XXXXXXXX-VAN HEUSEN CORPORATION
___________________________________
SECOND AMENDMENT AGREEMENT
Dated as of July 15, 1997
to
NOTE AGREEMENTS
Dated as of October 1, 1992
Re: $55,000,000 7.85% Series A Senior Notes
Due November 1, 2002
and
$8,000,000 7.02% Series B Senior Notes
Due November 1, 1999
and
$6,000,000 7.75% Series C Senior Notes
Due November 1, 2002
XXXXXXXX-VAN HEUSEN CORPORATION
1290 Avenue of the Xxxxxxxx-00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SECOND AMENDMENT AGREEMENT
TO
NOTE AGREEMENTS
DATED AS OF OCTOBER 1, 1992
Re: $55,000,000 7.85% Series A Senior Notes
Due November 1, 2002
and
$8,000,000 7.02% Series B Senior Notes
Due November 1, 1999
and
$6,000,000 7.75% Series C Senior Notes
Due November 1, 2002
Dated as of
July 15, 1997
To the Holders as
defined hereinbelow
Ladies and Gentlemen:
Reference is made to the separate Note Agreements each dated
as of October 1, 1992 (the "Outstanding Note Agreements") between
Xxxxxxxx-Van Heusen Corporation, a Delaware corporation (the
"Company"), and each of the Purchasers named on Schedule I thereto
(the "Purchasers") as amended pursuant to that certain First
Amendment Agreement dated as of June 24, 1996, pursuant to which
the Company issued and sold (i) $55,000,000 original aggregate
principal amount of its 7.85% Series A Senior Notes due November 1,
2002 (the "Series A Notes"), (ii) $8,000,000 original aggregate
principal amount of its 7.02% Series B Senior Notes due November 1,
1999 (the "Series B Notes") and (iii) $6,000,000 original aggregate
principal amount of its 7.75% Series C Senior Notes due November 1,
2002 (the "Series C Notes"). The Purchasers or transferees of such
Purchasers are hereinafter collectively referred to as the
"Holders." The Series A Notes, Series B Notes and Series C Notes
are hereinafter collectively referred to as the "Outstanding
Notes."
The Company and the Holders now desire to amend the
Outstanding Note Agreements in the respects, but only in the
respects, hereinafter set forth.
Now, therefore, the Company and the Holders, in consideration
of good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, do hereby agree as follows:
SECTION 1. AMENDMENTS TO THE OUTSTANDING NOTE AGREEMENTS.
Section 1.1. Section 8.1 of the Outstanding Note Agreements
shall be and is hereby amended as follows:
The definition of "Net Income Available for Interest
Charges" is hereby amended to read in its entirety as follows:
"Net Income Available for Interest Charges" for any
period shall mean the sum of (i) Consolidated Net Income during
such period plus (to the extent deducted in determining
Consolidated Net Income for such period), (ii) all provisions for
any Federal, state or other income taxes made by the Company and
its Restricted Subsidiaries during such period, (iii) the one-time
restructuring reserve of $55,000,000 taken in the second quarter of
the fiscal year ended February 1, 1998 and (iv) Interest Charges of
the Company and its Restricted Subsidiaries during such period.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Holders to execute and deliver this
Second Amendment Agreement (which representations shall survive the
execution and delivery of this Second Amendment Agreement), the
Company represents and warrants to the Holders, as true and correct
as of the date of execution and delivery of this Second Amendment
Agreement, that
(a) the Company and each Restricted Subsidiary is a
corporation duly incorporated, validly existing and in good
standing under the laws of its respective jurisdiction of
incorporation;
(b) this Second Amendment Agreement has been duly
authorized, executed and delivered by it and this Second Amendment
Agreement constitutes the legal, valid and binding obligation,
contract and agreement of the Company enforceable against it in
accordance with its terms;
(c) each of the Outstanding Note Agreements and the
Outstanding Notes, as amended by this Second Amendment Agreement,
constitute the legal, valid and binding obligations, contracts and
agreements of the Company enforceable against it in accordance with
their respective terms;
(d) the execution, delivery and performance by the
Company of this Second Amendment Agreement (i) has been duly
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authorized by all requisite corporate action and, if required,
shareholder action, (ii) does not require the consent or approval
of any governmental or regulatory body or agency, and (iii) will
not (A) violate or cause a default under (1) any provision of law,
statute, rule or regulation or its certificate of incorporation or
bylaws, (2) any order of any court or any rule, regulation or order
of any other agency or government binding upon it, or (3) any
provision of any material indenture, agreement or other instrument
to which it is a party or by which its properties or assets are or
may be bound, or (B) result in a breach or constitute (alone or
with due notice or lapse of time or both) a default under any
indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this Sec. 2.1(d);
(e) as of the date hereof after giving effect to this
Second Amendment Agreement, no Default or Event of Default has
occurred which is continuing; and
(f) no consents or approvals are necessary from any
other holder of any Indebtedness of the Company to give effect to
this Second Amendment Agreement.
