employee contributions to any Canadian Pension Plans and Canadian
Benefit Plans required to be made by way of authorized payroll deduction have been
properly withheld and fully paid into such plans in a timely fashion;
(iii) All reports and disclosures relating to any Canadian Pension Plans and
Canadian Benefit Plans required by any applicable laws or regulations have been
filed or distributed in a timely fashion;
(iv) To the knowledge of the Loan Parties, there have been no improper
withdrawals, or applications of, the assets of any Canadian Pension Plans;
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(v) No amount is owing by or in respect of any Canadian Pension Plans under the
ITA or any provincial taxation statute;
(vi) No Canadian Pension Plan is a defined benefit pension plan that is
registered with the applicable governmental authorities for such plans;
(vii) The Loan Parties, after diligent enquiry, have neither any knowledge, nor
any grounds for believing, that any of the Canadian Pension Plans is the subject of
an investigation, any other proceeding, an action or a claim;
(viii) No promises of benefit improvements under any Canadian Benefit Plan or
Canadian Pension Plan have been made; and
(ix) Except as disclosed in Schedule 3.10, no Canadian Benefit Plan
provides benefits to retired employees or promises benefits at and after retirement
to active employees.
SECTION 3.11 Disclosure. Each Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it or any Subsidiary is subject, and all
other matters known to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. Neither the Confidential Information Memorandum nor any of
the other reports, financial statements, certificates or other information furnished by or on
behalf of any Loan Party to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or any other Loan Document (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they
were made, and taken as a whole, not misleading; provided that, with respect to projected
financial information, the Loan Parties represent only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time delivered and, if such projected
financial information was delivered prior to the Effective Date, as of the Effective Date.
SECTION 3.12 No Default. No Loan Party nor any of its Subsidiaries is in default in
the performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound in any respect that could reasonably be expected to have a
Material Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 3.13 Solvency. (a) Immediately after the consummation of the Transactions to
occur on the Effective Date, (i) the fair value of the assets of (x) the US Loan Parties and (y)
the Canadian Loan Parties, in each case, on a consolidated basis, at a fair valuation, will exceed
their respective debts and liabilities, subordinated, contingent or otherwise; (ii) the present
fair saleable value of the property of (x) the US Loan Parties and (y) the Canadian Loan Parties,
in each case, on a consolidated basis, will be greater than the amount that will be required to pay
the probable liability of their respective debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities generally become absolute and matured; (iii) (x) the
US Loan Parties and (y) the Canadian Loan Parties, in each case on a consolidated basis, will be
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able to pay their respective debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become due, absolute and matured; (iv) (x) the US Loan Parties and (y)
the Canadian Loan Parties, in each case on a consolidated basis, will not have unreasonably small
capital with which to conduct the business in which they are engaged as such business is now
conducted and is proposed to be conducted after the Effective Date; (v) neither the US Loan Parties
nor the Canadian Loan Parties, in each case on a consolidated basis, have ceased paying their
current obligations in the ordinary course of business as they generally become due, (vi) the
property of (x) the US Loan Parties and (y) the Canadian Loan Parties, in each case on a
consolidated basis, at a fair valuation, is greater than the total amount of their respective debts
and liabilities, subordinated, contingent or otherwise; and (vii) the property of (x) the US Loan
Parties and (y) the Canadian Loan Parties, in each case on a consolidated basis, is sufficient, if
disposed of at a fairly conducted sale under legal process, to enable payment of all their
respective obligations, due and accruing.
(b) Immediately after the consummation of the Transactions to occur on the Effective Date, (i)
the fair value of the assets of each European Loan Party and each Account Party, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the
present fair saleable value of the property of each European Loan Party and each Account Party will
be greater than the amount that will be required to pay the probable liability of its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities
generally become absolute and matured; (iii) each European Loan Party and each Account Party will
be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become due, absolute and matured; (iv) each European Loan Party and each Account Party
will not have unreasonably small capital with which to conduct the business in which it is engaged
as such business is now conducted and is proposed to be conducted after the Effective Date; (v) no
European Loan Party or Account Party has ceased paying its current obligations in the ordinary
course of business as they generally become due, (vi) the property of each European Loan Party and
each Account Party, at a fair valuation, is greater than the total amount of its debts and
liabilities, subordinated, contingent or otherwise; (vii) the property of each European Loan Party
and each Account Party is sufficient, if disposed of at a fairly conducted sale under legal
process, to enable payment of all its obligations, due and accruing; and (viii) in the case of a
German Loan Party (A) it is not in a situation to admit its inability or shall be unable to pay its
debts as they fall due (Zahlungsunfähigkeit), (B) it is not over-indebted (überschuldet) or in a
situation to file for insolvency because of any of the reasons set out in Sections 17 to 19 of the
German Insolvency Code (Insolvenzordnung), (C) its management is not required by law to file for
insolvency because of any of the circumstances specified in the preceding sub-clauses (A) or (B)
and (D) a competent court has not initiated any measures pursuant to Section 21 of the German
Insolvency Code (Insolvenzordnung). In the case of any Designated Loan Party, any such
determination set forth above (other than pursuant to clauses (iii), (v) and, with respect to any
Designated Loan Party that is a German Loan Party, (viii) above) shall be made without giving
effect to any intercompany obligations.
(c) No Loan Party intends to, or will permit any of its Subsidiaries to, and no Loan Party
believes that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts
as they mature, taking into account the timing of and amounts of cash to be received by it or any
such Subsidiary and the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.
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SECTION 3.14 Insurance. Schedule 3.14 sets forth a description of all
insurance maintained by or on behalf of the Loan Parties as of the Effective Date. As of the
Effective Date, all premiums in respect of such insurance have been paid. The Loan Parties believe
that the insurance maintained by or on behalf of the Loan Parties and their Subsidiaries are
adequate.
SECTION 3.15 Capitalization and Subsidiaries. Schedule 3.15 sets forth, as of
the Effective Date, (a) a correct and complete list of the name and relationship to the Company of
each and all of the Companys Subsidiaries, (b) a true and complete listing of each class of
authorized Equity Interests of each Borrower (other than the Company), of which all of such issued
shares are validly issued, outstanding, fully paid and non-assessable (to the extent such concepts
are applicable), and owned beneficially and of record by the Persons identified on Schedule
3.15, and (c) the type of entity of the Company and each of its Subsidiaries. All of the
issued and outstanding Equity Interests owned by any Loan Party in its Subsidiaries has been (to
the extent such concepts are relevant with respect to such ownership interests) duly authorized and
issued and is fully paid and non assessable.
SECTION 3.16 Security Interest in Collateral. The provisions of this Agreement and
the other Loan Documents create legal and valid Liens on all the Collateral in favor of the
applicable Collateral Agent, for the benefit of the Agents, the applicable Lenders and the
applicable Issuing Banks, and (a) upon filing of UCC financing statements and the taking of any
other actions or making of filings required for perfection under the laws of the relevant
Collateral Documents and specified in such Collateral Documents, as necessary (including but not
limited to (i) the filing of financing statements under the PPSA and (ii) with respect to Liens
created by a UK Loan Party where registration of particulars of such Liens is required, the
registration at (x) the Companies Registration Office in England, Scotland and Wales, (y) the UK
Trademark Registry at the Patent Office in England, Scotland and Wales and (z) the UK Land Registry
or UK Charges Registry in England, Scotland and Wales), and, if applicable, the taking of actions
or making of filings with respect to Intellectual Property registrations or applications issued or
pending as specified, and, in the case of real property, filing of the Mortgages as necessary, such
Liens constitute perfected and continuing Liens on the Collateral, securing the applicable Secured
Obligations, enforceable against the applicable Loan Party and all third parties, and having
priority over all other Liens on the Collateral, except in the case of Permitted Liens, to the
extent any such Permitted Liens would have priority over the Liens in favor of the US Collateral
Agent, the Canadian Collateral Agent or the European Collateral Agent, as applicable, pursuant to
any applicable law. As of the Effective Date, the jurisdictions in which the filing of UCC
financing statements (or their equivalent under the PPSA) are necessary are listed on Schedule
3.16 and the jurisdictions in which the filing of the Mortgages are necessary are listed on
Schedule 3.16.
SECTION 3.17 Employment Matters. As of the Effective Date, there are no strikes,
lockouts or slowdowns, and no material unfair labor practice charges, against any Loan Party or its
Subsidiaries pending or, to the knowledge of the Borrowers, threatened. The terms and conditions
of employment, hours worked by and payments made to employees of the Loan Parties and their
Subsidiaries have not been in material violation of the Fair Labor Standards Act, the Employee
Standards Act (Ontario), or any other applicable federal, provincial, territorial, state, local or
foreign law dealing with such matters. All material payments due from any Loan Party or any of its
Subsidiaries, or for which any claim may be made against any Loan Party or
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any of its Subsidiaries, on account of wages, vacation pay and employee health and welfare
insurance and other benefits, including on account of the Canada and Quebec pension plans, have
been paid or accrued as a liability on the books of the Loan Party or such Subsidiary.
SECTION 3.18 Common Enterprise. The successful operation and condition of each of the
Loan Parties is dependent on the continued successful performance of the functions of the group of
the Loan Parties as a whole and the successful operation of each of the Loan Parties is dependent
on the successful performance and operation of each other Loan Party. Each Loan Party expects to
derive benefit (and its board of directors or other governing body has determined that it may
reasonably be expected to derive benefit), directly and indirectly, from (i) successful operations
of each of the other Loan Parties and (ii) the credit extended by the Lenders to the Borrowers
hereunder, both in their separate capacities and as members of the group of companies. Each Loan
Party has determined that execution, delivery, and performance of this Agreement and any other Loan
Documents to be executed by such Loan Party is within its purpose, will be of direct and indirect
benefit to such Loan Party, and is in its best interest.
SECTION 3.19 Centre of Main Interests. For the purposes of the Council of the
European Union Regulation No. 1346/2000 on Insolvency Proceedings, each European Loan Partys
centre of main interests (as that term is used in Article 3(1) therein) is situated in its
jurisdiction of incorporation and it has no establishment (as that term is used in Article 2(h)
therein) in any other jurisdiction.
SECTION 3.20 Regulation H. No Mortgage encumbers improved real property that is
located in an area that has been identified by the Secretary of Housing and Urban Development as an
area having special flood hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968 other than the property described on Schedule 1.01(d)
located in North Bergen, New Jersey.
SECTION 3.21 Certain Documents. The Borrower Representative has delivered to the
Administrative Agent a complete and correct copy of any agreements governing the Existing Euro
Notes and the 2006 Synthetic Lease, including the Existing Euro Notes Documentation and the
Synthetic Lease Documentation, and including any material amendments, supplements or modifications
with respect to any of the foregoing.
ARTICLE IV
Conditions
SECTION 4.01 Effective Date. The effectiveness of this Agreement and the obligations
of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall
not become effective until the date on which each of the following conditions is satisfied (or
waived in accordance with Section 9.02):
(a) Credit Agreement and Loan Documents. The Administrative Agent (or its
counsel) shall have received (i) from each party hereto either (A) a counterpart of this
Agreement signed on behalf of such party or (B) written evidence satisfactory to the
Administrative Agent (which may include facsimile or .pdf transmission of a signed
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signature page of this Agreement) that such party has signed a counterpart of this
Agreement and (ii) duly executed copies (or facsimile or .pdf copies) of the Specified Loan
Documents and such other certificates, documents, instruments and agreements as the
Administrative Agent shall reasonably request in connection with the transactions
contemplated by this Agreement and the other Loan Documents, including any promissory notes
requested by a Lender pursuant to Section 2.10 payable to the order of each such requesting
Lender and written opinions of the Loan Parties counsel, addressed to the Administrative
Agent (and, where applicable, the Canadian Administrative Agent and the European
Administrative Agent), the Issuing Banks and the Lenders.
(b) Financial Statements and Projections. The Lenders shall have received (i)
audited consolidated financial statements of the Company and its Subsidiaries for their 2008
and 2009 fiscal years, (ii) unaudited interim consolidated financial statements of the
Company and its Subsidiaries for each fiscal month ended after the date of the latest
applicable financial statements delivered pursuant to clause (i) of this paragraph as to
which such financial statements are available, (iii) monthly projections (including
forecasts of Aggregate Availability) of the Company and its Subsidiaries for each fiscal
month ending April 3, 2010 through January 1, 2011 and (iv) annual projections of the
Company and its Subsidiaries for fiscal year 2011 through 2014.
(c) Closing Certificates; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i) a certificate of each
Loan Party, dated the Effective Date and executed by its Secretary, Assistant Secretary or
authorized manager or director, which shall (A) certify the resolutions of its Board of
Directors, Board of Managers, shareholders, members or other body authorizing the execution,
delivery and performance of the Loan Documents to which it is a party, (B) identify by name
and title and bear the signatures of any officers or managers of such Loan Party authorized
to sign the Loan Documents to which it is a party, (C) in respect of a UK Loan Party,
contain a statement to the effect that its entry into and performance of the transactions
contemplated by the Loan Documents do not and will not exceed any limit on its powers to
borrow, grant security or give the guarantees and indemnities contemplated by the Loan
Documents to which it is a party, and (D) contain appropriate attachments, including the
certificate or articles of incorporation or organization of each Loan Party certified by the
relevant authority of the jurisdiction of organization of such Loan Party, a true and
correct certified (if applicable) copy of its by-laws, memorandum and articles of
association or operating, management or partnership agreement (or, in each case, such
certificate shall certify that any such documents delivered to the Administrative Agent in
connection with the Existing Credit Agreement continue to be true, complete and correct
copies) and (with respect to any European Loan Party or Canadian Loan Party) a certified
list of its shareholders; and (ii) a long form certificate of good standing, status or
compliance, as applicable, for each Loan Party from its jurisdiction of organization (to the
extent such concept is relevant or applicable in such jurisdiction).
(d) No Default Certificate. The Administrative Agent shall have received a
certificate, signed by the chief financial officer of the Borrower Representative and dated
the Effective Date (i) stating that no Default has occurred and is continuing, (ii) stating
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that the representations and warranties contained in Article III are true and correct
as of such date, and (iii) certifying any other factual matters as may be reasonably
requested by the Administrative Agent.
(e) Fees. The Lenders, the Agents and the Lead Arrangers shall have received
all fees required to be paid, and all reasonable and documented out-of-pocket expenses for
which invoices have been presented (including the reasonable fees, disbursements and other
charges of one legal counsel of the Administrative Agent, as well as one local counsel of
the Administrative Agent in each relevant jurisdiction, and in the event of any conflict of
interest, additional counsel for affected indemnified persons), on or before the Effective
Date. All such amounts will be paid with proceeds of Loans made on the Effective Date and
will be reflected in the funding instructions given by the Borrower Representative to the
Administrative Agent on or before the Effective Date.
(f) Lien Searches. The Administrative Agent shall have received the results of
a recent lien search in each of the jurisdictions where the Loan Parties (other than the
European Loan Parties) are organized, and such search report shall reveal no liens on any of
the assets of the Loan Parties except for liens permitted by Section 6.02 or discharged on
or prior to the Effective Date pursuant to a pay-off letter or other documentation
satisfactory to the Administrative Agent.
(g) Funding Accounts. The Administrative Agent shall have received a notice
from the Borrower Representative setting forth the deposit account(s) of the Borrowers (the
Funding Accounts) to which the Lender is authorized by the Borrowers to transfer
the proceeds of any Borrowings requested or authorized pursuant to this Agreement.
(h) Collateral Access and Control Agreements. (i) The Borrowers shall have
used commercially reasonable efforts to obtain the Collateral Access Agreements required to
be provided pursuant to the Security Agreements and any such agreements so obtained shall
have been delivered to the Administrative Agent and (ii) the Administrative Agent shall have
received (x) each Deposit Account Control Agreement and Lock Box Agreement required to be
provided pursuant to the Security Agreements and (y) each account transfer agreement or
other document that the European Administrative Agent deems necessary to ensure future
compliance with Section 5.17.
(i) Solvency. The Administrative Agent shall have received a solvency
certificate from a Financial Officer of each Borrower (other than the European Borrower and
the UK Borrower which shall provide a representation as to solvency in a directors
certificate).
(j) Borrowing Base Certificate. The Administrative Agent shall have received
(a) an Aggregate Borrowing Base Certificate which calculates the Aggregate Borrowing Base as
of April 3, 2010 and (b) a US Borrowing Base Certificate, Canadian Borrowing Base
Certificate, UK Borrowing Base Certificate and European Borrowing Base Certificate which
calculates each such Borrowing Base as of April 3, 2010, in each case on a pro forma basis
after giving effect to the Effective Date.
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(k) Closing Availability. After giving effect to all Borrowings to be made on
the Effective Date and the issuance of any Letters of Credit on the Effective Date and
payment of all fees and expenses due hereunder, and with all of the Loan Parties
indebtedness, liabilities and obligations current, the Loan Parties Aggregate Availability
shall not be less than $150,000,000.
(l) Pledged Stock; Stock Powers; Pledged Notes. The US Collateral Agent, the
Canadian Collateral Agent or the European Collateral Agent, as applicable and with the
exception of the Netherlands Loan Parties, shall have received (i) the certificates
representing shares of Equity Interests pledged pursuant to the applicable Security
Agreements, together with an undated stock power or stock transfer form, as applicable, for
each such certificate executed in blank by a duly authorized officer of the pledgor thereof
and (ii) each promissory note (if any) pledged to the US Collateral Agent, the Canadian
Collateral Agent or the European Collateral Agent, as applicable and with the exception of
the Netherlands Loan Parties, pursuant to the Security Agreements endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor
thereof or pursuant to a duly notarized German Share Pledge Agreement and the German
Partnership Interest Pledge Agreement.
(m) Filings, Registrations and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by the Collateral Documents or under
law or reasonably requested by any Collateral Agent to be filed, registered or recorded in
order to create in favor of the applicable Collateral Agent, for the benefit of the Agents,
the applicable Lenders and the applicable Issuing Banks, a perfected Lien on the Collateral
described therein, prior and superior in right to any other Person (other than with respect
to Liens expressly permitted by Section 6.02), shall be in proper form for filing,
registration or recordation.
(n) Approvals. All material governmental and third party approvals (including
landlords and other consents) necessary in connection with the Transactions, the continuing
operations of the Company and its Subsidiaries and the transactions contemplated hereby
shall have been obtained and be in full force and effect, and all applicable waiting periods
shall have expired without any action being taken or threatened by any competent authority
that would restrain, prevent or otherwise impose adverse conditions on the Transactions or
the financing contemplated hereby.
(o) Mortgages, etc. The Loan Parties shall have delivered to the US Collateral
Agent, with respect to each Mortgaged Property subject to an Existing Mortgage pursuant to
the Existing Credit Agreement, each of the following, in form and substance reasonably
satisfactory to the Administrative Agent:
(i) an amendment to the Existing Mortgage covering such parcel of real property
in form and substance reasonably satisfactory to the Administrative Agent;
(ii) (1) an ALTA or other mortgagees title insurance policy for such Mortgaged
Property, together with such endorsements thereto as may be required
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by the US Collateral Agent or (2) a date-down endorsement to (or modification
of) the existing title insurance policy for such parcel of Mortgaged Property issued
by the title company that issued such existing title insurance policy, which
endorsement (or modification) shall update the effective date of such existing title
insurance policy and amend the description of the insured Existing Mortgage to
include the amendment to such Existing Mortgage;
(iii) evidence that the Company has paid all premiums in respect of the
endorsement to the existing title policy for such Mortgaged Property, as well as all
charges for mortgage recording taxes and mortgage filing fees payable in connection
with the recording of the amendment to the Existing Mortgage covering such parcel of
Mortgaged Property, and all related expenses, if any;
(iv) an opinion of counsel in the state in which such parcel of real property
is located in form and substance and from counsel reasonably satisfactory to the
Administrative Agent; and
(v) (1) a Life-of-Loan Federal Emergency Management Agency Standard Flood
Hazard Determination with respect to such Mortgaged Property (together with, if
required, a notice about special flood hazard area status and flood disaster
assistance duly executed by the Company or the applicable Loan Party in the event
any such Mortgaged Property is located in a special flood hazard area) and (2) if
any portion of such Mortgaged Property is located in an area identified by the
Federal Emergency Management Agency (or any successor agency) as a Special Flood
Hazard Area with respect to which flood insurance has been made available under the
National Flood Insurance Act of 1968 (now or as hereafter in effect or any successor
act thereto), (a) flood insurance with a financially sound and reputable insurer, in
an amount and otherwise sufficient to comply with all applicable rules and
regulations promulgated pursuant to (i) the National Flood Insurance Act of 1968 as
now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster
Protection Act of 1973 as now or hereafter in effect or any successor statute
thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter
in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act
of 2004 as now or hereafter in effect or any successor statute thereto (any such
insurance Flood Insurance) and (b) evidence of such insurance in form and
substance reasonably acceptable to the Administrative Agent.
(p) Insurance. The Administrative Agent shall have received evidence of
insurance coverage in form, scope, and substance reasonably satisfactory to the
Administrative Agent and otherwise in compliance with the applicable terms of the Security
Agreements (including Section 5.09 of this Agreement and the applicable provisions of the
Security Agreements).
(q) Appraisals and Field Exams. The Administrative Agent shall have received
appraisals of Inventory and real property and field exams from appraisers satisfactory to
the Administrative Agent.
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(r) Customer List. The Administrative Agent shall have received a true and
complete list of the names and addresses of the wholesale customers of each Loan Party.
(s) Letter of Credit Application. The Administrative Agent shall have received
a properly completed letter of credit application if the issuance of a Letter of Credit will
be required on the Effective Date.
(t) USA Patriot Act. Each Lender shall have received all information necessary
to enable such Lender to identify each Borrower and each other Loan Party to the extent
required for compliance with the Patriot Act or other know your customer and anti-money
laundering rules and regulations.
(u) Acknowledgement and Consent. The Administrative Agent shall have received
an Acknowledgement and Consent, substantially in the form of Schedule 1 to the US Security
Agreement, duly executed by each issuer of any US Pledged Stock or US Pledged Note that is
not a US Loan Party and has not delivered an Acknowledgment and Consent in connection with
the Existing Credit Agreement, in each case, in form and substance reasonably acceptable to
the Administrative Agent.
(v) Synthetic Lease Documents. The Administrative Agent shall have received
duly executed copies of the Synthetic Lease Documentation, including the Synthetic Lease
Amendment, in form and substance reasonably acceptable to the Administrative Agent.
The Administrative Agent shall notify the Borrowers and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. After the Effective Date, the Administrative Agent shall
make available to the Lenders executed versions of the Loan Documents. Notwithstanding the
foregoing, neither this Agreement nor the obligations of the Lenders to make Loans and of any
Issuing Bank to issue Letters of Credit hereunder shall become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 2:00 p.m.,
New York time, on May 6, 2010 (and, in the event such conditions are not so satisfied or waived,
the Commitments shall terminate at such time).
SECTION 4.02 Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of
Credit (other than any such amendments (Immaterial Amendments) that are purely
administrative in nature and, for the avoidance of doubt, do not involve amendments to the amount
or tenor of such Letter of Credit), is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Loan Parties set forth in this Agreement
shall be true and correct in all material respects on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, except that such representations and warranties (i) that relate solely to an
earlier date shall be true and correct as of such earlier date and (ii) shall be true and
correct in all respects if they are qualified by a materiality standard.
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(b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.
(c) Each Borrowing and each issuance of any Letter of Credit shall be made in
compliance with the Revolving Exposure Limitations.
Each Borrowing and each issuance, amendment (other than any Immaterial Amendment), renewal or
extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the
Borrowers on the date thereof as to the matters specified in paragraphs (a), (b) and (c) of this
Section 4.02. Notwithstanding the failure to satisfy the conditions precedent set forth in
paragraphs (a) or (b) of this Section, unless otherwise directed by the Required Lenders, the
Administrative Agent may, but shall have no obligation to, continue to make (or authorize the
European Administrative Agent or Canadian Administrative Agent to make) Loans and an Issuing Bank
may, but shall have no obligation to, issue or cause to be issued any Letter of Credit (or amend,
renew or extend any Letter of Credit) for the ratable account and risk of Lenders from time to time
if the Administrative Agent believes that making such Loans or issuing or causing to be issued (or
amending, renewing or extending) any such Letter of Credit is in the best interests of the Lenders
(it being understood that in no event shall the Administrative Agent continue to make (or authorize
the European Administrative Agent or the Canadian Administrative Agent to make) Revolving Loans or
an Issuing Lender issue (or amend (other than pursuant to Immaterial Amendments), renew or extend)
Letters of Credit if an Event of Default pursuant to clauses (a), (b), (d) (solely with respect to
a failure to be in compliance with Section 6.16), (h), (i), (m), (n), (o) or (p) of Article VII
shall have occurred and be continuing).
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full in cash and all Letters of
Credit shall have expired or terminated (or have been cash collateralized in accordance with
Section 2.06(j) hereof) and all LC Disbursements shall have been reimbursed, each Loan Party
executing this Agreement covenants and agrees, jointly and severally with all of the Loan Parties,
with the Lenders that:
SECTION 5.01 Financial Statements; Borrowing Base and Other Information. The Company
will furnish to the Administrative Agent (with copies to be provided to each Lender by the
Administrative Agent):
(a) within 90 days after the end of each fiscal year of the Company, its audited
consolidated balance sheet and related statements of operations, stockholders equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or
another registered public accounting firm of recognized national standing (without a going
concern or like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such
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consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Company and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, accompanied by any required
auditors communications to the Audit Committee related to significant deficiencies and
material weaknesses prepared by said accountants;
(b) within 45 days after the end of each of the first three fiscal quarters of the
Companys fiscal year, its consolidated balance sheet and related statements of operations,
stockholders equity and cash flows as of the end of and for such fiscal quarter and the
then elapsed portion of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the balance sheet, as
of the end of) the previous fiscal year, all certified by a Financial Officer of the
Borrower Representative as presenting fairly in all material respects the financial
condition and results of operations of the Company and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments;
(c) within 30 days (or, with respect to the twelfth fiscal month of each fiscal year,
within 60 days) after the end of each fiscal month of the Company (other than the third,
sixth and ninth fiscal month of each fiscal year), its consolidated balance sheet and
related statements of operations, stockholders equity and cash flows as of the end of and
for such fiscal month and the then elapsed portion of the fiscal year, setting forth in each
case in comparative form the figures for the corresponding period or periods of (or, in the
case of the balance sheet, as of the end of) the previous fiscal year, all certified by one
of its Financial Officers as presenting fairly in all material respects the financial
condition and results of operations of the Company and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (c)
above, a certificate of a Financial Officer of the Borrower Representative in substantially
the form of Exhibit C (i) certifying, in the case of the financial statements
delivered under clause (b) or (c), as presenting fairly in all material respects the
financial condition and results of operations of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject
to normal year-end audit adjustments, (ii) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (iii) demonstrating compliance with Section 6.16
and (iv) stating whether any change in GAAP or in the application thereof has occurred since
the date of the audited financial statements referred to in Section 3.04 and, if any such
change has occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) above, an
auditors report of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their
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examination of such financial statements of any Event of Default (which report may be
limited to the extent required or advised by accounting rules or guidelines);
(f) as soon as available, but in any event 15 days prior to the end of each fiscal year
of the Company, a copy of the plan and forecast (including a projected consolidated balance
sheet, income statement and funds flow statement in form acceptable to the Administrative
Agent and including forecasts of Aggregate Availability) of the Company for each month of
the upcoming fiscal year (the Projections) in form reasonably satisfactory to the
Administrative Agent;
(g) as soon as available, but in any event within 20 days (or, in the case of the last
fiscal month of each fiscal year, 30 days) of the end of each fiscal month (or within three
Business Days of the end of each week at any time during a Full Cash Dominion Period), an
Aggregate Borrowing Base Certificate, a US Borrowing Base Certificate, a Canadian Borrowing
Base Certificate, a UK Borrowing Base Certificate and a European Borrowing Base Certificate,
in each case which calculates such Borrowing Base, and supporting information in connection
therewith, together with any additional reports with respect to the Aggregate Borrowing
Base, the US Borrowing Base, the Canadian Borrowing Base, the UK Borrowing Base or the
European Borrowing Base of a Borrower as the Administrative Agent or any Collateral Agent
may reasonably request; provided that no Canadian Borrowing Base Certificate, UK
Borrowing Base Certificate or European Borrowing Base Certificate or additional reports with
respect thereto shall be required if the European Sublimit, UK Sublimit or Canadian
Sublimit, as applicable, shall have been terminated;
(h) as soon as available but in any event within 20 days (or, in the case of the last
fiscal month of each fiscal year, 30 days) of the end of each fiscal month (or within three
Business Days of the end of each week at any time during a Full Cash Dominion Period) and at
such other times as may be reasonably requested by the Administrative Agent or any
Collateral Agent, as of the period then ended:
(i) a detailed aging of each Loan Partys Accounts (1) including all invoices
aged by invoice date and due date (with an explanation of the terms offered) and (2)
reconciled to the applicable Borrowing Base Certificate delivered as of such date
prepared in a manner reasonably acceptable to the Administrative Agent, together
with a summary specifying the name, address, and balance due for each Account
Debtor;
(ii) a schedule detailing the Loan Parties Inventory, in form satisfactory to
the Administrative Agent, (1) by location (showing Inventory in transit, any
Inventory located with a third party under any consignment, bailee arrangement, or
warehouse agreement), by class (raw material, work-in-process and finished goods),
by product type, and by volume on hand, which Inventory shall be valued at the lower
of cost (determined on a first-in, first-out basis) or market and adjusted for
Reserves as the Administrative Agent has previously indicated to the Loan Parties
are deemed by the Administrative Agent to be appropriate, (2) including a report of
any variances or other results of Inventory
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counts performed by the Loan Parties since the last Inventory schedule
(including information regarding sales or other reductions, additions, returns,
credits issued by any Loan Party and complaints and claims made against any Loan
Party), and (3) reconciled to the applicable Borrowing Base Certificate delivered as
of such date;
(iii) a worksheet of calculations prepared by the Loan Parties to determine
Eligible Accounts and Eligible Inventory, such worksheets detailing the Accounts and
Inventory excluded from Eligible Accounts and Eligible Inventory and the reason for
such exclusion;
(iv) a reconciliation of the Loan Parties Accounts and Inventory between the
amounts shown in the applicable Loan Partys general ledger and financial statements
and the reports delivered pursuant to clauses (i) and (ii) above; and
(v) a reconciliation of the loan balance per the Loan Parties general ledger
to the loan balance under this Agreement;
(i) as soon as available but in any event within 20 days (or, in the case of the last
fiscal month of each fiscal year, 30 days) of the end of each fiscal month and at such other
times as may be requested by the Administrative Agent, as of the month then ended, a
schedule and aging of the Loan Parties accounts payable, delivered electronically in a text
formatted file acceptable to the Administrative Agent;
(j) within 45 days of each March 31 and September 30, in the case of the US Loan
Parties and Canadian Loan Parties, or within 15 days of the end of each calendar month, in
the case of the European Loan Parties, (or upon the reasonable request of the Administrative
Agent), an updated customer list for each Loan Party, which list shall state the customers
name, mailing address and phone number (to the extent available) and shall be certified as
true and correct by a Financial Officer of the Borrower Representative;
(k) promptly upon the Administrative Agents reasonable request:
(i) copies of invoices in connection with the invoices issued by the Loan
Parties in connection with any Accounts, credit memos, shipping and delivery
documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents
in connection with any Inventory or Equipment purchased by any Loan Party; and
(iii) a schedule detailing the balance of all intercompany accounts of the Loan
Parties;
(l) as soon as possible and in any event within 30 days of filing thereof, copies of
all U.S. federal income tax returns (including all related schedules) filed by any
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Loan Party with the U.S. Internal Revenue Service; provided that for taxable
years during which the Company or any Loan Party did not incur any loss and for which the
Company or any Loan Party is not utilizing any net operating loss carrybacks or forwards,
the Company is required to provide only copies of page one through four and material related
schedules of U.S. federal income tax returns filed for such taxable years;
(m) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Company or any Subsidiary with
the U.S. Securities and Exchange Commission, or any Governmental Authority succeeding to any
or all of the functions of said Commission, or with any national securities exchange, or
distributed by the Company to its shareholders generally, as the case may be;
provided that any documents required to be delivered pursuant to this clause (m)
shall be deemed to have been delivered on the date (i) on which the Company posts such
documents, or provides a link thereto on the Companys website on the Internet at the
website address listed in Section 9.01; or (ii) on which such documents are posted on the
Companys behalf on IntraLinks/IntraAgency or another relevant website, if any, to which
each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided further
that: (x) upon written request by the Administrative Agent, the Company shall deliver paper
copies of such documents to the Administrative Agent for further distribution to each Lender
until a written request to cease delivering paper copies is given by the Administrative
Agent and (y) the Company shall notify (which may be by facsimile or electronic mail) the
Administrative Agent of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such documents; and
(n) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of any Loan Party or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent, any Collateral
Agent or any Lender (through the Administrative Agent) may reasonably request.
SECTION 5.02 Notices of Material Events. The Loan Parties will furnish to the
Administrative Agent and each Lender prompt written notice (and in any event within five days after
such Loan Party obtains knowledge of any of the following events) of the following:
(a) the occurrence of any Default or Event of Default;
(b) any actual knowledge of the Loan Parties of, or any receipt of any notice of, any
governmental investigation or any litigation, arbitration or administrative proceeding
commenced or, to the knowledge of any Loan Party, threatened against any Loan Party or any
of its Subsidiaries that (i) seeks damages in excess of $25,000,000, (ii) seeks material
injunctive relief, (iii) is asserted or instituted against any Plan, Foreign Pension Plan,
Foreign Benefit Arrangement, its fiduciaries or its assets, (iv) alleges criminal misconduct
by any Loan Party or any of its Subsidiaries, (v) alleges the violation of any law
regarding, or seeks remedies in connection with, any Environmental Laws, or
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(vi) contests any tax, fee, assessment, or other governmental charge in excess of
$25,000,000;
(c) any Lien (other than Permitted Encumbrances) or claim made or asserted against any
of the Collateral in excess of $5,000,000;
(d) any loss, damage, or destruction to the Collateral in the amount of $25,000,000 or
more per occurrence or related occurrences, whether or not covered by insurance;
(e) any and all default notices received under or with respect to any leased location
or public warehouse where Collateral with a cost in excess of $2,000,000 is located (which
shall be delivered within five Business Days after receipt thereof);
(f) the occurrence of any ERISA Event or breach of the representations and warranties
in Section 3.10 that, alone or together with any other ERISA Events or breaches of such
representations and warranties that have occurred, could reasonably be expected to result in
liability of the Loan Parties and their Subsidiaries, whether directly or by virtue of their
affiliate with any ERISA Affiliate, in an aggregate amount exceeding $25,000,000;
(g) the release into the environment of any Hazardous Material that is required by any
applicable Environmental Law to be reported to a Governmental Authority and which could
reasonably be expected to lead to any material Environmental Liability;
(h) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect; and
(i) any material amendments to the Kate Spade JV 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.
Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower Representative setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 5.03 Existence; Conduct of Business. Each Loan Party will, and will cause
each of its Subsidiaries to, (a) do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence and, except where any of the following could not
reasonably be expected to result in a Material Adverse Effect, the rights, qualifications,
licenses, permits, franchises, governmental authorizations, intellectual property rights, licenses
and permits used or useful in the conduct of its business, and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted; provided that
the foregoing shall not prohibit any merger, amalgamation, consolidation, liquidation or
dissolution
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permitted under Section 6.03 and (b) carry on and conduct its business in substantially the
same manner and in substantially the same fields of enterprise as it is presently conducted.
SECTION 5.04 Payment of Obligations. Each Loan Party will, and will cause each of its
Subsidiaries to, pay or discharge all Material Indebtedness and all other material liabilities and
obligations, including Taxes, before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b)
such Loan Party or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP or local generally accepted accounting principles, as the case may
be, and (c) the failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.05 Maintenance of Properties. Each Loan Party will, and will cause each of
its Subsidiaries to, keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted, except where the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06 Books and Records; Inspection Rights. Without limiting Sections 5.11 or
5.12 hereof, each Loan Party will, and will cause each of its Subsidiaries to, (a) keep proper
books of record and account in which full, true and correct entries in accordance with GAAP or
local generally accepted accounting principles, as the case may be, are made of all dealings and
transactions in relation to its business and activities and (b) permit any representatives
designated by the Administrative Agent, any Collateral Agent or any Lender (including employees of
the Administrative Agent, any Collateral Agent, any Lender or any consultants, accountants, lawyers
and appraisers retained by the Administrative Agent, any Collateral Agent or any Lender), upon
reasonable prior notice during normal business hours, to visit and inspect its properties and to
examine and make extracts from its books and records, including environmental assessment reports
and Phase I or Phase II studies, and the applicable Loan Party or Subsidiary will make its officers
and independent accountants available to discuss its affairs, finances and condition with such
representatives, all at such reasonable times as are requested during normal business hours. For
purposes of this Section 5.06, it is understood and agreed that a single site visit and inspection
may consist of examinations conducted at multiple relevant sites and involve one or more relevant
Loan Parties and Subsidiaries and their respective assets. All such site visits and inspections
shall be at the sole expense of the Loan Parties. The Loan Parties acknowledge that the
Administrative Agent and each Collateral Agent, after exercising its rights of inspection, may
prepare and distribute to the Lenders certain Reports pertaining to the Loan Parties and their
respective Subsidiaries assets for internal use by the Administrative Agent, each Collateral Agent
and the Lenders.
SECTION 5.07 Compliance with Laws. (a) Each Loan Party will, and will cause each of
its Subsidiaries to, comply with all Contractual Obligations and Requirements of Law applicable to
it or its property, except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(b) US and Foreign Plans and Arrangements.
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(i) For each Company Plan, each Loan Party will, and will cause each of its
Subsidiaries, Affiliates and ERISA Affiliates to, in a timely fashion comply with
and perform all of its obligations under and in respect of such Company Plan,
including under plan terms, any funding agreements and all applicable laws and
regulatory requirements (whether discretionary or otherwise); and
(ii) All employer or employee payments, contributions or premiums required to
be remitted, paid to or in respect of each Company Plan by a Loan Party or any
Subsidiary, Affiliate or ERISA Affiliate thereof shall be paid or remitted by each
Loan Party, or Subsidiary, Affiliate or ERISA Affiliate thereof in a timely fashion
in accordance with the terms thereof, any funding agreements and all applicable
laws; except, in the case of subclauses (i) and (ii) as could not reasonably be
expected to result, individually or in the aggregate, in a Material Adverse Effect;
and
(iii) The Loan Parties shall deliver to each Lender: (A) if requested by such
Lender, copies of each annual and other return, report or valuation with respect to
each Company Plan, as filed with any applicable Governmental Authority; (B) promptly
following receipt thereof, copies of any documents described in Sections 101(k) or
101(l) of ERISA that any Loan Party or any ERISA Affiliate may request with respect
to any Multiemployer Plan; provided that if the Loan Parties or any of their
ERISA Affiliates have not requested such documents or notices from the administrator
or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of
the Administrative Agent, the Loan Parties and/or their ERISA Affiliates shall
promptly make a request for such documents or notices from such administrator or
sponsor and the Loan Parties shall provide copies of such documents and notices to
the Administrative Agent (on behalf of each requesting Lender) promptly after
receipt thereof; (C) promptly after receipt thereof, a copy of any material
direction, order, notice, ruling or opinion that any Loan Party or any Subsidiary,
Affiliate or ERISA Affiliate of any Loan Party may receive from any applicable
Governmental Authority with respect to any Company Plan; (D) notification within 30
days of (i) any increases having a cost to one or more of the Loan Parties or any
Subsidiary, Affiliate or Loan Party thereof in excess of $10,000,000 per annum in
the aggregate, in the benefits of any existing Company Plan, or (ii) the
establishment of any new Company Plan (or, in the case of any Canadian Plan, any
plan that is a Registered Pension Plan as that term is defined under subsection
248(1) of the Income Tax Act (Canada)), or the commencement of contributions to any
such plan to which any Loan Party, Subsidiary, Affiliate or ERISA Affiliate was not
previously contributing; and (E) notification within 30 days of any voluntary or
involuntary termination of, or participation in, a Company Plan.
(c) UK Loan Party Pension Plans and Benefit Plans.
(i) A UK Loan Party shall ensure that (A) neither it nor any of its
Subsidiaries or Affiliates is or has been at any time after April 27, 2004 an
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employer (for the purposes of Sections 38 to 51 of the UK Pensions Act 2004) of
an occupational pension scheme which is not a money purchase scheme (both terms as
defined in the UK Pension Schemes Act 1993) or connected with or an associate of
(as those terms are used in Sections 38 and 43 of the UK Pensions Act 2004) such an
employer and (B) no Person who becomes a Subsidiary or Affiliate of a UK Loan Party
after the date of this Agreement, was formerly an employer (for the purposes of
Sections 38 to 51 of the UK Pensions Act 2004) of an occupational pension scheme
which is not a money purchase scheme (both terms as defined in the UK Pension
Schemes Act 1993) or was formerly connected with or an associate of (as those
terms are used in Sections 38 and 43 of the UK Pensions Act 2004) such an employer.
(d) European Loan Party Pension Plans and Benefit Plans.
(i) No European Loan Party shall establish, nor shall it permit any of its
Subsidiaries or Affiliates to establish, any voluntary pension scheme and/or any
voluntary benefit plan without the prior consent of the Administrative Agent.
(ii) Each European Loan Party shall, and shall cause its Subsidiaries and
Affiliates to, maintain and operate its obligations under (A) its benefit plans, if
any, and (B) the voluntary pension schemes and/or voluntary benefit plans consented
to by the Administrative Agent, if any, in all respects in conformity with the
requirements of applicable law or contract; and
(iii) All pension schemes established or maintained by a Loan Party or any
Subsidiary, Affiliate or ERISA Affiliate thereof shall comply with all provisions of
the relevant law and employ reasonable actuarial assumptions; and no Loan Party or
any Subsidiary, Affiliate or ERISA Affiliate thereof shall have any unsatisfied
liability in respect of any pension scheme and there shall be no circumstances which
may give rise to any liability; except, in the case of subclauses (ii) and (iii), as
could not reasonably be expected to result, individually or in the aggregate, in a
Material Adverse Effect.
(e) Environmental Covenant. The Loan Parties and each of their Subsidiaries: (i)
shall be at all times in compliance with all applicable Environmental Laws, and undertake
reasonable efforts to ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and (ii) generate, use, treat, store, release,
transport, dispose of, and otherwise manage all Hazardous Materials in a manner that would not
reasonably be expected to result in a material liability to any Loan Party or any of its
Subsidiaries or to materially affect any real property owned or operated by any of them; and take
reasonable efforts to prevent any other Person from generating, using, treating, storing,
releasing, transporting, disposing of, or otherwise managing Hazardous Materials in a manner that
could reasonably be expected to result in a material liability to, or materially affect any real
property owned or operated by, any Loan Party or any of their Subsidiaries; it being understood
that this clause (e) shall be deemed not breached by a noncompliance with any of the foregoing (i)
or (ii) if, upon learning of such noncompliance or any condition that results from such
noncompliance, any affected Loan Parties and Subsidiaries promptly develop and diligently implement
a
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response to such noncompliance and any such condition that is consistent with principles of
prudent environmental management and all applicable Environmental Laws, and such response and
condition, in the aggregate with any other such responses and conditions, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.08 Use of Proceeds. The proceeds of the Loans will be used only for working
capital needs and general corporate purposes, including refinancing, repayment, repurchase and cash
settlements of certain existing Indebtedness and acquisitions. No part of the proceeds of any Loan
and no Letter of Credit will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations T, U and X.
SECTION 5.09 Insurance. Each Loan Party will maintain with financially sound and
reputable carriers having a financial strength rating of at least A- by A.M. Best Company (a)
insurance in such amounts (with no greater risk retention) and against such risks (including loss
or damage by fire or flood and loss in transit; theft, burglary, pilferage, larceny, employee
dishonesty, embezzlement, and other criminal activities; business interruption; and general
liability) and such other hazards, as is customarily maintained by companies of established repute
engaged in the same or similar businesses operating in the same or similar locations, (b) all
insurance required pursuant to the Collateral Documents or (in the case of Loan Parties located
outside of the United States) such other insurance maintained with other carriers as is
satisfactory to the Administrative Agent in its Permitted Discretion and (c) if any portion of any
Mortgaged Property is located in an area identified by the Federal Emergency Management Agency (or
any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been
made available under the National Flood Insurance Act of 1968 (now or as hereafter in effect or any
successor act thereto), Flood Insurance. The Borrowers will furnish to the Lenders, upon request
of the Administrative Agent, information in reasonable detail as to the insurance so maintained,
which may be a Memorandum of Insurance. The Borrowers shall require all such policies to name the
US Collateral Agent, the Canadian Collateral Agent or the European Collateral Agent (on behalf of
the Agents, the Lenders and the Issuing Banks) as additional insured or loss payee, as applicable.
SECTION 5.10 Casualty and Condemnation. The Borrowers (a) will furnish to the
Administrative Agent (for delivery to the Lenders) prompt written notice of any casualty or other
insured damage to any material portion of the Collateral or the commencement of any action or
proceeding for the taking of any material portion of the Collateral or interest therein under power
of eminent domain or by condemnation or similar proceeding and (b) will ensure that the net
proceeds of any such event (whether in the form of insurance proceeds, condemnation awards or
otherwise) are collected and applied in accordance with the applicable provisions of this Agreement
and the Collateral Documents.
SECTION 5.11 Appraisals. On two occasions (or, (x) with respect to appraisals of real
property and Intellectual Property, one occasion and (y) with respect to Inventory appraisals, at
any time that Aggregate Availability is less than $70,000,000, three occasions) per calendar year,
as directed by the Administrative Agent or any Collateral Agent, the Loan Parties will provide the
Administrative Agent or such Collateral Agent with appraisals or updates thereof of their
Inventory, Intellectual Property or real property, as applicable, from an appraiser selected and
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engaged by the Administrative Agent or such Collateral Agent, and prepared on a basis
satisfactory to the Administrative Agent or such Collateral Agent, such appraisals and updates to
include, without limitation, information required by applicable law and regulations.
Notwithstanding the foregoing, in addition to the appraisals permitted above, there shall be no
limitation on the number of Inventory, Intellectual Property or real property appraisals (a) during
any Level 1 Minimum Aggregate Availability Period or (b) if an Event of Default shall have occurred
and be continuing. For purposes of this Section 5.11, it is understood and agreed that a single
Inventory, Intellectual Property or real estate appraisal may consist of examinations conducted at
multiple relevant sites, both domestic and international, and involve one or more relevant Loan
Parties and their assets. All such Collateral appraisals shall be at the sole expense of the Loan
Parties.
SECTION 5.12 Field Examinations. At the request of the Administrative Agent or any
Collateral Agent, the Loan Parties will permit, upon reasonable notice, the Administrative Agent
and/or any Collateral Agent to conduct field examinations during normal business hours to ensure
the adequacy of Collateral included in any Borrowing Base and related reporting and control
systems. Two such field examinations per calendar year shall be performed by the Administrative
Agent and shall be at the sole expense of the Loan Parties; provided that there shall be no
limitation on the number or frequency of field examinations at the sole expense of the Loan Parties
(a) during any Level 1 Minimum Aggregate Availability Period or (b) if an Event of Default shall
have occurred and be continuing. For purposes of this Section 5.12, it is understood and agreed
that a single field examination may be conducted at multiple relevant sites, both domestic and
international, and involve one or more relevant Loan Parties and their assets.
SECTION 5.13 [Reserved].
SECTION 5.14 Additional Collateral; Further Assurances. (a) Subject to applicable
law, the Company and each Subsidiary that is a Loan Party shall cause each of its Subsidiaries
formed or acquired after the date of this Agreement and organized under the laws of the United
States, Canada, the Netherlands, Germany, England and Wales, Ireland or, solely to the extent any
such Subsidiary formed or acquired after the date hereof opens any deposit account that the
European Administrative Agent determines is part of the European Borrowers cash structure, any
other member state of the European Union, or, in each case, any political subdivision thereof
(within five Business Days after such formation or acquisition, or such longer period as may be
agreed to by the Administrative Agent) (A) in accordance with the terms of this Agreement to become
a Loan Party by executing the Joinder Agreement set forth as Exhibit D hereto (the
Joinder Agreement) or such other Loan Guaranty in form and substance satisfactory to the
Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of
accession to any Collateral Documents as the applicable Collateral Agent deems necessary for such
new Subsidiary to grant to such Collateral Agent (for the benefit of the Agents, the applicable
Lenders and the applicable Issuing Banks) a perfected first priority security interest in the
Collateral described in such Collateral Document with respect to such new Subsidiary. Upon
execution and delivery of such documents and agreements, each such Person (i) shall automatically
become a Loan Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and
obligations in such capacity under the Loan Documents and (ii) will grant Liens to the applicable
Collateral Agent (in each case for the benefit of the Agents, the
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applicable Lenders and the applicable Issuing Banks) in any property of such Loan Party which
constitutes Collateral, including any parcel of real property located in the U.S. owned by such
Loan Party.
(b) (i) The Company and each Subsidiary that is a US Loan Party will cause (a) 100% (or such
lesser percentage owned by the Company or such US Loan Party, as applicable) of the issued and
outstanding Equity Interests of each of its direct domestic Subsidiaries and (b) 65% (or such
greater percentage that, due to a change in applicable law after the date hereof, (1) could not
reasonably be expected to cause the undistributed earnings of such foreign Subsidiary as determined
for U.S. federal income tax purposes to be treated as a deemed dividend to such foreign
Subsidiarys U.S. parent and (2) could not reasonably be expected to cause any other material
adverse tax consequences) of the issued and outstanding Equity Interests entitled to vote (within
the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity
Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each
foreign Subsidiary directly owned by the Company or any US Loan Party to be subject at all times to
a first priority, perfected Lien in favor of the US Collateral Agent pursuant to the terms and
conditions of the Loan Documents or other security documents as the Administrative Agent shall
reasonably request and (ii) subject to applicable law, each Subsidiary of the Company that is a
Foreign Loan Party (other than any Account Party) will cause 100% of the issued and outstanding
Equity Interests of each of its direct Subsidiaries that is organized in the same jurisdiction as
such Foreign Loan Party to be subject at all times to a first priority, perfected Lien in favor of
the applicable Collateral Agent pursuant to the terms and conditions of the Loan Documents or other
security documents as the Administrative Agent shall reasonably request.
(c) Without limiting the foregoing, subject to applicable law, each Loan Party will and will
cause each Subsidiary to execute and deliver, or cause to be executed and delivered, to the
Administrative Agent and each Collateral Agent such documents, agreements and instruments, and will
take or cause to be taken such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust, hypothecs and other documents and such
other actions or deliveries of the type required by Section 4.01, as applicable), which may be
required by law or which the Administrative Agent or any Collateral Agent may, from time to time,
reasonably request to carry out the terms and conditions of this Agreement and the other Loan
Documents and to ensure perfection and priority of the Liens created or intended to be created by
the Collateral Documents, all at the expense of the Loan Parties (including, for the avoidance of
doubt, to reflect any change in the Secured Parties hereunder). In addition, each Loan Party will
execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each
Collateral Agent filings with any governmental recording or registration office in any jurisdiction
required by the Administrative Agent or any Collateral Agent, in the exercise of its Permitted
Discretion, in order to perfect or protect the Liens of the applicable Collateral Agent granted
under any Collateral Document in any Intellectual Property.
(d) If any material assets (including any real property or improvements thereto or any
interest therein) are acquired by the Company or any Subsidiary that is a Loan Party (or (x) any
deposit accounts opened by any Subsidiary of the Company organized under the laws of any member
state of the European Union or (y) any existing deposit accounts of any Subsidiary
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of the Company organized under the laws of any member state of the European Union are
determined by the European Administrative Agent, in its Permitted Discretion, to comprise part of
the European Borrowers cash structure) after the Effective Date (other than assets constituting
Collateral under the Security Agreement that become subject to the Lien in favor of the Agents, the
applicable Lenders and the applicable Issuing Banks upon acquisition thereof), the Company will
notify the Administrative Agent and the Lenders thereof, the Borrower will promptly cause such
assets (in the case of any deposit accounts referred to above, solely to the extent the European
Administrative Agent determines such deposit accounts are part of the European Borrowers cash
structure) to be subjected to a Lien securing the applicable Secured Obligations and will take, and
cause its Subsidiaries that are Loan Parties to take, such actions as shall be necessary or
reasonably requested by the Administrative Agent or any Collateral Agent to grant and perfect such
Liens, including actions described in paragraph (c) of this Section and Section 4.01(o), all at the
expense of the Loan Parties.
(e) For the purposes of Section 5.14(c) and 5.14(d), (i) references to the actions and
deliverables required under Section 4.01(o)(i) with respect to any applicable hereafter-acquired
property shall be deemed to require delivery of Mortgages on such property, including evidence that
a counterpart of such Mortgage has been recorded in the place necessary, in the Administrative
Agents judgment, to create a valid and enforceable first priority Lien in favor of the US
Collateral Agent for the benefit of itself and the Lenders; (ii) references to date-down
endorsements (or modifications) in Section 4.01(o)(ii) shall refer to ALTA or other mortgagees
title insurance policies, together with such endorsements thereto as may be required by the
applicable Collateral Agent; and (iii) Mortgages filed pursuant to this Section 5.14 shall be
delivered to the applicable Collateral Agent in conjunction with an ALTA survey prepared of such
Mortgaged Property and certified to the applicable Collateral Agent by a surveyor acceptable to the
Administrative Agent.
SECTION 5.15 Financial Assistance. (a) Each Netherlands Loan Party and its
Subsidiaries shall comply in all respects with applicable legislation governing financial
assistance, including Sections 2:98C and 2:207C of the Dutch Civil Code. Each Canadian Loan Party,
UK Loan Party and German Loan Party shall comply in all respects with applicable legislation
governing financial assistance and/or capital maintenance, as applicable.
(b) The obligations of the Norwegian Loan Parties hereunder shall be limited, if (and only if)
required by the provisions as set out in the Norwegian Private Limited Liability Companies Act
1997, regulating unlawful financial assistance and other prohibited loans, guarantees and joint and
several liability and it is understood that the liability of the Norwegian Loan Parties hereunder
only applies to the extent permitted by the provisions of the Norwegian Private Limited Liability
Companies Act.
SECTION 5.16 Collateral Access Agreements and Deposit Account Control Agreements. The
Borrowers shall (i) use their commercially reasonable efforts to deliver to the Administrative
Agent any Collateral Access Agreements required pursuant to the Security Agreements and (ii)
deliver to the Administrative Agent any Deposit Account Control Agreement required to be delivered
pursuant to any Security Agreement, in each case, in form and substance reasonably acceptable to
the Administrative Agent.
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SECTION 5.17 Transfer of Accounts of Specified European Loan Parties. At any time
following the occurrence of a European Account Transfer Trigger Event, at the request of the
European Administrative Agent in its sole discretion, the Specified European Loan Parties shall
either (i) immediately cause all of their deposit accounts to be transferred to the name of the
European Administrative Agent or (ii) to the extent such deposit accounts cannot be transferred to
the European Administrative Agent, promptly open new deposit accounts with (and in the name of) the
European Administrative Agent, and the Specified European Loan Parties shall ensure that all monies
owing to them will immediately be re-directed to the transferred or new accounts held by the
European Administrative Agent.
SECTION 5.18 European Cash Management. (a) Except as otherwise provided in this
Agreement or any other Loan Document (including pursuant to Section 2.10(b)), the Company and each
Specified European Loan Party will, and will cause each of their Subsidiaries to, ensure that all
cash collections (other than any Specified Cash Collections) of such entity continue to be swept
(whether directly or indirectly) or otherwise deposited into the Collection Accounts of the
Specified European Loan Parties in substantially the same manner as in effect on the date hereof
(after giving effect to the Transactions).
(b) On the 15th day of each calendar month (or, if such date is not a Business Day,
on the first Business Day thereafter) (the Transfer Date), the European Borrower shall
deposit, or shall cause to be deposited, the Netherlands Intercompany Receivable Amount (calculated
as of the Transfer Date), if any, into a Collection Account of the European Borrower.
SECTION 5.19 Post-Closing Obligations. (a) On or prior to the date that is 60 days
following the Effective Date, the European Borrower shall provide the European Collateral Agent
with a status report with respect to each of the bank accounts set forth on Schedule
5.19(a) (the Scheduled Bank Accounts), each of which are currently expected to be
closed on or prior to such date. To the extent any Scheduled Bank Accounts remain open on such
date, the European Borrower shall provide the European Collateral Agent with a similar status
report on each 30-day anniversary thereof (each, a Reporting Date) until the date that
all Scheduled Bank Accounts are either closed or subject to a first priority security interest in
favor of the European Collateral Agent, for the benefit of the Agents, the applicable Lenders and
the applicable Issuing Banks, as described below. The European Borrower and/or each other Loan
Party holding any applicable Scheduled Bank Account shall, at the European Collateral Agents
request delivered on or prior to the date that is five Business Days following any Reporting Date,
(i) deliver to the European Collateral Agent, each in form and substance reasonably satisfactory to
the European Collateral Agent, one or more security agreements pursuant to which such Loan Party
grants a security interest to the European Collateral Agent, for the benefit of the Agents, the
applicable Lenders and the applicable Issuing Banks, in each Scheduled Bank Account that remains
open as of such date and has been designated by the European Collateral Agent, (ii) deliver all
notices required to be delivered pursuant to any such security agreement to any banking institution
at which any such account is held, (iii) use commercially reasonable efforts to procure any
acknowledgments of any such banking institution required pursuant to any such security agreement,
(iv) take all actions which may be required by law or which the Administrative Agent or the
European Collateral Agent may reasonably request to ensure perfection of the Liens created or
intended to be created by any such security agreement, prior and superior in right to any other
Person and (v) deliver to the Agents, the applicable Lenders
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and the applicable Issuing Banks an opinion of counsel, in form and substance reasonably
satisfactory to the Administrative Agent, stating that each such security agreement shall
constitute a fully perfected Lien on, and security interest in, each such Scheduled Bank Account,
in the case of each of clauses (i) through (v) above, within 30 days (or such later date agreed to
by the European Collateral Agent) of receipt of such request.
(b) On or prior to the date that is 30 days following the Effective Date (or such later date
as the Administrative Agent may approve in its sole discretion), deliver to the Administrative
Agent the Deposit Account Control Agreement listed on Schedule 5.19(b).
(c) Juicy Couture Ireland Limited shall use commercially reasonable efforts to procure, within
30 days of the execution of the Irish Debenture (or such later date agreed to by the European
Collateral Agent (it being understood that the European Collateral Agent may, in its sole
discretion, waive the requirements set forth in this Section 5.19(c))), the consent from Value
Retail Dublin Limited necessary to fully effect the charge given under clause 3.5 of the Irish
Debenture in respect of the agreement for license relating to part of Kildare Village dated 27
January 2009 and the license relating to part of Kildare Village dated 27 January 2009.
(d) Liz Claiborne Europe shall use commercially reasonable efforts, on or prior to the date
that is 60 days following the Effective Date (or such later date agreed to by the European
Collateral Agent in its sole discretion), to (x) implement a blocked account mechanism or other
mechanism, in each case, reasonably satisfactory to the European Collateral Agent, in respect of
each of the accounts of Liz Claiborne Europe as the European Collateral Agent shall determine (in
its sole discretion) to be a Collection Account, and (y) deliver to the European Collateral Agent
(A) documentation, in form and substance reasonably satisfactory to the European Collateral Agent,
granting a first priority fixed charge over each such Collection Account in favor of the European
Collateral Agent and (B) an opinion of counsel, in form and substance reasonably satisfactory to
the Administrative Agent, stating that such documentation shall constitute a fully perfected Lien
on, and security interest in, each such account. In the event that Liz Claiborne Europe shall fail
to deliver such documentation on or prior to such date referred to above after the use of
commercially reasonable efforts to do so, the assets of Liz Claiborne Europe shall be excluded from
any Borrowing Base.
(e) On or prior to the dates specified on Schedule 5.19(e), the Company will take, or
cause to be taken, the actions specified on Schedule 5.19(e).
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees, expenses and other amounts payable under any Loan Document have been paid in
full in cash and all Letters of Credit have expired or terminated (or have been cash collateralized
in accordance with Section 2.06(j) hereof) and all LC Disbursements shall have been reimbursed, the
Loan Parties covenant and agree, jointly and severally, with the Lenders that:
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SECTION 6.01 Indebtedness. No Loan Party will, nor will it permit any of its
Subsidiaries to, create, incur or suffer to exist any Indebtedness, except:
(a) the Secured Obligations;
(b) Indebtedness existing on the date hereof and set forth on Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness in accordance with clause (f)
hereof;
(c) Indebtedness of any Borrower to any Subsidiary or any other Borrower and of any
Subsidiary to any Borrower or any other Subsidiary; provided that (i) Indebtedness
of any Subsidiary that is not a Loan Party to any Borrower or any Subsidiary that is a Loan
Party shall be subject to Section 6.04(d), Section 6.04(f) and Section 6.04(g) and (ii)
Indebtedness of any Borrower to any Subsidiary and Indebtedness of any Subsidiary that is a
Loan Party to any Borrower or to any other Subsidiary that is not a Loan Party shall be
subordinated to the Secured Obligations on terms reasonably satisfactory to the
Administrative Agent;
(d) Guarantees by any Borrower of Indebtedness of any Subsidiary or any other Borrower
and by any Subsidiary of Indebtedness of any Borrower or any other Subsidiary;
provided that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01,
(ii) Guarantees by any Borrower or any Subsidiary that is a Loan Party of Indebtedness of
any Subsidiary that is not a Loan Party shall be subject to Section 6.04(e) and
(iii) Guarantees permitted under this clause (d) shall be subordinated to the Secured
Obligations of the applicable Subsidiary if, and on the same terms as, the Indebtedness so
Guaranteed is subordinated to the Secured Obligations;
(e) Indebtedness of any Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets (whether or not constituting
purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof; provided that (i) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this paragraph (e) shall not exceed $100,000,000 at any time outstanding;
(f) Indebtedness which represents an extension, refinancing, replacement or renewal of
any of the Indebtedness described in paragraphs (b), (e), (i), (j), (k), (m) and (s) of this
Section 6.01; provided that, unless otherwise expressly permitted by this Section
6.01, (i) the principal amount (or accreted value, if applicable) thereof does not exceed
the principal amount (or accreted value, if applicable) of the Indebtedness so extended,
refinanced, replaced or renewed, (ii) any Liens securing such Indebtedness are not extended
to any additional property of any Loan Party or any of their respective Subsidiaries, (iii)
no Loan Party or Subsidiary of any Loan Party that is not originally obligated with respect
to repayment of such Indebtedness is required to become obligated with respect thereto
(except as would otherwise be permitted pursuant to clause (d)
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above), (iv) such extension, refinancing, replacement or renewal does not result in a
shortening of the average weighted maturity of the Indebtedness so extended, refinanced,
replaced or renewed and (v) if the Indebtedness that is refinanced, replaced, renewed, or
extended was subordinated in right of payment to the Secured Obligations, then the terms and
conditions of the refinancing, replacement, renewal, or extension Indebtedness must include
subordination terms and conditions that are at least as favorable to the Administrative
Agent and the Lenders as those that were applicable to the refinanced, replaced, renewed, or
extended Indebtedness;
(g) Indebtedness owed to any Person providing workers compensation, health, disability
or other employee benefits or property, casualty or liability insurance, pursuant to
reimbursement or indemnification obligations to such Person, in each case incurred in the
ordinary course of business;
(h) Indebtedness of any Borrower or any Subsidiary in respect of performance bonds, bid
bonds, appeal bonds, custom broker bonds, surety bonds and similar obligations, in each case
provided in the ordinary course of business;
(i) Indebtedness of the Company or any other US Loan Party; provided that both
immediately before and immediately after giving pro forma effect thereto (i)
no Default or Event of Default shall have occurred and be continuing and (ii) the Fixed
Charge Coverage Ratio for the Test Period in effect at the time such Indebtedness is to be
incurred, calculated on a Pro Forma Basis, shall be at least 1.25 to 1.00); provided
further that the aggregate principal amount of Indebtedness permitted by this
paragraph (i) shall not exceed $200,000,000 at any one time outstanding;
(j) Indebtedness of Foreign Subsidiaries that are not Loan Parties; provided
that the aggregate principal amount of Indebtedness permitted by this paragraph (j) shall
not exceed $50,000,000 at any time outstanding;
(k) Indebtedness of any Person that becomes a Subsidiary after the date hereof;
provided that (i) such Indebtedness exists at the time such Person becomes a
Subsidiary and is not created in contemplation of or in connection with such Person becoming
a Subsidiary and (ii) the aggregate principal amount of Indebtedness permitted by this
paragraph (k) shall not exceed $50,000,000 at any time outstanding;
(l) (x) Indebtedness in respect of the Existing Euro Notes and (y) Indebtedness which
represents an extension, refinancing, replacement or renewal thereof (including any
Guarantees thereof to the extent permitted pursuant to the following proviso) (the Euro
Notes Refinancing Debt); provided that, (i) the principal amount (or accreted
value, if applicable) of the Euro Notes Refinancing Debt does not exceed the principal
amount (or accreted value, if applicable) of the Existing Euro Notes so extended,
refinanced, replaced or renewed, plus, in the case of any Euro Notes Refinancing
Debt that constitutes Trademark Secured Debt, any additional amounts such that, after making
the prepayments required to be made pursuant to Section 2.11(f), the Net Proceeds of such
issuance of Euro Notes Refinancing Debt remaining shall not exceed the principal amount (or
accreted value, if applicable) of the Existing Euro Notes
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so extended, refinanced, replaced or renewed, (ii) such Euro Notes Refinancing Debt
shall be either (A) unsecured or (B) secured by Liens on assets that do not constitute
Collateral (other than Trademarks to the extent permitted pursuant to Section 6.02(p)) and
are otherwise permitted pursuant to Section 6.02, and (iii) such Euro Notes Refinancing Debt
does not have a shorter average weighted maturity than the Existing Euro Notes;
(m) Indebtedness in respect of the Synthetic Lease Documentation;
(n) Capital Lease Obligations in connection with sale and leaseback transactions
permitted pursuant to Section 6.14;
(o) Indebtedness of any German Loan Party under (i) direct pension commitments or (ii)
old-age part-time arrangements, to the extent such German Loan Party is required by
applicable law to enter into such old-age part-time arrangements; provided that
statutory insolvency protection measures for liabilities under (i) and (ii) are fulfilled;
(p) earn-out obligations pursuant to the Mac & Jac Purchase Agreement in an aggregate
amount not to exceed $20,000,000;
(q) a Guarantee granted pursuant to a declaration of joint and several liability used
for the purpose of Section 2:403 of the Dutch Civil Code (Burgerlijk Wetboek) (and any
residual liability under such declaration arising pursuant to section 2:404(2) of the Dutch
Civil Code) by a Netherlands Loan Party;
(r) any joint and several liability arising under any fiscal unity (fiscale eenheid)
between the Netherlands Group Members;
(s) Indebtedness in respect of the Existing Convertible Notes;
(t) other unsecured Indebtedness not otherwise permitted by this Section 6.01;
provided the aggregate principal amount of all Indebtedness permitted by this
paragraph (t) shall not exceed $150,000,000 at any time outstanding;
(u) unsecured Guarantees permitted by Section 6.04(s); and
(v) Indebtedness of the European Borrower incurred pursuant to the Unitex Agreement, in
an aggregate principal amount, when added to the fair market value of all Accounts sold
pursuant to Section 6.05(o) for which payment from the account debtor is not yet due (based
on the payment terms in effect when the Account was sold), not to exceed $2,500,000 at any
time outstanding.
SECTION 6.02 Liens. No Loan Party will, nor will it permit any of its Subsidiaries
to, create, incur, assume or permit to exist any Lien on any property or asset now owned or
hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable)
or rights in respect of any thereof, except:
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(a) Liens created pursuant to any Loan Document;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of any Borrower or any Subsidiary existing on the
date hereof and set forth on Schedule 6.02; provided that (i) such Lien
shall not apply to any other property or asset of such Borrower or Subsidiary and (ii) such
Lien shall secure only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof except to the extent permitted by clause (f) of Section 6.01;
(d) Liens on fixed or capital assets acquired, constructed or improved by any Borrower
or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness secured thereby does
not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such security interests shall not apply to any other property or assets of
such Borrower or Subsidiary or any other Borrower or Subsidiary;
(e) any Lien existing on any property or asset (other than Accounts and Inventory)
prior to the acquisition thereof by any Borrower or any Subsidiary or existing on any
property or asset (other than Accounts and Inventory) of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of such Borrower or Subsidiary or any other
Borrower or Subsidiary and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the
case may be and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof except to the extent permitted by clause (f) of Section
6.01;
(f) Liens (i) of a collecting bank arising in the ordinary course of business under
Section 4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction covering
only the items being collected upon or (ii) in favor of a banking institution arising as a
matter of law, encumbering amounts credited to deposit or securities accounts (including the
right of set-off) and which are within the general parameters customary in the banking
industry;
(g) Liens arising out of sale and leaseback transactions permitted pursuant to Section
6.14;
(h) Liens granted by a Subsidiary that is not a Loan Party in favor of any Borrower or
another Loan Party in respect of Indebtedness owed by such Subsidiary;
(i) Liens securing Indebtedness permitted by Section 6.01(i) in an aggregate amount not
to exceed $75,000,000 at any time outstanding;
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(j) Liens securing Indebtedness permitted by Section 6.01(j); provided that
such Lien shall only apply to the property of the applicable Foreign Subsidiary;
(k) Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided
that such Lien shall not apply to any property or assets of the Company or any Subsidiary
other than (i) the real property subject to such Lien on the Original Effective Date (prior
to giving effect to the Existing Credit Agreement) and (ii) Liens on the Collateral, subject
to the Intercreditor Agreement;
(l) Liens securing Indebtedness permitted pursuant to Section 6.01(o), to the extent
required by mandatory law; provided that such Lien shall only apply to the property
of the applicable German Loan Party
(m) Liens relating to pooled deposit or sweep accounts of the European Borrower and its
Affiliates to the extent permitted under the applicable European Security Agreement;
(n) Liens not otherwise permitted by this Section 6.02 so long as (i) neither (A) the
aggregate outstanding principal amount of the obligations secured thereby nor (B) the
aggregate fair market value (determined as of the date such Lien is incurred) of the assets
subject thereto exceeds (as to the Borrowers and all Subsidiaries) $25,000,000 at any one
time and (ii) such Liens do not cover any Collateral other than any non-consensual Liens
arising by operation of law;
(o) Liens arising from any purchase option with respect to the Option Assets under the
JCPenney License Agreement;
(p) Liens on Trademarks of the US Loan Parties and Liens on the Mexx Trademark, in each
case securing Indebtedness of the Company or any other US Loan Party permitted pursuant to
Section 6.01 (the Trademark Secured Debt) in an aggregate amount of not less than
$150,000,000; provided that (x) the Net Proceeds received by the Company and its
Subsidiaries in connection with such Indebtedness shall be used to prepay the Loans in
accordance with Section 2.11(f), (y) such Liens may be first priority Liens so long as such
Trademarks and/or the Mexx Trademark, as applicable, shall be subject to a second priority
perfected security interest in favor of the applicable Collateral Agent (for the benefit of
the Agents, the applicable Lenders and the applicable Issuing Banks) and such Liens shall be
subject to an intercreditor agreement reasonably satisfactory to the Administrative Agent
and (z) the Administrative Agent and the applicable Collateral Agents shall have been
granted a non-exclusive royalty free license with respect to such Trademarks and/or the Mexx
Trademark, as applicable, to the extent any such Trademarks and/or the Mexx Trademark, as
applicable, are used in connection with any Collateral;
(q) Liens on the Alabama Property arising from the grant by the Company of an option to
purchase such property;
(r) Liens on Accounts of the European Borrower with an aggregate value of no more than
$2,500,000 securing Indebtedness permitted pursuant to Section 6.01(v);
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(s) Liens on the Collateral (other than the Trademarks referred to in clause (p) above)
(the Permitted Second Priority Liens) securing the Trademark Secured Debt;
provided that (x) the Net Proceeds received by the Company and its Subsidiaries in
connection with such Indebtedness shall be used to prepay the Loans in accordance with
Section 2.11(f), (y) such Liens shall be junior to the liens granted pursuant to the Loan
Documents to the applicable Collateral Agent, for the benefit of the Agents, the applicable
Lenders and the applicable Issuing Banks, and shall be subject to an intercreditor agreement
reasonably satisfactory to the Required Lenders and (z) the applicable Collateral Agent(s)
shall have been granted a second priority perfected Lien, for the benefit of the Agents, the
applicable Lenders and the applicable Issuing Banks, in any collateral securing the
Trademark Secured Debt that does not otherwise constitute Collateral.
Notwithstanding the foregoing, none of the Liens permitted pursuant to this Section 6.02 may at any
time attach to any Loan Partys (i) Accounts, other than those permitted under clause (a) of the
definition of Permitted Encumbrance and clauses (a), (r) and (s) above, (ii) Inventory, other than
those permitted under clauses (a) and (b) of the definition of Permitted Encumbrance and clauses
(a) and (s) above, (iii) real property subject to a Mortgage, other than those permitted under
clauses (a), (b), (f) and (g) of the definition of Permitted Encumbrance and clauses (a), (g) and
(s) above, (iv) Trademarks of the US Loan Parties, other than those permitted under clause (a) of
the definition of Permitted Encumbrance and clauses (a), (p) and (s) above, or, in each case, other
than as provided in Section 6.02(k). Notwithstanding anything to the contrary contained in this
Agreement or any Collateral Document (including any provision for, reference to, or acknowledgement
of, any Lien or Permitted Lien), nothing herein and no approval by the Administrative Agent, any
Collateral Agent or the Lenders of any Lien or Permitted Lien (whether such approval is oral or in
writing) shall be construed as or deemed to constitute a subordination by the Administrative Agent,
any Collateral Agent or the Lenders of any security interest or other right, interest or Lien in or
to the Collateral or any part thereof in favor of any Lien or Permitted Lien or any holder of any
Lien or Permitted Lien.
SECTION 6.03 Fundamental Changes. (a) No Loan Party will, nor will it permit any of
its Subsidiaries to, amalgamate with, merge into or consolidate with any other Person, or permit
any other Person to amalgamate with, merge into or consolidate with it, or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto no Event of Default
shall have occurred and be continuing (i) any Subsidiary of a Borrower may merge or amalgamate into
a Borrower in a transaction in which such Borrower continues or is the surviving entity and assumes
all obligations of such Borrower under the Loan Documents, (ii) any Loan Party (other than a
Borrower) may merge or amalgamate into or with any Loan Party (other than a Borrower) in a
transaction in which a Loan Party continues or is the surviving entity and assumes all obligations
of the Loan Party under the Loan Documents, (iii) any Subsidiary may transfer its assets to a Loan
Party and any Subsidiary which is a non-Loan Party may transfer its assets to a non-Loan Party,
(iv) any Subsidiary may liquidate or dissolve if (x) the Company determines in good faith that such
liquidation or dissolution is in the best interests of the Company and is not materially
disadvantageous to the Lenders and (y) in connection with any such dissolution of a Loan Party, all
of the material assets of such Loan Party are transferred to another Loan Party (it being
understood that any transfer of assets to an entity that is not a Loan Party must be separately
permitted pursuant to Section 6.04), and (v) any non-Loan Party
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may merge into, amalgamate with or consolidate with, another non-Loan Party; provided
that any such merger, amalgamation or consolidation involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger, amalgamation or consolidation shall not be permitted
unless also permitted by Section 6.04.
(b) No Loan Party will, nor will it permit any of its Subsidiaries to, engage in any business
other than businesses of the type conducted by the Company and its Subsidiaries on the Effective
Date and businesses reasonably related or incidental thereto (including the provision of services).
SECTION 6.04 Investments, Loans, Advances, Guarantees and Acquisitions. No Loan Party
will, nor will it permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant
to any merger or amalgamation with any Person that was not a Loan Party and a wholly owned
Subsidiary prior to such merger or amalgamation) any Equity Interests, evidences of indebtedness or
other securities (including any option, warrant or other right to acquire any of the foregoing) of,
make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit
to exist any investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other Person
constituting a business unit (whether through purchase of assets, merger, amalgamation or
otherwise), except:
(a) Permitted Investments, subject to, in the case of Loan Parties, control agreements
in favor of the applicable Collateral Agent (in each case for the benefit of the applicable
Agents, the applicable Lenders and the applicable Issuing Banks) or otherwise subject to a
perfected security interest in favor of the applicable Collateral Agent (in each case for
the benefit of the applicable Agents, the applicable Lenders and the applicable Issuing
Banks);
(b) investments (and commitments (including consummation of any put arrangement in
connection therewith) in respect thereof) in existence on the date of this Agreement and
described on Schedule 6.04 and renewals, replacements and extensions thereof;
(c) investments by the Loan Parties and their Subsidiaries in Equity Interests in their
respective Subsidiaries; provided that in the case of any investments made pursuant
to this paragraph (c) after the Effective Date by Loan Parties in Subsidiaries that are not
Loan Parties, both immediately before and immediately after giving pro forma
effect thereto, (i) no Default or Event of Default shall have occurred and be continuing,
(ii) the Fixed Charge Coverage Ratio for the Test Period in effect at the time such
investment is to occur shall be at least 1.25 to 1.00 (determined on a Pro Forma Basis in
respect of the Test Period in effect at such time) and (iii) no Level 2 Minimum Aggregate
Availability Period shall be in effect;
(d) loans or advances made by (i) any Borrower to any Subsidiary or any other Borrower
or (ii) any Subsidiary to any Borrower or any other Subsidiary, provided that in the
case of any loans and advances made by Loan Parties to Subsidiaries that are not Loan
Parties, both immediately before and immediately after giving pro forma
effect
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thereto, (i) no Default or Event of Default shall have occurred and be continuing, (ii)
the Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is
to occur shall be at least 1.25 to 1.00 (determined on a Pro Forma Basis in respect of the
Test Period in effect at such time) and (iii) no Level 2 Minimum Aggregate Availability
Period shall be in effect;
(e) Guarantees constituting Indebtedness permitted by Section 6.01; provided
that in the case of any Indebtedness of Subsidiaries that are not Loan Parties that is
Guaranteed by any Loan Party, both immediately before and immediately after giving
pro forma effect thereto, (i) no Default or Event of Default shall have
occurred and be continuing, (ii) the Fixed Charge Coverage Ratio for the Test Period in
effect at the time such investment is to occur shall be at least 1.25 to 1.00 (determined on
a Pro Forma Basis in respect of the Test Period in effect at such time) and (iii) no Level 2
Minimum Aggregate Availability Period shall be in effect;
(f) investments made by any Loan Party in any Subsidiary that is not a Loan Party of
the types described in paragraphs (c), (d) and (e) of this Section 6.04; provided
that both immediately before and after giving pro forma effect thereto, (i)
no Default or Event of Default shall have occurred and be continuing and (ii) no Level 2
Minimum Aggregate Availability Period shall be in effect; provided further
that the aggregate principal amount of all investments permitted by this paragraph (f) shall
not exceed $50,000,000 at any time outstanding;
(g) investments (including loans and advances) made by any Loan Party in any Subsidiary
that is not a Loan Party; provided that (i) such investments are made in the
ordinary course of business in connection with the Companys and its Subsidiaries cash
management systems and (ii) both immediately before and immediately after giving pro
forma effect thereto, (x) no Default or Event of Default shall have occurred and be
continuing and (y) no Level 2 Minimum Aggregate Availability Period shall be in effect.
