Exhibit 4.13
AMENDMENT No. 3, dated as of
August 23, 2000 (this "Amendment"), to the
Credit Agreement dated as of April 22, 1998,
as amended (the "Credit Agreement"), among
Phillips-Van Heusen Corporation, a Delaware
corporation (the "Borrower"), the lenders
party thereto (the "Lenders"), The Chase
Manhattan Bank, a New York banking
corporation, as administrative agent (in such
capacity, the "Administrative Agent") and
collateral agent (in such capacity, the
"Collateral Agent"), and Citicorp USA, Inc.,
as documentation agent (in such capacity, the
"Documentation Agent").
A. Pursuant to the Credit Agreement, the Lenders
and the Issuing Bank have extended credit to the Borrower,
and have agreed to extend credit to the Borrower, in each
case pursuant to the terms and subject to the conditions set
forth therein.
B. The Borrower has requested that the Required
Lenders agree to amend certain provisions of the Credit
Agreement as provided herein.
C. The Required Lenders are willing so to amend
the Credit Agreement pursuant to the terms and subject to
the conditions set forth herein.
D. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in
the Credit Agreement.
Accordingly, in consideration of the mutual
agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment. (a) Section 1.01 of the
Credit Agreement is hereby amended by inserting the
following definitions in appropriate alphabetical order:
"Excess Cash" means, as of any date of determination,
(a) the aggregate amount of cash that would be
reflected on a consolidated balance sheet of the
Borrower and its Subsidiaries prepared as of such date
in accordance with GAAP, minus (b) the aggregate
principal amount of Revolving Loans and Swingline Loans
outstanding as of such date.
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"Foreign Permitted Acquisition" means any Permitted
Acquisition that results in the acquisition or creation
of a Foreign Subsidiary or involves the acquisition (by
purchase, merger, consolidation or otherwise) of the
capital stock of a Person that has a Foreign
Subsidiary.
"Permitted Acquisition" means any acquisition (whether
by purchase, merger, consolidation or otherwise) by the
Borrower or any Subsidiary of all or substantially all
the assets of, or capital stock in, a Person or
division or line of business of a Person, that was not
preceded by an unsolicited tender offer for such
Person, if, at the time of and immediately after giving
effect thereto, (a) no Default has occurred and is
continuing or would result therefrom, (b) the principal
business of such Person or division or line of business
is reasonably related to a business in which the
Borrower and the Subsidiaries were engaged on the
Effective Date, (c) in the case of an acquisition of
capital stock in a Person, at least 51% of the
outstanding capital stock in such Person is owned by
the Borrower or a Subsidiary (or a combination thereof)
after giving effect to such acquisition, (d) each
Subsidiary (if any) formed for the purpose of or
resulting from such acquisition is a Subsidiary Loan
Party or, subject to the limitation set forth in the
second proviso of Section 6.04(j), a Foreign Subsidiary
and at least 51% of the outstanding capital stock of
such Subsidiary Loan Party or Foreign Subsidiary is
owned directly by the Borrower or a Subsidiary Loan
Party and such acquired or newly formed Subsidiary Loan
Party or Foreign Subsidiary is Controlled by the
Borrower or a Subsidiary Loan Party and all actions
required to be taken with respect to such acquired or
newly formed Subsidiary Loan Party or Foreign
Subsidiary under Sections 5.11 and 5.12 are taken (e)
the Borrower and the Subsidiaries are in compliance, on
a pro forma basis after giving effect to such
acquisition (without giving effect to any cost savings,
except to the extent that such cost savings can be
reasonably documented and have been determined in good
faith by the Board of Directors of the Borrower as
evidenced by a resolution of the Board of Directors of
the Borrower delivered to the Administrative Agent)
with the covenants contained in Sections 6.12, 6.13,
6.14 and 6.15 recomputed as at the last day of the most
recently ended fiscal quarter of the Borrower for which
financial statements are available, as if such
acquisition (and any related incurrence or repayment of
Indebtedness) had occurred
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on the first day of each relevant period for testing
such compliance and (f) the Borrower has delivered to
the Administrative Agent an officers' certificate to
the effect set forth in clauses (a), (b), (c), (d) and
(e) above, together with all relevant financial
information for the Person or assets to be acquired and
reasonably detailed calculations demonstrating
satisfaction of the requirement set forth in clause (e)
above.
