FOURTH AMENDMENT
FOURTH AMENDMENT, dated as of September 28, 1995
(this "Amendment"), among PHILLIPS-VAN HEUSEN CORPORATION
(the "Borrower"), the financial institutions party to the
Credit Agreement referred to below (the "Banks"), and BANKERS
TRUST COMPANY, as agent (in such capacity, the "Agent") for
the Banks. All capitalized terms used herein and not
otherwise defined shall have the meanings specified in the
Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks and the Agent are
parties to a Credit Agreement, dated as of December 16, 1993
(as modified, supplemented or amended prior to the date
hereof, the "Credit Agreement");
WHEREAS, subject to the terms and conditions
hereof, the Banks and the Borrower have agreed to amend the
Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the mutual
premises contained herein and other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. Section 1.01(a) of the Credit Agreement is
hereby amended by (a) deleting the last sentence thereof and
(b) inserting in lieu thereof the following new sentence:
"Notwithstanding the foregoing, (1) the sum of (x)
the aggregate outstanding principal amount of all
Revolving Loans outstanding at any time, plus (y) the
aggregate outstanding principal amount of all
Competitive Bid Loans outstanding at such time, shall
not exceed the Total Revolving Commitment, and (2) the
sum of (x) the aggregate outstanding principal amount of
all Revolving Loans outstanding at any time, plus (y)
the aggregate outstanding principal amount of all
Competitive Bid Loans outstanding at such time plus (z)
the Letter of Credit Outstandings at such time, shall
not exceed $400,000,000."
2. Section 1.01(b) of the Credit Agreement is
hereby amended by (a) deleting the proviso contained in the
first sentence thereof and (b) inserting in lieu thereof the
following new proviso:
"provided that after giving effect to any Competitive
Bid Borrowing and the use of the proceeds thereof, the
aggregate outstanding principal amount of Competitive
Bid Loans will not exceed any of the following: (x)
$50,000,000, (y) when combined with the aggregate
outstanding principal amount of all Revolving Loans then
outstanding, the Total Revolving Commitment at such time
or (z) when combined with the aggregate outstanding
principal amount of all Revolving Loans then outstanding
and the Letter of Credit Outstandings at such time,
$400,000,000."
3. Section 2.01(b) of the Credit Agreement is
hereby amended by (a) deleting clause (i) thereof in its
entirety and (b) inserting in lieu thereof the following new
clause (i):
"(i) no Letter of Credit shall be issued the Stated
Amount of which, when added to the Letter of Credit
Outstandings at such time, would exceed either (1) the
Total Letter of Credit Commitment as in effect at such
time or (2) when further added to the aggregate
outstanding principal amount of all Revolving Loans and
Competitive Bid Loans at such time, $400,000,000;".
4. Sections 3.01(a), (b) and (c) of the Credit
Agreement are hereby amended to read in their entirety as
follows:
"(a) The Borrower agrees to pay the Agent a
Commitment commission ("Commitment Commission") for the
account of each Bank for the period from and including
the Effective Date to and including the Maturity Date
or, if earlier, the date upon which the Total Revolving
Commitment has been terminated, computed at a rate for
each day equal to 1/4 of 1% per annum on the daily
average Revolving Commitment of such Bank. Such
Commitment Commission shall be due and payable in
arrears on the last Business Day of each January, April,
July and October and on the date upon which the Total
Revolving Commitment is terminated.
-2-
(b) The Borrower agrees to pay to the Agent a
Letter of Credit Facility Fee (the "Letter of Credit
Facility Fee") for the account of each Bank for the
period from and including the Effective Date to and
including the Maturity Date (or such earlier date as the
Total Letter of Credit Commitment shall have been
terminated) computed at a rate equal to 1/16 of 1% per
annum on the lesser of (i) such Bank's Letter of Credit
Percentage of $150,000,000 and (ii) such Bank's Letter
of Credit Commitment. The Letter of Credit Facility Fee
shall be due and payable in arrears on the last Business
Day of each January, April, July and October and on the
date upon which the Total Letter of Credit Commitment is
terminated.