(h) loans or advances made by any Loan Party and the Subsidiaries to their employees on
an arms-length basis in the ordinary course of business consistent with past practices for
travel and entertainment expenses, relocation costs and similar purposes up to a maximum of
$5,000,000 in the aggregate at any time outstanding;
(i) subject to the applicable provisions of any Security Agreements (including Sections
4.2(a) and 4.4 of the US Security Agreement and Sections 4.2(a) and 4.4 of the Canadian
Security Agreement, and any comparable provision of any European Security Agreement,
Netherlands Security Agreement, UK Security Agreement or German Security Agreement), notes
payable, or stock or other securities issued by Account Debtors to any Loan Party pursuant
to negotiated agreements with respect to settlement of such Account Debtors Accounts in the
ordinary course of business, consistent with past practices;
(j) investments in the form of Swap Agreements permitted by Section 6.08;
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(k) investments of any Person existing at the time such Person becomes a Subsidiary or
consolidates or merges or amalgamates with a Borrower or any Subsidiary (including in
connection with a Permitted Acquisition), so long as such investments were not made in
contemplation of such Person becoming a Subsidiary or of such consolidation, merger or
amalgamation;
(l) investments received in connection with the dispositions of assets permitted by
Section 6.05;
(m) investments constituting deposits described in clauses (c) and (d) of the
definition of the term Permitted Encumbrances;
(n) Permitted Acquisitions; provided that both immediately before and
immediately after giving pro forma effect thereto, (i) no Default or Event
of Default shall have occurred and be continuing and (ii) no Level 2 Minimum Aggregate
Availability Period shall be in effect;
(o) Guarantees by the Company or any of its Subsidiaries of leases (other than Capital
Leases) or of other obligations of the Company or any of its Subsidiaries that do not
constitute Indebtedness, in each case entered into in the ordinary course of business;
(p) investments of the assets of Kate Spade LLC in a joint venture organized under the
laws of Japan; provided that both immediately before and immediately after giving
pro forma effect thereto no Default or Event of Default shall have occurred
and be continuing; provided further that the aggregate principal amount of
all investments permitted by this paragraph (p) shall not exceed $20,000,000;
(q) purchases of additional Equity Interests in Lucky Brand Dungarees, Inc. pursuant to
the Lucky Brand Purchase Agreement in an aggregate amount not to exceed $15,000,000;
(r) other investments not otherwise permitted by this Section 6.04; provided
that both immediately before and immediately after giving pro forma effect
thereto, (i) no Default or Event of Default shall have occurred and be continuing, (ii) the
Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is to
occur shall be at least 1.25 to 1.00 (determined on a Pro Forma Basis in respect of the Test
Period in effect at such time) and (iii) no Level 2 Minimum Aggregate Availability Period
shall be in effect; provided further that the aggregate principal amount of
all investments permitted by this paragraph (r) shall not exceed $75,000,000 in any fiscal
year of the Company;
(s) purchases of additional Equity Interests in Kate Spade Japan Co., Ltd. (such Equity
Interests, the Acquired JV Interests) pursuant to Article VI of the Kate Spade JV
Agreement in an aggregate amount not to exceed $50,000,000 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
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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; and
(t) unsecured Guarantees by the Company or any Subsidiary of obligations pursuant to
leases assigned to third parties pursuant to Section 6.05(p), entered into in the ordinary
course of business;
provided that, in the event that any investment, loan or advance is made in any Person
through substantially concurrent interim transfers of any amount through one or more other
Subsidiaries, then such other substantially concurrent interim transfers shall be disregarded for
purposes of this Section 6.04.
SECTION 6.05 Asset Sales. No Loan Party will, nor will it permit any of its
Subsidiaries to, sell, transfer, assign, lease or otherwise dispose of any asset, rights, or
properties, including any Equity Interest owned by it, nor will any Borrower permit any Subsidiary
to issue any additional Equity Interest in such Subsidiary (other than to another Borrower or
another Subsidiary in compliance with Section 6.04), except:
(a) sales, transfers and dispositions of (i) inventory in the ordinary course of
business and (ii) used, obsolete, worn out or surplus equipment or property in the ordinary
course of business;
(b) sales, transfers and dispositions to any Borrower or any Subsidiary;
provided that any such sales, transfers or dispositions involving a Subsidiary that
is not a Loan Party shall be made in compliance with Section 6.10 and 6.04;
(c) sales, transfers and dispositions of accounts receivable in connection with the
compromise, settlement or collection thereof;
(d) sales, transfers and dispositions of investments permitted by clauses (g), (i) and
(j) of Section 6.04;
(e) sale and leaseback transactions permitted pursuant to Section 6.14;
(f) dispositions resulting from any casualty or other insured damage to, or any taking
under power of eminent domain or by condemnation or similar proceeding of, any property or
asset of any Borrower or any Subsidiary;
(g) sales, transfers and other dispositions of assets that are not permitted by any
other paragraph of this Section; provided that (i) the aggregate fair market value
of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g)
shall not exceed an amount equal to 15% of Total Assets and (ii) the Net Proceeds received
from any such sales, transfers or other dispositions are used to prepay Loans in accordance
with Section 2.11(c);
(h) licenses of Intellectual Property entered into by the Company or a Subsidiary in
the ordinary course of business;
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(i) Restricted Payments permitted by Section 6.09;
(j) dispositions of cash and Permitted Investments in the ordinary course of business
or in connection with a transaction otherwise permitted under this Agreement;
(k) dispositions of cash and property permitted by Section 6.04(g);
(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 in accordance with Section 2.11(c);
(m) the sale of the Rhode Island Property or the Ohio Property; provided that
in connection with any such sale, the Company and/or any of its Subsidiaries shall have
repaid the Synthetic Lease Obligations in an amount equal to or greater than the lesser of
(x) the outstanding Synthetic Lease Obligations and (y) the Net Proceeds of such sale, on or
prior to the date that is one Business Day following receipt thereof by the Company and/or
any of its Subsidiaries;
(n) dispositions of property permitted by Section 6.04(p);
(o) the transfer of Accounts of the European Borrower pursuant to the Unitex Agreement;
provided that the fair market value of all Accounts sold pursuant to this clause (o)
for which payment from the account debtor is not yet due (based on the payment terms in
effect when the Account was sold), together with the aggregate principal amount of
Indebtedness incurred pursuant to Section 6.01(v) outstanding, shall not exceed $2,500,000
in the aggregate at any time;
(p) the sale, transfer or assignment of leased real property, together with fixtures
and equipment located on such real property, in each case in connection with store closures
in the ordinary course of business; and
(q) the sale of the Alabama Property or the Pennsylvania Property; provided, in
each case, that the Net Proceeds received from any such sale are used to prepay Loans in
accordance with Section 2.11(c);
provided that all sales, transfers, leases and other dispositions permitted hereby
permitted by paragraphs (b) (to the extent the applicable transaction is not solely among Loan
Parties), (e), (g), (h), (i), (j), (k), (l), (m), (o), (p) and (q) above shall be made for fair
value and (other than with respect to clause (p)) for at least 75% cash consideration (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 the required cash amounts set forth in Section 5.3
of the JCPenney License Agreement shall satisfy the foregoing cash consideration requirement).
SECTION 6.06 [Reserved].
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SECTION 6.07 [Reserved].
SECTION 6.08 Swap Agreements. No Loan Party will, nor will it permit any of its
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which any Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of any Subsidiary of the Company), and (b) Swap Agreements entered into
in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from
one floating rate to another floating rate or otherwise) with respect to any interest-bearing
liability or investment of any Borrower or any Subsidiary.
SECTION 6.09 Restricted Payments; Certain Payments of Indebtedness. (a) No Loan Party
will, nor will it permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise)
to do so, except
(i) each Loan Party and its Subsidiaries may declare and pay dividends or other
distributions with respect to its common stock payable solely in additional shares
of its common stock, and, with respect to its preferred stock, payable solely in
additional shares of such preferred stock or in shares of its common stock;
(ii) Subsidiaries may declare and pay dividends ratably with respect to their
Equity Interests;
(iii) the Company may make payments required to be made pursuant to the
Permitted Company Deferral Plan;
(iv) the Company may make Restricted Payments, not exceeding $5,000,000 during
any fiscal year, pursuant to and in accordance with equity incentive plans or other
benefit plans for management or employees of the Company and the Subsidiaries and
for deceased and terminated employees and present and former directors (including
from their estates);
(v) the Company may make Restricted Payments (including in cash), not exceeding
$10,000,000 during any fiscal year; provided that that both immediately
before and immediately after giving pro forma effect thereto, (x) no
Default or Event of Default shall have occurred and be continuing and (y) the Fixed
Charge Coverage Ratio for the Test Period in effect at the time such payment is to
occur shall be at least 1.00 to 1.00 (determined on a Pro Forma Basis in respect of
the Test Period in effect at such time); and
(vi) the Company may make Restricted Payments (including in cash) so long as,
both immediately before and immediately after giving pro forma
effect thereto, (x) no Default or Event of Default shall have occurred and be
continuing, (y) the Fixed Charge Coverage Ratio for the Test Period in effect at the
time such payment is to occur shall be at least 1.25 to 1.00 (determined on a Pro
Forma Basis in respect of the Test Period in effect at such time), and (z) no Level
2 Minimum Aggregate Availability Period shall be in effect.
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(b) No Loan Party will, nor will it permit any of its Subsidiaries to, make or agree to pay or
make, directly or indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any Indebtedness (other than the
Synthetic Lease Obligations), or any payment or other distribution (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancellation or termination of any Indebtedness (other than
the Synthetic Lease Obligations), except:
(A) payment of Indebtedness created under the Loan Documents;
(B) payment of regularly scheduled interest and principal payments as
and when due in respect of any Indebtedness, other than (x) payments in
respect of any Subordinated Indebtedness prohibited by the subordination
provisions thereof (including, for the avoidance of doubt, the Hong Kong
Intercompany Loan and, except as provided pursuant to clause (H) below, the
Hong Kong Intercompany Receivable and any other Intercompany Services
Receivable) and (y) payments or repayments of any kind which result in a
breach of Section 5.15 (Financial Assistance), including but not limited to
any payments (including interest) or repayments with respect to the Existing
Euro Notes and the 293,000,000 intercompany indebtedness between LCI
Acquisition U.S. Inc. as lender and Mexx Europe International B.V. as
borrower with the proceeds (directly or indirectly) of any Borrowings
hereunder by the Canadian Borrower, the UK Borrower or the European
Borrower;
(C) refinancings, replacements and renewals of Indebtedness to the
extent permitted by Section 6.01;
(D) payment of secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(E) payment of Indebtedness owed to the Company or any Group Member;
(F) payment of Indebtedness owed by non-Loan Parties to Loan Parties;
(G) prepayments or repurchases of the Existing Euro Notes or the
Existing Convertible Notes in an aggregate amount not to exceed $50,000,000
in any fiscal year of the Company; provided that (i) both
immediately before and immediately after giving pro forma
effect thereto, (x) no Default or Event of Default shall have occurred and
be continuing and (y) Aggregate Availability shall not have been less than
the greater of (i) $109,375,000 and (ii) an amount equal to 31.25% of the
Commitments then in effect at any time during the three-month period
immediately
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preceding such prepayment or repurchase and (ii) in no event shall any
such prepayments or repurchases of the Existing Euro Notes be made with
proceeds of European Loans, UK Loans or Canadian Loans hereunder;
(H) payments to (x) Liz Claiborne International Limited in respect of
the Hong Kong Intercompany Receivable or (y) any other non-Loan Party in
respect of any Intercompany Services Receivable, in each case, the proceeds
of which shall be used to pay (i) the applicable payees operating costs and
expenses and other corporate overhead costs and expenses which are
reasonable and customary, in each case incurred in the ordinary course of
business, consistent with past practice, (ii) franchise and excise taxes and
other fees, taxes and expenses required to maintain such payees corporate
existence, (iii) customary salary, bonus and other benefits payable to
officers and employees of such payee, consistent with past practice or (iv)
taxes that are due and payable by such payee;
(I) prepayments or repurchases of the Existing Euro Notes and/or the
Existing Convertible Notes with the Net Proceeds of (i) any capital
contributions made to the Company, (ii) any issuance of common stock of the
Company, (iii) any incurrence of Subordinated Indebtedness of the Company or
any Subsidiary, (iv) any asset sale permitted pursuant to Section 6.05(g),
and (iv) any incurrence of Indebtedness described in Section 6.02(p);
provided that (x) both immediately before and immediately after
giving pro forma effect thereto, (1) no Default or Event of
Default shall have occurred and be continuing and (2) Aggregate Availability
shall not have been less than the greater of (A) $109,375,000 and (B) an
amount equal to 31.25% of the Commitments then in effect at any time during
the three-month period immediately preceding such prepayment or repurchase,
and (y) any Net Proceeds received by the Company and its Subsidiaries in
connection with such Subordinated Indebtedness, Indebtedness, asset sale,
issuance of common stock or capital contribution are first applied to prepay
the Loans in full in accordance with Section 2.11(a) (or in the case of any
such Indebtedness described in clause (iv) above, Section 2.11(f) or, in the
case of asset sales described in clause (iv) above, Section 2.11(c));
(J) payment of the cash portion of the settlement amount required to be
paid to any holder of Existing Convertible Notes upon the conversion thereof
in accordance with the terms of the Existing Convertible Note Documents;
provided that both immediately before and immediately after giving
pro forma effect thereto, no Default or Event of Default
shall have occurred and be continuing;
(K) other payments in respect of Indebtedness; provided (i)
that both immediately before and immediately after giving pro
forma effect thereto, (x) no Default or Event of Default shall have
occurred and be continuing, (y) the Fixed Charge Coverage Ratio for the Test
Period in
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effect at the time such payment is to occur shall be at least 1.25 to
1.00 (determined on a Pro Forma Basis in respect of the Test Period in
effect at such time) and (z) no Level 2 Minimum Aggregate Availability
Period shall be in effect and (ii) in no event shall any payments or
repayments of any kind be made with respect to the Existing Euro Notes with
proceeds of European Loans, UK Loans or Canadian Loans hereunder;
(L) conversion of the Existing Convertible Notes into equity in
accordance with the terms of the Existing Convertible Note Documents; and
(M) repurchase or exchange of the Existing Euro Notes with common stock
of the Company.
SECTION 6.10 Transactions with Affiliates. No Loan Party will, nor will it permit any
of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions that are at prices and on terms
and conditions not less favorable to such Borrower or such Subsidiary than could be obtained on an
arms-length basis from unrelated third parties, (b) transactions between or among any Borrower and
any Subsidiary not involving any other Affiliate, (c) any loans, advances, Guarantees and other
investments permitted by Section 6.04(c), (d) or (e), (d) any Indebtedness permitted under Section
6.01(c) or (d), (e) any Restricted Payment permitted by Section 6.09, (f) loans or advances to
employees permitted under Section 6.04, (g) the payment of reasonable fees to directors of any
Borrower or any Subsidiary who are not employees of such Borrower or Subsidiary, and compensation
and employee benefit arrangements paid to, and indemnities provided for the benefit of, directors,
officers or employees of the Borrowers or their Subsidiaries in the ordinary course of business and
(h) any issuances of securities or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment agreements, stock options, equity incentive
and stock ownership plans approved by a Borrowers or Subsidiarys board of directors.
SECTION 6.11 Restrictive Agreements. No Loan Party will, nor will it permit any of
its Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of such
Loan Party or any of its Subsidiaries to create, incur or permit to exist any Lien upon any of its
material (individually or in the aggregate) property or assets, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to any shares of its Equity
Interests or to make or repay loans or advances to any Borrower or any other Subsidiary or to
Guarantee Indebtedness of any Borrower or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by any Loan Document,
(ii) the foregoing shall not apply to restrictions and conditions imposed on the Loan Parties
existing on the date hereof identified on Schedule 6.11 (but shall apply to any extension
or renewal of, or any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary or assets pending such sale, provided
that such restrictions and conditions apply only to the Subsidiary or assets that is to be sold and
such sale is permitted
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hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such Indebtedness, (v)
clause (a) of the foregoing shall not apply to restrictions on the pledge of Equity Interests in
Kate Spade Japan Co., Ltd. pursuant to the Kate Spade JV Agreement, and (vi) clause (a) of the
foregoing shall not apply to customary restrictions set forth in license agreements in the ordinary
course of business so long as such provisions do not prohibit, restrict or impose any condition
upon the ability of such Loan Party or any of its Subsidiaries to (x) create, incur or permit to
exist Liens upon its property or assets in favor of any Agent, for the benefit of the applicable
Lenders and Issuing Banks or (y) dispose of the Collateral or restrict any Agents method and price
for disposing of Collateral (other than any such restrictions set forth in the Existing Donna Karan
License).
SECTION 6.12 Amendment of Material Documents. No Loan Party will, nor will it permit
any of its Subsidiaries to, amend, modify or waive any of its rights under (a) any agreement
relating to any Subordinated Indebtedness, the JCPenney License Agreement, the Synthetic Lease
Documentation, the Euro Notes Documentation or any Indebtedness permitted pursuant to Section
6.01(i) or (b) its certificate of incorporation, by-laws, operating, management or partnership
agreement or other organizational documents, in the case of each of clause (a) and (b) to the
extent any such amendment, modification or waiver would be materially adverse to the Lenders
(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
November 2, 2009).
SECTION 6.13 [Reserved].
SECTION 6.14 Sale and Leaseback Transaction. No Loan Party will, nor will it permit
any Subsidiary to, enter into any arrangement, directly or indirectly, whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property sold or transferred, except for
any such sale of any fixed or capital assets by the Company or any Subsidiary that is made for cash
consideration in an amount not less than the fair value of such fixed or capital asset and is
either (a) consummated within 90 days after the Company or such Subsidiary acquires or completes
the construction of such fixed or capital asset or (b) a sale and leaseback of (i) the Global
Headquarters on terms reasonably satisfactory to the Administrative Agent or (ii) the Ohio
Property; provided in the case of this clause (b)(ii), that in connection with any such
sale and leaseback, the Company and/or any of its Subsidiaries shall have repaid the Synthetic
Lease Obligations in an amount equal to or greater than the lesser of (x) the outstanding Synthetic
Lease Obligations and (y) the Net Proceeds of such sale and leaseback, on or prior to the date that
is one Business Day following receipt thereof by the Company and/or any of its Subsidiaries.
SECTION 6.15 Changes in Fiscal Periods. No Loan Party will, nor will it permit any
Subsidiary to, permit the fiscal year of such Loan Party to end on a day other than (x) December
31, with respect to the European Loan Parties, or (y) the Saturday closest to December 31, with
respect to all other Loan Parties, or change the Companys method of determining fiscal quarters or
fiscal months; provided that the Company may, with the consent of the Administrative Agent
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(such consent not to be unreasonably withheld or delayed), change its fiscal year end once
during the term of this Agreement to the Saturday closest to the end of any calendar month.
SECTION 6.16 Minimum Aggregate Availability. The Loan Parties will not permit the
Aggregate Availability at any time to be less than the greater of (i) $45,000,000 and (ii) an
amount equal to 11.25% of the Commitments then in effect.
ARTICLE VII
Events of Default
If any of the following events (Events of Default) shall occur:
(a) a Borrower shall fail to pay any principal of any Loan owing by it or any
reimbursement obligation owing by it in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) a Borrower shall fail to pay any interest on any Loan owing by it or any fee or any
other amount owing by it (other than an amount referred to in paragraph (a) of this Article)
payable under this Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf of any Loan
Party or any Subsidiary in or in connection with this Agreement or any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection with this
Agreement or any Loan Document or any amendment or modification thereof or waiver
thereunder, shall prove to have been incorrect in any respect when made or deemed made (or
in any material respect if such representation or warranty is not by its terms already
qualified as to materiality);
(d) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02(a), 5.03 (with respect to a Loan Partys existence),
5.08 or 5.19 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in this Agreement or any other Loan Document (other than those which
constitute a default under another Section of this Article), and such failure shall continue
unremedied (i) for a period of five days after the earlier of any Loan Partys knowledge of
such breach or notice thereof from the Administrative Agent (which notice will be given at
the request of any Lender) if such breach relates to terms or provisions of Section 5.01,
5.02(other than Section 5.02(a)), 5.03 (other than with respect to a Loan Partys existence)
through 5.07, 5.09, 5.10 or 5.12 of this Agreement, (ii) for a period of 5 days after such
breach if such breach relates to the provisions of Section 5.18, (iii) for a period of 15
days after the earlier of any Loan Partys knowledge of such breach or notice thereof from
the Administrative Agent (which notice will be given at the request of any
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Lender) if such breach relates to terms or provisions of any other Section of this
Agreement or any other Loan Document or (iv) for a period beyond any period of grace (if
any) provided in such other Loan Document.
(f) any Loan Party or any Subsidiary shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable subject to any applicable grace periods;
(g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this paragraph (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) (i) an involuntary proceeding (including the filing of any notice of intention in
respect thereof) shall be commenced or an involuntary petition shall be filed seeking (A)
bankruptcy, liquidation, winding-up, dissolution, reorganization, examination, suspension of
general operations or other relief in respect of a Loan Party or any Subsidiary of a Loan
Party (other than any member of the European Group) or its debts, or of a substantial part
of its assets, under any Insolvency Law now or hereafter in effect, (B) the composition,
rescheduling, reorganization, examination, arrangement or readjustment of, or other relief
from, or stay of proceedings to enforce, some or all of the debts or obligations of any Loan
Party or any Subsidiary of a Loan Party (other than a member of the European Group), (C) the
appointment of a receiver, interim receiver, receiver and manager, liquidator, provisional
liquidator, administrator, examiner, trustee, custodian, sequestrator, conservator,
examiner, agent or similar official for any Loan Party or any Subsidiary of a Loan Party
(other than a member of the European Group) or for any substantial part of its assets or (D)
possession, foreclosure, seizure or retention, sale or other disposition of, or other
proceedings to enforce security over any substantial part of the assets of any Loan Party or
any Subsidiary of a Loan Party (other than a member of the European Group) and, in any such
case, such proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;
(ii) any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(A) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration, examination or reorganization (by
way of voluntary arrangement, scheme of arrangement or otherwise) of any
member of the European Group;
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(B) a composition, compromise, assignment or arrangement with any
creditor of any member of the European Group;
(C) the appointment of a liquidator, receiver, administrative receiver,
administrator, examiner, compulsory manager or other similar officer in
respect of any member of the European Group or any of its assets; or
(D) enforcement of any Lien over any assets of any member of the
European Group,
or any analogous procedure or step is taken with respect to any member of the
European Group or its assets in any applicable jurisdiction;
(iii) any expropriation, attachment, sequestration, distress or execution or
any analogous process in any jurisdiction affects any asset or assets of a member of
the European Group having an aggregate value of $10,000,000 and is not discharged
within 30 days;
(i) (i) any Loan Party or any Material Subsidiary of a Loan Party (other than a member
of the European Group) shall (A) voluntarily commence any proceeding, file any petition,
pass any resolution or make any application seeking liquidation, reorganization,
administration or other relief under any Insolvency Law now or hereafter in effect, (B)
consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in paragraph (h) of this Article, (C) apply for or consent
to the appointment of a receiver, interim receiver, receiver and manager, liquidator,
assignee, trustee, custodian, sequestrator, administrator, examiner, conservator or similar
official for such Loan Party or any such Material Subsidiary of a Loan Party or for a
substantial part of its assets, (D) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (E) make a general assignment for the
benefit of creditors or (F) take any action for the purpose of effecting any of the
foregoing;
(ii) any member of the European Group is unable or admits inability to pay its
debts as they fall due or is deemed to or declared to be unable to pay its debts
under applicable law, suspends or threatens to suspend making payments on any of its
debts or, by reason of actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to rescheduling any of
its indebtedness;
(iii) the value of the assets of any member of the European Group is less than
its liabilities (taking into account contingent and prospective liabilities but, in
the case of any Designated Loan Party, excluding intercompany obligations); or
(iv) a moratorium is declared in respect of any indebtedness of any member of
the European Group (if a moratorium occurs, the ending of the moratorium will not
cure any Event of Default caused by that moratorium).
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(j) any Loan Party or any Subsidiary of a Loan Party shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of
$40,000,000 (to the extent not covered by insurance as to which the relevant insurance
company has acknowledged coverage) shall be rendered against any Loan Party, any Subsidiary
of any Loan Party or any combination thereof and the same shall remain undischarged for a
period of 30 consecutive days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy upon any assets of
any Loan Party or any Subsidiary of any Loan Party to enforce any such judgment or any Loan
Party or any Subsidiary of any Loan Party shall fail within 30 days to discharge one or more
non-monetary judgments or orders which, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, which judgments or orders, in any such case,
are not stayed on appeal by proper proceedings diligently pursued;
(l) (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a
United States district court to administer any Plan, (iii) the PBGC shall institute
proceedings to terminate any Plan, (iv) any Loan Party or any of their respective ERISA
Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has
incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity
does not have reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner; or (v) any other
event or condition shall occur or exist with respect to a Plan; and in each case in clauses
(i) through (v) above, such event or condition, together with all other such events or
conditions, if any, could, in the opinion of the Required Lenders, reasonably be expected to
result, individually or in the aggregate, in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) the Loan Guaranty shall fail to remain in full force or effect or any action shall
be taken to discontinue or to assert the invalidity or unenforceability of the Loan
Guaranty, or any Loan Guarantor shall fail to comply with any of the terms or provisions of
the Loan Guaranty to which it is a party, or any Loan Guarantor shall deny that it has any
further liability under the Loan Guaranty to which it is a party, or shall give notice to
such effect;
(o) any Collateral Document shall for any reason fail to create a valid and perfected
first priority security interest in any Collateral purported to be covered thereby, except
as permitted by the terms of any Collateral Document, or any Collateral Document shall fail
to remain in full force or effect or any action shall be taken to discontinue or to assert
the invalidity or unenforceability of any Collateral Document; or
(p) any material provision of any Loan Document for any reason ceases to be valid,
binding and enforceable in accordance with its terms (or any Loan Party shall challenge the
enforceability of any Loan Document or shall assert in writing, or engage in any action or
inaction based on any such assertion, that any provision of any of the Loan
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Documents has ceased to be or otherwise is not valid, binding and enforceable in
accordance with its terms);
then, and in every such event (other than an event with respect to any Borrower described in
paragraph (h) or (i) of this Article), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower Representative, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately,
and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to
a Borrower described in paragraph (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers. Upon the occurrence and the continuance of an Event of Default,
the Administrative Agent, the Canadian Administrative Agent, the European Administrative Agent and
each Collateral Agent may, and at the request of the Required Lenders shall, exercise any rights
and remedies provided to it under the Loan Documents or at law or equity, including all remedies
provided under the UCC and the PPSA.
ARTICLE VIII
The Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent
and the Collateral Agents
(a) Each of the Lenders and the Issuing Banks hereby irrevocably appoints the Administrative
Agent, the European Administrative Agent, the Canadian Administrative Agent and each Collateral
Agent, each of them individually as its agent and authorizes the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent and each Collateral Agent to take such
actions on its behalf, including execution of the other Loan Documents, and to exercise such powers
as are delegated to such Agent by the terms of the Loan Documents, together with such actions and
powers as are reasonably incidental thereto.
(b) Any bank serving as the Administrative Agent, the European Administrative Agent, the
Canadian Administrative Agent or a Collateral Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent or a
Collateral Agent, and such bank and its Affiliates may accept deposits from, lend money to, invest
in and generally engage in any kind of business with the Loan Parties or any Subsidiary of a Loan
Party or other Affiliate thereof as if it were not
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the Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent
or a Collateral Agent hereunder.
(c) Neither the Administrative Agent, the European Administrative Agent, the Canadian
Administrative Agent nor any Collateral Agent shall have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a)
neither the Administrative Agent, the European Administrative Agent, the Canadian Administrative
Agent nor any Collateral Agent shall be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) neither the Administrative
Agent, the European Administrative Agent, the Canadian Administrative Agent nor any Collateral
Agent shall have any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent
is required to exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.02), and (c) except as expressly set forth in the Loan Documents, neither the Administrative
Agent, the European Administrative Agent, the Canadian Administrative Agent nor any Collateral
Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any of its Subsidiaries that is communicated to or
obtained by the bank serving as the Administrative Agent, the European Administrative Agent, the
Canadian Administrative Agent or any Collateral Agent or any of its Affiliates in any capacity.
Neither the Administrative Agent, the European Administrative Agent, the Canadian Administrative
Agent nor any Collateral Agent shall be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or willful misconduct. Neither the Administrative Agent, the
European Administrative Agent, the Canadian Administrative Agent nor any Collateral Agent shall be
deemed to have knowledge of any Default unless and until written notice thereof is given to such
Agent by the Borrower Representative or a Lender, and neither the Administrative Agent, the
European Administrative Agent, the Canadian Administrative Agent nor any Collateral Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection with any Loan Document,
(iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the adequacy, accuracy or completeness of any
information (whether oral or written) set forth or in connection with any Loan Document, (v) the
legality, validity, enforceability, effectiveness, adequacy or genuineness of any Loan Document or
any other agreement, instrument or document, (vi) the creation, perfection or priority of Liens on
the Collateral or the existence of the Collateral, or (vii) the satisfaction of any condition set
forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent, the European Administrative Agent,
the Canadian Administrative Agent or any Collateral Agent.
(d) The Administrative Agent, the European Administrative Agent, the Canadian Administrative
Agent and each Collateral Agent shall each be entitled to rely upon, and shall not incur any
liability for relying upon, (i) any representation, notice, request, certificate, consent,
statement, instrument, document or other writing or communication believed
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by it to be genuine, correct and to have been authorized, signed or sent by the proper Person,
(ii) any statement made to it orally or by telephone and believed by it to be made or authorized by
the proper Person or (iii) any statement made by a director, authorized signatory or employee of
any Person regarding any matters which may reasonably be assumed to be within his or her knowledge
or within his or her power to verify. The Administrative Agent, the European Administrative Agent,
the Canadian Administrative Agent and each Collateral Agent may consult with legal counsel (who may
be counsel for the Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(e) The Administrative Agent, the European Administrative Agent, the Canadian Administrative
Agent and each Collateral Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent or each Collateral Agent, as the case may
be. The Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent
and each Collateral Agent and any such sub-agent may perform any and all its duties and exercise
its rights and powers through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent and each
Collateral Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as well as activities
as the Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent
and each Collateral Agent, as the case may be.
(f) Subject to the appointment and acceptance of a successor Administrative Agent, European
Administrative Agent, the Canadian Administrative Agent or Collateral Agent, as the case may be, as
provided in this paragraph, the Administrative Agent, the European Administrative Agent, the
Canadian Administrative Agent and each Collateral Agent, may resign at any time by notifying the
Lenders, the Issuing Banks and the Borrower Representative. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor
(which shall, (x) in the case of the European Collateral Agent only, be an Affiliate of the
Administrative Agent acting through an office in the United Kingdom and (y) in the case of the
Canadian Administrative Agent only, be an Affiliate of the Administrative Agent acting through a
branch or an office in Canada). If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing
Banks, appoint its successor in such capacity, which shall be a commercial bank or an Affiliate of
any such commercial bank or a Lender (and (x) in the case of the European Collateral Agent only, be
an Affiliate of the Administrative Agent acting through an office in the United Kingdom and (y) in
the case of the Canadian Collateral Agent only, be an Affiliate of the Administrative Agent acting
through an office in Canada). Upon the acceptance of its appointment as Administrative Agent,
European Administrative Agent, Canadian Administrative Agent or a Collateral Agent hereunder by a
successor, such successor shall succeed to and become vested with all the rights, powers,
privileges, obligations and duties of the retiring Administrative Agent, European Administrative
Agent, Canadian Administrative Agent or Collateral Agent, and the retiring Administrative Agent,
European Administrative
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Agent, Canadian Administrative Agent or Collateral Agent shall be discharged from its duties
and any further obligations hereunder. The retiring Administrative Agent, European Administrative
Agent, Canadian Administrative Agent or Collateral Agent shall, at its own cost, make available to
the successor Administrative Agent, European Administrative Agent, Canadian Administrative Agent or
Collateral Agent any documents and records and provide any assistance which the successor
Administrative Agent, European Administrative Agent, Canadian Administrative Agent or Collateral
Agent may reasonably request for the purposes of performing its functions as Administrative Agent,
European Administrative Agent, Canadian Administrative Agent or Collateral Agent under the Loan
Documents. The fees payable by the Borrowers to a successor Administrative Agent, European
Administrative Agent, Canadian Administrative Agent or Collateral Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrowers and such successor. After
the Administrative Agents, European Administrative Agents, Canadian Administrative Agents or
Collateral Agents resignation hereunder, the provisions of this Article and Section 9.03 shall
continue in effect for the benefit of such retiring Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent, European Administrative Agent, Canadian Administrative Agent or
Collateral Agent.
(g) Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent, the European Administrative Agent, the Canadian Administrative Agent any
Collateral Agent or any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the Administrative Agent,
the European Administrative Agent, the Canadian Administrative Agent, any Collateral Agent or any
other Lender and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement, any other Loan Document or related agreement or any document furnished hereunder or
thereunder.
(h) Each Lender hereby agrees that (a) it has been provided access to each Report prepared by
or on behalf of the Administrative Agent; (b) neither the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent nor any Collateral Agent (i) makes any
representation or warranty, express or implied, as to the completeness or accuracy of any Report or
any of the information contained therein or any inaccuracy or omission contained in or relating to
a Report and (ii) shall be liable for any information contained in any Report; (c) the Reports are
not comprehensive audits or examinations, and that any Person performing any field examination will
inspect only specific information regarding the Loan Parties and will rely significantly upon the
Loan Parties books and records, as well as on representations of the Loan Parties personnel and
that neither the Administrative Agent, the European Administrative Agent, the Canadian
Administrative Agent nor any Collateral Agent undertakes any obligation to update, correct or
supplement the Reports; (d) it will keep all Reports confidential and strictly for its internal
use, and it will not share the Report with any other Person except as otherwise permitted pursuant
to Section 9.12 of this Agreement; and (e) without limiting the generality of any other
indemnification provision contained in this Agreement, it will pay and protect, and indemnify,
defend, and hold the Administrative Agent, the European Administrative Agent, the Canadian
Administrative Agent, each Collateral Agent and any such other Person preparing a Report harmless
from and against,
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the claims, actions, proceedings, damages, costs, expenses, and other amounts (including
reasonable attorney fees) incurred by as the direct or indirect result of any third parties who
might obtain all or part of any Report through the indemnifying Lender (except as permitted
pursuant to Section 9.12 of this Agreement).
(i) The US Collateral Agent shall act as the secured party, on behalf of the Administrative
Agent, the Lenders and the Issuing Banks, with respect to all Collateral of each Loan Party that is
organized in any jurisdiction, other than any Participating Member State, the United Kingdom or
Canada, the Canadian Collateral Agent shall act as the secured party, on behalf of the
Administrative Agent, the Lenders and the Issuing Banks, with respect to all Collateral of each
Loan Party that is organized under the laws of Canada or any province or other political
subdivision thereof and the European Collateral Agent shall act as the secured party, on behalf of
the Administrative Agent, the Lenders and the Issuing Banks, with respect to all Collateral of a
Loan Party that is organized in any Participating Member State or in the United Kingdom.
(j) Each Lender, each Issuing Bank, the US Collateral Agent, the Canadian Collateral Agent,
the European Administrative Agent, the Canadian Administrative Agent and the Administrative Agent
appoints the European Collateral Agent to act as security trustee under and in connection with the
Netherlands Security Agreement and the UK Security Agreement on the terms and conditions set forth
on Schedule 8.
(k) The Syndication Agent and Documentation Agents shall not have any right, power,
obligation, liability, responsibility or duty under this Agreement other than those applicable to
all Lenders as such.
(l) For the purposes of holding any security granted by any Borrower or any other Loan Party
pursuant to the laws of the Province of Quebec to secure payment of any bond issued by any Borrower
or any Loan Party, each Agent, each Lender and each Issuing Bank hereby irrevocably appoints and
authorizes the Canadian Collateral Agent and, to the extent necessary, ratifies the appointment and
authorization of the Canadian Collateral Agent, to act as the person holding the power of attorney
(i.e. fondé de pouvoir) (in such capacity, the Attorney) of the Agents, the Lenders and
the Issuing Banks as contemplated under Article 2692 of the Civil Code of Québec, and to enter
into, to take and to hold on its behalf, and for its benefit, any hypothec, and to exercise such
powers and duties that are conferred upon the Attorney under any hypothec. Moreover, without
prejudice to such appointment and authorization to act as the person holding the power of attorney
as aforesaid, each Agent, each Lender and each Issuing Bank hereby irrevocably appoints and
authorizes the Canadian Collateral Agent (in such capacity, the Custodian) to act as
agent and custodian for and on behalf of the Agents, the Lenders and the Issuing Banks to hold and
be the sole registered holder of any bond which may be issued under any hypothec, the whole
notwithstanding Section 32 of An Act respecting the special powers of legal persons (Quebec) or any
other applicable law, and to execute all related documents. Each of the Attorney and the Custodian
shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise
specifically restricted by the terms hereof, all rights and remedies given to the Attorney and the
Custodian (as applicable) pursuant to any hypothec, bond, pledge, applicable laws or otherwise, (b)
benefit from and be subject to all provisions hereof with respect to the Canadian Collateral Agent
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mutatis mutandis, including, without limitation, all such provisions with respect to the
liability or responsibility to and indemnification by the Agents, the Lenders and the Issuing
Banks, and (c) be entitled to delegate from time to time any of its powers or duties under any
hypothec, bond, or pledge on such terms and conditions as it may determine from time to time. Any
person who becomes an Agent, a Lender or an Issuing Bank shall, by its execution of an Assignment
and Assumption, be deemed to have consented to and confirmed: (i) the Attorney as the person
holding the power of attorney as aforesaid and to have ratified, as of the date it becomes an
Agent, a Lender or an Issuing Bank, as applicable all actions taken by the Attorney in such
capacity, and (ii) the Custodian as the agent and custodian as aforesaid and to have ratified, as
of the date it becomes an Agent, a Lender or an Issuing Bank, all actions taken by the Custodian in
such capacity. The substitution of the Canadian Collateral Agent pursuant to the provisions of
this Article VIII shall also constitute the substitution of the Attorney and the Custodian.
(m) Each Lender and each Issuing Bank hereby irrevocably appoints the European Collateral
Agent to constitute, register, manage and enforce any security interest created by any Collateral
Document governed by French law on its behalf in accordance with the provisions of article 2328-1
of the French Civil Code.
(n) In relation to any Austrian Collateral Document, each Lender, each Issuing Bank, the
European Borrower, Mexx Direct GmbH & Co. KG (a German limited partnership (KG) having its
registered office at Korschenbroich, Germany with registered number HRA 6551(commercial register of
the local court of Neuss)) and each Loan Party organized under Austrian law hereby
(i) grants to the European Collateral Agent a power of attorney (Vollmacht):
(a) to execute for and on behalf of each of them any and all Austrian
Collateral Documents, any related notices and to do and perform all acts it
deems necessary or desirable to create valid rights (including rights in rem
(dingliche Rechte)) under any Austrian Collateral Document; and
(b) to appoint for and on behalf of each of them, itself or any other
Person as its representative in relation to any Austrian Collateral
Document, to exercise for and on behalf of them all rights set forth in the
Austrian Collateral Documents (including, without limitation, the right to
give notice, to make any declaration in relation thereto, to enforce the
security rights, to make all calculations in relation thereto and to release
the security as provided therein).
(ii) agrees that the European Collateral Agent also acts for others and itself
in relation to the Austrian Collateral Documents, any related notice and any measure
or other act (including, without limitation, legal proceedings in Austrian courts)
it deems necessary at any time from time to time;
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(iii) authorizes the European Collateral Agent to authorize any other Person
with substitute powers to act for and on behalf of them; and
(iv) agrees to have executed for and on behalf of each of them any Austrian
Collateral Documents and any related notices, which relate to the Existing Credit
Agreement.
(o) All references to the Existing Credit Agreement in the Austrian Collateral Documents shall
be deemed to refer also to this Agreement. All rights and security interest granted to, or created
for the benefit of, the European Collateral Agent or any Secured Party (as defined in the
respective Austrian Collateral Document) under the Austrian Collateral Documents shall not cease to
exist by reason of the entering into or execution of this Agreement. All rights and security
interest granted to, or created for the benefit of, the European Collateral Agent or any Secured
Party (as defined in the respective Austrian Collateral Document) and all obligations of the
European Borrower, Mexx Direct GmbH & Co. KG and each Loan Party organized under Austrian law,
shall continue to be in full force and effect with respect to the Existing Credit Agreement and
this Agreement.
(p) The European Borrower, Mexx Direct GmbH & Co. KG and each Loan Party organized under
Austrian law hereby waive all their objections and defenses in relation to the Existing Credit
Agreement which any of them may have had or has pursuant to Austrian law or otherwise against the
European Collateral Agent, any Lender, any Issuing Bank or any other Person to which any European
Loan Party or Canadian Loan Party owes any monies or incurs any obligations or other liabilities
under any Loan Documents as the same may be amended, restated or otherwise modified from time to
time.
(q) In relation to any Collateral Document governed by Italian law (each an Italian
Collateral Document), each Lender, each Issuing Bank and each Agent hereby grants to the
European Collateral Agent a power of attorney (i.e. mandato con rappresentanza) in order to:
(a) execute in its name and on its behalf any and all Italian
Collateral Documents in the capacity of secured creditor (creditore
garantito); and
(b) appoint in its name and on its behalf the European Collateral Agent
as its agent under such Italian Collateral Document, and therefore to
exercise in its name and on its behalf any and all rights set forth therein
in favor of the secured creditors (which shall include, without limitation,
the right to send any notice and make any declaration thereunder, the right
to enforce the security and to make any calculation in relation thereto and
the right to release the security in the circumstances set forth therein).
(r) Each Lender and each Issuing Bank hereby irrevocably appoints the European Collateral
Agent to constitute, register, manage and enforce any security interest created by any Collateral
Document governed by Spanish law on its behalf and therefore to exercise in its name and on its
behalf any and all rights in favor of the Secured Parties (which
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shall include, without limitation, the right to send any notice and make any declaration
thereunder, the right to enforce the security and to make any calculation in relation thereto and
the right to release the security in the circumstances set forth therein).
(s) In relation to any Collateral Document governed by the laws of Germany (for the purposes
of this Article VIII, each a German Law Security Agreement), each Lender, each Agent,
each Issuing Bank, each other Secured Party and each Foreign Loan Party hereby:
(i) grants to the European Collateral Agent a power of attorney (Vollmacht):
(a) to execute for and on behalf of each of them any German Law
Security Agreement, any related notices and to do and perform all acts it
deems necessary or desirable to create valid rights (including rights in rem
(dingliche Rechte)) under any German Law Security Document in their favor
and to execute for and on behalf of each of them any German Security Trust
Agreement appointing the European Collateral Agent as security trustee with
respect to any security interest created under the German Law Security
Agreements; and
(b) to appoint for and on behalf of each of them, itself or any other
Person as its representative in relation to any German Law Security
Agreement, to exercise for and on behalf of them all rights set forth in any
German Law Security Agreement in their favor (including, without limitation,
the right to give notice, to make any declaration in relation thereto, to
enforce the security rights, to make all calculations in relation thereto
and to release the security as provided therein).
(ii) releases the European Collateral Agent from the restrictions of section 181 German
Civil Code (BGB), in particular, but not limited to, with respect to the exercise of the power
of attorney (Vollmacht) granted pursuant to this Article VIII and agrees that the European
Collateral Agent also acts for others and itself in relation to any German Law Security
Agreement, any related notice and any measure or other act (including, without limitation,
legal proceedings in Germany) it deems necessary at any time from time to time; and
(iii) authorizes the European Collateral Agent to authorize any other Person with
substitute powers to act for and on behalf of them.
Each German Loan Party represents to each of the Lenders that the release granted pursuant to
Section 11.07 is effective under the term of its constitutional documents.
(t) In relation to each Collateral Document governed by Luxembourg Law, each Lender and each
Issuing Bank hereby irrevocably appoints the European Collateral Agent to (i) without limitation,
constitute, register, manage, enforce or release, as the case may be, any security interest created
thereby, as well as take any action as may be necessary or useful in connection therewith and (ii)
more generally, exercise on behalf of each of them, any and all rights and powers set forth
therein.
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(u) Each of the Lenders hereby acknowledges that is has received and reviewed the
Intercreditor Agreement and agrees to be bound by the terms thereof. Each Lender (and each Person
that becomes a Lender hereunder pursuant to Section 9.04) hereby (i) acknowledges that JPMorgan
Chase Bank, N.A. is acting under the Intercreditor Agreement in multiple capacities as the
Collateral Agent and the Credit Agreement Representative (as defined in the Intercreditor
Agreement) and (ii) waives any conflict of interest, now contemplated or arising hereafter, in
connection therewith and agrees not to assert against JPMorgan Chase Bank, N.A. any claims, causes
of action, damages or liabilities of whatever kind or nature relating thereto. Each Lender (and
each Person that becomes a Lender hereunder pursuant to Section 9.04) hereby agrees that JPMorgan
Chase Bank, N.A., in its various capacities thereunder, may take such action on its behalf as is
contemplated by the terms of the Intercreditor Agreement. Each Lender hereby agrees that,
notwithstanding anything herein to the contrary, the Lien and security interest granted to the US
Collateral Agent on the US Collateral pursuant to this Agreement or any other Loan Document and the
exercise of any right or remedy by the US Collateral Agent hereunder or under any other Loan
Document are subject to the provisions of the Intercreditor Agreement. In the event of any
conflict between the terms of the Intercreditor Agreement, this Agreement and any other Loan
Document, the terms of the Intercreditor Agreement shall govern and control with respect to any
right or remedy.
(v) Each of the Lenders hereby acknowledges that (x) it has received and reviewed the US
Reaffirmation Agreement, (y) it consents to the terms thereof, including any amendments to the US
Security Agreement contained therein, and agrees to be bound thereby and directs the Administrative
Agent to execute the US Reaffirmation Agreement.
(w) Each of the Lenders hereby acknowledges that (x) it has received and reviewed the Canadian
Reaffirmation Agreement, (y) it consents to the terms thereof, including any amendments to the
Canadian Security Agreement contained therein, and agrees to be bound thereby and directs the
Canadian Administrative Agent to execute the Canadian Reaffirmation Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01 Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by facsimile,
in the case of any notice to the European Administrative Agent, or by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile or .pdf transmission, in the
case of any notice to any other Person, as follows:
(i) if to any Loan Party, to the Borrower Representative at:
Liz Claiborne, Inc.
5901 West Side Avenue (or One Claiborne Avenue)
North Bergen, New Jersey 07047
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Attention: Robert Vill
Telephone: 201-295-7515
Facsimile: 201-295-7825
with a copy to the General Counsel
Liz Claiborne, Inc.
5901 West Side Avenue (or One Claiborne Avenue)
North Bergen, New Jersey 07047
Attention: The General Counsel
Telephone: 212-626-3240
Facsimile: 212-626-5746
(ii) if to the Administrative Agent, the US Collateral Agent or the US
Swingline Lender, to:
JPMorgan Chase Bank, N.A.
270 Park Avenue, 44th Floor
New York, NY 10017
Attention: Scott Troy
Facsimile: 646-534-2274
(iii) if to the European Collateral Agent, to:
J.P. Morgan Europe Limited
10 Aldermanbury
London EC2V 7RF
United Kingdom
Attention: Tim Jacob
Facsimile: +44 20 7325 6813
(iv) if to the European Administrative Agent, the European Swingline Lender or
the UK Swingline Lender, to:
J.P. Morgan Europe Limited
Loans Agency 9th floor
125 London Wall
London EC2Y 5AJ
United Kingdom
Attention: Loans Agency
Facsimile: +44 20 7777 2360
(v) if to the Canadian Collateral Agent, to:
J.P. Morgan Chase Bank, N.A., Toronto Branch
200 Bay Street
Royal Bank Plaza, South Tower, Suite 1800
Toronto M5J 2J2 Canada
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Attention: Agostino Marchetti
Telecopy: (416) 981-2365
(vi) if to the Canadian Administrative Agent or the Canadian Swingline Lender,
to:
J.P. Morgan Chase Bank, N.A., Toronto Branch
200 Bay Street
Royal Bank Plaza, South Tower, Suite 1800
Toronto M5J 2J2 Canada
Attention: Agostino Marchetti
Telecopy: (416) 981-2365
(vii) if to any Issuing Bank, as notified to the Administrative Agent and the
Borrower Representative.
(viii) if to any other Lender, to it at its address or facsimile number set
forth in its Administrative Questionnaire.
All such notices and other communications (i) sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when received or (ii) sent by
facsimile or .pdf transmission shall be deemed to have been given when sent; provided that
if not given during normal business hours for the recipient, shall be deemed to have been given at
the opening of business on the next Business Day for the recipient.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications (including e-mail and internet or intranet websites) pursuant to
procedures approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II or to Event of Default certificates delivered pursuant to
Section 5.01(e) unless otherwise agreed by the Administrative Agent, the Canadian Administrative
Agent and/or the European Administrative Agent, as the case may be, and the applicable Lender;
provided further that notices to the European Administrative Agent must be
delivered by facsimile. The Administrative Agent or the Borrower Representative (on behalf of the
Loan Parties) may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or communications. All such
notices and other communications (i) sent to an e-mail address shall be deemed received upon the
senders receipt of an acknowledgement from the intended recipient (such as by the return receipt
requested function, as available, return e-mail or other written acknowledgement);
provided that if not given during the normal business hours of the recipient, such notice
or communication shall be deemed to have been given at the opening of business on the next Business
Day for the recipient, and (ii) posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (b)(i) of notification that such notice or communication is available and
identifying the website address therefor.
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(c) Any party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto.
(d) Any notice or document to be delivered to any Loan Party incorporated or domiciled in
Austria under or in connection with this Agreement or any other Loan Document shall be sent to an
address located outside of the territory of the Republic of Austria (unless it is necessary and
reasonably desirable for the perfection of any Collateral Document or any security interest for
such notice or document to be sent to an address located within the territory of the Republic of
Austria).
(e) Mexx Austria GmbH hereby appoints and authorizes the European Borrower as its
representative for receipt of all communication, notices and documents, including all Loan
Documents, which are deemed to have been duly received by Mexx Austria GmbH at the time when
received by the European Borrower.
SECTION 9.02 Waivers; Amendments. (a) No failure or delay by any Agent, any Issuing
Bank or any Lender in exercising any right or power hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and
remedies of the Agents, the Issuing Banks and the Lenders hereunder and under any other Loan
Document are cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b)
of this Section, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the foregoing, the making
of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default,
regardless of whether any Agent, any Lender or any Issuing Bank may have had notice or knowledge of
such Default at the time.
(b) Neither this Agreement nor any other Loan Document (other than the Intercreditor
Agreement) nor any provision hereof or thereof may be waived, amended or modified except (i) in the
case of this Agreement, pursuant to an agreement or agreements in writing entered into by the
Borrowers (and, in the case of any such waiver, amendment or modification that changes any
provision of the Loan Guaranty, the other Loan Parties) and the Required Lenders or (ii) in the
case of any other Loan Document (other than the Intercreditor Agreement), pursuant to an agreement
or agreements in writing entered into by the Administrative Agent, the applicable Collateral Agent
(to the extent it is a party to such Loan Document) and each Loan Party that is a party thereto,
with the consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce or
forgive the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon,
or reduce or forgive any interest or fees payable hereunder, without the written consent of each
Lender directly affected thereby, (iii) postpone any scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any date for the payment of any interest, fees or other
Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, postpone
the scheduled
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date of expiration of any Commitment, without the written consent of each Lender affected
thereby, (iv) increase the advance rates set forth in the definition of US Borrowing Base, Canadian
Borrowing Base, UK Borrowing Base or European Borrowing Base without the written consent of each
Lender, (v) change Section 2.18(b) or (d) in a manner that would alter the manner in which payments
are shared or change any provision requiring ratable funding, without the written consent of each
Lender, (vi) modify eligibility criteria, as such eligibility criteria are in effect on the
Effective Date (including adding new categories of eligible assets or eliminating any category of
the reserves, or increasing the sublimits set forth in any Borrowing Base, increasing the PP&E
Component or increasing the Eligible Trademark Amount), in any manner that has the effect of
increasing the amounts available to be borrowed hereunder without the written consent of the
Supermajority Lenders (it being understood, for the avoidance of doubt, that any reduction in the
Synthetic Lease Reserves pursuant to the definition thereof as in effect on the date hereof shall
be permitted), (vii) reduce or eliminate reserves related to the Synthetic Lease Obligations
without the consent of each Lender (it being understood, for the avoidance of doubt, that any
reduction in the Synthetic Lease Reserves pursuant to the definition thereof as in effect on the
date hereof shall be permitted), (viii) change any of the provisions of this Section or the
definition of Required Lenders or Supermajority Lenders or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any Class) required to
waive, amend or modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender, (ix) release any Loan Guarantor that
constitutes a Material Subsidiary from its obligation under its Loan Guaranty or limit its
liability thereunder (except, in each case, as otherwise permitted herein or in the other Loan
Documents), without the written consent of each Lender, (x) except as provided in paragraph (d) of
this Section or in any Collateral Document, release all or substantially all of the Collateral,
without the written consent of each Lender, (xi) add additional available currencies to any
Facility without the written consent of each Lender directly affected thereby, (xii) increase the
Canadian Sublimit, the European Sublimit or the UK Sublimit without the written consent of the
Supermajority Lenders, (xiii) change Section 2.11(c) without the written consent of the
Supermajority Lenders, (xiv) reduce the thresholds set forth in, or waive compliance with, Section
6.16 without the consent of the Supermajority Lenders, (xv) except as expressly permitted pursuant
to Section 6.02(p), subordinate the Liens in favor of the applicable Collateral Agents on all or
substantially all of the Collateral without the written consent of the Supermajority Lenders, or
(xvi) except as otherwise provided in Section 2.09, increase the total Commitments without the
written consent of the Supermajority Lenders; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of any Agent, any Lender that is an Issuing
Bank or any Swingline Lender hereunder without the prior written consent of such Agent, such
Issuing Bank or such Swingline Lender, as the case may be. The Administrative Agent may also amend
the Commitment Schedule to reflect assignments entered into pursuant to Section 9.04.
(c) Neither the Intercreditor Agreement nor any provision thereof may be waived, amended or
modified except with the consent of the Required Lenders (or any greater number of Lenders that
would have been required if such waiver, amendment or modification had been subject to the
provisions of clause (b) above).
(d) The Lenders hereby irrevocably authorize each Collateral Agent, at its option and in its
sole discretion, to release any Liens granted to such Collateral Agent by the
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Loan Parties on any Collateral (i) upon the termination of the all Commitments, payment and
satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations), and
the cash collateralization of all Unliquidated Obligations in a manner reasonably satisfactory to
each affected Lender, (ii) constituting property being sold or disposed of in compliance with the
terms of this Agreement, (iii) constituting property leased to a Loan Party under a lease which has
expired or been terminated in a transaction permitted under this Agreement or (iv) as required to
effect any sale or other disposition of such Collateral in connection with any exercise of remedies
by a Collateral Agent or the Lenders pursuant to Article VII, or (v) if such Liens were granted by
any Loan Party with respect to which 100% of its Equity Interests have been sold in a transaction
permitted pursuant to Section 6.05. Except as provided in the preceding sentence, no Collateral
Agent will release any Liens on Collateral without the prior written authorization of the Required
Lenders. The Lenders hereby irrevocably authorize the Administrative Agent, at its option and in
its sole discretion, to release any Loan Guarantor from its obligation under its Loan Guaranty if
100% of the Equity Interests of such Loan Guarantor have been sold in a transaction permitted
pursuant to Section 6.05. Any such release shall not in any manner discharge, affect, or impair
the Obligations or any Liens (other than those expressly being released) upon (or obligations of
the Loan Parties in respect of) all interests retained by the Loan Parties, including the proceeds
of any sale, all of which shall continue to constitute part of the Collateral. Notwithstanding
anything to the contrary set forth above, the Lenders hereby irrevocably authorize the US
Collateral Agent and/or the European Collateral Agent, as applicable, to subordinate any Liens on
the Trademarks of the US Loan Parties and/or the Mexx Trademark, as applicable, in favor of such
Collateral Agent to the Liens on such trademarks granted to the holders of any Indebtedness
referred to in Section 6.02(p).
(e) If, in connection with any proposed amendment, waiver or consent requiring the consent of
each Lender, each Lender affected thereby, or the Supermajority Lenders the consent of the
Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such
Lender whose consent is necessary but not obtained being referred to herein as a
Non-Consenting Lender), then the Borrowers may elect to replace a Non-Consenting Lender
as a Lender party to this Agreement; provided that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrowers and the
Administrative Agent shall agree, as of such date, to purchase for cash, at par, the Loans and
other Obligations due to the Non-Consenting Lender pursuant to an Assignment and Assumption and to
become a Lender for all purposes under this Agreement and to assume all obligations of the
Non-Consenting Lender to be terminated as of such date and to comply with the requirements of
paragraph (b) of Section 9.04, and (ii) the Borrowers shall pay to such Non-Consenting Lender in
same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued
but unpaid to such Non-Consenting Lender by the Borrowers hereunder to and including the date of
termination, including without limitation payments due to such Non-Consenting Lender under Sections
2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been due to such
Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting
Lender been prepaid on such date rather than sold to the replacement Lender.
SECTION 9.03 Expenses; Indemnity; Damage Waiver. (a) Borrowers shall pay (i) all
reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, each Collateral Agent,
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each Lead Arranger, each Bookrunner and their respective Affiliates, including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent, the European
Administrative Agent, the Canadian Administrative Agent, the Lead Arrangers, each Collateral Agent
and each Bookrunner (limited, in the absence of an actual conflict of interest, to one counsel and
one third party appraiser and/or field examiner in each relevant jurisdiction), as the case may be,
in connection with the syndication and distribution (including, without limitation, via the
internet or through a service such as Intralinks) of the credit facilities provided for herein, the
preparation and administration of the Loan Documents or any amendments, modifications or waivers of
the provisions of the Loan Documents (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing
Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by any Agent, any
Bookrunner, any Issuing Bank or any Lender, including the reasonable fees, charges and
disbursements of any counsel for any Agent, any Issuing Bank or any Lender, in connection with the
enforcement, collection or protection of its rights in connection with the Loan Documents,
including its rights under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit. Expenses being
reimbursed by the Borrowers under this Section include, without limiting the generality of the
foregoing, costs and expenses incurred in connection with:
(i) appraisals, subject to the limitations set forth in Section 5.11;
(ii) insurance reviews;
(iii) field examinations and the preparation of Reports based on the fees
charged by a third party retained by the Administrative Agent or any Collateral
Agent or the internally allocated fees for each Person employed by the
Administrative Agent or any Collateral Agent with respect to each field examination,
together with the reasonable fees and expenses associated with collateral monitoring
services performed by the Specialized Due Diligence Group of the Administrative
Agent (and the Borrowers agree to modify or adjust the computation of the Borrowing
Basewhich may include maintaining additional Reserves, modifying the advance rates
or modifying the eligibility criteria for the components of the Borrowing Baseto
the extent required by the Administrative Agent as a result of any such evaluation,
appraisal or monitoring);
(iv) taxes, fees and other charges for (A) lien and title searches and title
insurance and (B) recording the Collateral Documents, filing financing statements
and continuations, and other actions to perfect, protect, and continue the Liens of
each Collateral Agent;
(v) sums paid or incurred to take any action required of any Loan Party under
the Loan Documents that such Loan Party fails to pay or take; and
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(vi) forwarding loan proceeds, collecting checks and other items of payment,
and establishing and maintaining the accounts and lock boxes, and costs and expenses
of preserving and protecting the Collateral.
All of the foregoing costs and expenses may be charged when due to the Borrowers as Revolving
Loans or to another deposit account, all as described in Section 2.18(c).
(b) The Borrowers shall, jointly and severally, indemnify the Agents, the Lead Arrangers, the
Issuing Banks and each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an Indemnitee) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, penalties, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of
the Loan Documents or any agreement or instrument contemplated thereby, the performance by the
parties hereto of their respective obligations thereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by any Loan Party or any of their
Subsidiaries, or any Environmental Liability related in any way to any Loan Party or any of their
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims, damages, penalties,
liabilities or related expenses are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct
of such Indemnitee.
(c) To the extent that the Borrowers fail to pay any amount required to be paid by it to any
Agent, any Issuing Bank or any Swingline Lender under paragraph (a) or (b) of this Section, each
Lender severally agrees to pay to such Agent, such Issuing Bank or such Swingline Lender, as the
case may be, such Lenders Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that
the unreimbursed expense or indemnified loss, claim, damage, penalty, liability or related expense,
as the case may be, was incurred by or asserted against such Agent, such Issuing Bank or such
Swingline Lender in its capacity as such.
(d) To the extent permitted by applicable law, no Loan Party shall assert, and each hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after written demand
therefor.
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SECTION 9.04 Successors and Assigns. (a) The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of
Credit and, for the avoidance of doubt, any successor by merger of any Lender), except that (i) the
Loan Parties may not assign or otherwise transfer any of their rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment or transfer by any
Loan Party without such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this Section. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby (including any Affiliate
of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agents, the Issuing Banks and the Lenders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Subject to the conditions set forth in paragraph (c)(ii) below, any Lender may assign to
one or more assignees (other than the Company or any Affiliate thereof) all or a portion of its
rights and obligations under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably
withheld) of:
(i) the Borrower Representative, provided that no consent of the
Borrower Representative shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if a Default has occurred and is
continuing, any other assignee; and
(ii) the Administrative Agent and any Lender that is an Issuing Bank that has
Letters of Credit outstanding in an aggregate amount in excess of $5,000,000 at such
time.
(c) Assignments shall be subject to the following additional conditions:
(i) except in the case of an assignment to a Lender, an Affiliate of a Lender
or an Approved Fund or an assignment of the entire remaining amount of the assigning
Lenders Commitment or Loans of any Class, the amount of the Commitment or Loans of
the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000, unless each of the Borrower
Representative and the Administrative Agent otherwise consent; provided that
(1) no such consent of the Borrower Representative shall be required if an Event of
Default has occurred and is continuing and (2) such amounts shall be aggregated in
respect of each Lender and its Affiliates or Approved Funds, if any;
(ii) in order to comply with the Dutch Act on the Financial Supervision (Wet op
het financieel toezicht), the amount transferred by any Lender under this Section
9.04(c) at any time shall include an outstanding portion
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of at least 50,000 (or its equivalent in other currencies) or such other
amount as may be required from time to time by the Dutch Act on the Financial
Supervision (or implementing legislation) or if less, the new Lender shall confirm
in writing to the Borrowers that it is a professional market party within the
meaning of the Dutch Act on the Financial Supervision;
(iii) each partial assignment shall be made as an assignment of a proportionate
part of all of the assigning Lenders rights and obligations under this Agreement;
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500 to be paid by the assignee or the assignor; and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information
(which may contain material non-public information about the Company, the Loan
Parties and their Related Parties or their respective securities) will be made
available and who may receive such information in accordance with the assignees
compliance procedures and applicable laws, including federal, provincial,
territorial and state securities laws.
For the purposes of this Section 9.04, the term Approved Fund has the following
meaning:
Approved Fund means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
(d) Subject to acceptance and recording thereof pursuant to paragraph (e) of this Section,
from and after the effective date specified in each Assignment and Assumption the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lenders rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (g) of this Section.
(e) The Administrative Agent, acting solely for this purpose as an agent of the Borrowers,
shall maintain at one of its offices a copy of each Assignment and Assumption
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delivered to it and a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the Register). The entries in the
Register shall be conclusive, and the Borrowers, the Administrative Agent, each Collateral Agent,
the Issuing Banks and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrowers, the Issuing Banks and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(f) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignees completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(c)(iv) of this Section and any written consent to such assignment required by paragraph (b) of
this Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to Section
2.05, 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.
(g) (i) Any Lender may, without the consent of the Borrowers, any Agent, any Issuing Bank or
any Swingline Lender, sell participations to one or more banks or other entities (a
Participant) in all or a portion of such Lenders rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lenders obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrowers, the Agents, the Issuing Banks and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lenders rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (g)(ii) of
this Section, the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender (without duplication of any
benefits of the Lender under such Sections) and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender; provided such
Participant agrees to be subject to Section 2.18(d) as though it were a Lender. Each Lender that
sells a participation shall, acting solely for this purpose as an agent of the Borrowers, maintain
a register on which it enters the name and address of each Participant and the principal amounts
(and stated interest) of each Participants interest in the Loans or other
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obligations under this Agreement (the Participant Register). The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary.
(ii) A Participant shall not be entitled to receive any greater payment under
Section 2.15 or 2.17 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower Representatives prior
written consent. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.17 unless the Borrower
Representative and the Administrative Agent, the European Administrative Agent or
the Canadian Administrative Agent, as applicable, is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrowers and any Withholding Agent, to comply with Section 2.17(g) as though it
were a Lender.
(h) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05 Survival. All covenants, agreements, representations and warranties made
by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the execution and delivery of
the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and notwithstanding that any Agent,
any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is
outstanding (unless the same has been cash collateralized in accordance with Section 2.06(j)
hereof) and so long as the Commitments have not expired or terminated. The provisions of Sections
2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans,
the expiration or termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents and any separate letter agreements with
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respect to fees payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by facsimile or .pdf transmission shall be effective as delivery of a manually executed counterpart
of this Agreement.
SECTION 9.07 Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions thereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Borrowers or any
Loan Guarantor against any and all of the Secured Obligations held by such Lender, irrespective of
whether or not such Lender shall have made any demand under the Loan Documents and although such
obligations may be unmatured. The applicable Lender shall promptly notify the Borrower
Representative and the Administrative Agent of such set-off or application, provided that
any failure to give or any delay in giving such notice shall not affect the validity of any such
set-off or application under this Section. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 9.09 Governing Law; Jurisdiction; Consent to Service of Process. (a) The Loan
Documents (other than Section 9.21 of this Agreement (which shall be governed by the laws of
Germany or the State of New York, as applicable), Section 9.30 (which shall be governed by the laws
of the Netherlands or the State of New York, as applicable) and Section 10.10 of this Agreement
(which shall be governed by the laws of Germany) and other than those containing a contrary express
choice of law provision) shall be governed by and construed in accordance with the laws of the
State of New York, but giving effect to federal laws applicable to national banks.
(b) Each Loan Party hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any US Federal or New York State court sitting in the
Borough of Manhattan, New York in any action or proceeding arising out of or relating to any Loan
Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment
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in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Loan Document shall affect any right that the Administrative Agent, the
European Administrative Agent, the Canadian Administrative Agent, any Collateral Agent, any Issuing
Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement
or any other Loan Document against any Loan Party or its properties in the courts of any
jurisdiction.
(c) Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or any
other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each of the Agents, the Issuing Banks and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates directors, officers, employees and
agents, including accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the extent requested by
any regulatory authority, (c) to the extent required by Requirement of Laws or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in connection with the
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exercise of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Loan Parties and their obligations,
(g) with the consent of the Borrower Representative or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, any Issuing Bank or any Lender on a non-confidential basis
from a source other than the Borrowers. For the purposes of this Section, Information
means all information received from the Borrowers and the other Loan Parties relating to the
Borrowers and the other Loan Parties or their business, other than any such information that is
available to the Administrative Agent, any Issuing Bank or any Lender on a non-confidential basis
prior to disclosure by the Borrowers or any other Loan Party; provided that, in the case of
information received from the Borrowers or any Loan Party after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT
TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND ITS
AFFILIATES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS
DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT
WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE
LAW, INCLUDING FEDERAL, PROVINCIAL, TERRITORIAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWERS OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY,
THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH
LENDER REPRESENTS TO THE BORROWERS AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL, PROVINCIAL, TERRITORIAL AND STATE SECURITIES LAWS.
SECTION 9.13 Several Obligations; Nonreliance; Violation of Law. The respective
obligations of the Lenders hereunder are several and not joint and the failure of any Lender to
make any Loan or perform any of its obligations hereunder shall not relieve any other Lender
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from any of its obligations hereunder. Each Lender hereby represents that it is not relying
on or looking to any Margin Stock for the repayment of the Borrowings provided for herein.
Anything contained in this Agreement to the contrary notwithstanding, neither any Issuing Bank nor
any Lender shall be obligated to extend credit to the Borrowers in violation of any Requirement of
Law.
SECTION 9.14 USA PATRIOT Act. Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Patriot
Act) hereby notifies the Borrowers that pursuant to the requirements of such Act, it is
required to obtain, verify and record information that identifies the Borrowers, which information
includes the names and addresses of the Borrowers and other information that will allow such Lender
to identify the Borrowers in accordance with such Act. The Borrowers agree to provide such
information to each Lender on request.
SECTION 9.15 Disclosure. Each Loan Party and each Lender hereby acknowledges and
agrees that the Administrative Agent and/or its Affiliates from time to time may hold investments
in, make other loans to or have other relationships with any of the Loan Parties and their
respective Affiliates.
SECTION 9.16 Appointment for Perfection. Each Lender hereby appoints each other
Lender as its agent for the purpose of perfecting Liens (in each case for the benefit of the
Agents, the Lenders and the Issuing Banks) in assets which, in accordance with Article 9 of the UCC
or any other applicable law can be perfected only by possession. Should any Lender (other than any
Collateral Agent) obtain possession of any such Collateral, such Lender shall notify the
Administrative Agent and, promptly upon the request of the Administrative Agent, shall deliver such
Collateral to the applicable Collateral Agent or otherwise deal with such Collateral in accordance
with the instructions of the applicable Collateral Agent.
SECTION 9.17 Interest Rate Limitation. (a) Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
Charges), shall exceed the maximum lawful rate (the Maximum Rate) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
(b) If any provision of this Agreement or of any of the other Loan Documents would obligate
any Loan Party to make any payment of interest or other amount payable to the Lenders in an amount
or calculated at a rate which would be prohibited by the laws of Canada or of any political
subdivision thereof or would result in a receipt by the Lenders of interest at a criminal rate (as
such terms are construed under the Criminal Code (Canada)) then,
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notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted
with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not
be so prohibited by law or so result in a receipt by the Lenders of interest at a criminal rate,
such adjustment to be effected, to the extent necessary, as follows: (1) firstly, by reducing the
amount or rate of interest required to be paid to the Lenders under this Agreement, and (2)
thereafter, by reducing any fees, commissions, premiums and other amounts required to be paid to
the Lenders which would constitute interest for purposes of Section 347 of the Criminal Code
(Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated
thereby, if the Lenders shall have received an amount in excess of the maximum permitted by that
section of the Criminal Code (Canada), the Loan Parties shall be entitled, by notice in writing to
the Canadian Administrative Agent, to obtain reimbursement from the Lenders in an amount equal to
such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by
the Lenders to the Borrower Representative. Any amount or rate of interest referred to in this
Section 9.17(b) shall be determined in accordance with generally accepted actuarial practices and
principles as an effective annual rate of interest over the term that the applicable Loan remains
outstanding on the assumption that any charges, fees or expenses that fall within the meaning of
interest (as defined in the Criminal Code (Canada)) shall, if they relate to a specific period of
time, be pro-rated over that period of time and otherwise be pro-rated over the period from the
Effective Date to the Maturity Date and, in the event of a dispute, a certificate of a Fellow of
the Canadian Institute of Actuaries appointed by the Canadian Administrative Agent shall be
conclusive for the purposes of such determination.
SECTION 9.18 Waiver of Immunity. To the extent that any Loan Party has, or hereafter
may be entitled to claim or may acquire, for itself, any Collateral or other assets of the Loan
Parties, any immunity (whether sovereign or otherwise) from suit, jurisdiction of any court or from
any legal process (whether through service of notice, attachment prior to judgment, attachment in
aid of execution or otherwise) with respect to itself, any Collateral or any other assets of the
Loan Parties, such Loan Party hereby waives such immunity in respect of its obligations hereunder
and under any promissory notes evidencing the Loans hereunder and any other Loan Document to the
fullest extent permitted by applicable law and, without limiting the generality of the foregoing,
agrees that the waivers set forth in this Section 9.18 shall be effective to the fullest extent now
or hereafter permitted under the Foreign Sovereign Immunities Act of 1976 (as amended, and together
with any successor legislation) and are, and are intended to be, irrevocable for purposes thereof.
SECTION 9.19 Currency of Payment. Each payment owing by any Borrower hereunder shall
be made in the relevant currency specified herein or, if not specified herein, specified in any
other Loan Document executed by the Administrative Agent, the US Collateral Agent, the Canadian
Collateral Agent or the European Collateral Agent (the Currency of Payment) at the place
specified herein (such requirements are of the essence of this Agreement). If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due hereunder in a Currency of
Payment into another currency, the parties hereto agree that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Administrative Agent could purchase
such Currency of Payment with such other currency at the Spot Selling Rate on the Business Day
preceding that on which final judgment is given. The obligations in respect of any sum due
hereunder to any Lender or any Issuing Bank shall, notwithstanding any adjudication expressed in a
currency other than the Currency of Payment, be
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discharged only to the extent that, on the Business Day following receipt by such Lender or
Issuing Bank of any sum adjudged to be so due in such other currency, such Lender or Issuing Bank
may, in accordance with normal banking procedures, purchase the Currency of Payment with such other
currency. Each Borrower agrees that (a) if the amount of the Currency of Payment so purchased is
less than the sum originally due to such Lender or Issuing Bank in the Currency of Payment, as a
separate obligation and notwithstanding the result of any such adjudication, such Borrower shall
immediately pay the shortfall (in the Currency of Payment) to such Lender or Issuing Bank and (b)
if the amount of the Currency of Payment so purchased exceeds the sum originally due to such Lender
or Issuing Bank, such Lender or Issuing Bank shall promptly pay the excess over to such Borrower in
the currency and to the extent actually received.
SECTION 9.20 Conflicts. In the event of any conflict between the terms of this
Agreement and the terms of any other Loan Document (other than the Intercreditor Agreement), the
terms of this Agreement shall, to the extent of such conflict, prevail.
SECTION 9.21 Parallel Debt. (a) To grant the security and to ensure the continuing
validity of security granted pursuant to any Netherlands Security Agreement, any German Security
Agreement and any Greek Account Pledge Agreement, as applicable, to the European Collateral Agent,
each Netherlands Loan Party, each German Loan Party and each Greek Loan Party, as applicable (each
a Relevant Loan Party), irrevocably and unconditionally undertakes in advance to pay to
the European Collateral Agent amounts equal to any amounts owing from time to time by a Foreign
Loan Party to any Guaranteed Party under (a) any Loan Document, (b) any Secured Swap Obligations,
(c) any Acceptance Obligations and/or (d) any Banking Services Obligations, in each case as and
when those amounts are due (collectively, in respect of a Relevant Loan Party, its Parallel
Debt).
(b) Each Relevant Loan Party, the Administrative Agent, the European Collateral Agent and the
other Guaranteed Parties acknowledge that each Parallel Debt is a several and a separate and
independent obligation from, and shall not in any way limit or affect, the corresponding
obligations of a Foreign Loan Party to any Guaranteed Party under (a) any Loan Document, (b) any
Secured Swap Obligations, (c) any Banking Services Obligations and/or (d) any Acceptance
Obligations (collectively, the Corresponding Debt) nor shall the amounts for which a
Relevant Loan Party is liable under its Parallel Debt be limited or affected in any way by the
Corresponding Debt provided that:
(i) the Parallel Debt of each Relevant Loan Party shall be decreased to the
extent that the Corresponding Debt has been irrevocably paid or (in the case of
guarantee obligations) discharged;
(ii) the Corresponding Debt shall be decreased to the extent that the Parallel
Debt of a Relevant Loan Party has been irrevocably paid or (in the case of guarantee
obligations) discharged; and
(iii) the amount of the Parallel Debt of each Relevant Loan Party shall at all
times be equal to the amount of the Corresponding Debt.
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(c) For the purpose of this Section 9.21, the European Collateral Agent acts in its own
name and on behalf of itself and not as agent, representative or trustee of any Guaranteed
Party, and its claims in respect of each Parallel Debt shall not be held on trust.
