EXHIBIT 10.5
FIRST AMENDMENT AND WAIVER AGREEMENT
FIRST AMENDMENT AND WAIVER AGREEMENT, dated as of February 12,
2003 (this "Amendment Agreement"), to the Credit Agreement, dated as of October
17, 2002 (as the same may be further amended, supplemented or modified from time
to time in accordance with its terms, the "Credit Agreement") among ▇▇▇▇▇▇▇▇-VAN
HEUSEN CORPORATION, a Delaware corporation, THE IZOD CORPORATION, a Pennsylvania
corporation, PVH WHOLESALE CORP., a Delaware corporation, PVH RETAIL CORP., a
Delaware corporation, ▇▇▇▇.▇▇▇ INC., a Delaware corporation, ▇.▇. ▇▇▇▇
FRANCHISES INC., a Delaware corporation, CD GROUP INC., a Delaware corporation,
the LENDERS party thereto, JPMORGAN CHASE BANK, as Administrative Agent and
Collateral Agent, Lead Arranger and Sole Bookrunner, FLEET RETAIL FINANCE INC.,
as Co-Arranger and Co-Syndication-Agent, SUN TRUST BANK, as Co-Syndication
Agent, THE CIT GROUP/COMMERCIAL SERVICES, INC., as Co-Documentation Agent and
BANK OF AMERICA, N.A., as Co-Documentation Agent. Terms used herein and not
otherwise defined herein shall have the meanings attributed thereto in the
Credit Agreement.
WHEREAS, the Borrowers have informed the Administrative Agent
of their desire that PVH and/or its subsidiaries (i) acquire 100% (or
substantially all in the case of ▇▇▇▇▇▇ ▇▇▇▇▇ Europe S.r.1. (Italy)) of the
stock of ▇▇▇▇▇▇ ▇▇▇▇▇, Inc. ("CKI") and certain of CKI Affiliates comprising
▇▇▇▇▇▇ ▇▇▇▇▇ (Europe), Inc., ▇▇▇▇▇▇ ▇▇▇▇▇ Europe S.r.1. (Italy), CK Service
Corp. and ▇▇▇▇▇▇ ▇▇▇▇▇ (Europe II) Corp. (the "CKI Affiliates") from the holders
of such stock for a purchase price consisting of $400,000,000 cash, $30,000,000
in PVH common stock and warrants to purchase 320,000 shares of common stock of
PVH expiring in nine years with an exercise price of $28 per share (as adjusted
in accordance with the CKI Stock Purchase Agreement, as defined in this
Amendment Agreement), and a portion of the purchase price shall be funded by a
bridge loan by Apax Partners, Inc. or an Affiliate evidenced by a promissory
note issued by PVH in the principal amount of $125,000,000 (the "CKI Note"),
(ii) acquire the rights of ▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇. ▇▇▇▇▇") to receive 1% royalty in
perpetuity under his existing agreement with CKI in exchange for an agreement to
pay him 1.15% of worldwide wholesale sales by CKI and licensees for a period of
15 years (the "Design Service Payments"), (iii) enter into a nine year
consulting agreement (the "Consulting Agreement") with ▇▇. ▇▇▇▇▇, terminable by
▇▇. ▇▇▇▇▇ after three years, under which PVH will pay ▇▇. ▇▇▇▇▇ $1,000,000 per
year, (iv) fund the cash portion of the purchase price by issuing to Apax
Partners, Inc. $250,000,000 of its 8% Convertible Redeemable Preferred Stock
with a conversion price of $14.00 (the "Preferred Stock") and (v) borrow
pursuant to the terms of this Agreement the remainder of the cash purchase price
(all of the foregoing, collectively, the "Transaction"); and
WHEREAS, Section 5.05 of the Credit Agreement restricts the
use of proceeds of Loans; and
WHEREAS, Section 6.01 of the Credit Agreement restricts the
Borrowers from incurring Indebtedness except as specifically permitted therein;
and
WHEREAS, Section 6.02 of the Credit Agreement restricts the
Borrowers from incurring Liens on their assets except as specifically permitted
therein; and
WHEREAS, Section 6.04 of the Credit Agreement prohibits any
Borrower or any Subsidiary of any Borrower from, among other things, purchasing,
holding or acquiring any capital stock, evidences of indebtedness or other
securities of, or making or permitting to exist any loans or advances to,
Guaranteeing any obligation of, or making or permitting to exist any investment
or any other interest in, any other person; and