(c) The Borrower agrees to pay to the Agent for
the account of the Banks pro rata on the basis of their
respective Letter of Credit Percentages, (i) a fee in
respect of each Standby Letter of Credit (the "Standby
Letter of Credit Fee") for the period from and including
the later of the Effective Date or the date of issuance
thereof to and including the termination date thereof
computed at a per annum rate for each day equal to the
Applicable Letter of Credit Percentage in effect from
time to time on the Stated Amount of such Standby Letter
of Credit and (ii) a fee in respect of each Trade Letter
of Credit (the "Trade Letter of Credit Fee," and
together with the Standby Letter of Credit Fee, the
"Letter of Credit Fees") for the period from and
including the later of the Effective Date or the date of
issuance thereof to and including the termination date
thereof computed at a per annum rate for each day equal
to 3/16 of 1% on the Stated Amount of such Trade Letter
of Credit, provided that for each day on which the
Letter of Credit Outstandings exceed $150,000,000, the
Borrower shall pay an additional Letter of Credit Fee of
1/16 of 1% per annum on such excess. Such Letter of
Credit Fees shall be due and payable quarterly in
arrears on the 10th Business Day of each February, May,
August and November of each year for the three-month
period (or portion thereof) ending on and including the
25th day of the immediately preceding month (i.e.,
January, April, July and October) and on the date upon
which the Total Letter of Credit Commitment is
terminated."
5. Section 4.02(a) of the Credit Agreement is
hereby amended to read in its entirety as follows:
-3-
"(a) If on any date the sum of the outstanding
principal amount of Revolving Loans and Competitive Bid
Loans (all the foregoing, collectively, the "Aggregate
Loan Outstandings") exceeds the Total Revolving
Commitment as then in effect, the Borrower shall repay
on such date the principal of Revolving Loans, in an
amount equal to such excess. In addition, if on any
date the sum of the Aggregate Loan Outstandings plus the
Letter of Credit Outstandings exceeds $400,000,000, the
Borrower shall repay on such date the principal of
Revolving Loans, in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding
Revolving Loans as set forth in either of the preceding
sentences, the remaining Aggregate Loan Outstandings
exceed the Total Revolving Commitment or the sum of the
Aggregate Loan Outstandings plus the Letter of Credit
Outstandings exceeds $400,000,000, as the case may be,
the Borrower shall repay on such date the principal of
Competitive Bid loans in an aggregate amount equal to
such excess, provided that no Competitive Bid Loan shall
be prepaid pursuant to this sentence unless the Bank
that made same consents to such prepayment."
6. Section 10 of the Credit Agreement, and the
definition of "Standby Letter of Credit" contained therein,
is hereby amended by (a) deleting clause (i) of the proviso
contained therein, and (b) inserting in lieu thereof the
following new clause (i):
"(i) a letter of credit shall not be a Standby Letter of
Credit if at the time of issuance of such letter of
credit the Stated Amount of such letter of credit, when
added to the Standby Letter of Credit Outstandings,
would exceed either (x) $8,000,000, or (y) when added to
the Trade Letter of Credit Outstandings at such time,
the Total Letter of Credit Commitment, or (z) when added
to the Trade Letter of Credit Outstandings at such time
and the Aggregate Loan Outstandings at such time,
$400,000,000 (the request by the Borrower for a Standby
Letter of Credit to constitute a representation and
warranty by the Borrower that such limits would not be
exceeded after giving effect to the issuance of such
Standby Letter of Credit),".
7. Section 10 of the Credit Agreement, and the
definition of "Trade Letter of Credit" contained therein, is
hereby amended by (a) deleting clause (i) of the proviso
contained therein, and (b) inserting in lieu thereof the
following new clause (i):
-4-
"(i) a letter of credit shall not be a Trade Letter of
Credit if at the time of the issuance of such letter of
credit the Stated Amount of such letter of credit, when
added to (x) the Trade Letter of Credit Outstandings at
such time and (y) the Standby Letter of Credit Out-
standings at such time, would exceed either (1) the
Total Letter of Credit Commitment at such time or (2)
when further added to the Aggregate Loan Outstandings at
such time, $400,000,000 (the request by the Borrower for
a Trade Letter of Credit to constitute a representation
and warranty by the Borrower that such limits would not
be exceeded after giving effect to the issuance of such
Trade Letter of Credit),".