(d) The Liens granted under the Netherlands Security Agreements, the German Security
Agreements and any Greek Account Pledge Agreement, to the European Collateral Agent to
secure each Parallel Debt is granted to the European Collateral Agent in its capacity as
sole creditor of each Parallel Debt.
(e) All monies received or recovered by the European Collateral Agent pursuant to this
Section 9.21, and all amounts received or recovered by the European Collateral Agent from or
by the enforcement of any Lien granted to secure a Parallel Debt, shall be applied in
accordance with Section 2.18(b).
(f) The European Administrative Agent shall have its own independent right to demand
and receive payment of each Parallel Debt.
(g) Without limiting or affecting the European Collateral Agents rights against the
Loan Parties (whether under this Section 9.21 or under any other provision of the Loan
Documents), each Loan Party acknowledges that:
(i) nothing in this Section 9.21 shall impose any obligation on the European
Collateral Agent to advance any sum to any Loan Party or otherwise under any Loan
Document, except in its capacity as a Lender; and
(ii) for the purpose of any vote taken under any Loan Document, the European
Collateral Agent shall not be regarded as having any participation or commitment
other than those which it has in its capacity as a Lender.
(h) For the avoidance of doubt, (i) the Parallel Debt of each Relevant Loan Party will
become due and payable at the same time the Corresponding Debt (or a part thereof) becomes
due and payable and (ii) a Relevant Loan Party may not repay or prepay its Parallel Debt
unless directed to do so by the European Collateral Agent or the Lien pursuant to a
Netherlands Security Agreement, a German Security Agreement or a Greek Account Pledge
Agreement, as applicable, is enforced by the European Collateral Agent.
SECTION 9.22 Canadian Anti-Money Laundering Legislation. (a) Each Borrower
acknowledges that, pursuant to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act
(Canada) and other applicable anti-money laundering, anti-terrorist financing, government sanction
and know your client laws (collectively, including any guidelines or orders thereunder, AML
Legislation), the Lenders, the Issuing Banks and the Agents may be required to obtain, verify
and record information regarding the Borrowers and their respective directors, authorized signing
officers, direct or indirect shareholders or other Persons in control of the Borrowers, and the
transactions contemplated hereby. Each Borrower shall promptly provide all such information,
including supporting documentation and other evidence, as may be reasonably requested by any
Lender, any Issuing Bank or any Agent, or any prospective assignee
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or participant of a Lender, any Issuing Bank or any Agent, in order to comply with any
applicable AML Legislation, whether now or hereafter in existence.
(b) If the Canadian Administrative Agent has ascertained the identity of any Borrower
or any authorized signatories of the Borrower for the purposes of applicable AML
Legislation, then the Canadian Administrative Agent:
(i) Shall be deemed to have done so as an agent for each Lender and each
Issuing Bank, and this Agreement shall constitute a written agreement in such
regard between each Lender, each Issuing Bank and the Canadian Administrative Agent
within the meaning of the applicable AML Legislation; and
(ii) Shall provide to each Lender and each Issuing Bank copies of all
information obtained in such regard without any representation or warranty as to its
accuracy or completeness.
Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of
the Lenders and each of the Issuing Banks agrees that neither the Canadian Administrative Agent nor
any other Agent has any obligation to ascertain the identity of the Borrowers or any authorized
signatories of the Borrowers on behalf of any Lender or any Issuing Bank, or to confirm the
completeness or accuracy of any information it obtains from any Borrower or any such authorized
signatory in doing so.
SECTION 9.23 Subordination. To the fullest extent permitted by applicable law, each
Loan Party party hereto hereby agrees that, upon the occurrence and during the continuance of an
Event of Default, unless otherwise agreed by the applicable Collateral Agent, all Indebtedness
owing to it by the Company or any of its Subsidiaries shall be fully subordinated to the
indefeasible payment in full in cash of such Loan Partys Secured Obligations or Guaranteed
Obligations, as the case may be.
SECTION 9.24 Process Agent. Each Foreign Loan Party hereby irrevocably designates,
appoints and the Company, in the case of any suit, action or proceeding brought in the United
States as its designee, appointee and agent to receive, accept and acknowledge for and on its
behalf, and in respect of its property, service of any and all legal process, summons, notices and
documents that may be served in any action or proceeding arising out of or in connection with this
Agreement or any other Loan Document. Such service may be made by mailing (by registered or
certified mail, postage prepaid) or delivering a copy of such process to such Foreign Loan Party in
care of the Company at the Companys address set forth in Section 9.01, and such Foreign Loan Party
hereby irrevocably authorizes and directs the Company to accept such service on its behalf. As an
alternative method of service, each Foreign Loan Party irrevocably consents to the service of any
and all process in any such action or proceeding by the mailing (by registered or certified mail,
postage prepaid) of copies of such process to the Company or such Foreign Loan Party at its address
specified in Section 9.01. Each Loan Party agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
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SECTION 9.25 No Novation. The parties hereto agree that the Lenders shall continue to
benefit from any security, guarantee, mortgage, lien or other encumbrance governed by French law
relating to the Existing Credit Agreement in accordance with article 1278 of the French Civil Code
(Code civil).
SECTION 9.26 UK Loan Parties. Each UK Loan Party hereby confirms and agrees that it
is joining the Existing Credit Agreement, as amended and restated hereby, as a UK Loan Party and a
European Loan Party for purposes of this Agreement and the other Loan Documents.
SECTION 9.27 French Loan Guarantor. The parties to this Agreement agree that (a) if
a Loan Party fails to pay any amount due and payable hereunder (the Defaulting Loan
Party) and as a result a French Loan Guarantor makes any payment to the Lenders, the
Administrative Agent, any Issuing Bank or any indemnified party arising under the Loan Documents
(whether from the proceeds of the enforcement of any European Security Agreement or under Article X
hereof), such French Loan Guarantor shall be subrogated to any rights the Lenders, the
Administrative Agent, any Issuing Bank or any indemnified party arising under the Loan Documents
may have against the Defaulting Loan Party to the extent of such payment and the Defaulting Loan
Party shall indemnify the French Loan Guarantor fully therefor (such indemnification being referred
to as the Indemnification Claim);
(b) in the circumstances referred to in paragraph (a) above, the relevant French Loan
Guarantor shall assign the Indemnification Claim to the European Borrower and such assignment shall
thus pro tanto discharge the obligations of such French Loan Guarantor to the European Borrower
under the relevant French Intercompany Loan;
(c) as a result of the assignment referred to in paragraph (b) above, the European Borrower
may request payment of the Indemnification Claim from the Defaulting Loan Party;
(d) if the Defaulting Loan Party is the European Borrower, the provisions of paragraph (a)
above shall apply and the Indemnification Claim shall be set off pro tanto against the relevant
French Intercompany Loan; and
(e) the European Borrower undertakes not to declare any French Intercompany Loan due and
payable and the French Loan Guarantors undertake not to repay the French Intercompany Loans until
all Facility B Obligations owing by the European Loan Parties and the Canadian Loan Parties have
been paid in full.
SECTION 9.28 Greek Loan Party (a). Mexx Europe International B.V. as the sole
shareholder of Mexx Hellas EPE approves the execution of this Agreement and the Greek Account
Pledge Agreement by Mexx Hellas EPE and recognizes such agreements as fully valid and binding for
Mexx Hellas EPE.
SECTION 9.29 Netherlands Security Agreements. Each Loan Party party to any
Netherlands Security Agreement confirms that such Netherlands Security Agreement shall remain in
full force and effect and it is expressly agreed by the parties to the Netherlands Security
Agreements that the Netherlands Security Agreements shall continue to secure all the liabilities
and obligations that such Netherlands Security Agreements are expressed to secure
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(including but not limited to the payment obligations of each relevant Loan Party under this
Agreement).
SECTION 9.30 Reaffirmation and Accession by the Loan Parties. (a) By executing and
delivering this Agreement, each Loan Party hereby reaffirms each of its obligations,
acknowledgments, consents and liabilities pursuant to each of the Hong Kong Subordination Agreement
and the Intercompany Note, or to the extent that a Loan Party was not previously a party to the
Hong Kong Subordination Agreement and the Intercompany Note, hereby becomes a party to and accedes
to each of the Hong Kong Subordination Agreement and the Intercompany Note (x) as Payor with
respect to the Subordination Agreement and (y) as Payee and, to the extent such Loan Party is a
borrower from time to time from any other Loan Party, as Payor with respect to the Intercompany
Note, in each case with respect to clauses (x) and (y) above, with the same force and effect as if
originally named as a party therein and, without limiting the generality of the foregoing, hereby
expressly assumes all obligations and liabilities assumed by the other Loan Parties as Payee
and/or Payor, as applicable, thereunder and each of the Loan Parties hereby expressly agrees to
and accepts such reaffirmation and/or accession (as applicable).
(b) Each of the US Loan Parties hereby acknowledges and reaffirms that it has granted a Lien
to the US Collateral Agent on the US Collateral and that, upon the occurrence and during the
continuance of an Event of Default, the US Collateral Agent shall have the rights and remedies set
forth in Article V of the US Security Agreement.
ARTICLE X
Loan Guaranty
SECTION 10.01 Guaranty. (a) Each Loan Guarantor and any of its successors or assigns
(other than those that have delivered a separate Loan Guaranty) hereby agrees that it is jointly
and severally liable for, and, as primary obligor and not merely as surety, absolutely and
unconditionally guarantees, to the extent permissible under the laws of the country in which such
Loan Guarantor is located or organized, to the Lenders, the Agents and the Issuing Banks
(collectively, the Guaranteed Parties) the prompt payment when due, whether at stated
maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations
and all costs and expenses including, without limitation, all court costs and attorneys and
paralegals fees (including allocated costs of in-house counsel and paralegals) and expenses paid
or incurred by the Agents, the Issuing Banks and the Lenders in endeavoring to collect all or any
part of the Secured Obligations from, or in prosecuting any action against, any Borrower, any other
Loan Guarantor or any other guarantor of all or any part of the Secured Obligations (such costs and
expenses, together with the Secured Obligations, collectively the Guaranteed
Obligations). Each Loan Guarantor further agrees that the Guaranteed Obligations may be
extended or renewed in whole or in part without notice to or further assent from it, and that it
remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this
Loan Guaranty apply to and may be enforced by or on behalf of any domestic or foreign branch or
Affiliate of any Lender that extended any portion of the Guaranteed Obligations. Notwithstanding
anything in the foregoing to the contrary, in no event shall the Guaranteed
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Obligations guaranteed hereunder by any European Loan Party or Canadian Loan Party include the
Secured Obligations of any US Loan Party.
(b) If any payment by a Loan Guarantor or any discharge given by a Guaranteed Party (whether
in respect of the obligations of any Loan Guarantor or any security for those obligations or
otherwise) is avoided or reduced as a result of insolvency or any similar event: (a) the liability
of each Loan Guarantor shall continue as if the payment, discharge, avoidance or reduction had not
occurred; and (b) each Guaranteed Party shall be entitled to recover the value or amount of that
security or payment from each Loan Guarantor, as if the payment, discharge, avoidance or reduction
had not occurred.
(c) To the fullest extent permitted by applicable law, the obligations of each Loan Guarantor
under this Article X will not be affected by an act, omission, matter or thing which, but for this
Article X, would reduce, release or prejudice any of its obligations under this Article X (without
limitation and whether or not known to it or any Guaranteed Party) including: (a) any time, waiver
or consent granted to, or composition with, any Loan Guarantor or other person; (b) the release of
any other Loan Guarantor or any other person under the terms of any composition or arrangement with
any creditor of any member of the European Group; (c) the taking, variation, compromise, exchange,
renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of, any Loan Guarantor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any instrument or any failure to
realize the full value of any security; (d) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or status of an Loan Guarantor or any other
person; (e) any amendment, novation, supplement, extension (whether of maturity or otherwise) or
restatement (in each case, however fundamental and of whatsoever nature) or replacement of a Loan
Document or any other document or security; (f) any unenforceability, illegality or invalidity of
any obligation of any person under any Loan Document or any other document or security; or (g) any
insolvency or similar proceedings.
(d) Without prejudice to the generality of the above, each Loan Guarantor expressly confirms,
as permissible under applicable law, that it intends that this guarantee shall extend from time to
time to any (however fundamental) variation, increase, extension or addition of or to any of the
Loan Documents and/or any amount made available under any of the Loan Documents for the purposes of
or in connection with any of the following: acquisitions of any nature; increasing working capital;
enabling investor distributions to be made; carrying out restructurings; refinancing or replacing
existing facilities; refinancing any other indebtedness; making facilities available to new
borrowers; any other variation or extension of the purposes for which any such facility or amount
might be made available from time to time; and any fees, costs and/or expenses associated with any
of the foregoing.
(e) Each Loan Guarantor waives any right it may have of first requiring any Guaranteed Party
(or any trustee or agent on its behalf) to proceed against or enforce any other rights or security
or claim payment from any person before claiming from that Loan Guarantor under this Article X.
This waiver applies irrespective of any law or any provision of a Loan Document to the contrary.
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(f) This Loan Guaranty is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by any Guaranteed Party.
(g) This Loan Guaranty does not apply to any liability to the extent that it would result in
this Loan Guaranty constituting unlawful financial assistance within the meaning of Section 2:98(c)
and/or Section 2:207(c) of the Dutch Civil Code and within the meaning of Section 30 of the German
Limited Liability Company Act (GmbHG) or Section 57 of the German Stock Corporation Act
(Aktiengesetz), or any equivalent and applicable provisions under the laws of the jurisdiction of
incorporation of the relevant Loan Guarantor.
(h) The parties hereto hereby agree that the Guaranteed Obligations of each Loan Guarantor
incorporated under the laws of France shall be limited to the satisfaction of the French Guaranteed
Obligations.
(i) The guaranty granted by any Loan Guarantor organized under the laws of Luxembourg (each a
Luxembourg Loan Guarantor) under this Article X shall be limited to an aggregate amount
not exceeding the higher of (x) 90% of such Luxembourg Loan Guarantors capitaux propres (as
referred to in article 34 of the Luxembourg Law of 19 December 2002 on the commercial register and
annual accounts, as amended (the Law of 2002) as at the date on which a demand is made
and (y) 90% of such Luxembourg Loan Guarantors capitaux propres (as referred to in article 34 of
the Law of 2002) as at the date of this Agreement (it being understood that the limitations set
forth above shall not apply to the obligations and liabilities of any such Luxembourg Loan
Guarantor to the extent they relate to the obligations and liabilities under any Loan Document of
any subsidiary of the Luxembourg Loan Guarantor which may become a Borrower).
(j) This Loan Guaranty does not apply to any liability of a Loan Party incorporated in Finland
(a Finnish Loan Party) to the extent that it would (i) constitute unlawful financial
assistance within the meaning of chapter 13 section 10 of the Finnish Companies Act (2006/624, as
amended); or constitute unlawful distribution of assets within the meaning of chapter 13 sections 1
and 2 of the Finnish Companies Act (2006/624, as amended).
(k) The guarantee obligations to be assumed by any Italian Loan Party shall be limited to the
extent required to enable the Company to comply with applicable provision on financial assistance,
including, without limitation, article 2358 of the Italian Civil Code, and accordingly they would
not include any guarantee or security in respect of any indebtedness incurred in relation to the
financing and/or the refinancing of an acquisition or subscription of shares issued or to be issued
by the Italian Loan Party or by any direct or indirect controlling entity of the Italian Loan
Party.
(l) The maximum amount that any Italian Loan Party might be required to pay in respect of its
guarantee obligations under this Agreement shall not exceed the greater of (i) an amount equal to
80% multiplied by the sum of (A) the total value of the patrimonio netto (as such term is defined
in Article 2424 of the Italian Civil Code) of the Italian Loan Party, as stated from time to time
in its latest financial statements duly approved by a shareholders resolution plus (B) the global
amount of intercompany financing made available to the Italian Loan Party and outstanding other
than the intercompany financing contemplated in item (ii)
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below and (ii) an amount equal to 1.50 multiplied by the aggregate amount on-lent or
made available, directly or indirectly, by the Borrowers to the Italian Loan Party from amounts
borrowed from the Borrowers under this Agreement; provided, however, that for the
purposes of article 1938 of the Italian Civil Code (if applicable) the maximum amount that the
Italian Loan Party might be required to pay in respect of its guarantee obligations pursuant to
this Agreement shall not exceed $300,000,000.
(m) Notwithstanding anything to the contrary herein, the obligations and liabilities of a Loan
Party incorporated in Sweden (a Swedish Loan Party) under this Agreement and the scope of
the Agreement (including for the avoidance of doubt the Intercompany Note and the Hong Kong
Subordination Agreement) shall be limited if (and only if) required by an application of the
provisions of the Swedish Companies Act (Sw. aktiebolagslagen (2005:551)) regulating (i) prohibited
loans, guarantees and other security and (ii) distribution of assets (including profits and
dividends and any other form of transfer of value (Sw. värdeöverföring) within the meaning of the
Swedish Companies Act) taking into account also any other security granted and/or guarantee given
by a Swedish Loan Party subject to the corresponding limitation, and it is understood that the
obligations of a Swedish Loan Party for such obligations and liabilities under this Agreement shall
apply only to the extent permitted by the above-mentioned provisions as applied together with other
applicable provisions of the Swedish Companies Act, and the obligations of the Swedish Loan Party
hereunder shall be limited in accordance herewith.
(n) Limitation on Guaranty by Swiss Loan Party.
(i) If and to the extent that (x) any Loan Party incorporated in Switzerland (each of them a
Swiss Loan Party) guarantees or secures, or grants an indemnity in respect of,
obligations, liabilities, indemnities or undertakings of a Loan Party other than the relevant Swiss
Loan Party or any of its Subsidiaries, i.e. obligations, liabilities, indemnities or undertakings
of its (direct or indirect) parent company (upstream security) or its sister companies
(cross-stream security) (Upstream- or Cross-stream Obligations), and (y) the fulfillment
of such Upstream- or Cross-stream Obligations constitutes a repayment of capital
(Einlagerückgewähr), a violation of the legally protected reserves (gesetzlich geschützte Reserven)
or the payment of a dividend or constructive dividend (Gewinnausschüttung) under Swiss corporate
law, then the aggregate liability under such Upstream- or Cross-stream Obligations shall be limited
to that Swiss Loan Partys Free Reserves Available for Distribution at the time of the enforcement
of the Upstream- or Cross-stream Obligations (all in accordance with Art. 675 paragraph 2 and Art.
671 paragraph 1 and 2 no. 3 of the Swiss Code of Obligations or Art. 798 paragraph 1 and Art. 801 of
the Swiss Code of Obligations respectively).
(ii) If and only to the extent required by applicable law in force at the relevant time, for
the purpose of clause (i) above, Free Reserves Available for Distribution means the
maximum amount of the relevant Swiss Loan Partys profits and reserves available for distribution
at the time of the enforcement of Upstream- or Cross-stream Obligations, being equal to the
positive difference between (x) the assets of the relevant Swiss Loan Party and (y) the aggregate
of (A) all liabilities other than Up- and Cross-stream Obligations, (B) the amount of the
registered share capital, and (C) the statutory reserves (gesetzliche Reserven) to the extent such
reserves must be maintained by mandatory law at any given time. Each such amount shall
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be established in accordance with Swiss law and shall be confirmed by the auditors of the
relevant Swiss Loan Party based on an interim audited balance sheet. The relevant Swiss Loan Party
shall arrange for the interim audited balance sheet and the confirmation of the auditors
immediately after having been requested to make a payment or the rights under any of the Loan
Documents have been asserted in relation to Upstream- or Cross-stream Obligations.
(iii) Upon the fulfillment of such Upstream- or Cross-stream Obligations, the relevant Swiss
Loan Party in respect of the relevant payments, shall (x) if and to the extent required by
applicable law (including any applicable treaties for the avoidance of double taxation or bilateral
agreements between Switzerland and the European Union) in force at the relevant time, (A) use its
best endeavors to procure that such payments may be used to discharge its obligations and
liabilities under the Loan Documents without deduction of Swiss Federal Withholding Tax by
discharging the liability of such tax by notification pursuant to applicable law rather than
payment of the tax, (B) if the notification procedure pursuant to sub-paragraph (A) above does not
apply, deduct the Swiss Federal Withholding Tax at such rate (1) as then in force or (2) as
provided by any applicable treaties for the avoidance of double taxation or bilateral agreements
between Switzerland and the European Union from any such payments and promptly pay any such Swiss
Federal Withholding Tax deducted to the Swiss Federal Tax Administration, and (C) notify the
European Collateral Agent that such notification or deduction, as applicable, has been made, and
provide the European Collateral Agent with evidence that, as applicable, such a notification of the
Swiss Federal Tax Administration has been made or such Swiss Federal Withholding Tax deducted has
been paid to the Swiss Federal Tax Administration, (y) use its best endeavors to procure that any
person who is entitled to a full or partial refund of the Swiss Federal Withholding Tax deducted
from such payments will promptly after such deduction (1) request a refund of the Swiss Federal
Withholding Tax under applicable law (including treaties for the avoidance of double taxation or
bilateral agreements between Switzerland and the European Union), and (2) pay to the European
Collateral Agent upon receipt any amount so refunded; and (z) notwithstanding anything to the
contrary in the Loan Documents, not be required to gross up, indemnify or hold harmless any Lender
for the deduction of Swiss Federal Withholding Tax; provided that this should not in any
way limit any obligations of the Borrowers or any of the other Loan Parties (other than any Swiss
Loan Party) under the Loan Documents to indemnify the Lenders in respect of the deduction of the
Swiss Federal Withholding Tax and, for the avoidance of doubt, the amount of any such Swiss
Withholding Tax shall constitute Secured Obligations of the Loan Parties hereunder (other than any
Swiss Loan Party).
(o) Each Loan Guarantor incorporated in Spain hereby expressly waives any right to require
attachment (excusion o orden) and any presumption of obligations being several (division) under
Articles 1,830 et. seq. of the Spanish Civil Code (Código Civil).
Any guarantee, indemnity, obligation and liability granted or assumed pursuant to Article X by
a Spanish Loan Guarantor shall not extend to any obligation incurred by any Loan Party to the
extent that such guarantee, indemnity, obligation or liability would constitute unlawful financial
assistance within the meaning of Article 81 of Spanish Act 1564/1989 dated 22 December on Limited
Liability Companies (Real Decreto Legislativo 1564/1989 de 22 de diciembre, por el que se aprueba
el Texto Refundido de la Ley de Sociedades Anónimas) or
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Article 40.5 of the Spanish Limited Liability Companies Act 2/1995 (Ley de Sociedades de
Responsabilidad Limitada).
The Lenders, the Administrative Agent, the European Borrower and the Spanish Loan Party acknowledge
and accept that the amendments made to the Existing Credit Agreement as a consequence of this
Agreement are of a modificative nature (novación modificativa) and do not involve the cancellation
or extinction of the original obligations assumed by the Loan Parties under the Existing Credit
Agreement and, consequently, the Spanish Security Agreements remain in full force and effect
securing the secured obligations (as this term is defined in the corresponding Spanish Security
Agreement) as amended pursuant to this Agreement.
(p) The obligations of each Guarantor organized under Austrian law under this Agreement shall
at all times be limited to the extent that such obligations would not violate mandatory Austrian
capital maintenance rules pursuant to Austrian company laws, in particular, Section 82 of the Act
on Companies with Limited Liability (Gesetz über Gesellschaften mit beschränkter Haftung) or, as
applicable, Section 52 of the Austrian Act on Stock Corporations (Aktiengesetz).
(q) The total liability of any Loan Guarantor organized under the laws of Belgium (each a
Belgian Loan Guarantor) under this Section 10.01 shall (a) not cover any liability which
would constitute illegal financial assistance (as determined in Article 629 (or Article 329, as
applicable) of the Belgian Companies Code) and (b) in any event be limited to an aggregate amount
not exceeding the sum of (without double counting):
(i) the aggregate of all principal amounts borrowed by a Belgian Loan Guarantor
(or its direct or indirect Subsidiaries) under any intragroup arrangement
(regardless of the form thereof, including through the subscription of debt
instrument) that have been financed directly or indirectly by a borrowing under this
Agreement (without any reduction for any repayment thereof); plus
(ii) the aggregate of (A) ninety per cent (90%) of such Belgian Loan
Guarantors net assets (eigen vermogen/capitaux propres) (as determined in
accordance with the Belgian Companies Code and accounting principles generally
accepted in Belgium) as shown by its most recent audited annual financial statements
at the time the relevant demand is made and (B) the amount equal to any subordinated
debt it may owe, at the time a demand for payment under this guarantee is made.
SECTION 10.02 Guaranty of Payment. This Loan Guaranty is a guaranty of payment and
not of collection. Each Loan Guarantor waives any right to require any Agent, any Issuing Bank or
any Lender to sue any Borrower, any other Loan Guarantor, any other guarantor, or any other Person
obligated for all or any part of the Guaranteed Obligations (each, an Obligated Party),
or otherwise to enforce its payment against any collateral securing all or any part of the
Guaranteed Obligations.
As an original and independent obligation under this Loan Guaranty, each Loan Guarantor shall:
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(a) indemnify each Guaranteed Party and its successors, endorsees, transferees and
assigns and keep the Guaranteed Parties indemnified against all costs, losses, expenses and
liabilities of whatever kind resulting from the failure by the Loan Parties or any of them,
to make due and punctual payment of any of the Secured Obligations or resulting from any of
the Secured Obligations being or becoming void, voidable, unenforceable or ineffective
against any Loan Party (including, but without limitation, all legal and other costs,
charges and expenses incurred by each Guaranteed Party, or any of them, in connection with
preserving or enforcing, or attempting to preserve or enforce, its rights under this Loan
Guaranty); and
(b) pay on demand the amount of such costs, losses, expenses and liabilities whether or
not any of the Guaranteed Parties has attempted to enforce any rights against any Loan Party
or any other Person or otherwise.
SECTION 10.03 No Discharge or Diminishment of Loan Guaranty. (a) Except as otherwise
provided for herein, the obligations of each Loan Guarantor hereunder are unconditional and
absolute and not subject to any reduction, limitation, impairment or termination for any reason
(other than the indefeasible payment in full in cash of the Guaranteed Obligations), including:
(i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or
compromise of any of the Guaranteed Obligations, by operation of law or otherwise; (ii) any change
in the corporate existence, structure or ownership of any Borrower or any other guarantor of or
other person liable for any of the Guaranteed Obligations; (iii) any insolvency, bankruptcy,
winding-up, liquidation, reorganization or other similar proceeding affecting any Obligated Party,
or their assets or any resulting release or discharge of any obligation of any Obligated Party; or
(iv) the existence of any claim, setoff or other rights which any Loan Guarantor may have at any
time against any Obligated Party, any Agent, any Issuing Bank, any Lender, or any other person,
whether in connection herewith or in any unrelated transactions.
(b) The obligations of each Loan Guarantor hereunder are not subject to any defense or setoff,
counterclaim, recoupment, or termination whatsoever by reason of the invalidity, illegality, or
unenforceability of any of the Guaranteed Obligations or otherwise, or any provision of applicable
law or regulation purporting to prohibit payment by any Obligated Party, of the Guaranteed
Obligations or any part thereof.
(c) Further, the obligations of any Loan Guarantor hereunder are not discharged or impaired or
otherwise affected by: (i) the failure of any Agent, any Issuing Bank or any Lender to assert any
claim or demand or to enforce any remedy with respect to all or any part of the Guaranteed
Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement
relating to the Guaranteed Obligations; (iii) any release, non-perfection, or invalidity of any
indirect or direct security for the obligations of any Borrower for all or any part of the
Guaranteed Obligations or any obligations of any other guarantor of or other person liable for any
of the Guaranteed Obligations; (iv) any action or failure to act by any Agent, any Issuing Bank or
any Lender with respect to any collateral securing any part of the Guaranteed Obligations; or (v)
any default, failure or delay, willful or otherwise, in the payment or performance of any of the
Guaranteed Obligations, or any other circumstance, act, omission or delay that might in any manner
or to any extent vary the risk of such Loan Guarantor or that
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would otherwise operate as a discharge of any Loan Guarantor as a matter of law or equity
(other than the indefeasible payment in full in cash of the Guaranteed Obligations).
SECTION 10.04 Defenses Waived. To the fullest extent permitted by applicable law,
each Loan Guarantor hereby waives any defense based on or arising out of any defense of any
Borrower or any other Loan Guarantor or the unenforceability of all or any part of the Guaranteed
Obligations from any cause, or the cessation from any cause of the liability of any Borrower or any
other Loan Guarantor, other than the indefeasible payment in full in cash of the Guaranteed
Obligations. Without limiting the generality of the foregoing, each Loan Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law,
any notice not provided for herein, as well as any requirement that at any time any action be taken
by any person against any Obligated Party, or any other person. Each Collateral Agent may, at its
election, foreclose on any Collateral held by it by one or more judicial or nonjudicial sales,
accept an assignment of any such Collateral in lieu of foreclosure or otherwise act or fail to act
with respect to any collateral securing all or a part of the Guaranteed Obligations, compromise or
adjust any part of the Guaranteed Obligations, make any other accommodation with any Obligated
Party or exercise any other right or remedy available to it against any Obligated Party, without
affecting or impairing in any way the liability of such Loan Guarantor under this Loan Guaranty
except to the extent the Guaranteed Obligations have been fully and indefeasibly paid in cash. To
the fullest extent permitted by applicable law, each Loan Guarantor waives any defense arising out
of any such election even though that election may operate, pursuant to applicable law, to impair
or extinguish any right of reimbursement or subrogation or other right or remedy of any Loan
Guarantor against any Obligated Party or any security.
SECTION 10.05 Rights of Subrogation. No Loan Guarantor will assert any right, claim
or cause of action, including, without limitation, a claim of subrogation, contribution or
indemnification that it has against any Obligated Party, or any collateral, until the Loan Parties
and the Loan Guarantors have fully performed all their obligations to the Agents, the Issuing Banks
and the Lenders and no Obligation is outstanding.
SECTION 10.06 Reinstatement; Stay of Acceleration. If at any time any payment of any
portion of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon
the insolvency, bankruptcy, or reorganization of any Borrower or otherwise, each Loan Guarantors
obligations under this Loan Guaranty with respect to that payment shall be reinstated at such time
as though the payment had not been made and whether or not the Agents, the Issuing Banks and the
Lenders are in possession of this Loan Guaranty. If acceleration of the time for payment of any of
the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of any
Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement
relating to the Guaranteed Obligations shall nonetheless be payable by the Loan Guarantors
forthwith on demand by the Lender.
SECTION 10.07 Information. Each Loan Guarantor assumes all responsibility for being
and keeping itself informed of the Borrowers financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that each Loan Guarantor assumes and incurs under this Loan Guaranty,
and agrees that neither any Agent, any Issuing Bank nor any Lender shall have
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any duty to advise any Loan Guarantor of information known to it regarding those circumstances
or risks.
SECTION 10.08 [Reserved].
SECTION 10.09 Maximum Liability. The provisions of this Loan Guaranty are severable,
and in any action or proceeding involving any corporate law, or any provincial, state, federal or
foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Loan Guarantor under this Loan Guaranty would otherwise be
held or determined to be void, voidable, avoidable, invalid or unenforceable on account of the
amount of such Loan Guarantors liability under this Loan Guaranty, then, notwithstanding any other
provision of this Loan Guaranty to the contrary, the amount of such liability shall, without any
further action by the Loan Guarantors or the Lenders, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or proceeding (such
highest amount determined hereunder being the relevant Loan Guarantors Maximum
Liability). This Section with respect to the Maximum Liability of each Loan Guarantor is
intended solely to preserve the rights of the Lenders to the maximum extent not subject to
avoidance under applicable law, and no Loan Guarantor nor any other person or entity shall have any
right or claim under this Section with respect to such Maximum Liability, except to the extent
necessary so that the obligations of any Loan Guarantor hereunder shall not be rendered voidable
under applicable law. Each Loan Guarantor agrees that the Guaranteed Obligations may at any time
and from time to time exceed the Maximum Liability of each Loan Guarantor without impairing this
Loan Guaranty or affecting the rights and remedies of the Lenders hereunder; provided that
nothing in this sentence shall be construed to increase any Loan Guarantors obligations hereunder
beyond its Maximum Liability.
SECTION 10.10 Limitations on Enforcement in respect of German Loan Parties (a) Each
Lender agrees to restrict the enforcement of any Loan Guaranty or indemnity granted pursuant to
this Agreement by a German Loan Party which is constituted in the form of a German limited
liability company (Gesellschaft mit beschränkter Haftung GmbH) or a limited partnership
(Kommanditgesellschaft) with a GmbH as its sole general partner (Komplementär GmbH & Co. KG)
(each a Specified German Guarantor) to the extent that (i) such Loan Guaranty or
indemnity secures liabilities of its direct or indirect shareholder(s) or partners (upstream) or
any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning
of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) (other than the
liabilities of any Subsidiary of a Specified German Guarantor and, for the avoidance of doubt, the
own liabilities of such Specified German Guarantor) and (ii) the payment under such Loan Guaranty
or indemnity would cause the amount of a Specified German Guarantors net assets (or, if a
Specified German Guarantor is a GmbH & Co. KG, the net assets of its general partner), as adjusted
pursuant to the following provisions, to fall below the amount of its or its general partners
registered share capital (Stammkapital) (Begründung einer Unterbilanz) or to increase any already
existing capital impairment (Vertiefung einer Unterbilanz) in violation of sections 30 and 31
GmbHG, (each such event is hereinafter referred to as a Capital Impairment). For the
purposes of the calculation of a Capital Impairment, the following balance sheet items shall be
adjusted as follows:
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(i) the amount of any increase of the Specified German Guarantors or its
general partners registered share capital after the date of this Agreement that has
been effected without prior written consent of the European Administrative Agent
shall be deducted from the Specified German Guarantors or its general partners
registered share capital
(ii) loans provided to the Specified German Guarantor or its general partner by
any member of the group shall be disregarded if and to the extent such loans are
subordinated or are considered subordinated by operation of law and such loans are
not shown in the balance sheet as liability of the Specified German Guarantor or its
general partner, as applicable; and
(iii) loans or other contractual liabilities incurred in violation of the
provisions of the Loan Documents shall be disregarded.
(b) In a situation where a Specified German Guarantor or its general partner would not
have sufficient assets to maintain its registered share capital after satisfaction (in whole
or in part) of the relevant demand, such Specified German Guarantor or its general partner
shall dispose of all assets, to the extent legally permitted, which are not necessary for
its business (nicht betriebsnotwendig) on market terms where the relevant assets are shown
in the balance sheet of such Specified German Guarantor or its general partner with a book
value which is significantly lower than the market value of such assets, unless such
disposal would not be commercially justifiable, provided that the European
Collateral Agent consents to the fact that a disposal would not be commercially justifiable.
(c) The limitation pursuant to this Section 10.10 shall apply, subject to the following
requirements, if following the call of guarantee obligations by a Lender, the Specified
German Guarantor or its general partner notifies the European Collateral Agent
(Management Notification) within 15 Business Days upon receipt of the relevant
demand that a Capital Impairment would occur (setting out in reasonable detail to what
extent a Capital Impairment would occur and providing prima facie evidence that a
realization or other measures undertaken in accordance with the mitigation provisions set
out above would not prevent such Capital Impairment). If the Management Notification is
contested by the European Collateral Agent or the Lenders, the Specified German Guarantor
undertakes (at its own cost and expense) to arrange for the preparation of a balance sheet
by the applicable auditors in order to have such auditors determine whether (and if so, to
what extent) any payment under the Loan Guaranty would cause a Capital Impairment (the
Auditors Determination). The Auditors Determination shall be prepared, taking
into account the adjustments set out in Sections 10.10(a)(i), (ii) and (iii) above, by
applying the generally accepted accounting principles applicable from time to time in
Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation
methods as constantly applied by the Specified German Guarantor (and its general partner, if
applicable) in the preparation of its financial statements, in particular in the preparation
of its most recent annual balance sheet, and taking into consideration applicable court
rulings of German courts. The Specified German Guarantor shall provide the Auditors
Determination to the European Collateral
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Agent within 25 Business Days from the date on which the European Collateral Agent
contested the Management Notification in writing. The Auditors Determination shall be
binding on the Specified German Guarantor and the Lenders.
(d) Notwithstanding the above, the provisions of paragraph (a) of this Section 10.10
shall not apply:
(i) if the Specified German Guarantor is party as dominated entity
(beherrschtes Unternehmen) of a domination agreement (Beherrschungsvertrag) and/or a
profit and loss agreement (Gewinnabführungsvertrag) pursuant to section 30 para 1
sentence 2 of the Limited Liability Company Act (GmbHG) unless the dominating entity
is insolvent;
(ii) if the Specified German Guarantor (or its general partner, if applicable)
has a recourse right (Rückgriffsanspruch) towards its direct or indirect
shareholder(s) or partners (upstream) or any entity affiliated to such shareholder
or partner (verbundenes Unternehmen) within the meaning of section 15 of the German
Stock Corporation Act (Aktiengesetz) (cross-stream) which is fully recoverable
(werthaltig), whereby (a) the full recoverability (Werthaltigkeit) is assumed,
unless the Specified German Guarantor sets out in reasonable detail to what extent
the recourse right (Rückgriffsanspruch) is not fully recoverable (nicht vollwertig)
and, if reasonably requested by the European Collateral Agent, an auditor has
confirmed that the recourse right (Rückgriffsanspruch) is not fully recoverable
(nicht vollwertig) pursuant to section 30 para 1 sentence 2 of the Limited Liability
Company Act (GmbHG) and (b) the Specified German Guarantor ensures that such a
recourse right (Rügriffsanspruch) is agreed with the relevant shareholder, partner
or affiliated entity referred to above;
(iii) for so long as the Specified German Guarantor or its general partner fail
to deliver the Management Notification and/or the Auditors Determination pursuant
to Section 10.10(c), unless the Specified German Guarantor or its general partner,
as applicable, prove in a court proceeding that the disputed amount is necessary for
maintaining its registered share capital;
(iv) to any amounts borrowed under the Loan Documents to the extent the
proceeds of such borrowing are on-lent to the Specified German Guarantor or its
general partner or its subsidiaries to the extent that any amounts so on-lent are
still outstanding at the time the relevant demand is made against the Specified
German Guarantor or its general partner and the repayment of such loans as a result
of such on-lending is not prohibited by operation of law; or
(v) (for the avoidance of doubt) to any amounts borrowed under the Loan
Documents by the Specified German Guarantor or its general partner to the extent
that any amounts so borrowed are still outstanding at the time the relevant demand
for repayment is made against the Specified German Guarantor or its general partner.
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SECTION 10.11 Contribution. In the event any Loan Guarantor (a Paying
Guarantor) shall make any payment or payments under this Loan Guaranty or shall suffer any
loss as a result of any realization upon any collateral granted by it to secure its obligations
under this Loan Guaranty, each other Loan Guarantor (each a Non-Paying Guarantor) shall
contribute to such Paying Guarantor an amount equal to such Non-Paying Guarantors Applicable
Percentage of such payment or payments made, or losses suffered, by such Paying Guarantor. For
purposes of this Article X, each Non-Paying Guarantors Applicable Percentage with respect to any
such payment or loss by a Paying Guarantor shall be determined as of the date on which such payment
or loss was made by reference to the ratio of (i) such Non-Paying Guarantors Maximum Liability as
of such date (without giving effect to any right to receive, or obligation to make, any
contribution hereunder) or, if such Non-Paying Guarantors Maximum Liability has not been
determined, the aggregate amount of all monies received by such Non-Paying Guarantor from the
Borrowers after the date hereof (whether by loan, capital infusion or by other means) to (ii) the
aggregate Maximum Liability of all Loan Guarantors hereunder (including such Paying Guarantor) as
of such date (without giving effect to any right to receive, or obligation to make, any
contribution hereunder), or to the extent that a Maximum Liability has not been determined for any
Loan Guarantor, the aggregate amount of all monies received by such Loan Guarantors from the
Borrowers after the date hereof (whether by loan, capital infusion or by other means). Nothing in
this provision shall affect any Loan Guarantors several liability for the entire amount of the
Guaranteed Obligations (up to such Loan Guarantors Maximum Liability). Each of the Loan
Guarantors covenants and agrees that its right to receive any contribution under this Loan Guaranty
from a Non-Paying Guarantor shall be subordinate and junior in right of payment to the payment in
full in cash of the Guaranteed Obligations. This provision is for the benefit of the
Administrative Agent, the Collateral Agents, the Issuing Banks, the Lenders and the Loan Guarantors
and may be enforced by any one, or more, or all of them in accordance with the terms hereof.
SECTION 10.12 Liability Cumulative. The liability of each Loan Party as a Loan
Guarantor under this Article X is in addition to and shall be cumulative with all liabilities of
each Loan Party to the Agents, the Issuing Banks and the Lenders under this Agreement and the other
Loan Documents to which such Loan Party is a party or in respect of any obligations or liabilities
of the other Loan Parties, without any limitation as to amount, unless the instrument or agreement
evidencing or creating such other liability specifically provides to the contrary.
SECTION 10.13 Place of Performance. (a) At all times, the exclusive place of
performance (Erfüllungsort) of all rights and obligations under this Agreement and the other Loan
Documents shall be at place where the Administrative Agent has its office in New York, New York or
any other place reasonably designated by the Administrative Agent from time to time. The
performance of any rights and obligations under this Agreement and any other Loan Document shall in
no case be deemed to be in the Republic of Austria. For the avoidance of doubt, all payments made
hereunder by any European Loan Party shall be deemed to be made at the place where the applicable
Collection Account from which such payment is made is held and, with respect to any Collection
Account held in the Republic of Austria, payments made from such account hereunder shall be deemed
to have been made at the place where the head office of the European Collateral Agent in the
Netherlands is domiciled or at any other place reasonably designated by the European Collateral
Agent or the European Administrative Agent from time to
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time. Payments hereunder are to be made only in bank accounts maintained outside of the
Republic of Austria.
(b) No original or certified copy of this Agreement or any other Loan Document shall be
brought into the Republic of Austria. Notwithstanding anything aforesaid, nothing herein shall
prevent the parties hereto from bringing an original or certified copy of this Agreement or any
other Loan Document into the Republic of Austria if this is required to enforce or defend their
rights arising out of, or in connection with, this Agreement or any other Loan Document.
(c) In case of any dispute in an Austrian court the parties hereto agree that the original
text of this Agreement and any other Loan Document shall be explicitly accepted without further
evidence (außer Streit gestellt) in such proceedings. If any party hereto should not explicitly
accept (außer Streit stellen) the original wording of these documents in proceedings in an Austrian
court, such party shall solely bear all stamp duties and other related charges, fees, interest and
costs levied by Austrian tax authorities if consequently a copy of any or all of such documents
need to be submitted to the Austrian court.
ARTICLE XI
The Borrower Representative
SECTION 11.01 Appointment; Nature of Relationship. The Company is hereby appointed by
each of the Borrowers as its contractual representative (herein referred to as the Borrower
Representative) hereunder and under each other Loan Document, and each of the Borrowers
irrevocably authorizes the Borrower Representative to act as the contractual representative of such
Borrower with the rights and duties expressly set forth herein and in the other Loan Documents.
The Borrower Representative agrees to act as such contractual representative upon the express
conditions contained in this Article XI. Additionally, each Borrower hereby appoints, to the
extent the Borrower Representative requests any Loan on behalf of such Borrower, the Borrower
Representative as its agent to receive all of the proceeds of such Loan in the Funding Account(s),
at which time the Borrower Representative shall promptly disburse such Loan to such Borrower.
Neither the Agents, the Lenders nor the Issuing Banks and their respective officers, directors,
agents or employees, shall be liable to the Borrower Representative or any Borrower for any action
taken or omitted to be taken by the Borrower Representative or the Borrowers pursuant to this
Section 11.01.
SECTION 11.02 Powers. The Borrower Representative shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the Borrower Representative by the
terms of each thereof, together with such powers as are reasonably incidental thereto. The
Borrower Representative shall have no implied duties to the Borrowers, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by the Loan Documents
to be taken by the Borrower Representative.
SECTION 11.03 Employment of Agents. The Borrower Representative may execute any of
its duties as the Borrower Representative hereunder and under any other Loan Document by or through
authorized officers.
211
SECTION 11.04 Notices. Each Borrower shall immediately notify the Borrower
Representative of the occurrence of any Default hereunder, each such notice to refer to this
Agreement describing such Default and stating that such notice is a notice of default. In the
event that the Borrower Representative receives such a notice, the Borrower Representative shall
give prompt notice thereof to the Administrative Agent, the Collateral Agents and the Lenders. Any
notice provided to the Borrower Representative hereunder shall constitute notice to each Borrower
on the date received by the Borrower Representative.
SECTION 11.05 Successor Borrower Representative. Upon the prior written consent of
the Administrative Agent, the Borrower Representative may resign at any time, such resignation to
be effective upon the appointment of a successor Borrower Representative acceptable to the
Administrative Agent. The Administrative Agent shall give prompt written notice of such
resignation to the Lenders.
SECTION 11.06 Execution of Loan Documents; Borrowing Base Certificate. The Borrowers
hereby empower and authorize the Borrower Representative, on behalf of the Borrowers, to execute
and deliver to the Agents and the Lenders the Loan Documents and all related agreements,
certificates, documents, or instruments as shall be necessary or appropriate to effect the purposes
of the Loan Documents, including without limitation, any Borrowing Base Certificate and any
certificates required pursuant to Article V. Each Borrower agrees that any action taken by the
Borrower Representative or the Borrowers in accordance with the terms of this Agreement or the
other Loan Documents, and the exercise by the Borrower Representative of its powers set forth
therein or herein, together with such other powers that are reasonably incidental thereto, shall be
binding upon all of the Borrowers.
SECTION 11.07 Reporting. Each Borrower hereby agrees that such Borrower shall furnish
promptly after each fiscal month to the Borrower Representative a copy of its Borrowing Base
Certificate and any other certificate or report required hereunder or requested by the Borrower
Representative on which the Borrower Representative shall rely to prepare the Aggregate Borrowing
Base Certificate and the Borrowing Base Certificate of each Borrower and Compliance Certificates
required pursuant to the provisions of this Agreement. For the purpose of this Section 11, the
Borrower Representative of each German Loan Party is hereby released from the restrictions of
section 181 German Civil Code (BGB). Each German Loan Party represents to each of the Lenders that
the release hereby granted is effective under the term of its constitutional documents.
212
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
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BORROWERS: |
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LIZ CLAIBORNE, INC. |
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By: |
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/s/ Nicholas Rubino |
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Name: |
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Nicholas Rubino |
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Title: |
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SVP, Chief Legal Officer, General
Counsel and Corporate Secretary |
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LIZ CLAIBORNE CANADA INC. |
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By: |
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/s/ Nicholas Rubino |
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Name: |
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Nicholas Rubino |
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Title: |
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Director |
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MEXX EUROPE B.V. |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title:
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Director |
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JUICY COUTURE EUROPE LIMITED |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Attorney in fact |
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Signature Page to the Second Amended and Restated Credit Agreement
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LOAN PARTIES (OTHER THAN BORROWERS): |
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BOODLE, INC. |
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DB NEWCO CORP. |
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HAVANA LLC |
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JERG, INC. |
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JUICY COUTURE, INC. |
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KATE SPADE LLC |
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L. C. AUGUSTA, INC. |
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L.C. CARIBBEAN HOLDINGS, INC. |
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L.C. LICENSING, INC. |
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L.C. SERVICE COMPANY, INC. |
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L.C. SPECIAL MARKETS, INC. |
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LC LIBRA, LLC |
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LCI ACQUISITION U.S., INC. |
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LCI HOLDINGS, INC. |
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LCI INVESTMENTS, INC. |
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LIZ CLAIBORNE ACCESSORIES, INC. |
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LIZ CLAIBORNE ACCESSORIES-SALES, INC. |
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LIZ CLAIBORNE COSMETICS, INC. |
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LIZ CLAIBORNE EXPORT, INC. |
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LIZ CLAIBORNE FOREIGN HOLDINGS, INC. |
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LIZ CLAIBORNE JAPAN, INC. |
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LIZ CLAIBORNE PUERTO RICO, INC. |
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LIZ CLAIBORNE SALES, INC. |
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LIZ CLAIBORNE SHOES, INC. |
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LUCKY BRAND DUNGAREES, INC. |
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LUCKY BRAND DUNGAREES STORES, INC. |
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MONET INTERNATIONAL, INC. |
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MONET PUERTO RICO, INC. |
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NONEE I HOLDING, LLC |
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NONEE I, LLC |
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SEGRETS, INC. |
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SKYLARK SPORT MARKETING CORPORATION |
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WESTCOAST CONTEMPO PROMENADE, INC. |
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WESTCOAST CONTEMPO RETAIL, INC. |
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WESTCOAST CONTEMPO (U.S.A.) INC. |
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By: |
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/s/ Nicholas Rubino |
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Name: Nicholas Rubino
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Title: SVP, Chief Legal Officer, General
Counsel and Corporate Secretary |
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Signature Page to the Second Amended and Restated Credit Agreement
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JUICY COUTURE CANADA INC. |
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By: |
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/s/ Mark Weisz |
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Name: |
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Mark Weisz |
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Title: |
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Director |
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JUICY COUTURE IRELAND LIMITED |
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By: |
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/s/ G. J. Berghuis |
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Name: |
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G. J. Berghuis |
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Title: |
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Attorney in fact |
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LIZ CLAIBORNE EUROPE |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX AUSTRIA GMBH |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX BELGIUM NV |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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Signature Page to the Second Amended and Restated Credit Agreement
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RETRAIN NV |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX SCANDINAVIA FINLAND OY |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX BOUTIQUES SARL |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX DEUTSCHLAND GMBH |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX DIRECT GMBH & CO KG |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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Signature Page to the Second Amended and Restated Credit Agreement
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MEXX HOLDING GMBH |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX MODEHANDELS GMBH |
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By: |
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/s/ G.J. Berghuis | |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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VERWALTUNGSGESELLSCHAFT MEXX DIRECT MBH |
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By: |
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/s/ G.J. Berghuis | |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX HELLAS EPE |
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By: |
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/s/ G.J. Berghuis | |
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Name: |
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G.J. Berghuis |
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Title: |
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Administrator |
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Signature Page to the Second Amended and Restated Credit Agreement
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MEXX IRELAND LIMITED |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title:
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Director |
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/s/ I.J.S. Vhegen |
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Name: |
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I.J.S. Vhegen |
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Title:
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Director/Secretary |
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MEXX ITALY S.R.L. |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX LUXEMBOURG S.À.R.L. |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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LIZ CLAIBORNE 3 B.V. |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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LIZ CLAIBORNE 2 B.V. |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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Signature Page to the Second Amended and Restated Credit Agreement
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MEXX DIRECT HOLDING B.V. |
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By: |
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/s/ G.J. Berghuis |
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Name: |
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G.J. Berghuis |
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Title: |
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Director |
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MEXX EUROPE HOLDING B.V. |
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By: |
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/s/ G.J. Berghuis |
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Name: |
|
G.J. Berghuis |
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Title: |
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Director |
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MEXX EUROPE INTERNATIONAL B.V. |
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By: |
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/s/ G.J. Berghuis |
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|
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Name: |
|
G.J. Berghuis |
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Title: |
|
Director |
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|
MEXX GROUP B.V. |
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By: |
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/s/ G.J. Berghuis |
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|
|
|
|
|
Name: |
|
G.J. Berghuis |
|
|
|
|
|
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Title: |
|
Director |
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MEXX HOLDING INTERNATIONAL B.V. |
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By: |
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/s/ G.J. Berghuis |
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|
|
|
Name: |
|
G.J. Berghuis |
|
|
|
|
|
|
Title: |
|
Director |
|
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
|
|
|
|
|
MEXX HOLDING NETHERLANDS B.V. |
|
|
|
|
|
|
|
|
|
|
|
|
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By: |
|
/s/ G.J. Berghuis |
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|
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|
|
|
|
|
|
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Name: |
|
G.J. Berghuis |
|
|
|
|
|
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Title: |
|
Director |
|
|
|
|
|
|
|
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|
|
|
|
|
MEXX NEDERLAND B.V. |
|
|
|
|
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By: |
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/s/ G.J. Berghuis |
|
|
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|
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|
|
|
|
|
|
|
Name: |
|
G.J. Berghuis |
|
|
|
|
|
|
Title: |
|
Director |
|
|
|
|
|
|
|
|
|
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|
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|
MEXX NEDERLAND RETAIL B.V. |
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ G.J. Berghuis |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
G.J. Berghuis |
|
|
|
|
|
|
Title: |
|
Director |
|
|
|
|
|
|
|
|
|
|
|
|
|
MEXX SCANDINAVIA AS |
|
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|
By: |
|
/s/ G.J. Berghuis |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
G.J. Berghuis |
|
|
|
|
|
|
Title: |
|
Director |
|
|
|
|
|
|
|
|
|
|
|
|
|
MEXX SOUTHERN EUROPE, S.L. |
|
|
|
|
|
|
|
|
|
|
|
|
|
By: |
|
/s/ G.J. Berghuis |
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: |
|
G.J. Berghuis |
|
|
|
|
|
|
Title: |
|
Director |
|
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
MEXX MODEHANDELS AG
|
|
|
By: |
/s/ G.J. Berghuis |
|
|
|
Name: |
G.J. Berghuis |
|
|
|
Title: |
Director |
|
|
|
MEXX SWITZERLAND GMBH
|
|
|
By: |
/s/ G.J. Berghuis |
|
|
|
Name: |
G.J. Berghuis |
|
|
|
Title: |
Director |
|
|
|
MEXX LIMITED
|
|
|
By: |
/s/ G.J. Berghuis |
|
|
|
Name: |
G.J. Berghuis |
|
|
|
Title: |
Director |
|
|
|
WESTCOAST CONTEMPO FASHIONS LIMITED
|
|
|
By: |
/s/ Nicholas Rubino |
|
|
|
Name: |
Nicholas Rubino |
|
|
|
Title: |
Director |
|
|
|
MEXX SCANDINAVIA AB
|
|
|
By: |
/s/ G.J. Berghuis |
|
|
|
Name: |
G.J. Berghuis |
|
|
|
Title: |
Director |
|
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
MEXX EUROPRODUCTION B.V.
|
|
|
By: |
/s/ G.J. Berghuis |
|
|
|
Name: |
G.J. Berghuis |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
|
|
MEXX SPORT BENELUX B.V.
|
|
|
By: |
/s/ G.J. Berghuis |
|
|
|
Name: |
G.J. Berghuis |
|
|
|
Title: |
Director |
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A., individually, as
Administrative Agent, US Collateral Agent and Lender
|
|
|
By: |
/s/ Scott Troy |
|
|
|
Name: |
Scott Troy |
|
|
|
Title: |
Vice President |
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
J.P. MORGAN EUROPE LIMITED, individually, as European
Administrative Agent and European Collateral Agent
|
|
|
By: |
T.J. Jacob |
|
|
|
Name: |
Tim Jacob |
|
|
|
Title: |
Senior Vice President |
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,
individually, as Canadian Administrative Agent and
Canadian Collateral Agent
|
|
|
By: |
/s/ A. Marchetti |
|
|
|
Name: |
Auggie Marchetti |
|
|
|
Title: |
SVP |
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
BANK OF AMERICA, N.A., individually, as Lender
|
|
|
By: |
/s/ Christine Hutchinson |
|
|
|
Name: |
Christine Hutchinson |
|
|
|
Title: |
Principal |
|
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
GENERAL ELECTRIC CAPITAL CORPORATION, individually,
as Lender
|
|
|
By: |
/s/ Peter F. Crispino |
|
|
|
Name: |
Peter F. Crispino |
|
|
|
Title: |
Duly Authorized Signatory |
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
WACHOVIA CAPITAL FINANCE CORPORATION (NEW ENGLAND),
individually, as a Lender
|
|
|
By: |
/s/ Justin Button |
|
|
|
Name: |
Justin Button |
|
|
|
Title: |
VP |
|
|
Signature Page to the Second Amended and Restated Credit Agreement
|
|
|
|
|
|
SUNTRUST BANK,
individually, as a Lender
|
|
|
By: |
/s/ Angela Leake |
|
|
|
Name: |
Angela Leake |
|
|
|
Title: |
Vice President |
|
Signature Page to the Second Amended and Restated Credit Agreement
Schedule 1.01(a)
Commitments
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Facility A |
|
|
Facility B |
|
|
|
|
Bank |
|
Commitment |
|
|
Commitment |
|
|
Total Commitment |
|
JPMorgan Chase Bank, N.A. |
|
$ |
34,285,714.29 |
|
|
$ |
45,714,285.71 |
|
|
$ |
80,000,000 |
|
Bank of America, N.A. |
|
$ |
34,285,714.29 |
|
|
$ |
45,714,285.71 |
|
|
$ |
80,000,000 |
|
Wells Fargo Capital Finance, LLC |
|
$ |
34,285,714.29 |
|
|
$ |
45,714,285.71 |
|
|
$ |
80,000,000 |
|
Suntrust Robinson Humphrey Inc. |
|
$ |
34,285,714.29 |
|
|
$ |
45,714,285.71 |
|
|
$ |
80,000,000 |
|
General Electric Capital Corporation |
|
$ |
12,857,142.86 |
|
|
$ |
17,142,857.14 |
|
|
$ |
30,000,000 |
|
|
|
|
|
|
|
|
|
|
|
TOTAL |
|
$ |
150,000,000 |
|
|
$ |
200,000,000 |
|
|
$ |
350,000,000 |
|
|
|
|
|
|
|
|
|
|
|
Schedule 1.01(b)
Eligible Real Property
|
|
|
US Loan Party: |
|
Real Property: |
(Owner) |
|
Address |
LCI Holdings, Inc.
|
|
One Claiborne Avenue
North Bergen, New Jersey 07047
or
5901 West Side Avenue
North Bergen, New Jersey 07047
One Liz Way
Mount Pocono, Pennsylvania 18344 |
1
SCHEDULE 1.01(c)
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate Lenders for
the cost of compliance with (a) the requirements of the Bank of England and/or the
Financial Services Authority (or, in either case, any other authority which replaces all
or any of its functions) or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible thereafter) the
European Administrative Agent shall calculate, as a percentage rate, a rate (the
Additional Cost Rate) for each Lender, in accordance with the paragraphs set
out below. The Mandatory Cost will be calculated by the European Administrative Agent as
a weighted average of the Lenders Additional Cost Rates (weighted in proportion to the
percentage participation of each Lender in the relevant Loan) and will be expressed as a
percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender to the European
Administrative Agent. This percentage will be certified by that Lender in its notice to
the European Administrative Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lenders participation in all Loans made from that
Facility Office) of complying with the minimum reserve requirements of the European
Central Bank in respect of loans made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the European Administrative Agent as follows:
|
(a) |
|
in relation to a Loan denominated in Sterling: |
|
|
|
|
|
|
|
AB + C (B - D)
+ E x 0.01 |
|
|
|
|
|
|
|
|
|
100 - (A + C) |
|
|
|
|
|
|
per cent. per annum |
|
(b) |
|
in relation to a Loan in any currency other than Sterling: |
|
|
|
|
|
|
|
|
|
|
E x
0.01
|
|
|
|
|
|
|
300 |
|
|
|
|
|
|
|
|
|
per cent. per annum |
Where:
A. is the percentage of Eligible Liabilities (assuming these to be in excess of any stated
minimum) which that Lender is from time to time required to maintain as an interest free cash ratio
deposit with the Bank of England to comply with cash ratio requirements.
B. is the percentage rate of interest (excluding the Applicable Spread and the Mandatory Cost
and, if the Loan is an Unpaid Sum, the additional rate of interest specified in Section 2.10(c) of
the Credit Agreement) payable for the relevant Interest Period on the Loan.
C. is the percentage (if any) of Eligible Liabilities which that Lender is required from time
to time to maintain as interest bearing Special Deposits with the Bank of England.
D. is the percentage rate per annum payable by the Bank of England to the European
Administrative Agent (or such other bank as may be designated by the European Administrative Agent
in consultation with the Borrower Representative) on interest bearing Special Deposits.
E. is designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the European Administrative Agent as being the average of the most recent rates of
charge supplied by the Reference Banks to the European Administrative Agent pursuant to paragraph 7
below and expressed in Sterling per £1.0 million.
5. For the purposes of this Schedule:
(a) Eligible Liabilities and Special Deposits have the meanings given
to them from time to time under or pursuant to the Bank of England Act 1998 or (as may be
appropriate) by the Bank of England;
(b) Facility Office means the office or offices notified by a Lender to the
European Administrative Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days written notice) as the office or
offices through which it will perform its obligations under this Agreement;
(c) Fees Rules means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from time to time in
respect of the payment of fees for the acceptance of deposits;
(d) Fee Tariffs means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable discount rate);
(e) Reference Banks means, in relation to each of the Eurodollar Base Rate and
the Eurodollar Rate and Mandatory Cost, the principal office in London, England of J.P. Morgan
Europe Limited, or such other bank or banks as may be designated by the European
Administrative Agent in consultation with Borrower Representative;
(f) Tariff Base has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules; and
(g) Unpaid Sum means any sum due and payable but unpaid by any Loan Party under
the Loan Documents.
2
6. In application of the above formulae, A, B, C and D will be included in the formulae as
percentages (i.e. 5 per cent. will be included in the formula as 5 and not as 0.05). A negative
result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be
rounded to four decimal places.
7. If requested by the European Administrative Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply to the European
Administrative Agent, the rate of charge payable by that Reference Bank to the Financial Services
Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Reference Bank as being the average of the
Fee Tariffs applicable to that Reference Bank for that financial year) and expressed in Sterling
per £1.0 million of the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the European Administrative Agent for
the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each
Lender shall supply the following information on or prior to the date on which it becomes a Lender:
(c) the jurisdiction of its Facility Office; and
(d) any other information that the European Administrative Agent may reasonably require for
such purpose.
Each Lender shall promptly notify the European Administrative Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the rates of charge of
each Reference Bank for the purpose of E above shall be determined by the European Administrative
Agent based upon the information supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption that, unless a Lender notifies the European Administrative Agent to the contrary, each
Lenders obligations in relation to cash ratio deposits and Special Deposits are the same as those
of a typical bank from its jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
10. The European Administrative Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under compensates any Lender and
shall be entitled to assume that the information provided by any Lender or Reference Bank pursuant
to paragraphs 3, 7 and 8 above is true and correct in all respects.
11. The European Administrative Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each
Lender based on the information provided by each Lender and each Reference Bank pursuant to
paragraphs 3, 7 and 8 above.
12. Any determination by the European Administrative Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a
Lender shall, in the absence of manifest error, be conclusive and binding on all parties to this
Agreement.
3
The European Administrative Agent may from time to time, after consultation with Borrower
Representative and the Lenders, determine and notify to all parties to this Agreement any
amendments which are required to be made to this Schedule 1.01(c) in order to comply with
any change in law, regulation or any requirements from time to time imposed by the Bank of England,
the Financial Services Authority or the European Central Bank (or, in any case, any other authority
which replaces all or any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties to this Agreement.
4
Schedule 1.01(d)
Mortgaged Properties
|
|
|
|
|
|
|
Address of Property |
|
|
Loan Party/Owner: |
|
Mortgaged: |
|
Mortgagee |
LCI Holdings, Inc.
|
|
One Claiborne Avenue,
North Bergen, NJ 07047
or
5901 West Side Avenue
North Bergen, New Jersey 07047
|
|
JPMORGAN CHASE BANK, N.A.,
as U.S. Collateral Agent, Mortgagee |
|
|
|
|
|
LCI Holdings, Inc.
|
|
One Liz Way,
Mt. Pocono, PA 18344
|
|
JPMORGAN CHASE BANK, N.A.,
as U.S. Collateral Agent, Mortgagee |
|
|
|
|
|
Mexx Deutschland GmbH
|
|
Mühlenstrasse 57
41352 Korschenbroich
Germany
|
|
J.P. MORGAN EUROPE LIMITED
as European Collateral Agent, Mortgagee |
1
Schedule 1.01(e)
Specified Loan Documents
Germany
1. |
|
Notice and acknowledgement relating to updated schedule of Mexx Modehandels GmbH account
pledge agreement |
2. |
|
Notice and acknowledgement relating to updated schedule of Mexx Modehandels GmbH account
pledge agreement (2) |
3. |
|
Notice and acknowledgement relating to updated schedule of Mexx Modehandels GmbH account
pledge agreement (3) |
4. |
|
Notice and acknowledgement relating to updated schedule of Mexx Direct GmbH & Co. KG account
pledge agreement |
5. |
|
Subordination Agreement between Mexx Modehandels GmbH, Mexx Holdings GmbH and Mexx
Deutschland GmbH, amongst others |
|
6. |
|
Security Transfer Agreement between Mexx Europe B.V. and J.P. Morgan Europe Limited |
England
1. |
|
Debenture between Juicy Couture Europe Limited and J.P. Morgan Europe Limited |
2. |
|
Blocked Account Agreement between Juicy Couture Europe Ltd, J.P. Morgan Chase Bank N.A. and
J.P. Morgan Europe Ltd |
3. |
|
Control Agreement re payables between Juicy Couture Europe Ltd, J.P. Morgan Chase Bank N.A.
and J.P. Morgan Europe Ltd |
|
4. |
|
Notice and acknowledgement re Control Agreement |
|
5. |
|
Notice of Charge re Lloyds TSB payment account from Juicy Couture Europe Ltd to Lloyds TSB |
|
6. |
|
Debenture between Liz Claiborne Europe and J.P. Morgan Europe Ltd. |
7. |
|
Shares Charge between Liz Claiborne Inc. and J.P. Morgan Europe Ltd |
8. |
|
Bank Account Charge between Mexx Holding International B.V. Mexx Europe International B.V.
and J.P. Morgan Europe Ltd |
9. |
|
Notice from Mexx Holding International B.V. to Citibank |
|
10. |
|
Notice from Mexx Europe International B.V. to Citibank |
|
11. |
|
Shares Charge between Mexx Europe International B.V. and J.P. Morgan Europe Ltd. |
|
12. |
|
Notices and acknowledgements under original bank account pledge |
1
Canada
1. |
|
Confirmation of Security Interest in Intellectual Property from Mexx Europe B.V. |
US
2. |
|
Control Agreement between Juicy Couture Europe Ltd., J.P. Morgan Chase Bank NA and J.P.
Morgan Europe Ltd |
3. |
|
Account Security Agreement between Juicy Couture Europe Ltd. and J.P. Morgan Chase Bank NA |
The Netherlands
1. |
|
Notice (including waivers for the right of pledge and rights of set off arising from the
General Banking Conditions) and acknowledgement re update to schedule of Mexx Belgium B.V.
account bank pledge |
2. |
|
Account Pledge Agreement between Mexx Europroduction B.V., Mexx Sports Benelux B.V., Mexx
Nederland Retail B.V. and J.P. Morgan Europe Limited |
3. |
|
Notice and Acknowledgement between Mexx Europroduction B.V., Mexx Sports Benelux B.V., Mexx
Nederland Retail B.V. and ING Bank N.V. |
4. |
|
Supplemental Deed of Pledge from Mexx Europe B.V. |
Austria
1. |
|
Amendment Agreement to the Account Pledge between Mexx Austria and J.P. Morgan Europe Ltd |
|
2. |
|
Notice and acknowledgement re Amendment Agreement to Account Pledge |
|
3. |
|
Amendment Agreement between Mexx Europe B.V. and J.P. Morgan Europe Ltd |
|
4. |
|
Amendment Agreement between Mexx Direct GmbH & Co. KG and J.P. Morgan Europe Ltd |
|
5. |
|
Subordination Agreement between Mexx Austria and Mexx Europe B.V. |
|
6. |
|
Parent Undertaking from Mexx Holding Netherlands B.V. |
Belgium
1. |
|
Notice and acknowledgement re update to Account Bank Pledge |
France
1. |
|
Bank Account Pledge between Liz Claiborne Europe and J.P. Morgan Europe Ltd |
|
2. |
|
Notice from J.P. Morgan Europe Ltd to Société Générale |
|
3. |
|
Notice from J.P. Morgan Europe Ltd to, BNP Paribas Fortis |
2
4. |
|
Notice from J.P. Morgan Europe Ltd to HSBC |
|
5. |
|
Amendment & Pledge Confirmation Agreement between Mexx Boutiques SARL and J.P. Morgan Europe
Ltd |
|
6. |
|
Notice from J.P. Morgan Europe Ltd to CIC |
7. |
|
Notice from J.P. Morgan Europe Ltd to HSBC |
|
8. |
|
Pledge Confirmation Agreement between Mexx Europe B.V. and J.P. Morgan Europe Ltd |
|
9. |
|
Pledge Confirmation Agreement between Mexx Direct GmbH & Co. KG and J.P. Morgan Europe Ltd |
Greece
1. |
|
Amendment agreement to account bank charge between Mexx Hellas EPE and J.P. Morgan Europe Ltd |
2. |
|
Notice and acknowledgement re Amendment Agreement |
Ireland
1. |
|
Share Charge (Juicy Couture Ireland Ltd) between Juicy Couture Europe Ltd. and J.P. Morgan
Europe Ltd |
|
2. |
|
Debenture between Juicy Couture Ireland Limited and J.P. Morgan Europe Ltd |
|
3. |
|
Notice and acknowledgement re Debenture |
|
4. |
|
Bank Account Charge (Floating) between Liz Claiborne Europe and J.P. Morgan Europe Ltd |
|
5. |
|
Notice and acknowledgement re Bank Account Charge |
|
6. |
|
Amended and Restated Bank Account Charge between Mexx Europe B.V. and J.P. Morgan Europe Ltd |
|
7. |
|
Notice and acknowledgement re Amended and Restated Bank Account Charge |
8. |
|
Amended and Restated Deed of Charge over Bank Accounts between Mexx Ireland Ltd and J.P.
Morgan Europe Ltd |
9. |
|
Notice and acknowledgement re Amended and Restated Deed of Charge over Bank Accounts |
10. |
|
Subordination Agreement between Mexx Ireland Ltd and Mexx Europe International B.V. |
3
Italy
1. |
|
Deed of Acknowledgement to the pledge agreement over the bank account between Mexx Europe
B.V. and J.P. Morgan Europe Ltd |
2. |
|
Notice to account bank from Mexx Europe B.V. to BNP Paribas Fortis |
3. |
|
Deed of Acknowledgement to the pledge agreement over the bank account between Mexx Italy
S.r.l. and J.P. Morgan Europe Ltd |
4. |
|
Notice from Mexx Italy S.r.l. to ING Bank N.V. |
|
5. |
|
Notice from Mexx Italy S.r.l. to Unicredit |
|
6. |
|
Agreement re waiver of receivables between Mexx Italy S.r.l. and Mexx Europe B.V. |
7. |
|
Assignment of receivables agreement between Mexx Italy S.r.l., Mexx Europe International B.V.
and Mexx Europe B.V. |
Luxembourg
1. |
|
Confirmation Agreement between Mexx Luxembourg S.à.r.l. and J.P. Morgan Europe Ltd |
2. |
|
Notice and acknowledgement between Mexx Luxembourg S.à.r.l., J.P. Morgan Europe Ltd and ING
Luxembourg S.A. |
Norway
1. |
|
Amendment Agreement re changes of Pledge of Accounts Agreement between Mexx Scandinavia AS,
J.P. Morgan Europe Ltd and JPMorgan Chase Bank N.A. |
Sweden
1. |
|
Amendment Agreement to existing Account bank pledge between Mexx Europe B.V. and J.P. Morgan
Europe Limited |
2. |
|
Amendment agreement to existing Account bank pledge between Mexx Scandinavia AB and J.P.