WHEREAS, Section 6.05 of the Credit Agreement restricts the
making of Investments; and
WHEREAS, Section 6.06 of the Credit Agreement limits the
making of Restricted Payments; and
WHEREAS, Section 5.11 of the Credit Agreement requires that
(i) each newly formed direct or indirect domestic Subsidiary (x) enter into a
Guarantee in substantially the form executed on the Effective Date and (y)
execute the Security Agreement, as applicable, as a grantor, and (ii) the direct
parent of each such Subsidiary (x) pledge all of the Equity Interests of such
Subsidiary pursuant to the Security Agreement and (y) cause each such Subsidiary
to pledge its accounts receivable and all other assets pursuant to the Security
Agreement; and
WHEREAS, the Transaction does not qualify as a Permitted
Acquisition and requires the consent of the Required Lenders; and
WHEREAS, the Borrowers have requested that the Required
Lenders amend certain provisions of the Credit Agreement and waive certain
provisions of the Credit Agreement in connection with the consummation of the
Transaction.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Required Lenders consent to the
Transaction, subject to the fulfillment of the conditions set forth below and
the agreement of the parties as follows:
SECTION 1. AMENDMENTS UNDER CREDIT AGREEMENT
1.1 Section 1.01 of the Credit Agreement is hereby amended by
adding the following defined terms in the correct alphabetical order:
"'CKI' means ▇▇▇▇▇▇ ▇▇▇▇▇ Inc., a New York
corporation.
'CKI Affiliates' means the following entitles: ▇▇▇▇▇▇
▇▇▇▇▇ (Europe), Inc., ▇▇▇▇▇▇ ▇▇▇▇▇ Europe S.r.1. (Italy), CK
Service Corp. and ▇▇▇▇▇▇ ▇▇▇▇▇ (Europe II) Corp.
'CKI Guarantee' means the Guarantee of CKI and the
domestic CKI Affiliates executed and delivered on the First
2
Amendment Effective Date pursuant to the terms of this
Agreement.
'CKI Intercreditor Agreement' means the intercreditor
agreement dated the First Amendment Effective Date among the
holder of the CKI Note, ▇▇▇▇▇▇ ▇▇▇▇▇ and the Administrative
Agent confirming the intercreditor arrangements between the
parties to the effect that the holder of the CKI Note shall
have the first Lien on the stock of CKI and the CKI
Affiliates, with the Administrative Agent retaining a second
Lien and ▇▇▇▇▇▇ ▇▇▇▇▇ a third Lien to secure the Design
Service Payments (the Administrative Agent agreeing to
standstill except that the Administrative Agent may act upon
the occurrence of an Event of Default which is independent of
any default under the CKI Note, the acceleration of the
Obligations and ten days notice to the holder of the CKI Note)
and to the effect that the Administrative Agent shall have a
first Lien on trade receivables (but not license royalties),
inventory and fixed assets to secure the CKI Guarantee with
any recovery on such Guarantee in excess of realization on
such receivables, inventory and fixed assets to be subordinate
to the prior payment of the CKI Note.
'CKI Note' means the promissory note and accompanying
loan agreement and guarantees of CKI and the domestic CKI
Affiliates dated the First Amendment Effective Date and issued
by PVH to Apax Partners, Inc. or an Affiliate in the original
principal amount of $125,000,000 maturing in two years with
interest at 10% per annum in the first year and 15% per annum
in the second year (plus a $4,000,000 extension fee payable at
the beginning of the second year) and secured as provided for
in the CKI Intercreditor Agreement.
'CKI Stock Purchase Agreement' means the Stock
Purchase Agreement dated as of December 17, 2002, among PVH,
CKI, the CKI Affiliates and the sellers named therein.
'CKI Trust' means the trust established pursuant to
the Delaware Business Trust Act, as amended, and the Trust
Agreement dated as of March 14, 1994 between CKI and
Wilmington Trust Company.