8. Section 10 of the Credit Agreement is hereby
further amended by (a) deleting the definitions of
"Applicable CD Rate Margin," "Applicable Commitment
Commission Percentage," "Applicable Eurodollar Margin,"
"Available Total Revolving Commitment," "Commitment," "Total
Commitment" and "Unutilized Revolving Commitment," in their
entirety, and (b) inserting the following new definitions in
appropriate alphabetical order:
"Applicable CD Rate Margin" shall mean, at any time
when the Credit Rating is at any level set forth below,
a percentage equal to the number of basis points set
forth below opposite such Credit Rating (with 100 basis
points equalling 1.0%):
Applicable CD
Credit Rating Rate Margin
A-/A3 27.5
BBB+/Baa1 32.5
BBB/Baa2 37.5
BBB-/Baa3 47.5
BB+/Ba1 or lower 62.5
"Applicable Eurodollar Margin" shall mean, at any
time when the Credit Rating of the Borrower is at any
level set forth below, a percentage equal to the number
of basis points set forth below opposite such Credit
Rating (with 100 basis points equalling 1.0%):
-5-
Applicable
Eurodollar
Credit Rating Margin
A-/A3 15
BBB+/Baa1 20
BBB/Baa2 25
BBB-/Baa3 35
BB+/Ba1 or lower 50
"Applicable Letter of Credit Percentage" shall
mean, at any time when the Credit Rating is at any level
set forth below, a percentage equal to the number of
basis points set forth below opposite such Credit Rating
(with 100 basis points equalling 1.0%):
Applicable Letter of
Credit Rating Credit Percentage
A-/A3 40
BBB+/Baa1 45
BBB/Baa2 50
BBB-/Baa3 60
BB+/Ba1 or lower 75
"Commitment" shall mean, for each Bank, at any
time, the sum of such Bank's Revolving Commitment and such
Bank's Letter of Credit Commitment; provided that pursuant to
the terms of this Agreement, no Bank shall be required to
make Revolving Loans and participate in Letters of Credit in
an aggregate amount in excess of the amount set forth
opposite the name of such Bank on Schedule I hereto under the
heading "Commitment."
"Total Commitment" shall mean, at any time, the
lesser of (i) the sum of the Commitments of each of the
Banks at such time and (ii) $400,000,000."
9. On and after the Fourth Amendment Effective
Date, Schedule I to the Credit Agreement shall be amended by
deleting such Schedule in its entirety and inserting in lieu
thereof a new Schedule I in the form of Schedule I hereto.
-6-
10. This Amendment shall become effective on the
date (the "Fourth Amendment Effective Date") on which the
Borrower and the Required Banks shall have executed and
delivered a counterpart of this Amendment.
11. Except as expressly amended hereby, the terms
and conditions of the Credit Agreement shall remain unchanged
and in full force and effect.
12. This Amendment may be executed in any number
of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall
together constitute one and the same instrument.
13. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused
their duly authorized officers to execute and deliver this
Amendment as of the date first above written.
PHILLIPS-VAN HEUSEN CORPORATION
By
Title:
BANKERS TRUST COMPANY,
Individually, and as Agent
By
Title:
THE CHASE MANHATTAN BANK, N.A.
By
Title:
CITIBANK, N.A.
By
Title:
-7-
THE BANK OF NEW YORK
By
Title:
CHEMICAL BANK
By
Title:
THE FIRST NATIONAL BANK OF BOSTON
By
Title:
CIBC, INC.
By
Title:
UNION BANK
By
Title:
-8-
SCHEDULE I
COMMITMENTS
Revolving Letter of Credit
Bank Commitment Commitment Commitment
BANKERS TRUST COMPANY $ 37,500,000 $ 37,500,000 $60,000,000
THE BANK OF NEW YORK $ 31,250,000 $ 31,250,000 $50,000,000
THE CHASE MANHATTAN
BANK, N.A. $ 31,250,000 $ 31,250,000 $50,000,000
CHEMICAL BANK $ 31,250,000 $ 31,250,000 $50,000,000
CITIBANK, N.A. $ 31,250,000 $ 31,250,000 $50,000,000
THE FIRST NATIONAL BANK
OF BOSTON $ 31,250,000 $ 31,250,000 $50,000,000
UNION BANK $ 31,250,000 $ 31,250,000 $50,000,000
CIBC, INC. $ 25,000,000 $ 25,000,000 $ 40,000,000
Total $250,000,000* $250,000,000* $400,000,000*
______________
* Although the sum of the Total Revolving Commitment and the Total
Letter of Credit Commitment equals $500,000,000, the Credit
Agreement limits aggregate outstanding exposure to $400,000,000 and
contains provisions ensuring that no Bank will have outstanding
Revolving Loans plus participations in outstanding Letters of
Credit in an aggregate amount in excess of its Commitment as
provided in the third column above.
-9-