Morgan Europe Limited |
Switzerland
1. |
|
Subordination Agreement between Mexx Modehandels AG and Mexx Europe B.V. |
4
Schedule 2.06
Schedule 2.06
Existing Letters of Credit
Facility A Letters of Credit:
(As of April 30, 2010)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
|
Standby LC |
Name of Issuing Bank |
|
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
|
(Y/N) |
|
|
JPMorgan Chase Bank, N.A.
|
|
HLCLIZ55001769
|
|
Juicy Couture, Inc.
|
|
DO DO FASHION LIMITED
|
|
4/23/2010
|
|
7/27/2010
|
|
USD
|
|
|
210,762.35 |
|
|
N |
JPMorgan Chase Bank, N.A.
|
|
HLCLIZ55001768
|
|
Liz Claiborne, Inc.
|
|
VENTURA ENTERPRISE CO. INC
|
|
11/25/2009
|
|
7/30/2010
|
|
USD
|
|
|
388,204.34 |
|
|
N |
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
598,966.69 |
|
|
|
1
Schedule 2.06
Schedule 2.06
Existing (Standby) Letters of Credit
Facility A Letters of Credit:
(As of April 30, 2010)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
|
Standby LC |
Name of Issuing Bank |
|
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
|
(Y/N) |
JPMorgan Chase Bank, N.A.
|
|
TPTS-699168
|
|
Liz Claiborne Inc.
|
|
Hartford Fire Insurance Company
|
|
10/27/09
|
|
10/5/10
|
|
USD
|
|
|
5,042,066 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
TPTS-763153
|
|
Liz Claiborne Inc.
|
|
Lumbermens Mutual Casualty Company, American Motorists Insurance Company, American Manufacturers Mutual Insurance Company, American Protection Insurance Company, Natlsco, Inc.
|
|
6/19/09
|
|
10/14/10
|
|
USD
|
|
|
130,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-790154
|
|
Liz Claiborne Inc.
|
|
Zurich American Insurance Company
|
|
8/27/09
|
|
8/28/10
|
|
USD
|
|
|
5,385,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-752205
|
|
Liz Claiborne Inc.
|
|
Chair, Workers Compensation Board
|
|
10/01/09
|
|
10/20/10
|
|
USD
|
|
|
46,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-773046
|
|
Liz Claiborne Inc.
|
|
229 Newbury Street Trust
|
|
10/15/09
|
|
10/31/10
|
|
USD
|
|
|
65,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
TPTS-749364
|
|
Liz Claiborne Inc.
|
|
Empire State Building Company
|
|
6/8/09
|
|
9/15/10
|
|
USD
|
|
|
173,500 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
TPTS-725492
|
|
Liz Claiborne Inc.
|
|
17-19 Associates LLC
|
|
2/12/10
|
|
1/20/11
|
|
USD
|
|
|
340,836 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
YPYS-725490
|
|
Liz Claiborne Inc.
|
|
17-19 Associates LLC
|
|
2/12/10
|
|
1/20/11
|
|
USD
|
|
|
834,700 |
|
|
Y |
2
Schedule 2.06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
|
Standby LC |
Name of Issuing Bank |
|
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
|
(Y/N) |
JPMorgan Chase Bank, N.A.
|
|
TPTS-731207
|
|
Liz Claiborne Inc.
|
|
650 Fifth Avenue Company
|
|
3/23/09
|
|
3/30/11
|
|
USD
|
|
|
500,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
TPTS-701548
|
|
Liz Claiborne Inc.
|
|
125569 Canada Inc.
|
|
4/24/09
|
|
4/1/11
|
|
CAD
|
|
|
166,620 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
TPTS-733655
|
|
Liz Claiborne Inc.
|
|
Chicago Oak Street Partners, LLC
|
|
5/6/09
|
|
5/1/11
|
|
USD
|
|
|
245,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-759972
|
|
Liz Claiborne Inc.
|
|
Marcarko Ltee
|
|
2/5/10
|
|
1/31/11
|
|
CAD
|
|
|
15,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-792315
|
|
Liz Claiborne Inc.
|
|
Ohio Bureau of Workers Compensation
|
|
11/17/09
|
|
10/29/10
|
|
USD
|
|
|
57,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
TPTS-773043
|
|
Liz Claiborne Inc.
|
|
Aveda Services Inc. and The Estee Lauder Companies
|
|
8/4/09
|
|
8/19/10
|
|
USD
|
|
|
1,000,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-805289
|
|
Liz Claiborne Inc.
|
|
Galleria Mall Investors, LP.
|
|
2/5/10
|
|
1/31/11
|
|
USD
|
|
|
100,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-805184
|
|
Liz Claiborne Inc.
|
|
Keystone-Florida Property Holding Corp.
|
|
2/5/10
|
|
1/31/11
|
|
USD
|
|
|
100,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
TPTS-676766
|
|
Liz Claiborne Inc.
|
|
48 West 25th Street, LLC
|
|
12/31/09
|
|
12/31/10
|
|
USD
|
|
|
825,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
TPTS-774676
|
|
Liz Claiborne Inc.
|
|
US Bank
|
|
7/9/09
|
|
6/30/10
|
|
USD
|
|
|
2,000,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-805185
|
|
Liz Claiborne Inc.
|
|
STJTC II, LLC
|
|
2/10/10
|
|
12/31/10
|
|
USD
|
|
|
100,000 |
|
|
Y |
3
Schedule 2.06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
|
Standby LC |
Name of Issuing Bank |
|
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
|
(Y/N) |
JPMorgan Chase Bank, N.A.
|
|
CPCS-785707
|
|
Liz Claiborne Inc.
|
|
US Bank National Association
|
|
2/19/10
|
|
6/30/10
|
|
CAD
|
|
|
240,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-822619
|
|
Liz Claiborne Inc.
|
|
The Levy Group Inc.
|
|
2/18/10
|
|
10/31/10
|
|
USD
|
|
|
178,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-769781
|
|
Liz Claiborne Inc.
|
|
Port Logistics Group, Inc.
|
|
3/22/10
|
|
9/30/10
|
|
USD
|
|
|
400,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-819698
|
|
Liz Claiborne Inc.
|
|
JPMorgan Chase Bank, N.A.
|
|
4/16/10
|
|
02/28/11
|
|
GBP
|
|
|
770,000 |
|
|
Y |
JPMorgan Chase Bank, N.A.
|
|
CPCS-817769
|
|
Liz Claiborne Inc.
|
|
JPMorgan Chase Bank, N.A.
|
|
4/19/10
|
|
8/31/10
|
|
GBP
|
|
|
68,000 |
|
|
Y |
Total
|
|
|
|
|
|
|
|
|
|
|
|
USD
|
|
|
17,522,102 |
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
CAD
|
|
|
421,620 |
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
GBP
|
|
|
838,000 |
|
|
|
4
Schedule 2.06
Schedule 2.06
Existing Letters of Credit
Facility B Letters of Credit:
(As of April 26, 2010)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
|
Standby LC |
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
|
(Y/N) |
Banque Artesia Netherlands |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
G02/9351 |
|
Mexx Nederland |
|
St.Pf.Prod.Sch. v. Voedselvoorz. |
|
30-5-93 |
|
None |
|
Euro |
|
|
22,625 |
|
|
Y |
G02/9361 |
|
Mexx Nederland |
|
Vastgoedmij. Goudsemarkt |
|
13-10-93 |
|
None |
|
Euro |
|
|
12,223 |
|
|
Y |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
G02/98043 |
|
Mexx Group |
|
Robeca/Points of Sale |
|
08-07-98 |
|
31-12-2016 |
|
Euro |
|
|
57,176 |
|
|
Y |
G02/98006 |
|
Mexx Group |
|
MBO-Ruijters |
|
19-02-98 |
|
None |
|
Euro |
|
|
31,039 |
|
|
Y |
G02/98017 |
|
Mexx Group |
|
Rodamco Retail Nederland nv |
|
01-04-98 |
|
None |
|
Euro |
|
|
69,882 |
|
|
Y |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
|
|
|
|
Euro |
|
|
192,945 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ING Bank Netherlands |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1999.011.927 |
|
Mexx Nederland |
|
De Planeet Real Estate NV |
|
24-11-1999 |
|
None |
|
Euro |
|
|
1,167 |
|
|
Y |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1999.012.422 |
|
Mexx Nederland |
|
Stichting Pensioenfonds Hoogovens |
|
08-12-1999 |
|
None |
|
Euro |
|
|
40,840 |
|
|
Y |
2004.010.597 |
|
Mexx Group |
|
Counterguarantee ING Czech Republic for Mexx CR |
|
20-12-2004 |
|
None |
|
Euro |
|
|
87,769 |
|
|
Y |
5
Schedule 2.06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
|
Standby LC |
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
|
(Y/N) |
2005.002.698 |
|
Mexx Group |
|
St. Philips Pensioenfonds |
|
11-04-2005 |
|
None |
|
Euro |
|
|
16,300 |
|
|
Y |
2004.006.344 |
|
Mexx Group |
|
Guarantee for credit facility Hungary |
|
09-02-2005 |
|
31-07-2012 |
|
Euro |
|
|
100,000 |
|
|
Y |
2006.009.787 |
|
Mexx Europe Holding |
|
Counterguarantee ING Czech Republic for Mexx CR |
|
12-12-2006 |
|
15-01-2013 |
|
Euro |
|
|
25,140 |
|
|
Y |
2008.009.295 |
|
Mexx Group |
|
Guarantee for Mexx Austria GmbH - Kaufhaus Steffl Betriebs AG |
|
01-12-2008 |
|
None |
|
Euro |
|
|
30,000 |
|
|
Y |
2009.006.001 |
|
Mexx Group |
|
MN services BV |
|
9/3/2009 |
|
None |
|
Euro |
|
|
51,576.00 |
|
|
Y |
2009.005.993 |
|
Mexx Group |
|
Dela Vastgroep BV |
|
9/15/2009 |
|
None |
|
Euro |
|
|
69,317.50 |
|
|
Y |
2009.005.896 |
|
Mexx Nederland Retail |
|
TCN |
|
9/3/2009 |
|
None |
|
Euro |
|
|
15,210.73 |
|
|
Y |
|
|
Mexx Europe |
|
DHL Spain |
|
2/15/2009 |
|
None |
|
Euro |
|
|
5,250.00 |
|
|
Y |
K6377449 |
|
Mexx Europe |
|
Rodamco |
|
01/04/2010 |
|
|
|
Euro |
|
|
49,046.07 |
|
|
Y |
Total |
|
|
|
|
|
|
|
|
|
Euro |
|
|
491,616 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fortis Bank Belgium |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
899132062910 |
|
Mexx Benelux |
|
Wijnegem, Brussel Staete |
|
16/03/2001 |
|
15/12/2014 |
|
Euro |
|
|
140,191 |
|
|
Y |
899132062203 |
|
Mexx Benelux |
|
Kortrijk, Heveko |
|
21/02/2001 |
|
31/12/2016 |
|
Euro |
|
|
12,890 |
|
|
Y |
808080144235 |
|
Mexx Benelux |
|
Brussels International Trad |
|
01/09/2008 |
|
30/04/2016 |
|
Euro |
|
|
12,691 |
|
|
Y |
899132063112 |
|
Mexx Benelux |
|
Shop Immo |
|
30/07/2001 |
|
31/05/2010 |
|
Euro |
|
|
204,370 |
|
|
Y |
899132063213 |
|
Mexx Benelux |
|
Vanhout Liesbeth |
|
02/08/2001 |
|
31/12/2011 |
|
Euro |
|
|
32,037 |
|
|
Y |
899132063314 |
|
Mexx Benelux |
|
M en D Benelux NV |
|
02/08/2001 |
|
30/04/20101 |
|
Euro |
|
|
115,955 |
|
|
Y |
899132063415 |
|
Mexx Benelux |
|
Luiks BV |
|
02/08/2001 |
|
30/04/20102 |
|
Euro |
|
|
29,747 |
|
|
Y |
802140119465 |
|
Mexx Benelux |
|
Brugge, Redevco Immo |
|
21/02/2002 |
|
06/04/2011 |
|
Euro |
|
|
89,861 |
|
|
Y |
899132063516 |
|
Mexx Benelux |
|
Flanders Investment Company |
|
13/09/2001 |
|
28/02/2011 |
|
Euro |
|
|
48,029 |
|
|
Y |
804090028522 |
|
Mexx Benelux |
|
St. Niklaas Waasland S.C. (shop 95) |
|
09/09/2004 |
|
15/05/2013 |
|
Euro |
|
|
102,385 |
|
|
Y |
806020065915 |
|
Mexx Benelux |
|
St. Niklaas Waasland S.C. (shop 95) |
|
20/04/2006 |
|
23/02/2013 |
|
Euro |
|
|
49,742 |
|
|
Y |
809050059258 |
|
Mexx Benelux |
|
Compagnie Immobiliere du Brabanne |
|
5/27/2009 |
|
2/2/2012 |
|
Euro |
|
|
6,206 |
|
|
Y |
809050057238 |
|
Mexx Benelux |
|
Compagnie Immobiliere du Brabanne |
|
5/27/2009 |
|
8/31/2014 |
|
Euro |
|
|
133,842 |
|
|
Y |
809040013997 |
|
Mexx Benelux |
|
Van Gestel en CO |
|
5/15/2009 |
|
12/31/2015 |
|
Euro |
|
|
50,849 |
|
|
Y |
809020067161 |
|
Mexx Benelux |
|
Elisetic (beneficiary change due to change landlord April, 2009) |
|
2/23/2009 |
|
3/31/2018 |
|
Euro |
|
|
80,000 |
|
|
Y |
Total |
|
|
|
|
|
|
|
|
|
Euro |
|
|
1,108,794 |
|
|
Y |
|
|
|
1 |
|
In process of extending/re-issuance until 30/04/2019. |
|
2 |
|
In process of extending/re-issuance until 30/04/2019. |
6
Schedule 2.06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
|
Standby LC |
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
|
(Y/N) |
ING/BBL Bank Belgium |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mexx Benelux |
|
Buytaert Jan |
|
08/06/1997 |
|
30/06/2018 |
|
Euro |
|
|
7,210 |
|
|
Y |
|
|
Mexx Benelux |
|
Imea AGO |
|
15/07/1997 |
|
Indefinite period of time |
|
Euro |
|
|
7,065 |
|
|
Y |
|
|
Mexx Benelux |
|
Balda (Oostende) |
|
09/01/2008 |
|
31/12/2011 |
|
Euro |
|
|
52,678 |
|
|
Y |
Total |
|
|
|
|
|
|
|
|
|
Euro |
|
|
66,953 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commerzbank Germany |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MOBAV00026000300 |
|
Mexx Deutschland GmbH |
|
MTC Munchener Mode- u. Textil-Center GmbH |
|
12.01.2001 |
|
Indefinite |
|
Euro |
|
|
22,959 |
|
|
Y |
MOBAV00292000100 |
|
Mexx Deutschland GmbH |
|
Haus der Mode 5 Eschborn GbR |
|
18.10.2000 |
|
Indefinite |
|
Euro |
|
|
10,067 |
|
|
Y |
MOBAV02246000100 |
|
Mexx Deutschland GmbH |
|
Häuser der Mode Eschborn GbR |
|
03.09.2002 |
|
Indefinite |
|
Euro |
|
|
30,034 |
|
|
Y |
MOEAV87053882901 |
|
Mexx Deutschland GmbH |
|
Haus der Mode |
|
11.12.1991 |
|
Indefinite |
|
Euro |
|
|
25,000 |
|
|
Y |
MOEAV97078000100 |
|
Mexx Deutschland GmbH |
|
Luserke GbR; Luerske Vermögensverw. GmbH |
|
19.03.1997 |
|
Indefinite |
|
Euro |
|
|
18,148 |
|
|
Y |
MOBAV03049000100 |
|
Mexx Deutschland GmbH |
|
Luserke GbR; Luerske Vermögensverw. GmbH |
|
18.02.2003 |
|
Indefinite |
|
Euro |
|
|
17,633 |
|
|
Y |
MOBAV03191000500 |
|
Mexx Deutschland GmbH |
|
GLOBABNA Immob. Verw. GmbH & Co Mitteld. Mode Center KG |
|
10.07.2003 |
|
Indefinite |
|
Euro |
|
|
20,500 |
|
|
Y |
DAUAV70010450001 |
|
Mexx Deutschland GmbH |
|
FMM II Fashion Mall Munich GmbH & Co. KG |
|
21.11.2008 |
|
Indefinite |
|
Euro |
|
|
61,852.11 |
|
|
Y |
MOEAV97244000100 |
|
Mexx Modehandels GmbH |
|
Neue Mitte Oberhausen Projektentw. GmbH & Co KG |
|
01.09.1997 |
|
Indefinite |
|
Euro |
|
|
40,311 |
|
|
Y |
7
Schedule 2.06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
|
Standby LC |
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
|
(Y/N) |
MOEAV98209000100 |
|
Mexx Modehandels GmbH |
|
Debis Immobilienmanagem.GmbH |
|
28.07.1998 |
|
Indefinite |
|
Euro |
|
|
69,945 |
|
|
Y |
|
|
MOBAV01228000200 |
|
Mexx Modehandels GmbH |
|
Kommanditges. Grundstücksges. Alster m.b.H. & Co. |
|
06.08.2001 |
|
Indefinite |
|
Euro |
|
|
39,427 |
|
|
Y |
MOBAV00235000200 |
|
Mexx Modehandels GmbH |
|
Neue Mitte Oberhausen Projektentw. GmbH & Co KG |
|
22.08.2000 |
|
Indefinite |
|
Euro |
|
|
121,859 |
|
|
Y |
|
|
MOBAV02029000300 |
|
Mexx Modehandels GmbH |
|
Deutsche Grundbesitz Anlagengesellschaft |
|
29.01.2002 |
|
Indefinite |
|
Euro |
|
|
39,407 |
|
|
Y |
MOBAV04078000300 |
|
Mexx Modehandels GmbH |
|
VR Franconia GmbH |
|
18.03.2004 |
|
Indefinite |
|
Euro |
|
|
58,860 |
|
|
Y |
MOBAV05292000100 |
|
Mexx Modehandels GmbH |
|
VR Bavaria GmbH |
|
19.10.2005 |
|
Indefinite |
|
Euro |
|
|
40,095 |
|
|
Y |
Total |
|
|
|
|
|
|
|
|
|
Euro |
|
|
616,097 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liability/ |
|
|
|
|
|
|
|
|
|
|
|
Expiry/Maturity |
|
|
|
Outstanding |
|
Standby LC |
|
Letter of Credit No. |
|
Applicant |
|
Beneficiary |
|
Issue Date |
|
Date |
|
Currency |
|
Balance |
|
(Y/N) |
|
JP Morgan Chase |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
CPCS-816417 |
|
Mexx Europe BV |
|
The Levy Group Inc. |
|
4/9/2010 |
|
8/15/2010 |
|
USD |
|
565,000 |
|
|
Y |
|
4L4S-716778 |
|
Mexx Europe BV |
|
Fortis Bank Nederland NV |
|
1/14/2009 |
|
1/14/2011 |
|
Euro |
|
6,875,000 |
|
|
Y |
|
8
Schedule 3.05
A. Owned Real Property:
|
|
|
Loan Party: |
|
Addresses: |
Liz Claiborne, Inc.
|
|
Lot 1, according to
the Interstate Industrial Park Plat No. 7,
as said Map appears of record in the office of
the Judge of Probate of Montgomery County, Alabama
in Plat Book 42, at Page 120 |
|
|
|
LCI Holdings, Inc.
|
|
One Claiborne Avenue
North Bergen, New Jersey 07047
or
5901 West Side Avenue
North Bergen, New Jersey 07047 |
|
|
|
LCI Holdings, Inc.
|
|
One Liz Way
Mount Pocono, Pennsylvania 18344 |
|
|
|
Mexx Deutschland GmbH
|
|
Mühlenstrasse 57
41352 Korschenbroich
Germany |
1
Schedule 3.05 B
3.05 B. Leased Real Property
1. Liz Claiborne Canada Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination / |
|
|
|
|
|
|
|
|
|
|
Postal |
|
Assignment |
No. |
|
Mall Name: |
|
Address: |
|
City: |
|
Province: |
|
Code: |
|
Date, if any |
1.
|
|
Trinity Crossing (Innes & Lanthier)
|
|
4210 Innes Road, unit G2-5
|
|
Ottawa
|
|
ON
|
|
K4A5E6
|
|
To be assigned undetermined |
2.
|
|
RioCan Centre Burloak
|
|
3527 Wyecroft Road
|
|
Oakville
|
|
ON
|
|
L6L 0B6
|
|
To be assigned undetermined |
3.
|
|
South Trail Crossing
|
|
4307 130th Ave. South East
|
|
Calgary
|
|
AB
|
|
T2Z 3V8
|
|
To be assigned undetermined |
4.
|
|
RioCan Beacon Hill
|
|
11834 Sarcee Trail NW
|
|
Calgary
|
|
AB
|
|
T3R 0A1
|
|
To be assigned undetermined |
5.
|
|
Riocan Signal Hill Centre
|
|
5518 Signal Hill Centre South West
|
|
Calgary
|
|
AB
|
|
T3H 3P8
|
|
To be assigned undetermined |
6.
|
|
Yonge Street
|
|
267 Yonge Street
|
|
Toronto
|
|
ON
|
|
M5B 1P4
|
|
To be assigned undetermined |
7.
|
|
Ottawa Train Yards
|
|
100 Trainyards Drive
|
|
Ottawa
|
|
ON
|
|
K1G 3S2
|
|
To be terminated |
8.
|
|
Smartcentres Gatineau
|
|
79, boulevard de La Gappe, Unit C5
|
|
Gatineau
|
|
QC
|
|
J8T 0B5
|
|
To be assigned 6/15/10 |
9.
|
|
RioCan Chapman Mills Marketplace
|
|
3161 Greenbank Road
|
|
Ottawa
|
|
ON
|
|
K2J 4H9
|
|
To be assigned undetermined |
10.
|
|
SmartCentres London North
|
|
104-1300 Fanshawe Park Road West
|
|
London
|
|
ON
|
|
N6G 5B1
|
|
To be assigned undetermined |
11.
|
|
Westshore Town Centre
|
|
2945 Jacklin Road
|
|
Victoria
|
|
BC
|
|
V9B 5E3
|
|
To be assigned 6/15/10 |
12.
|
|
Vaughan Mills
|
|
1 Bass Pro Mills Drive
|
|
Vaughan
|
|
ON
|
|
L4K 5W4
|
|
To be assigned undetermined |
13.
|
|
RioCan Kirkland Centre
|
|
3264 Jean-Yves
|
|
Kirkland
|
|
QC
|
|
H9J 2R6
|
|
To be assigned undetermined |
14.
|
|
RioCan Marketplace
|
|
2181 Steeles Avenue West
|
|
Toronto
|
|
ON
|
|
M3J 3N2
|
|
To be assigned undetermined |
15.
|
|
Kings Crossing Fashion Outlet
|
|
97 Dalton Avenue
|
|
Kingston
|
|
ON
|
|
K7K 0C4
|
|
To be assigned undetermined |
16.
|
|
Cookstown Manufacturers Outlet Mall
|
|
3311 Simcoe Road 89
|
|
Cookstown
|
|
ON
|
|
L0L 1L0
|
|
To be terminated 7/30/10 |
17.
|
|
St. Jacobs Outlet Mall
|
|
25 Benjamin Road
|
|
Waterloo
|
|
ON
|
|
N2V 2G8
|
|
To be assigned 6/15/10 |
18.
|
|
Silver City Centre
|
|
2280 City Park Drive
|
|
Gloucester
|
|
ON
|
|
K1J 1J6
|
|
To be assigned undetermined |
19.
|
|
Heartland Town Centre
|
|
775 Britania Road West
|
|
Mississauga
|
|
ON
|
|
L5V 2Y1
|
|
To be assigned undetermined |
20.
|
|
College Square
|
|
1365 Woodroffe Ave.
|
|
Nepean
|
|
ON
|
|
K2G 1V7
|
|
To be assigned undetermined |
21.
|
|
Kanata Entertainment Centrum
|
|
625 Kanata Avenue
|
|
Kanata
|
|
ON
|
|
K2T 1H6
|
|
To be terminated |
22.
|
|
Mayfield Common
|
|
320 Mayfield Common
|
|
Edmonton
|
|
AB
|
|
T5P 4B3
|
|
To be assigned undetermined |
23.
|
|
RioCan Shawnessy Centre
|
|
85 Shawville Blvd. SE
|
|
Calgary
|
|
AB
|
|
T2Y 3H9
|
|
To be assigned 6/15/10 |
1
Schedule 3.05 B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination / |
|
|
|
|
|
|
|
|
|
|
Postal |
|
Assignment |
No. |
|
Mall Name: |
|
Address: |
|
City: |
|
Province: |
|
Code: |
|
Date, if any |
24.
|
|
SmartCentres Kenaston
|
|
1589 Kenaston Blvd
|
|
Winnipeg
|
|
MA
|
|
R3P 2N3
|
|
To be assigned 6/15/10 |
25.
|
|
Spall Plaza
|
|
1950 Harvey Avenue
|
|
Kelowna
|
|
BC
|
|
V1Y 8J8
|
|
To be assigned 6/15/10 |
26.
|
|
Deerfoot Outlet Mall
|
|
901 64th Avenue NE
|
|
Calgary
|
|
AB
|
|
T2P 7P4
|
|
To be assigned undetermined |
27.
|
|
Sauvé Street
|
|
550 Sauve West
|
|
Montreal
|
|
QC
|
|
H3L 1Z8 |
|
|
28.
|
|
RioCan Kirkland Centre
|
|
3244 Jean-Yves
|
|
Kirkland
|
|
QC
|
|
H9J 2R6 |
|
|
29.
|
|
Trinity Commons
|
|
190 Great Lakes Drive, Block E
|
|
Brampton
|
|
ON
|
|
L6R 2K7 |
|
|
30.
|
|
Heartland Town Centre
|
|
5950 Rodeo Drive
|
|
Mississauga
|
|
ON
|
|
L5R 3V6 |
|
|
31.
|
|
RioCan Colossus Centre
|
|
55 Colossus Drive, Bldg H
|
|
Vaughan
|
|
ON
|
|
L4L 9J8 |
|
|
32.
|
|
Canada One Factory Outlets
|
|
7500 Lundys Lane
|
|
Niagara Falls
|
|
ON
|
|
L2H 1G8 |
|
|
33.
|
|
Riocan Signal Hill Centre
|
|
5522 Signal Hill Centre South West
|
|
Calgary
|
|
AB
|
|
T3H 3P8 |
|
|
34.
|
|
RioCan Langley Centre
|
|
20150 Langley By-Pass
|
|
Langley
|
|
BC
|
|
V6A 9J9 |
|
|
35.
|
|
Place Montreal Trust
|
|
1500 McGill College
|
|
Montreal
|
|
QC
|
|
H3A 3J5 |
|
|
36.
|
|
Ste. Catherine Street (First Floor)
|
|
1125 Ste. Catherine West
|
|
Montreal
|
|
QC
|
|
H3B 1H8 |
|
|
37.
|
|
Ste. Catherine Street (2nd Floor)
|
|
1123 Ste-Catherine West
|
|
Montreal
|
|
QC
|
|
H3B 1H8 |
|
|
38.
|
|
Ste. Catherine Street (Basement)
|
|
1123 Ste. Catherine West
|
|
Montreal
|
|
QC
|
|
H3B 1H8 |
|
|
39.
|
|
Fairview Pointe Claire
|
|
6801 Route Trans-Canadienne
|
|
Pte-Claire
|
|
QC
|
|
H9R 5J2 |
|
|
40.
|
|
Carrefour Laval
|
|
3035 boul. Le Carrefour
|
|
Laval
|
|
QC
|
|
H7T 1C8 |
|
|
41.
|
|
St-Denis Street
|
|
4190 St-Denis Street
|
|
Montreal
|
|
QC
|
|
H2W 2M5 |
|
|
42.
|
|
Galeries DAnjou
|
|
7999 boul. Galeries dAnjou
|
|
Anjou
|
|
QC
|
|
H1M 1W9 |
|
|
43.
|
|
Les Promenades St. Bruno
|
|
217 boul. Des Promenades
|
|
St-Bruno
|
|
QC
|
|
J3V 5K3 |
|
|
44.
|
|
Rockland Shopping Centre
|
|
2305 Chemin Rockland
|
|
Ville Mont-Royal
|
|
QC
|
|
H3P 3E9 |
|
|
45.
|
|
Place Laurier
|
|
2700 Boul. Laurier
|
|
Ste-Foy
|
|
QC
|
|
G1V 2L8 |
|
|
46.
|
|
Bayshore Shopping Centre
|
|
100 Bayshore Drive
|
|
Ottawa
|
|
ON
|
|
K2B 8C1 |
|
|
47.
|
|
St Laurent Shopping Centre
|
|
1200 St-Laurent Blvd
|
|
Ottawa
|
|
ON
|
|
K1K 3B8 |
|
|
48.
|
|
Rideau Centre
|
|
50 Rideau Street
|
|
Ottawa
|
|
ON
|
|
K1N 9J7 |
|
|
49.
|
|
Richmond Centre
|
|
6551 No. 3 Road
|
|
Richmond
|
|
BC
|
|
V6Y 1K3 |
|
|
50.
|
|
Fairview Park
|
|
2960 Kindsway Dr.
|
|
Kitchener
|
|
ON
|
|
N2C 1X1 |
|
|
51.
|
|
Lime Ridge Mall
|
|
999 Upper Wentworth St.,
|
|
Hamilton
|
|
ON
|
|
L9A 4X5 |
|
|
52.
|
|
Toronto Eaton Centre
|
|
220 Yonge Street, 2nd Level
|
|
Toronto
|
|
ON
|
|
M5B 2H1 |
|
|
53.
|
|
Square One Shopping Centre
|
|
100 City Centre Drive
|
|
Mississauga
|
|
ON
|
|
L5B 2C9 |
|
|
54.
|
|
Sherway Gardens
|
|
25 The West Mall, Unit 1915
|
|
Etobicoke
|
|
ON
|
|
M9C 1B8 |
|
|
55.
|
|
Masonville Place
|
|
1680 Richmond Street
|
|
London
|
|
ON
|
|
N6G 3Y9 |
|
|
56.
|
|
Fairview Mall
|
|
1800 Sheppard Avenue East
|
|
Toronto
|
|
ON
|
|
M2J 5A7 |
|
|
2
Schedule 3.05 B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination / |
|
|
|
|
|
|
|
|
|
|
Postal |
|
Assignment |
No. |
|
Mall Name: |
|
Address: |
|
City: |
|
Province: |
|
Code: |
|
Date, if any |
57.
|
|
Yorkdale Shopping Centre
|
|
3401 Dufferin Street Unit 142
|
|
Toronto
|
|
ON
|
|
M6A 2T9 |
|
|
58.
|
|
Yorkdale Shopping Centre
|
|
3401 Dufferin Street Unit 160
|
|
Toronto
|
|
ON
|
|
M6A 2T9 |
|
|
59.
|
|
West Edmonton Mall
|
|
8882-170th Street
|
|
Edmonton
|
|
AB
|
|
T5T 4M2 |
|
|
60.
|
|
Chinook Centre (will be cancelled once new store is ready)
|
|
6455 Macleod Trail South, #159
|
|
Calgary
|
|
AB
|
|
T2H 0K9 |
|
|
61.
|
|
Market Mall
|
|
3625 Shaganappi Trail N.W.
|
|
Calgary
|
|
AB
|
|
T3A 0E2 |
|
|
62.
|
|
Orchard Park Shopping Centre
|
|
2271 Harvey Avenue
|
|
Kelowna
|
|
BC
|
|
V1Y 6H2 |
|
|
63.
|
|
SmartCentres Cambridge
|
|
60 Pinebush Road
|
|
Cambridge
|
|
ON
|
|
N1R 8K5 |
|
|
64.
|
|
Pacific Centre
|
|
702 West Georgia St.
|
|
Vancouver
|
|
BC
|
|
V7T 1A1 |
|
|
65.
|
|
Metropolis at Metrotown
|
|
4800 Kingsway
|
|
Burnaby
|
|
BC
|
|
V5H 4J2 |
|
|
66.
|
|
Robson Street
|
|
1119 Robson Street
|
|
Vancouver
|
|
BC
|
|
V6E 1B5 |
|
|
67.
|
|
Carrefour de la Rive Sud
|
|
582 Chemin de Touraine
|
|
Boucherville
|
|
QC
|
|
J4B 5E4 |
|
|
68.
|
|
Les Galeries de Lanaudiere
|
|
492 Montée des Pionniers
|
|
Lachenaie
|
|
QC
|
|
J6V 1N9 |
|
|
69.
|
|
Place Rosemere
|
|
401 Labelle Boulevard
|
|
Rosemere
|
|
QC
|
|
J7A 3T2 |
|
|
70.
|
|
Mega Centre Notre-Dame
|
|
2190, Autoroute Chomedey
|
|
Laval
|
|
QC
|
|
H7X 4G8 |
|
|
71.
|
|
Mega Centre Lebourgneuf
|
|
200 Rue Bouvier
|
|
Quebec
|
|
QC
|
|
G2J 1R8 |
|
|
72.
|
|
RioCan Sainte Foy
|
|
1453 Jules Verne
|
|
Ste-Foy
|
|
QC
|
|
G2G 2R8 |
|
|
73.
|
|
RioCan Centre Kingston
|
|
616 Gardiners Road
|
|
Kingston
|
|
ON
|
|
K7M 3X9 |
|
|
74.
|
|
RioCan Merivale Place
|
|
1651 Merivale Road
|
|
Nepean
|
|
ON
|
|
K2G 3K2 |
|
|
75.
|
|
Kanata Entertainment Centrum
|
|
655 Kanata Avenue
|
|
Kanata
|
|
ON
|
|
K2T 1H6 |
|
|
76.
|
|
Silver City Centre
|
|
2280 City Park Drive
|
|
Gloucester
|
|
ON
|
|
K1J 1J6 |
|
|
77.
|
|
Scarborough Town Centre
|
|
300 Borough Drive
|
|
Scarborough
|
|
ON
|
|
M6A 3A1 |
|
|
78.
|
|
Green Lane Centre
|
|
18166 Yonge St., Bldg. A
|
|
Newmarket
|
|
ON
|
|
L3Y 4V8 |
|
|
79.
|
|
RioCan Harwood Centre
|
|
20 Kingston Road West
|
|
Ajax
|
|
ON
|
|
L1T4K8 |
|
|
80.
|
|
Wellington Commons
|
|
1230 Wellington Road
|
|
London
|
|
ON
|
|
N6E 1M3 |
|
|
81.
|
|
Vaughan Mills
|
|
1 Bass Pro Mills
|
|
Vaughan
|
|
ON
|
|
L4K 5W4 |
|
|
82.
|
|
Hillcrest Mall
|
|
9350 Yonge Street
|
|
Richmond Hill
|
|
ON
|
|
L4C 5G2 |
|
|
83.
|
|
Place du Royaume
|
|
1401 Talbot Boulevard
|
|
Chicoutimi
|
|
QC
|
|
G7H 5N6 |
|
|
84.
|
|
Devonshire Mall
|
|
3100 Howard Avenue
|
|
Windsor
|
|
ON
|
|
N8X 3Y8 |
|
|
85.
|
|
SmartCentres Kenaston
|
|
1589 Kenaston Blvd
|
|
Winnipeg
|
|
MA
|
|
R3P 2N3 |
|
|
86.
|
|
South Edmonton Common
|
|
2019, 99th Street North West
|
|
Edmonton
|
|
AB
|
|
T6N 1M1 |
|
|
87.
|
|
Skyview Power Centre
|
|
13666 137th Avenue
|
|
Edmonton
|
|
AB
|
|
T5L 5G6 |
|
|
88.
|
|
Royal Oak Centre
|
|
8888 Country Hills Blvd NW
|
|
Calgary
|
|
AB
|
|
T3G 5T4
|
|
To be terminated 9/30/10 |
89.
|
|
SmartCentres Queensborough
|
|
805 Boyd Street
|
|
New Westminster
|
|
BC
|
|
V3M 5X2 |
|
|
90.
|
|
Le Mail Carnaval
|
|
5000 Boulevard Taschereau
|
|
Greenfield Park
|
|
QC
|
|
J4V 3M3 |
|
|
3
Schedule 3.05 B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination / |
|
|
|
|
|
|
|
|
|
|
Postal |
|
Assignment |
No. |
|
Mall Name: |
|
Address: |
|
City: |
|
Province: |
|
Code: |
|
Date, if any |
91.
|
|
Les Rivieres
|
|
4125 Boul. Des Forges, # L7
|
|
Trois-Rivieres
|
|
QC
|
|
G8Y 1W1 |
|
|
92.
|
|
South Trail Crossing
|
|
4307 130th Ave. South East
|
|
Calgary
|
|
AB
|
|
T2Z 3V8 |
|
|
93.
|
|
Midtown Plaza
|
|
201, 1 Ave. S.
|
|
Saskatoon
|
|
SC
|
|
S7K 1J9 |
|
|
94.
|
|
Deerfoot Outlet Mall
|
|
901 64 Ave. N.E.
|
|
Calgary
|
|
AB
|
|
T2E 7P4 |
|
|
95.
|
|
The Shops at Don Mills
|
|
24 Karl Fraser Road #J006A & J007
|
|
Toronto
|
|
ON
|
|
M3C 0E8 |
|
|
96.
|
|
Mega Centre Vaudreuil
|
|
3150 Boulevard de la Gare
|
|
Vaudreuil
|
|
QC
|
|
J7V 8W5 |
|
|
97.
|
|
Rockland Shopping Centre
|
|
2305 Chemin Rockland
|
|
Ville Mt-Royal
|
|
QC
|
|
H3P 3E9 |
|
|
98.
|
|
RioCan Beacon Hill
|
|
11826 Sarcee Trail NW
|
|
Calgary
|
|
AB
|
|
T3R 0A1 |
|
|
99.
|
|
Eglinton Town Centre
|
|
6 Lebovic Avenue
|
|
Scarborough
|
|
ON
|
|
M1L 4V9 |
|
|
100.
|
|
Woodgrove Centre
|
|
6631 Island Hwy. N.
|
|
Nanaimo
|
|
BC
|
|
V9T 4T7 |
|
|
101.
|
|
Scarborough Town Centre
|
|
300 Borough Drive
|
|
Scarborough
|
|
ON
|
|
M1P 4P5 |
|
|
102.
|
|
Pen Centre
|
|
221 Glendale Avenue
|
|
St-Catharines
|
|
ON
|
|
L2T 2K9 |
|
|
103.
|
|
Dixie Outlet Mall
|
|
1250 South Service Road
|
|
Mississauga
|
|
ON
|
|
L5E 1V4 |
|
|
104.
|
|
Milton Crossroads West Shopping Centre
|
|
1180 Steeles Ave. W. #L1 & L2
|
|
Milton
|
|
ON
|
|
L9T 6C8 |
|
|
105.
|
|
CrossIron Mills
|
|
261055 CrossIron Boulvard #275
|
|
Rocky View
|
|
AB
|
|
T4A 0G3 |
|
|
106.
|
|
Promenades Tremblant
|
|
255 rue De LAulnaie #202
|
|
Mont-Tremblant
|
|
QC
|
|
J8E 0E5 |
|
|
107.
|
|
Factoreries St-Sauveur
|
|
180B Chemin du Lac Millette
|
|
St-Sauveur
|
|
QC
|
|
J0R 1R6 |
|
|
108.
|
|
South Point Exchange
|
|
15057 32nd Avenue, Unit #920
|
|
South Surrey
|
|
BC
|
|
V4P 0A2 |
|
|
109.
|
|
Queen Street
|
|
364 Queen Street West
|
|
Toronto
|
|
ON
|
|
M5V 2A2 |
|
|
110.
|
|
Quartiers Dix30
|
|
9405 Leduc, #L9H
|
|
Brossard
|
|
QC
|
|
J4Y 0A5 |
|
|
111.
|
|
Georgian Mall
|
|
509 Bayfield Street
|
|
Barrie
|
|
ON
|
|
L4M 4Z8 |
|
|
112.
|
|
Millstream village
|
|
2401 A Millstream Road
|
|
Victoria
|
|
BC
|
|
V9B 3R5 |
|
|
113.
|
|
Le Carrefour Champêtre Bromont
|
|
90 Boulevard Le Carrefour, Suite 200
|
|
Bromont
|
|
QC
|
|
J2L 3L1 |
|
|
114.
|
|
The Promenade Shopping Centre
|
|
1 Promenade Circle
|
|
Thornhill
|
|
ON
|
|
L4J 4P8 |
|
|
115.
|
|
Les Rivieres
|
|
4125 Boul. Des Forges
|
|
Trois-Rivieres
|
|
QC
|
|
G8Y 1W1 |
|
|
116.
|
|
Stone Road Mall
|
|
435 Stone Road
|
|
Guelph
|
|
ON
|
|
N1G 2X6 |
|
|
117.
|
|
Oakville Place
|
|
240 Leighland Avenue
|
|
Oakville
|
|
ON
|
|
L6H 3H6 |
|
|
118.
|
|
Cookstown Manufacturers Outlet Mall
|
|
3311 Simcoe Road 89
|
|
Cookstown
|
|
ON
|
|
L0L 1L0 |
|
|
119.
|
|
Dartmouth Crossing
|
|
37 Hector Gate
|
|
Dartmouth
|
|
NS
|
|
B3B 0C1 |
|
|
120.
|
|
Champlain Place
|
|
477 Paul Street, Unit P-002
|
|
Dieppe
|
|
NB
|
|
E1A 4X5 |
|
|
121.
|
|
Les Galeries de la Capitale
|
|
5401 Boul. Des Galeries, Unit 159
|
|
Quebec
|
|
QC
|
|
G2K 1N4 |
|
|
122.
|
|
Polo Park
|
|
1485 Portage Avenue, Unit # L171B
|
|
Winnipeg
|
|
MA
|
|
R3G 0W4 |
|
|
4
Schedule 3.05 B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination / |
|
|
|
|
|
|
|
|
|
|
Postal |
|
Assignment |
No. |
|
Mall Name: |
|
Address: |
|
City: |
|
Province: |
|
Code: |
|
Date, if any |
123.
|
|
Upper Canada Mall
|
|
17600 Yonge Street
|
|
New Market
|
|
ON
|
|
L3Y 4Z1 |
|
|
124.
|
|
Carrefour Laval
|
|
3035 boul. Le Carrefour, Unit J008A
|
|
Laval
|
|
QC
|
|
H7T 1C8 |
|
|
125.
|
|
Square One Shopping Centre
|
|
100 City Centre Drive, Unit 2-104
|
|
Mississauga
|
|
ON
|
|
L5B 2C9 |
|
|
126.
|
|
Yorkdale Shopping Centre
|
|
3401 Dufferin Street, Unit 85
|
|
Toronto
|
|
ON
|
|
M6A 2T9 |
|
|
127.
|
|
Montreal Eaton Centre
|
|
705 rue Sainte-Catherine Ouest, Units 3121 & 4111A
|
|
Montreal
|
|
QC
|
|
H3B 4G5 |
|
|
128.
|
|
Rideau Centre
|
|
50 Rideau Street, Unit 256
|
|
Ottawa
|
|
ON
|
|
K1N 9J7 |
|
|
129.
|
|
Granville Street
|
|
2723 Granville Street
|
|
Vancouver
|
|
BC
|
|
V6H 3J1 |
|
|
130.
|
|
West Edmonton Mall
|
|
8882 170th Street, Unit L115
|
|
Edmonton
|
|
AB
|
|
T5T 4M2 |
|
|
131.
|
|
The Promenade Shopping Centre
|
|
1 Promenade Circle, Unit 0246B
|
|
Thornhill
|
|
ON
|
|
L4J 4P8 |
|
|
132.
|
|
Polo Park
|
|
1485 Portage Ave., Unit 0226A
|
|
Winnipeg
|
|
MA
|
|
R3G 0W4 |
|
|
133.
|
|
Metropolis at Metrotown
|
|
4700 Kingsway, Unit 1185
|
|
Burnaby
|
|
BC
|
|
V5H 4M1 |
|
|
134.
|
|
Toronto Eaton Centre
|
|
220 Yonge Street, Unit B006
|
|
Toronto
|
|
ON
|
|
M5B 2H1 |
|
|
135.
|
|
905 Hodge Street
|
|
905 Hodge
|
|
St-Laurent
|
|
QC
|
|
H4N 2B3 |
|
|
136.
|
|
905 Hodge Street
|
|
905 Hodge
|
|
St-Laurent
|
|
QC
|
|
H4N 2B3 |
|
|
137.
|
|
Marcel Laurin
|
|
103 Marcel Laurin
|
|
Montreal
|
|
QC
|
|
H4N 2M3
|
|
To be terminated 8/15/10 |
138.
|
|
CrossIron Mills
|
|
261055 CrossIron Boulevard, Unit 305
|
|
Rocky View
|
|
AB
|
|
T4A 0G3 |
|
|
139.
|
|
Smartcentres Gatineau
|
|
79, boulevard de La Gappe, Unit C6
|
|
Gatineau
|
|
QC
|
|
J8T 0B5 |
|
|
140.
|
|
Chinook Centre (relocation in 2010)
|
|
6455 Macleod Trail South, Unit 0271
|
|
Calgary
|
|
AB
|
|
T2H 0K9 |
|
|
141.
|
|
Riocan Signal Hill Centre(1)
|
|
5470 Signal Hill Centre South West, Unit E5470
|
|
Calgary
|
|
AB
|
|
T3H 3P8 |
|
|
142.
|
|
Queen Street(1)
|
|
356 Queen Street
|
|
Toronto
|
|
ON
|
|
M5V 2A2 |
|
|
143.
|
|
McLaughlin Road(1)
|
|
6185 McLaughlin Road
|
|
Mississauga
|
|
ON
|
|
L5R 3W7 |
|
|
144.
|
|
Carrefour Laval(2)
|
|
3035 boul. Le Carrefour, Unit SD 07S
|
|
Laval
|
|
QC
|
|
H7T 1C8 |
|
|
145.
|
|
Sherway Gardens(2)
|
|
25 The West Mall, Unit s125
|
|
Etobicoke
|
|
ON
|
|
M9C 1B8 |
|
|
146.
|
|
Chinook Centre(2)
|
|
6455 Macleod Trail South, Unit 929
|
|
Calgary
|
|
AB
|
|
T2H 0K9 |
|
|
5
Schedule 3.05 B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Termination / |
|
|
|
|
|
|
|
|
|
|
Postal |
|
Assignment |
No. |
|
Mall Name: |
|
Address: |
|
City: |
|
Province: |
|
Code: |
|
Date, if any |
147.
|
|
Rideau Centre(2)
|
|
50 Rideau Street, Unit S057
|
|
Ottawa
|
|
ON
|
|
K1N 9J7 |
|
|
148.
|
|
Place Montreal Trust(2)
|
|
1500 McGill College, Unit S538
|
|
Montreal
|
|
QC
|
|
H3A 3J5 |
|
|
149.
|
|
Lime Ridge Mall(2)
|
|
999 Upper Wentworth St., Unit S402
|
|
Hamilton
|
|
ON
|
|
L9A 4X5 |
|
|
150.
|
|
Les Rivieres(2)
|
|
4125 Boul. Des Forges, # L7
|
|
Trois-Rivieres
|
|
QC
|
|
G8Y 1W1 |
|
|
151.
|
|
Pacific Centre(2)
|
|
702 West Georgia St., Unit P202 Cage 19
|
|
Vancouver
|
|
BC
|
|
V7T 1A1 |
|
|
152.
|
|
Les Promenades St. Bruno(2)
|
|
217 boul. Des Promenades, Unit S208C
|
|
St-Bruno
|
|
QC
|
|
J3V 5K3 |
|
|
153.
|
|
Scarborough Town Centre(2)
|
|
300 Borough Drive, Unit 879A
|
|
Scarborough
|
|
ON
|
|
M6A 3A1 |
|
|
154.
|
|
Yorkdale Shopping Centre(2)
|
|
3401 Dufferin Street, Unit 857
|
|
Toronto
|
|
ON
|
|
M6A 2T9 |
|
|
155.
|
|
Midtown Plaza(2)
|
|
201, 1 Ave. South, Unit S247
|
|
Saskatoon
|
|
SC
|
|
S7K 1J9 |
|
|
156.
|
|
Square One Shopping Centre(2)
|
|
100 City Centre Drive, Unit S-109
|
|
Mississauga
|
|
ON
|
|
L5B 2C9 |
|
|
157.
|
|
Galeries DAnjou(2)
|
|
7999 boul. Galeries dAnjou, Unit S003
|
|
Anjou
|
|
QC
|
|
H1M 1W9 |
|
|
158.
|
|
Yorkdale Shopping Centre(2)
|
|
3401 Dufferin Street, Unit 1002
|
|
Toronto
|
|
ON
|
|
M6A 2T9 |
|
|
159.
|
|
Metropolis at Metrotown(2)
|
|
4700 Kingsway, Unit S12
|
|
Burnaby
|
|
BC
|
|
V5H 4M1 |
|
|
160.
|
|
Champlain Place(2)
|
|
477 Paul Street, Unit P-002
|
|
Dieppe
|
|
NB
|
|
E1A 4X5 |
|
|
161.
|
|
Toronto Eaton Centre(2)
|
|
220 Yonge Street, Unit R020
|
|
Toronto
|
|
ON
|
|
M5B 2H1 |
|
|
162.
|
|
Park Royal Shopping Centre(2)
|
|
2002 Park Royal South, Unit 1078
|
|
West Vancouver
|
|
BC
|
|
V7T 2W4
|
|
To be terminated once store is assigned. This is external storage space outside the Mall. |
163.
|
|
Uptown
|
|
3500 Uptown Boulevard, Unit 107
|
|
Victoria
|
|
BC
|
|
V8Z OB9
|
|
Lease subject to waiver of all conditions |
164.
|
|
Yonge & Eglington
|
|
2529 2533 Yonge Street
|
|
Toronto
|
|
ON
|
|
M4P 2H9 |
|
|
6
Schedule 3.05 B
|
|
|
Notes: |
|
Note that all leases to be assigned on undetermined dates will be assigned no later than October
15, 2010.
|
|
|
|
Note that, with respect to the leases to be assigned, the related Personal Property (as such term
is defined in the No Interest Letter delivered by the US Collateral Agent and the Canadian
Collateral Agent on or about February 10, 2010) at these premises will also be assigned.
|
|
(1) |
|
Note that these are subleased. |
|
(2) |
|
Note that these are storage leases. |
7
Schedule 3.05 B
2. Mexx Modenhandels GmbH (Property leases in Germany)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
No. |
|
Store No: |
|
Address: |
|
Location: |
|
City: |
|
Postal Code: |
|
1.
|
|
|
70513 |
|
|
Annastrasse 17
|
|
ground floor, basement(s), first floor, attic
|
|
Augsburg
|
|
|
86150 |
|
2.
|
|
|
70604 |
|
|
Schlossstrasse 34-36/Grunewaldstrasse 1-3
|
|
Unit 0.10.5
|
|
Berlin Steglitz
|
|
|
12163 |
|
3.
|
|
|
70144 |
|
|
Potsdammer Platz Arkaden Block B
|
|
Shop 12, basement
|
|
Berlin Potsdamer LS
|
|
|
10785 |
|
4.
|
|
|
71037 |
|
|
Am Bursigturm 2
|
|
ground floor (unit 18/19)
|
|
Berlin-Hallen am Borsigturm
|
|
|
13507 |
|
5.
|
|
|
70482 |
|
|
Wilmersdorferstrasse 109-111
|
|
first floor
|
|
Berlin P&C Kant Center
|
|
|
10627 |
|
6.
|
|
|
70237 |
|
|
Marktbrucke 4
|
|
ground floor, first floor
|
|
Bonn LS
|
|
|
53111 |
|
7.
|
|
|
70608 |
|
|
Damm 17
|
|
ground floor, first floor
|
|
Braunschweig
|
|
|
38100 |
|
8.
|
|
|
70980 |
|
|
Space Park Plaza 3
|
|
Unit A-13
|
|
Bremen
|
|
|
28237 |
|
9.
|
|
|
70433 |
|
|
Westenhellweg 55-57
|
|
basement, ground floor
|
|
Dortmund Fam
|
|
|
44137 |
|
10.
|
|
|
70308 |
|
|
Webergasse 1 Unit 104
|
|
groundfloor
|
|
Dresden LS
|
|
|
01067 |
|
11.
|
|
|
70256 |
|
|
Schadowstrasse 39
|
|
basement, ground floor, first floor
|
|
Dusseldorf Tuchth. Fam
|
|
|
40212 |
|
12. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13.
|
|
|
71012 |
|
|
Limbecker Platz 1
|
|
ground floor (unit 01112007)
|
|
Essen Limbecker Platz
|
|
|
45127 |
|
14.
|
|
|
70209 |
|
|
Zeil 117
|
|
basement, ground floor, first floor
|
|
Frankfurt am Main Fam
|
|
|
06313 |
|
15.
|
|
|
70606 |
|
|
Am Einkaufcentrum
|
|
Unit 0.89 and 0.92
|
|
Guntersdorf Nova Eventis
|
|
|
06254 |
|
16.
|
|
|
70204 |
|
|
Osdorfer Landstrasse 131
|
|
Unit 29a
|
|
Hamburg Brechtstr LS
|
|
|
22609 |
|
17.
|
|
|
70236 |
|
|
Gerhofstrasse 1-3
|
|
groundfloor, firstfloor
|
|
Hamburg Gerh.st Fam
|
|
|
20354 |
|
18.
|
|
|
70773 |
|
|
Heegbarg 33
|
|
Unit 137, groundfloor
|
|
Hamburg-Alstertal
|
|
|
22391 |
|
19.
|
|
|
70935 |
|
|
Ernst- August- Platz 2
|
|
ground floor, unit 00.S.41 and 00.L.02.1
|
|
Hannover
|
|
|
30159 |
|
20.
|
|
|
70189 |
|
|
Kaiserstrasse 143/145
|
|
not specified, for details see enclosed map
|
|
Karlsruhe LS
|
|
|
76133 |
|
21.
|
|
|
70784 |
|
|
Schilderstrasse 46-48
|
|
ground floor, first floor
|
|
Koln
|
|
|
50667 |
|
22.
|
|
|
70157 |
|
|
Hohestrasse 115/115A
|
|
basement, ground floor, first floor
|
|
Koln Hohestr Fam
|
|
|
50667 |
|
23.
|
|
|
70306 |
|
|
Aachener Str. 1253
|
|
Unit 1.26 and 1.27
|
|
Koln RheinCenter Ki
|
|
|
50858 |
|
1
Schedule 3.05 B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
No. |
|
Store No: |
|
Address: |
|
Location: |
|
City: |
|
Postal Code: |
|
24.
|
|
|
70896 |
|
|
Willy-Brandt-Platz 7
|
|
Unit 0004U and 0075AU, basement
|
|
Leipzig
|
|
|
04109 |
|
25.
|
|
|
70934 |
|
|
Peterstrasse 16
|
|
basement, ground floor
|
|
Leipzig Peterstrasse
|
|
|
04109 |
|
26.
|
|
|
70689 |
|
|
Breite strasse 29
|
|
ground floor, first floor
|
|
Lubeck
|
|
|
23552 |
|
27.
|
|
|
70567 |
|
|
O6.5 Planken
|
|
ground floor, first floor
|
|
Mannheim
|
|
|
68161 |
|
28.
|
|
|
70214 |
|
|
Willy-Brandt-Platz 5
|
|
Unit 0-19
|
|
Munich LS
|
|
|
81829 |
|
29.
|
|
|
70895 |
|
|
OEZ, Hanauer Str. 68
|
|
Unit 00-460 ground floor
|
|
Munich OEZ
|
|
|
80993 |
|
30.
|
|
|
70307 |
|
|
Shop 1/365, Hanauerstrasse 68
|
|
Unit 1/365
|
|
Munich Olympia Ki
|
|
|
80993 |
|
31.
|
|
|
70507 |
|
|
Ludgeristrasse 32-34
|
|
ground floor
|
|
Munster
|
|
|
48143 |
|
32.
|
|
|
70107 |
|
|
Breite Gasse 88
|
|
ground floor, first floor
|
|
Nurnberg LS
|
|
|
90402 |
|
33.
|
|
|
70091 |
|
|
Centro Allee 197
|
|
ground floor
|
|
Oberhausen Centro Ki
|
|
|
46047 |
|
34.
|
|
|
70188 |
|
|
Centro Allee 55
|
|
ground floor
|
|
Oberhausen Centro LS
|
|
|
46047 |
|
35.
|
|
|
70443 |
|
|
Rhein-Neckar-Zentrum Robert Schumanstrasse 1
|
|
ground floor
|
|
Rhein Neckar Z. Fam Viernheim
|
|
|
68519 |
|
36.
|
|
|
70400 |
|
|
Tillsitterstrasse 15
|
|
ground floor
|
|
Sindelfingen WBo
|
|
|
71065 |
|
37.
|
|
|
70605 |
|
|
Koningstrasse 58
|
|
ground floor, first floor
|
|
Stuttgart
|
|
|
70173 |
|
38.
|
|
|
70414 |
|
|
Koningstrasse 12
|
|
first floor
|
|
Stuttgart LS P&C
|
|
|
70173 |
|
39.
|
|
|
71032 |
|
|
Guntenbergstrasse 5
|
|
second floor (unit 01.46)
|
|
Weiterstadt
|
|
|
64331 |
|
40.
|
|
|
70979 |
|
|
Alte Freiheit 9
|
|
ground floor (unit 01.66)
|
|
Wuppertal
|
|
|
42103 |
|
41.
|
|
|
70238 |
|
|
Alter Spandauer Weg 1
|
|
ground floor, unit 68, 69, 70
|
|
Berlin Wusterm. FO
|
|
|
14641 |
|
42.
|
|
|
70560 |
|
|
Bremer Strasse 115-117
|
|
ground floor, unit B 1
|
|
Bremen (Permanent location)
|
|
|
28203 |
|
43.
|
|
|
70508 |
|
|
Otto-Hahn-Str. 1
|
|
unit 56-57
|
|
Ingolstadt FO
|
|
|
85055 |
|
44.
|
|
|
70239 |
|
|
Friedrich Ebert Strasse 9-13
|
|
ground floor
|
|
Korschenbroich FO
|
|
|
41352 |
|
45.
|
|
|
70295 |
|
|
Reyerhutterstrasse 45-47
|
|
ground floor
|
|
M.Gladbach FO
|
|
|
41065 |
|
46.
|
|
|
70462 |
|
|
Industriestrasse 59
|
|
ground floor
|
|
Mulheim Karlich FO
|
|
|
56218 |
|
47.
|
|
|
70836 |
|
|
Laurenzstrasse 51
|
|
ground floor/first floor ? unit 104-105
|
|
Ochtrup FO
|
|
|
48607 |
|
48.
|
|
|
70904 |
|
|
Schützenstrasse 50
|
|
ground floor, unit 9
|
|
Radolfzell FO
|
|
|
78315 |
|
49.
|
|
|
70402 |
|
|
Almosenberg
|
|
Unit 55-56
|
|
Wertheim FO
|
|
|
97877 |
|
50.
|
|
|
70837 |
|
|
An der Vorburg 1
|
|
ground floor, unit 44
|
|
Wolfsburg FO
|
|
|
38440 |
|
51.
|
|
|
70998 |
|
|
Londoner Bogen 10 90
|
|
ground floor, unit 32
|
|
Zweibrucken FO
|
|
|
66482 |
|
2
Schedule 3.05 B
3. Liz Claiborne Europe (Property lease in the Netherlands)
|
|
|
|
|
|
|
|
|
|
|
|
|
No. |
|
Store No: |
|
Address: |
|
Location: |
|
City: |
|
Postal Code: |
|
1.
|
|
|
70423 |
|
|
Piazza 25
|
|
Basement, ground floor
|
|
Eindhoven
|
|
5611 AE |
4. Mexx Nederland Retail BV (Property leases in the Netherlands)
|
|
|
|
|
|
|
|
|
|
|
|
|
No. |
|
Store No: |
|
Address: |
|
Location: |
|
City: |
|
Postal Code: |
|
1.
|
|
|
70600 |
|
|
Belfort 1
|
|
Blok 1A, unit 9 and 10, groundfloor, first floor
|
|
Almere
|
|
1315 VA |
2.
|
|
|
70016 |
|
|
Binnenhof 73
|
|
ground floor, basement (storage)
|
|
Amstelveen
|
|
1181 ZJ |
3.
|
|
|
70015 |
|
|
Gelderlandplein 2
|
|
ground floor
|
|
Amsterdam Gelderlandplein
|
|
1082 KX |
4.
|
|
|
70547 |
|
|
Laat 114-118
|
|
ground floor
|
|
Alkmaar
|
|
1811 EL |
5.
|
|
|
70314 |
|
|
Langestraat 44/46
|
|
ground floor
|
|
Amersfoort
|
|
3811 AH |
6.
|
|
|
70264 |
|
|
Mooierstraat 23
|
|
ground floor
|
|
Amersfoort
|
|
3811 EB |
7.
|
|
|
70933 |
|
|
Barteljoristraat 13-17
|
|
ground floor
|
|
Haarlem
|
|
2011 RA |
8.
|
|
|
70010 |
|
|
Roselaarplein 20-21
|
|
ground floor
|
|
Roosendaal WBo
|
|
4701 BR |
9.
|
|
|
70566 |
|
|
Museumweg 10
|
|
ground floor, first floor
|
|
Lelystad
|
|
8242 PD |
10.
|
|
|
70255 |
|
|
Achterdoelen 100-102
|
|
ground floor
|
|
Ede
|
|
6711 AV |
11.
|
|
|
70358 |
|
|
Kerkstraat 59-61
|
|
ground floor
|
|
Hilversum
|
|
1211 CL |
12.
|
|
|
70426 |
|
|
Marktlaan 13-15
|
|
ground floor
|
|
Hoofddorp
|
|
2132 DL |
13.
|
|
|
70203 |
|
|
Haarlemmerstraat 95/97
|
|
ground floor
|
|
Leiden
|
|
2312 DM |
14.
|
|
|
70265 |
|
|
Molenstraat 4
|
|
ground floor
|
|
Naaldwijk
|
|
2671 EX |
15.
|
|
|
70298 |
|
|
Prins J.F. Promenade 115
|
|
ground floor
|
|
Rijswijk
|
|
2284 DE |
16.
|
|
|
70196 |
|
|
Prins W.A. Promenade 21
|
|
ground floor
|
|
Rijswijk
|
|
2284 DH |
17.
|
|
|
70777 |
|
|
Hamstraat 12
|
|
ground floor
|
|
Roermond
|
|
6041 HB |
18.
|
|
|
70299 |
|
|
Zuidplein Hoog 789
|
|
ground floor
|
|
Rotterdam Zuidplein
|
|
3083 BJ |
19.
|
|
|
70410 |
|
|
Hoofdstraat 52-56
|
|
ground floor
|
|
Veenendaal
|
|
3901 AR |
20.
|
|
|
70199 |
|
|
Liesveld 132
|
|
ground floor (+ storage)
|
|
Vlaardingen
|
|
3131 CM |
21.
|
|
|
71002 |
|
|
Woensel 275
|
|
ground floor and first floor
|
|
Woensel
|
|
5625 AG |
3
Schedule 3.05 B
5. Mexx Nederland BV (Property leases in the Netherlands)
|
|
|
|
|
|
|
|
|
|
|
|
|
No. |
|
Store No: |
|
Address: |
|
Location: |
|
City: |
|
Postal Code: |
|
1.
|
|
|
70170 |
|
|
Kalverstraat 178
|
|
ground floor
|
|
Amsterdam Kalverstraat LS
|
|
1012 XB |
2.
|
|
|
70001 |
|
|
PC Hooftstraat 118-120
|
|
ground floor
|
|
Amsterdam PC Hooft LS
|
|
1071 CD |
3.
|
|
|
70013 |
|
|
Aankomstpassage 28
|
|
ground floor
|
|
Amsterdam Schiphol LS
|
|
1118 AX |
4.
|
|
|
70129 |
|
|
Ketelstraat 14
|
|
ground floor
|
|
Arnhem LS
|
|
6811 CX |
5.
|
|
|
70424 |
|
|
Wouwsestraat 2
|
|
ground floor, first and second floor
|
|
Bergen op Zoom Fam
|
|
4611 PL |
6.
|
|
|
70169 |
|
|
Ginnekenstraat 83/85
|
|
ground floor
|
|
Breda Fam
|
|
4811 JE |
7.
|
|
|
70302 |
|
|
Arena 175
|
|
ground floor
|
|
Den Bosch Ki
|
|
5211 XT |
8.
|
|
|
70128 |
|
|
Hoge Steenweg 25
|
|
ground floor
|
|
Den Bosch LS
|
|
5211 JN |
9.
|
|
|
70211 |
|
|
Wagenstraat 14
|
|
ground floor, first, second and third floor
|
|
Den Haag Fam
|
|
2512 AX |
10.
|
|
|
70297 |
|
|
Kleiweg 25
|
|
ground floor
|
|
Gouda
|
|
2801 GD |
11.
|
|
|
70092 |
|
|
Corio Centrum 27, Unit 28
|
|
ground floor
|
|
Heerlen LS
|
|
6411 LX |
12.
|
|
|
70303 |
|
|
Mincklerstraat 20, 6211 GN
|
|
basement, ground floor
|
|
Maastricht Mega
|
|
6211 GX |
13.
|
|
|
70296 |
|
|
Steenweg 7
|
|
ground floor
|
|
Roermond
|
|
6041 EV |
14.
|
|
|
70018 |
|
|
Lijnbaan 83
|
|
basement, ground floor
|
|
Rotterdam Lijnbaan Fam
|
|
4701 BR |
15.
|
|
|
70115 |
|
|
Oudegracht 91
|
|
ground floor
|
|
Utrecht Ki
|
|
5038 BD |
16.
|
|
|
70161 |
|
|
Oudegracht 129-139a
|
|
ground floor
|
|
Utrecht LS
|
|
3511 AD |
17.
|
|
|
70002 |
|
|
Nieuwe Marktpassage 25
|
|
N/A
|
|
Gouda*
|
|
25, 2801HW |
6. Westcoast Contempo Fashions Limited (Property leases in Canada)
|
|
|
No. |
|
Address |
1.
|
|
6700 Southridge Drive, Burnaby, British Columbia V3N 5G3 |
2.
|
|
555 Chabanel Street West, Suite M-04 and part of Suite M-20, Montreal, Quebec |
3.
|
|
101 65 Wingold Ave, Toronto, Ontario M6B 1P8(sublease) |
7. Liz Claiborne Europe (Property leases in United Kingdom)
|
|
|
No. |
|
Address |
1.
|
|
27 Bruton St., London W1J6QN England |
2.
|
|
The Hartnell Building, 1st floor, 26 Bruton St., London W1J6QL England |
|
|
|
* |
|
Mexx Nederland BV subleases the store to the HSC
partner. |
4
Schedule 3.05 B
8. Juicy Couture Canada Inc. (Property lease in Canada)
|
|
|
No. |
|
Address |
1.
|
|
Yorkdale Shopping Center, 3401 Dufferin Street, Suite 61 Toronto ON M6A 2T9** |
2.
|
|
Vaughan Mills, 1 Bass Pro Mills Drive, Space #202, Vaughan, ON L4K 5W4 |
9. Juicy Couture Ireland Limited (Property lease in Ireland)
|
|
|
No. |
|
Address |
1.
|
|
10a Kildare Village, Nurney Road, Kildare Town, County Kildare, Ireland |
10. Juicy Couture Europe Limited (Property leases in United Kingdom)
|
|
|
No. |
|
Address |
1.
|
|
Unit U107 Upper Level, West Mall, Bluewater,Dartford Kent, UK |
2.
|
|
Unit 20 A, Bicester Village , Bicester, Oxfordshire, England** |
|
|
|
Note: |
|
** |
|
Leases on these locations are partially executed by the tenant entities and the tenant entities
are waiting for the fully executed leases back from the landlords. |
5
Schedule 3.05 B
Other Leased Real Property US
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
|
|
1441 Broadway (Sublease to IDA)
|
|
1441 Broadway (portion of space)
|
|
|
|
New York
|
|
NY
|
|
|
10018 |
|
|
LCI Facilities
|
|
NYC Industrial Development Agency (Sub Tenant)
|
|
Liz Claiborne, Inc. (Sub Landlord) |
|
|
1441 Broadway (Sub-Sublease from IDA)
|
|
1441 Broadway (portion of space)
|
|
|
|
New York
|
|
NY
|
|
|
10018 |
|
|
LCI Facilities
|
|
Liz Claiborne, Inc. (as Lessee)
|
|
NYC Industrial Development Agency (as Lessor) |
001-57700V (FN1)
|
|
650 Boulder Drive
|
|
650 Boulder Drive
|
|
|
|
Breinigsville
|
|
PA
|
|
|
18031 |
|
|
LCI Facilities
|
|
Liz Claiborne, Inc.
|
|
Liberty Property Limited Partnership |
001-61500-14
|
|
Bill McCombs Apartment
|
|
325 Fifth Avenue
|
|
|
|
New York
|
|
NY
|
|
|
|
|
|
McCombs Apartment
|
|
Liz Claiborne, Inc.
|
|
Briji & Amita Mittal |
001-61500-2 (partially sublet)
|
|
1440 Broadway Office
|
|
1440 Broadway
|
|
|
|
New York
|
|
NY
|
|
|
10018 |
|
|
LCI Facilities
|
|
Liz Claiborne, Inc.
|
|
1440 Broadway Owner LLC |
001-61500-3 (partially sublet)
|
|
1441 Broadway
|
|
1441 Broadway
|
|
|
|
New York
|
|
NY
|
|
|
10018 |
|
|
LCI Facilities
|
|
Liz Claiborne, Inc.
|
|
Lechar Realty Corp |
001-61500-8V (FN1)
|
|
Empire State Building
|
|
350 Fifth Avenue, 16th Floor
|
|
|
|
New York
|
|
NY
|
|
|
10118 |
|
|
Monet Facilities
|
|
Monet International, Inc.
|
|
Empire State Building Company |
001-61500-9 (LCI is a subtenant)
|
|
DKNY Jeans Office
|
|
240 West 40th Street
|
|
|
|
New York
|
|
NY
|
|
|
10018 |
|
|
DKNY Facilities
|
|
LC Libra LLC
|
|
The Donna Karan Company LLC |
006-00000V (FN1) (partially sublet)
|
|
Atlanta Showroom
|
|
260 Peachtree Street
|
|
|
|
Atlanta
|
|
GA
|
|
|
30303 |
|
|
LC Service Company
|
|
L.C. Service Company, Inc.
|
|
260 Properties, L.L.C. |
085-51000V (FN1)
|
|
120 Herrod Boulevard (Cosmetics)
|
|
120 Herrod Boulevard
|
|
|
|
Dayton
|
|
NJ
|
|
|
8810 |
|
|
LCI Facilities
|
|
Liz Claiborne Cosmetics, Inc.
|
|
Forsgate Industrial Complex |
102-05700
|
|
Interstate Shopping Center
|
|
Route 17 South
|
|
|
|
Ramsey
|
|
NJ
|
|
|
7446 |
|
|
Liz Claiborne Company Store
|
|
LCI Holdings, Inc.
|
|
Gabrellian Associates |
102-06100
|
|
Winter Park Village
|
|
400 North Orlando Avenue
|
|
|
|
Winter Park
|
|
FL
|
|
|
32789 |
|
|
Liz Claiborne Company Store
|
|
LCI Holdings, Inc.
|
|
Winter Park Town Center, Ltd. |
102-10010
|
|
Louisiana Boardwalk
|
|
380 Boardwalk Boulevard
|
|
|
|
Bossier City
|
|
LA
|
|
|
71111 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Louisiana Riverwalk, LLC |
102-10080
|
|
Round Rock Premium Outlets
|
|
4401 North IH 35
|
|
|
|
Round Rock
|
|
TX
|
|
|
78664 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Tinton Falls Urban Renewal, LLC |
102-10100
|
|
Tanger Factory Outlet Center
|
|
4840 Tanger Outlet Boulevard
|
|
|
|
Charleston
|
|
SC
|
|
|
29418 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-10110
|
|
Adirondack Outlet Mall
|
|
1454 State Route 9
|
|
|
|
Lake George
|
|
NY
|
|
|
12845 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Adirondack Factory Outlet Center, Inc. |
102-10120
|
|
Rio Grande Valley Premium Outlets
|
|
5001 E. Expressway
|
|
|
|
Mercedes
|
|
TX
|
|
|
78570 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Mercedes, L.P. |
102-10130
|
|
Orlando Outlet World
|
|
5401 West Oakridge
|
|
|
|
Orlando
|
|
FL
|
|
|
32819 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Orlando Outlet Owner LLC |
102-10140 Hybrid (FN4)
|
|
Philadelphia Premium Outlets
|
|
18 Lightcap Road
|
|
|
|
Limerick
|
|
PA
|
|
|
19464 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Chelsea Limerick Holdings LLC |
102-10150
|
|
The Outlet Shoppes at El Paso
|
|
7051 South Desert Boulevard
|
|
|
|
El Paso
|
|
TX
|
|
|
79835 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
El Paso Outlet Center, LLC |
102-10170
|
|
Louisiana Boardwalk
|
|
326 Plaza Loop
|
|
|
|
Bossier City
|
|
LA
|
|
|
71111 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Louisiana Riverwalk, LLC |
1
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
102-10220
|
|
Houston Premium Outlets
|
|
29300 Hempstead Road
|
|
|
|
Cypress
|
|
TX
|
|
|
77433 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Houston Holdings, L.P. |
102-16010 Hybrid (FN4)
|
|
Las Vegas Premium Outlets
|
|
I-15 at US 95 on Grand Central Parkway
|
|
Unit 1380
|
|
Las Vegas
|
|
NV
|
|
|
89106 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Simon/Chelsea Las Vegas Development, LLC |
102-16020 Hybrid (FN4)
|
|
Philadelphia Premium Outlets
|
|
18 Lightcap Road
|
|
|
|
Limerick
|
|
PA
|
|
|
19464 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Chelsea Limerick Holdings LLC |
102-16050
|
|
Jersey Gardens
|
|
651 Kapkowski Road
|
|
|
|
Elizabeth
|
|
NJ
|
|
|
7201 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
JG Elizabeth, LLC |
102-30100
|
|
Lake Buena Vista Factory Stores
|
|
15831 Apopka Vineland Road
|
|
|
|
Orlando
|
|
FL
|
|
|
32821 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Lake Buena Vista Joint Venture |
102-30200
|
|
Prime Outlets at St. Augustine
|
|
500 Belz Outlet Bolevard
|
|
|
|
St. Augustine
|
|
FL
|
|
|
32084 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
LVP St. Augustine Outlets LLC |
102-30300
|
|
Tanger Outlet Center
|
|
1475 North Burkhart Road
|
|
Suite B-130
|
|
Howell
|
|
MI
|
|
|
48855 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-30400
|
|
Blowing Rock Outlet Center
|
|
US Highway 321, Suite 100
|
|
|
|
Blowing Rock
|
|
NC
|
|
|
28605 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-30600 (FN6)
|
|
Prime Outlets at Hagerstown
|
|
700 Prime Outlets Blvd.
|
|
|
|
Hagerstown
|
|
MD
|
|
|
21740 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Outlet Village of Hagerstown Limited Partnership |
102-30900
|
|
WaterMark Place Outlet Center
|
|
4665 Vision Land Parkway
|
|
|
|
Bessemer
|
|
AL
|
|
|
35022 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
WaterMark Place Birmingham, LLC |
102-31000
|
|
Factory Stores at Park City
|
|
6699 North Landmark Drive
|
|
Suite L120
|
|
Park City
|
|
UT
|
|
|
84098 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
COROC/Park City L.L.C. |
102-31100
|
|
Allen Premium Outlets
|
|
820 West Stacy Road, Suite 190
|
|
|
|
Allen
|
|
TX
|
|
|
75013 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Chelsea GCA Realty Partnership, L.P. |
102-31300
|
|
Las Vegas Outlet Center
|
|
7400 Las Vegas Blvd., South
|
|
|
|
Las Vegas
|
|
NV
|
|
|
89123 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Chelsea Las Vegas Holdings LLC |
102-31500 Hybrid (FN4)
|
|
Opry Mills
|
|
168 Opry Mills Drive
|
|
|
|
Nashville
|
|
TN
|
|
|
37214 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Opry Mills Mall Limited Partnership |
102-31700
|
|
Arundel Mills
|
|
7000 Arundel Mills Circle, Suite 438
|
|
|
|
Hanover
|
|
MD
|
|
|
21076 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Arundel Mills, LP |
102-32100
|
|
Sawgrass Mills Mall
|
|
12801 West Sunrise Blvd., Suite 411
|
|
|
|
Sunrise
|
|
FL
|
|
|
33323 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Sunrise Mills (MLP) Limited Partnership |
102-32200
|
|
The Factory Stores
|
|
1500 SE East Devils Lake Road
|
|
Suite 500, Space B100
|
|
Lincoln City
|
|
OR
|
|
|
97367 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
COROC/Lincoln City L.L.C. |
102-32400
|
|
Las Americas Premium Outlets
|
|
4201 Camino de la Plaza
|
|
Suite G-138
|
|
San Diego
|
|
CA
|
|
|
92173 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Chelsea San Diego Finance, LLC |
102-32500
|
|
Great Lakes Crossings Mall
|
|
4680 Baldwin Road, Suite M-903
|
|
|
|
Auburn Hills
|
|
MI
|
|
|
48326 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Taubman Auburn Hills Associates Limited Partnership |
102-32600 Hybrid (FN4)
|
|
Hilton Head Factory Stores II
|
|
1414 Fording Island Road
|
|
|
|
Bluffton
|
|
SC
|
|
|
29910 |
|
|
Liz Claiborne / Liz Golf
|
|
LCI Holdings, Inc.
|
|
COROC/Hilton Head II, L.L.C. |
2
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
102-32700 Hybrid (FN4)
|
|
Tanger Factory Outlet Center
|
|
10819 Kings Road Unit 400
|
|
|
|
North Myrtle Beach
|
|
SC
|
|
|
29572 |
|
|
Liz Claiborne / Liz Golf
|
|
LCI Holdings, Inc.
|
|
TWMB Associates, LLC |
102-32900
|
|
The Outlets at Castle Rock
|
|
5050 Factory Shops Blvd, Space #400
|
|
|
|
Castle Rock
|
|
CO
|
|
|
80104 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Craig Realty Group Castle Rock, LLC |
102-33000
|
|
Liberty Village Premium Outlets
|
|
One Church Street
|
|
|
|
Flemington
|
|
NJ
|
|
|
8822 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-33200
|
|
The Walk
|
|
2000 Artic Avenue, Space 500
|
|
|
|
Atlantic City
|
|
NJ
|
|
|
8401 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Atlantic City Associates, LLC |
102-33300
|
|
Factory Stores at Vacaville
|
|
121-D Nut Tree Road
|
|
|
|
Vacaville
|
|
CA
|
|
|
95687 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Finance II, LLC |
102-33400
|
|
Silver Sands Factory Shops
|
|
10406 Emrald Coast Parkway West
|
|
Suite 41
|
|
Destin
|
|
FL
|
|
|
32550 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Silver Sands Joint Venture Partners II |
102-33500
|
|
Lakes Region Factory Stores
|
|
120 Laconia Road
|
|
|
|
Tilton
|
|
NH
|
|
|
3276 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
COROC/Lakes Region, L.L.C. |
102-33600
|
|
The Outlets of Hershey
|
|
31 Outlet Square
|
|
|
|
Hershey
|
|
PA
|
|
|
17033 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
FSH, Associates, LP |
102-33700
|
|
Factory Stores of America
|
|
361 Sweeney Drive
|
|
|
|
Crossville
|
|
TN
|
|
|
38555 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Finance II, LLC |
102-33800 Hybrid (FN4)
|
|
Outlets at Albertville
|
|
6415 Labeaux Avenue NE
|
|
|
|
Albertville
|
|
MN
|
|
|
55301 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-34000
|
|
Tanger Factory Outlet Center
|
|
4638 Factory Stores Blvd.
|
|
|
|
South Myrtle Beach
|
|
SC
|
|
|
29579 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
COROC/Myrtle Beach L.L.C. |
102-34100 Hybrid (FN4)
|
|
Chicago Premium Outlets
|
|
1650 Premium Outlets Blvd.
|
|
Suite 1001
|
|
Aurora
|
|
IL
|
|
|
60504 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Simon/Chelsea Chicago Development, LLC |
102-34200 Hybrid (FN4)
|
|
Jackson Outlet Village
|
|
537 Monmouth Road
|
|
Space #300
|
|
Jackson
|
|
NJ
|
|
|
8527 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-34300
|
|
Edinburgh Premium Outlets
|
|
3026 Outlet Drive
|
|
Suite B030
|
|
Edinburgh
|
|
IN
|
|
|
46124 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-34500
|
|
Horizon Outlet Center
|
|
1477 Retherferd Street
|
|
|
|
Tulare
|
|
CA
|
|
|
93274 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
PRE/Tulare (CA) LLC |
102-34700
|
|
Lake Park Outlets
|
|
5263 Mill Store Road
|
|
|
|
Lake Park
|
|
GA
|
|
|
31636 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
PRE/Lake Park (GA), LLC |
102-34900 Hybrid (FN4)
|
|
Seattle Premium Outlets
|
|
10600 Quil Ceda Blvd.
|
|
|
|
Tulalip
|
|
WA
|
|
|
98271 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-35000
|
|
Woodburn Company Stores
|
|
1001 Arney Road
|
|
|
|
Woodburn
|
|
OR
|
|
|
97071 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Craig Realty Group Woodburn, LLC |
102-35100
|
|
Columbia Gorge Premium Outlets
|
|
450 NW 257th Way
|
|
|
|
Troutdale
|
|
OR
|
|
|
97060 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Chelsea Financing Partnership, L.P. |
102-37600 Hybrid (FN4)
|
|
Aurora Premium Outlets
|
|
549 South Chillicothe Road, Suite 360
|
|
|
|
Aurora
|
|
OH
|
|
|
|
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-37700
|
|
Designer Outlet Gallery
|
|
55 Hartz Way
|
|
|
|
Secaucus
|
|
NJ
|
|
|
7094 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Secaucus Outlet Center, LLC |
102-37900
|
|
Tanger Factory Outlet Center
|
|
1770 West Main Street
|
|
|
|
Riverhead
|
|
NY
|
|
|
11901 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
3
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
102-38000
|
|
Prime Outlets at Ellenton
|
|
5105 Factory Stores Shops
|
|
|
|
Ellenton
|
|
FL
|
|
|
34222 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Gulf Coast Factory Shops Limited Partnership |
102-38100
|
|
Woodbury Common Premium Outlets
|
|
227 Red Apple Court
|
|
Route 32
|
|
Central Valley
|
|
NY
|
|
|
10917 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-38200 Hybrid (FN4)
|
|
Tanger Factory Outlet Center
|
|
4015 IH 35 South
|
|
Suite 101B
|
|
San Marcos
|
|
TX
|
|
|
78666 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-38600
|
|
The Crossings Premium Outlets
|
|
1000 Route 611
|
|
|
|
Tannersville
|
|
PA
|
|
|
18372 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Chelsea Pocono Finance, LLC |
102-38900
|
|
Orlando Outlet World
|
|
4955 International Drive
|
|
|
|
Orlando
|
|
FL
|
|
|
32819 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Orlando Outlet Owner LLC |
102-39000
|
|
Gilroy Premium Outlets
|
|
8155 Arroyo Circle
|
|
Suite A011B
|
|
Gilroy
|
|
CA
|
|
|
95020 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
Gilroy Premium Outlets, LLC |
102-39100
|
|
Wrentham Village Premium Outlets
|
|
One Premium Outlet Blvd.