'Design Service Payments' means the payments under
the CKI Stock Purchase Agreement pursuant to which PVH has
agreed to pay ▇▇▇▇▇▇ ▇▇▇▇▇ 1.15% of worldwide wholesale sales
by CKI and licensees for a period of 15 years in connection
with the
3
acquisition of ▇▇▇▇▇▇ ▇▇▇▇▇'▇ right to receive a 1% royalty in
perpetuity.
'First Amendment Effective Date' means the date on
which the First Amendment and Waiver Agreement dated December
13, 2002 among the Parties to this Agreement becomes effective
in accordance with its terms.
'Leverage Ratio' means, with respect to PVH and its
subsidiaries on a consolidated basis for any period, the ratio
of (i) Funded Debt (less cash on hand) to (ii) EBITDA.
'Preferred Stock (Convertible)' means the
$250,000,000 of 8% Convertible Redeemable Preferred Stock
issued by PVH on the First Amendment Effective Date with a
conversion price of $14 per share, redeemable after the
Maturity Date."
1.2 Section 1.01 of the Credit Agreement is hereby amended by
deleting the following defined terms "Applicable Rate", "Availability Block",
"EBITDA", "EBITDAR" and "subsidiary" and substituting in lieu thereof the
following:
"'Applicable Rate' means, for any date of
determination with respect to any ABR Loan or Eurodollar Loan
or with respect to the Revolving Credit Commitment Fee or with
respect to participation fees for any Letter of Credit,
(i) if such date of determination occurs on
or after the Effective Date and prior to the delivery
of the first financial statements referred to in
clause (ii) below, (w) with respect to Loans that are
Eurodollar Loans, 2.50%, (x) with respect to Loans
that are ABR Loans, 0.50%, (y) with respect to the
Revolving Credit Commitment Fee, 0.50% and (z) with
respect to Letter of Credit fees, 1.75%; and
(ii) if such date of determination occurs on
or after the first day of the next month after the
date upon which the Borrowers shall have delivered to
the Administrative Agent the financial statements
required to be delivered for the earlier of (x) the
fiscal period ended February 1, 2004 pursuant to
Section 5.01(a) and (y) the fiscal period ended
immediately after PVH has received no less than
$125,000,000 of Net Proceeds from the sale of Funded
Debt as permitted pursuant to Section 6.01(i) and,
after giving effect to the receipt of such Net
Proceeds, Availability exceeds $50,000,000,
4
the rate as set forth below that corresponds to the Interest
Coverage Ratio of the Borrowers and their Subsidiaries on a
consolidated basis as of the last day of, and for, the four
consecutive fiscal quarters most recently ended prior to such
day for which financial statements shall have been delivered
to the Administrative Agent as required pursuant to Sections
5.01(a) or (b) hereof, together with the corresponding
compliance certificate required pursuant to Section 5.01(d)
hereof; provided that if the Borrowers shall fail to timely
deliver such statements and certificates for any such fiscal
quarter period or during the continuance of an Event of
Default, then the Applicable Rate with respect to ABR Loans,
Eurodollar Loans, the Revolving Credit Commitment Fee and
Letter of Credit fees shall be determined for the period (x)
from and including the date upon which such financial
statements and certificate were required to be delivered to
but excluding the date upon which financial statements and a
certificate complying with Section 5.01(a) or (b) and Section
5.01(d) or (y) from and including the date from which such
Event of Default shall have occurred but excluding the date
upon which such Event of Default is cured or waived as if the
applicable Interest Coverage Ratio of the Borrowers and their
Subsidiaries was less than 1.20:1.00:
-----------------------------------------------------------------------------------------------------
Interest Coverage Ratio ABR Spread Eurodollar Spread Revolving Credit Letter of Credit Fee
for Loans for Loans Commitment Fee
-----------------------------------------------------------------------------------------------------
Less than or equal to 0.75% 2.75% 0.50% 2.00%
1.20:1.00
-----------------------------------------------------------------------------------------------------
Greater than 1.20:1.00 0.50% 2.50% 0.50% 1.75%
but less than or equal
to 1.50:1.00
-----------------------------------------------------------------------------------------------------
Greater than 1.50:1.00 0.25% 2.25% 0.375% 1.50%
but less than or equal
to 1.80:1.00
-----------------------------------------------------------------------------------------------------
Greater than 1.80:1.00 0% 2.00% 0.375% 1.25%
but less than or equal
to 2.10:1.00
-----------------------------------------------------------------------------------------------------
Greater than 2.10:1.00 0% 1.75% 0.25% 1.00%
-----------------------------------------------------------------------------------------------------
5
To the extent that a change in the Applicable Rate
occurs during the pendency of an Interest Period for an
existing Eurodollar Loan, the Applicable Rate shall remain the
same for the remainder of the Interest Period for such
existing Eurodollar Loan."
