THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
XXXXXXXX-VAN HEUSEN CORPORATION
9-1/2% SENIOR SUBORDINATED NOTES DUE 2008
CUSIP No.
No. $___________
Xxxxxxxx-Van Heusen Corporation, a corporation duly
organized and existing under the laws of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to the Depository Trust
Company, or registered assigns, the principal sum of __________________________
___________________________________________ (such amount the "principal amount"
of this Note), or such other principal amount (which, when taken together with
the principal amounts of all other Outstanding Notes, shall not exceed
$150,000,000 in the aggregate at any time) as may be set forth in the records of
the Trustee hereinafter referred to in accordance with the Indenture, on May 1,
2008 and to pay interest thereon from April 22, 1998, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on May 1 and November 1 in each year, commencing November 1, 1998,
at the rate of 9-1/2% per annum, until the principal hereof is paid or made
available for payment; provided that, if any Registration Default occurs under
the Exchange and Registration Rights Agreement, then the per annum interest rate
on the applicable principal amount will increase for the period from and
including the date of the occurrence of the Registration Default to but
excluding such date as no Registration Default is in effect (at which time the
interest rate will be reduced to its initial rate) at a per annum rate of 0.5%
for the first 90-day period following the occurrence of such Registration
Default, and by an additional 0.5% thereafter (up to a maximum of 1.0%) (such
additional interest being hereafter referred to as "Special Interest"), and
provided, further, that any amount of interest on this Note which is overdue
shall bear interest (to the extent that payment thereof shall be legally
enforceable) at the rate per annum then borne by this Note from the date such
amount is due to the day it is paid or made available for payment, and such
overdue interest shall be payable on demand.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close
of business on the Regular Record Date for such interest, which shall be the
April 15 or October 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date, provided that any accrued and
unpaid interest (including Special Interest) on this Note upon the issuance of
an Exchange Note in exchange for this Note shall cease to be payable to the
Holder hereof and shall be payable on the next Interest Payment Date for such
Exchange Note to the Holder thereof on the related Regular Record Date. Any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on the relevant Regular Record Date and may either
be paid to the Person in whose name this Note (or one or more Predecessor
Notes) is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice whereof
shall be given to Holders of Notes not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture. Interest on this Note shall be
computed on the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and any
such interest on this Note will be made at the office or agency of the Company
in the Borough of Manhattan, The City of New York, New York, maintained for
such purpose and at any other office or agency maintained by the Company for
such purpose, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register; provided further that all
payments of the principal (and premium, if any) and interest on Notes, the
Holders of which have given wire transfer instructions to the Company or its
agent at least 10 Business Days prior to the applicable payment date will be
required to be made by wire transfer of immediately available funds to the
accounts specified by such Holders in such instructions. Notwithstanding the
foregoing, the final payment of principal shall be payable only upon surrender
of this Note to the Trustee.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
XXXXXXXX-VAN HEUSEN CORPORATION
[SEAL]
By___________________________________
Attest:
------------------------------
Trustee's Certificate of Authentication
---------------------------------------
This is one of the Notes referred to in the within-mentioned
Indenture.
-------------------
as Trustee
By ____________________
Authorized Officer
This Note is one of a duly authorized issue of Notes of the
Company designated as its 9-1/2% Senior Subordinated Notes due May 1, 2008
(herein called the "Notes"), limited in aggregate principal amount to
$150,000,000, issued and to be issued under an Indenture, dated as of April
22, 1998 (herein called the "Indenture", which term shall have the meaning
assigned to it in such instrument), between the Company and Union Bank of
California, N.A., as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered.