|
|
|
|
Wrentham
|
|
MA
|
|
|
2093 |
|
|
DKNY
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-70200
|
|
283 US Route 1
|
|
283 US Route 1
|
|
Suite 14
|
|
Kittery
|
|
ME
|
|
|
03904-6506 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-70400
|
|
Vanity Fair Outlet Center
|
|
Reading Vanity Fair
|
|
801 Hill Avenue
|
|
Reading
|
|
PA
|
|
|
19610 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
VF Outlet, Inc. |
102-70600
|
|
Prime Outlets at Williamsburg
|
|
5699 12 Richmond Road
|
|
|
|
Williamsburg
|
|
VA
|
|
|
23188-1704 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Williamsburg Outlets, L.L.C |
102-70700
|
|
Tanger Factory Outlet Center
|
|
2601 South McKenzie Street
|
|
|
|
Foley
|
|
AL
|
|
|
36535 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
COROC/Riviera L.L.C. |
102-70800
|
|
Five Oaks
|
|
1645 Parkway, Suite #610
|
|
|
|
Sevierville
|
|
TN
|
|
|
37862 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-71000
|
|
Prime Outlets at Pleasant Prairie
|
|
11211 120th Avenue
|
|
|
|
Pleasant Prairie
|
|
WI
|
|
|
53158-1704 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Prime Outlets at Pleasant Prairie LLC |
102-71300 Hybrid (FN4)
|
|
Woodbury Common Premium Outlets
|
|
231 Red Apple Court
|
|
Route 32, Box 11
|
|
Central Valley
|
|
NY
|
|
|
10917 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P |
102-71500 Hybrid (FN4)
|
|
Prime Outlets at Queenstown
|
|
401 Outlet Center Drive
|
|
|
|
Queenstown
|
|
MD
|
|
|
21658 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Second Horizon Group Limited Partnership |
102-71600
|
|
Prime Outlets at Birch Run
|
|
12154 Beyer Road #330
|
|
|
|
Birch Run
|
|
MI
|
|
|
48415 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Birch Run Outlets II, LLC |
102-71800
|
|
Gilroy Premium Outlets
|
|
8155-1 Arroyo Circle, Store 1
|
|
|
|
Gilroy
|
|
CA
|
|
|
95020 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Gilroy Premium Outlets, LLC |
102-72100
|
|
Tanger Factory Outlet Center
|
|
Tanger Drive, Suite 101
|
|
|
|
Williamsburg
|
|
IA
|
|
|
52361 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties, LP. |
102-72400 (FN5)
|
|
Casa Grande Outlet Center
|
|
2300 East Tanger Dr. Building A
|
|
|
|
Casa Grande
|
|
AZ
|
|
|
85222 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
All State Associates of Pinal XV, LLC |
102-72700
|
|
Prime Outlets at Calhoun
|
|
455 Belwood Road
|
|
|
|
Calhoun
|
|
GA
|
|
|
30701 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Calhoun Outlets LLC |
102-73000 Hybrid (FN4)
|
|
Tanger Factory Outlet Center
|
|
4015 IH 35 South, Suite 101
|
|
|
|
San Marcos
|
|
TX
|
|
|
78666 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-73400
|
|
Fashion Outlets of Santa Fe
|
|
8380 Cerrillos Road
|
|
|
|
Santa Fe
|
|
NM
|
|
|
87505 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Fashion Outlets of Santa Fe, LLC |
4
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
102-73600 Hybrid (FN4)
|
|
Tanger Factory Outlet Center
|
|
Tanger Drive, Suite 101
|
|
|
|
Riverhead
|
|
NY
|
|
|
11901 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-73800
|
|
Vero Beach Outlets
|
|
1896 94th Drive, H-140
|
|
|
|
Vero Beach
|
|
FL
|
|
|
32966 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Vero Fashion Outlets, LLC |
102-74100
|
|
West Branch Outlet Center
|
|
2990 Cook Road
|
|
Suite 130
|
|
West Branch
|
|
MI
|
|
|
48661 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-74200 Hybrid (FN4)
|
|
Aurora Premium Outlets
|
|
549 South Chillicothe Road, Suite 360
|
|
|
|
Aurora
|
|
OH
|
|
|
|
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-74300
|
|
Tanger Outlet Center
|
|
2796 Tanger Way
|
|
Suite 101
|
|
Barstow
|
|
CA
|
|
|
92311 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-74400
|
|
Tanger Factory Outlet Center
|
|
801 Stanley K. Tanger Blvd.
|
|
Unit # 801
|
|
Lancaster
|
|
PA
|
|
|
17602 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-74500
|
|
Desert Hills Premium Outlets
|
|
48400 Seminole Road
|
|
Suite 700
|
|
Cabazon
|
|
CA
|
|
|
92230 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-74600 Hybrid (FN4)
|
|
Napa Premium Outlets
|
|
607 Factory Stores Drive
|
|
|
|
Napa
|
|
CA
|
|
|
94558 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Chelsea Financing Partnership, LP |
102-74700 Hybrid (FN4)
|
|
Rehoboth Outlet Center
|
|
Rehoboth Outlet Center 1, Suite 327
|
|
|
|
Rehoboth Beach
|
|
DE
|
|
|
19971 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
COROC/Rehoboth I L.L.C. |
102-74800
|
|
Factory Outlet Village
|
|
4540 Highway 54- Suite BB1
|
|
|
|
Osage Beach
|
|
MO
|
|
|
65065 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-74900
|
|
The Crossings Premium Outlets
|
|
500 Crossings Dactory Stores, Suite 201
|
|
|
|
Tannersville
|
|
PA
|
|
|
18372 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Chelsea Pocono Finance, LLC |
102-75400
|
|
Tanger Factory Outlet Center
|
|
2100 Tanger Blvd.
|
|
Suite 101
|
|
Gonzales
|
|
LA
|
|
|
70737 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-75900
|
|
Branson Outlet Center
|
|
300 Tanger Drive, Suite 101
|
|
|
|
Branson
|
|
MO
|
|
|
65616 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-76000
|
|
Locust Grove Outlet Center
|
|
1000 Tanger Blvd, Suite 303
|
|
|
|
Locust Grove
|
|
GA
|
|
|
30248 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-76100
|
|
Clinton Crossing Premium Outlets
|
|
20 Killingworth Turnpike
|
|
Suite 100
|
|
Clinton
|
|
CT
|
|
|
6413 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-76200 Hybrid (FN4)
|
|
Carolina Premium Outlets
|
|
1025 Industrial Park Drive
|
|
Suite 10
|
|
Smithfield
|
|
NC
|
|
|
27577 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Finance I, LLC |
102-76300
|
|
Georgia Islands Factory Shoppes
|
|
One Magnolia Bluff Way
|
|
|
|
Darien
|
|
GA
|
|
|
31305 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
PRE/Darien (GA) LLC |
102-76400
|
|
Lighthouse Place Premium Outlets
|
|
1670 Lighthouse Place
|
|
|
|
Michigan City
|
|
IN
|
|
|
46360 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Lighthouse Place Premium Outlets LLC |
102-76700
|
|
Fashion Outlets of Niagara
|
|
1690 Military Road
|
|
|
|
Niagara Falls
|
|
NY
|
|
|
14304 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Fashion Outlets of Niagara, LLC |
102-76800 Hybrid (FN4)
|
|
Prime Outlets at Ellenton
|
|
5705 Factory Shops Boulevard
|
|
|
|
Ellenton
|
|
FL
|
|
|
34222 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Gulf Coast Factory Shops Limited Partnership |
102-77000
|
|
Prime Outlets at Grove City
|
|
Intersection of I-79 & Route 208
|
|
Suite 200
|
|
Grove City
|
|
PA
|
|
|
16127 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Grove City Factory Shops Limited Partnership |
5
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
102-77200
|
|
Pigeon Forge Outlet Center
|
|
135 Wears Valley Road, Eat
|
|
|
|
Pigeon Forge
|
|
TN
|
|
|
37863 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
Pigeon Forge Outlets Partners, LLC |
102-77300 Hybrid (FN4)
|
|
Camarillo Premium Outlets
|
|
950 Camarillo Center Drive
|
|
Suite 978
|
|
Camarillo
|
|
CA
|
|
|
93010 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-77400
|
|
Seaside Factory Outlet Center
|
|
1111 N Roosevelt Street, Suite 360
|
|
|
|
Seaside
|
|
OR
|
|
|
97138 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
NW Capital Investment Group, LLC |
102-77700
|
|
Prime Outlets at Naples
|
|
6040 Collier Blvd.
|
|
|
|
Naples
|
|
FL
|
|
|
34114 |
|
|
Liz Claiborne / Liz Golf
|
|
LCI Holdings, Inc.
|
|
Coral Isle Factory Shops Limited Partnership |
102-78500 Hybrid (FN4)
|
|
Leesburg Corner Premium Outlets
|
|
241 Fort Evans Road NE
|
|
|
|
Leesburg
|
|
VA
|
|
|
20176 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-78700 Hybrid (FN4)
|
|
Wrentham Village Premium Outlets
|
|
One Premium Outlet Blvd, Suite 450
|
|
|
|
Wrentham
|
|
MA
|
|
|
02093-0656 |
|
|
Liz Claiborne
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
102-78900 (FN6)
|
|
Sanibel Outlet Center
|
|
20350 Summerlin Road
|
|
|
|
Fort Meyers
|
|
FL
|
|
|
33908 |
|
|
Liz Claiborne / Liz Golf Temp
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
102-79600
|
|
Tanger Factory Outlet Center
|
|
4015 IH 35 South, Suite 505
|
|
|
|
San Marcos
|
|
TX
|
|
|
78666 |
|
|
Liz Claiborne Clearance
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
105-92220
|
|
3340 Leonis Boulevard
|
|
3340 Leonis Boulevard
|
|
|
|
Vernon
|
|
CA
|
|
|
90058 |
|
|
Lucky Facilities
|
|
Lucky Brand Dungarees, Inc.
|
|
The Feit Living Trust dated June 10, 1997 |
107-01300
|
|
St. Johns Town Center
|
|
4712 River City Drive
|
|
Suite 111
|
|
Jacksonville
|
|
FL
|
|
|
32246 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
St. Johns Town Center, LLC |
107-01400
|
|
Mall of America
|
|
170 South Boulevard
|
|
|
|
Bloomington
|
|
MN
|
|
|
55425 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
MOAC Mall Holdings LLC |
107-01500
|
|
La Encantada
|
|
2905 Skyline Drive
|
|
|
|
Tuscon
|
|
AZ
|
|
|
85718 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
TWC Tucson, LLC |
107-01600
|
|
Menlo Park Mall
|
|
Route 1 & Parsonage Road
|
|
|
|
Edison
|
|
NJ
|
|
|
8837 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Shopping Center Associates |
107-01700
|
|
Christiana Mall
|
|
323 Christiana Mall
|
|
|
|
Newark
|
|
DE
|
|
|
19720 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Christiana Mall LLC |
107-01800
|
|
The Shops at La Cantera
|
|
15900 La Cantera Parkway
|
|
|
|
San Antonio
|
|
TX
|
|
|
78254 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
La Cantera Retail Limited Partnership |
107-01900
|
|
The Mall at Green Hills
|
|
2126 Abbott Martin Road
|
|
Suite 306
|
|
Nashville
|
|
TN
|
|
|
37215 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Davis Street Land Company of Tennessee, L.L.C. |
107-02000
|
|
NorthPark Center
|
|
8687 North Central Expressway
|
|
|
|
Dallas
|
|
TX
|
|
|
75225 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
NorthPark Partners, LP |
107-02100
|
|
Las Americas Premium Outlets
|
|
4125 Las Camino De Le Plaza
|
|
|
|
San Diego
|
|
CA
|
|
|
92173 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Chelsea San Diego Finance, LLC |
107-02200
|
|
Bridgewater Commons
|
|
400 Commons Way
|
|
Suite #2285
|
|
Bridgewater
|
|
NJ
|
|
|
8807 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Bridgewater Commons Mall, LLC |
107-02300
|
|
The Oaks
|
|
222 West Hillcrest Drive
|
|
Space T24
|
|
Thousand Oaks
|
|
CA
|
|
|
91360 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Macerich Oaks, LLC |
107-02400
|
|
Grant Avenue
|
|
222 Grant Avenue
|
|
|
|
San Francisco
|
|
CA
|
|
|
94108 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Marshall M Litchmann and Carolyn Grobe Litchmann Trust dated August 15, 1989 |
6
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-02500
|
|
Simi Valley Town Center
|
|
1555 Simi Town Center Way
|
|
Unit No. 540
|
|
Simi Valley
|
|
CA
|
|
|
93063 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Simi Valley Mall, LLC |
107-02700
|
|
Burlington Mall
|
|
75 Middlesex Turnpike
|
|
|
|
Burlington
|
|
MA
|
|
|
1803 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Bellwether Properties of Massachusetts Limited Partnership |
107-02800
|
|
Willow Grove Park
|
|
2087 & 2091 at Willow Grove Park
|
|
2500 Moreland Road
|
|
Willow Grove
|
|
PA
|
|
|
19090 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
WG Park, L.P. |
107-03000
|
|
The Summit
|
|
209 Summit Blvd.
|
|
|
|
Birmingham
|
|
AL
|
|
|
35243 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Bayer Retail Company, L.L.C. |
107-03300A
|
|
The Westchester
|
|
125 Westchester Avenue
|
|
|
|
White Plains
|
|
NY
|
|
|
10601 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Westchester Mall, LLC |
107-03300B
|
|
The Westchester
|
|
125 Westchester Avenue
|
|
|
|
White Plains
|
|
NY
|
|
|
10601 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Westchester Mall, LLC |
107-03500
|
|
Plaza Frontenac
|
|
97 Plaza Frontenac
|
|
1701 South Lindbergh Blvd.
|
|
St. Louis
|
|
MO
|
|
|
63131 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Davis Street Land Company of Missouri L.L.C., as Trustee |
107-03700 *
|
|
Seattle Premium Outlets
|
|
10600 Quil Ceda Blvd.
|
|
Suite 626
|
|
Tulalip
|
|
WA
|
|
|
98271 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPG Partners, L.P. |
107-25000
|
|
Century City Mall
|
|
10250 Santa Monica Blvd.
|
|
|
|
Los Angeles
|
|
CA
|
|
|
90067 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Century City Mall, LLC |
107-25010
|
|
Southlake Town Square
|
|
Grand Avenue District
|
|
302 Grand Avenue West
|
|
Southlake
|
|
TX
|
|
|
76092 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SLTS Grand Avenue II, LP |
107-25020
|
|
Keystone Fashion Mall
|
|
8701 Keystone Crossing
|
|
Room 35C
|
|
Indianapolis
|
|
IN
|
|
|
46240 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SDG Fashion Mall Limited Partnership |
107-25030
|
|
Copley Place
|
|
100 Huntington Avenue
|
|
|
|
Boston
|
|
MA
|
|
|
2116 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Copley Place Associates, LLC |
107-25040
|
|
Ridgewood Ave
|
|
67 Ridgewood Ave
|
|
|
|
Ridgewood
|
|
NJ
|
|
|
7450 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
66-67 East Ridgewood Avenue, LLC |
107-25050
|
|
Northbrook Court
|
|
1122 Northbrook Court
|
|
|
|
Northbrook
|
|
IL
|
|
|
60062 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Westcoast Estates |
107-25060
|
|
Northshore Mall
|
|
210 Andover Street
|
|
|
|
Peabody
|
|
MA
|
|
|
01960-164 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Mall at Northshore, LLC |
107-25070
|
|
The Summit Sierra
|
|
13925 S. Virginia Street
|
|
Suite 228
|
|
Reno
|
|
NV
|
|
|
89511 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Reno Retail Company, L.L.C. |
107-25080
|
|
North Point Mall
|
|
1036 North Point Mall
|
|
|
|
Alpharetta
|
|
GA
|
|
|
30022 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
GGP-North Point, Inc. |
107-25090
|
|
Saddle Creek
|
|
7615 West Farmington Avenue
|
|
|
|
Germantown
|
|
TN
|
|
|
38138 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Shops at Saddle Creek, Inc. |
107-25100
|
|
Walden Galleria
|
|
One Walden Galleria
|
|
|
|
Cheektowaga
|
|
NY
|
|
|
14225 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Pyramid Walden Company, L.P. |
107-25110
|
|
Crocker Park
|
|
264 Crocker Park Boulevard
|
|
|
|
Westlake
|
|
OH
|
|
|
44145 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Crocker Park, LLC |
107-25120
|
|
Coconut Point Town Center
|
|
23150 Fashion Drive
|
|
Suite 103
|
|
Estero
|
|
FL
|
|
|
34134 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Coconut Point Town Center, LLC |
7
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-25130
|
|
The Palladium at CityPlace
|
|
700 South Rosemary Avenue
|
|
|
|
West Palm Beach
|
|
FL
|
|
|
33401 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Cityplace Retail, L.L.C. |
107-25140
|
|
Orlando Premium Outlets
|
|
8200 Vineland Ave.
|
|
Space #805
|
|
Orlando
|
|
FL
|
|
|
32821 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Chelsea Orlando Development Limited Partnership |
107-25150
|
|
Del Amo Fashion Center
|
|
3525 Carson Street
|
|
|
|
Torrance
|
|
CA
|
|
|
90503 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Del Amo Fashion Center Operating Company, L.L.C. |
107-25160
|
|
Greenwich Avenue
|
|
244 Greenwich Avenue
|
|
|
|
Greenwich
|
|
CT
|
|
|
6830 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
DELIA Associates, LLC |
107-25170
|
|
Smith Haven Mall
|
|
313 Smith Haven Mall
|
|
Rts. 25 & 347
|
|
Lake Grove
|
|
NY
|
|
|
11755 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Mall at Smith Haven, LLC |
107-25180
|
|
Stonebriar Centre
|
|
1102 Stonebriar Centre
|
|
2601 Preston Road
|
|
Frisco
|
|
TX
|
|
|
75034 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Stonebriar Mall Limited Partnership |
107-25190
|
|
North County
|
|
200E Via Rancho Parkway
|
|
|
|
Escondido
|
|
CA
|
|
|
92025 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
EWH Escondido Associates, LP & North County Fair LP |
|
107-25210
|
|
Beachwood Place
|
|
23600 Cedar Road
|
|
|
|
Beachwood
|
|
OH
|
|
|
44122 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Beachwood Place Limited Partnerhsip |
107-25220
|
|
Otay Ranch Town Center
|
|
2015 Birch Road
|
|
|
|
Chula Vista
|
|
CA
|
|
|
91915 |
|
|
Lucky Kid
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
GGP-Otay Ranch, L.P. |
107-25230
|
|
Topanga Plaza
|
|
6600 Topanga Canyon Blvd.
|
|
|
|
Canoga Park
|
|
CA
|
|
|
91303 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Westfield Topanga Owner LP |
107-25260
|
|
Victoria Gardens
|
|
7826 Monet Avenue
|
|
Suite 3005
|
|
Rancho Cucamonga
|
|
CA
|
|
|
91739 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
RR Foley, Inc. |
107-25270
|
|
Bridge Street Town Centre
|
|
330 Bridge Street
|
|
|
|
Huntsville
|
|
AL
|
|
|
35806 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Huntsville Shores, LLC |
107-25280A
|
|
Montana Avenue
|
|
1426 Montana Avenue
|
|
Unit 8
|
|
Santa Monica
|
|
CA
|
|
|
90403 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
American Commercial Properties I, LLC |
107-25280B
|
|
Montana Avenue
|
|
1426 Montana Ave
|
|
Unit 7
|
|
Santa Monica
|
|
CA
|
|
|
90403 |
|
|
Lucky (Mens & Kids)
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
American Commercial Properties I, LLC |
107-25290-1
|
|
535 Broadway (Soho)
|
|
535 Broadway
|
|
|
|
New York
|
|
NY
|
|
|
10012 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Zale Delaware, Inc. |
107-25290-2
|
|
535 Broadway (Soho)
|
|
535 Broadway
|
|
|
|
New York
|
|
NY
|
|
|
10012 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Jack Jangana, Joyce Jangana and Jenny Jangana |
107-25300
|
|
Fashion Square
|
|
14006 Riverside Drive
|
|
|
|
Sherman Oaks
|
|
CA
|
|
|
91423 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Sherman Oaks Fashion Associates, LP |
107-25310
|
|
The Promenade Shops at Saucon Valley
|
|
2845 Center Valley Parkway
|
|
|
|
Center Valley
|
|
PA
|
|
|
18034 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Saucon Valley Lifestyle Center, L.P. |
107-25330
|
|
Brandon Town Center
|
|
909 Brandon Town Center
|
|
|
|
Brandon
|
|
FL
|
|
|
33511 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Brandon Shoping Center Partners, Ltd. |
8
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-25370
|
|
Circle Centre Mall
|
|
49 West Maryland Street
|
|
|
|
Indianapolis
|
|
IN
|
|
|
46204 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Circle Centre Mall LLC |
107-25430
|
|
Galleria Dallas
|
|
13350 North Dallas Parkway
|
|
|
|
Dallas
|
|
TX
|
|
|
75240 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Galleria Mall Investors LP |
107-25440
|
|
Perkins Rowe
|
|
10202 Perkins Rowe
|
|
|
|
Baton Rouge
|
|
LA
|
|
|
70810 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Perkins Rowe Associates II, L.L.C. |
107-25460
|
|
Providence Place
|
|
One Providence Place
|
|
|
|
Providence
|
|
RI
|
|
|
2903 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Rouse Providence, LLC |
107-25480
|
|
Willowbrook Mall
|
|
1576 WIllowbrook Mall
|
|
|
|
Houston
|
|
TX
|
|
|
77070 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
GGP-Willowbrook, L.P. |
107-25490
|
|
Stoneridge
|
|
1136 Stoneridge Mall Road
|
|
|
|
Pleasanton
|
|
CA
|
|
|
94588 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Stoneridge Properties LLC |
107-25500
|
|
South Hills Village
|
|
301 South Hills Village
|
|
|
|
Pittsburgh
|
|
PA
|
|
|
15241 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
South Hills Village Associates, L.P. |
107-25520
|
|
Prince Street
|
|
127 Prince Street
|
|
133 Wooster Street (Building)
|
|
New York
|
|
NY
|
|
|
10012 |
|
|
Lucky Kid
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Soho Development Corp. |
107-25530
|
|
The Domain
|
|
11601 Century Oaks Terrace
|
|
Suite 101
|
|
Austin
|
|
TX
|
|
|
78758 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SPGIL Domain, L.P. |
107-25560
|
|
Saint Louis Galleria
|
|
1400 Saint Louis Galleria
|
|
|
|
Richmond Heights
|
|
MO
|
|
|
63117 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Saint Louis Galleria L.L.C. |
107-25570A
|
|
Kalakaua Avenue
|
|
2113 Kalakaua Avenue
|
|
|
|
Honolulu
|
|
HI
|
|
|
96813 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Saratoga Partners, LLC |
107-25570B
|
|
Kalakaua Avenue
|
|
2113 Kalakaua Avenue
|
|
|
|
Honolulu
|
|
HI
|
|
|
96813 |
|
|
Lucky Kid
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Saratoga Partners, LLC |
107-25590
|
|
Washington Square
|
|
9585 S. W. Washington Square
|
|
|
|
Tigard
|
|
OR
|
|
|
97223 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
PPR Washington Square LLC |
107-25600
|
|
West Town Mall
|
|
7600 Kingston Pike
|
|
|
|
Knoxville
|
|
TN
|
|
|
37919 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
West Town Mall, LLC |
107-25610
|
|
Natick West
|
|
1245 Worcester Street
|
|
|
|
Natick
|
|
MA
|
|
|
01760-1553 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
GGP Natick West L.L.C. |
107-25620
|
|
Destin Commons
|
|
4300 Legendary Drive
|
|
|
|
Destin
|
|
FL
|
|
|
32541 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Destin Commons, Ltd. |
107-25630
|
|
Westfield Annapolis
|
|
2002 Annapolis Mall
|
|
|
|
Annapolis
|
|
MD
|
|
|
21401 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Annapolis Mall Limited Partnership |
107-25640
|
|
Twelve Oaks Mall
|
|
27986 Novi Road
|
|
|
|
Novi
|
|
MI
|
|
|
48377-3418 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Twelve Oaks Mall, LLC |
107-25650
|
|
Park Meadows
|
|
8401 Park Meadows Center Drive
|
|
|
|
Littleton
|
|
CO
|
|
|
80124 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Rouse-Park Meadows, LLC |
107-25660
|
|
Valley Plaza Mall
|
|
2701 Ming Ave.
|
|
|
|
Bakersfiled
|
|
CA
|
|
|
93304 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Bakersfield Mall LLC |
107-25690
|
|
Town Square
|
|
6551 Las Vegas Blvd. South
|
|
|
|
Las Vegas
|
|
NV
|
|
|
89119 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Turnberry/Centra Sub, LLC |
107-25710
|
|
The Mall at Partridge Creek
|
|
17420 Hall Road
|
|
|
|
Clinton
|
|
MI
|
|
|
48038 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Partridge Creek Fashion Park LLC |
107-25720
|
|
Smith Street
|
|
135 Smith Street
|
|
|
|
Brooklyn
|
|
NY
|
|
|
12043 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Smith Street Holdings LLC |
9
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-25730
|
|
East Broad Street
|
|
253-255 East Broad Street
|
|
|
|
Westfield
|
|
NJ
|
|
|
7090 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
H&S Managers, LLC |
107-25740
|
|
Perimeter Mall
|
|
4400 Ashford Dunwood Road
|
|
|
|
Atlanta
|
|
GA
|
|
|
30346 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Perimeter Mall, LLC |
107-25750
|
|
Old Orchard Shopping Center
|
|
175 Old Orchard
|
|
Space K8
|
|
Skokie
|
|
IL
|
|
|
60077 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Old Orchard Urban Limited Partnership |
107-25750-2
|
|
Old Orchard Shopping Center
|
|
175 Old Orchard
|
|
|
|
Skokie
|
|
IL
|
|
|
60077 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Old Orchard Urban Limited Partnership |
107-25760
|
|
Irvine Spectrum Center
|
|
Phase III
|
|
83 Fortune Drive
|
|
Irvine
|
|
CA
|
|
|
92618 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Irvine Company LLC |
107-25770
|
|
Stonestown Galleria
|
|
3254 Twentieth Avenue
|
|
|
|
San Francisco
|
|
CA
|
|
|
94132 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Stonestown Shopping Center, L.P. |
107-25780
|
|
Oxmoor Center Mall
|
|
7900 Shelbyville Road
|
|
|
|
Louisville
|
|
KY
|
|
|
40222 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Hocker Oxmoor, LLC |
107-25790
|
|
La Jolla
|
|
7844 Girard Avenue
|
|
|
|
La Jolla
|
|
CA
|
|
|
92037 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Josephine S. Norton & Tyler K. Norton |
107-25800
|
|
Hillsdale Shopping Center
|
|
131 Hillsdale Shopping Center
|
|
|
|
San Mateo
|
|
CA
|
|
|
94403 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Bohannon Development Company |
107-25810
|
|
Solomon Pond
|
|
601 Donald Lynch Boulevard
|
|
|
|
Marlborough
|
|
MA
|
|
|
1752 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Mall at Solomon Pond, LLC |
107-25840
|
|
The Shops at Pembroke Gardens
|
|
421 SW 145th Terrace
|
|
|
|
Pembroke
|
|
FL
|
|
|
33027 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
AD Pembroke Gardens, LLC |
107-25850
|
|
Fashion Centre at Pentagon City
|
|
1100 S. Hayes Street
|
|
|
|
Arlington
|
|
VA
|
|
|
22202 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Fashion Centre Associates, LLC |
107-25860
|
|
Freehold Raceway Mall
|
|
3710 Route 9
|
|
|
|
Freehold
|
|
NJ
|
|
|
7728 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Freemall Associates, LLC |
107-25870
|
|
The Falls
|
|
8888 SW 136 Street
|
|
|
|
Miami
|
|
FL
|
|
|
33176 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Falls Shopping Center Associates LLC |
107-25880
|
|
Deer Park Town Center
|
|
20530 North Rand Road
|
|
|
|
Deer Park
|
|
IL
|
|
|
60010 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
DDR Deer Park Town Center LLC |
107-25890
|
|
Del Monte Center
|
|
238 Del Monte Center
|
|
|
|
Monterey
|
|
CA
|
|
|
93940 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
DelMonte-DMCH, LLC;
DelMonte-DMSJH, LLC;
DelMonte-KMBC, LLC;
DelMonte-POH, LLC |
107-25900
|
|
Southcenter Mall
|
|
627 Southcenter Mall
|
|
|
|
Tukwila
|
|
WA
|
|
|
96188 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
WEA Southcenter LLC |
107-25910
|
|
Ross Park
|
|
1000 Ross Park Mall Drive
|
|
|
|
Pittsburgh
|
|
PA
|
|
|
15237 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Penn Ross Joint Venture |
107-25940
|
|
Arden Fair
|
|
1689 Arden Way
|
|
|
|
Sacramento
|
|
CA
|
|
|
95815 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Arden Fair Associates, L.P. |
107-25960
|
|
Montgomery Mall
|
|
7101 Democracy Boulevard
|
|
|
|
Bethesda
|
|
MD
|
|
|
20817 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Montgomery Mall LLC |
10
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-26050
|
|
Renaissance at Colony Park
|
|
1000 Highland Colony Parkway
|
|
|
|
Ridgefield
|
|
MS
|
|
|
39157 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Renaissance at Colony Park, LLC |
107-26060
|
|
The Grove at Shrewsbury
|
|
599 Route 35
|
|
Space S-06
|
|
Shrewsbury
|
|
NJ
|
|
|
7702 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Route 35 Shrewsbury Limited Partnership |
107-26080
|
|
ABQ Uptown
|
|
2240 Q Street
|
|
|
|
Albuquerque
|
|
NM
|
|
|
87110 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Hunt Uptown, LLC |
107-26090
|
|
The Mall in Columbia
|
|
10300 Little Patuxent Parkway
|
|
|
|
Columbia
|
|
MD
|
|
|
21044 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Mall in Columbia Business Trust |
107-26100
|
|
Towson Town Center
|
|
825 Dulaney Valley Road
|
|
|
|
Towson
|
|
MD
|
|
|
21204 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Towson TC, LLC |
107-26110
|
|
Westfield Oakridge
|
|
925 Blossom Hill Road
|
|
|
|
San Jose
|
|
CA
|
|
|
95123 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Oakridge Mall LP |
107-26140
|
|
Legacy Place
|
|
950 Providence Highway
|
|
Building B, Space 610
|
|
Dedham
|
|
MA
|
|
|
2026 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Legacy Place, LLC |
107-26180
|
|
Galleria at Roseville
|
|
1151 Galleria Boulevard
|
|
|
|
Roseville
|
|
CA
|
|
|
95678 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Roseville Shoppingtown LLC |
107-33000 Hybrid (FN4)
|
|
Jackson Outlet Village
|
|
537 Monmouth Road
|
|
Space #300
|
|
Jackson
|
|
NJ
|
|
|
8527 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
107-33010
|
|
Prime Outlets at Ellenton
|
|
5625 Factory Shops Blvd.
|
|
|
|
Ellenton
|
|
FL
|
|
|
34222 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Gulf Coast Factory Shops Limited Partnership |
107-33030
|
|
Prime Outlets at San Marcos
|
|
3939 IH-35 South
|
|
|
|
San Marcos
|
|
TX
|
|
|
78666 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Prime Outlets at San Marcos II Limited Partnership |
107-33040 * Hybrid (FN4)
|
|
Tanger Factory Outlet Center
|
|
Tanger Drive, Suite 101-01
|
|
|
|
Riverhead
|
|
NY
|
|
|
11901 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
107-33050 * Hybrid (FN4)
|
|
Camarillo Premium Outlets
|
|
950 Camarillo Center Drive
|
|
Suite 978
|
|
Camarillo
|
|
CA
|
|
|
93010 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
107-33060 Hybrid (FN4)
|
|
North Georgia Premium Outlets
|
|
800 Highway 400 South, Suite 895
|
|
|
|
Dawsonville
|
|
GA
|
|
|
30534 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
107-33070 Hybrid (FN4)
|
|
Chicago Premium Outlets
|
|
1650 Premium Outlets Blvd.
|
|
Suite 1001
|
|
Aurora
|
|
IL
|
|
|
60504 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
Simon/Chelsea Chicago Development, LLC |
107-33080 Hybrid (FN4)
|
|
Carolina Premium Outlets
|
|
1025 Industrial Park Drive
|
|
Suite 10
|
|
Smithfield
|
|
NC
|
|
|
27577 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Finance I, LLC |
107-33090 Hybrid (FN4)
|
|
Outlets at Albertville
|
|
6415 Labeaux Avenue NE
|
|
|
|
Albertville
|
|
MN
|
|
|
55301 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
107-33100
|
|
Carlsbad Premium Outlets
|
|
5610 Paseo Del Norte
|
|
|
|
Carlsbad
|
|
CA
|
|
|
92008 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPG Carlsbad Holdings, LLC |
107-33110 Hybrid (FN4)
|
|
Las Vegas Premium Outlets
|
|
I-15 at US 95 on Grand Central Parkway
|
|
Unit 1380
|
|
Las Vegas
|
|
NV
|
|
|
89106 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
Simon/Chelsea Las Vegas Development, LLC |
107-33120
|
|
Tanger Outlet Center
|
|
2796 Tanger Way
|
|
|
|
Barstow
|
|
CA
|
|
|
92311 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Tanger Properties Limited Partnership |
107-33130
|
|
Jersey Gardens
|
|
651 Kapowski Road
|
|
|
|
Elizabeth
|
|
NJ
|
|
|
7201 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
JG Elizabeth, LLC |
11
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-33140
|
|
Prime Outlets at St. Augustine
|
|
500 Belz Outlet Boulevard
|
|
|
|
St. Augustine
|
|
FL
|
|
|
32084 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
LVP St. Augustine Outlets LLC |
107-33150
|
|
The Outlets at Castle Rock
|
|
5050 Factory Shops Boulevard
|
|
|
|
Castle Rock
|
|
CO
|
|
|
80108 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Craig Realty Group Castle Rock, LLC |
107-33170
|
|
The Outlets at Silverthorne
|
|
145-L Stephens Way
|
|
|
|
Silverthorne
|
|
CO
|
|
|
80498 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Craig Realty Group Silverthorne, LLC |
107-33180 Hybrid (FN4)
|
|
Rehoboth Outlet Center
|
|
Rehoboth Outlet Center 1, Suite 327
|
|
|
|
Rehoboth Beach
|
|
DE
|
|
|
19971 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
COROC/Rehoboth I L.L.C. |
107-33190
|
|
Houston Premium Outlets
|
|
29300 Hempstead Road
|
|
|
|
Cypress
|
|
TX
|
|
|
77433 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPG Houston Holdings, L.P. |
107-33200 Hybrid (FN4)
|
|
Hilton Head Factory Stores II
|
|
1414 Fording Island Road
|
|
|
|
Bluffton
|
|
SC
|
|
|
29910 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
COROC/Hilton Head II, L.L.C. |
107-33210
|
|
Prime Outlets at Williamsburg
|
|
5645-120 Richmond Road
|
|
|
|
Williamsburg
|
|
VA
|
|
|
23188 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Williamsburg Mazel, LLC |
107-33220
|
|
Tanger Outlet Center at the Arches
|
|
455 Commack Road
|
|
|
|
Deer Park
|
|
NY
|
|
|
11729 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Deer Park Enterprise, LLC |
107-33240
|
|
Jersey Shore Premium Outlets
|
|
1 Premium Outlet Blvd., Space 561
|
|
|
|
Tinton Falls
|
|
NJ
|
|
|
7753 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPG Tinton Falls Urban Renewal, LLC |
107-33250
|
|
Fashion Outlets of Las Vegas
|
|
32100 Las Vegas Blvd. South
|
|
|
|
Primm
|
|
NV
|
|
|
89019 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Fashion Outlet of Las Vegas, LLC |
107-33260
|
|
Prime Outlets at Hagerstown
|
|
700 Prime Outlets Blvd.
|
|
|
|
Hagerstown
|
|
MD
|
|
|
21740 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Outlet Village of Hagerstown Limited Partnership |
107-33270
|
|
Philadelphia Premium Outlets
|
|
18 Lightcap Road
|
|
|
|
Limerick
|
|
PA
|
|
|
19464 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Chelsea Limerick Holdings, LLC |
107-33280
|
|
Factory Stores at Park City
|
|
6699 North Landmark Drive
|
|
|
|
Park City
|
|
UT
|
|
|
84098 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
COROC/Park City L.L.C. |
107-33290 Hybrid (FN4)
|
|
Opry Mills
|
|
168 Opry Mills Drive
|
|
|
|
Nashville
|
|
TN
|
|
|
37214 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
Opry Mills Mall Limited Partnership |
107-33300
|
|
Leesburg Corner Premium Outlets
|
|
241 Ft. Evans Road NE
|
|
|
|
Leesburg
|
|
VA
|
|
|
20176 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPG Partners, LP |
107-33310
|
|
Fashion Outlets of Niagara
|
|
1900 Military Road
|
|
|
|
Niagara Falls
|
|
NY
|
|
|
14304 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Fashion Outlets of Niagara LLC |
107-33330
|
|
Gilroy Premium Outlets
|
|
8155 Arroyo Circel at Leavesley Road
|
|
|
|
Gilroy
|
|
CA
|
|
|
95020 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Gilroy Premium Outlets, LLC |
107-33350
|
|
Kittery I Outlet Center
|
|
283 US Route 1
|
|
Suite 105
|
|
Kittery
|
|
ME
|
|
|
3904 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Tanger Properties Limited Partnership |
107-33360
|
|
Tanger Outlet Center
|
|
4840 Tanger Outlet Blvd.
|
|
|
|
Charleston
|
|
SC
|
|
|
29418 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Tanger Properties Limited Partnership |
107-33370 Hybrid (FN4)
|
|
Napa Premium Outlets
|
|
607 Factory Stores Drive
|
|
|
|
Napa
|
|
CA
|
|
|
94558 |
|
|
Lucky Outlet
|
|
LCI Holdings, Inc.
|
|
Chelsea Financing Partnership, LP |
107-33400
|
|
Tanger Factory Outlet Center
|
|
10823 Kings Road
|
|
|
|
North Myrtle Beach
|
|
SC
|
|
|
29572 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
TWMB Associates, LLC |
12
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-33410
|
|
Citadel Outlets
|
|
100 Citadel Drive
|
|
|
|
Commerce
|
|
CA
|
|
|
90040 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Craig Realty Group Citadel, LLC |
107-33420
|
|
Woodburn Company Stores
|
|
1001 Arney Road
|
|
Suite 508
|
|
Woodburn
|
|
OR
|
|
|
97071 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Craig Realty Group Woodburn, LLC |
107-33440
|
|
The Outlet Shoppes at El Paso
|
|
7051 S. Desert Boulevard
|
|
|
|
El Paso
|
|
TX
|
|
|
79835 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
El Paso Outlet Center, LLC |
107-33470
|
|
Wrentham Village Premium Outlets
|
|
One Premium Outlets Blvd.
|
|
|
|
Wrentham
|
|
MA
|
|
|
2093 |
|
|
Lucky Outlet Temp
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPG Partners, L.P. Wrentham |
107-36000
|
|
Baybrook Mall
|
|
1206 Byabrook Mall
|
|
|
|
Friendswood
|
|
TX
|
|
|
77546 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Baybrook Mall, L.P. |
107-36100
|
|
Fresno Fashion Fair
|
|
639 E. Shaw Avenue
|
|
Space T-7
|
|
Fresno
|
|
CA
|
|
|
93710 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Macerich Fresno Limited Partnership |
107-36200
|
|
Tysons Corner Center
|
|
1961 Chain Bridge Road
|
|
|
|
McLean
|
|
VA
|
|
|
22102 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Tysons Corner Holdings LLC |
107-60300
|
|
Aventura Mall
|
|
19501 Biscayne Avenue
|
|
Unit #807
|
|
Miami
|
|
FL
|
|
|
33180 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Aventura Mall Venture |
107-60400
|
|
Third Street Promenade
|
|
1213-1215 Third Street Promenade
|
|
(ground floor)
|
|
Santa Monica
|
|
CA
|
|
|
90401 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Romano Family Trust of 1993 Dated October 11, 1993 |
107-60500
|
|
621 Fifth Avenue
|
|
621 Fifth Avenue
|
|
|
|
San Diego
|
|
CA
|
|
|
92101 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Zeiden Properties, LLC |
107-60600
|
|
38 Greene Street (Soho)
|
|
38 Greene Street
|
|
a/k/a 94 Grand Street
|
|
New York
|
|
NY
|
|
|
10013 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Grand Greene LLC |
107-61000
|
|
Fashion Island
|
|
221 Newport Center Dr.
|
|
|
|
Newport Beach
|
|
CA
|
|
|
92660 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Irvine Company, LLC |
107-61100
|
|
Mission Viejo
|
|
418 Shops at Mission Viejo
|
|
|
|
Mission Viejo
|
|
CA
|
|
|
92691 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Mission Viejo Associates, L.P. |
107-61200
|
|
San Francisco Centre
|
|
865 Market Street
|
|
Building 2 (Emporium)
|
|
San Francisco
|
|
CA
|
|
|
94103 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Emporium Mall LLC |
107-61300
|
|
Chestnut Street
|
|
2301 Chestnut Street
|
|
|
|
San Francisco
|
|
CA
|
|
|
94123 |
|
|
Lucky / Lucky Kid
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Joyce Castellino |
107-61400
|
|
The Pavilion at Paseo Nuevo
|
|
805 State Street
|
|
|
|
Santa Barbara
|
|
CA
|
|
|
93101 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SPHEAR Investments, LLC |
107-61500
|
|
Kierland Commons
|
|
7122 East Greenway Parkway
|
|
Suite 120
|
|
Scottsdale
|
|
AZ
|
|
|
85254 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Kierland Greenway, L.L.C. |
107-61600
|
|
Tysons Galleria
|
|
2001 International Drive
|
|
Space 2014
|
|
McLean
|
|
VA
|
|
|
22102 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Tysons Galleria LLC |
107-61700
|
|
Country Club Plaza
|
|
4704 Broadway
|
|
|
|
Kansas City
|
|
MO
|
|
|
64112 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Highwoods Realty Limited Partnership |
107-61800
|
|
Walnut Street
|
|
1643 Walnut Street
|
|
|
|
Philadelphia
|
|
PA
|
|
|
19103 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
1634 Walnut Associates, L.P. |
107-61900
|
|
University Village
|
|
2614 NE University Village Street
|
|
|
|
Seattle
|
|
WA
|
|
|
98105 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
University Village Limited Partnership |
107-62000
|
|
Miracle Mile Shops
|
|
at Planet Hollywood Resort & Casino
|
|
3663 Las Vegas Blvd. South
|
|
Las Vegas
|
|
NV
|
|
|
89109 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Boulevard Invest, LLC |
13
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-62100
|
|
The Mall at Short Hills
|
|
1200 Morris Turnpike
|
|
Suite A-216
|
|
Short Hills
|
|
NJ
|
|
|
7078 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Short Hills Associate |
107-62200
|
|
Newbury Street
|
|
229 Newbury Street
|
|
|
|
Boston
|
|
MA
|
|
|
2116 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
229 Newbury Street Trust |
107-62300
|
|
Woodfield Mall
|
|
Suite 5, Space L-314
|
|
|
|
Schaumburg
|
|
IL
|
|
|
80173 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Woodfield Mall LLC |
107-62400
|
|
Belmont Shore
|
|
5267 East Second Street
|
|
|
|
Long Beach
|
|
CA
|
|
|
90803 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
5251 Associates, Ltd. |
107-62500
|
|
12155 Ventura Blvd. / Studio City
|
|
12155 Ventura Blvd
|
|
|
|
Studio City
|
|
CA
|
|
|
90803 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
12155 Ventura Partnership |
107-62600
|
|
The Village at Corte Madera
|
|
1812 Redwood Highway
|
|
|
|
Corte Madera
|
|
CA
|
|
|
94925 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Corte Madera Village, LLC |
107-62700
|
|
Cherry Creek
|
|
Cherry Creek Mall
|
|
3000 E. First Avenue, Space #259
|
|
Denver
|
|
CO
|
|
|
80206 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Taubman Cherry Creek Shopping Center, L.L.C. |
107-62900
|
|
Town Center at Boca Raton
|
|
6000 West Glades Road, Room 1210
|
|
|
|
Boca Raton
|
|
FL
|
|
|
33431 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Town Center at Boca Raton |
107-63000
|
|
The Shops at Willow Bend
|
|
6121 West Park Blvd.
|
|
Store #D-212
|
|
Plano
|
|
TX
|
|
|
75093 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Willow Bend Shopping Center Limited Partnership |
107-63100
|
|
International Plaza
|
|
2223 N. Westshore Boulevard
|
|
Space #222
|
|
Tampa
|
|
FL
|
|
|
33607 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Tampa Westshore Associates Limited Partnership |
107-63200
|
|
North Bridge
|
|
520 N. Michigan Avenue
|
|
Space #200
|
|
Chicago
|
|
IL
|
|
|
60611 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
RN 124/125 Company L.L.C. |
107-63300
|
|
Halsted Street
|
|
2048 North Halsted
|
|
|
|
Chicago
|
|
IL
|
|
|
60614 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
2048 LLC |
107-63400
|
|
1113 Manhattan Ave.
|
|
1113 Manhattan Avenue
|
|
|
|
Manhattan Beach
|
|
CA
|
|
|
90266 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Mary Jo Shields as Trustee |
107-63500
|
|
1739 Connecticut Ave.
|
|
1739 Connecticut Avenue
|
|
|
|
N.W. Washington
|
|
DC
|
|
|
2009-1126 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Grosvenor Urban Retail, L.P. |
107-63600
|
|
Valley Fair
|
|
Stevens Creek Boulevard
|
|
|
|
Santa Clara
|
|
CA
|
|
|
95050 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
VF Mall, LLC |
107-63700
|
|
Paseo Colorado
|
|
318 Colorado Blvd
|
|
|
|
Pasadena
|
|
CA
|
|
|
91101-2311 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Paseo Colorado Holdings, LLC |
107-63900
|
|
Gateway
|
|
133 South Rio Grande Street
|
|
|
|
Salt Lake City
|
|
UT
|
|
|
84101 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Inland Western Salt Lake City Gateway, L.L.C. |
107-64000
|
|
216 Columbus Avenue
|
|
216 Columbus Aveue
|
|
|
|
New York
|
|
NY
|
|
|
10023-4002 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Walton Company, A NY Partnership |
107-64100
|
|
1151 3rd Avenue
|
|
1151 3rd Avenue
|
|
|
|
New York
|
|
NY
|
|
|
10021-6011 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
201 East 67 LLC, c/o Meir Argaman |
107-64200
|
|
The West Village
|
|
3699 McKinney Ave. No. 315
|
|
|
|
Dallas
|
|
TX
|
|
|
75204 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
West Village 2004 PO Limited Partnership |
107-64300
|
|
172 5th Avenue
|
|
172 5th Avenue
|
|
|
|
New York
|
|
NY
|
|
|
10010-5903 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Attn: Mr. Arthur Cornfeld c/o ABC Properties |
107-64400
|
|
Georgetown
|
|
3271-73 M Street NW
|
|
|
|
Georgetown
|
|
DC
|
|
|
20007 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SML Interests, Ltd., LLC |
14
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-64700
|
|
The Promenade at Sagemore
|
|
500 Route 73 South
|
|
|
|
Marlton
|
|
NJ
|
|
|
8053 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Sagemore Management Company, LLC |
107-64800
|
|
Lincoln Road
|
|
928 Lincoln Road
|
|
|
|
Miami Beach
|
|
FL
|
|
|
33139 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
South Florida Arts Center, Inc. |
107-64900
|
|
Chandler
|
|
3111 West Chandler Blvd.
|
|
Suite #1192
|
|
Chandler
|
|
AZ
|
|
|
85226 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
TWC Chandler LLC |
107-65000
|
|
Brea Mall
|
|
1013 Brea Mall
|
|
|
|
Brea
|
|
CA
|
|
|
92821 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Retail Property Trust |
107-65400
|
|
King Street
|
|
273 King Street
|
|
|
|
Charleston
|
|
SC
|
|
|
29401 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Oristo Downtown, LLC, Oristo Wentworth, LLC, Oyster Row, LLC and Lybrand Family |
107-65500
|
|
The Mall at Chestnut Hill
|
|
199 Boylston Street
|
|
|
|
Chestnut Hill
|
|
MA
|
|
|
2467 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
WMACH LLC |
107-65600
|
|
Winter Park
|
|
323 Park Ave
|
|
|
|
Winter Park
|
|
FL
|
|
|
32789 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Park Avenue Holdings |
107-65800
|
|
Scottsdale Fashion Square
|
|
7014 East Camelback Road
|
|
|
|
Scottsdale
|
|
AZ
|
|
|
85251 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Scottsdale Fashion Square LLC |
107-65900
|
|
Easton Town Center
|
|
4095 The Strand West
|
|
|
|
Columbus
|
|
OH
|
|
|
43219 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Easton Town Center II, LLC |
107-66000
|
|
Hollywood & Highland
|
|
6801 Hollywood Blvd.
|
|
|
|
Los Angeles
|
|
CA
|
|
|
90028 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CIM/H&H Retail, LP |
107-66100
|
|
Main Street, Westport, CT
|
|
49 Main Street of 33-51 Main Street
|
|
|
|
Westport
|
|
CT
|
|
|
6880 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Winwest 3351 Main, LLC |
107-66200
|
|
Kenwood Towne Centre
|
|
7875 Montgomery Road
|
|
Space R-19
|
|
Cincinnati
|
|
OH
|
|
|
45236 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Shoppes at Union Hill, LLC |
107-66300
|
|
Glendale Galleria
|
|
2204 Glendale Galleria
|
|
|
|
Glendale
|
|
CA
|
|
|
91210 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Glendale II Mall Associates, LLC |
107-66400A
|
|
The Plaza at King of Prussia
|
|
160 North Gulph Road
|
|
Upper Merion Township
|
|
King of Prussia
|
|
PA
|
|
|
19406 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
King of Prussia Associates |
107-66400B
|
|
The Plaza at King of Prussia
|
|
160 North Gulph Road
|
|
|
|
King of Prussia
|
|
PA
|
|
|
19706 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
King of Prussia Associates |
107-66500
|
|
Aspen Grove Lifestyle Center
|
|
7301 South Santa Fe Drive
|
|
|
|
Littleton
|
|
CO
|
|
|
80120 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
DDR Aspen Grove Lifestyle Center Properties, LLC |
107-66600
|
|
University Town Center
|
|
4545 La Jolla Village Drive
|
|
|
|
San Diego
|
|
CA
|
|
|
92122 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
W&G Handelsges mbH |
107-66700
|
|
Streets at Southpoint
|
|
6910 Fayetteville Rd.
|
|
|
|
Durham
|
|
NC
|
|
|
22713 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Southpoint Mall, LLC |
107-66800
|
|
Farmers Market
|
|
189 The Grove Drive
|
|
|
|
Los Angeles
|
|
CA
|
|
|
90036 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Grove at Farmers Market, LLC |
107-66900
|
|
Bellevue Square
|
|
220 Bellevue Square
|
|
|
|
Bellevue
|
|
WA
|
|
|
98004 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Bellevue Square LLC |
107-67000
|
|
Stanford Shopping Center
|
|
Building D #83
|
|
|
|
Palo Alto
|
|
CA
|
|
|
94304 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SPG Center, LLC |
15
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-67100
|
|
Mall at Millenia
|
|
4200 Conroy Road
|
|
|
|
Orlando
|
|
FL
|
|
|
32839 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Forbes Taubman Orlando, L.L.C |
107-67200
|
|
Highland Village
|
|
4029 Westhiemer
|
|
Unit # 4029
|
|
Houston
|
|
TX
|
|
|
77027 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Highland Village Limited Partnership |
107-67300 *
|
|
Woodbury Common Premium Outlets
|
|
208 Red Apple Court
|
|
|
|
Central Valley
|
|
NY
|
|
|
10917 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPG Partners, L.P. |
107-67400
|
|
Desert Hills Premium Outlets
|
|
48400 Seminole Road
|
|
Suite 325
|
|
Cabazon
|
|
CA
|
|
|
92230 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPG Partners, L.P. |
107-67500
|
|
Oakbrook Center
|
|
158 Oakbrook Center
|
|
|
|
Oakbrook
|
|
IL
|
|
|
60523 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Oakbrook Shopping Center LLC. |
107-67600
|
|
Somerset Collection
|
|
2800 Big Beaver
|
|
Space North U209
|
|
Troy
|
|
MI
|
|
|
48084 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Somerset Collection Limited Partnership |
107-67700
|
|
Sawgrass Mills Mall
|
|
12801 West Sunrise Blvd.
|
|
|
|
Sunrise
|
|
FL
|
|
|
33323 |
|
|
Lucky Outlet
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Sunrise Mills (MLP) Limited Partnership |
107-67800
|
|
Fashion Valley Mall
|
|
7007 Friars Road Suite 567
|
|
|
|
San Diego
|
|
CA
|
|
|
92108 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Fashion Valley Mall, LLC |
107-67900
|
|
Fashion Show Mall
|
|
3200 Las Vegas Blvd. South
|
|
|
|
Las Vegas
|
|
NV
|
|
|
89109 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Fashion Show Mall, LLC |
107-68000
|
|
Houston Galleria IV
|
|
5137 West Alabama Suite 7040
|
|
|
|
Houston
|
|
TX
|
|
|
77506 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SA Galleria IV, LP |
107-68100
|
|
Roosevelt Field
|
|
630 Old Country Road
|
|
|
|
Garden City
|
|
NY
|
|
|
11530 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Retail Property Trust |
107-68200
|
|
Ala Moana Center
|
|
1450 Ala Moana Blvd
|
|
#2021
|
|
Honolulu
|
|
HI
|
|
|
96814 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
GGP Ala Moana, L.L.C. |
107-68300
|
|
Portland
|
|
521 N.W. 23rd Avenue
|
|
Suite 400
|
|
Portland
|
|
OR
|
|
|
97201 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
KBC Management, Inc. |
107-68400
|
|
Garden State Plaza
|
|
1 Garden State Plaza
|
|
|
|
Paramus
|
|
NJ
|
|
|
7652 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Westland Garden State Plaza Limited Partnership |
107-68500
|
|
SouthPark Mall
|
|
4400 Sharon Road
|
|
Space L-3
|
|
Charlotte
|
|
NC
|
|
|
28211 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SouthPark Mall Limited Partnership |
107-68600
|
|
Galleria at Ft. Lauderdale
|
|
2414 E. Sunrise Blvd.
|
|
|
|
Ft. Lauderdale
|
|
FL
|
|
|
33304 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Keystone-Florida Property Holding, Corp. |
107-68700
|
|
Stony Point
|
|
9200 Stony Point Parkway
|
|
|
|
Richmond
|
|
VA
|
|
|
23235 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Stony Point Associates LLC |
107-68800
|
|
Broadway Plaza
|
|
1177 Broadway Plaza
|
|
|
|
Walnut Creek
|
|
CA
|
|
|
95496 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Macerich Northwestern Associates |
107-68900
|
|
Florida Mall
|
|
8001 South Orange Blossom Trail
|
|
|
|
Orlando
|
|
FL
|
|
|
32809 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Florida Mall Associatees. Ltd. |
107-69100
|
|
East Oak Street
|
|
47 East Oak Street
|
|
|
|
Chicago
|
|
IL
|
|
|
60611 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
GO1NG PLACES, INC. |
107-69200
|
|
Alderwood
|
|
3000 184th Street SW
|
|
|
|
Lynwood
|
|
WA
|
|
|
98037 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Alderwood Mall, L.L.C. |
107-69300
|
|
Phipps Plaza
|
|
3500 Peachtree Road
|
|
Room 2020B
|
|
Atlanta
|
|
GA
|
|
|
30326 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
CPI-Phipps Limited Liability Company |
16
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
107-69400
|
|
Barton Creek Square
|
|
2901 Capital of Texas Highway
|
|
|
|
Austin
|
|
TX
|
|
|
78746 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Simon Property Group (Texas), L.P. |
107-69500
|
|
The Gardens
|
|
3101 PGA Boulevard
|
|
|
|
Palm Beach Gardens
|
|
FL
|
|
|
33410 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Forbes/Cohen Florida Properties Limited Partnership |
107-69600
|
|
Dadeland Mall
|
|
7535 Dadeland Mall
|
|
|
|
Miami
|
|
FL
|
|
|
33156 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
SDG Dadeland Associates, Inc. |
107-69700
|
|
Forum Shops at Caesars
|
|
3500 Las Vegas Blvd. South
|
|
Suite E18A Casino Level
|
|
Las Vegas
|
|
NV
|
|
|
89109 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Forum Shops, LLC |
107-96020 (FN5)
|
|
East 49th Street
|
|
2516 East 49th Street
|
|
|
|
Vernon
|
|
CA
|
|
|
90058 |
|
|
Lucky Facilities
|
|
Lucky Brand Dungarees, Inc.
|
|
East 49th Street, LLC |
107-96020-1
|
|
Hampton Street
|
|
4929 Hampton Street
|
|
|
|
Vernon
|
|
CA
|
|
|
90058 |
|
|
Lucky Facilities
|
|
Lucky Brand Dungarees, Inc.
|
|
East 49th Street, LLC |
111-20040V (FN1) (entirely sublet)
|
|
411 West Broadway
|
|
411 West Broadway
|
|
a/k/a 155 Spring Street
|
|
New York
|
|
NY
|
|
|
10012 |
|
|
Sigrid Olsen
|
|
LCI Holdings, Inc.
|
|
VNO 155 Spring Street LLC |
111-44900V (FN1)
|
|
103 Main Street
|
|
103 Main Street
|
|
|
|
Westport
|
|
CT
|
|
|
6880 |
|
|
Sigrid Olsen
|
|
LCI Holdings, Inc.
|
|
Westport Main Street Retail L.L.C. |
112-17000V (FN1) (entirely sublet)
|
|
Georgetown
|
|
3227-3229 M street
|
|
|
|
Washington
|
|
DC
|
|
|
20007 |
|
|
Mexx USA
|
|
LCI Holdings, Inc.
|
|
Papamichael Family Limited Partnership |
112-17500V (FN1) (entirely sublet)
|
|
500 Broadway
|
|
500 Broadway
|
|
|
|
New York
|
|
NY
|
|
|
10013 |
|
|
Mexx USA
|
|
LCI Holdings, Inc.
|
|
Only Properties Co. Herbert Moskowitz and Arthur Morse |
116-07000
|
|
Woodbury Common Premium Outlets
|
|
216 Red Apple Court
|
|
|
|
Central Valley
|
|
NY
|
|
|
10917 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
116-07100 (FN5)
|
|
Desert Hills Premium Outlets
|
|
48650 Seminole Drive Unit # D-156
|
|
|
|
Cabazon
|
|
CA
|
|
|
92230 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
116-10020
|
|
Wrentham Village Premium Outlets
|
|
One Premium Outlet Blvd
|
|
Suite 637
|
|
Wrentham
|
|
MA
|
|
|
02093-0656 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
116-10030 Hybrid (FN4)
|
|
Tanger Factory Outlet Center
|
|
Tanger Drive, Suite 101-01
|
|
|
|
Riverhead
|
|
NY
|
|
|
11901 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
116-10040
|
|
Prime Outlets at San Marcos
|
|
3939 IH 35 South
|
|
|
|
San Marcos
|
|
TX
|
|
|
78666 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
San Marcos Factory Stores, Ltd |
116-10050
|
|
Prime Outlets at Ellenton
|
|
5597 Factory Shops Blvd
|
|
Suite 335
|
|
Ellenton
|
|
FL
|
|
|
34222 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Gulf Coast Factory Shops Limited Partnership |
116-10060
|
|
Colonnade at Sawgrass
|
|
1800 Sawgrass Mills Circle
|
|
|
|
Sunrise
|
|
FL
|
|
|
33323 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Sawgrass Mills Phase IV, L.L.C. |
116-10070
|
|
Miromar Outlets
|
|
10801 Corkskrew Road
|
|
|
|
Estero
|
|
FL
|
|
|
33928 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Miromar Outlet West, LLC |
116-13000
|
|
Carlsbad Premium Outlets
|
|
5610 Paseo Del Norte
|
|
|
|
Carlsbad
|
|
CA
|
|
|
92008 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Carlsbad Holdings, LLC |
116-13010
|
|
Camarillo Premium Outlets
|
|
910 Camarillo Center Drive
|
|
|
|
Camarillo
|
|
CA
|
|
|
93010 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
116-13030
|
|
Designer Outlet Gallery
|
|
55 Hartz Way
|
|
|
|
Secaucus
|
|
NJ
|
|
|
7094 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Secaucus Outlet Center, LLC |
17
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
116-13040 Hybrid (FN4)
|
|
Las Vegas Premium Outlets
|
|
I-15 at US 95 on Grand Central Parkway
|
|
Unit 1380
|
|
Las Vegas
|
|
NV
|
|
|
89106 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Simon/Chelsea Las Vegas Development, LLC |
116-13050 Hybrid (FN4)
|
|
Seattle Premium Outlets
|
|
10600 Quil Ceda Blvd.
|
|
|
|
Tulalip
|
|
WA
|
|
|
98271 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
116-13060
|
|
Katy Mills
|
|
5000 Katy Mills Circle, Suite 330
|
|
|
|
Katy
|
|
TX
|
|
|
77494 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Katy Mills Mall Limited Partnership |
116-13070
|
|
Orlando Outlet World
|
|
4955 International Drive
|
|
|
|
Orlando
|
|
FL
|
|
|
32819 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Orlando Outlet Owner LLC |
116-13080 Hybrid (FN4)
|
|
Leesburg Corner Premium Outlets
|
|
241 Fort Evans Road NE
|
|
|
|
Leesburg
|
|
VA
|
|
|
20176 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
116-13090 Hybrid (FN4)
|
|
Chicago Premium Outlets
|
|
1650 Premium Outlets Blvd.
|
|
Suite 1001
|
|
Aurora
|
|
IL
|
|
|
60504 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Simon/Chelsea Chicago Development, LLC |
116-13110
|
|
Prime Outlets at Williamsburg
|
|
5625-110 Richmond Road
|
|
|
|
Williamsburg
|
|
VA
|
|
|
23188 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Williamsburg Mazel, LLC |
116-13120
|
|
Houston Premium Outlets
|
|
29300 Hempstead Road
|
|
|
|
Cypress
|
|
TX
|
|
|
77433 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Houston Holdings, L.P. |
116-13130
|
|
Philadelphia Premium Outlets
|
|
18 Lightcap Road
|
|
|
|
Limerick
|
|
PA
|
|
|
19464 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Chelsea Limerick Holdings, LLC |
116-13140
|
|
Clinton Crossing Premium Outlets
|
|
20-A Killingworth Turnpike
|
|
|
|
Clinton
|
|
CT
|
|
|
6413 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
116-13160
|
|
Jersey Gardens
|
|
651 Kapowski Road
|
|
|
|
Elizabeth
|
|
NJ
|
|
|
7201 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
JG Elizabeth, LLC |
116-13170
|
|
Fashion Outlets of Las Vegas
|
|
32100 Las Vegas Blvd. South
|
|
|
|
Primm
|
|
NV
|
|
|
89019 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Fashion Outlet of Las Vegas, LLC |
116-13180 Hybrid (FN4)
|
|
North Georgia Premium Outlets
|
|
800 Highway 400 South, Suite 895
|
|
|
|
Dawsonville
|
|
GA
|
|
|
30534 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
116-13190
|
|
Jersey Shore Premium Outlets
|
|
1 Premium Outlet Blvd., Space 761
|
|
|
|
Tinton Falls
|
|
NJ
|
|
|
7753 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Tinton Falls Urban Renewal, LLC |
116-13200
|
|
Prime Outlets at Queenstown
|
|
209 Outlet Center Drive Suite 209
|
|
|
|
Queenstown
|
|
MD
|
|
|
21658 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Second Horizon Group Limited Partnership |
116-13210
|
|
Fashion Outlets of Niagara
|
|
1900 Military Rd & Connecting Blvd
|
|
|
|
Niagara Falls
|
|
NY
|
|
|
14304 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Fashion Outlets of Niagara LLC |
116-13230
|
|
Riviera Centre Factory Stores
|
|
2601 McKenzie Street
|
|
|
|
Foley
|
|
AL
|
|
|
36535 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
COROC/Riviera L.L.C. |
116-13240 (FN5)
|
|
Prime Outlets at Grove City
|
|
Intersection of I-79 & Route 208
|
|
|
|
Grove City
|
|
PA
|
|
|
16127 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Grove City Factory Shops Limited Partnership |
116-13250
|
|
The Crossings Premium Outlets
|
|
1000 Route 611
|
|
|
|
Tannersville
|
|
PA
|
|
|
18372 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, LP |
116-13270
|
|
Prime Outlets at St. Augustine
|
|
500 Belz Outlet Boulevard
|
|
|
|
St. Augustine
|
|
FL
|
|
|
32084 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
LVP St. Augustine Outlets LLC |
116-13280
|
|
Tanger Outlet Center at the Arches
|
|
1340 The Arches Circle
|
|
|
|
Deer Park
|
|
NY
|
|
|
11729 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Deer Park Enterprise, LLC |
18
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
116-13350 ND (FN2)
|
|
Prime Outlets at Jeffersonvile
|
|
8000 Factory Shops Boulevard
|
|
Suite 360
|
|
Jeffersonville
|
|
OH
|
|
|
43128 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Ohio Factory Shops Partnership |
116-13380 ND (FN2)
|
|
Prime Outlets at Pleasant Prairie
|
|
11211 120th Avenue
|
|
Suite A025
|
|
Pleasant Prairie
|
|
WI
|
|
|
53158 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Prime Outlets at Pleasant Prairie LLC |
116-13420 ND (FN2)
|
|
Gaffney
|
|
1 Factory Shops Boulevard
|
|
|
|
Gaffney
|
|
SC
|
|
|
29341 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Gaffney Outlets, LLC |
116-19000 *
|
|
NorthPark Center
|
|
8687 N. Central Expressway
|
|
|
|
Dallas
|
|
TX
|
|
|
75225 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
NorthPark Partners, LP |
116-19100 *
|
|
Phipps Plaza
|
|
3500 Peachtree Road, NE
|
|
|
|
Atlanta
|
|
GA
|
|
|
30326 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
CPI-Phipps Limited Liability Company |
116-13300 ND
|
|
Silver Sands Factory Shops
|
|
10562 Emerald Coast Parkway
|
|
|
|
Destin
|
|
FL
|
|
|
32550 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc.
|
|
Silver Sands Joint Venture Partners II |
116-35000
|
|
Scottsdale Fashion Square
|
|
7014 E. Camelback Road
|
|
Suite 1284
|
|
Scottsdale
|
|
AZ
|
|
|
85251 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Scottsdale Fashion Square LLC |
116-35010
|
|
The Westchester
|
|
125 Westchester Avenue
|
|
Suite 925
|
|
White Plains
|
|
NY
|
|
|
10601 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Westchester Mall, LLC |
116-35020
|
|
Newbury Street
|
|
12 Newbury Street
|
|
|
|
Boston
|
|
MA
|
|
|
2116 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Norgand Realty LLC |
116-35030
|
|
Fifth Avenue (Flat Iron)
|
|
103 Fifth Avenue
|
|
|
|
New York
|
|
NY
|
|
|
10003 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Harlington Realty Co., LLC |
116-35040
|
|
The Pavilion at Paseo Nuevo
|
|
803 State Street
|
|
|
|
Santa Barbara
|
|
CA
|
|
|
93101 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Sphear Investments, LLC |
116-35050
|
|
Grant Avenue
|
|
105 Grant Avenue
|
|
|
|
San Francisco
|
|
CA
|
|
|
94108 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Trinity Management Services |
116-35060
|
|
Fashion Island
|
|
573 Newport Center Drive
|
|
|
|
Newport Beach
|
|
CA
|
|
|
92660 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
The Irvine Company, LLC |
116-35070
|
|
Ala Moana Center
|
|
1450 Ala Moana Boulevard #2059
|
|
|
|
Honolulu
|
|
HI
|
|
|
96814 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
GGP Ala Moana, L.L.C. |
116-35080
|
|
Royal Hawaiian Shopping Center
|
|
2301 Kalakaua Avenue
|
|
|
|
Honolulu
|
|
HI
|
|
|
96815 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Trustees of the Estate of Bernice Pauahi Bishop |
116-35090
|
|
860 Madison Avenue
|
|
860 Madison Avenue
|
|
|
|
New York
|
|
NY
|
|
|
10021 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Lighthouse Properties LLC |
116-35100
|
|
San Francisco Centre
|
|
865 Market Street
|
|
Building 2 (Emporium)
|
|
San Francisco
|
|
CA
|
|
|
94103 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Emporium Mall LLC |
116-35110
|
|
Mall at Millenia
|
|
4200 Conroy Road
|
|
|
|
Orlando
|
|
FL
|
|
|
32839 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Forbes Taubman Orlando, L.L.C |
116-35120
|
|
The Pier at Caesars
|
|
1 Atlantic Ocean
|
|
|
|
Atlantic City
|
|
NJ
|
|
|
8401 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Atlantic Pier Associates LLC |
116-35130
|
|
The Shops at La Cantera
|
|
15900 La Cantera Parkway
|
|
|
|
San Antonio
|
|
TX
|
|
|
78256 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
La Cantera Retail Limited Partnership |
116-35140
|
|
The Village at Merrick Park
|
|
1055 Village of Merrick Park
|
|
|
|
Coral Gables
|
|
FL
|
|
|
33146 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Merrick Park LLC |
116-35150
|
|
Bleeker Street
|
|
368 Bleeker Street
|
|
plus lower levels of 368,370,372 & 374 Bleeker Street
|
|
New York
|
|
NY
|
|
|
10014 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Tamara Properties, Inc. and Gomidas Holding Corp. |
19
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
116-35160
|
|
Valley Fair
|
|
Stevens Creek Boulevard
|
|
|
|
Santa Clara
|
|
CA
|
|
|
95050 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
VF Mall LLC |
116-35170
|
|
Malibu Country Mart
|
|
3900 Cross Creek Road
|
|
|
|
Malibu
|
|
CA
|
|
|
90265 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
3900 Cross Creek LLC dba Malibu Country Mart |
116-35180
|
|
The Domain
|
|
11601 Century Oaks Terrace
|
|
Suite 117
|
|
Austin
|
|
TX
|
|
|
78758 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
SPGIL Domain, L.P. |
116-35190
|
|
Galleria Dallas
|
|
13350 Dallas Parkway
|
|
|
|
Dallas
|
|
TX
|
|
|
75240 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Galleria Mall Investors LP |
116-35200
|
|
The Plaza at King of Prussia
|
|
160 North Gulph Road
|
|
Upper Merion Township
|
|
King of Prussia
|
|
PA
|
|
|
19406 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
King of Prussia Associates |
116-35210
|
|
The Mall at Short Hills
|
|
1200 Morris Turnpike
|
|
|
|
Short Hills
|
|
NJ
|
|
|
7078 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Short Hills Associates, L.L.C. |
116-35220
|
|
SouthPark Mall
|
|
4400 Sharon Road
|
|
|
|
Charlotte
|
|
NC
|
|
|
28211 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
SouthPark Mall Limited Partnership |
116-35230
|
|
Town Center at Boca Raton
|
|
6000 Glades Road
|
|
|
|
Boca Raton
|
|
FL
|
|
|
33431 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
The Town Center at Boca Raton Trust |
116-35240
|
|
Aventura Mall
|
|
19575 Biscayne Boulevard
|
|
|
|
Aventura
|
|
FL
|
|
|
33180 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Aventura Mall Venture |
116-35250
|
|
Natick West
|
|
1245 Worcester Street
|
|
|
|
Natick
|
|
MA
|
|
|
01760-1553 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
GGP Natick West L.L.C. |
116-35260
|
|
Century City Mall
|
|
10250 Santa Monica Boulevard
|
|
|
|
Los Angeles
|
|
CA
|
|
|
90067 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Century City Mall, LLC |
116-35270
|
|
Houston Galleria II
|
|
5085 West Heimer
|
|
|
|
Houston
|
|
TX
|
|
|
77056 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
HG Galleria I, II, III, L.P. |
116-35290
|
|
Rodeo Drive
|
|
456, 458 & 460 North Rodeo Drive
|
|
|
|
Beverly Hills
|
|
CA
|
|
|
90210 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Karl B. Schurz, as Trustee of the Karl B. Schurz Trust |
116-35300
|
|
225 Worth Avenue
|
|
225 Worth Avenue Unit A & B
|
|
|
|
Palm Beach
|
|
FL
|
|
|
33480 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
P/A Florida Associates |
116-35310
|
|
M Street
|
|
3034 M Street
|
|
|
|
Washington
|
|
DC
|
|
|
20007 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
3034 LLC |
116-35320
|
|
Town Square
|
|
6543 Las Vegas Blvd South
|
|
|
|
Las Vegas
|
|
NV
|
|
|
89119 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Turnberry/Centra Sub, LLC |
116-35330
|
|
Tysons Galleria
|
|
2001 International Drive
|
|
|
|
McLean
|
|
VA
|
|
|
22102 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Tysons Galleria L.L.C. |
116-35340
|
|
St. Johns Town Center
|
|
4663 River City Drive
|
|
|
|
Jacksonville
|
|
FL
|
|
|
32246 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
STJTC II, LLC |
116-35350
|
|
Cherry Creek
|
|
3000 East First Ave.
|
|
|
|
Denver
|
|
CO
|
|
|
80206 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Taubman Cherry Creek Shopping Center, L.L.C. |
116-35360
|
|
650 Fifth Avenue
|
|
650 Fifth Avenue
|
|
|
|
New York
|
|
NY
|
|
|
10022 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
650 Fifth Avenue Company |
116-35370
|
|
The Village at Corte Madera
|
|
1630 Redwood Highway
|
|
|
|
Corte Madera
|
|
CA
|
|
|
94925 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Corte Madera Village, LLC |
116-35380
|
|
Arden Fair
|
|
1689 Arden Way
|
|
|
|
Sacramento
|
|
CA
|
|
|
95815 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Arden Fair Associates, L.P. |
20
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
116-35390
|
|
King Street
|
|
278 King Street
|
|
|
|
Charleston
|
|
SC
|
|
|
29043 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Lyband Family LLC and Oristo Downtown LLC |
116-35400
|
|
Plaza Frontenac
|
|
1701 South Lindbergh Blvd.
|
|
|
|
St. Louis
|
|
MO
|
|
|
63131 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Davis Street Land Company of Missouri, L.L.C. |
116-35410
|
|
Americana at Manhasset
|
|
2036 Northern Blvd
|
|
|
|
Manhasset
|
|
NY
|
|
|
11030 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Fifth Avenue of Long Island Realty Associates |
116-35420
|
|
The Americana at Brand
|
|
539 Americana Way
|
|
|
|
Glendale
|
|
CA
|
|
|
91210 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
The Americana at Brand, LLC |
116-35430
|
|
East Oak Street
|
|
101 East Oak Street
|
|
|
|
Chicago
|
|
IL
|
|
|
60611 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Chicago Oak Street Partners, LLC |
116-35440
|
|
Waterside Shops at Pelican Bay
|
|
5485 Tamiami Trail N.
|
|
|
|
Naples
|
|
FL
|
|
|
34108 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Waterside at Pelican Bay LLC |
116-35450
|
|
Northbrook Court
|
|
1216 Northbrook Court
|
|
|
|
Northbrook
|
|
IL
|
|
|
60062 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Westcoast Estates |
116-35460
|
|
Walnut Street
|
|
1701 Walnut Street
|
|
|
|
Philadelphia
|
|
PA
|
|
|
19103 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
1701 Walnut Street, LLC |
116-35470
|
|
Bridge Street Town Centre
|
|
330 Bridge Street
|
|
|
|
Huntsville
|
|
AL
|
|
|
35806 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Huntsville Shores, LLC |
116-35480
|
|
One Colorado
|
|
37 West Colorado Boulevard
|
|
|
|
Pasadena
|
|
CA
|
|
|
91105 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
One Colorado Investments LLC |
116-35490
|
|
Garden State Plaza
|
|
One Garden State Plaza
|
|
|
|
Paramus
|
|
NJ
|
|
|
7652 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Westland Garden State Plaza Limited Partnership |
116-35500
|
|
Somerset Collection
|
|
2801 Big Beaver Road
|
|
|
|
Troy
|
|
MI
|
|
|
48084 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Somerset Collection Limited Partnership |
116-35510
|
|
Broadway Plaza
|
|
1275 Broadway Plaza
|
|
|
|
Walnut Creek
|
|
CA
|
|
|
94596 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Macerich Northwestern Associates |
116-35520
|
|
Fashion Valley Mall
|
|
7007 Friars Road
|
|
|
|
San Diego
|
|
CA
|
|
|
92108 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Fashion Valley Mall, LLC |
116-35530
|
|
The Mall at Green Hills
|
|
2126 Abbott Martin Road
|
|
|
|
Nashville
|
|
TN
|
|
|
37215 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Davis Street Land Company of Tennessee, L.L.C. |
116-35540
|
|
University Village
|
|
2610 NE University Village
|
|
|
|
Seattle
|
|
WA
|
|
|
98105 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
University Village Limited Partnership |
116-35560
|
|
Ross Park
|
|
1000 Ross Park Mall Drive
|
|
|
|
Pittsburgh
|
|
PA
|
|
|
15237 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Penn Ross Joint Venture |
116-35570
|
|
North Star
|
|
7400 San Pedro Ave
|
|
|
|
San Antonio
|
|
TX
|
|
|
78216 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
North Star Mall, LLC |
116-35580
|
|
Pioneer Place
|
|
700 SW 5th Ave
|
|
|
|
Portland
|
|
OR
|
|
|
97204 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Pioneer Place Limited Partnership |
116-35610
|
|
The Summit
|
|
220 Summit Boulevard
|
|
|
|
Birmingham
|
|
AL
|
|
|
35243 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Bayer Retail Company VI, L.L.C. |
116-35620
|
|
Kierland Commons
|
|
15215 North Kierland Boulevard
|
|
Suite 125
|
|
Scottsdale
|
|
AZ
|
|
|
85254 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Kierland Greenway, LLC |
116-35650 ND (FN2)
|
|
El Paseo Village
|
|
73-545 and 73-525 El Paseo Boulevard
|
|
|
|
Palm Desert
|
|
CA
|
|
|
92260 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
El Paseo Land Company, L.L.C. |
21
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
116-35660
|
|
Stanford Shopping Center
|
|
660 Stanford Shopping Center
|
|
|
|
Palo Alto
|
|
CA
|
|
|
94304 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
SPG Center, LLC |
116-35670 ND (FN2)
|
|
Santa Monica Place
|
|
395 Santa Monica Place
|
|
|
|
Santa Monica
|
|
CA
|
|
|
90401 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Macerich Santa Monica, LLC |
116-35680
|
|
Galleria at Roseville
|
|
1151 Galleria Boulevard
|
|
|
|
Roseville
|
|
CA
|
|
|
95678 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Roseville Shoppingtown LLC |
116-35710 *
|
|
Forum Shops at Caesars
|
|
3500 Las Vegas Boulevard South
|
|
|
|
Las Vegas
|
|
NV
|
|
|
89109 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Forum Shops, LLC |
116-35740
|
|
Forum Shops at Caesars
|
|
3500 Las Vegas Boulevard South
|
|
|
|
Las Vegas
|
|
NV
|
|
|
89109 |
|
|
Love G&P
|
|
LCI Holdings, Inc.