"'Availability Block' means $25,000,000; provided,
however, that commencing on the first day of the month that is
the 17th month after the First Amendment Effective Date if the
CKI Note has not been paid in full, the Availability Block
shall increase by $5,000,000 each month until the Availability
Block has increased to $55,000,000 and provided, further, upon
repayment in full of the CKI Note, the Availability Block
shall reduce to $25,000,000."
"'EBITDA' means with respect to the Borrowers for any
period (a) the sum of (i) Net Income, (ii) Interest Expense,
(iii) Federal, state, local and foreign income taxes, (iv)
depreciation and amortization and other non-cash items
properly deductible in determining Net Income, in each case on
a consolidated basis for PVH and its subsidiaries for such
period, calculated in accordance with GAAP, minus (b) non-cash
items properly added in determining Net Income for such period
minus (c) the aggregate amount of all payments made under the
Design Service Agreement during such period."
"'EBITDAR' means with respect to the Borrowers for
any period (a) the sum of (i) Net Income, (ii) Interest
Expense, (iii) Federal, state, local and foreign income taxes,
(iv) depreciation and amortization and other non-cash items
properly deductible in determining Net Income and (v) all
rental obligations or other commitments thereunder to make any
direct or indirect payment, whether as rent or otherwise, for
fixed or minimum rentals or percentage rentals, in each case
on a consolidated basis for PVH and its subsidiaries for such
period, calculated in accordance with GAAP, minus (b) non-cash
items properly added in determining Net Income for such period
minus (c) the aggregate amount of all payments made under the
Design Service Agreement during such period."
"'subsidiary' means, with respect to any Person (the
"parent") at any date, any corporation, limited liability
company, partnership, association or other entity the accounts
of which would be consolidated with those of the parent in the
parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such
date, as well as any
6
other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or
(b) that is, as of such date, otherwise Controlled, by the
parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent; provided,
however, that for the purposes of this Agreement, the CKI
Trust shall not be deemed a subsidiary.
1.3 The definition of "Availability Reserves" in Section 1.01
of the Credit Agreement is hereby amended by adding the following sentence at
the end of such definition:
"Following the First Amendment Effective Date, at any time
that Availability is less than $70,000,000, there shall be a
reserve with respect to the Design Services Payments in the
amount of $5,000,000."
1.4 Section 2.09(c) of the Credit Agreement is hereby amended
by adding the following sentence at the end of such section:
"Notwithstanding the foregoing, the Net Proceeds realized from
the issuance of the CKI Note and the Preferred Stock
(Convertible) or any other Equity Interests in connection with
the CKI Stock Purchase Agreement are excluded from the
application of this Section 2.09(c)."
1.5 Section 5.05 of the Credit Agreement is hereby amended by
adding the following sentence at the end thereof:
"Notwithstanding the foregoing, proceeds of Loans up to
$25,000,000 may be utilized to facilitate the consummation of
the CKI Stock Purchase Agreement."
1.6 Section 6.01 of the Credit Agreement is hereby amended by
adding a new subsection (i) thereto as follows:
"(i)(x) the CKI Note, so long as such CKI Note is
held by Apax Partners, Inc. or an Affiliate (the foregoing
shall not prevent the sale of participations so long as Apax
Partners, Inc. or such Affiliate remains in control), but not
the extension or renewal (except on the same terms, including
no increase in the interest rate, and, only in the event the
CKI Note is extended for a period of not less than two years
from its original maturity date, the payment of a $4,000,000
extension fee), replacement or amendment thereof, except the
CKI Note may be refunded with
7
unsecured Indebtedness having a maturity no sooner than 5 1/2
years from the First Amendment Effective Date, a coupon rate
no greater than 18% per annum and otherwise not contain
provisions which would cause a Default under this Agreement,
and (y) obligations with respect to the Design Service
Payments, including the subordinated Guarantee thereof by CKI
and the domestic CKI Affiliates, but not the extension,
renewal, replacement or amendment thereof."