(b) Section 6.03(a) of the Credit Agreement is
hereby amended by (i) replacing the word "and" at the end of
clause (iii) of such Section with a comma and (ii) adding
the following text immediately after the text "disadvantages
to the Lenders" in such Section:
and (v) the Borrower and any Subsidiary Loan Party may
merge with any person in order to effect a Permitted
Acquisition in compliance with Section 6.04(j)
(c) Section 6.04 of the Credit Agreement is hereby
amended by (i) deleting the word "and" immediately after the
semicolon in paragraph (i) thereof, (ii) replacing the
phrase "paragraphs (a) through (i)" in paragraph (j) thereof
with the phrase "paragraphs (a) through (j)", (iii)
redesignating paragraph (j) as paragraph (k), (iv) adding
the text "pursuant to Section 6.04(j)" immediately after the
text "any Subsidiary acquired" in the first parenthetical in
paragraph (d) thereof and (v) adding a new paragraph (j) as
follows:
(j) investments constituting Permitted
Acquisitions; provided that at no time will the
Borrower or any Subsidiary effect any Permitted
Acquisition if the aggregate amount of consideration to
be paid or otherwise delivered in connection with such
Permitted Acquisition plus the aggregate principal
amount of Indebtedness to be assumed or acquired by the
Borrower and the Subsidiaries pursuant to such
Permitted Acquisition (including any outstanding
Indebtedness of a Person that will become a Subsidiary
as a result of such Permitted Acquisition) would exceed
the sum of (i) the aggregate amount of Excess Cash as
the close of business the day immediately prior to the
date such Permitted Acquisition is consummated, without
giving effect to such Permitted Acquisition, plus (ii)
$50,000,000 in the aggregate for all Permitted
Acquisitions; provided further that the aggregate
amount of consideration paid or otherwise delivered
during the term of this Agreement in connection with
Foreign Permitted
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Acquisitions plus the aggregate principal amount of
Indebtedness assumed or acquired by the Borrower and
the Subsidiaries during the term of this Agreement
pursuant to Foreign Permitted Acquisitions (including
any outstanding Indebtedness of a Person that becomes a
Subsidiary as a result of a Foreign Permitted
Acquisition) shall not exceed $15,000,000.
(d) Section 6.12 of the Credit Agreement is hereby
amended by:
(i) replacing the table therein with the following
table:
Fiscal Year Amount
Effective Date--January 31, 1999 $50,000,000
February 1, 1999--January 31, 2000 $27,500,000
February 1, 2000--January 31, 2001 $32,000,000
February 1, 2001--January 31, 2002 $32,000,000
February 1, 2002--January 31, 2003 $32,000,000
(ii) replacing the last sentence therein with the
following sentence:
Up to 50% of the amount of unused Capital Expenditures
permitted during any fiscal year as set forth above
(without regard to any amount carried forward into such
fiscal year) may be carried over for expenditure in the
next succeeding fiscal year, provided that any Capital
Expenditures made during any fiscal year shall be
deemed made, first, in respect of amounts carried over
from the preceding fiscal year and, second, in respect
of amounts permitted for such fiscal year as set forth
in the table above.
(e) Section 6.17 of the Credit Agreement is hereby
amended by adding the following proviso to the end of such
Section:
,provided that (i) Subsidiaries acquired or
created pursuant to Permitted Acquisitions shall not be
required to be wholly-owned if acquired in accordance
with the definition of such term and (ii) Subsidiaries
invested in pursuant to Section 6.04(k) (including,
without limitation, Subsidiaries that are acquired or
formed in connection with such investment) shall not be
required to be wholly-owned.