|
|
Forum Shops, LLC |
119-38000V (FN1) (entirely sublet)
|
|
Third Street Promenade
|
|
1427 Third Street Promenade
|
|
|
|
Santa Monica
|
|
CA
|
|
|
90401 |
|
|
Kensie
|
|
LCI Holdings, Inc.
|
|
Alan M. Mont and Francine S. Ginsburg |
120-18000 *
|
|
Woodbury Common Premium Outlets
|
|
234 Red Apple Court
|
|
|
|
Central Valley
|
|
NY
|
|
|
10917 |
|
|
Kate Spade Outlet
|
|
Kate Spade, LLC
|
|
CPG Partners, L.P. |
120-18010
|
|
Prime Outlets at San Marcos
|
|
393 IH-35 South
|
|
|
|
San Marcos
|
|
TX
|
|
|
78666 |
|
|
Kate Spade Outlet
|
|
Kate Spade, LLC
|
|
San Marcos Factory Stores, Ltd. |
120-18020 *
|
|
Chicago Premium Outlets
|
|
1650 Premium Outlet Blvd.
|
|
|
|
Aurora
|
|
IL
|
|
|
60504 |
|
|
Kate Spade Outlet
|
|
Kate Spade, LLC
|
|
Simon/Chelsea Chicago Development, LLC |
120-18030
|
|
Colonnade at Sawgrass
|
|
1800 Sawgrass Mills Circle
|
|
|
|
Sunrise
|
|
FL
|
|
|
33323 |
|
|
Kate Spade Outlet
|
|
Kate Spade, LLC
|
|
Sawgrass Mills Phase IV, L.L.C. |
120-18040 Hybrid (FN4)
|
|
Prime Outlets at Ellenton
|
|
5705 Factory Shops Boulevard
|
|
|
|
Ellenton
|
|
FL
|
|
|
34222 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Gulf Coast Factory Shops Limited Partnership |
120-18050
|
|
Tanger Factory Outlet Center
|
|
1770 West Main Street
|
|
Suite 208
|
|
Riverhead
|
|
NY
|
|
|
11901 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Tanger Properties Limited Partnership |
120-18060 Hybrid (FN4)
|
|
Prime Outlets at Queenstown
|
|
401 Outlet Center Drive
|
|
|
|
Queenstown
|
|
MD
|
|
|
21658 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Second Horizon Group Limited Partnership |
120-18070 * Hybrid (FN4)
|
|
Wrentham Village Premium Outlets
|
|
One Premium Outlet Blvd, Suite 450
|
|
|
|
Wrentham
|
|
MA
|
|
|
02093-0656 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
120-18080 Hybrid (FN4)
|
|
Tanger Factory Outlet Center
|
|
10819 Kings Road Unit 400
|
|
|
|
North Myrtle Beach
|
|
SC
|
|
|
29572 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
TWMB Associates, LLC |
120-18100 Hybrid (FN4)
|
|
Leesburg Corner Premium Outlets
|
|
241 Fort Evans Road NE
|
|
|
|
Leesburg
|
|
VA
|
|
|
20176 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
120-18110
|
|
Prime Outlets at Jeffersonville
|
|
800 Factory Shops Boulevard
|
|
Suite 570
|
|
Jeffersonville
|
|
OH
|
|
|
43128 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Ohio Factory Shops Partnership |
120-18120
|
|
Desert Hills Premium Outlets
|
|
48650 Seminole Road Suite 105
|
|
|
|
Cabazon
|
|
CA
|
|
|
92230 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, LP |
120-18130 * Hybrid (FN4)
|
|
Camarillo Premium Outlets
|
|
950 Camarillo Center Drive
|
|
Suite 978
|
|
Camarillo
|
|
CA
|
|
|
93010 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
120-18150
|
|
Las Vegas Premium Outlets
|
|
795 S. Grand Central Pkwy.
|
|
|
|
Las Vegas
|
|
NV
|
|
|
89106 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Simon/Chelsea Las Vegas Development, LLC |
120-18160
|
|
Philadelphia Premium Outlets
|
|
18 Lightcap Road
|
|
|
|
Limerick
|
|
PA
|
|
|
19464 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Chelsea Limerick Holdings, LLC |
120-18190 Hybrid (FN4)
|
|
Rehoboth Outlet Center
|
|
Rehoboth Outlet Center 1, Suite 327
|
|
|
|
Rehoboth Beach
|
|
DE
|
|
|
19971 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
COROC/Rehoboth I L.L.C. |
22
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
120-18200
|
|
Houston Premium Outlets
|
|
29300 Hempstead Road
|
|
|
|
Cypress
|
|
TX
|
|
|
77433 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Houston Holdings, L.P. |
120-18210 Hybrid (FN4)
|
|
Seattle Premium Outlets
|
|
10600 Quil Ceda Blvd.
|
|
|
|
Tulalip
|
|
WA
|
|
|
98271 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
120-18230
|
|
Prime Outlets at Hagerstown
|
|
700 Prime Outlets Blvd.
|
|
|
|
Hagerstown
|
|
MD
|
|
|
21740 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Outlet Village of Hagerstown Limited Partnership |
120-18240
|
|
Prime Outlets at St. Augustine
|
|
500 Belz Outlet Boulevard
|
|
|
|
St. Augustine
|
|
FL
|
|
|
32064 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
LVP St. Augustine Outlets LLC |
120-18250
|
|
Orlando Outlet World
|
|
4955 International Drive
|
|
|
|
Orlando
|
|
FL
|
|
|
32819 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Orlando Outlet Owner LLC |
120-18260
|
|
Prime Outlets at Williamsburg
|
|
5645-130 Richmond Road
|
|
|
|
Williamsburg
|
|
VA
|
|
|
23188 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Williamsburg Mazel, LLC |
120-18270
|
|
Tanger Outlet Center at the Arches
|
|
455 Commack Road
|
|
|
|
Deer Park
|
|
NY
|
|
|
11729 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Deer Park Enterprise, LLC |
120-18280
|
|
Jersey Shore Premium Outles
|
|
1 Premium Outlet Blvd.
|
|
|
|
Tinton Falls
|
|
NJ
|
|
|
7753 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Tinton Falls Urban Renewal, LLC |
120-18290
|
|
Fashion Outlets of Las Vegas
|
|
32100 Las Vegas Blvd. South
|
|
|
|
Primm
|
|
NV
|
|
|
89019 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Fashion Outlet of Las Vegas, LLC |
120-18300 Hybrid (FN4)
|
|
North Georgia Premium Outlets
|
|
800 Highway 400 South, Suite 895
|
|
|
|
Dawsonville
|
|
GA
|
|
|
30534 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P. |
120-18320
|
|
Clinton Crossing Premium Outlets
|
|
20-A Killingworth Turnpike
|
|
|
|
Clinton
|
|
CT
|
|
|
6413 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
CPG Partners, LP |
120-18330
|
|
Fashion Outlets of Niagara
|
|
1900 Military Rd & Connecting Blvd
|
|
|
|
Niagara Falls
|
|
NY
|
|
|
14304 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
Fashion Outlets of Niagara LLC |
120-18350
|
|
97 Depot Street
|
|
97 Depot Street
|
|
|
|
Manchester
|
|
Vt
|
|
|
5255 |
|
|
Kate Spade Outlet
|
|
LCI Holdings, Inc.
|
|
H.B. Realty Partners, L.P. |
120-32000-1
|
|
454 Broome St. (Roof HVAC)
|
|
454 Broome Street
|
|
|
|
New York
|
|
NY
|
|
|
10013 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Chakrapani Corporation |
120-32000-2
|
|
456 Broome St. (Ground Floor/Nieuw LL)
|
|
456 Broome Street
|
|
|
|
New York
|
|
NY
|
|
|
10013 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Nieuw Broome Owners, LLC |
120-32000-3
|
|
454 Broome St. (1st & Basmnt/Herb Wells)
|
|
454 Broome Street
|
|
|
|
New York
|
|
NY
|
|
|
10013 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Herbert A. Wells, III |
120-32010
|
|
Newbury Street
|
|
117 Newbury Street
|
|
|
|
Boston
|
|
MA
|
|
|
2116 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Junior League of Boston, Inc. |
120-32020
|
|
Greenwich Avenue
|
|
271 Greenwich Avenue
|
|
|
|
Greenwich
|
|
CT
|
|
|
6830 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
271 Greenwich Avenue, LLC |
120-32030
|
|
East Oak Street
|
|
56 East Oak Street
|
|
|
|
Chicago
|
|
IL
|
|
|
60611 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Chicago Title Land Trust Company |
120-32040
|
|
Grant Avenue
|
|
207 Grant Avenue
|
|
|
|
San Francisco
|
|
CA
|
|
|
94108 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Bonds Land Investment Co., Ltd |
120-32060
|
|
Georgetown
|
|
3061 M Street NW
|
|
|
|
Washington
|
|
DC
|
|
|
20007 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Lobert Properties |
23
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
120-32070
|
|
Lenox Square
|
|
3393 Peachtree Road NE
|
|
|
|
Atlanta
|
|
GA
|
|
|
30326 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
The Retail Property Trust |
120-32080
|
|
Houston Galleria I
|
|
5015 Westheimer
|
|
|
|
Houston
|
|
TX
|
|
|
77056 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
HG Shopping Centers, L.P. |
120-32090
|
|
SouthPark Mall
|
|
4400 Sharon Road
|
|
|
|
Charlotte
|
|
NC
|
|
|
28211 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
SouthPark Mall Limited Partnership |
120-32100
|
|
NorthPark Center
|
|
518 Northpark Center
|
|
|
|
Dallas
|
|
TX
|
|
|
75225 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
NorthPark Partners, LP |
120-32130
|
|
The Plaza at King of Prussia
|
|
160 North Golph Road
|
|
|
|
King of Prussia
|
|
PA
|
|
|
19406 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
King of Prussia Associates |
120-32140
|
|
Stanford Shopping Center
|
|
153 Stanford Shopping Center
|
|
|
|
Palo Alto
|
|
CA
|
|
|
94304 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
SPG Center, LLC |
120-32150
|
|
Scottsdale Fashion Square
|
|
7014 East Camelback Road
|
|
|
|
Scottsdale
|
|
AZ
|
|
|
85251 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Scottsdale Fashion Square LLC |
120-32160
|
|
Somerset Collection
|
|
2800 West Big Beaver Road
|
|
|
|
Troy
|
|
MI
|
|
|
48084 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Somerset Collection Limited Partnership |
120-32170
|
|
Palmer Square North
|
|
10 Hulfish Street
|
|
|
|
Princeton
|
|
NJ
|
|
|
8542 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Nassau Inn Limited Partnership |
120-32180
|
|
Fashion Island
|
|
819 Newport Center Drive
|
|
|
|
Newport Beach
|
|
CA
|
|
|
92660 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
The Irvine Company, LLC |
120-32190
|
|
466 Broome St. (Jack Spade)
|
|
466 Broome Street
|
|
with entrance at 56 Greene Street
|
|
New York
|
|
NY
|
|
|
10013 |
|
|
Jack Spade
|
|
Kate Spade, LLC
|
|
466-26 Soho LLC |
120-32200
|
|
Royal Hawaiian Shopping Center
|
|
2201 Kalakaua Ave.
|
|
|
|
Honolulu
|
|
HI
|
|
|
96815 |
|
|
Kate Spade
|
|
Kate Spade, LLC
|
|
Trustees of the Estate of Bernice Pauahi Bishop |
120-32270
|
|
Fifth Avenue
|
|
135 Fifth Avenue
|
|
|
|
New York
|
|
NY
|
|
|
10003 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
135 Fifth Avenue LLC |
120-32290
|
|
San Francisco Centre
|
|
425 Market Street
|
|
|
|
San Francisco
|
|
CA
|
|
|
94103 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
S.F. Centre Limited Partnership |
120-32310
|
|
The Americana at Brand
|
|
116 Caruso Avenue
|
|
|
|
Glendale
|
|
CA
|
|
|
91210 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
The Americana at Brand, LLC |
120-32370
|
|
One Colorado
|
|
37 West Colorado Boulevard
|
|
|
|
Pasadena
|
|
CA
|
|
|
91105 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
One Colorado Investments LLC |
120-32390
|
|
Pioneer Place
|
|
700 SW 5th Ave
|
|
|
|
Portland
|
|
OR
|
|
|
97204 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Pioneer Place Limited Partnership |
120-32400
|
|
The Mall at Chestnut Hill
|
|
199 Boylston St
|
|
|
|
Newton
|
|
MA
|
|
|
2467 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
WMACH LLC |
120-32410
|
|
Broadway Plaza
|
|
1177 Broadway Plaza
|
|
|
|
Walnut Creek
|
|
CA
|
|
|
35496 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Macerich Northwestern Associates |
120-32420
|
|
Century City Mall
|
|
10250 Santa Monica Boulevard
|
|
#196
|
|
Los Angeles
|
|
CA
|
|
|
90067 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Century City Mall, LLC |
120-32440
|
|
The Village at Corte Madera
|
|
1814 Redwood Highway
|
|
Space B025
|
|
Corte Madera
|
|
CA
|
|
|
94925 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Corte Madera Village, LLC |
120-32460
|
|
Topanga Plaza
|
|
6600 Topanga Canyon Boulevard
|
|
|
|
Canoga Park
|
|
CA
|
|
|
91303 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Westfield Topanga Owner LP |
24
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
120-32470
|
|
Fashion Valley Mall
|
|
7007 Friars Rd.
|
|
|
|
San Diego
|
|
CA
|
|
|
92108 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Fashion Valley Mall, LLC |
120-32510
|
|
Ross Park
|
|
1000 Ross Park Mall Drive
|
|
|
|
Pittsburgh
|
|
PA
|
|
|
15237 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Penn Ross Joint Venture |
120-32550
|
|
International Plaza
|
|
2223 North Westshore Boulevard
|
|
Space 221
|
|
Tampa
|
|
FL
|
|
|
33607 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Tampa Westshore Associates Limited Partnership |
120-32560
|
|
Waterside Shops at Pelican Bay
|
|
5485 Tamiami Trail N.
|
|
|
|
Naples
|
|
FL
|
|
|
34108 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Waterside at Pelican Bay LLC |
120-32570
|
|
The Westchesher
|
|
125 Westchester Avenue
|
|
|
|
White Plains
|
|
NY
|
|
|
10601 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Westchester Mall, LLC |
120-32570ND (FN2)
|
|
The Westchester
|
|
125 Westchester Avenue
|
|
Suite 925
|
|
White Plains
|
|
NY
|
|
|
10601 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Westchester Mall, LLC |
120-32580
|
|
The Mall at Green Hills
|
|
2126 Abbott Martin Road
|
|
#313
|
|
Nashville
|
|
TN
|
|
|
37215 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Davis Street Land Company of Tennessee, L.L.C. |
120-32590
|
|
Fashion Show Mall
|
|
3200 Las Vegas Blvd.
|
|
|
|
Las Vegas
|
|
NV
|
|
|
89109 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Fashion Show Mall, LLC |
120-32610
|
|
Plaza Frontenac
|
|
97 Plaza Frontenac
|
|
|
|
St. Louis
|
|
MO
|
|
|
63131 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Davis Street Land Company of Missouri L.L.C. |
120-32650
|
|
Ala Moana Center
|
|
1450 Ala Moana Blvd.
|
|
|
|
Honolulu
|
|
HI
|
|
|
|
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
GGP Ala Moana L.L.C. |
120-32660
|
|
Bleeker Street
|
|
400 Bleeker Street
|
|
a/k/a 288 West 11th Street
|
|
New York
|
|
NY
|
|
|
10014 |
|
|
Jack Spade
|
|
LCI Holdings, Inc.
|
|
400 Bleecker Street Co., LLC |
120-32700 ND
|
|
Abbot Kinney
|
|
1132 Abbot Kinney Boulevard
|
|
|
|
Venice
|
|
CA
|
|
|
90291 |
|
|
Jack Spade
|
|
LCI Holdings, Inc.
|
|
Scott J. Borman |
125-14040 Hybrid (FN4)
|
|
Woodbury Common Premium Outlets
|
|
231 Red Apple Court
|
|
Route 32, Box 11
|
|
Central Valley
|
|
NY
|
|
|
10917 |
|
|
Kensie
|
|
LCI Holdings, Inc.
|
|
CPG Partners, L.P |
152-13310 ND (FN2)
|
|
Barceloneta
|
|
1 Prime Outlets Boulevard
|
|
|
|
Barceloneta
|
|
PR
|
|
|
617 |
|
|
Juicy Outlet
|
|
Liz Claiborne Puerto Rico, Inc.
|
|
PR Barceloneta, LLC |
152-30800
|
|
Prime Outlets of Puerto Rico
|
|
1 Prime Outlets Blvd Suite 400
|
|
|
|
Barceloneta
|
|
PR
|
|
|
617 |
|
|
Liz Claiborne
|
|
Liz Claiborne Puerto Rico, Inc.
|
|
PR Barceloneta, LLC |
152-32300
|
|
Route 66 Mall
|
|
18400 State Road #3, Suite 170
|
|
|
|
Canovanas
|
|
PR
|
|
|
729 |
|
|
Liz Claiborne
|
|
Liz Claiborne Puerto Rico, Inc.
|
|
FOM Puerto Rico, S.E. |
152-69000
|
|
Plaza Las Americas
|
|
525 F.D. Roosevelt Avenue
|
|
Hato Rey
|
|
San Juan
|
|
PR
|
|
|
918 |
|
|
Lucky
|
|
Liz Claiborne Puerto Rico, Inc.
|
|
Plaza Las Americas, Inc. |
230-60000-1
|
|
30 Irving Place
|
|
30 Irving Place
|
|
9th Floor
|
|
New York
|
|
NY
|
|
|
|
|
|
Narciso Rodriguez Facilities
|
|
Havana LLC
|
|
30 Irving Place Realty Co. |
230-60000-2V (FN1) (partially sublet)
|
|
17-19 Union Square West
|
|
17-19 Union Square West
|
|
|
|
New York
|
|
NY
|
|
|
|
|
|
Narciso Facilities
|
|
Havana LLC
|
|
17-19 Associates, LLC |
290-41100
|
|
209 West 38th Street
|
|
209 West 38th Street
|
|
|
|
New York
|
|
NY
|
|
|
|
|
|
Westcoast Contempo Facilities
|
|
Westcoast Contempo (USA) Inc.
|
|
Newmark & Company Real Estate, Inc., as Agent for 209-219 W 38 LLC |
25
Schedule 3.05 B
Other Leased Real Property US [updated as of 5/1/2010]
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Banner |
|
|
|
Landlord Entity under the |
Lease # |
|
Location Name |
|
Address 1 |
|
Address 2 |
|
City |
|
State |
|
Zip |
|
/Tradename |
|
Tenant Entity under the Lease |
|
Lease |
290-41400
|
|
California Market Center
|
|
110 East Ninth Street
|
|
|
|
Los Angeles
|
|
CA
|
|
|
90079 |
|
|
Westcoast Contempo Facilities
|
|
Westcoast Contempo (USA) Inc.
|
|
Jamison California Market Center, LP |
|
325-50000-2
|
|
48 West 25th Street (6th & 7th Floor)
|
|
48 West 25th Street
|
|
|
|
New York
|
|
NY
|
|
|
10010 |
|
|
Kate Spade Facilities
|
|
Kate Spade, LLC
|
|
48 West 25th Street, LLC |
325-50000-3
|
|
48 West 25th Street (4th Floor)
|
|
48 West 25th Street
|
|
|
|
New York
|
|
NY
|
|
|
10010 |
|
|
Kate Spade Facilities
|
|
Kate Spade, LLC
|
|
48 West 25th Street, LLC |
325-50000-4
|
|
48 West 25th Street (5th Floor)
|
|
48 West 25th Street
|
|
|
|
New York
|
|
NY
|
|
|
10010 |
|
|
Kate Spade Facilities
|
|
Kate Spade, LLC
|
|
48 West 25th Street, LLC |
330-65000-5
|
|
12723 Wentworth Street
|
|
12723 Wentworth Street
|
|
12800 Rangoon Street
|
|
Arleta
|
|
CA
|
|
|
91331 |
|
|
Juicy Facilities
|
|
Juicy Couture, Inc.
|
|
IPERS BREA/Golden State Business Parks, Inc. |
|
330-65000-7
|
|
Cooper Building
|
|
860 S. Los Angeles Street
|
|
|
|
Los Angeles
|
|
CA
|
|
|
90014 |
|
|
Juicy Facilities
|
|
Juicy Couture, Inc.
|
|
Big Munga Development, LLC dba Mercantile Center |
330-65000-8
|
|
12825 Rangoon Street
|
|
12825 Rangoon Street
|
|
|
|
Arleta
|
|
CA
|
|
|
91331 |
|
|
Juicy Facilities
|
|
Juicy Couture, Inc.
|
|
IPERS BREA/Golden State Business Parks, Inc. |
360-41400-1
|
|
New Mart Building
|
|
127 East Ninth Street
|
|
|
|
Los Angeles
|
|
CA
|
|
|
90015 |
|
|
Lucky Facilities
|
|
Lucky Brand Dungarees, Inc.
|
|
Eisenberg Properties-New Mart Building, Inc. |
360-50000-1
|
|
5233 Alcoa Avenue
|
|
5233 Alcoa Avenue
|
|
|
|
Vernon
|
|
CA
|
|
|
90058 |
|
|
Lucky Facilities
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
The Guardian Life Insurance Company of America |
360-50000-2
|
|
5400 Alcoa Avenue
|
|
5400 Alcoa Avenue
|
|
|
|
Vernon
|
|
CA
|
|
|
90058 |
|
|
Lucky Facilities
|
|
Lucky Brand Dungarees, Inc.
|
|
Kudenoff/Kroener Family Partnership |
ND SP 107 El Paseo (FN2)
|
|
El Paseo Village
|
|
73-545 and 73-525 El Paseo Boulevard
|
|
|
|
Palm Desert
|
|
CA
|
|
|
92260 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
El Paseo Land Company, L.L.C. |
ND SP 107 Oyster Bay (FN2)
|
|
The Mall at Oyster Bay
|
|
|
|
|
|
Oyster Bay
|
|
NY
|
|
|
|
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Oyster Bay Associates Limited Partnership |
ND SP 107 South Shore (FN2)
|
|
South Shore Plaza
|
|
250 Granite Street
|
|
|
|
Braintree
|
|
MA
|
|
|
02184 |
|
|
Lucky
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Braintree Property Associates Limited Partnership |
|
|
|
|
|
ND SP 116 Oyster Bay (FN2)
|
|
The Mall at Oyster Bay
|
|
|
|
|
|
Oyster Bay
|
|
NY
|
|
|
|
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Oyster Bay Associates Limited Partnership |
ND SP 116 South Shore (FN2)
|
|
South Shore Plaza
|
|
250 Granite Street
|
|
|
|
Braintree
|
|
MA
|
|
|
02184 |
|
|
Juicy
|
|
LCI Holdings, Inc.
|
|
Braintree Property Associates Limited Partnership |
ND SP 120 El Paseo (FN2)
|
|
El Paseo Village
|
|
73-545 and 73-525 El Paseo Boulevard
|
|
|
|
Palm Desert
|
|
CA
|
|
|
92260 |
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
El Paseo Land Company, L.L.C. |
ND SP 120 Oyster Bay (FN2)
|
|
The Mall at Oyster Bay
|
|
|
|
|
|
Oyster Bay
|
|
NY
|
|
|
|
|
|
Kate Spade
|
|
LCI Holdings, Inc.
|
|
Oyster Bay Associates Limited Partnership |
ND SP 123 King of PrussiaV (FN3)
|
|
Court at King of Prussia
|
|
304 Goddard Boulevard
|
|
|
|
King of Prussia
|
|
PA
|
|
|
19406 |
|
|
Liz Claiborne Full Price
|
|
LCI Holdings, Inc.
|
|
King of Prussia Associates |
26
Schedule 3.05 B
FOOTNOTES:
|
|
|
FN1 |
|
any Lease # with a V means that the property have been vacated but there is still a lease
obligation (a termination deal may be in negotiation). |
|
FN2 |
|
any Lease # with a ND either at the beginning or at the end means there is a lease
obligation but the store has not opened/lease has not commenced yet |
|
FN3 |
|
This lease has open litigation. The store never opened and its enforceability and validity
is being challenged by the Tenant Entity under the Lease. |
|
FN4 |
|
Hybrid these leases are a Hybrid where a portion of the space is operated as a Lucky
store. The Tenant under the lease in LCI Holdings, Inc. but we have internally allocated a portion
of the space to Lucky Brand Dungarees Stores, Inc. for the Lucky store portion and we intend to
create an internal sublease document. |
|
FN5 |
|
These leases currently have month to month terms. We are either in the process of negotiating
extension documents and the terms will then be converted to a fixed term or we will continue to
operate on a month to month basis. |
|
FN6 |
|
These leases expires 4/30/2010, but may be extended. |
|
* |
|
Leases with an asterisk have a separate storage space payment associated with them as of
2/23/2010 (but subject to change as some may be temporary storage spaces) |
Deals in negotiation, fully executed lease not available as of 3/1/2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ND O 116 Allen
|
|
Allen Premium Outlets
|
|
820 West Stacy Road
|
|
|
|
Allen
|
|
TX
|
|
|
75013 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc. |
116-13330 ND
|
|
Five Oaks
|
|
|
|
|
|
Sevierville
|
|
TN
|
|
|
37862 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc. |
116-35780 ND
|
|
International Plaza
|
|
2223 N. West Shore Boulevard
|
|
|
|
Tampa
|
|
FL
|
|
|
33607 |
|
|
Juicy
|
|
LCI Holdings, Inc. |
116-13390 ND
|
|
Orlando Premium Outlets
|
|
8200 Vineland Avenue
|
|
|
|
Orlando
|
|
FL
|
|
|
32821 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc. |
116-13340 ND
|
|
Patomac Mills
|
|
2700 Patomac Mills Circle
|
|
|
|
Woodbridge
|
|
VA
|
|
|
22192 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc. |
116-13410 ND
|
|
Rehoboth Outlet Center
|
|
36470 Seaside Outlet Drive
|
|
|
|
Rehoboth Beach
|
|
DE
|
|
|
19971 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc. |
116-13320 ND
|
|
Rio Grand Valley Premium Outlets
|
|
5001 East Expressway
|
|
|
|
Mercedes
|
|
TX
|
|
|
78570 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc. |
116-35760 ND
|
|
Roosevelt Field
|
|
630 Old Country Road
|
|
|
|
Garden City
|
|
NY
|
|
|
11530 |
|
|
Juicy
|
|
LCI Holdings, Inc. |
|
|
116-13400 ND
|
|
Waikele Premium Outlets
|
|
94-790 Lumiaina Street
|
|
|
|
Waipahu
|
|
HI
|
|
|
96797 |
|
|
Juicy Outlet
|
|
LCI Holdings, Inc. |
27
Schedule 3.06
Disclosed Matters
None
1
Schedule 3.10
Foreign Benefit Arrangements and Foreign Pension Plans (Plan)
|
|
|
|
|
|
|
Name of Loan Party/Subs. |
|
|
|
|
|
|
maintaining or |
|
|
|
|
|
|
contributing to Plan |
|
Name of Plan |
|
Type of Plan |
|
Region or Country |
Liz Claiborne, Inc.
|
|
Retirement Fund / Mandatory Provident Fund
(MPF) is the Fidelity Master Trust Fund
|
|
Defined
Contribution Plan
|
|
Asia |
Liz Claiborne Canada Inc.
|
|
Liz Claiborne Canada Inc. Retirement Plan
(27398-G)
|
|
Defined
Contribution Plan
|
|
Canada |
Westcoast Contempo
Fashions Limited
|
|
Workers United Canada Retirement Fund
|
|
Pension Plan
|
|
Canada |
Mexx Nederland BV
|
|
Mexx collectieve pensioenregeling
|
|
Defined
Contribution Plan
|
|
Netherlands |
Mexx Europe BV
|
|
Mexx collectieve pensioenregeling
|
|
Defined
Contribution Plan
|
|
Netherlands |
Mexx Europroduction BV
|
|
Mexx collectieve pensioenregeling
|
|
Defined
Contribution Plan
|
|
Netherlands |
Mexx Europe
International BV
|
|
Mexx collectieve pensioenregeling
|
|
Defined
Contribution Plan
|
|
Netherlands |
Mexx Nederland Retail BV
|
|
Bedrijfstakpensioenfonds voor de detailhandel
|
|
Defined benefit
|
|
Netherlands |
Mexx Ltd / Liz Claiborne
Europe
|
|
Stakeholder pensionscheme (Standard Life)
|
|
Defined
Contribution Plan
|
|
UK |
Mexx Holding GmbH
|
|
Gruppenversicherung/pension plan
|
|
Pension Plan
|
|
Germany |
Mexx Deutschland GmbH
|
|
Gruppenversicherung/pension plan
|
|
Pension Plan
|
|
Germany |
Mexx Modehandels GmbH
|
|
Gruppenversicherung/pension plan
|
|
Pension Plan
|
|
Germany |
Mexx Scandinavia AB
|
|
Mexx Scandinavia AB Occupational Pension Plan
|
|
Pension Plan
|
|
Sweden |
Mexx Scandinavia AS
|
|
Mexx Scandinavia AB Occupational Pension Plan
|
|
Pension Plan
|
|
Norway |
Mexx Scand. Finland OY
|
|
Unit linked sesam Insurance Contract
|
|
Defined
Contribution Plan
|
|
Finland |
Mexx Belgium NV
|
|
Groepsverzekering
|
|
Defined
Contribution Plan
|
|
Belgium |
Mexx Ireland Ltd.
|
|
PRSA (Personal Retirement Savings Account)
|
|
Defined
Contribution Plan
|
|
Ireland |
Schedule 3.14
Schedule 3.14
INSURANCE
POLICIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Category |
|
Insurer |
|
A. M. Best |
|
Policy No. |
|
Term |
|
Coverages |
|
Limits |
|
|
Insureds |
PROPERTY |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Factory Mutual Ins. Co. |
|
A+ XV |
|
LD 577 |
|
05/31/09 05/31/10 |
|
All Risks Property Insurance |
|
|
|
$ |
500,000,000 |
|
|
Includes all |
|
|
(FM Global) |
|
|
|
UK090961 |
|
|
|
|
|
|
|
|
|
|
|
Loan Parties |
|
|
|
|
|
|
|
|
|
|
Inventory at Warehouse only |
|
|
|
|
|
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
See Stock Throughput below |
|
|
|
|
|
|
|
Agreement |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Terrorism Sublimits |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Certified Acts |
|
Per Occ. |
|
$ |
500,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Non Certified Acts |
|
Per Occ. |
|
$ |
1,000,000 |
|
|
|
POLITICAL RISK / WAR ON LAND / TRADE DISRUPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lloyds of London |
|
A, XV |
|
M80187010 |
|
02/01/10 02/01/12 |
|
Political Risk/Confiscation |
|
Per Occ. |
|
$ |
12,500,000 |
|
|
Includes all |
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate |
|
$ |
25,000,000 |
|
|
Loan Parties |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
Lloyds of London |
|
A, XV |
|
M80187010 |
|
02/01/10 02/01/12 |
|
War on Land |
|
Per Occ. |
|
$ |
12,500,000 |
|
|
Agreement |
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate |
|
$ |
25,000,000 |
|
|
|
|
|
|
|
Lloyds of London |
|
A, XV |
|
M80187010 |
|
02/01/10 02/01/12 |
|
Terrorism |
|
Per Occ. |
|
$ |
20,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
(excess and difference in |
|
Aggregate |
|
$ |
30,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
conditions of FM policy) |
|
|
|
|
|
|
|
|
|
|
|
|
Lloyds of London |
|
A, XV |
|
M80187010 |
|
02/01/10 02/01/12 |
|
Trade Disruption |
|
Per Occ. |
|
$ |
15,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
(consequential loss) |
|
Aggregate |
|
$ |
17,500,000 |
|
|
|
STOCK THROUGH PUT/TRANSIT AND MARINE CARGO |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Lloyds of London & |
|
A, XV |
|
M80186010 |
|
02/01/10 02/01/11 |
|
Transits |
|
|
|
$ |
30,000,000 |
|
|
Includes all |
|
|
Various British Companies |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan Parties |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
Lloyds of London & |
|
A, XV |
|
M80186010 |
|
02/01/10 02/01/11 |
|
Inventory excluding Retail Stores |
|
|
|
$ |
50,000,000 |
|
|
Agreement |
|
|
Various British Companies |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1
Schedule 3.14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Category |
|
Insurer |
|
A. M. Best |
|
Policy No. |
|
Term |
|
Coverages |
|
Limits |
|
|
Insureds |
CASUALTY |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Hartford |
|
A, XV |
|
10CSEC77702 |
|
09/30/09 09/30/10 |
|
General Liability |
|
|
|
$ |
5,000,000 |
|
|
|
|
|
|
Hartford |
|
A, XV |
|
10ABC77703 |
|
09/30/09 09/30/10 |
|
Business Auto |
|
|
|
$ |
1,000,000 |
|
|
Includes all |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan Parties |
|
|
Hartford |
|
A, XV |
|
10WNC77700 |
|
09/30/09 09/30/10 |
|
Workers Compensation |
|
|
|
Statutory |
|
|
as defined in Credit |
|
|
Hartford |
|
A, XV |
|
10WBRC77701 |
|
09/30/09 09/30/10 |
|
|
|
|
|
|
|
|
|
Agreement |
|
|
Hartford |
|
A, XV |
|
10XWEC77704 |
|
09/30/09 09/30/10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Umbrella & Excess Liability |
|
$ |
100,000,000 |
|
|
|
|
|
ACE |
|
A+, XV |
|
XOOG24902201 |
|
09/30/09 09/30/10 |
|
Primary 25MM |
|
|
|
|
|
|
|
|
|
|
Great American |
|
A, XIV |
|
TUE358011206 |
|
09/30/09 09/30/10 |
|
50% of 50MM x 25MM |
|
|
|
|
|
|
|
|
|
|
Chubb |
|
A++, XV |
|
79766879 |
|
09/30/09 09/30/10 |
|
50% of 50MM x 25MM |
|
|
|
|
|
|
|
|
|
|
Zurich |
|
A, XV |
|
AEC913970503 |
|
09/30/09 09/30/10 |
|
25MM x 75MM |
|
|
|
|
|
|
|
|
SPECIAL EVENTS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chubb |
|
A++, XV |
|
79488737 |
|
10/25/09 10/25/10 |
|
Special Events Liability |
|
|
|
$ |
1,000,000 |
|
|
Includes all |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan Parties |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agreement |
TRAVEL |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
National Union |
|
A, XV |
|
GTP0009129950 |
|
03/13/10 03/13/13 |
|
Travel Accident |
|
|
|
|
|
|
|
|
|
|
Fire Insurance Co. (Chartis) |
|
|
|
|
|
|
|
|
Officers |
|
$ |
1,000,000 |
|
|
Includes all |
|
|
|
|
|
|
|
|
|
|
|
All other employees |
|
$ |
250,000 |
|
|
Loan Parties |
|
|
|
|
|
|
|
|
|
|
All guests traveling at Liz expense |
|
$ |
50,000 |
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
|
Spouse |
|
$ |
100,000 |
|
|
Agreement |
|
|
|
|
|
|
|
|
|
|
|
Dependent children |
|
$ |
50,000 |
|
|
|
DIRECTORS & OFFICERS |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Executive Liability and Indemnification |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Directors & Officers |
|
|
|
$ |
50,000,000 |
|
|
Includes all |
|
|
Federal Ins. Co. |
|
A++ XV |
|
81035379 |
|
08/11/09 08/11/10 |
|
Primary 15MM |
|
|
|
|
|
|
|
Loan Parties |
|
|
(Chubb Group) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agreement |
|
|
National Union |
|
A, XV |
|
10367883 |
|
08/11/09 08/11/10 |
|
10MM x 15MM |
|
|
|
|
|
|
|
|
|
|
Fire Insurance Co. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Chartis) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
St. Paul Mercury Ins. Co. |
|
A+, XV |
|
EC09002621 |
|
08/11/09 08/11/10 |
|
10MM x 25MM |
|
|
|
|
|
|
|
|
|
|
(Travelers) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Allied World Assurance |
|
A, XV |
|
3048602 |
|
08/11/09 08/11/10 |
|
10MM x 35MM |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Everest National Insurance Co. |
|
A+, XV |
|
SC5ED00004091 |
|
08/11/09 08/11/10 |
|
5MM x 45MM |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Side-A Excess Exec Liab and Indem |
|
$ |
35,000,000 |
|
|
Includes all |
|
|
XL Specialty (XL Capital Group) |
|
A, XV |
|
ELU11292909 |
|
08/11/09 08/11/10 |
|
10MM x 50MM |
|
|
|
|
|
|
|
Directors & Officers of |
|
|
AXIS Insurance |
|
A, XV |
|
MNN741743012009 |
|
08/11/09 08/11/10 |
|
10MM x 60MM |
|
|
|
|
|
|
|
Loan Parties |
|
|
AIG Casualty Company |
|
A, XV |
|
3690400 |
|
08/11/09 08/11/10 |
|
10MM x 70MM |
|
|
|
|
|
|
|
as defined in Credit |
|
|
Berkley Insurance Company |
|
A+, XV |
|
1923938 |
|
08/11/09 08/11/10 |
|
5MM x 80MM |
|
|
|
|
|
|
|
Agreement |
2
Schedule 3.14
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Category |
|
Insurer |
|
A. M. Best |
|
Policy No. |
|
Term |
|
Coverages |
|
Limits |
|
|
Insureds |
FIDUCIARY |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiduciary Liability |
|
$ |
15,000,000 |
|
|
Includes all |
|
|
St. Paul Mercury Ins. Co. |
|
A+, XV |
|
ECO9003071 |
|
01/15/10 01/15/11 |
|
Primary 10MM |
|
|
|
|
|
|
|
Loan Parties |
|
|
(Travelers) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agreement |
|
|
Federal Ins. Co. |
|
A++, XV |
|
82095332 |
|
01/15/10 01/15/11 |
|
10MM x 10MM |
|
|
|
|
|
|
|
|
|
|
(Chubb Group) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EMPLOYMENT PRACTICES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Employment Practices Liability |
|
$ |
20,000,000 |
|
|
|
|
|
St. Paul Mercury Ins. Co. |
|
A+, XV |
|
ECO9002740 |
|
09/30/09 09/30/10 |
|
Primary 10MM |
|
|
|
|
|
|
|
Includes all |
|
|
(Travelers) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan Parties |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
Federal Ins. Co. |
|
A++, XV |
|
8158-8137 |
|
09/30/09 09/30/10 |
|
10MM x 10MM |
|
|
|
|
|
|
|
Agreement |
|
|
(Chubb Group) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INTERNET |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Internet Security and Privacy |
|
|
|
|
|
|
|
|
Beazley Insurance Co |
|
A, XV |
|
W1033D090101 |
|
12/18/09 12/18/10 |
|
Liability |
|
|
|
$ |
3,000,000 |
|
|
Includes all |
|
|
Syndicate 2623/623 @ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan Parties |
|
|
Lloyds of London |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agreement |
CRIME |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal Ins. Co. |
|
A++, XV |
|
81847635 |
|
08/11/09 08/11/10 |
|
Commercial Crime |
|
$ |
15,000,000 |
|
|
Includes all |
|
|
(Chubb Group) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan Parties |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agreement |
SPECIAL COVERAGE |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liberty Ins. Underwriters, Inc. |
|
A, XV |
|
206211018 |
|
01/01/08 01/01/11 |
|
Kidnap and Ransom |
Per Loss |
|
$ |
15,000,000 |
|
|
Includes all |
|
|
(Liberty Mutual Group) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loan Parties |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agreement |
FOREIGN INSURANCE PROGRAM |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Excess and Difference in Conditions Coverage |
|
|
|
|
|
|
|
|
Insurance Company of the State |
|
A, XV |
|
WR10008277 |
|
09/30/09 09/30/10 |
|
Foreign General Liability |
|
$ |
1,000,000 |
|
|
Includes all |
|
|
of PA |
|
|
|
|
|
|
|
Foreign Automobile |
|
$ |
1,000,000 |
|
|
Loan Parties |
|
|
(Chartis) |
|
|
|
|
|
|
|
Foreign Workers |
|
|
|
|
|
as defined in Credit |
|
|
|
|
|
|
|
|
|
|
Compensation/Employers Liability |
|
$ |
1,000,000 |
|
|
Agreement |
CREDIT INSURANCE |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Euler Hermes Credit |
|
N/A |
|
64.762 |
|
01/01/07 12/31/10 |
|
Accounts Receivable |
|
|
|
|
62 million |
|
|
Mexx Europe B.V. |
|
|
Insurance Belgium N.V. |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3
Schedule 3.15
Schedule 3.15
Capitalization and Subsidiaries
3.15(a) and (c) List of name of Subsidiaries, their relationship to Liz Claiborne, Inc. (the
Company), and the type of entity of each entity:
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
Owner(s)/ |
|
|
Entity Name |
|
Formation |
|
Type of Entity |
|
Holder(s) and its jurisdiction of formation |
|
|
Liz Claiborne, Inc.
|
|
Delaware
|
|
Corporation
|
|
N/A |
Domestic Entities |
|
|
|
|
|
|
|
|
|
|
Jerg, Inc.
|
|
California
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Juicy Couture, Inc.
|
|
California
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Skylark Sport Marketing Corporation
|
|
California
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
DB Newco Corp.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Nonee I Holding, LLC
|
|
Delaware
|
|
LLC
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Nonee I, LLC
|
|
Delaware
|
|
LLC
|
|
Nonee I Holding, LLC (Delaware) (100%) |
|
|
Havana LLC
|
|
Delaware
|
|
LLC
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Kate Spade LLC
|
|
Delaware
|
|
LLC
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
L. C. Augusta, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
L.C. Caribbean Holdings, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
LC Libra, LLC
|
|
Delaware
|
|
LLC
|
|
Liz Claiborne, Inc. (Delaware) (99%)
LCI Holdings, Inc. (Delaware) (1%) |
|
|
L.C. Licensing, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
L.C. Service Company, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
L.C. Special Markets, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
LCI Acquisition U.S., Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne Foreign Holdings, Inc. (Delaware) (100%) |
|
|
LCI Holdings, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
LCI Investments, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Boodle, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Accessories, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Accessories-Sales, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Cosmetics, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Export, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
Schedule 3.15
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
Owner(s)/ |
|
|
Entity Name |
|
Formation |
|
Type
of Entity |
|
Holder(s) and its jurisdiction of formation |
|
|
Liz Claiborne Foreign Holdings, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Japan, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Puerto Rico, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Sales, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Shoes, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Lucky Brand Dungarees, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (99.701%) |
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
Delaware
|
|
Corporation
|
|
Lucky Brand Dungarees, Inc. (Delaware) (100%) |
|
|
Monet International, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Monet Puerto Rico, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Segrets, Inc.
|
|
Delaware
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (99.297%) |
|
|
Westcoast Contempo Promenade, Inc.
|
|
Washington
|
|
Corporation
|
|
Westcoast Contempo Retail, Inc. (Washington) (100%) |
|
|
Westcoast Contempo Retail, Inc.
|
|
Washington
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Westcoast Contempo (U.S.A.) Inc.
|
|
Washington
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
Foreign Entities |
|
|
|
|
|
|
|
|
|
|
Mexx Austria GmbH
|
|
Austria
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Mexx Belgium NV
|
|
Belgium
|
|
Corporation
|
|
Mexx Europe International B.V. (Netherlands) (99.99%)
Mexx Group B.V. (Netherlands) (.01%) |
|
|
Retrain NV
|
|
Belgium
|
|
Corporation
|
|
Mexx Europe International B.V. (Netherlands) (99.99%)
Mexx Group B.V. (Netherlands) (.01%) |
|
|
Liz Claiborne DO Brasil Industria E Comercia
|
|
Brazil
|
|
Company with Limited Liability
|
|
L.C. Caribbean Holdings, Inc. (Delaware) (99%)
Liz Claiborne Foreign Holdings, Inc. (Delaware) (1%) |
|
|
Westcoast Contempo Fashions Limited
|
|
British Columbia
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Liz Claiborne Canada Inc.
|
|
Canada
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware)
(100% of common shares)
Liz Claiborne Export, Inc. (Delaware) (100% of preferred shares) |
|
|
Juicy Couture Canada Inc.
|
|
Canada
|
|
Corporation
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Sheng Hui Fashion (Shenzhen) Co. Limited
|
|
China
|
|
Limited Liability Company
|
|
Mexx Far East Ltd. (Hong Kong) (100%) |
|
|
Shanghai Zhong Haw Costume & Accessories Co. Ltd.
|
|
China
|
|
Corporation
|
|
Westcoast Contempo (U.S.A.) Inc. (Washington) (33%) |
|
|
Mexx Czech Republic S.r.o.
|
|
Czech Republic
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Mexx Scandinavia Finland OY
|
|
Finland
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
Schedule 3.15
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
Owner(s)/ |
|
|
Entity Name |
|
Formation |
|
Type of Entity |
|
Holder(s) and its jurisdiction of formation |
|
|
Mexx Boutiques SARL
|
|
France
|
|
Limited Liability Company
|
|
Mexx France SAS (France) (99%)
Mexx Europe Holding B.V. (Netherlands) (.01%) |
|
|
Mexx France International SAS
|
|
France
|
|
Simplified Corporation
|
|
Liz Claiborne Europe (United Kingdom) (100%) |
|
|
Mexx France SAS
|
|
France
|
|
Simplified Corporation (société par actions simplifiées)
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Mexx Deutschland GmbH
|
|
Germany
|
|
Limited Liability Company
|
|
Mexx Holding GmbH (Germany) (100%) |
|
|
Mexx Direct GmbH & Co KG
|
|
Germany
|
|
Limited Partnership
|
|
Mexx Group B.V. (Netherlands) (100%) |
|
|
Mexx Holding GmbH
|
|
Germany
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Mexx Modehandels GmbH
|
|
Germany
|
|
Corporation
|
|
Mexx Holding GmbH (Germany) (100%) |
|
|
Verwaltungsgesellschaft Mexx Direct mbH
|
|
Germany
|
|
Limited Liability Company
|
|
Mexx Group B.V. (Netherlands) (100%) |
|
|
Mexx Hellas EPE
|
|
Greece
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Textiles Liz Claiborne Guatemala, SA
|
|
Guatemala
|
|
Company with Limited Liability
|
|
L.C. Caribbean Holdings, Inc. (Delaware) (99.99%)
Liz Claiborne Foreign Holdings, Inc. (Delaware) (.1%) |
|
|
Liz Claiborne International Limited
|
|
Hong Kong
|
|
Private Company with Limited Liability
|
|
Mexx Holding Netherlands B.V. (Netherlands) (100%) |
|
|
Mexx Asia Pacific Ltd.
|
|
Hong Kong
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Bright Win Ltd.
|
|
Hong Kong
|
|
Limited Liability Company
|
|
Mexx Far East Ltd. (Hong Kong) (100%) |
|
|
Mexx Far East Ltd.
|
|
Hong Kong
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Mexx Hungary Ltd.
|
|
Hungary
|
|
Limited Liability Company
|
|
Mexx Europe Holding B.V. (Netherlands) (1%)
Mexx Europe International B.V. (Netherlands) (99%) |
|
|
Mexx Ireland Limited
|
|
Ireland
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Juicy Couture Ireland Limited
|
|
Ireland
|
|
Limited Liability Company
|
|
Juicy Couture Europe Limited (United Kingdom) (100%) |
|
|
Liz Claiborne (Israel) Ltd.
|
|
Israel
|
|
Company with Limited Liability
|
|
L.C. Licensing Inc. (Delaware)
(1%)
Liz Claiborne Foreign Holdings, Inc. (Delaware) (99%) |
|
|
Liz Claiborne Operations (Israel) 1993 Ltd.
|
|
Israel
|
|
Private Company with Limited Liability
|
|
Liz Claiborne Foreign Holdings, Inc. (Delaware) (99%)
Liz Claiborne, Inc. (Delaware) (1%) |
|
|
Mexx Italy S.r.l.
|
|
Italy
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
Schedule 3.15
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
Owner(s)/ |
|
|
Entity Name |
|
Formation |
|
Type of Entity |
|
Holder(s) and its jurisdiction of formation |
|
|
Mexx Luxembourg S.à.r.l
|
|
Luxembourg
|
|
Company with Limited Liability
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Liz Claiborne de Mexico, S.A. de C.V.
|
|
Mexico
|
|
Private Company with Limited Liability
|
|
L.C. Caribbean Holdings, Inc.
(Delaware) (1%)
Liz Claiborne Foreign Holdings, Inc. (Delaware) (99%) |
|
|
Liz Claiborne Servicios de Mexico, S.A. de C.V.
|
|
Mexico
|
|
Private Company with Limited Liability
|
|
L.C. Service Company, Inc.
(Delaware) (99%)
Liz Claiborne Export, Inc. (Delaware) (1%) |
|
|
Liz Claiborne 3 B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Europe Holding B.V. (Netherlands) (100%) |
|
|
Liz Claiborne 2 B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Europe Holding B.V. (Netherlands) (100%) |
|
|
Mexx Direct Holding B.V.
|
|
Netherlands
|
|
Company with Limited Liability
|
|
Mexx Group B.V. (Netherlands) (100%) |
|
|
Mexx Europe B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Holding Netherlands B.V. (Netherlands) (100%) |
|
|
Mexx Europe Holding B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
LCI Acquisition U.S., Inc. (Delaware) (100%) |
|
|
Mexx Europe International B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Liz Claiborne 3 BV (Netherlands) (7%)
Liz Claiborne 2 BV (Netherlands) (25%)
Mexx Holding International B.V. (68%) |
|
|
Mexx Europroduction B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Holding Netherlands B.V. (Netherlands) (100%) |
|
|
Mexx Group B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Mexx Holding International B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Europe Holding B.V. (Netherlands) (100%) |
|
|
Mexx Holding Netherlands B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Group B.V. (Netherlands) (33.3%)
Mexx Europe Holding B.V. (Netherlands) (66.6%) |
|
|
Mexx Nederland B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Holding Netherlands B.V. (Netherlands) (100%) |
|
|
Mexx Nederland Retail B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Holding Netherlands B.V. (Netherlands) (100%) |
|
|
Mexx Sport Benelux B.V.
|
|
Netherlands
|
|
Private Company with Limited Liability
|
|
Mexx Holding Netherlands B.V. (Netherlands) (100%) |
|
|
High Mallow Company NV
|
|
Netherlands Antilles
|
|
Limited Liability Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Mexx Scandinavia AS
|
|
Norway
|
|
Limited Liability Company
|
|
Mexx Europe International B..V (Netherlands) (100%) |
|
|
Mexx Poland SP Zoo
|
|
Poland
|
|
Limited Liability Company
|
|
Mexx Group B.V. (Netherlands) (1%)
Mexx Europe International B.V. (Netherlands) (99%) |
|
|
Mexx Portugal, Unipessoal, LOA
|
|
Portugal
|
|
Limited Liability Company
|
|
Liz Claiborne Europe (United Kingdom) (100%) |
Schedule 3.15
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
|
|
Owner(s)/ |
|
|
Entity Name |
|
Formation |
|
Type of Entity |
|
Holder(s) and its jurisdiction of formation |
|
|
Mexx Southern Europe, S.R.L.
|
|
Spain
|
|
Sole Partner Company
|
|
Liz Claiborne Europe (United Kingdom) (99%)
Mexx Europe International B.V. (Netherlands) (1%) |
|
|
Mexx Scandinavia Aktiebolag
|
|
Sweden
|
|
Mexx Scandinavia Aktiebolag
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Mexx Modehandels AG
|
|
Switzerland
|
|
Corporation
|
|
Mexx Holding GmbH (Germany) (100%) |
|
|
Mexx Switzerland GmbH
|
|
Switzerland
|
|
Limited Liability Company
|
|
Mexx Modehandels AG (Switzerland) (100%) |
|
|
Mexx Middle East Centre FZE
|
|
United Arab Emirates
|
|
Free zone establishment
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Liz Claiborne Europe
|
|
United Kingdom
|
|
Unlimited Company
|
|
Mexx Europe International B.V. (Netherlands) (100%) |
|
|
Juicy Couture Europe Limited
|
|
United Kingdom
|
|
Private Company with Limited Liability
|
|
Liz Claiborne, Inc. (Delaware) (100%) |
|
|
Mexx Limited
|
|
United Kingdom
|
|
Limited Liability Company
|
|
Mexx Europe B.V. (Netherlands) (100%) |
Schedule 3.15
3.15(b) List of each class of authorized Equity Interests of each Borrower (other than the Company):
|
|
|
|
|
|
|
|
|
|
|
State of |
|
Total # of |
|
Total # of Issued |
|
Name & # of shares each |
Entity: |
|
Formation: |
|
Authorized Shares: |
|
Shares: |
|
Shareholder owns |
Liz Claiborne Canada Inc.
|
|
Canada
|
|
Unlimited number of common shares
Unlimited number of preferred shares issuable in series
1 Preferred Shares Series 1
|
|
100 common shares and 1 preferred share
|
|
Liz Claiborne, Inc. owns 100 common shares; Liz Claiborne Export, Inc. holds 1 preferred share |
|
|
|
|
|
|
|
|
|
Mexx Europe B.V.
|
|
Netherlands
|
|
1,000 shares
|
|
200 shares
|
|
Mexx Holding Netherlands B.V. all |
|
|
|
|
|
|
|
|
|
Juicy Couture Europe Limited
|
|
United Kingdom
|
|
1,000 shares
|
|
1,000 shares
|
|
Liz Claiborne, Inc. all |
Schedule 3.16
Schedule 3.16
Filing Jurisdictions
A) UCC Financing Statements:
|
|
|
|
|
No. |
|
Entity: |
|
Jurisdiction/State: |
A.
|
|
US Loan Parties: |
|
|
1.
|
|
Liz Claiborne, Inc.
|
|
DE |
2.
|
|
Jerg, Inc.
|
|
CA |
3.
|
|
Juicy Couture, Inc.
|
|
CA |
4.
|
|
Skylark Sport Marketing Corporation
|
|
CA |
5.
|
|
Boodle, Inc.
|
|
DE |
6.
|
|
DB Newco Corp.
|
|
DE |
7.
|
|
Havana LLC
|
|
DE |
8.
|
|
Kate Spade LLC
|
|
DE |
9.
|
|
L. C. Augusta, Inc.
|
|
DE |
10.
|
|
L.C. Caribbean Holdings, Inc.
|
|
DE |
11.
|
|
LC Libra, LLC & L.C. Libra, LLC
|
|
DE |
12.
|
|
L.C. Licensing, Inc.
|
|
DE |
13.
|
|
L.C. Service Company, Inc.
|
|
DE |
14.
|
|
L.C. Special Markets, Inc.
|
|
DE |
15.
|
|
LCI Acquisition U.S., Inc.
|
|
DE |
16.
|
|
LCI Holdings, Inc.
|
|
DE |
17.
|
|
LCI Investments, Inc.
|
|
DE |
18.
|
|
Liz Claiborne Accessories, Inc.
|
|
DE |
19.
|
|
Liz Claiborne Accessories-Sales, Inc.
|
|
DE |
20.
|
|
Liz Claiborne Cosmetics, Inc.
|
|
DE |
21.
|
|
Liz Claiborne Export, Inc.
|
|
DE |
22.
|
|
Liz Claiborne Foreign Holdings, Inc.
|
|
DE |
23.
|
|
Liz Claiborne Japan, Inc.
|
|
DE |
24.
|
|
Liz Claiborne Puerto Rico, Inc.
|
|
DE |
25.
|
|
Liz Claiborne Sales, Inc.
|
|
DE |
26.
|
|
Liz Claiborne Shoes, Inc.
|
|
DE |
27.
|
|
Lucky Brand Dungarees, Inc.
|
|
DE |
28.
|
|
Lucky Brand Dungarees Stores, Inc.
|
|
DE |
29.
|
|
Monet International, Inc.
|
|
DE |
30.
|
|
Monet Puerto Rico, Inc.
|
|
DE |
31.
|
|
Nonee I Holding, LLC
|
|
DE |
32.
|
|
Nonee I, LLC
|
|
DE |
33.
|
|
Segrets, Inc.
|
|
DE |
34.
|
|
Westcoast Contempo Promenade, Inc.
|
|
WA |
35.
|
|
Westcoast Contempo Retail, Inc.
|
|
WA |
36.
|
|
Westcoast Contempo (U.S.A.) Inc.
|
|
WA |
1
Schedule 3.16
|
|
|
|
|
No. |
|
Entity: |
|
Jurisdiction/State: |
37.
|
|
Liz Claiborne Puerto Rico, Inc.
|
|
PR |
38.
|
|
LCI Holdings, Inc.
|
|
PR |
|
|
Foreign Loan Parties: |
|
|
39.
|
|
Liz Claiborne Canada Inc.
|
|
DC |
40.
|
|
Westcoast Contempo Fashions Limited
|
|
DC |
41.
|
|
Juicy Couture Canada Inc.
|
|
DC and NJ |
42.
|
|
Mexx Europe B.V.
|
|
DC |
43.
|
|
Mexx Nederland B.V.
|
|
DC |
44.
|
|
Mexx Nederland Retail B.V.
|
|
DC |
45.
|
|
Mexx Modehandels GmbH
|
|
DC |
46.
|
|
Mexx Holding GmbH
|
|
DC |
47.
|
|
Verwaltungsgesellschaft Mexx Direct mbH
|
|
DC |
48.
|
|
Mexx Deutschland GmbH
|
|
DC |
49.
|
|
Mexx Direct GmbH & Co. KG
|
|
DC |
50.
|
|
Liz Claiborne 3 B.V.
|
|
DC |
51.
|
|
Liz Claiborne 2 B.V.
|
|
DC |
52.
|
|
Mexx Europe Holding B.V.
|
|
DC |
53.
|
|
Mexx Europe International B.V.
|
|
DC |
54.
|
|
Mexx Group B.V.
|
|
DC |
55.
|
|
Mexx Holding International B.V.
|
|
DC |
56.
|
|
Mexx Holding Netherlands B.V.
|
|
DC |
57.
|
|
Liz Claiborne Europe
|
|
DC |
58.
|
|
Juicy Couture Europe Limited
|
|
DC |
59.
|
|
Juicy Couture Ireland Limited
|
|
DC |
60.
|
|
Mexx Europroduction B.V.
|
|
DC |
61.
|
|
Mexx Sport Benelux B.V.
|
|
DC |
62.
|
|
Mexx Direct Holding B.V.
|
|
DC |
63.
|
|
Mexx Limited
|
|
DC |
2
Schedule 3.16
B) Amendments to Mortgages:
|
|
|
Entity: |
|
Jurisdiction/Office: |
LCI Holdings, Inc. |
|
Attn: Real Estate Recording |
|
|
Hudson County Register of Deeds |
|
|
595 Newark Ave |
|
|
Room 105 |
|
|
Jersey City, NJ 07306 |
LCI Holdings, Inc. |
|
Attn: Real Estate Recording |
|
|
Monroe County Recorder of Deeds |
|
|
7th & Monroe Street |
|
|
Courthouse |
|
|
Stroudsburg, PA 18360-2185 |
3
Schedule 3.16
C) Personal Property Security Act:
|
|
|
|
|
No. |
|
Entity: |
|
Jurisdiction/Province: |
|
|
Canadian Loan Parties: |
|
|
1.
|
|
Liz Claiborne Canada Inc.
|
|
Ontario, Alberta, British Columbia, Manitoba, Saskatchewan, New Brunswick and Nova Scotia |
2.
|
|
Westcoast Contempo Fashions Limited
|
|
British Columbia and Ontario |
3.
|
|
Juicy Couture Canada Inc.
|
|
Ontario |
D) Civil Code of Quebec:
|
|
|
|
|
No. |
|
Entity: |
|
Jurisdiction/Province: |
|
|
Canadian Loan Parties: |
|
|
1.
|
|
Liz Claiborne Canada Inc.
|
|
Quebec |
4
Schedule 5.19(a)
Post-Closing Obligations
|
|
|
|
|
|
|
|
|
Bank |
|
IBAN |
|
|
Account Number |
|
Country |
|
|
|
|
|
|
|
|
|
HSBC
|
|
ES5901620002340065507351
|
|
|
|
|
|
Spain |
|
|
|
|
|
|
|
|
|
ING
|
|
ES4601680001870001748118
|
|
|
|
|
|
Spain |
|
|
|
|
|
|
|
|
|
ABN Amro
|
|
NL95ABNA0604629338
|
|
|
|
|
|
Netherlands |
|
|
|
|
|
|
|
|
|
HSBC
|
|
IT1830210160000007300387030
|
|
|
|
|
|
Italy |
Schedule 5.19(b)
Post-Closing Obligations
|
|
|
|
|
|
|
Name of Grantor |
|
Name of Institution |
|
|
Account Number |
LCI Holdings, Inc.
|
|
SunTrust Bank
|
|
|
|
|
Schedule 5.19(e)
Post-Closing Obligations
1. |
|
The UK Borrower shall, on or prior to the date that is 60 days following the Effective
Date (or such later date agreed to by the European Collateral Agent in its sole
discretion), (x) close and transfer the function of the Lloyds TSB account with account
number 00938607, and transfer any funds on deposit therein to either (A) a Collection
Account held with the European Collateral Agent, or (B) a bank account in the United
Kingdom with a bank which meets the approval of the European Collateral Agent (such
approval not to be unreasonably withheld) (either of clause (A) or (B), the Replacement
Bank Account), and (y) implement a blocked account mechanism or other mechanism, in each
case, reasonably satisfactory to the European Collateral Agent, in respect of the
Replacement Bank Account, and deliver to the European Collateral Agent (A) documentation,
in form and substance reasonably satisfactory to the European Collateral Agent, granting a
first priority fixed charge over the Replacement Bank Account in favor of the European
Collateral Agent and (B) an opinion of counsel, in form and substance reasonably
satisfactory to the Administrative Agent, stating that such documentation shall constitute
a fully perfected Lien on, and security interest in, the Replacement Bank Account. |
2. |
|
The corrected (certified) Articles of Association of Mexx Holding GmbH must be produced
within 60 days of the Effective Date (or at such a later date where the European Collateral
Agent grants an extension in its sole discretion). |
3. |
|
Mexx Modehandels AG shall within 90 days of the Effective Date (or at such a later date
where the European Collateral Agent grants an extension in its sole discretion), deliver an
interim balance sheet as of 30 April 2010, certified by a financial officer and approved by
its statutory auditors. The interim balance sheet as of 30 April 2010, shall evidence that
Mexx Modehandels AG has agreed with its creditors on subordination of debts in an amount
exceeding 120% of the loss of Mexx Modehandels AG reflected on such interim balance sheet. |
4. |
|
Liz Claiborne Europe shall, within 60 days following the Effective Date (or such later
date agreed to by the European Collateral Agent in its sole discretion), take any and all
actions required (or, in the case of any such action requiring the consent of any third
party, use commercially reasonable efforts to cause such third party to provide such
consent) under the LCE Debenture to identify, grant or perfect any Lien over any asset
covered or purported to be covered by the LCE Debenture (it being understood that no
failure by Liz Claiborne Europe to take any such actions shall constitute a Default or
Event of Default prior to such date). |
5. |
|
Mexx Europe Holding BV shall, within 2 days following the Effective Date (or such later
date agreed to by the European Collateral Agent in its sole discretion), deliver the share
certificates and stock transfer forms relating to the shares held by Mexx Europe Holding BV
in Liz Claiborne Europe. |
Schedule 6.011
Existing Indebtedness
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding |
|
|
Outstanding |
|
|
|
Total |
|
|
as of 04/30/10 |
|
|
as of 04/30/10 |
|
|
|
Commitment |
|
|
(In Euro) |
|
|
(In USD) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
L/C Standby Indebtedness |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fortis Bank Netherlands* (secured by JPMorgan L/C) |
|
|
|
|
|
|
6,875,000 |
|
|
$ |
9,154,062.50 |
|
ING Bank Netherlands* |
|
|
|
|
|
|
491,616 |
|
|
$ |
654,586.70 |
|
Fortis Belgium* |
|
|
|
|
|
|
1,108,794 |
|
|
$ |
1,476,359.21 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ING Belgium* |
|
|
|
|
|
|
66,953 |
|
|
$ |
89,147.92 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commerzbank* |
|
|
|
|
|
|
616,097.11 |
|
|
$ |
820,333.30 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1.3315 as of 4/30/10 |
|
|
|
|
|
|
9,158,460.11 |
|
|
$ |
12,194,489.63 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capitalized Leases for OH and RI equipment |
|
|
|
|
|
|
|
|
|
|
|
|
Capitalized Lease pursuant to the Agreement
between
Banc of America Leasing
& Capital, LLC and Liz Claiborne, Inc. |
|
|
|
|
|
|
|
|
|
$ |
17,254,517 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Indebt. |
|
|
|
|
|
$ |
29,449,006.63 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* |
|
This is a roll up of all of the indebtedness at the bank pursuant to various letters of credit. |
Schedule 6.02
Schedule 6.02
Existing Liens
Liz Claiborne, Inc., Debtor: Delaware Secretary of State UCC Filings:
|
|
|
|
|
|
|
|
|
|
|
|
|
File #, Case# |
|
|
|
|
|
|
|
|
|
|
Book #, |
|
|
|
|
|
|
|
|
No. |
|
Page # |
|
File Date |
|
Current Secured Party of Record |
|
Collateral |
|
File Type |
1. |
|
32078361 |
|
07/23/2003 |
|
HSBC Bank USA |
|
Equipment Lease |
|
Original |
|
|
32755828 |
|
10/21/2003 |
|
|
|
|
|
Assignment |
|
|
81508611 |
|
05/01/2008 |
|
|
|
|
|
Continuation |
2. |
|
51142307 |
|
04/13/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
3. |
|
51232454 |
|
04/21/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
4. |
|
51302646 |
|
04/27/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
5. |
|
51327296 |
|
04/29/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
6. |
|
51347203 |
|
05/02/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
7. |
|
51404798 |
|
05/06/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
8. |
|
51508390 |
|
05/04/2005 |
|
IDB LEASING, INC. |
|
2 Raymond Vehicles |
|
Original |
9. |
|
51508408 |
|
05/04/2005 |
|
IDB LEASING, INC. |
|
Equipment |
|
Original |
10. |
|
51582031 |
|
05/23/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
11. |
|
51631234 |
|
05/26/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
12. |
|
51675793 |
|
06/01/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
1
Schedule 6.02
|
|
|
|
|
|
|
|
|
|
|
|
|
File #, Case# |
|
|
|
|
|
|
|
|
|
|
Book #, |
|
|
|
|
|
|
|
|
No. |
|
Page # |
|
File Date |
|
Current Secured Party of Record |
|
Collateral |
|
File Type |
13. |
|
51835298 |
|
06/15/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
14. |
|
51865428 |
|
06/17/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
15. |
|
51893891 |
|
06/21/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
16. |
|
51939843 |
|
06/23/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
17. |
|
52022607 |
|
06/30/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
18. |
|
52265990 |
|
07/22/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
19. |
|
52281302 |
|
07/25/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
20. |
|
52348796 |
|
07/29/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
21. |
|
52653781 |
|
08/25/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
22. |
|
52708122 |
|
08/31/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
23. |
|
52871904 |
|
09/16/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
24. |
|
52969773 |
|
09/26/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
25. |
|
53236883 |
|
10/19/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
26. |
|
53319648 |
|
10/25/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
27. |
|
53382885 |
|
10/31/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
28. |
|
53565109 |
|
11/17/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
29. |
|
53623916 |
|
11/22/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
30. |
|
53650562 |
|
11/28/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
2
Schedule 6.02
|
|
|
|
|
|
|
|
|
|
|
|
|
File #, Case# |
|
|
|
|
|
|
|
|
|
|
Book #, |
|
|
|
|
|
|
|
|
No. |
|
Page # |
|
File Date |
|
Current Secured Party of Record |
|
Collateral |
|
File Type |
31. |
|
53689180 |
|
11/30/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
32. |
|
53873206 |
|
12/14/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
33. |
|
54071396 |
|
12/30/2005 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
34. |
|
60040618 |
|
01/05/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
35. |
|
60243071 |
|
01/20/2006 |
|
CSI LEASING, INC. |
|
Equipment Lease |
|
Original |
36. |
|
60788133 |
|
03/07/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
37. |
|
60836577 |
|
03/10/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
38. |
|
61009612 |
|
03/24/2006 |
|
KONICA BUSINESS TECHNOLOGIES, INC. |
|
Konica copier |
|
Original |
39. |
|
62339331 |
|
07/07/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Equipment |
|
Original |
40. |
|
62339463 |
|
07/07/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Equipment |
|
Original |
41. |
|
62847515 |
|
08/16/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
42. |
|
63019965 |
|
08/30/2006 |
|
FIRST BANK OF HIGHLAND PARK |
|
Equipment Lease |
|
Original |
|
|
64184230 |
|
11/13/2006 |
|
|
|
|
|
Amendment |
|
|
64184495 |
|
11/13/2006 |
|
|
|
|
|
Assignment |
|
|
64184578 |
|
11/13/2006 |
|
|
|
|
|
Assignment |
43. |
|
63121399 |
|
09/08/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
44. |
|
64577327 |
|
10/16/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
45. |
|
63583648 |
|
10/16/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
3
Schedule 6.02
|
|
|
|
|
|
|
|
|
|
|
|
|
File #, Case# |
|
|
|
|
|
|
|
|
|
|
Book #, |
|
|
|
|
|
|
|
|
No. |
|
Page # |
|
File Date |
|
Current Secured Party of Record |
|
Collateral |
|
File Type |
46. |
|
63770336 |
|
10/30/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
47. |
|
63774502 |
|
10/30/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
48. |
|
64067351 |
|
11/21/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Warehouse management systems & materials handling equipment |
|
Original |
|
|
20090096237 |
|
01/12/2009 |
|
|
|
|
|
Amendment |
49. |
|
64160370 |
|
11/30/2006 |
|
CSI LEASING, INC. |
|
Equipment Lease |
|
Original |
|
|
70224575 |
|
01/18/2007 |
|
|
|
|
|
Amendment |
50. |
|
64467536 |
|
12/20/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
51. |
|
64496014 |
|
12/21/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
52. |
|
64512281 |
|
12/22/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
53. |
|
70482751 |
|
02/06/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
54. |
|
70609049 |
|
02/15/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
55. |
|
70633288 |
|
02/16/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
56. |
|
70663509 |
|
02/21/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
57. |
|
70663640 |
|
02/21/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
58. |
|
70700202 |
|
02/23/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
59. |
|
70706332 |
|
02/23/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
60. |
|
70765155 |
|
02/28/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
61. |
|
70963479 |
|
03/14/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
4
Schedule 6.02
|
|
|
|
|
|
|
|
|
|
|
|
|
File #, Case# |
|
|
|
|
|
|
|
|
|
|
Book #, |
|
|
|
|
|
|
|
|
No. |
|
Page # |
|
File Date |
|
Current Secured Party of Record |
|
Collateral |
|
File Type |
62. |
|
70984087 |
|
03/15/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
63. |
|
71008027 |
|
03/16/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
64. |
|
71020154 |
|
03/19/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
65. |
|
71204360 |
|
03/30/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
66. |
|
71295657 |
|
04/06/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
67. |
|
71610707 |
|
04/30/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
68. |
|
71963734 |
|
05/24/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
69. |
|
72108636 |
|
06/05/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
70. |
|
72108776 |
|
06/05/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
71. |
|
72614872 |
|
07/11/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
72. |
|
72660461 |
|
07/13/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
73. |
|
72669694 |
|
07/16/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
74. |
|
72822202 |
|
07/26/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
75. |
|
73222535 |
|
08/23/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
76. |
|
73259685 |
|
08/27/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
77. |
|
73596755 |
|
09/24/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
78. |
|
73795456 |
|
10/09/2007 |
|
IDB LEASING, INC. |
|
Equipment Lease |
|
Original |
|
|
74416953 |
|
11/20/2007 |
|
|
|
|
|
Assignment |
5
Schedule 6.02
|
|
|
|
|
|
|
|
|
|
|
|
|
File #, Case# |
|
|
|
|
|
|
|
|
|
|
Book #, |
|
|
|
|
|
|
|
|
No. |
|
Page # |
|
File Date |
|
Current Secured Party of Record |
|
Collateral |
|
File Type |
79. |
|
74496062 |
|
11/28/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copiers |
|
Original |
80. |
|
74552823 |
|
12/03/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
81. |
|
74648530 |
|
12/10/2007 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
82. |
|
80434538 |
|
02/05/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
|
|
80457364 |
|
02/06/2008 |
|
|
|
|
|
Amendment |
83. |
|
80452951 |
|
01/31/2008 |
|
PURE WATER TECHNOLOGY OF EASTERN PA / LEAF FUNDING, INC. |
|
14 Water Units |
|
Original |
|
|
80804359 |
|
03/06/2008 |
|
|
|
|
|
Assignment |
|
|
80804375 |
|
03/06/2008 |
|
|
|
|
|
Assignment |
84. |
|
80456721 |
|
02/06/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
|
|
80503795 |
|
02/11/2008 |
|
|
|
|
|
Amendment |
85. |
|
80461416 |
|
02/01/2008 |
|
PURE WATER TECHNOLOGY OF EASTERN PA |
|
10 Water coolers |
|
Original |
86. |
|
80968345 |
|
03/19/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
87. |
|
81313293 |
|
04/15/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
88. |
|
81439965 |
|
04/24/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
89. |
|
82064762 |
|
06/17/2008 |
|
CSI LEASING, INC. |
|
Equipment Lease |
|
Original |
|
|
20091000535 |
|
03/30/2009 |
|
|
|
|
|
Amendment |
90. |
|
82092946 |
|
06/18/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
91. |
|
82512240 |
|
07/22/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
6
Schedule 6.02
|
|
|
|
|
|
|
|
|
|
|
|
|
File #, Case# |
|
|
|
|
|
|
|
|
|
|
Book #, |
|
|
|
|
|
|
|
|
No. |
|
Page # |
|
File Date |
|
Current Secured Party of Record |
|
Collateral |
|
File Type |
92. |
|
83114145 |
|
09/15/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
93. |
|
83345731 |
|
10/02/2008 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Konica copier |
|
Original |
94. |
|
20090467941 |
|
02/11/2009 |
|
TECHNOLOGY CREDIT CORPORATION |
|
Equipment Lease |
|
Original |
|
|
|
|
|
|
|
|
|
|
Assignment |
95. |
|
20090897345 |
|
03/20/2009 |
|
CSI LEASING, INC. |
|
Equipment Lease |
|
Original |
96. |
|
20091697181 |
|
05/29/2009 |
|
AT&T CAPITAL SERVICES, INC. |
|
Equipment Lease |
|
Original |
97. |
|
20091980017 |
|
06/22/2009 |
|
AT&T CAPITAL SERVICES, INC. |
|
Equipment Lease |
|
Original |
98. |
|
20092927751 |
|
09/14/2009 |
|
MACQUARIE EQUIPMENT FINANCE, LLC |
|
Equipment Lease |
|
Original |
99. |
|
20092928114 |
|
09/14/2009 |
|
MACQUARIE EQUIPMENT FINANCE, LLC |
|
Equipment Lease |
|
Original |
100. |
|
20100490817 |
|
02/15/2010 |
|
AT&T CAPITAL SERVICES, INC. |
|
Equipment Lease |
|
Original |
|
|
|
|
|
Town of Lincoln,
Rhode Island: |
|
|
|
|
|
|
|
|
|
1. |
|
Book 140
Page 110 |
|
12/11/2006 |
|
BANC OF AMERICA LEASING & CAPITAL, LLC |
|
Capital Lease |
|
Original |
7
Schedule 6.02
LCI Holdings, Inc., Debtor: Delaware Secretary of State UCC Filing:
|
|
|
|
|
|
|
|
|
|
|
|
|
File #, Case# |
|
|
|
|
|
|
|
|
|
|
Book #, |
|
|
|
|
|
|
|
|
No. |
|
Page # |
|
File Date |
|
Current Secured Party of Record |
|
Collateral |
|
File Type |
1. |
|
20091937181 |
|
06/17/2009 |
|
LC FOOTWEAR CONSIGNMENT, L.L.C. |
|
Consignment of women's shoes |
|
Original |
8
Schedule 6.02
Liz Claiborne Canada Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
No. |
|
Registration # |
|
File Date |
|
Debtor(s) |
|
Secured Party |
|
Collateral |
|
Jurisdiction |
1. |
|
20071114 1950 1531 7753 (reference file number 640697229) |
|
11/14/2007 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital Inc. |
|
Equipment, Other |
|
Ontario |
2. |
|
07111424912 |
|
11/14/2007 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital Inc. |
|
All goods supplied by the secured party to the debtor |
|
Alberta |
3. |
|
035106E |
|
11/14/2007 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital Inc. |
|
All goods supplied by the secured party to the debtor |
|
British Columbia |
4. |
|
200721284807 |
|
11/14/2007 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital Inc. |
|
All goods supplied by the secured party to the debtor |
|
Manitoba |
5. |
|
20090624 1451 1530 1749 (reference file number 654441354) |
|
06/24/2009 |
|
Liz Claiborne Canada Inc. |
|
HSBC Bank Canada |
|
Accounts, Other |
|
Ontario |
6. |
|
06-0720223-0003 |
|
12/14/2006 |
|
Liz Claiborne Canada |
|
Toyota Credit Canada Inc. |
|
1 Lexus RX350 |
|
Quebec |
7. |
|
06-0018186-0009 |
|
01/13/2006 |
|
Mexx Canada Inc. |
|
CBSC Capital Inc. |
|
2 IRC3220 Copiers with CP Z3000
2 IR5570 Copiers
1 Ecopy SSOP Software |
|
Quebec |
8. |
|
07-0306675-0001 |
|
05/31/2007 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital Inc. |
|
All goods supplied by the secured party to the debtor |
|
Quebec |
9. |
|
07-0326910-0001 |
|
06/08/2007 |
|
Liz Claiborne Canada Inc. Liz Claiborne (Canada) Limited |
|
CBSC Capital Inc. |
|
Modification to lease to add Liz Claiborne (Canada) Limited as debtor to registration 07-0306675-0001 |
|
Quebec |
10. |
|
08-0532501-0002 |
|
09/15/2008 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital Inc. |
|
Training; All goods supplied by the secured party to the debtor |
|
Quebec |
11. |
|
07-0323707-0046 |
|
06/07/2007 |
|
Liz Claiborne Canada Inc. |
|
Toyota Credit Canada Inc. |
|
1 Lexus RX400H |
|
Quebec |
1
Schedule 6.02
|
|
|
|
|
|
|
|
|
|
|
|
|
No. |
|
Registration # |
|
File Date |
|
Debtor(s) |
|
Secured Party |
|
Collateral |
|
Jurisdiction |
12. |
|
07-0363623-0002 |
|
06/26/2007 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital |
|
IR Image Runner All goods supplied by the secured party to the debtor |
|
Quebec |
13. |
|
07-0659458-0001 |
|
11/16/2007 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital |
|
Installation cost All goods supplied by the secured party to the debtor |
|
Quebec |
14. |
|
07-0692006-0001 |
|
12/04/2007 |
|
Liz Claiborne Canada Inc. |
|
CBSC Capital Inc. |
|
All goods supplied by the secured party to the debtor |
|
Quebec |
15. |
|
08-0659488-0027 |
|
11/17/2008 |
|
Liz Claiborne Canada Inc. |
|
BMW Canada Inc. |
|
1 BMW 328xi Sports Wagon |
|
Quebec |
16. |
|
08-0724746-0042 |
|
12/22/2008 |
|
Liz Claiborne Canada Inc. |
|
Honda Canada Finance Inc. |
|
1 Acura MDX |
|
Quebec |
17. |
|
08-0698268-0008 |
|
12/05/2008 |
|
Liz Claiborne Canada Inc. |
|
BMW Canada Inc. |
|
BMW 328xi coupe |
|
Quebec |
2
Schedule 6.02
Westcoast Contempo Fashions Limited
|
|
|
|
|
|
|
|
|
|
|
|
|
No. |
|
Registration # |
|
File Date |
|
Debtor(s) |
|
Secured Party |
|
Collateral |
|
Jurisdiction |
1. |
|
407271C |
|
06/15/2005 |
|
Westcoast Contempo Fashions Limited |
|
Irwin Commercial Finance Canada Corporation |
|
1 Crown 45RRTT
Reach truck(s)
Crown reach truck(s) |
|
British Columbia |
2. |
|
04-0388578-0005 |
|
06/30/2004 |
|
Westcoast Contempo Fashions Limited |
|
Marcarko Ltée |
|
All moveable property located at: 555 Ouest, Rue Chabanel, Suite M-04 Montreal, QC |
|
Quebec |
3. |
|
09-0411082-0001 |
|
07/08/2009 |
|
Westcoast Contempo Fashions Limited |
|
Marcarko Ltée |
|
Renewal of registration 04-0388578-0005 (see #2 above) |
|
Quebec |
3
Schedule 6.02
Liz Claiborne Europe:
Secured Party: BAA MCARTHUR / GLEN (MANSFIELD) LIMITED
Document type: Trust Deed
Date created (i.e. date security document signed): March 6 2002
Date registered (i.e date security registered): March 8 2002
Collateral: Sum of £13,317 deposited with the secured party and all interest acrruing
Mexx Limited:
Secured Party: Shaftsbury (Newman) Limited
Document type: Rent Deposit Agreement
Date created (i.e. date security document signed): 12/21/90
Date registered (i.e date security registered): 01/09/1991
Collateral: credit balance on deposit account 00742686 at National Westminster Bank plc of St.