1.7 Section 6.02 of the Credit Agreement is hereby amended by
adding a new subsection (g) thereto as follows:
"(g) first priority Lien on the Equity Interests in
CKI and the CKI Affiliates to secure the CKI Note and a Lien
junior to the Lien in favor of the Administrative Agent on the
Equity Interests in CKI and the CKI Affiliates and on any
other assets of CKI and the CKI Affiliates as to which the
Administrative Agent is granted a first priority Lien after
the First Amendment Effective Date to secure the obligations
under the Design Service Payments."
1.8 Section 6.04 of the Credit Agreement is hereby amended by
adding the following sentence at the end of such section:
"Notwithstanding the foregoing, neither CKI nor any CKI
Affiliate shall issue any Guarantee which would otherwise be
permitted under subsection (c) above, other than the
Investment by PVH being made on the First Amendment Effective
Date in connection with the CKI Stock Purchase Agreement, no
Borrower shall make any additional Investments in CKI or any
CKI Affiliate which would otherwise be permitted under
subsection (f) above other than loans and advances to fund
ordinary course business expenses and neither CKI nor any CKI
Affiliate shall make any Investments which would otherwise be
permitted under subsection (m) above."
1.9 Section 6.05 of the Credit Agreement is hereby amended by
adding the following sentence at the end of such section:
"Notwithstanding the foregoing, the CKI Note may only be
prepaid in whole, except for such partial payments consented
to by the Required Lenders from the sale of assets of CKI and
CKI Affiliates not constituting Collateral."
1.10 Section 6.06 of the Credit Agreement is hereby amended by
deleting such section in its entirety and substituting in lieu thereof the
following:
"Section 6.06. Restricted Payments. The Borrowers
will not, and will not permit any of their Subsidiaries to,
declare or
8
make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except, so long as no Default shall be
continuing or would occur after giving effect to the
following, (a) any Borrower may declare and pay dividends with
respect to its Equity Interests payable solely in additional
Equity Interests, (b) Subsidiaries may declare and pay
dividends ratably with respect to their Equity Interests, (c)
PVH may make Restricted Payments, pursuant to and in
accordance with stock option plans or other benefit plans for
management or employees of PVH and its subsidiaries, or issue
options or warrants as otherwise approved by the Board of
Directors of PVH or a committee thereof and (d) PVH may
acquire shares of its common stock only and declare and pay
cash dividends with respect to its common and preferred
(including its Preferred Stock (Convertible)); provided that
Restricted Payments made pursuant to clause (d) shall not
exceed (i) $20,000,000 in the aggregate in any fiscal year
from fiscal year 2002 through and including fiscal year 2004,
(ii) $27,500,000 in the aggregate in fiscal year 2005, (iii)
$29,400,000 in the aggregate in fiscal year 2006, (iv)
$31,400,000 in the aggregate in fiscal year 2007 or (v)
$100,000,000 in the aggregate during the Availability Period;
provided, further, that PVH may not acquire shares of its
common stock or pay cash dividends pursuant to clause (d) in
any fiscal quarter to the extent that (i) the Restricted
Payment would not be permitted in such fiscal quarter under
the Subordinated Debt Documents, (ii) Average Availability for
the 30 day period prior to the date of such Restricted
Payment, both before and immediately after giving effect to
such Restricted Payment, shall be less than $70,000,000 or,
solely in the case of fiscal year 2003, if such cash dividend
is with respect to its common stock, $50,000,000, (iii) on the
date of such Restricted Payment, both before and immediately
after giving effect to such Restricted Payment, Covenant
Availability shall be less than $70,000,000 or, solely in the
case of fiscal year 2003, if such cash dividend is with
respect to its common stock, $50,000,000 or (iv) a Default
exists or the making of such Restricted Payment would result
in a Default; provided, further, that if such cash dividend is
with respect to the Preferred Stock (Convertible), the
Leverage Ratio for the most recently ended fiscal quarter
prior to such proposed Restricted Payment shall not be greater
than 2.00:1.00."