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(f) Section 9.01(a) of the Credit Agreement is
hereby amended and restated to read in its entirety as
follows:
(a) if to the Borrower, to it at Phillips-Van
Heusen Corporation, 200 Madison Avenue, New York, NY
10016, Attention of Treasurer (Telecopy No. (212) 381-
3970);
SECTION 2. Representations and Warranties. The
Borrower represents and warrants to the Administrative
Agent, to the Issuing Bank and to each of the Lenders that:
(a) This Amendment has been duly authorized by all
necessary corporate and stockholder action, if
required, and has been duly executed and delivered by
the Borrower and constitutes its legal, valid and
binding obligation, enforceable in accordance with its
terms except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights
generally and by general principles of equity
(regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(b) Before and after giving effect to this
Amendment, the representations and warranties set forth
in Article III of the Credit Agreement are true and
correct in all material respects with the same effect
as if made on the date hereof, except to the extent
such representations and warranties expressly relate to
an earlier date.
(c) Before and after giving effect to this
Amendment, no Event of Default or Default has occurred
and is continuing.
SECTION 3. Amendment Fee. In consideration of the
agreements of the Required Lenders contained in this
Amendment, the Borrower agrees to pay to the Administrative
Agent, for the account of each Lender that delivers an
executed counterpart of this Amendment prior to 5:00 p.m.,
New York City time, on August 23, 2000, an amendment fee (an
"Amendment Fee") in an amount equal to 0.075% of such
Lender's Commitment as of August 23, 2000, provided that no
Amendment Fee shall be payable unless this Amendment becomes
effective in accordance with its terms.
SECTION 4. Conditions to Effectiveness. This
Amendment shall become effective as of the date first above
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written when (a) the Administrative Agent shall have
received counterparts of this Amendment that, when taken
together, bear the signatures of the Borrower and the
Required Lenders, and (b) the Administrative Agent shall
have received the Amendment Fee.
SECTION 5. Credit Agreement. Except as
specifically amended hereby, the Credit Agreement shall
continue in full force and effect in accordance with the
provisions thereof as in existence on the date hereof.
After the date hereof, any reference to the Credit Agreement
shall mean the Credit Agreement as amended hereby.
SECTION 6. Loan Document. This Amendment shall be
a Loan Document for all purposes.
SECTION 7. Applicable Law. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
SECTION 8. Counterparts. This Amendment 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. Delivery of an executed
counterpart of a signature page of this Amendment by
telecopy shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 9. Expenses. The Borrower agrees to
reimburse the Administrative Agent for its out-of-pocket
expenses in connection with the Amendment, including the
reasonable fees, charges and disbursements of Cravath,
Swaine & Moore, counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their respective
authorized officers as of the day and year first written
above.
PHILLIPS-VAN HEUSEN CORPORATION,
by
/s/ Pamela N. Hootkin
Name: Pamela N. Hootkin
Title: Vice President,
Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent and Collateral Agent,
by
/s/ Margaret T. Lane
Name: Margaret T. Lane
Title: Vice President
CITICORP USA, INC., individually
and as Documentation Agent,
by
/s/ Marc Mergino
Name: Marc Mergino
Title: Vice President
BANK OF AMERICA, N.A.,
by
/s/ David H. Dinkins
Name: David H. Dinkins
Title: Principal
THE BANK OF NEW YORK,
by
/s/ James J. Ducey
Name: James J. Ducey
Title: Vice President
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BANK LEUMI USA,
by
/s/ Richard Silverstein
Name: Richard Silverstein
Title: Senior Vice President
by
/s/ Phyllis Rosenfeld
Name: Phyllis Rosenfeld
Title: Vice President
DG BANK,
by
/s/ Sabine Wendt
Name: Sabine Wendt
Title: Vice President
by
/s/ Wolfgang Bollmann
Name: Wolfgang Bollmann
Title: Senior Vice President
FLEET NATIONAL BANK,
by
/s/ Peter L. Griswold
Name: Peter L. Griswold
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Donald V. Davis
Name: Donald V. Davis
Title: Vice President
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STANDARD CHARTERED BANK,
by
/s/ Peter G.R. Dodds
Name: Peter G.R. Dodds
Title: Senior Credit Officer
Coin 98/62
by
/s/ David D. Cutting
Name: David D. Cutting
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.,
by
/s/ Theresa L. Rocha
Name: Theresa L. Rocha
Title: Vice President