James Square London including all monies paid into such account in accordance with agreement dated
12/21/90
1
Schedule 6.04
Existing Investments
1. |
|
As of end of March 2010, Liz Claiborne, Inc. owns $509,506.31 of GMAC zero coupon bonds
due December 1, 2012. |
2. |
|
Investments in Kate Spade JV, a joint venture organized under the laws of Japan, in an
amount equal to $11,300,000. |
1
Schedule 6.11
Existing Restrictions
1. |
|
The Companys existing 350,000,000 5% notes due 2013 (the Existing Euro Notes). |
2. |
|
The Amended and Restated Master Lease Agreement, dated as of November 21, 2006, between
SunTrust Bank, as Lessor and the Company and Liz Claiborne Accessories, Inc. as Lessees
(the 2006 Synthetic Lease). |
3. |
|
Agreement dated as of December 8, 2006 between Banc of America Leasing & Capital, LLC
(Lessor) and Liz Claiborne, Inc (Lessee) in connection with that certain Master Lease
Agreement Number 16736-9000 dated November 17, 2006 between Lessor and Lessee (
$30,600,000, current outstanding amount as of April 21, 2010: $17,600,000). |
SCHEDULE 8
EUROPEAN COLLATERAL AGENT UK SECURITY TRUST PROVISIONS
1. |
|
DEFINITIONS AND INTERPRETATION |
|
1.1 |
|
Terms defined in the Credit Agreement |
Terms defined in the Credit Agreement but not in this Schedule shall have the same meanings in
this Schedule as in the Credit Agreement.
In addition, in this Schedule:
Administrator means any administrator appointed to manage the affairs, business and
assets of any Loan Party under the Collateral Documents.
Facility Office means the office or offices notified by a Lender to the
Administrative Agent in writing on or before the date it becomes a Lender (or, following that
date, by not less than five Business Days written notice) as the office or offices through
which it will perform its obligations under the Credit Agreement;
Finance Party means, individually and collectively, each Lender, each Issuing Bank
and each Agent.
Losses means losses (including loss of profit), claims, demands, actions,
proceedings, damages and other payments, costs, expenses and other liabilities of any kind.
Obligor means any Borrower or any other Loan Party.
Receiver means any receiver, receiver and manager or administrative receiver
appointed by the European Collateral Agent over all or any of the Collateral under the
Collateral Documents whether solely, jointly, severally or jointly and severally with any
other person and includes any substitute for any of them appointed from time to time.
VAT means the tax imposed by EC Directive 2006/112/EC on the common system of value
added tax and any national legislation implementing that directive together with legislation
supplemental thereto or any similar sales or turnover tax whether of the United Kingdom,
another member state, the European Union or elsewhere.
2. |
|
SECURITY TRUSTEE PROVISIONS |
|
2.1 |
|
Role of the European Collateral Agent |
|
(a) |
|
The European Collateral Agent shall not be subject to the duty of care imposed on
trustees by the Trustee Act 2000.
|
5
The European Collateral Agent shall not be bound to account to any other Finance Party for any
sum or the profit element of any sum received by it for its own account.
2.3 |
|
Discretions of the European Collateral Agent |
|
(a) |
|
The European Collateral Agent may assume that: |
|
(i) |
|
no Default has occurred (unless it has actual knowledge of a Default
arising under Article VII of the Credit Agreement); and |
|
|
(ii) |
|
any right vested in any other Finance Party has not been exercised. |
|
(b) |
|
Notwithstanding that the European Collateral Agent and one or more of the other
Finance Parties may from time to time be the same entity, that entity has entered into
the Loan Documents in those separate capacities. However, where the Loan Documents
provide for the European Collateral Agent and the other Finance Parties to provide
instructions to or otherwise communicate with one or more of the others of them, then for
so long as they are the same entity it will
not be necessary for there to be any formal instructions or other communication,
notwithstanding that the Loan Documents provide in certain cases for the same to be in
writing. |
2.4 |
|
Required Lenders instructions |
|
(a) |
|
Unless a contrary indication appears in a Loan Document: |
|
(i) |
|
the European Collateral Agent shall act in accordance with any
instructions given to it by the Required Lenders (or, if so instructed by the
Required Lenders or in the absence of an instruction from them, refrain from acting
or exercising any power, authority, discretion or other right vested in it as
European Collateral Agent); and |
|
(ii) |
|
any instructions given by the Required Lenders will be binding on all
the Lenders. |
|
(b) |
|
The European Collateral Agent may refrain: |
|
(i) |
|
from acting (in accordance with the instructions of the Required
Lenders (or, if appropriate, the Lenders) or otherwise) until it has received such
security and/or indemnity as it may require for any Losses (including any
associated irrevocable VAT) which it may incur in complying with the instructions;
and |
|
(ii) |
|
from doing anything which may in its opinion be a breach of any law or
duty of confidentiality or be otherwise actionable at the suit of any person.
|
6
|
(c) |
|
In the absence of instructions from the Required Lenders (or, if appropriate, the
Lenders), the European Collateral Agent may act (or refrain from taking action) as it
considers to be in the best interest of the Required Lenders. |
|
(d) |
|
The European Collateral Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lenders consent) in any legal or arbitration proceedings
relating to any Loan Document. |
2.5 |
|
Exclusion of liability |
|
(a) |
|
The European Collateral Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the Loan Documents to
be paid by the European Collateral Agent if the European Collateral Agent has taken all
necessary steps as soon as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement system used by the
European Collateral Agent for that purpose. |
|
(b) |
|
The European Collateral Agent shall not be under any obligation to insure any of
the Collateral or any certificate, note, bond or other evidence in respect of any of them
or to require any other person to maintain that insurance and shall not be responsible
for any Losses which may be suffered as a result of the lack or inadequacy of that
insurance. |
|
(c) |
|
The European Collateral Agent shall not be responsible for any Losses occasioned to
the Collateral, however caused, by any Obligor or any other person by any act or omission
on the part of any person (including any bank, broker, depository, warehouseman or other
intermediary or any clearing system or the operator of it), or otherwise, unless those
Losses are occasioned by the European Collateral Agents own gross negligence, bad faith
or wilful misconduct. In particular the European Collateral Agent shall not be
responsible for any Losses which may be suffered as a result of any assets comprised in
the Collateral, or any deeds or documents of title to them, being uninsured or
inadequately insured or being held by it or by or to the order of any custodian or by
clearing organisations or their operators or by any person on behalf of the European
Collateral Agent. |
|
(d) |
|
The European Collateral Agent shall have no responsibility to any Obligor as
regards any deficiency which might arise because such Obligor is subject to any tax in
respect of the Collateral or any income or any proceeds from or of them. |
|
(e) |
|
The European Collateral Agent shall not be liable for any failure, omission or
defect in giving notice of, registering or filing, or procuring registration or filing
of, or otherwise protecting or perfecting, the security constituted over the Collateral.
|
7
2.6 |
|
Lenders Indemnity to the European Collateral Agent |
|
(a) |
|
The European Collateral Agent may, in priority to any payment to the Lenders,
indemnify itself out of the Collateral in respect of, and pay and retain, all sums
necessary to give effect to this indemnity and to all other indemnities given to it in
the other Loan Documents in its capacity as European Collateral Agent. The European
Collateral Agent shall have a Lien on the security constituted over the Collateral and
the proceeds of enforcement of any Collateral Documents for all such sums. |
2.7 |
|
Additional European Collateral Agent |
|
|
|
The European Collateral Agent may at any time appoint (and subsequently remove) any person to
act as a separate security trustee or as a co-trustee jointly with it (any such person, an
Additional European Collateral Agent): |
|
(a) |
|
if it is necessary in performing its duties and if the European Collateral Agent
considers that appointment to be in the interest of the Finance Parties; or |
|
(b) |
|
for the purposes of complying with or confirming to any legal requirements,
restrictions or conditions which the European Collateral Agent deems to be relevant; or |
|
(c) |
|
for the purposes of obtaining or enforcing any judgment or decree in any
jurisdiction, and the European Collateral Agent will give notice to the other Parties of any such appointment. |
|
(a) |
|
In acting as security trustee for the Finance Parties, the European Collateral
Agent shall be regarded as acting through its syndication or agency division which shall
be treated as a separate entity from any other of its divisions or departments. |
|
(b) |
|
If information is received by another division or department of the European
Collateral Agent, it may be treated as confidential to that division or department and
the European Collateral Agent shall not be deemed to have notice of it. |
|
(c) |
|
Notwithstanding any other provision of any Loan Document to the contrary, the
European Collateral Agent is not obliged to disclose to any other person: |
|
(i) |
|
any confidential information; or |
|
(ii) |
|
any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a fiduciary duty. |
2.9 |
|
Relationship with the Lenders |
The European Collateral Agent may treat each Lender as a Lender, entitled to payments under
the Collateral Documents and acting through its Facility Office unless it has received not
less than five Business Days prior notice from that Lender to the contrary in accordance with
the terms of relevant Collateral Document.
8
2.10 |
|
Credit Appraisal by the Lenders |
Without affecting the responsibility of each Obligor for information supplied by it or on its
behalf in connection with any Loan Document, each Lender confirms to the European Collateral
Agent that it has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in connection with any
Loan Document, including:
|
(a) |
|
the financial condition, status and nature of each Obligor; |
|
(b) |
|
the legality, validity, effectiveness, adequacy or enforceability of any Loan
Document and any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Loan Document; |
|
(c) |
|
whether that Lender has recourse, and the nature and extent of that recourse,
against any party or any of its respective assets under or in connection with any Loan
Document, the transactions contemplated by the Loan Documents or any other agreement,
arrangement or other document entered into, made or executed in anticipation of, under or
in connection with any Loan Document; and |
|
(d) |
|
the adequacy, accuracy and/or completeness of any information provided by the
European Collateral Agent, any other party or any other person under or in connection
with any Loan Document, the transactions contemplated by the Loan Documents or any other
agreement, arrangement or other document entered into, made or executed in anticipation
of, under or in connection with any Loan Document. |
|
(a) |
|
The European Collateral Agent shall accept without investigation, requisition or
objection whatever title any person may have to the assets which are subject to the
Collateral Documents and shall not: |
|
(i) |
|
be bound or concerned to examine or enquire into the title of any
person; or |
|
(ii) |
|
be liable for any defect or failure in the title of any person, whether
that defect or failure was known to the European Collateral Agent or might have
been discovered upon examination or enquiry and whether it is capable of remedy or
not. |
|
(b) |
|
Upon the appointment of any successor European Collateral Agent under Article VIII
of the Credit Agreement, the resigning European Collateral Agent shall execute and
deliver any documents and do any other acts and things which may be necessary to vest in
the successor European Collateral Agent all the rights vested in the resigning European
Collateral Agent under the Collateral Documents.
|
9
|
(c) |
|
Each of the other Finance Parties: |
|
(i) |
|
authorizes the European Collateral Agent to hold each mortgage or
charge created pursuant to any Loan Document in its sole name as security trustee
for the Finance Parties; and |
|
(ii) |
|
requests the Land Registry to register the European Collateral Agent as
the sole proprietor of any mortgage or charge so created. |
2.12 |
|
Distribution of proceeds of enforcement |
|
(a) |
|
To the extent that the Collateral Documents provide for the net proceeds of any
enforcement to be applied against the Secured Obligations, the European Collateral Agent
shall pay them to the European Administrative Agent or the Administrative Agent and such
Agent shall apply them in payment of any amounts due but unpaid under the Loan Documents,
if applicable in the order set out in Section 2.18(b) of the Credit Agreement. This
shall override any appropriation made by any Obligor. |
|
(b) |
|
The European Collateral Agent may, at its discretion, accumulate proceeds of
enforcement in an interest bearing account in its own name. |
2.13 |
|
No obligation to remain in possession |
If the European Collateral Agent, any Receiver or any delegate takes possession of all or any
of the Collateral, it may from time to time in its absolute discretion relinquish such
possession.
2.14 |
|
European Collateral Agents obligation to account |
The European Collateral Agent shall not in any circumstances (either by reason of taking
possession of the Collateral or for any other reason and whether as mortgagee in possession or
on any other basis):
|
(a) |
|
be liable to account to any Obligor or any other person for anything except the
European Collateral Agents own actual receipts which have not been distributed or paid
to that Obligor or the persons entitled or at the time of payment believed by the
European Collateral Agent to be entitled to them; or |
|
(b) |
|
be liable to any Obligor or any other person for any principal, interest or Losses
from or connected with any realization by the European Collateral Agent of the Collateral
or from any act, default, omission or misconduct of the European Collateral Agent, its
officers, employees or agents in relation to the Collateral or from any exercise or
non-exercise by the European Collateral Agent of any right exercisable by it under the
European Security Agreements unless they shall be caused by the European Collateral
Agents own gross negligence, bad faith or wilful misconduct.
|
10
2.15 Receivers and delegates obligation to account
All the provisions of Clause 2.14 (above) shall apply in respect of the liability of any
Receiver or Administrator or delegate in all respects as though every reference in Clause 2.14
(above) to the European Collateral Agent were instead a reference to the Receiver or, as the
case may be, Administrator or delegate.
2.16 |
|
Role of European Collateral Agent as direct representative under article 211 of the Greek
Civil Code |
To ensure the continuing validity of security granted pursuant to any Greek Account Pledge
Agreement, without prejudice to the application of the provisions of this Schedule 8
and the provisions of Section 9.21, and for the purposes of entry by the European Collateral
Agent and any Greek Loan Party to any Greek Account Pledge Agreement, all Secured Parties (as
defined in any Greek Account Pledge Agreement) hereby grant power of attorney to the European
Collateral Agent to act as representative of such Secured Parties in the sense of article 211
of the Greek Civil Code, in their own name and behalf, the
European Collateral Agent having the same rights and obligations in the Schedule 8, to
the fullest extent permitted by Greek Law.
11
EXHIBIT A
FORM OF
ASSIGNMENT AND ASSUMPTION
Reference is made to the Second Amended and Restated Credit Agreement, dated as of May 6, 2010
(as amended, supplemented or otherwise modified from time to time, the Credit Agreement),
by and among Liz Claiborne, Inc., Mexx Europe B.V., Juicy Couture Europe Limited, 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., as Syndication Agent, and General Electric Capital Corporation, as Documentation Agent.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the Assignor) and the Assignee
identified on Schedule l hereto (the Assignee) agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the
Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without
recourse to the Assignor, as of the Effective Date (as defined below), the interest described in
Schedule 1 hereto (the Assigned Interest) in and to the Assignors rights and obligations
under the Credit Agreement with respect to those credit facilities contained in the Credit
Agreement as are set forth on Schedule 1 hereto (individually, an Assigned Facility;
collectively, the Assigned Facilities), in a principal amount for each Assigned Facility
as set forth on Schedule 1 hereto.
2. The Assignor (a) makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with the Credit Agreement
or with respect to the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto, other than that the Assignor is the legal and beneficial owner of the
interest being assigned by it hereunder and has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear of any such adverse claim
and (b) makes no representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower, any of their respective Affiliates or any other obligor or the
performance or observance by any Borrower, any of their respective Affiliates or any other obligor
of any of their respective obligations under the Credit Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is legally authorized to enter into this
Assignment and Assumption; (b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered pursuant to Section 3.04 thereof and
such other documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption; (c) agrees that it will,
independently and without reliance upon the Assignor, the Agents or any Lender and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement, the other Loan Documents or
any other instrument or document furnished pursuant hereto or thereto; (d) appoints and authorizes
the Agents to take such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement, the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Agents by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the provisions of the
Credit Agreement and will perform in accordance with its terms all the obligations which by the
terms of the Credit Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its obligation pursuant to
Section 2.17(g) of the Credit Agreement.
4. The effective date of this Assignment and Assumption shall be the Effective Date of Assignment
described in Schedule 1 hereto (the Effective Date). Following the execution of this
Assignment and Assumption, it will be delivered to the Administrative Agent for acceptance by it
and recording by the Administrative Agent pursuant to the Credit Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance and recording by the Administrative
Agent).
5. Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued to the Effective
Date and to the Assignee for amounts which have accrued subsequent to the Effective Date.
6. From and after the Effective Date, (a) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Assumption, have the rights and obligations of a
Lender thereunder and under the other Loan Documents and shall be bound by the provisions thereof
and (b) the Assignor shall, to the extent provided in this Assignment and Assumption, relinquish
its rights and be released from its obligations under the Credit Agreement.
7. This Assignment and Assumption shall be governed by and construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be
executed as of the date first above written by their respective duly authorized officers on
Schedule 1 hereto.
2
Schedule 1
to Assignment and Assumption with respect to
the Second Amended and Restated Credit Agreement, dated as of May 6, 2010,
among Liz Claiborne, Inc., Mexx Europe B.V., Juicy Couture Europe Limited, 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 the other Agents party thereto
Name of Assignor: _______________________
Name of Assignee: _______________________
Effective Date of Assignment: _________________
|
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Principal |
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Facility Assigned |
|
Amount Assigned12 |
|
Commitment Percentage Assigned |
|
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|
$
____________
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|
_____.____________
% |
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[Name of Assignee] |
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[Name of Assignor] |
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By:
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By: |
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Title:
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Title:
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1 Note: |
|
For any assignment involving a principal amount
of less than $5,000,000 that is not made to a Lender, an Affiliate of a Lender
or an Approved Fund or is not an assignment of the entire remaining amount of
the assigning Lenders Commitment or Loans of any Class, refer to Section
9.04(c)(i) of the Credit Agreement. |
|
2 Note: |
|
For any assignment involving a principal amount
of less than 50,000 (or its equivalent in other currencies), including
assignments of undrawn commitments, refer to Section 9.04(c)(ii) of the Credit
Agreement. |
Accepted for Recordation in the Register:
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JPMorgan Chase Bank, N.A., as Administrative Agent
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By: |
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Name: |
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Title: |
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[ASSIGNMENT AND ASSUMPTION AGREEMENT SIGNATURE PAGE]
Consented by:
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Liz Claiborne, Inc., a Borrower Representative
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By: |
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Name: |
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Title: |
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[ASSIGNMENT AND ASSUMPTION AGREEMENT SIGNATURE PAGE]
Consented by:
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JPMorgan Chase Bank, N.A., as Administrative Agent
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By: |
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Name: |
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Title: |
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2
[Consented by:
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[ISSUING BANK], as Issuing Bank
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By: |
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Name: |
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Title:] |
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3
Exhibit B-1
Form of Aggregate Borrowing Base Certificate
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Liz Claiborne, |
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Liz Claiborne |
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Juicy Couture |
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Netherlands |
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Germany (Mexx |
|
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Inc. |
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Canada, Inc. |
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Europe Limited |
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(Mexx Europe BV) |
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Europe BV) |
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Combined |
|
1. Retail A/R |
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N/A |
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N/A |
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2. Less ineligibles |
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3. Eligible Retail A/R |
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4. Advance Rate % |
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|
90 |
% |
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90 |
% |
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90 |
% |
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90 |
% |
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5. Retail A/R
Availability |
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6. Wholesale A/R |
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7. Less ineligibles |
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8. Eligible wholesale
A/R |
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9. Advance rate % |
|
|
85 |
% |
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|
85 |
% |
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|
85 |
% |
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|
85 |
% |
|
|
85 |
% |
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|
85 |
% |
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10. Wholesale A/R
availability |
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11. Total A/R
availability |
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12. Retail Inventory |
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13. Less ineligibles |
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14. Eligible retail
inventory |
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15. NOLV calculation: |
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16. Eligible retail
inventory as per above |
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17. NOLV Rate |
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|
93.5 |
% |
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|
79.8 |
% |
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|
93.5 |
% |
|
|
75.2 |
% |
|
|
78.9 |
% |
|
Blended |
18. Advance
rate on NOLV |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
85.0 |
% |
19.
Effective NOLV advance rate % |
|
|
79.5 |
% |
|
|
67.8 |
% |
|
|
79.5 |
% |
|
|
83.9 |
% |
|
|
87.1 |
% |
|
Blended |
20. Retail inventory
availability at 85% of
NOLV |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21. Wholesale Inventory |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
N/A |
|
|
|
|
|
22. Less inventory for
retail factory outlets |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23. Less in transit
inventory reported
below |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24. Wholesale
inventory on hand |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26. Eligible wholesale
inventory |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27. NOLV calculation: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne, |
|
|
Liz Claiborne |
|
|
Juicy Couture |
|
|
Netherlands |
|
|
Germany (Mexx |
|
|
|
|
|
|
Inc. |
|
|
Canada, Inc. |
|
|
Europe Limited |
|
|
(Mexx Europe BV) |
|
|
Europe BV) |
|
|
Combined |
|
28. Eligible wholesale
inventory as per above |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29. NOLV rate |
|
|
76.0 |
% |
|
|
76.0 |
% |
|
|
76.0 |
% |
|
|
58.8 |
% |
|
|
|
|
|
Blended |
30. Advance
rate on NOLV |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
|
|
|
|
85.0 |
% |
31.
Effective NOLV advance rate % |
|
|
64.6 |
% |
|
|
64.6 |
% |
|
|
64.6 |
% |
|
|
49.8 |
% |
|
|
|
|
|
Blended |
32. Wholesale
inventory availability
at 85% of NOLV |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33. Raw Material
Inventory |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
34. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
35. Eligible retail
inventory |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36. NOLV calculation: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
37. Eligible raw
material inventory as
per above |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38. NOLV rate |
|
|
12.5 |
% |
|
|
12.5 |
% |
|
|
12.5 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
Blended |
39. Advance
rate on NOLV |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
85.0 |
% |
40.
Effective advance rate % |
|
|
10.6 |
% |
|
|
10.6 |
% |
|
|
10.6 |
% |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
Blended |
41. Raw material
inventory availability
at 85% of NOLV |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
42. Inventory In
Transit Supported by
Letters of Credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
43. Inventory in
transit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
44. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
45. Eligible in
transit inventory |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
46.
Advance rate % (wholesale effective
rate) |
|
|
71.7 |
% |
|
|
71.7 |
% |
|
|
71.7 |
% |
|
|
77.7 |
% |
|
|
|
|
|
Blended |
47. Gross inventory in
transit availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
48. In transit
inventory availability
cap |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49. In transit
inventory supported by
letters of credit
availability (Lesser
of Gross inventory in
transit availability
or Cap) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne, |
|
|
Liz Claiborne |
|
|
Juicy Couture |
|
|
Netherlands |
|
|
Germany (Mexx |
|
|
|
|
|
|
Inc. |
|
|
Canada, Inc. |
|
|
Europe Limited |
|
|
(Mexx Europe BV) |
|
|
Europe BV) |
|
|
Combined |
|
50. Inventory In
Transit NOT Supported
by Letters of Credit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
51. Inventory in
transit |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
53. Eligible in
transit inventory |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
54. Advance rate % |
|
|
71.7 |
% |
|
|
71.7 |
% |
|
|
71.7 |
% |
|
|
77.7 |
% |
|
|
|
|
|
Blended |
(wholesale effective
rate) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
55. Gross inventory in
transit availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
56. In transit
availability cap |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
57. In transit
inventory NOT
supported by letters
of credit availability
(Lesser of Gross
inventory in transit
availability or Cap) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
58. Gross inventory
availability (includes
in transit) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
59. German Availability sublimit
($15,000,000) |
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60. Total inventory
availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
61. Owned Real Estate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
62. Owned
Real Estate (NJ-HQ, PA) Gross
Availability |
|
|
|
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
63. Less: Amortization |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
64. Owned Real Estate
Availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
65. Other Collateral: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
66. Trademarks |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
67. Invested Cash |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
68. Total Borrowing
Base Availability
before reserves |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne, |
|
|
Liz Claiborne |
|
|
Juicy Couture |
|
|
Netherlands |
|
|
Germany (Mexx |
|
|
|
|
|
|
Inc. |
|
|
Canada, Inc. |
|
|
Europe Limited |
|
|
(Mexx Europe BV) |
|
|
Europe BV) |
|
|
Combined |
|
69. Less availability
reserves: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
70. Rent Reserve |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
71. Synthetic Lease |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
72. Accrued Gift Card
Liability 50% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
73. Processor fees
(3xAP) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
74. German bankruptcy
fee reserve (9%) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
75. Owned Real Estate
Environmental Reserve |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
76. Derivative Mark to
Market Reserve |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
77. Other reserves
(Juicy UK) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
78. Total availability
reserves |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
79. Total Borrowing
Base Availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
80. Revolver line |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
81. Lesser of
Borrowing Base
Availability &
Commitment1 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
82. Loan Balance |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
83. Letters of
Credit/Bankers
Acceptance Outstanding |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
84. Excess Availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
|
German collateral availability added into Netherlands
collateral availability at line 71 |
Exhibit B-2
Form of US Borrowing Base Certificate
|
|
|
|
|
|
|
Liz Claiborne, |
|
|
|
Inc. |
|
1. Retail A/R |
|
|
|
|
2. Less ineligibles |
|
|
|
|
|
|
|
|
3. Eligible Retail A/R |
|
|
|
|
4. Advance Rate % |
|
|
90 |
% |
|
|
|
|
5. Retail A/R Availability |
|
|
|
|
|
|
|
|
|
6. Wholesale A/R |
|
|
|
|
7. Less ineligibles |
|
|
|
|
|
|
|
|
8. Eligible wholesale A/R |
|
|
|
|
9. Advance rate % |
|
|
85 |
% |
|
|
|
|
10. Wholesale A/R availability |
|
|
|
|
|
|
|
|
|
11. Total A/R availability |
|
|
|
|
|
|
|
|
|
12. Retail Inventory |
|
|
|
|
13. Less ineligibles |
|
|
|
|
14. Eligible retail inventory |
|
|
|
|
15. NOLV calculation: |
|
|
|
|
16. Eligible retail inventory as per above |
|
|
|
|
17. NOLV Rate |
|
|
93.5 |
% |
18. Advance rate on NOLV |
|
|
85.0 |
% |
19. Effective NOLV advance rate % |
|
|
79.5 |
% |
20. Retail inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
21. Wholesale Inventory |
|
|
|
|
22. Less inventory for retail factory outlets |
|
|
|
|
23. Less in transit inventory reported below |
|
|
|
|
24. Wholesale inventory on hand |
|
|
|
|
25. Less ineligibles |
|
|
|
|
26. Eligible wholesale inventory |
|
|
|
|
27. NOLV calculation: |
|
|
|
|
28. Eligible wholesale inventory as per above |
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne, |
|
|
|
Inc. |
|
29. NOLV rate |
|
|
76.0 |
% |
30. Advance rate on NOLV |
|
|
85.0 |
% |
31. Effective NOLV advance rate % |
|
|
64.6 |
% |
32. Wholesale inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
33. Raw Material Inventory |
|
|
|
|
34. Less ineligibles |
|
|
|
|
35. Eligible retail inventory |
|
|
|
|
36. NOLV calculation: |
|
|
|
|
37. Eligible raw material inventory as per above |
|
|
|
|
38. NOLV rate |
|
|
12.5 |
% |
39. Advance rate on NOLV |
|
|
85.0 |
% |
40. Effective advance rate % |
|
|
10.6 |
% |
41. Raw material inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
42. Inventory In Transit Supported by Letters of Credit |
|
|
|
|
43. Inventory in transit |
|
|
|
|
44. Less ineligibles |
|
|
|
|
45. Eligible in transit inventory |
|
|
|
|
46. Advance rate % (wholesale effective rate) |
|
|
71.7 |
% |
47. Gross inventory in transit availability |
|
|
|
|
48. In transit inventory availability cap |
|
|
|
|
|
|
|
|
|
49. In transit inventory supported by letters of credit
availability (Lesser of Gross inventory in transit
availability or Cap) |
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne, |
|
|
|
Inc. |
|
50. Inventory In Transit NOT Supported by Letters of Credit |
|
|
|
|
51. Inventory in transit |
|
|
|
|
52. Less ineligibles |
|
|
|
|
53. Eligible in transit inventory |
|
|
|
|
54. Advance rate % (wholesale effective rate) |
|
|
71.7 |
% |
55. Gross inventory in transit availability |
|
|
|
|
56. In transit availability cap |
|
|
|
|
|
|
|
|
|
57. In transit inventory NOT supported by letters of credit
availability (Lesser of Gross inventory in transit
availability or Cap) |
|
|
|
|
|
|
|
|
|
58. Gross inventory availability (includes in transit) |
|
|
|
|
59. German Availability sublimit ($15,000,000) |
|
|
N/A |
|
|
|
|
|
|
60. Total inventory availability |
|
|
|
|
|
|
|
|
|
61. Owned Real Estate |
|
|
|
|
62. Owned Real Estate (NJ-HQ, PA) Gross Availability |
|
|
|
|
63. Less: Amortization |
|
|
|
|
64. Owned Real Estate Availability |
|
|
|
|
|
|
|
|
|
65. Other Collateral: |
|
|
|
|
66. Trademarks |
|
|
|
|
|
|
|
|
|
67. Invested Cash |
|
|
|
|
|
|
|
|
|
68. Total Borrowing Base Availability before reserves |
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne, |
|
|
|
Inc. |
|
69. Less availability reserves: |
|
|
|
|
70. Rent Reserve |
|
|
|
|
71. Synthetic Lease |
|
|
|
|
72. Accrued Gift Card Liability 50% |
|
|
|
|
73. Processor fees (3xAP) |
|
|
|
|
74. German bankruptcy fee reserve (9%) |
|
|
|
|
75. Owned Real Estate Environmental Reserve |
|
|
|
|
76. Derivative Mark to Market Reserve |
|
|
|
|
77. Other reserves (Juicy UK) |
|
|
|
|
|
|
|
|
|
|
|
|
|
78. Total availability reserves |
|
|
|
|
|
|
|
|
|
|
|
|
|
79. Total Borrowing Base Availability |
|
|
|
|
80. Revolver line |
|
|
|
|
81. Lesser of Borrowing Base Availability & Commitment |
|
|
|
|
82. Loan Balance |
|
|
|
|
83. Letters of Credit/Bankers Acceptance Outstanding |
|
|
|
|
84. Excess Availability |
|
|
|
|
Exhibit B-3
Form of Canadian Borrowing Base Certificate
|
|
|
|
|
|
|
Liz Claiborne |
|
|
|
Canada, Inc. |
|
1. Retail A/R |
|
|
|
|
2. Less ineligibles |
|
|
|
|
|
|
|
|
3. Eligible Retail A/R |
|
|
|
|
4. Advance Rate % |
|
|
90 |
% |
|
|
|
|
5. Retail A/R Availability |
|
|
|
|
|
|
|
|
|
6. Wholesale A/R |
|
|
|
|
7. Less ineligibles |
|
|
|
|
|
|
|
|
8. Eligible wholesale A/R |
|
|
|
|
9. Advance rate % |
|
|
85 |
% |
|
|
|
|
10. Wholesale A/R availability |
|
|
|
|
|
|
|
|
|
11. Total A/R availability |
|
|
|
|
|
|
|
|
|
12. Retail Inventory |
|
|
|
|
13. Less ineligibles |
|
|
|
|
14. Eligible retail inventory |
|
|
|
|
15. NOLV calculation: |
|
|
|
|
16. Eligible retail inventory as per above |
|
|
|
|
17. NOLV Rate |
|
|
79.8 |
% |
18. Advance rate on NOLV |
|
|
85.0 |
% |
19. Effective NOLV advance rate % |
|
|
67.8 |
% |
20. Retail inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
21. Wholesale Inventory |
|
|
|
|
22. Less inventory for retail factory outlets |
|
|
|
|
23. Less in transit inventory reported below |
|
|
|
|
24. Wholesale inventory on hand |
|
|
|
|
25. Less ineligibles |
|
|
|
|
26. Eligible wholesale inventory |
|
|
|
|
27. NOLV calculation: |
|
|
|
|
28. Eligible wholesale inventory as per above |
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne |
|
|
|
Canada, Inc. |
|
29. NOLV rate |
|
|
76.0 |
% |
30. Advance rate on NOLV |
|
|
85.0 |
% |
31. Effective NOLV advance rate % |
|
|
64.6 |
% |
32. Wholesale inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
33. Raw Material Inventory |
|
|
|
|
34. Less ineligibles |
|
|
|
|
35. Eligible retail inventory |
|
|
|
|
36. NOLV calculation: |
|
|
|
|
37. Eligible raw material inventory as per above |
|
|
|
|
38. NOLV rate |
|
|
12.5 |
% |
39. Advance rate on NOLV |
|
|
85.0 |
% |
40. Effective advance rate % |
|
|
10.6 |
% |
41. Raw material inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
42. Inventory In Transit Supported by Letters of Credit |
|
|
|
|
43. Inventory in transit |
|
|
|
|
44. Less ineligibles |
|
|
|
|
45. Eligible in transit inventory |
|
|
|
|
46. Advance rate % (wholesale effective rate) |
|
|
71.7 |
% |
47. Gross inventory in transit availability |
|
|
|
|
48. In transit inventory availability cap |
|
|
|
|
|
|
|
|
|
49. In transit inventory supported by letters of credit
availability (Lesser of Gross inventory in transit
availability or Cap) |
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne |
|
|
|
Canada, Inc. |
|
50. Inventory In Transit NOT Supported by Letters of Credit |
|
|
|
|
51. Inventory in transit |
|
|
|
|
52. Less ineligibles |
|
|
|
|
53. Eligible in transit inventory |
|
|
|
|
54. Advance rate % (wholesale effective rate) |
|
|
71.7 |
% |
55. Gross inventory in transit availability |
|
|
|
|
56. In transit availability cap |
|
|
|
|
|
|
|
|
|
57. In transit inventory NOT supported by letters of credit
availability (Lesser of Gross inventory in transit
availability or Cap) |
|
|
|
|
|
|
58. Gross inventory availability (includes in transit) |
|
|
|
|
59. German Availability sublimit ($15,000,000) |
|
|
N/A |
|
|
|
|
|
|
60. Total inventory availability |
|
|
|
|
|
|
|
|
|
61. Owned Real Estate |
|
|
|
|
62. Owned Real Estate (NJ-HQ, PA) Gross Availability |
|
|
N/A |
|
63. Less: Amortization |
|
|
|
|
64. Owned Real Estate Availability |
|
|
|
|
|
|
|
|
|
65. Other Collateral: |
|
|
|
|
66. Trademarks |
|
|
|
|
|
|
|
|
|
67. Invested Cash |
|
|
|
|
|
|
|
|
|
68. Total Borrowing Base Availability before reserves |
|
|
|
|
|
|
|
|
|
|
|
Liz Claiborne |
|
|
|
Canada, Inc. |
|
69. Less availability reserves: |
|
|
|
|
70. Rent Reserve |
|
|
|
|
71. Synthetic Lease |
|
|
|
|
72. Accrued Gift Card Liability 50% |
|
|
|
|
73. Processor fees (3xAP) |
|
|
|
|
74. German bankruptcy fee reserve (9%) |
|
|
|
|
75. Owned Real Estate Environmental Reserve |
|
|
|
|
76. Derivative Mark to Market Reserve |
|
|
|
|
77. Other reserves (Juicy UK) |
|
|
|
|
|
|
|
|
|
|
|
|
|
78. Total availability reserves |
|
|
|
|
|
|
|
|
|
|
|
|
|
79. Total Borrowing Base Availability |
|
|
|
|
80. Revolver line |
|
|
|
|
81. Lesser of Borrowing Base Availability & Commitment |
|
|
|
|
82. Loan Balance |
|
|
|
|
83. Letters of Credit/Bankers Acceptance Outstanding |
|
|
|
|
84. Excess Availability |
|
|
|
|
Exhibit B-4
Form of European Borrowing Base Certificate
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Netherlands |
|
|
Germany |
|
|
|
|
|
|
(Mexx Europe |
|
|
(Mexx Europe |
|
|
|
|
|
|
BV) |
|
|
BV) |
|
|
Combined |
|
1. Retail A/R |
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
2. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
3. Eligible Retail A/R |
|
|
|
|
|
|
|
|
|
|
|
|
4. Advance Rate % |
|
|
|
|
|
|
|
|
|
|
90 |
% |
5. Retail A/R Availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6. Wholesale A/R |
|
|
|
|
|
|
|
|
|
|
|
|
7. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8. Eligible wholesale A/R |
|
|
|
|
|
|
|
|
|
|
|
|
9. Advance rate % |
|
|
85 |
% |
|
|
85 |
% |
|
|
85 |
% |
|
|
|
|
|
|
|
|
|
|
10. Wholesale A/R
availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11. Total A/R availability |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12. Retail Inventory |
|
|
|
|
|
|
|
|
|
|
|
|
13. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
14. Eligible retail
inventory |
|
|
|
|
|
|
|
|
|
|
|
|
15. NOLV calculation: |
|
|
|
|
|
|
|
|
|
|
|
|
16. Eligible retail
inventory as per above |
|
|
|
|
|
|
|
|
|
|
|
|
17. NOLV Rate |
|
|
75.2 |
% |
|
|
78.9 |
% |
|
Blended |
18. Advance rate on NOLV |
|
|
85.0 |
% |
|
|
85.0 |
% |
|
|
85.0 |
% |
19.
Effective NOLV advance rate % |
|
|
83.9 |
% |
|
|
87.1 |
% |
|
Blended |
20. Retail inventory
availability at 85% of
NOLV |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21. Wholesale Inventory |
|
|
|
|
|
|
N/A |
|
|
|
|
|
22. Less inventory for
retail factory outlets |
|
|
|
|
|
|
|
|
|
|
|
|
23. Less in transit
inventory reported below |
|
|
|
|
|
|
|
|
|
|
|
|
24. Wholesale inventory
on hand |
|
|
|
|
|
|
|
|
|
|
|
|
25. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
26. Eligible wholesale
inventory |
|
|
|
|
|
|
|
|
|
|
|
|
27. NOLV calculation: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Netherlands |
|
|
Germany |
|
|
|
|
|
|
(Mexx Europe |
|
|
(Mexx Europe |
|
|
|
|
|
|
BV) |
|
|
BV) |
|
|
Combined |
|
28. Eligible wholesale
inventory as per above |
|
|
|
|
|
|
|
|
|
|
|
|
29. NOLV rate |
|
|
58.8 |
% |
|
|
|
|
|
Blended |
30. Advance rate on NOLV |
|
|
85.0 |
% |
|
|
|
|
|
|
85.0 |
% |
31.
Effective NOLV advance rate % |
|
|
49.8 |
% |
|
|
|
|
|
Blended |
32. Wholesale inventory
availability at 85% of
NOLV |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33. Raw Material Inventory |
|
|
|
|
|
|
|
|
|
|
|
|
34. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
35. Eligible retail
inventory |
|
|
|
|
|
|
|
|
|
|
|
|
36. NOLV calculation: |
|
|
|
|
|
|
|
|
|
|
|
|
37. Eligible raw material
inventory as per above |
|
|
|
|
|
|
|
|
|
|
|
|
38. NOLV rate |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
Blended |
39. Advance rate on NOLV |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
|
85.0 |
% |
40.
Effective advance rate % |
|
|
0.0 |
% |
|
|
0.0 |
% |
|
Blended |
41. Raw material
inventory availability at
85% of NOLV |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
42. Inventory In Transit
Supported by Letters of
Credit |
|
|
|
|
|
|
|
|
|
|
|
|
43. Inventory in transit |
|
|
|
|
|
|
|
|
|
|
|
|
44. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
45. Eligible in transit
inventory |
|
|
|
|
|
|
|
|
|
|
|
|
46.
Advance rate % (wholesale effective
rate) |
|
|
77.7 |
% |
|
|
|
|
|
Blended |
47. Gross inventory in
transit availability |
|
|
|
|
|
|
|
|
|
|
|
|
48. In transit inventory
availability cap |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
49. In transit inventory
supported by letters of
credit availability
(Lesser of Gross
inventory in transit
availability or Cap) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Netherlands |
|
|
Germany |
|
|
|
|
|
|
(Mexx Europe |
|
|
(Mexx Europe |
|
|
|
|
|
|
BV) |
|
|
BV) |
|
|
Combined |
|
50. Inventory In Transit
NOT Supported by Letters
of Credit |
|
|
|
|
|
|
|
|
|
|
|
|
51. Inventory in transit |
|
|
|
|
|
|
|
|
|
|
|
|
52. Less ineligibles |
|
|
|
|
|
|
|
|
|
|
|
|
53. Eligible in transit
inventory |
|
|
|
|
|
|
|
|
|
|
|
|
54.
Advance rate % (wholesale effective
rate) |
|
|
77.7 |
% |
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|
|
|
|
Blended |
55. Gross inventory in
transit availability |
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56. In transit
availability cap |
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|
57. In transit inventory
NOT supported by letters
of credit availability
(Lesser of Gross
inventory in transit
availability or Cap) |
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58. Gross inventory
availability (includes in
transit) |
|
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|
|
59. German
Availability sublimit ($15,000,000) |
|
|
N/A |
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60. Total inventory
availability |
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61. Owned Real Estate |
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|
|
|
|
62. Owned
Real Estate (NJ-HQ, PA) Gross
Availability |
|
|
N/A |
|
|
|
N/A |
|
|
|
|
|
63. Less: Amortization |
|
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|
|
64. Owned Real Estate
Availability |
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65. Other Collateral: |
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66. Trademarks |
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67. Invested Cash |
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|
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68. Total Borrowing Base
Availability before
reserves |
|
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|
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|
|
Netherlands |
|
|
Germany |
|
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|
|
(Mexx Europe |
|
|
(Mexx Europe |
|
|
|
|
|
|
BV) |
|
|
BV) |
|
|
Combined |
|
69. Less availability
reserves: |
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|
|
70. Rent Reserve |
|
|
|
|
|
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|
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|
|
71. Synthetic Lease |
|
|
|
|
|
|
|
|
|
|
|
|
72. Accrued Gift Card
Liability 50% |
|
|
|
|
|
|
|
|
|
|
|
|
73. Processor fees (3xAP) |
|
|
|
|
|
|
|
|
|
|
|
|
74. German bankruptcy fee
reserve (9%) |
|
|
|
|
|
|
|
|
|
|
|
|
75. Owned Real Estate
Environmental Reserve |
|
|
|
|
|
|
|
|
|
|
|
|
76. Derivative Mark to
Market Reserve |
|
|
|
|
|
|
|
|
|
|
|
|
77. Other reserves (Juicy
UK) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
78. Total availability
reserves |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
79. Total Borrowing Base
Availability |
|
|
|
|
|
|
|
|
|
|
|
|
80. Revolver line |
|
|
|
|
|
|
|
|
|
|
|
|
81. Lesser of Borrowing
Base Availability &
Commitment2 |
|
|
|
|
|
|
|
|
|
|
|
|
82. Loan Balance |
|
|
|
|
|
|
|
|
|
|
|
|
83. Letters of
Credit/Bankers
Acceptance Outstanding |
|
|
|
|
|
|
|
|
|
|
|
|
84. Excess Availability |
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
2 |
|
German collateral availability added into Netherlands
collateral availability at line 71 |
Exhibit B-5
Form of UK Borrowing Base Certificate
|
|
|
|
|
|
|
Juicy Couture |
|
|
|
Europe Limited |
|
1. Retail A/R |
|
|
|
|
2. Less ineligibles |
|
|
|
|
|
|
|
|
3. Eligible Retail A/R |
|
|
|
|
4. Advance Rate % |
|
|
90 |
% |
|
|
|
|
5. Retail A/R Availability |
|
|
|
|
|
|
|
|
|
6. Wholesale A/R |
|
|
|
|
7. Less ineligibles |
|
|
|
|
|
|
|
|
8. Eligible wholesale A/R |
|
|
|
|
9. Advance rate % |
|
|
85 |
% |
|
|
|
|
10. Wholesale A/R availability |
|
|
|
|
|
|
|
|
|
11. Total A/R availability |
|
|
|
|
|
|
|
|
|
12. Retail Inventory |
|
|
|
|
13. Less ineligibles |
|
|
|
|
14. Eligible retail inventory |
|
|
|
|
15. NOLV calculation: |
|
|
|
|
16. Eligible retail inventory as per above |
|
|
|
|
17. NOLV Rate |
|
|
93.5 |
% |
18. Advance rate on NOLV |
|
|
85.0 |
% |
19. Effective NOLV advance rate % |
|
|
79.5 |
% |
20. Retail inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
21. Wholesale Inventory |
|
|
|
|
22. Less inventory for retail factory outlets |
|
|
|
|
23. Less in transit inventory reported below |
|
|
|
|
24. Wholesale inventory on hand |
|
|
|
|
25. Less ineligibles |
|
|
|
|
26. Eligible wholesale inventory |
|
|
|
|
|
|
|
|
|
|
|
Juicy Couture |
|
|
|
Europe Limited |
|
27. NOLV calculation: |
|
|
|
|
28. Eligible wholesale inventory as per above |
|
|
|
|
29. NOLV rate |
|
|
76.0 |
% |
30. Advance rate on NOLV |
|
|
85.0 |
% |
31. Effective NOLV advance rate % |
|
|
64.6 |
% |
32. Wholesale inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
33. Raw Material Inventory |
|
|
|
|
34. Less ineligibles |
|
|
|
|
35. Eligible retail inventory |
|
|
|
|
36. NOLV calculation: |
|
|
|
|
37. Eligible raw material inventory as per above |
|
|
|
|
38. NOLV rate |
|
|
12.5 |
% |
39. Advance rate on NOLV |
|
|
85.0 |
% |
40. Effective advance rate % |
|
|
10.6 |
% |
41. Raw material inventory availability at 85% of NOLV |
|
|
|
|
|
|
|
|
|
42. Inventory In Transit Supported by Letters of Credit |
|
|
|
|
43. Inventory in transit |
|
|
|
|
44. Less ineligibles |
|
|
|
|
45. Eligible in transit inventory |
|
|
|
|
46. Advance rate % (wholesale effective rate) |
|
|
71.7 |
% |
47. Gross inventory in transit availability |
|
|
|
|
48. In transit inventory availability cap |
|
|
|
|
|
|
|
|
|
49. In transit inventory supported by letters of credit
availability (Lesser of Gross inventory in transit
availability or Cap) |
|
|
|
|
|
|
|
|
|
|
|
Juicy Couture |
|
|
|
Europe Limited |
|
50. Inventory In Transit NOT Supported by Letters of Credit |
|
|
|
|
51. Inventory in transit |
|
|
|
|
52. Less ineligibles |
|
|
|
|
53. Eligible in transit inventory |
|
|
|
|
54. Advance rate % (wholesale effective rate) |
|
|
71.7 |
% |
55. Gross inventory in transit availability |
|
|
|
|
56. In transit availability cap |
|
|
|
|
|
|
|
|
|
57. In transit inventory NOT supported by letters of credit
availability (Lesser of Gross inventory in transit
availability or Cap) |
|
|
|
|
|
|
|
|
|
58. Gross inventory availability (includes in transit) |
|
|
|
|
59. German Availability sublimit ($15,000,000) |
|
|
N/A |
|
|
|
|
|
|
60. Total inventory availability |
|
|
|
|
|
|
|
|
|
61. Owned Real Estate |
|
|
|
|
62. Owned Real Estate (NJ-HQ, PA) Gross Availability |
|
|
N/A |
|
63. Less: Amortization |
|
|
|
|
64. Owned Real Estate Availability |
|
|
|
|
|
|
|
|
|
65. Other Collateral: |
|
|
|
|
66. Trademarks |
|
|
|
|
|
|
|
|
|
67. Invested Cash |
|
|
|
|
|
|
|
|
|
68. Total Borrowing Base Availability before reserves |
|
|
|
|
|
|
|
|
|
|
|
Juicy Couture |
|
|
|
Europe Limited |
|
69. Less availability reserves: |
|
|
|
|
70. Rent Reserve |
|
|
|
|
71. Synthetic Lease |
|
|
|
|
72. Accrued Gift Card Liability 50% |
|
|
|
|
73. Processor fees (3xAP) |
|
|
|
|
74. German bankruptcy fee reserve (9%) |
|
|
|
|
75. Owned Real Estate Environmental Reserve |
|
|
|
|
76. Derivative Mark to Market Reserve |
|
|
|
|
77. Other reserves (Juicy UK) |
|
|
|
|
|
|
|
|
|
|
78. Total availability reserves |
|
|
|
|
|
|
|
|
79. Total Borrowing Base Availability |
|
|
|
|
80. Revolver line |
|
|
|
|
81. Lesser of Borrowing Base Availability & Commitment |
|
|
|
|
82. Loan Balance |
|
|
|
|
83. Letters of Credit/Bankers Acceptance Outstanding |
|
|
|
|
84. Excess Availability |
|
|
|
|
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to Section 5.01(d) of the Second Amended and
Restated Credit Agreement, dated as of May 6, 2010 (as amended, supplemented or otherwise modified
from time to time, the Credit Agreement), by and among Liz Claiborne, Inc., Mexx Europe
B.V., Juicy Couture Europe Limited, 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., as Syndication Agent, and General Electric
Capital Corporation, as Documentation Agent. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
1. I am the duly elected, qualified and acting [Chief Financial Officer] of the Borrower
Representative.
2. I have reviewed and am familiar with the contents of this Compliance Certificate.
3. I have reviewed the terms of the Credit Agreement and the other Loan Documents and have
made or caused to be made under my supervision, a review in reasonable detail of the transactions
and condition of the Company during the accounting period covered by the financial statements
attached hereto as Attachment 1 (the Financial Statements).
4. The Financial Statements fairly present in all material respects the financial condition
and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal year-end audit adjustments.
5. No Default has occurred during or at the end of the accounting period covered by the
Financial Statements, and I have no knowledge of the existence, as of the date of this Compliance
Certificate, of any condition or event which constitutes a Default or an Event of Default [except
as set forth below].3
6. As of [_____, 20___]4, the aggregate amount of the Commitments was $[_____], the
Aggregate Borrowing Base was $[_____] and the total Revolving Exposure was $[_____]. Therefore, the
Aggregate Availability was $[_____] and complies with the test set forth in Section 6.16, which
requires Aggregate Availability to be no less than the greater of (i) $45,000,000 and (ii) an
amount equal to 11.25% of the Commitments then in effect.
|
|
|
3 |
|
To the extent a Default/Event of Default has occurred,
the details thereof and any action taken or proposed to be taken with respect
thereto must be provided. |
|
4 |
|
Date to be the date of the last applicable test period. |
7. No change in GAAP or in the application thereof to the Companys consolidated financial
statements has occurred since January 2, 2010.5
|
|
|
5 |
|
To the extent a change has occurred, the effect of such
change on the financial statements accompanying this certificate must be
specified. |
[COMPLIANCE CERTIFICATE SIGNATURE PAGE]
IN WITNESS WHEREOF, I have executed this Certificate this
_____
day of
_____, 20___.
[COMPLIANCE CERTIFICATE SIGNATURE PAGE]
Attachment 1
to Compliance Certificate
[Attach Financial Statements]
EXHIBIT D
FORM OF
ASSUMPTION AND JOINDER AGREEMENT
ASSUMPTION AND JOINDER AGREEMENT dated as of [_____] (the Joinder
Agreement) made by [Insert Name of new Loan Party], a [jurisdiction of organization]
[corporation, limited partnership or limited liability company] (the Company) for the
benefit of the Lenders or Secured Parties (as each such term is defined in that certain Second
Amended and Restated Credit Agreement, dated as of May 6, 2010 (as amended, supplemented or
otherwise modified from time to time, the Credit Agreement) by and among Liz Claiborne,
Inc., Mexx Europe B.V., Juicy Couture Europe Limited, 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., as Syndication
Agent, and General Electric Capital Corporation, as Documentation Agent), as applicable. Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
W I T N E S S E T H
The Company is a [jurisdiction of Organization] [corporation, limited partnership or limited
liability company], and is a subsidiary of [Loan Party]. Pursuant to Section 5.14 of the Credit
Agreement, the Company is required to execute this document as a newly [formed] [acquired]
subsidiary of [Loan Party].
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt of which is hereby acknowledged, the Company hereby agrees as follows:
SECTION 1. Assumption and Joinder. The Company hereby expressly confirms that it
hereby agrees to perform and observe each and every one of the covenants and agreements, and hereby
assumes the obligations and liabilities, of a [US][Canadian] [Netherlands][German][UK] Loan Party
under the Credit Agreement. By virtue of the foregoing, the Company hereby accepts and assumes any
liability of a [US][Canadian][Netherlands][German][UK] Loan Party related to each representation or
warranty, covenant or obligation made by a [US] [Canadian][Netherlands][German][UK] Loan Party in
the Credit Agreement, and hereby expressly affirms in all material respects, as of the date hereof,
each of such representations, warranties, covenants and obligations as they apply to the Company.
(a) Guarantee. (i) All references to the term [US][Canadian][Netherlands]
[German][UK] Loan Party in the Credit Agreement, or in any document or instrument executed and
delivered or furnished, or to be executed and delivered or furnished, in connection therewith shall
be deemed to be references to, and shall include, the Company, in each case as of the date hereof.
(ii) The Company, as a [US][Canadian][Netherlands][German][UK] Loan Party, hereby joins in
and agrees to be bound by each and all of the provisions of the Credit Agreement, as of the date
hereof, as a [US][Canadian][Netherlands][German][UK] Loan Party thereunder with the same force and
effect as if originally referred to therein as a [US][Canadian] [Netherlands][German][UK] Loan
Party.
(b) [Collateral Documents. (i) All references to the term Grantor in the US
Security Agreement, or in any document or instrument executed and delivered or furnished, or to be
executed and delivered or furnished, in connection therewith shall be deemed to be references to,
and shall include, the Company as of the date hereof.
(ii) The Company, as Grantor, hereby joins in and agrees to be bound by each and all of the
provisions of the US Security Agreement, as of the date hereof, with the same force and effect as
if originally referred to therein as a Grantor.
(iii) The Company, as Grantor, hereby pledges to the US Collateral Agent all Collateral owned
by it. The Company, as Grantor, agrees that all Collateral owned by it shall be considered to be
part of the Collateral and shall secure the Secured Obligations.
(c) Intercreditor Agreement. (i) All references to the term Grantor in the
Intercreditor Agreement, or in any document or instrument executed and delivered or furnished, or
to be executed and delivered or furnished, in connection therewith shall be deemed to be references
to, and shall include, the Company as of the date hereof.
(ii) The Company, as Grantor, hereby joins in and agrees to be bound by each and all of the
provisions of the Intercreditor Agreement, as of the date hereof, with the same force and effect as
if originally referred to therein as a Grantor.]6
SECTION 2. Representations and Warranties. The Company hereby represents and warrants
to the Agents and the Secured Parties as follows:
(a) The Company has the requisite [corporate, partnership or limited liability company] power
and authority to enter into this Joinder Agreement and to perform its obligations hereunder and
under the Loan Documents to which it is a party. The execution, delivery and performance of this
Joinder Agreement by the Company and the performance of its obligations hereunder and under the
Loan Documents to which it is a party, have been duly authorized by all necessary [corporate,
partnership or limited liability company] action, including
the consent of shareholders, partners or members where required. This Joinder Agreement has
been duly executed and delivered by the Company. This Joinder Agreement and the Loan Documents to
which it is a party each constitutes a legal, valid and binding obligation of the Company
enforceable against it in accordance with its respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditors rights generally and
subject to general principles of equity, regardless of whether considered in a proceeding in equity
or at law.
(b) The Company has delivered to the Administrative Agent any and all schedules and documents
required as a Loan Party under the Credit Agreement and any other Loan Document.
SECTION 3. Binding Effect. This Joinder Agreement shall be binding upon the Company
and shall inure to the benefit of the Secured Parties and their respective successors and assigns.
SECTION 4. GOVERNING LAW. THIS JOINDER AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
SECTION 5. Counterparts. This Joinder Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall constitute an original for all
purposes, but all such counterparts taken together shall constitute but one and the same
instrument. Any signature delivered by a party by facsimile or .pdf electronic transmission shall
be deemed to be an original signature thereto.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and
delivered by its duly authorized officer as of the date first above written.
|
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|
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|
|
[NAME OF COMPANY] |
|
|
|
|
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
|
|
Name: |
|
|
|
|
|
|
Title: |
|
|
[ASSUMPTION AND JOINDER AGREEMENT SIGNATURE PAGE]
EXHIBIT E
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Credit Agreement dated as of May
6, 2010 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement),
among Liz Claiborne, Inc., Mexx Europe B.V., Juicy Couture Europe Limited, 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., as
Syndication Agent, and General Electric Capital Corporation, as Documentation Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate,
(ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a
10-percent shareholder of any Borrower within the meaning of Code Section 871(h)(3)(B), (iv) it is
not a controlled foreign corporation related to any Borrower as described in Section 881(c)(3)(C)
of the Code and (v) the interest payments in question are not effectively connected with the
undersigneds conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrower Representative with a
certificate of its non-U.S. person status on an Internal Revenue Service Form W-8BEN. By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate
or such Form W-8BEN changes, the undersigned shall promptly so inform the Borrower Representative
and the Administrative Agent and provide the Borrower Representative and the Administrative Agent
with a new certificate or a new Form W-8BEN, as the case may be, and (2) the undersigned shall have
at all times furnished the Borrower Representative and the Administrative Agent with a properly
completed and currently effective certificate in either the calendar year in which each payment is
to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[Signature Page to Follow]
|
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|
[NAME OF LENDER] |
|
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|
By: |
|
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|
|
|
|
Name:
|
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|
|
Title: |
|
|
Date:
_____ __, 20[__]
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Credit Agreement dated as of May
6, 2010 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement),
among Liz Claiborne, Inc., Mexx Europe B.V., Juicy Couture Europe Limited, 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., as
Syndication Agent, and General Electric Capital Corporation, as Documentation Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its
partners/members are the sole beneficial owners of such Loan(s) (as well as any promissory note(s)
evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit
Agreement or any other Loan Document, neither the undersigned nor any of its partners/members is a
bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade
or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its
partners/members is a ten percent shareholder of any Borrower within the meaning of Code Section
871(h)(3)(B), (v) none of its partners/members is a controlled foreign corporation related to any
Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in
question are not effectively connected with the undersigneds or its partners/members conduct of a
U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrower Representative with
Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN from
each of its partners/members claiming the portfolio interest exemption. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Borrower Representative and the
Administrative Agent and (2) the undersigned shall have at all times furnished the Borrower
Representative and the Administrative Agent with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[Signature Page to Follow]
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[NAME OF LENDER] |
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Date: _____ __, 20[__]
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Credit Agreement dated as of May
6, 2010 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement),
among Liz Claiborne, Inc., Mexx Europe B.V., Juicy Couture Europe Limited, 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., as
Syndication Agent, and General Electric Capital Corporation, as Documentation Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of any Borrower within the
meaning of Code Section 871(h)(3)(B), (iv) it is not a controlled foreign corporation related to
any Borrower as described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in
question are not effectively connected with the undersigneds conduct of a U.S. trade or business.
The undersigned has furnished its participating Foreign Lender with a certificate of its
non-U.S. person status on Internal Revenue Service Form W-8BEN. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Foreign Lender in writing and (2) the undersigned shall
have at all times furnished such Foreign Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[Signature Page to Follow]
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[NAME OF PARTICIPANT] |
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Date: _____ __, 20[__]
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Second Amended and Restated Credit Agreement dated as of May
6, 2010 (as amended, supplemented or otherwise modified from time to time, the Credit Agreement),
among Liz Claiborne, Inc., Mexx Europe B.V., Juicy Couture Europe Limited, 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., as
Syndication Agent, and General Electric Capital Corporation, as Documentation Agent.
Pursuant to the provisions of Section 2.17 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its partners/members is a ten percent shareholder of any Borrower within the meaning
of Code Section 871(h)(3)(B), (v) none of its partners/members is a controlled foreign corporation
related to any Borrower as described in Section 881(c)(3)(C) of the Code, and (vi) the interest
payments in question are not effectively connected with the undersigneds or its partners/members
conduct of a U.S. trade or business.
The undersigned has furnished its participating Foreign Lender with Internal Revenue Service
Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN from each of its
partners/members claiming the portfolio interest exemption. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Foreign Lender and (2) the undersigned shall have at all
times furnished such Foreign Lender with a properly completed and currently effective certificate
in either the calendar year in which each payment is to be made to the undersigned, or in either of
the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall
have the meanings given to them in the Credit Agreement.
[Signature Page to Follow]
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[NAME OF PARTICIPANT] |
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Date: _____ __, 20[__]
Exhibit F-1
[Form of In-House Opinion]
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JPMorgan Chase Bank, N.A., as US |
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Administrative Agent (as hereinafter |
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defined) and US Collateral Agent (as |
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hereinafter defined), |
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JPMorgan Chase Bank, N.A., Toronto Branch, |
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as Canadian Administrative Agent (as |
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hereinafter defined) and Canadian |
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Collateral Agent (as hereinafter |
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defined), |
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J.P. Morgan Europe Limited, as European |
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Administrative Agent (as hereinafter |
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defined) and European Collateral Agent |
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(as hereinafter defined) |
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and |
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The Lenders and Issuing Banks listed on |
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Schedule I hereto which are parties to the |
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Credit Agreement (as hereinafter |
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defined) on the date hereof |
Based upon and subject to the foregoing, and subject to the qualifications, limitations, and
assumptions set forth herein, I am of the opinion that:
1. The Company (a) is validly existing and in good standing as a corporation under the laws of
the state of its incorporation, (b) has the corporate power to execute and deliver each of the Loan
Documents to which it is a party, to borrow and perform its obligations thereunder and to grant the
security interests to be granted by it pursuant to the Collateral Documents and (c) has duly
authorized, executed and delivered each Loan Document to which it is a party.
2. Each of the US Guarantors (a) is validly existing and in good standing as a corporation or
other organization under the laws of the state of its incorporation or organization, as the case
may be, (b) has the corporate power or organizational power, as the case may be, to execute and
deliver each of the Loan Documents to which it is a party, to perform its obligations thereunder
and to grant the security interests to be granted by it pursuant to the Collateral Documents and
(c) has duly authorized, executed and delivered each Loan Document to which it is a party.
3. The execution and delivery by any US Loan Party of the Loan Documents to which it is a
party, its borrowings (in the case of the Company) in accordance with the terms of the Loan
Documents, the performance of its payment obligations thereunder and the grant of the security
interests to be granted by it pursuant to the Collateral Documents, do not result in the violation of the certificate of incorporation or certificate of formation, as applicable, or
the by-laws or operating agreement, as applicable, of such US Loan Party.
JPMorgan Chase Bank, N.A.,
JPMorgan Chase Bank, N.A., Toronto Branch,
J.P. Morgan Europe Limited and
The Lenders and Issuing Banks listed on Schedule I hereto
[Date]
Page 2
4. The execution and delivery by any Loan Party of the Loan Documents to which it is a party,
the performance of its payment obligations thereunder and the grant of the security interests to be
granted by it pursuant to the Collateral Documents, does not: (i) result in the violation of any
Relevant Law (as hereinafter defined); (ii) breach or result in a default under any agreement,
instrument or other document listed on Schedule IV hereto; (iii) result in the creation or
imposition of a lien on any of the Loan Parties property or assets under any agreement, instrument
or other document listed on Schedule IV hereto; or (iv) result in a violation of any order
issued by any court or governmental agency or body.
5. No consent, approval, authorization, order, filing, registration or qualification from or
with any governmental authority under any Relevant Law is required for (a) the execution and
delivery by any Loan Party of the Loan Documents to which it is a party, (b) the borrowings by any
Borrower in accordance with the terms of the Credit Agreement, (c) the performance by the Loan
Parties of their respective payment obligations under the Loan Documents to which they are a party
or (d) the grant of any security interests under the Collateral Documents to which any Loan Party
is a party.
6. To the best of my knowledge, after due inquiry, there is no action, suit or proceeding
before or by any court, arbitrator or governmental agency, body or official, now pending, to which
any of the Loan Parties is a party or to which the business, assets or property of any of the Loan
Parties is subject and which would, if determined adversely to any of the Loan Parties, have a
Material Adverse Effect. To my knowledge, no such action, suit or proceeding is threatened to
which any of the Loan Parties or the business, assets or property of any of the Loan Parties would
be subject that questions the validity of any of the Loan Documents.
I express no opinion as to any laws other than the laws of the State of New York, the General
Corporation Law of the State of Delaware, the Limited Liability Company Act of the State of
Delaware and the federal laws of the United States of America which, in each case, in my
experience, I recognize are normally applicable to transactions of the type contemplated by each of
the Loan Documents (including, without limitation, Regulations U and X of the Board) and, in each
case, any rule or regulation issued pursuant thereto (collectively, the Relevant Laws). I have
assumed that each of the Loan Documents would be construed and enforced in accordance with New York
law, whether or not they contain any provision expressly specifying such law as the governing law.
In addition, I have not examined the laws of counties, towns, municipalities and special political
subdivisions to the extent that they relate to any of the foregoing, and I express no opinion
thereon. Without limiting the foregoing, I express no opinion with respect to federal or state
securities laws or antitrust law. Furthermore, I express no opinion with respect to any laws of
jurisdictions outside the United States.
JPMorgan Chase Bank, N.A.,
JPMorgan Chase Bank, N.A., Toronto Branch,
J.P. Morgan Europe Limited and
The Lenders and Issuing Banks listed on Schedule I hereto
[Date]
Page 3
The opinion expressed herein is based upon the Relevant Laws and interpretations thereof in
effect on the date hereof, and I assume no obligation to revise or supplement this opinion should
any such law be changed by legislative action, judicial decision or otherwise.
This opinion letter is rendered to you in connection with the transactions described in the
Loan Documents. Except as aforesaid, this opinion may not be relied upon or otherwise used by any
other person or by you for any other purpose without my prior written consent, except that this
opinion may be furnished (but not relied upon by such other person, firm or corporation) without my
prior written consent: (i) in connection with any proceedings relating to the Loan Documents or
the enforcement thereof; (ii) to accountants and counsel for any Lender on the basis that they make
no further disclosure; (iii) to bank and insurance company examiners; (iv) pursuant to judicial
process or government order or requirement; and (v) to prospective or actual assignees of, and
participants in the interests of, any Lender in the Loans and Commitments and their respective
accountants and counsel on the basis that they make no further disclosure.
Very truly yours,
Exhibit F-2
[Form of Opinion]
Form of Legal Opinion of Kramer Levin Naftalis & Frankel LLP
JPMorgan Chase Bank, N.A., as US
Administrative Agent (as hereinafter
defined) and US Collateral Agent (as
hereinafter defined),
JPMorgan Chase Bank, N.A., Toronto Branch,
as Canadian Administrative Agent (as
hereinafter defined) and Canadian
Collateral Agent (as hereinafter defined),
J.P. Morgan Europe Limited, as European
Administrative Agent (as hereinafter
defined) and European Collateral Agent
(as hereinafter defined)
and
the Lenders and Issuing Banks listed on
Schedule I hereto which are parties to
the Credit Agreement (as hereinafter
defined) on the date hereof
Based on the foregoing, and subject to the qualifications, limitations and assumptions set
forth herein, we are of the opinion that:
1. Each of the Transaction Documents to which any Loan Party is a party and the Security
Agreement constitutes a valid and binding obligation of such Loan Party, enforceable against such
Loan Party in accordance with its terms.
2. The execution and delivery by any US Loan Party of the Transaction Documents to which
such US Loan Party is a party, and the consummation by such US Loan Party of the transactions
contemplated thereby (including the consummation by any direct or indirect Subsidiary of the
Company of the transactions contemplated thereby with respect to such Subsidiary) do not
(i) breach or result in a default under the agreements listed on Schedule IV hereto; or
(ii) result in the creation or imposition of a lien on any of the US Loan Parties property or
assets under the agreements listed on Schedule IV hereto.
JPMorgan Chase Bank, N.A.,
JPMorgan Chase Bank, N.A., Toronto Branch,
J.P. Morgan Europe Limited and
the Lenders and Issuing Banks listed on Schedule I hereto
[Date]
Page 2
3. The Security Agreement is sufficient to create in favor of the US Collateral Agent for
the benefit of the Secured Parties (as defined in the Security Agreement) a security interest in
those items and types of Collateral described therein in which a security interest can be created
under Article 9 of the Uniform Commercial Code as in effect in the State of New York (the
New York UCC).
4. To the extent the Security Agreement created a valid security interest in the Collateral
described therein immediately prior to the effectiveness of the Transaction Documents, the
security interest in the Collateral described therein and granted thereunder is valid, and has
the same priority, immediately after the effectiveness of the Transaction Documents.
5. The financing statements on Form UCC-1, copies of which are attached hereto as
Schedule V (the Delaware Financing Statements), are in appropriate form for
filing with the Secretary of State of the State of Delaware under the Uniform Commercial Code in
effect in that state (the Delaware UCC). The security interest created by the Delaware
Loan Parties in favor of the US Collateral Agent for the benefit of the Secured Parties by the
Security Agreement in those items and types of Collateral described in the Security Agreement in
which a security interest may be perfected by the filing of a financing statement will be
perfected upon the filing of the Delaware Financing Statements with the Secretary of State of the
State of Delaware, together with the payment of any requisite filing or recording fees.
6. The financing statements on Form UCC-1, copies of which are attached hereto as
Schedule VI (the California Financing Statements), are in appropriate form for
filing with the Secretary of State of the State of California under the Uniform Commercial Code
in effect in that state (the California UCC). The security interest created by the
California Loan Parties in favor of the US Collateral Agent for the benefit of the Secured
Parties by the Security Agreement in those items and types of Collateral described in the
Security Agreement in which a security interest may be perfected by the filing of a financing
statement will be perfected upon the filing of the California Financing Statements with the
Secretary of State of the State of California, together with the payment of any requisite filing
or recording fees.
JPMorgan Chase Bank, N.A.,
JPMorgan Chase Bank, N.A., Toronto Branch,
J.P. Morgan Europe Limited and
the Lenders and Issuing Banks listed on Schedule I hereto
[Date]
Page 3
7. The financing statements on Form UCC-1, copies of which are attached hereto as
Schedule VII (the Washington Financing Statements), are in appropriate form for
filing with the Department of Licensing of the State of Washington under the Uniform Commercial
Code in effect in that state (the Washington UCC). The security interest created by
the Washington Loan Parties in favor of the US Collateral Agent for the benefit of the Secured
Parties by the Security Agreement in those items and types of Collateral described in the
Security Agreement in which a security interest may be perfected by the filing of a financing
statement will be perfected upon the filing of the Washington Financing Statements with the
Department of Licensing of the State of Washington, together with the payment of any requisite
filing or recording fees.
8. The US Collateral Agents security interest for the benefit of the Secured Parties in the
certificated securities identified on Exhibit C to the Security Agreement (the Certificated
Securities) continues to be perfected to the extent the US Collateral Agent holds on the
date hereof, in the State of New York, the certificates representing such Certificated Securities
together with stock powers endorsed in blank.
9. The US Collateral Agents security interest for the benefit of the Secured Parties in the
uncertificated securities identified on Exhibit C to the Security Agreement which are issued by a
domestic Subsidiary of any US Loan Party (the Uncertificated Securities) continues to
be perfected to the extent (i) the US Collateral Agent is the registered owner of such
Uncertificated Securities, (ii) the issuer of such Uncertificated Securities has agreed that it
will comply with instructions originated by the US Collateral Agent without further consent by
the registered owner or (iii) the issuer of such Uncertificated Securities has executed the
Security Agreement or the Acknowledgement and Consent attached thereto.
10. The US Collateral Agents security interest for the benefit of the Secured Parties in
the account set forth on Schedule VIII (the JPM Deposit Account) will be
perfected upon the execution and delivery by the Depositary Bank, Juicy UK and the US Collateral
Agent of the Control Agreement wherein the Depositary Bank agrees that it will comply with
instructions originated by the US Collateral Agent directing disposition of the funds in the JPM
Deposit Account without further consent by Juicy UK.
11. None of the US Loan Parties is an investment company within the meaning of the
Investment Company Act of 1940, as amended.
JPMorgan Chase Bank, N.A.,
JPMorgan Chase Bank, N.A., Toronto Branch,
J.P. Morgan Europe Limited and
the Lenders and Issuing Banks listed on Schedule I hereto
[Date]
Page 4
The opinion set forth herein is subject to and limited by the following:
[Assumptions to be included].
We express no opinion as to any laws other than the laws of the State of New York, Article 9
of the Delaware UCC (based solely on our review thereof as set forth on the CCH Secured Transaction
Guide last updated on March 30, 2010), Article 9 of the California UCC (based solely on our review
thereof as set forth on the CCH Secured Transaction Guide last updated on March 30, 2010), Article
9 of the Washington UCC (based solely on our review thereof as set forth on the CCH Secured
Transaction Guide last updated on March 30, 2010), and the federal laws of the United States of
America (including Regulations U and X of the Federal Reserve Board), that in each case, in our
experience, we recognize are normally applicable to transactions of the type contemplated by the
Transaction Documents and are not applicable as a result of the particular business, identity or
ownership of any of the parties (the Relevant Laws). Without limiting the foregoing, we
express no opinion with respect to federal or state securities laws or antitrust laws (other than
the Investment Company Act). We further express no opinion in paragraph 1 with respect to any
provisions of the Credit Agreement which are governed by laws other than the laws of the State of
New York.