1.11 Article VII of the Credit Agreement is hereby amended by
deleting "or" at the end of subsection (o) thereof, inserting "or" at the end of
subsection (p) and adding a new subsection (q) thereto as follows:
"(q) (i) an event described in subsections (g), (h)
or (j) shall occur with respect to the CKI Trust or (ii) the
trust agreement
9
or other operative documents with respect to the CKI Trust
shall be modified, amended or altered in a manner which could
have a material adverse effect on the CKI Trust or otherwise
be materially disadvantageous to the Lenders or (iii) the
provisions of the CKI Intercreditor Agreement shall for any
reason be revoked or invalidated or the validity or
enforceability thereof be contested in any manner or (iv) PVH
shall fail to comply with any of the provisions in the
Certificate of Designation for the Preferred Stock
(Convertible);"
1.12 To reflect the consummation of the Transaction, Schedules
3.05, 3.08, 3.09, 3.16, 6.01, 6.04 and 6.08 to the Credit Agreement shall be
amended as approved by the Administrative Agent (but no such amendment shall
have the effect of waiving a Default without the consent of the Required
Lenders). In addition, Schedules 3.06 and 3.07 shall be added to the Credit
Agreement to reflect modifications to the corresponding representations and
warranties by reason of the consummation of the Transaction as approved by the
Administrative Agent (but no such amendment shall have the effect of waiving a
Default without the consent of the Required Lenders).
SECTION 2. WAIVERS UNDER CREDIT AGREEMENT
2.1 The Required Lenders hereby waive the provisions of
Sections 5.11 (but only with respect to the pledge of assets not constituting
Equity Interests, Receivables (other than royalty receivables), inventory and
fixed assets and in any event subject to satisfaction of subsection (p) of
Section 4 of this Amendment Agreement), 2.09(c), 5.04, 5.05, 6.01, 6.02, 6.04,
6.05 and 6.06 of the Credit Agreement solely for the purposes of permitting the
consummation of the Transaction, it being understood and agreed that so long as
the CKI Note is outstanding, the Borrowers may not incur Indebtedness under
Section 6.01(h).
SECTION 3. CONFIRMATION OF SECURITY DOCUMENTS
Each Borrower and Guarantor, by its execution and delivery of
this Amendment Agreement, irrevocably and unconditionally ratifies and confirms
in favor of the Administrative Agent that it consents to the terms and
conditions of the Credit Agreement as it has been amended by this Amendment
Agreement and that notwithstanding this Amendment Agreement, each Security
Document to which such Borrower or Guarantor is a party shall continue in full
force and effect in accordance with its terms and is and shall continue to be
applicable to all of the Obligations.
SECTION 4. CONDITIONS PRECEDENT
This Amendment Agreement shall become effective (the
"Effective Date") upon the execution and delivery of counterparts hereof by the
parties listed below and the fulfillment of the following conditions:
10
(a) All representations and warranties contained in this
Amendment Agreement or otherwise made in writing to the Administrative Agent in
connection herewith shall be true and correct.
(b) No unwaived event has occurred and is continuing which
constitutes a Default under the Credit Agreement.
(c) The Administrative Agent shall have received a favorable
written opinion of Borrowers' and CKI's counsel dated the Effective Date
covering such matters relating to the Transaction as the Administrative Agent
may reasonably request, in form and substance reasonably satisfactory to the
Administrative Agent.
(d) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent may reasonably request
relating to the organization, existence and good standing of CKI and the CKI
Affiliates, the authorization of the Transaction and any other matters relating
to CKI and the CKI Affiliates and the Transaction, all in form and substance
reasonably satisfactory to the Administrative Agent.
(e) The Administrative Agent shall have received all documents
(including Uniform Commercial Code financing statements) required by law or
requested by the Administrative Agent to create in favor of the Administrative
Agent perfected Liens with respect to Collateral relating to the Transaction.
(f) The Administrative Agent shall have received the results
of searches for tax and other Liens and judgments and for ownership with respect
to the trademarks which comprise the Transaction, with respect to CKI, the CKI
Affiliates, the CKI Trust, the sellers of CKI and the trademarks held by the CKI
Trust.
(g) The Administrative Agent shall have received a certificate
dated the Effective Date as required under the Credit Agreement with respect to
any proposed Borrowing to occur on the Effective Date.