SECTION 3. CONDITIONS PRECEDENT.
Section 3.1. This Second Amendment Agreement shall not become
effective until, and shall become effective when, each and every
one of the following conditions shall have been satisfied:
(a) executed counterparts of this Second Amendment
Agreement, duly executed by the Company and the holders of at least
66-2/3% of the outstanding principal amount of the Outstanding
Notes, shall have been delivered to the Holders;
(b) the representations and warranties of the Company
set forth in Sec. 2 hereof are true and correct as of the date of
execution and delivery of this Second Amendment Agreement; and
(c) the Company shall have paid the reasonable fees and
expenses of Xxxxxxx and Xxxxxx, counsel to the Holders, in
connection with the negotiation, preparation, approval, execution
and delivery of this Second Amendment Agreement as required by Sec.
9.4 of the Outstanding Note Agreements.
Upon receipt of all of the foregoing, this Second Amendment
Agreement shall become effective.
SECTION 4. MISCELLANEOUS.
Section 4.1. This Second Amendment Agreement shall be
construed in connection with and as part of each of the Outstanding
Note Agreements, and all terms, conditions and covenants contained
in each of the Outstanding Note Agreements shall be and remain in
full force and effect.
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Section 4.2. Any and all notices, requests, certificates and
other instruments executed and delivered after the execution and
delivery of this Second Amendment Agreement may refer to the
Outstanding Note Agreements without making specific reference to
this Second Amendment Agreement but nevertheless all such
references shall include this Second Amendment Agreement unless the
context otherwise requires.
Section 4.3. The descriptive headings of the various Sections
or parts of this Second Amendment Agreement are for convenience
only and shall not affect the meaning or construction of any of the
provisions hereof.
Section 4.4. This Second Amendment Agreement shall be governed
by and construed in accordance with New York law.
Section 4.5. This Second Amendment Agreement shall be binding
upon the Company, the Holders and their respective successors and
assigns.
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The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and
this Second Amendment Agreement to each of the Outstanding Note
Agreements may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together
only one agreement.
XXXXXXXX-VAN HEUSEN CORPORATION
By
Its
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The execution by each of the following Holders shall
constitute its acceptance of the Second Amendment Agreement and its
confirmation that it holds the Outstanding Notes set opposite its
name as of the date of its execution and delivery hereof.
Accepted as of July 15, 1997:
OUTSTANDING NOTES
THE EQUITABLE LIFE ASSURANCE SOCIETY $8,571,428.57 Series A Notes
OF THE UNITED STATES $6,857,142.86 Series A Notes
$6,000,000 Series B Notes
$6,000,000 Series C Notes
By________________________________
Its
UNUM LIFE INSURANCE COMPANY OF $17,142,857.15 Series A Notes
AMERICA
By________________________________
Its
NATIONWIDE LIFE INSURANCE $6,857,142.86 Series A Notes
COMPANY
By________________________________
Its
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EMPLOYERS LIFE INSURANCE COMPANY $1,714,285.71 Series A Notes
OF WAUSAU
By________________________________
Its
LUTHERAN BROTHERHOOD $6,000,000 Series A Notes
By________________________________
Its
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