UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT PURSUANT
TO
SECTION 13 OR 15(D) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported): July 15, 2009
(Exact
Name of Registrant as Specified in Its Charter)
(State or
Other Jurisdiction of Incorporation)
000-27707
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20-2783217
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(Commission
File Number)
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(IRS
Employer Identification
No.)
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1330
Avenue of the Americas, 34th
Floor, New York, NY
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10019-5400
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(Registrant’s
Telephone Number, Including Area Code)
(Former
Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of
the registrant under any of the following provisions (see General Instruction A.2.
below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01
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Entry into Material Definitive
Agreement
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On July 15, 2009, NexCen Brands, Inc.
(the “Company”) amended its existing bank credit facility (the
“Facility”) by entering into a
Waiver and Omnibus Amendment (the “Waiver and Omnibus Amendment”) by and
among the Company, NexCen Holding Corporation, a wholly owned subsidiary of the
Company (“Issuer”), certain of the Issuer’s subsidiaries (“Subsidiary Borrowers”), certain of the
Company’s subsidiaries which provide franchise, brand and supply management to
the Subsidiary Borrowers (the “Managers”) and BTMU Capital Corporation
(“BTMUCC”).
This
Waiver and Omnibus Amendment modified certain provisions of the Facility to
provide relief from certain requirements related to debt service coverage
ratios, free cash flow margin, expenditure limitations through 2010 and an
obligation to issue a warrant covering 2.8 million shares of the Company’s
common stock that would have been triggered on July 31, 2009. The
Waiver and Omnibus Amendment also provided waivers for expected and potential
defaults. The material terms of the Waiver and Omnibus
Amendment:
·
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reduced
the debt service coverage ratios of the Class A and Class B franchise
notes that the Company is required to maintain for the 2010 calendar
year;
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·
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reduced
the free cash flow margin that the Company is required to maintain from
December 31, 2009 through the end of 2010, as calculated on a monthly
basis for the trailing 12 month
period;
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·
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increased
certain reimbursable operating expenditure limits, with respect to NexCen
Franchise Management, Inc., for 2009 (subject to specified revenue targets
related to the franchise Subsidiary Borrowers) in connection with the
management of the related franchise Subsidiary
Borrowers;
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·
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extended from July 31, 2009
to December 31, 2009 the
trigger date on which BTMUCC would be entitled to receive a warrant
covering up to 2.8 million shares of the Company’s common
stock at an exercise price
of $0.01 per share if the Class B franchise notes are not repaid by the
trigger date;
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·
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extended
to June 30, 2010 the time period granted to the Issuer for the delivery of
the valuation report related to the Subsidiary Borrowers for
the fiscal year ended December 31,
2009;
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·
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extended
the amount of time available to a Subsidiary Borrower to extend or replace
specified material franchise and area development agreements;
and
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·
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waived
expected defaults related to providing financial statements by certain
deadlines and waived certain other potential defaults or events of
defaults primarily related to reporting requirements existing on or
arising prior to the date of the Waiver and Omnibus
Amendment.
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The foregoing description of the Waiver
and Omnibus Amendment to the Facility and the modifications contained therein
does not purport to be complete and is qualified in its entirety by the terms
and conditions of such Waiver and Omnibus Amendment, which is filed as Exhibit
10.1 to this Current Report on Form 8-K. Additional information
regarding the terms and conditions of the Facility are included in the Company’s
Current Reports on Form 8-K filed with the Securities Exchange Commission on
August 21, 2008, December 29, 2008, and January 29, 2009.
Item
2.03
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Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant
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As
discussed above in Item 1.01, the Company amended its existing bank credit
facility. The descriptions in Item 1.01 are incorporated herein by
reference.
Item
9.01
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Financial
Statements and Exhibits
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(d)
Exhibits
10.1 Waiver
and Omnibus Amendment dated July 15, 2009 by and among NexCen Brands, Inc.,
NexCen Holding Corporation, the Subsidiary Borrowers parties thereto, the
Managers parties thereto, and BTMU Capital Corporation.
SIGNATURES
According
to the requirements of the Securities Exchange Act of 1934, the Registrant has
duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized on July 20, 2009.
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NEXCEN
BRANDS, INC. |
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/s/ Sue
J. Nam |
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By: |
Sue
J. Nam |
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Its: |
General
Counsel |
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