The opinion expressed herein is based upon the Relevant Laws and interpretations thereof in
effect on the date hereof, and the facts and circumstances in existence on the date hereof, and we
assume no obligation to revise or supplement this opinion letter should any such law or
interpretation be changed by legislative action, judicial decision or otherwise or should there be
any change in such facts or circumstances.
This opinion letter is being delivered to you in connection with the transactions described in
the Transaction Documents. This opinion may not be relied upon or otherwise used by any other
person, or by you for any other purpose without our prior written consent, except that our opinion
may be furnished (but not relied upon by any other person, firm or corporation) without our prior
written consent: (i) in connection with any proceedings relating to the Transaction Documents or
the enforcement thereof; (ii) to accountants and counsel for any Lender on the basis that they make
no further disclosure; (iii) to bank and insurance company examiners; (iv) pursuant to judicial
process or government order or requirement; and (v) to prospective or actual assignees of, and
participants in the interests of, any Lender in the Loans and Commitments and their respective
accountants and counsel on the basis that they make no further disclosure.
Very truly yours,
EXHIBIT G
FORM OF DISCOUNT NOTE
FOR VALUE RECEIVED, the undersigned unconditionally promises to pay on
_____, 20___, to or
to the order of
_____
(the Holder), the sum of
Can$ with no interest thereon.
The undersigned hereby waives presentment, protest and notice of every kind and waives any
defences based upon indulgences which may be granted by the Holder to any party liable hereon and
any days of grace.
This promissory note evidences a BA Equivalent Loan, as defined in the Second Amended and
Restated Credit Agreement made as of dated as of May 6, 2010 (as amended, supplemented or otherwise
modified from time to time, the Credit Agreement), among Liz Claiborne, Inc., Mexx Europe
B.V., Juicy Couture Europe Limited, Liz Claiborne Canada Inc., the other Loan Parties from time to
time party thereto, the Lenders party thereto, and the Agents party thereto, and constitutes
indebtedness to the Holder arising under the BA Equivalent Loan. Payment of this note shall be
made at the offices of the Canadian Administrative Agent at 200 Bay Street, Royal Bank Plaza, South
Tower, Suite 1800, Toronto, Ontario M5J 2J2 Canada. Capitalized terms used and not defined herein
have the meanings given to them in the Credit Agreement.]7
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LIZ CLAIBORNE CANADA INC. |
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To Confirm with Canadian Counsel. |
Exhibit H
Form of Intercreditor Agreement
INTERCREDITOR AGREEMENT
Dated as of January 12, 2009
between
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent and as Credit Agreement Representative
and
SUNTRUST EQUITY FUNDING, LLC,
as Synthetic Lease Representative
TABLE OF CONTENTS
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PREAMBLE |
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SECTION 1. DEFINITIONS |
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1.1 Defined Terms |
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SECTION 2. ACCELERATION OF SECURED OBLIGATIONS |
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2.1 Notices of Acceleration |
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2.2 [Reserved] |
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2.3 Right to Initiate Judicial Proceedings |
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2.4 Right to Appoint a Receiver |
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2.5 Exercise of Powers; Instructions of the Controlling Party |
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2.6 [Reserved] |
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2.7 [Reserved] |
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2.8 [Reserved] |
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2.9 [Reserved] |
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2.10 Rights of Secured Parties under Secured Instruments |
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2.11 [Reserved] |
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2.12 Nature of Obligations |
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SECTION 3. COLLATERAL ACCOUNT; DISTRIBUTIONS |
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3.1 The Collateral Account |
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3.2 Control of Collateral Account |
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3.3 Investment of Funds Deposited in Collateral Account |
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3.4 Application of Moneys |
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3.5 Amounts Held for Contingent Secured Obligations |
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3.6 Collateral Agents Calculations |
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3.7 Pro Rata Sharing |
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SECTION 4. AGREEMENTS WITH AGENT |
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4.1 Delivery of Secured Instruments |
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4.2 Information as to Secured Parties and Holder Representatives |
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4.3 Compensation and Expenses |
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4.4 [Reserved] |
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4.5 [Reserved] |
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4.6 Indemnification |
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4.7 Collateral Agents Lien |
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SECTION 5. THE COLLATERAL AGENT |
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5.1 Appointment of Collateral Agent |
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5.2 Exculpatory Provisions |
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5.3 Delegation of Duties |
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5.4 Reliance by Collateral Agent |
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5.5 Limitations on Duties of the Collateral Agent |
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5.6 Moneys to be Held in Trust |
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19 |
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5.7 Resignation of the Collateral Agent |
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5.8 [Reserved] |
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5.9 Merger of the Collateral Agent |
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5.10 Co-Collateral Agent; Separate Collateral Agent |
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5.11 Treatment of Payee or Indorsee by Collateral Agent; Representatives of
Secured Parties |
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SECTION 6. MISCELLANEOUS |
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6.1 Notices |
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6.2 No Waivers |
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6.3 Amendments, Supplements and Waivers |
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6.4 Holders of Other Secured Non-Loan Exposure |
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6.5 Amendments to Existing Credit Agreement |
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23 |
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6.6 Headings |
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6.7 Severability |
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6.8 Successors and Assigns |
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6.9 Currency Conversions |
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6.10 Acknowledgements |
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6.11 Governing Law |
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6.12 Counterparts |
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24 |
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6.13 [Reserved] |
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25 |
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6.14 [Reserved] |
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6.15 Inspection by Regulatory Agencies |
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25 |
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6.16 [Reserved] |
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6.17 Submission to Jurisdiction; Waivers |
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6.18 WAIVERS OF JURY TRIAL |
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6.19 Information Concerning Financial Condition of the Grantors |
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-iii-
EXHIBITS
A Form of Notice of Acceleration
-iv-
INTERCREDITOR AGREEMENT (this Agreement), dated as of January 12, 2009, between
JPMORGAN CHASE BANK, N.A., as collateral agent (the Collateral Agent) and as Credit
Agreement Representative and SUNTRUST EQUITY FUNDING, LLC, as the Synthetic Lease Representative.
W
I T N E S S E T H:
WHEREAS, Liz Claiborne, Inc., a Delaware corporation (the Company), and certain
domestic subsidiaries of the Company (together with the Company, the Grantors), have
agreed to secure certain of their obligations from time to time outstanding;
NOW, THEREFORE, in order to secure the prompt and complete payment and performance when due of
the Secured Obligations (such term and certain other capitalized terms used hereinafter being
defined in subsection 1.1) of the Grantors and in consideration of the premises and the mutual
agreements set forth herein, the Collateral Agent does hereby declare that it holds and will hold,
for the benefit of the Secured Parties, as agent under this Intercreditor Agreement all of its
right, title and interest in, to and under the US Security Documents and the collateral granted to
the Collateral Agent thereunder whether now existing or hereafter arising (and the Grantors do
hereby consent thereto).
SECTION 1.
DEFINITIONS
1.1 Defined Terms. (a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
(b) The following terms shall have the respective meanings set forth below:
Administrative Agent shall mean JPMorgan Chase Bank, N.A., in its capacity as
Administrative Agent under the Credit Agreement, and any successor Administrative Agent
appointed thereunder.
Bankruptcy Law shall mean each of the Bankruptcy Code and any similar
federal, state or foreign law for the relief of debtors.
Business Day shall mean any day other than a Saturday, Sunday or other day on
which banks in the State of New York are authorized or required by law to remain closed.
Class shall mean, as the context may require, the Credit Facility Class or
the Synthetic Facility Class.
Collateral Account shall have the meaning assigned in subsection 3.1.
Collateral Agent shall mean JPMorgan Chase Bank, N.A., in its capacity as
collateral agent under this Intercreditor Agreement, and any successor agent appointed
hereunder.
Collateral Enforcement Action shall mean, with respect to any Secured Party,
an action by such Secured Party, whether or not in consultation with any other Secured
Party, to exercise, to seek to exercise, to join any Person in exercising or to institute or
to maintain or to participate in any action or proceeding with respect to, any rights or
remedies with respect to any US Collateral, including (i) instituting or maintaining, or
joining any Person in instituting or maintaining, any enforcement, contest, protest,
attachment, collection, execution, levy or foreclosure action or proceeding with respect to
any US Collateral, whether under any Secured Instrument, US Security Document or otherwise,
or (ii) exercising any other right or remedy under the Uniform Commercial Code of any
applicable jurisdiction or under any Bankruptcy Law or other applicable law with respect to
any US Collateral.
Controlling Party shall mean (i) at any time after a Notice of Acceleration
has been delivered by the Credit Agreement Representative (and remains in effect), the
Credit Agreement Representative, (ii) at any time after a Notice of Acceleration has been
delivered by the Synthetic Lease Representative (and remains in effect), the Synthetic Lease
Representative, and (iii) if neither clause (i) nor clause (ii) is applicable, the Credit
Agreement Representative; provided that at any time that both the Credit Agreement
Representative and the Synthetic Lease Representative have delivered Notices of Acceleration
that remain in effect, Controlling Party shall mean the Majority Secured Parties at such
time.
Credit Agreement shall mean (i) the Existing Credit Agreement, and (ii) any
other credit agreement, loan agreement, note agreement, promissory note, indenture or other
agreement or instrument evidencing or governing the terms of any Indebtedness or other
financial accommodation that has been incurred to extend, increase, replace (whether upon or
after termination or otherwise), refinance (including by means of sales of debt securities
to institutional investors), renew or refund in whole or in part from time to time the
Indebtedness and other obligations outstanding under the Existing Credit Agreement or any
other agreement or instrument referred to in this clause (ii) unless such agreement or
instrument expressly provides that it is not intended to be and is not a Credit Agreement
hereunder. Any reference to the Credit Agreement hereunder shall, except as otherwise
expressly provided, be deemed a reference to any Credit Agreement then existing.
Credit Agreement Obligations shall mean the Obligations as defined in the
Existing Credit Agreement.
Credit Agreement Representative shall mean the Administrative Agent. In the
event that the Existing Credit Agreement shall cease to be in effect, the Credit Agreement
Representative shall be the Person identified as such (or identified as the agent or
administrative agent or trustee thereunder) in the applicable Credit Agreement then in
effect, if any.
-2-
Credit Facility Class shall mean, collectively, the Secured Parties that are
holders of outstanding Extensions of Credit and unfunded commitments under or pursuant to
the Loan Documents.
Distribution Date shall mean each date fixed by the Collateral Agent for a
distribution to the applicable Secured Parties of funds held in the Collateral Account, the
first of which shall be within 120 days after the Collateral Agent receives a Notice of
Acceleration and the remainder of which shall be monthly thereafter (or more frequently if
requested by the Controlling Party) on the day of the month corresponding to the first
Distribution Date (or, if there be no such corresponding day, the last day of such month);
provided that if any such day is not a Business Day, such Distribution Date shall be
the next Business Day.
Dollars and $ shall mean the lawful money of the United States.
Effective Date shall mean January 12, 2009.
Existing Credit Agreement shall mean the Amended and Restated Credit
Agreement, dated as of January 12, 2009, among the Company, the Subsidiaries of the Company
party thereto, the Lenders party thereto, JPMorgan Chase Bank, N.A., as administrative
agent, and the other agents named therein.
Extensions of Credit shall mean, with respect to any holder of Credit
Agreement Obligations, the sum of (a) the aggregate principal amount of all loans (other
than swingline loans and protective advances in which it holds or benefits from a risk
participation) held by such holder then outstanding, (b) such holders pro rata share of the
LC Exposure then outstanding and (c) such holders pro rata share of the aggregate principal
amount of swingline loans and protective advances then outstanding (in which it holds or
benefits from a risk participation).
Fees shall mean all fees, costs and expenses of the Collateral Agent of the
types described in subsections 4.3 and 4.6.
Grantors shall have the meaning set forth in the recitals hereto.
Holder Representative shall mean (i) in respect of the Credit Agreement
Obligations, the Credit Agreement Representative and (ii) in respect of any Synthetic Lease
Obligations, the Synthetic Lease Representative.
Insolvency Proceeding shall mean each of the following, in each case with
respect to the Company or any other Grantor or any property or Indebtedness of the Company
or any other Grantor: (a)(i) any voluntary or involuntary case or proceeding under any
Bankruptcy Law or any other voluntary or involuntary insolvency, reorganization or
bankruptcy case or proceeding, (ii) any case or proceeding seeking receivership,
liquidation, reorganization, winding up or other similar case or proceeding, (iii) any case
or proceeding seeking arrangement, adjustment, protection, relief or composition of any debt
and (iv) any case or proceeding seeking the entry of an order for
-3-
relief or the appointment of a custodian, receiver, trustee or other similar official
and (b) any general assignment for the benefit of creditors.
Intercreditor Agreement shall mean this Intercreditor Agreement as the same
may from time to time be amended, modified, supplemented, extended or renewed.
Majority Class Holders shall mean, on any date, each of the following: (i)
Credit Facility Class members holding (or representing) more than 50% of the aggregate
Extensions of Credit (and, if no Notice of Acceleration is outstanding with respect thereto,
unfunded commitments) under the Loan Documents; and (ii) Synthetic Facility Class members
holding (or representing) more than 50% of the aggregate principal amount of the aggregate
Synthetic Lease Obligations outstanding on such date.
Majority Secured Parties shall mean, on any date, Secured Parties holding (or
representing) more than 50% of the sum of (i) the aggregate Extensions of Credit (and, if no
Notice of Acceleration is outstanding with respect thereto, unfunded commitments) under the
Loan Documents on such date and (ii) the aggregate principal amount of the Synthetic Lease
Obligations under the Synthetic Lease Documentation outstanding on such date.
Notice of Acceleration shall mean a written notice delivered to the
Collateral Agent, while any Secured Obligations are outstanding, by the relevant Holder
Representative in respect of any Credit Agreement Obligations or any Synthetic Lease
Obligations, as applicable, stating that (a) the relevant Secured Obligations represented by
such Holder Representative have not been paid in full at the stated final maturity thereof
and any applicable grace period has expired or, in the case of an outstanding, non-cash
collateralized Reimbursement Obligation, on the Maturity Date, or (b) a default has occurred
under the provisions of the relevant Secured Instrument and, as a result thereof, all
related Secured Obligations outstanding under such Secured Instrument have become due and
payable and have not been paid in full or in the case of any reimbursement obligation in
respect of an outstanding Letter of Credit or letter of guarantee, a requirement for
immediate cash collateralization has not been satisfied. Each Notice of Acceleration shall
be in substantially the form of Exhibit A.
Opinion of Counsel shall mean an opinion in writing signed by legal counsel
reasonably satisfactory to the Collateral Agent, who may be counsel retained by the
Collateral Agent or counsel to the Company.
Other Secured Non-Loan Exposure shall mean Banking Services Obligations,
Acceptance Obligations and Secured Swap Obligations, in each case constituting Secured
Obligations under the Existing Credit Agreement.
paid in full or payment in full or pay such amounts in
full shall mean, with respect to any Secured Obligations, (i) with respect to Credit
Agreement Obligations, the payment in full (other than as part of a Refinancing) in cash of
the principal of, accrued (but unpaid) interest (including Post-Petition Interest) and
premium, if any such premium is applicable, on all such Secured Obligations and all
indemnities arising pursuant to the
-4-
Loan Documents (other than any contingent indemnification obligations not then due and
owing) and, with respect to Letters of Credit outstanding thereunder, delivery of cash
collateral or acceptable backstop letters of credit in respect thereof in compliance with
the Loan Documents, after or concurrently with termination of all commitments thereunder and
payment in full of all fees payable at or prior to the time such principal and interest are
paid and (ii) with respect to the Synthetic Lease Obligations, the payment in full in cash
of such Synthetic Lease Obligations.
Post-Petition Interest shall mean all interest (or entitlement to fees or
expenses or other charges) accruing or that would have accrued after the commencement of any
Insolvency Proceeding, irrespective of whether a claim for post-filing or petition interest
(or entitlement to fees or expenses or other charges) is allowed in such Insolvency
Proceeding.
Post-Petition Securities shall mean any debt securities or other Indebtedness
received in full or partial satisfaction of any claim as part of any Insolvency Proceeding.
Proceeds shall mean all proceeds as such term is defined in Section
9-102(a)(64) of the Uniform Commercial Code in effect in the State of New York on the date
hereof.
Refinancing shall mean, with respect to any Indebtedness, any other
Indebtedness (including under any Post-Petition Securities received on account of such
Indebtedness) issued as part of a refinancing, extension, renewal, defeasance, amendment,
restatement, modification, supplement, restructuring, replacement, exchange, refunding or
repayment thereof.
Reimbursement Obligation shall mean the obligation of the Company or the
relevant Subsidiary Borrower to reimburse an Issuing Bank pursuant to the Credit Agreement
for amounts drawn under Letters of Credit.
Related Obligations shall have the meaning assigned in subsection 6.4.
Requirement of Law shall mean, as to any Person, any law, treaty, rule or
regulation or determination of an arbitrator or a court of competent jurisdiction or other
Governmental Authority, in each case applicable to and binding upon such Person and any of
its property, and to which such Person and any of its property is subject.
Secured Instruments shall mean at any time (i) the Loan Documents, (ii) the
Synthetic Lease Documentation and (iii) any agreement or other instrument governing or
evidencing any Other Secured Non-Loan Exposure.
Secured Obligations shall mean, without duplication, (a) all Credit Agreement
Obligations of the Grantors and Other Secured Non-Loan Exposure of the Grantors; and (b) all
Synthetic Lease Obligations of the Grantors; provided, however, that to the
extent any payment with respect to the Secured Obligations (whether by or on behalf of any
Grantor, as proceeds of US Collateral, enforcement of any right of set off or otherwise) is
declared to be fraudulent or preferential in any respect, set aside or required to be
paid to
-5-
a debtor in possession, trustee, receiver or similar Person, then the obligation or
part thereof originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred.
Secured Parties shall mean at any time the Collateral Agent (in its capacity
as the holder of the Lien on the US Collateral securing the Secured Obligations), the Holder
Representatives in respect of the Credit Agreement Obligations and the Synthetic Lease
Obligations outstanding at such time, and each other holder of Secured Obligations
outstanding at such time.
Security Agreement shall mean that certain US Pledge and Security Agreement,
dated as of January 12, 2009, among the Company, the other Grantors party thereto and the
Collateral Agent (for the benefit of the Secured Parties), as the same may be amended,
restated or otherwise modified from time to time.
Subsidiary Borrower shall mean any Subsidiary of the Company that is a party
to the Credit Agreement as a borrower thereunder.
Synthetic Facility Class shall mean, collectively, the Secured Parties that
are holders of any Synthetic Lease Obligations.
Synthetic Lease Representative means SunTrust Equity Funding, LLC, a Delaware
limited liability company, in its capacity as agent under the Synthetic Lease Documentation.
2006 Synthetic Lease means the Amended and Restated Master Lease Agreement,
dated as of November 21, 2006, among SunTrust Bank, as Lessor, and the Company and Liz
Claiborne Accessories, Inc., as Lessees, as heretofore amended, supplemented or otherwise
modified and as contemporaneously herewith and hereafter amended, supplemented or otherwise
modified from time to time (provided that (A) no amendment, supplement or
modification entered into after the date hereof shall (i) shorten the maturity or tenor
thereof or provide for any scheduled prepayment of the obligations thereunder prior to the
Maturity Date, or (ii) contain covenants (including financial maintenance covenants) or
events of default that are more restrictive than the covenants or events of default (as
applicable) set forth in the Credit Agreement as in effect on the date hereof (or make any
other modification that would have a substantially similar result) and (B) to the extent any
amendment, supplement or modification entered into after the date hereof shall (i) increase
the principal amount of the obligations of any Loan Party thereunder or (ii) except in
connection with an amendment pursuant to Section 5.1(k) of the Master Agreement (as defined
therein), increase the Yield (as defined therein) or interest rate accruing on the
obligations thereunder (or make any other modification that would have a substantially
similar result), such increased principal amount or increased Yield or interest, as the case
may be, shall not be considered Secured Obligations for purposes of this Intercreditor
Agreement), unless, in any of the foregoing cases, the required lenders under the Credit
Agreement consent thereto).
-6-
US Collateral shall mean, collectively, all collateral in which the
Collateral Agent is granted a security interest pursuant to any US Security Document.
US Security Documents shall mean, collectively, the Security Agreement, the
Mortgages and all other security documents hereafter delivered to the Collateral Agent
granting a Lien on any property of any Person to secure the Secured Obligations (including
each agreement entered into pursuant to clause (ii) of subsection 6.3(b) of this
Intercreditor Agreement), in each case, as the same may be amended, restated or otherwise
modified from time to time, other than, for the avoidance of doubt, any mortgages or
security documents granting or purporting to grant, or creating a Lien on the Excluded Real
Property (as defined in the Security Agreement).
(c) The words hereof, herein and hereunder and words of similar import when used in this
Intercreditor Agreement shall refer to this Intercreditor Agreement as a whole and not to any
particular provision of this Intercreditor Agreement, and section and subsection references are to
this Intercreditor Agreement unless otherwise specified. References to agreements defined in
subsection 1.1(b) shall, unless otherwise specified, be deemed to refer to such agreements as
amended, supplemented, restated or otherwise modified from time to time.
SECTION 2.
ACCELERATION OF SECURED OBLIGATIONS
2.1 Notices of Acceleration. (a) Upon receipt by the Collateral Agent of a Notice of
Acceleration, the Collateral Agent shall immediately notify the Company and the Holder
Representatives of the receipt and contents thereof. So long as such Notice of Acceleration is in
effect, the Collateral Agent shall exercise the rights and remedies provided in this Intercreditor
Agreement and in the US Security Documents subject to the direction of the Controlling Party, as
provided herein. So long as no Notice of Acceleration is in effect, the Collateral Agent shall
take such actions as are permitted by this Intercreditor Agreement or the US Security Documents in
accordance with, to the extent it receives or requests any such instructions, the instructions of
the Controlling Party delivered to the Collateral Agent, and otherwise as it determines in its
reasonable discretion as provided in this Intercreditor Agreement and the US Security Documents.
(b) A Notice of Acceleration delivered by a Holder Representative shall become effective upon
receipt thereof by the Collateral Agent. Notwithstanding anything in this Intercreditor Agreement
to the contrary, a Notice of Acceleration shall be deemed to be in effect (and deemed delivered by
each of the Credit Agreement Representative and the Synthetic Lease Representative) whenever an
Event of Default under Section 7(h) or (i) of the Credit Agreement has occurred and is continuing
(and the Collateral Agent shall be deemed to have notified the Company and the Synthetic Lease
Representative thereof). A Notice of Acceleration, once effective, shall remain in effect unless
and until it is cancelled as provided in subsection 2.1(c).
(c) Any Holder Representative shall be entitled to cancel its own Notice of Acceleration by
delivering a written notice of cancellation to the Collateral Agent (i) before the
-7-
Collateral Agent takes any action to exercise any remedy with respect to the US Collateral or (ii) thereafter, if
the Collateral Agent believes that all actions it has taken to exercise any remedy or remedies with
respect to the US Collateral can be reversed without undue difficulty; provided that no
Notice of Acceleration shall be cancelled more than 60 days after it is received by the Collateral
Agent. The Collateral Agent shall immediately notify the Company and each Holder Representative as
to the receipt and contents of any such notice of cancellation.
2.2 [Reserved].
2.3 Right to Initiate Judicial Proceedings. If a Notice of Acceleration is in effect,
the Collateral Agent, subject to the provisions of subsection 2.5(b) and Section 5, (i) shall have
the right and power to institute and maintain such suits and proceedings as it may deem appropriate
to protect and enforce the rights vested in it by this Intercreditor Agreement and each US Security
Document and (ii) may, either after entry, or without entry, proceed by suit or suits at law or in
equity to enforce such rights and to foreclose upon the US Collateral and to sell all or, from time
to time, any of the US Collateral under the judgment or decree of a court of competent
jurisdiction.
2.4 Right to Appoint a Receiver. If a Notice of Acceleration is in effect, upon the
filing of a bill in equity or other commencement of judicial proceedings to enforce the rights of
the Collateral Agent under this Intercreditor Agreement or any US Security Document, the Collateral
Agent shall, to the extent permitted by law, with notice to the Company but without notice to any
party claiming through the Grantors, without regard to the solvency or insolvency at the time of
any Person then liable for the payment of any of the Secured Obligations, without regard to the
then value of the US Collateral, and without requiring any bond from any complainant in such
proceedings, be entitled as a matter of right to the appointment of a receiver or receivers (who
may be the Collateral Agent) of the US Collateral, or any part thereof, and of the rents, issues,
tolls, profits, royalties, revenues and other income thereof, pending such proceedings, with such
powers as the court making such appointment shall confer, and to the entry of an order directing
that the rents, issues, tolls, profits, royalties, revenues and other income of the property
constituting the whole or any part of the US Collateral be segregated, sequestered and impounded
for the benefit of the Collateral Agent and the Secured Parties, and each Grantor irrevocably
consents to the appointments of such receiver or receivers and to the entry of such order;
provided that, notwithstanding the appointment of any receiver, the Collateral Agent shall
be entitled to retain possession and control of all cash and Permitted Investments held by or
deposited with it pursuant to this Intercreditor Agreement or any US Security Document.
2.5 Exercise of Powers; Instructions of the Controlling Party. (a) All of the powers, remedies and rights of the Collateral Agent as set forth in this
Intercreditor Agreement may be exercised by the Collateral Agent in respect of any US Security
Document as though set forth in full therein and all of the powers, remedies and rights of the
Collateral Agent, each Holder Representative and the other Secured Parties as set forth in any US
Security Document may be exercised from time to time as herein and therein provided.
(b) The Controlling Party shall at all times have the right, by one or more notices in
writing executed and delivered to the Collateral Agent (or by telephonic notice promptly
-8-
confirmed in writing), to direct the time, method and place of conducting any proceeding for any right or
remedy available to the Collateral Agent, or of exercising any power conferred on the Collateral
Agent, or for the appointment of a receiver, or to direct the taking or the refraining from taking
of any action authorized by this Intercreditor Agreement or any US Security Document;
provided that (i) such direction shall not conflict with any Requirement of Law or this
Intercreditor Agreement or any US Security Document, (ii) the Collateral Agent shall be adequately
secured and indemnified as provided in subsection 5.4(d) and (iii) no Collateral Enforcement Action
may be taken unless a Notice of Acceleration is in effect. In the absence of such direction, the
Collateral Agent shall have no duty to take or refrain from taking any action unless explicitly
required herein.
(c) Whether or not any Insolvency Proceeding has been commenced by or against any Grantor, no
Holder Representative or other Secured Party shall do (and no such Holder Representative or Secured
Party (other than the Controlling Party) shall direct the Collateral Agent to do) any of the
following without the consent of the Controlling Party: (i) take any Collateral Enforcement Action
or commence, seek to commence or join any other Person in commencing any Insolvency Proceeding; or
(ii) object to, contest or take any other action that is reasonably likely to hinder (1) any
Collateral Enforcement Action initiated by the Collateral Agent, (2) any release of US Collateral
permitted under the Loan Documents and this Intercreditor Agreement, whether or not done in
consultation with or with notice to such Secured Party or (3) any decision by the Controlling Party
to forbear or refrain from bringing or pursuing any such Collateral Enforcement Action or to effect
any such release.
2.6 [Reserved].
2.7 [Reserved].
2.8 [Reserved].
2.9 [Reserved].
2.10
Rights of Secured Parties under Secured Instruments (a). Notwithstanding any
other provision of this Intercreditor Agreement or any US Security Document, the right of each
Secured Party to receive payment of the Secured Obligations held by such Secured Party when due
(whether at the stated maturity thereof, by acceleration or otherwise) as expressed in the related
Secured Instrument or other instrument evidencing or agreement governing a Secured Obligation or to
institute suit for the enforcement of such payment on or after such due date or to exercise any
other remedy it may have as an unsecured creditor against the Grantors, and the obligation of the
Grantors to pay such Secured Obligations when due, shall not be impaired or affected without the
consent of such Secured Party given in the manner prescribed by the Secured Instrument under which
such Secured Obligation is outstanding; provided, however, that in the event any
Secured Party becomes a judgment lien creditor or otherwise obtains any Lien as a result of its
enforcement of its rights as an unsecured creditor, such judgment lien and the US Collateral
subject thereto shall be subject to all of the terms and conditions of this Intercreditor
Agreement.
2.11 [Reserved].
-9-
2.12 Nature of Obligations. The Synthetic Lease Representative on behalf of itself
and the other Secured Parties holding Synthetic Lease Obligations acknowledges that the Credit
Agreement Obligations represent debt that is revolving in nature and that the amount thereof that
may be outstanding at any time or from time to time may be increased or reduced and subsequently
reborrowed, and that, subject to Section 6.5, the terms of the Credit Agreement Obligations may be
modified, extended or amended from time to time, and that the aggregate amount of the Credit
Agreement Obligations may be increased, replaced or refinanced, in each event without the consent
of (or, except as explicitly provided in the Synthetic Lease Documentation, notice to) the Secured
Parties and without affecting the provisions hereof. The application of moneys provided in Section
3.4 shall not be altered or otherwise affected by any such amendment, modification, supplement,
extension, repayment, reborrowing, increase, replacement, renewal, restatement or refinancing of
the Credit Agreement Obligations, or any portion thereof. Nothing contained in this Section 2.12
shall be deemed to override or negate any provision of the Loan Documents (or any such notification
provisions (or Section 5.1(k)) of the Synthetic Lease Documentation) with respect to such
amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement,
renewal, restatement or refinancing of the Credit Agreement Obligations, including any default
which may occur because of such actions.
SECTION 3.
COLLATERAL ACCOUNT; DISTRIBUTIONS
3.1 The Collateral Account. On the Effective Date there shall be established and, at
all times thereafter until the right, title, obligations and interest of the Collateral Agent under
this Agreement shall have terminated, there shall be maintained in the name of the Collateral Agent
an account entitled the Liz Claiborne Collateral Account (the Collateral Account (it
being understood that, so long
as JPMorgan Chase Bank, N.A., is the Collateral Agent hereunder and the U.S. Collateral Agent,
the Collection Account may be used as the Collateral Account). All moneys which are required by
this Intercreditor Agreement or any US Security Document to be delivered to the Collateral Agent
while a Notice of Acceleration is in effect or which are received by the Collateral Agent or any
agent or nominee of the Collateral Agent in respect of the US Collateral, whether in connection
with the exercise of the remedies provided in this Intercreditor Agreement or any US Security
Document or otherwise, while a Notice of Acceleration is in effect shall be deposited in the
Collateral Account, to be held by the Collateral Agent as part of the US Collateral and applied in
accordance with the terms of this Intercreditor Agreement. So long as no Event of Default shall
have occurred and be continuing, upon the cancellation of all Notices of Acceleration pursuant to
subsection 2.1(c) or the receipt by the Collateral Agent of any moneys at any time when no Notice
of Acceleration is in effect, the Collateral Agent shall (subject to the first sentence of
subsection 3.4(a)) cause all funds on deposit in the Collateral Account or otherwise received by
the Collateral Agent to be paid over to the Grantors in accordance with their respective interests;
provided that if a Full Cash Dominion Period shall be in effect at the time of such
cancellation, all such funds shall be delivered to the Credit Agreement Representative to be
applied in accordance with the provisions of the Credit Agreement.
-10-
3.2 Control of Collateral Account. All right, title and interest in and to the
Collateral Account shall vest in the Collateral Agent, and funds on deposit in the Collateral
Account shall constitute part of the US Collateral. The Collateral Account shall be subject to the
exclusive dominion and control of the Collateral Agent. Each Grantor hereby grants a security
interest in the Collateral Account to the Collateral Agent for the benefit of the Secured Parties,
as collateral security for such Grantors Secured Obligations.
3.3 Investment of Funds Deposited in Collateral Account. After a Notice of
Acceleration has been delivered to the Collateral Agent, and for so long as any such notice remains
in effect, the Collateral Agent shall, at the direction of the Controlling Party, invest and
reinvest moneys on deposit in the Collateral Account at any time in Permitted Investments. All
such investments and the interest and income received thereon and the net proceeds realized on the
sale or redemption thereof shall be held in the Collateral Account as part of the US Collateral.
Neither the Collateral Agent nor any other Secured Party shall be responsible for any diminution in
funds resulting from such investments or any liquidation prior to maturity. In the absence of such
directions, the Collateral Agent shall have no obligation to invest or reinvest moneys.
3.4 Application of Moneys. (a) The Collateral Agent shall have the right (pursuant
to subsection 4.7) at any time to apply moneys held by it in the Collateral Account to the payment
of due and unpaid Fees.
(b) [Reserved].
(c) All moneys held by the Collateral Agent in the Collateral Account while a Notice of
Acceleration is in effect shall, to the extent available for distribution (it being
understood that the Collateral Agent may liquidate investments prior to maturity in order to
make a distribution pursuant to this subsection 3.4(c)) and subject to the provisos in paragraphs
fourth and fifth below, be distributed (subject to the provisions of subsections
3.5 and 3.7) by the Collateral Agent on each Distribution Date in the following order of priority
(with such distributions being made by the Collateral Agent to the respective Holder
Representatives or Secured Parties, as applicable, as provided in subsection 3.4(e), and each such
Holder Representative shall be responsible for insuring that amounts distributed to it are
distributed to its Secured Parties in the order of priority set forth below):
First: to the Collateral Agent for any unpaid Fees and then to any Secured
Party which has theretofore advanced or paid any Fees constituting administrative expenses
allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof
so advanced or paid by such Secured Party and for which such Secured Party has not been
reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay
such amounts in full, then ratably (without priority of any one over any other) to such
Secured Parties in proportion to the amounts of such Fees advanced by the respective Secured
Parties and remaining unpaid on such Distribution Date;
Second: to any Secured Party which has theretofore advanced or paid any Fees
other than such administrative expenses, an amount equal to the amount thereof so advanced
or paid by such Secured Party and for which such Secured Party has not been
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reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in
full, then ratably (without priority of any one over any other) to such Secured Parties in
proportion to the amounts of such Fees advanced by the respective Secured Parties and
remaining unpaid on such Distribution Date;
Third: to any Holder Representative for any unpaid expenses payable to such
Person pursuant to the Secured Instruments to the extent the same constitute Secured
Obligations and, if such moneys shall be insufficient to pay such amounts in full, then
ratably to such Persons in proportion to the unpaid amounts thereof on such Distribution
Date;
Fourth: to the relevant Holder Representative for the benefit of the holders
of Secured Obligations, in an amount equal to the unpaid principal of the Credit Agreement
Obligations and other Secured Obligations and unpaid interest thereon, all fees constituting
Credit Agreement Obligations and premium and other amounts (other than indemnities and
payments for increased costs) charges, if any, and reimbursement obligations (including,
without limitation, the obligation to cash collateralize undrawn Letters of Credit) with
respect to the Credit Agreement Obligations or other Secured Obligations, termination
amounts in respect of Secured Swap Obligations, amounts due in respect of Banking Services
Obligations, rent payments, purchase prices, lease balances and other amounts (other than
indemnities and payments for increased costs) constituting Synthetic Lease Obligations, and
interest and fees thereon, in each case to the extent such interests and fees are due and
payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such
amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on
such Distribution Date; provided, however, that at the option of the
Collateral Agent if and to the extent that it or the Controlling Party
reasonably believes (as indicated by a notice to the Holder Representatives with a copy
to the Collateral Agent, as appropriate) that the holders of any Secured Obligations are
reasonably likely to recover, in a reasonable period from sources other than the US
Collateral, payments on account of such Secured Obligations, the Collateral Agent shall hold
the distribution in respect of such Secured Obligations pursuant to this paragraph
fourth as cash collateral for such Secured Obligations until such recovery is
obtained or ceases to be reasonably likely in a reasonable period, and if and to the extent
such recovery is obtained such cash collateral shall be applied in the same manner as
contemplated in Section 3.5(ii);
Fifth: to the relevant Holder Representative for the benefit of the holders of
Secured Obligations, in an amount equal to all other amounts constituting such Secured
Obligations (including but not limited to indemnities and payments for increased costs), in
each case to the extent the same are due and payable, as of such Distribution Date, and, if
such moneys shall be insufficient to pay such amounts in full, then ratably to such holders
in proportion to the unpaid amounts thereof on such Distribution Date; provided,
however, that at the option of the Collateral Agent if and to the extent that it or
the Controlling Party reasonably believes (as indicated by a notice to the Holder
Representatives with a copy to the Collateral Agent, as appropriate) that the holders of any
Secured Obligations are reasonably likely to recover, in a reasonable period from sources
other than the US Collateral, payments on account of such Secured Obligations,
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the Collateral Agent shall hold the distribution in respect of such Secured Obligations pursuant
to this paragraph fifth as cash collateral for such Secured Obligations until such
recovery is obtained or ceases to be reasonably likely in a reasonable period, and if and to
the extent such recovery is obtained such cash collateral shall be applied in the same
manner as contemplated in Section 3.5(ii); and
Sixth: any surplus then remaining shall be paid to the Grantors or their
successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct.
(d) The term unpaid as used in clauses Third and Fourth of subsection
3.4(c) with respect to the relevant Grantor(s) refers to all amounts of Secured Obligations
outstanding as of a Distribution Date, whether or not such amounts are fixed or contingent, and, in
the case of an Insolvency Proceeding, with respect to any Grantor, whether or not such amounts are
allowed in such Insolvency Proceeding, to the extent that prior distributions have not been made
(whether or not actually distributed or set aside pursuant to subsection 3.5) in respect thereof.
(e) The Collateral Agent shall make all payments and distributions under this subsection 3.4:
(i) on account of Credit Agreement Obligations and Other Secured Non-Loan Exposure, to the Credit
Agreement Representative, pursuant to directions of the Credit Agreement Representative, for
re-distribution in accordance with the provisions of the Credit Agreement and (ii) on account of
Synthetic Lease Obligations to the Synthetic Lease Representative, pursuant to directions of the
Synthetic Lease Representative, for re-distribution in accordance with the provisions of the
Synthetic Lease Documentation.
3.5 Amounts Held for Contingent Secured Obligations. In the event any Secured Party
shall be entitled to receive any moneys in respect of the unliquidated, unmatured or contingent
portion of the outstanding Secured Obligations (including, without limitation, obligations under
then outstanding letters of credit, guarantees and termination liabilities with respect to Secured
Swap Obligations which are not determinable or are unmatured), then the Collateral Agent shall
invest such moneys in obligations of the kinds referred to in subsection 3.3 maturing within three
months after they are acquired by the Collateral Agent and shall hold all such amounts so
distributable, and all such investments and the net proceeds thereof, in trust solely for such
Secured Party and for no other purpose until (i) such Secured Party shall have notified the
Collateral Agent that all or part of such unliquidated, unmatured or contingent claim shall have
become matured or fixed, in which case the Collateral Agent shall distribute from such investments
and the proceeds thereof an amount equal to such matured or fixed claim to such Secured Party for
application to the payment of such matured or fixed claim, and shall promptly give notice thereof
to the Company or (ii) all or part of such unliquidated, unmatured or contingent claim shall have
been extinguished, whether as the result of an expiration without drawing of any letter of credit,
payment of amounts secured or covered by any letter of credit other than by drawing thereunder,
payment of amounts covered by any guarantee or otherwise, in which case (x) such Secured Party
shall, as soon as practicable thereafter, notify the Company and the Collateral Agent and (y) such
investments, and the proceeds thereof, shall be held in the Collateral Account in trust for all
Secured Parties pending application in accordance with the provisions of subsection 3.4.
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3.6 Collateral Agents Calculations. In making the determinations and allocations
required by subsection 3.4, the Collateral Agent may conclusively rely upon information supplied by
the Credit Agreement Representative as to the amounts of unpaid principal and interest and other
amounts outstanding with respect to the Credit Agreement Obligations, information supplied by the
Synthetic Lease Representative as to the amounts of unpaid principal and interest and other amounts
outstanding with respect to the Synthetic Lease Obligations and information supplied by the
applicable Secured Party in respect of the relevant Other Secured Non-Loan Exposure as to the
unpaid amount of such Secured Obligations, and the Collateral Agent shall have no liability to any
of the Secured Parties or any Grantor for actions taken in reliance on such information;
provided that nothing in this sentence shall prevent any Grantor from contesting any
amounts claimed by any Secured Party in any information so supplied. All distributions made by the
Collateral Agent pursuant to subsection 3.4 shall be (subject to subsection 3.7 and to any decree
of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent
shall have no duty to inquire as to the application by any Holder Representative in respect of any
amounts distributed to them.
3.7 Pro Rata Sharing. If, through the operation of any Bankruptcy Law or otherwise,
the Collateral Agents security interest hereunder and under the US Security Documents is enforced
with respect to some, but not all, of the Secured Obligations then outstanding in respect of which
a Notice of Acceleration has been delivered, the Collateral Agent shall nonetheless apply the
proceeds of the US Collateral for the benefit of the holders of all such Secured Obligations in the
proportions and subject to the priorities specified herein; provided that nothing in
this subsection 3.7 shall be deemed to require the Collateral Agent to disregard or violate any
court order binding upon it.
SECTION 4.
AGREEMENTS WITH AGENT
4.1 Delivery of Secured Instruments. The Company shall deliver to the Collateral
Agent, promptly upon the execution thereof, a copy of all amendments, modifications or supplements
to any Secured Instrument entered into after the Effective Date.
4.2 Information as to Secured Parties and Holder Representatives. The Company shall
deliver to the Collateral Agent, from time to time upon request of the Collateral Agent when a
Notice of Acceleration shall be in effect, a list setting forth as of a date not more than 30 days
prior to the date of such delivery, (i) the aggregate principal amount of Credit Agreement
Obligations outstanding and the name and address of the Credit Agreement Representative (it being
understood that all such information required to be delivered pursuant this clause (i) shall be
deemed to have been delivered at any time that JPMorgan Chase Bank, N.A. is both the Credit
Agreement Representative and the Collateral Agent hereunder), (ii) the aggregate principal amount
of the Synthetic Lease Obligations outstanding and the name and address of the Synthetic Lease
Representative and (iii) the information necessary, in the judgment of the Company, to calculate
the Majority Class Holders and the Majority Secured Parties as of such date. In addition, the
Company will promptly notify the Collateral Agent of each change in the identity of the Controlling
Party or any Holder Representative. The Company
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will request that each Holder Representative
notify the Collateral Agent of any changes of the officers of each thereof authorized to give
directions hereunder on behalf of such parties prior to the date of any such changes. If the
Collateral Agent does not receive the names of the officers of each Holder Representative
authorized to give directions hereunder on behalf of such parties, the Collateral Agent may rely on
any person purporting to be authorized to give directions hereunder on behalf of such parties. If
the Collateral Agent is not informed of changes of the officers of any Holder Representative
authorized to give directions hereunder on behalf of such parties, the Collateral Agent may rely on
the information previously provided to the Collateral Agent.
4.3 Compensation and Expenses. The Company agrees to pay to the Collateral Agent,
from time to time upon demand, (i) all of the reasonable fees, costs and expenses of the Collateral
Agent (including, without limitation, the reasonable fees and disbursements of its counsel,
advisors and agents) arising in connection with the preparation, execution, delivery, modification,
amendment, or termination of this Intercreditor Agreement or any other documents prepared in
connection
herewith and (ii) all fees, costs and expenses of the Collateral Agent (including, without
limitation, the fees and disbursements of its counsel, advisors and agents) in connection with (x)
the enforcement of any of the provisions hereof, (y) required to be advanced in connection with
the administration of the US Collateral, the sale or other disposition of US Collateral and the
preservation, protection or defense of the Collateral Agents rights under this Intercreditor
Agreement and in and to the US Collateral or (z) incurred in connection with the execution of the
directions provided by the Controlling Party. Such fees, costs and expenses are intended to
constitute expenses of administration under any bankruptcy law relating to creditors rights
generally. If the Company fails to pay any amounts owing to the Collateral Agent pursuant to this
subsection 4.3, each Secured Party severally agrees to pay to the Collateral Agent such Secured
Partys pro rata share of such unpaid amount, and the amount of any such payment shall be added to
such Secured Partys Secured Obligations. The obligations of the Company under this subsection 4.3
shall survive the termination of the other provisions of this Intercreditor Agreement and the
resignation or removal of the Collateral Agent hereunder.
4.4 [Reserved].
4.5 [Reserved].
4.6 Indemnification. The Company agrees to pay, indemnify, and hold the Collateral
Agent (and its directors, officers, agents and employees) harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, the reasonable fees and expenses of counsel, advisors and agents)
or disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Intercreditor Agreement, unless arising from
the gross negligence, bad faith or willful misconduct of the indemnified party or any of its
affiliates or any of their respective directors, officers, agents or employees, including for taxes
in any jurisdiction in which the Collateral Agent is subject to tax by reason of actions hereunder
or under the US Security Documents, unless such taxes are imposed on or measured by compensation
paid to the Collateral Agent under subsection 4.3. In any suit, proceeding or action brought by
the Collateral Agent under or with respect to any contract, agreement, interest or obligation
constituting part of the US Collateral for any sum owing thereunder, or to enforce
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any provisions thereof, the Company will save, indemnify and keep the Collateral Agent harmless from and against
all expense, loss or damage suffered by reason of any defense, setoff, counterclaim, recoupment or
reduction of liability whatsoever of any Grantor thereunder, arising out of a breach by such
Grantor of any obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such Grantor or its successors from any Grantor, and
all such obligations of the Company shall be and remain enforceable against and only against the
Company and shall not be enforceable against the Collateral Agent. If the Company fails to pay any
amounts owing to the Collateral Agent pursuant to this subsection 4.6, each Secured Party severally
agrees to pay to the Collateral Agent such Secured Partys pro rata share of such amounts, and the
amount of any such payment shall be added to such Secured Partys Secured Obligations. The
agreements in this subsection
4.6 shall survive the termination of the other provisions of this Intercreditor Agreement and
the resignation or removal of the Collateral Agent hereunder.
4.7 Collateral Agents Lien. Notwithstanding anything to the contrary in this
Intercreditor Agreement, as security for the payment of Fees (i) the Collateral Agent is hereby
granted a lien upon all US Collateral which shall have priority ahead of all other Secured
Obligations secured by such US Collateral and (ii) the Collateral Agent shall have the right to use
and apply any of the funds held by the Collateral Agent in the Collateral Account to cover such
Fees.
SECTION 5.
THE COLLATERAL AGENT
5.1 Appointment of Collateral Agent. Each Holder Representative hereby irrevocably
appoints the Collateral Agent as its agent and authorizes the Collateral Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms
hereof, together with such actions and powers as are reasonably incidental thereto.
5.2 Exculpatory Provisions. (a) The Collateral Agent shall not be responsible in any
manner whatsoever for the correctness of any recitals, statements, representations or warranties
herein, all of which are made solely by the Grantors. The Collateral Agent makes no
representations as to the value or condition of the US Collateral or any part thereof, or as to the
title of the Grantors thereto or as to the security afforded by this Intercreditor Agreement or any
US Security Document, or as to the validity, execution (except its execution), enforceability,
legality or sufficiency of this Intercreditor Agreement, the US Security Documents or the Secured
Obligations, and the Collateral Agent shall incur no liability or responsibility in respect of any
such matters.
(b) The Collateral Agent shall not be required to ascertain or inquire as to the performance
by the Grantors of any of the covenants or agreements contained herein or in any US Security
Document or Secured Instrument. Whenever it is necessary, or in the opinion of the Collateral
Agent advisable, for the Collateral Agent to ascertain the amount of Secured Obligations then held
by Secured Parties, the Collateral Agent may rely (i) on a certificate of the Credit Agreement
Representative, in the case of Credit Agreement Obligations, (ii) on a
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certificate of Synthetic
Lease Representative, in the case of the Synthetic Lease Obligations and (iii) on a certificate of
the relevant Secured Party, in the case of any other Secured Obligations, and, if the Credit
Agreement Representative, the Synthetic Lease Representative or any relevant Secured Party shall
not give such information to the Collateral Agent after receiving a written request therefor from
the Collateral Agent, it shall not be entitled to receive distributions hereunder (in which case
distributions to those Persons who have supplied such information to the Collateral Agent shall be
calculated by the Collateral Agent using, for those Persons who have not supplied such information,
the list then most recently delivered by the Company pursuant to subsection 4.2), and the amount so
calculated to be distributed to the Person who fails to give
such information shall be held in trust for such Person until such Person does supply such
information to the Collateral Agent, whereupon on the next applicable Distribution Date the amount
distributable to such Person shall be recalculated using such information and distributed to it.
Nothing in this subsection 5.2(b) shall prevent any Grantor from contesting any amounts claimed by
any Secured Party in any certificate so supplied. Notwithstanding anything to the contrary set
forth in this subsection 5.2(b), so long as no Notice of Acceleration is in effect, the Collateral
Agent may rely conclusively on a certificate of a Responsible Officer of the Company with respect
to the matters set forth in the second sentence of this subsection 5.2(b).
(c) The Collateral Agent shall be under no obligation or duty to take any action under this
Intercreditor Agreement or any US Security Document if taking such action (i) would subject the
Collateral Agent to a tax (or equivalent liability) in any jurisdiction where it is not then
subject to a tax (or equivalent liability) or (ii) would require the Collateral Agent to qualify to
do business in any jurisdiction where it is not then so qualified, unless the Collateral Agent
receives security or indemnity satisfactory to it against such tax (or equivalent liability), or
any liability resulting from such qualification, in each case as results from the taking of such
action under this Intercreditor Agreement or any US Security Document.
(d) The Collateral Agent shall have the same rights with respect to any Secured Obligation
held by it as any other Secured Party and may exercise such rights as though it were not the
Collateral Agent hereunder, and may accept deposits from, lend money to, and generally engage in
any kind of banking or trust business with, any of the Grantors as if it were not the Collateral
Agent.
(e) Notwithstanding any other provision of this Intercreditor Agreement, the Collateral Agent
shall not be liable for any action taken or omitted to be taken in accordance with this
Intercreditor Agreement or the US Security Documents except for its own gross negligence, bad faith
or willful misconduct.
5.3 Delegation of Duties. The Collateral Agent may execute any of the powers hereof
and perform any duty hereunder either directly or by or through agents or attorneys-in-fact. The
Collateral Agent shall be entitled to advice of counsel concerning all matters pertaining to such
powers and duties. The Collateral Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it without gross negligence or willful misconduct.
5.4 Reliance by Collateral Agent. (a) Whenever in the administration of this
Intercreditor Agreement or the US Security Documents after a Notice of Acceleration is received
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by the Collateral Agent, the Collateral Agent shall deem it necessary or desirable that a factual
matter be proved or established in connection with the Collateral Agent taking, suffering or
omitting any action hereunder or thereunder, such matter (unless other evidence in respect thereof
is herein specifically prescribed) may be deemed to be conclusively proved or established by a
certificate of a Responsible Officer of the Company delivered to the Collateral Agent, and such
certificate
shall be full warrant to the Collateral Agent for any action taken, suffered or omitted in
reliance thereon, subject, however, to the provisions of subsection 5.5.
(b) The Collateral Agent may consult with counsel, and any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or suffered by it
hereunder or under any US Security Document in accordance therewith. While a Notice of
Acceleration is in effect, the Collateral Agent shall have the right at any time to seek
instructions concerning the administration of this Intercreditor Agreement and the US Security
Documents from any court of competent jurisdiction.
(c) The Collateral Agent may rely, and shall be fully protected in acting, upon any
resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order,
bond or other paper or document which it has no reason to believe to be other than genuine and to
have been signed or presented by the proper party or parties or, in the case of cables, telecopies,
facsimiles, .pdf or other electronic transmissions and telexes, to have been sent by the proper
party or parties. In the absence of its own gross negligence, bad faith or willful misconduct, the
Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished to the Collateral Agent
and conforming to the requirements of this Intercreditor Agreement.
(d) The Collateral Agent shall not be under any obligation to exercise any of the rights or
powers vested in the Collateral Agent by this Intercreditor Agreement and the US Security
Documents, at the request or direction of the Controlling Party pursuant to this Intercreditor
Agreement or otherwise, unless the Collateral Agent shall have been provided adequate security and
indemnity against the costs, expenses and liabilities which may be incurred by the Collateral Agent
in compliance with such request or direction, including such reasonable advances as may be
requested by the Collateral Agent.
(e) [Reserved].
(f) Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a
certificate of a Responsible Officer of the Company provided to such counsel in connection with
such opinion or representations made by a Responsible Officer of the Company in a writing filed
with the Collateral Agent.
5.5 Limitations on Duties of the Collateral Agent. (a) Unless a Notice of
Acceleration is in effect, the Collateral Agent shall be obligated to perform such duties and only
such duties as are specifically set forth in this Intercreditor Agreement, and no implied covenants
or obligations shall be read into this Intercreditor Agreement or any US Security Document against
the Collateral Agent. If and so long as a Notice of Acceleration is in effect, the Collateral Agent
shall, subject to the provisions of subsection 2.5(b), exercise the rights and powers vested in the
Collateral Agent by this Intercreditor Agreement and the US Security Documents, and
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shall not be liable with respect to any action taken, or omitted to be taken, in accordance with the direction
of the Controlling Party.
(b) Except as herein otherwise expressly provided, the Collateral Agent shall not be under any
obligation to take any action which is discretionary with the Collateral Agent under the provisions
hereof or of any US Security Document, except upon the written request of the Controlling Party at
such time. The Collateral Agent shall make available for inspection and copying by each Holder
Representative and each Secured Party in respect of Other Secured Non-Loan Exposure, each
certificate or other paper furnished to the Collateral Agent by any of the Grantors under or in
respect of this Intercreditor Agreement or any of the US Collateral.
(c) No provision of this Intercreditor Agreement or of any US Security Document shall be
deemed to impose any duty or obligation on the Collateral Agent to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Collateral Agent shall be unqualified or incompetent, to
perform any such act or acts or to exercise any such right, power, duty or obligation or if such
performance or exercise would constitute doing business by the Collateral Agent in such
jurisdiction or impose a tax on the Collateral Agent by reason thereof or to risk its own funds or
otherwise incur any financial liability in the performance of its duties hereunder.
(d) Notwithstanding anything to the contrary contained herein, in no event shall the
Collateral Agent have any obligation to monitor the perfection or continuation of perfection or the
sufficiency or validity of any security interest in or related to the US Collateral.
5.6 Moneys to be Held in Trust. All moneys received by the Collateral Agent under or
pursuant to any provision of this Intercreditor Agreement or any US Security Document (except Fees)
after a Notice of Acceleration is in effect shall be held in trust for the purposes for which they
were paid or are held and in accordance with this Intercreditor Agreement.
5.7 Resignation of the Collateral Agent. Subject to the appointment and acceptance of
a successor Collateral Agent as provided in this paragraph, the Collateral Agent may resign at any
time by notifying the Holder Representatives. Upon any such resignation, the Majority Secured
Parties shall have the right, in consultation with the Company (unless a Notice of Acceleration is
in effect, in which case no such consultation shall be required), to appoint a successor. If no
successor shall have been so appointed by the Majority Secured Parties and shall have accepted such
appointment within 30 days after the retiring Collateral Agent gives notice of its resignation,
then the retiring Collateral Agent may, on behalf of the Secured Parties, appoint its successor in
such capacity, which shall be a financial institution or an Affiliate of any financial institution
or a Lender, in each case having a combined capital and surplus and undivided profits of at least
$500,000,000. Upon the acceptance of its appointment as Collateral Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers, privileges,
obligations and duties of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and any further obligations hereunder. The retiring Collateral Agent
shall, at its own cost, make available to the successor Collateral Agent any documents and records
and provide any assistance which the successor Collateral Agent may reasonably request for the
purposes of performing its functions as Collateral Agent under this Intercreditor Agreement. The
fees payable by the Company to a successor Collateral Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Company
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and such successor. After the Collateral Agents resignation hereunder, the provisions of
this Intercreditor Agreement shall continue in effect for the benefit of such retiring Collateral
Agent, its sub-agents and co-agents and their respective Affiliates in respect of any actions taken
or omitted to be taken by any of them while it was acting as Collateral Agent.
5.8 [Reserved].
5.9 Merger of the Collateral Agent. Any corporation into which the Collateral Agent
may be merged, or with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Collateral Agent shall be a party, shall be Collateral Agent under
this Intercreditor Agreement and the US Security Documents without the execution or filing of any
paper or any further act on the part of the parties hereto.
5.10 Co-Collateral Agent; Separate Collateral Agent. (a) If at any time or times it
shall be necessary or prudent in order to conform to any law of any jurisdiction in which any of
the US Collateral shall be located, or to avoid any violation of law or imposition on the
Collateral Agent of taxes by such jurisdiction not otherwise imposed on the Collateral Agent, or
the Collateral Agent shall be advised by counsel, satisfactory to it, that it is necessary or
prudent in the interest of the Secured Parties, or any Holder Representative shall in writing so
reasonably request the Collateral Agent and the Grantors, or the Collateral Agent shall deem it
desirable for its own protection in the performance of its duties hereunder or under any US
Security Document, the Collateral Agent and each of the Grantors shall execute and deliver all
instruments and agreements necessary or proper to constitute another bank or financial institution,
or one or more persons approved by the Collateral Agent and the Grantors, either to act as co-agent
or co-agents of all or any of the US Collateral under this Intercreditor Agreement or under any of
the US Security Documents, jointly with the Collateral Agent originally named herein or therein or
any successor Collateral Agent, or to act as separate agent or agents of any of the US Collateral.
If any of the Grantors shall not have joined in the execution of such instruments and agreements
within 30 days after it receives a written request from the Collateral Agent to do so, or if a
Notice of Acceleration is in effect, the Collateral Agent may act under the foregoing provisions of
this subsection 5.10(a) without the concurrence of such Grantors and execute and deliver such
instruments and agreements on behalf of such Grantors. Each of the Grantors hereby appoints the
Collateral Agent as its agent and attorney to act for it under the foregoing provisions of this
subsection 5.10(a) in either of such contingencies.
(b)
[Reserved].
(c) Every separate agent and every co-agent, other than any successor Collateral Agent
appointed pursuant to subsection 5.7, shall, to the extent permitted by law, be appointed and act
and be such, subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred upon the Collateral Agent in
respect of the custody, control and management of moneys, papers or securities
shall be exercised solely by the Collateral Agent or any agent appointed by the
Collateral Agent;
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(ii) all rights, powers, duties and obligations conferred or imposed upon the
Collateral Agent hereunder and under the relevant US Security Document(s) shall be conferred
or imposed and exercised or performed by the Collateral Agent and such separate agent or
separate agents or co-agent or co-agents, jointly, as shall be provided in the instrument
appointing such separate agent or separate agents or co-agent or co-agents, except to the
extent that under any law of any jurisdiction in which any particular act or acts are to be
performed the Collateral Agent shall be incompetent or unqualified to perform such act or
acts, or unless the performance of such act or acts would result in the imposition of any
tax on the Collateral Agent which would not be imposed absent such joint act or acts, in
which event such rights, powers, duties and obligations shall be exercised and performed by
such separate agent or separate agents or co-agent or co-agents;
(iii) no power given hereby or by the relevant US Security Documents to, or which it is
provided herein or therein may be exercised by, any such co-agent or co-agents or separate
agent or separate agents shall be exercised hereunder or thereunder by such co-agent or
co-agents or separate agent or separate agents except jointly with, or with the consent in
writing of, the Collateral Agent, anything contained herein to the contrary notwithstanding;
(iv) no agent hereunder shall be personally liable by reason of any act or omission of
any other agent hereunder; and
(v) the Company and the Collateral Agent, at any time by an instrument in writing
executed by them jointly, may accept the resignation of or remove any such separate agent or
co-agent and, in that case by an instrument in writing executed by them jointly, may appoint
a successor to such separate agent or co-agent, as the case may be, anything contained
herein to the contrary notwithstanding. If the Company shall not have joined in the
execution of any such instrument within 30 days after it receives a written request from the
Collateral Agent to do so, or if a Notice of Acceleration is in effect, the Collateral Agent
shall have the power to accept the resignation of or remove any such separate agent or
co-agent and to appoint a successor without the concurrence of the Company, the Company
hereby appointing the Collateral Agent its agent and attorney to act for it in such
connection in such contingency. If the Collateral Agent shall have appointed a separate
agent or separate agents or co-agent or co-agents as above provided, the Collateral Agent
may at any time, by an instrument in writing, accept the resignation of or remove any such
separate agent or co-agent and the successor to any such separate agent or co-agent shall be
appointed by the Company and the Collateral Agent, or by the Collateral Agent alone pursuant
to this subsection 5.10(c).
5.11 Treatment of Payee or Indorsee by Collateral Agent; Representatives of Secured
Parties(a) . The Collateral Agent may treat the registered holder or, if none, the payee or
indorsee of any promissory note or debenture evidencing a Secured Obligation as the absolute owner
thereof for all purposes and shall not be affected by any notice to the contrary, whether such
promissory note or debenture shall be past due or not.
-21-
SECTION 6.
MISCELLANEOUS
6.1 Notices. Unless otherwise specified herein, all notices, requests, demands or
other communications given to any of the Grantors, the Collateral Agent, the Controlling Party and
any Holder Representative shall be given in writing or by electronic transmission and shall be
deemed to have been duly given when personally delivered or when duly deposited in the mails,
registered or certified mail postage prepaid, or when transmitted by electronic transmission, to an
electronic mail address (or by other means of electronic delivery) addressed (i) if to any Grantor
or the Collateral Agent, to such party at its address specified on the signature pages hereof or
any other address which such party shall have specified as its address for the purpose of
communications hereunder, by notice given in accordance with this subsection 6.1 to the party
sending such communication or (ii) if to any Holder Representative or other Secured Party, to it at
its address specified from time to time in the list provided by the Company to the Collateral Agent
pursuant to subsection 4.2; provided that any notice, request or demand to the Collateral
Agent shall not be effective until received by the Collateral Agent in writing or by facsimile
transmission at the office designated by it pursuant to this subsection 6.1.
6.2 No Waivers. No failure on the part of the Collateral Agent, any co-agent, any
separate agent, the Controlling Party, any Holder Representative or any Secured Party to exercise,
no course of dealing with respect to, and no delay in exercising, any right, power or privilege
under this Intercreditor Agreement or any US Security Document shall operate as a waiver thereof
nor shall any single or partial exercise of any such right, power or privilege preclude any other
or further exercise thereof or the exercise of any other right, power or privilege.
6.3 Amendments, Supplements and Waivers. (a) With the written consent of the
Majority Class Holders of each Class, the Collateral Agent may, from time to time, enter into
written agreements or supplements hereto for the purpose of adding to, or waiving any provisions
of, this Intercreditor Agreement or changing in any manner the rights of the Collateral Agent, the
Secured Parties or the Grantors hereunder; provided that no such supplemental agreement
shall (i) amend, modify or waive any provision of this subsection 6.3 without the written consent
of each Holder Representative, (ii) amend, modify or waive any provision of Section 3.4(c) without
the written consent of each Secured Party affected thereby, (iii) amend, modify or waive the
definition of Secured Obligations or any component thereof, in each case in any manner that has
the effect of eliminating or reducing any
obligations owed to any Secured Party pursuant to the definition thereof, without the written
consent of such Secured Party or (iv) amend, modify or waive any provision of Section 4 or 5 or
alter the duties, rights or obligations of the Collateral Agent hereunder without the written
consent of the Collateral Agent. Any such supplemental agreement shall be binding upon each Holder
Representative, the Secured Parties and the Collateral Agent (and, if consented to by any Grantor,
such Grantor) and their respective successors.
(b) Solely with the consent of the Controlling Party (and without the consent of any other
Secured Party), the Collateral Agent and any of the Grantors, at any time and from time to time,
may enter into one or more agreements supplemental hereto, in form satisfactory to the
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Collateral Agent, (i) to add to the covenants of such Grantor for the benefit of the Secured Parties or to
surrender any right or power herein conferred upon such Grantor; (ii) to mortgage or pledge to the
Collateral Agent, or grant a security interest in favor of the Collateral Agent in, any property or
assets as additional security for the Secured Obligations; or (iii) to effect changes to this
Agreement necessary to reflect the fact that the Existing Credit Agreement no longer constitutes
the Credit Agreement referred to herein, if applicable, and (iv) to cure any ambiguity, to correct
or supplement any provision herein or in any US Security Document which may be defective or
inconsistent with any other provision herein or therein, or to make any other provision with
respect to matters or questions arising hereunder which shall not be inconsistent with any
provision hereof; provided that any such action contemplated by this clause (iv) shall not
adversely affect the interests of the Secured Parties.
6.4 Holders of Other Secured Non-Loan Exposure. The benefit of the US Security
Documents and of the provisions of this Intercreditor Agreement relating to the US Collateral shall
extend to and be available in respect of any Secured Obligation arising under any Other Secured
Non-Loan Exposure (collectively, the Related Obligations) solely on the condition and
understanding, as among the Collateral Agent and the Holder Representatives and all Secured
Parties, that (i) the Related Obligations shall be entitled to the benefit of the US Security
Documents and the US Collateral to the extent expressly set forth in this Intercreditor Agreement
and the other US Security Documents and to such extent the Collateral Agent shall hold, and have
the right and power to act with respect to, the Related Obligations and the US Collateral on behalf
of and as agent for the holders of the Related Obligations, but the Collateral Agent shall have no
fiduciary duty, duty of loyalty, duty of care, duty of disclosure or other obligation whatsoever to
any holder of Related Obligations, (ii) all matters, acts and omissions relating in any manner to
the US Security Documents, the US Collateral, or the omission, creation, perfection, priority,
abandonment or release of any Lien, shall be governed solely by the provisions of this
Intercreditor Agreement and the US Security Documents and no separate Lien, right, power or remedy
shall arise or exist in favor of any Secured Party under any separate instrument or agreement or in
respect of any Related Obligation, (iii) each Secured Party shall be bound by all actions taken or
omitted, in accordance with the provisions of this Intercreditor Agreement and the other US
Security Documents, by the Collateral Agent (at the direction of the relevant Secured Parties or
Holder Representatives), which shall be entitled to act in accordance with the terms of this
Intercreditor Agreement without any duty or liability to any other Secured Party or as to any
Related Obligation and without regard to whether any Related Obligation remains outstanding or is
deprived of the benefit of the US Collateral or becomes unsecured or is otherwise affected or put
in jeopardy
thereby, and (iv) no holder of Related Obligations and no other Secured Party (except the
Holder Representatives to the extent set forth in this Intercreditor Agreement) shall have any
right to be notified of, or to direct, require or be heard with respect to, any action taken or
omitted in respect of the US Collateral or under this Intercreditor Agreement or the US Security
Documents.
6.5 Amendments to Existing Credit Agreement. The Credit Agreement Representative (on
behalf of itself and the Secured Parties) and the Grantors agree that they shall not at any time
execute or deliver any amendment to the Existing Credit Agreement reducing or eliminating reserves
related to the obligations under the Synthetic Lease Documentation without the consent of the
Synthetic Lease Representative. The Collateral Agent and the Grantors agree
-23-
that they shall not release all or substantially all of the US Collateral without the consent of the Synthetic Lease
Representative.
6.6 Headings. The table of contents and the headings of Sections and subsections have
been included herein and in the US Security Documents for convenience only and should not be
considered in interpreting this Intercreditor Agreement or the US Security Documents.
6.7 Severability. Any provision of this Intercreditor Agreement which is prohibited
or unenforceable in any jurisdiction shall not invalidate 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.
6.8 Successors and Assigns. This Intercreditor Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective successors and assigns and
shall inure to the benefit of each of the Secured Parties and their respective successors and
assigns, and nothing herein is intended or shall be construed to give any other Person any right,
remedy or claim under, to or in respect of this Intercreditor Agreement or any US Collateral.
6.9 Currency Conversions. In calculating the amount of Secured Obligations or US
Collateral proceeds for any purpose hereunder, including, without limitation, voting or
distribution purposes, the amount of any Secured Obligation which is denominated in a currency
other than Dollars shall be converted by the Collateral Agent into Dollars at the Spot Selling
Rate.
6.10 Acknowledgements. Each Grantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Intercreditor Agreement and the other Loan Documents to which it is a party;
(b) neither the Collateral Agent nor any Secured Party has any fiduciary relationship
with or duty to any Grantor arising out of or in connection with this Intercreditor
Agreement or any of the other Loan Documents, and the relationship between the Grantors, on
the one hand, and the Collateral Agent and Secured Parties, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Secured Parties or among
the Grantors and the Secured Parties.
6.11 Governing Law. This Intercreditor Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
6.12 Counterparts. This Intercreditor Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were upon the same
instrument.
-24-
6.13 [Reserved].
6.14 [Reserved].
6.15 Inspection by Regulatory Agencies. The Collateral Agent shall make available,
and shall cause each custodian and agent acting on its behalf in connection with this Intercreditor
Agreement to make available, all US Collateral in such Persons possession at all times for
inspection by any regulatory agency having jurisdiction over any Grantor to the extent required by
such regulatory agency in its discretion.
6.16 [Reserved].
6.17 Submission to Jurisdiction; Waivers. Each Grantor, each Holder Representative
and each Secured Party hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Intercreditor Agreement and the other US Security Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of any US Federal or New York State court sitting in the Borough of Manhattan, New
York, and appellate courts from any thereof;
(b) to the extent permitted by applicable law, consents that any such action or proceeding may
be brought in such courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or proceeding was brought in
an inconvenient court and agrees not to plead or claim the same; and
(c) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this subsection any special, exemplary,
punitive or consequential damages.
6.18
WAIVERS OF JURY TRIAL (a). THE COLLATERAL AGENT, EACH HOLDER REPRESENTATIVE,
EACH SECURED PARTY AND EACH OF THE GRANTORS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS INTERCREDITOR AGREEMENT OR ANY OTHER US
SECURITY DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
6.19 Information Concerning Financial Condition of the Grantors. Each Secured Party
hereby assumes responsibility for keeping itself informed of the financial condition of the Company
and each of the other Grantors and all other circumstances bearing upon the risk of nonpayment of
the Secured Obligations. Neither the Collateral Agent, any Holder Representative nor any Secured
Party shall have any duty to advise any other Secured Party of information known to it regarding
such condition or any such circumstances. In the event the Collateral Agent, any Holder
Representative or any Secured Party, in its sole discretion, undertakes at any time or from time to
time to provide any information to any other Secured Party, it shall be under no obligation (a) to
provide any such information to such other Secured Party or any other party on any subsequent
occasion, (b) to undertake any investigation not a part of its regular business routine, or (c) to
disclose any other information.
-25-
IN WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement to be duly
executed by their respective authorized officers as of the day and
year first written above.
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JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
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By: |
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Name: |
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Title: |
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Address for Notices:
JPMORGAN CHASE BANK, N.A.,
as Credit Agreement Representative
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By: |
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Name: |
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Title: |
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Address for Notices:
SUNTRUST EQUITY FUNDING, LLC,
as Synthetic Lease Representative
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By: |
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Name: |
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Title: |
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Address for Notices:
303 Peachtree Street, 26th Floor
MC 3951
Atlanta, Georgia 30308
Attn: Allison McLeod
Telephone: 404-230-5046
Fax: 404-230-1344
Email: allison.mcleod@suntrust.com
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-26-
IN WITNESS WHEREOF, for the purposes of the recitals hereto and Sections 2.4, 3.2, 3.3, 3.4(a),
3.6, 4, 5.7, 5.10(a), 5.10(c)(v), 6.1, 6.3, 6.5, 6.10, 6.15, 6.17 and 6.18 only, the undersigned
has executed this Intercreditor Agreement as of the date first written above.
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LIZ CLAIBORNE, INC.
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By: |
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Name: |
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Address for Notices:
[GRANTORS]
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By: |
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Address for Notices:
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-27-
EXHIBIT A
FORM OF NOTICE OF ACCELERATION
[Date]
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To:
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JPMorgan Chase Bank, N.A., as Collateral Agent |
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Re:
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Intercreditor Agreement, dated as of January 12, 2009 (the
Intercreditor Agreement), among JPMorgan Chase Bank, N.A., as
Collateral Agent and Credit Agreement Representative and SunTrust
Equity Funding, LLC as Synthetic Lease Representative. |
[The [Credit Agreement Obligations] [Synthetic Lease Obligations] have not been paid in full
at the stated final maturity and any applicable grace period has expired.] [A default has occurred
under the provisions of the [Credit Agreement] [Synthetic Lease Documentation] and, as a result
thereof, the [Credit Agreement Obligations] [Synthetic Lease Obligations] have become due and
payable prior to the stated maturity thereof.]
Terms defined in the Intercreditor Agreement and used herein shall have the meanings given to
them in the Intercreditor Agreement.
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[_______________________, |
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as Credit Agreement Representative] |
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[_______________________, |
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as Synthetic Lease Representative] |
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By:
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Name: |
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-28-
EXHIBIT I
FORM OF
BORROWING REQUEST
JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders party to the
Credit Agreement referred to below
10 South Dearborn, 22nd Floor
Chicago, Illinois 60603
New York, NY 10017
Attention: Maria Teodoro Operations
Fax No: 312-377-1100
[J.P. Morgan Europe Limited, as European
Administrative Agent for the Facility B Lenders party
to the Credit Agreement referred to below [and as Issuing Bank]
Loans Agency 9th Floor
125 London Wall
London EC2Y 5AJ
United Kingdom
Attention: Loans Agency
Fax No.: +44 20 7777 2360]8
[J.P. Morgan Chase Bank, N.A., Toronto Branch, as Canadian
Administrative Agent for the Facility B Lenders party
to the Credit Agreement referred to below
200 Bay Street
Royal Bank Plaza, South Tower, Suite 1800
Toronto M5J 2J2 Canada
Attention: Indrani Lazarus
Telephone: (416) 981-9218
Telecopy: (416) 981-9174]9
[Date]
Dear Sirs:
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For Facility B Revolving Loans other than Canadian Revolving Loans
and/or Facility B Letters of Credit other than Canadian Letters of Credit. |
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For Canadian Revolving Loans and/or Canadian Letters of Credit. |
Reference is made to the Second Amended and Restated Credit Agreement, dated as of May 6, 2010
(as further amended, supplemented or otherwise modified from time to time, the Credit
Agreement), by and among Liz Claiborne, Inc., Mexx Europe B.V., Juicy Couture Europe Limited,
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., as Syndication Agent, and General Electric Capital Corporation , as
Documentation Agent. Terms defined in the Credit Agreement are used herein with the same meanings.
This notice constitutes a Borrowing Request and the undersigned Borrower hereby requests [a
Revolving Borrowing][a Swingline Borrowing] [the [issuance][amendment] [renewal][extension] of a
Letter of Credit]10 under the Credit Agreement, and in that connection the undersigned Borrower
specifies the following information with respect to the extension of credit requested hereby:
[THE FOLLOWING SHOULD BE USED FOR REVOLVING LOAN AND SWINGLINE
LOAN REQUESTS]
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Principal amount of Revolving Borrowing11: |
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Date of Revolving Borrowing (which is a Business Day): |
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Interest rate basis12: |
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The initial [Interest Period] [Contract Period]13: |
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Location and routing number of the undersigned Borrowers
account to which proceeds of Borrowing are to be
disbursed: |
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Facility under which this Revolving Borrowing is being
made: |
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The currency of the Revolving Borrowing14: |
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For European Borrower and UK Borrower only. |
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For a Eurocurrency Borrowing of Revolving Loans, an aggregate
amount not less than $5,000,000 and an integral multiple of $1,000,000 (or, in
the case of any currency other than dollars, an approximate equivalent thereof
as determined by the Administrative Agent, European Administrative Agent or
Canadian Administrative Agent, as applicable). |
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Eurocurrency Borrowing, ABR Borrowing, Canadian Prime Rate
Borrowing or BA Drawing. |
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For Eurocurrency Borrowings or BA Drawings only. |
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[This Borrowing Request is a request for a Swingline Loan
pursuant to Section 2.05(a)[(i)] [(ii)] [(iii)] [(iv)] [v]].15 |
[THE FOLLOWING SHOULD BE USED FOR LETTER OF CREDIT REQUESTS ISSUED
BY J.P. MORGAN EUROPE LIMITED]
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The undersigned [European Borrower] [UK Borrower] specifies the
following information with respect to the Letter of Credit Request requested
hereby: |
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Name of the Applicant: |
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Name and address of the Beneficiary: |
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The date of
[issuance][amendment][renewal][extension]:16 |
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The date of expiration17: |
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Facility under which this Letter of Credit is being
[issued][amended][renewed][extended]: |
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The currency of the Letter of Credit18: |
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The amount of the Letter of Credit: |
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[Letter of Credit
Number]19: |
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For Facility B Borrowings only. |
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Swingline Loans requested pursuant to Sections 2.05(a)(ii), (iii) or (iv) shall, until conversion to a Revolving Loan pursuant to Section 2.05(c), be Overnight LIBO Borrowings. |
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The date of issuance, amendment, renewal or extension shall be a Business Day. |
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The expiration date shall be at or before one year after the date of the issuance and no later than five Business Days prior to the Maturity Date. |
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Dollars, in the case of each Facility A Letter of Credit, dollars, Sterling or Euros, in the case of each Facility B Letter of Credit issued on behalf of the European Borrower or the UK Borrower, dollars or Canadian Dollars, in the case of each Facility B Letter of Credit issued on behalf of the Canadian Borrower or dollars, Canadian Dollars, Euros, Sterling or Yen, in the case of each Facility B Letter of Credit issued on behalf of the Company. |
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For an amendment, renewal or extension of any Letter of Credit. |
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The [European Borrower] [UK Borrower] hereby represents and warrants that, after giving effect
to such [issuance][amendment][renewal][ extension], (i) the aggregate LC Exposure will not exceed
the LC Sublimit, (ii) the aggregate principal amount of outstanding Letters of Credit that are
standby Letters of Credit will not exceed $65,000,000 and (iii) the Borrowers will be in compliance
with the Revolving Exposure Limitations.
4
The undersigned Borrower hereby represents and warrants that the conditions specified in
paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement are satisfied.
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Very truly yours,
[NAME OF APPLICABLE BORROWER],
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By: |
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Name: |
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Title: |
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