The Notes will be subject to redemption, at the option of
the Company, in whole or in part, at any time on or after May 1, 2003 and
prior to maturity, upon not less than 30 nor more than 60 days' notice mailed
to each Holder of Notes to be redeemed at such Holder's address appearing in
the Security Register, in amounts of $1,000 or an integral multiple of $1,000,
at the following Redemption Prices (expressed as percentages of the principal
amount) plus accrued interest to but excluding the Redemption Date (subject to
the right of Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the Redemption
Date), if redeemed during the 12-month period beginning May 1 of the years
indicated:
Redemption
Year Price
---- ----------
2003.................................... 104.750%
2004.................................... 103.167%
2005.................................... 101.583%
2006 and thereafter..................... 100.000%
In addition, if on or before May 1, 2001 the Company
receives net proceeds from the sale of its Common Stock in one or more Public
Equity Offerings, the Company may, at its option use an amount equal to all or
a portion of any such net proceeds to redeem Notes in an aggregate principal
amount of up to 33a% of the original aggregate principal amount of the Notes,
provided, however, that Notes having a principal amount equal to at least 66b%
of the original aggregate principal amount of the Notes remain
outstanding after such redemption. Such redemption must occur on a Redemption
Date within 90 days of such sale and upon not less than 30 nor more than 60
days= notice mailed to each Holder of Notes to be redeemed at such Holder=s
address appearing in the Security Register, in amounts of $1,000 or an
integral multiple of $1,000, at a redemption price of 109.50% of the principal
amount of the Notes plus accrued interest to but excluding the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on an Interest Payment Date that is on or prior to the
Redemption Date).
If less than all the Notes are to be redeemed, the Trustee
shall select, in such manner as it shall deem fair and appropriate, the
particular Notes to be redeemed or any portion thereof that is an integral
multiple of $1,000.
The Notes do not have the benefit of any sinking fund
obligations.
The Indenture provides that, subject to certain conditions,
if (i) certain Net Available Proceeds are available to the Company as a result
of Asset Dispositions or (ii) a Change of Control occurs, the Company shall be
required to make an Offer to Purchase for all or a specified portion of the
Notes.
In the event of redemption or purchase pursuant to an Offer
to Purchase of this Note in part only, a new Note or Notes of like tenor for
the unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Note having been paid or discharged or
(ii) certain restrictive covenants and Events of Default with respect to this
Note having occurred, in each case upon compliance with certain conditions set
forth therein.
The Notes shall be subordinated in right of payment to
Senior Debt of the Company as provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under
the Indenture at any time by the Company and the Trustee with the consent of
the Holders of a majority in aggregate principal amount of the Notes at the
time Outstanding. The Indenture also contains provisions permitting the
Holders of a majority in aggregate principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the
Indenture, the Holder of this Note shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver
or trustee or for any other remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing Event of
Default with respect to the Notes, the Holders of not less than 25% in
aggregate principal amount of the Notes at the time Outstanding shall have
made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Notes at the time Outstanding a direction
inconsistent with such request and shall have failed to institute any such
proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to certain suits described in the
Indenture, including any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or any premium (if any) or
interest hereon on or after the respective due dates expressed herein (or, in
the case of redemption, on or after the Redemption Date or, in the case of any
purchase of this Note required to be made pursuant to an Offer to Purchase, on
the Purchase Date).
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any)
and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company in the Borough of Manhattan, The City of
New York, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Note Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without
coupons in denominations of $1,000 principal amount and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Notes are exchangeable for a like aggregate principal
amount of Notes of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes (subject to the provisions hereof with respect to
determination of the Person to whom interest is payable), whether or not this
Note be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
Interest on this Note shall be computed on the basis of a
360-day year of twelve 30-month days.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Note shall be governed by and
construed in accordance with the laws of the State of New York; provided,
however, that the standard of
performance by the Trustee of its duties hereunder shall be governed by the
laws of the State of California.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its
entirety by the Company pursuant to Section 1014 or 1016 of the Indenture,
check the box:
/ /
If you want to elect to have only a part of this Note
purchased by the Company pursuant to Section 1014 or 1016 of the Indenture,
state the principal amount of this Note you want to elect to have so purchased
by the Company: $___________
Dated:______________ Your Signature:____________________
(Sign exactly as name
appears on the other
side of this Note)
Signature Guarantee:________________________________________
Notice: Signature(s) must be guaranteed by
an "eligible guarantor institution"
meeting the requirements of the Trustee,
which requirements will include membership
or participation in STAMP or such other
"signature guarantee program" as may be
determined by the Trustee in addition to,
or in substitution for STAMP, all in
accordance with the Securities Exchange
Act of 1934, as amended.