(h) If the Required Lenders have executed this Amendment
Agreement on or prior to December 13, 2002, the Administrative Agent shall have
received for the benefit of the applicable Lenders, (i) on December 16, 2002, an
amendment fee in an amount equal to 10bps of the Commitment of each Lender that
executes this Amendment Agreement on or prior to December 13, 2002 (which is
non-refundable regardless of whether or not the Effective Date occurs) and (ii)
on the Effective Date, an amendment fee in an amount equal to 15bps of the
Commitment of each Lender that has executed this Amendment Agreement on or
before December 13, 2002.
(i) The Administrative Agent shall have received a copy of a
duly executed CKI Stock Purchase Agreement containing substantially the terms
and provisions set forth in the first Whereas clause to this Amendment Agreement
and in form and substance satisfactory to the Administrative Agent.
11
(j) The Administrative Agent shall have received a copy of a
duly executed CKI Note containing substantially the terms and provisions set
forth in the definition of "CKI Note" contained in this Amendment Agreement and
in form and substance satisfactory to the Administrative Agent.
(k) The Administrative Agent shall have received copies of
duly executed documents in connection with the issuance of Preferred Stock
(Convertible) containing substantially the terms and provisions set forth in the
definition of "Preferred Stock (Convertible)" contained in this Amendment
Agreement and in form and substance satisfactory to the Administrative Agent.
(l) The Preferred Stock (Convertible) shall have been duly
issued and shall be fully paid and non-assessable.
(m) The Administrative Agent shall have received a duly
executed Consulting Agreement containing substantially the terms and provisions
set forth in the first Whereas clause to this Amendment and in form and
substance satisfactory to the Administrative Agent.
(n) The Administrative Agent shall have received evidence
satisfactory to it of satisfactory compliance with all insurance and reporting
requirements under the Credit Agreement taking into account the consummation of
the Transaction.
(o) The CKI Stock Purchase Agreement shall have been duly
executed and delivered and the Transactions shall have been consummated, in each
case, without any modifications or waivers that have not been approved by the
Administrative Agent.
(p) The Security Agreement shall have been amended to cover
(i) the CKI Stock Purchase Agreement, (ii) institution of full dominion and
control which shall remain in effect until the earlier of (x) the date of
receipt by PVH of no less than $125,000,000 of Net Proceeds from the sale of
Indebtedness permitted pursuant to Section 6.01(i) of the Credit Agreement if,
after giving effect to the receipt of such Net Proceeds, Availability exceeds
$50,000,000 and (y) the date that Covenant Availability has remained greater
than $70,000,000 for 90 consecutive days and (iii) the establishment of a
springing Lien on all assets of CKI which do not constitute Collateral on the
Effective Date upon the repayment in full of the CKI Note.
(q) The Administrative Agent shall have received a properly
completed and duly executed Pledgor Addendum covering the Collateral relating to
the Transaction other than that covered by the springing Lien, together with a
fully signed counterpart of the CKI Intercreditor Agreement containing
substantially the terms and provisions set forth in the definition of "CKI
Intercreditor Agreement" contained in this Amendment Agreement and in form and
substance satisfactory to the Administrative Agent.
(r) All Indebtedness not otherwise permitted under the Credit
Agreement shall have been satisfied or provision for such satisfaction
accomplished as approved by the Administrative Agent.
12
(s) There shall not have occurred any material adverse effect
in the business, assets, operations, properties, prospects or condition
(financial or otherwise), contingent liabilities or material agreements of CKI,
CKI Affiliates and CKI Trust taken as a whole.
(t) The Administrative Agent shall have received all fees and
other amounts due and payable, on or prior to the First Amendment Effective
Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrowers under
the Credit Agreement or any other Financing Document.
(u) The Administrative Agent shall have received such other
documents as the Administrative Agent or the Administrative Agent's counsel
shall reasonably deem necessary.
(v) In the event of a termination of the Stock Purchase
Agreement by its terms, then this Amendment Agreement shall be of no force and
effect.
SECTION 5. MISCELLANEOUS
5.1 Each Borrower and each Guarantor reaffirms and restates
the representations and warranties set forth in Article III of the Credit
Agreement and all such representations and warranties shall be true and correct
on the date hereof with the same force and effect as if made on such date,
except as they may specifically refer to an earlier date and except as they may
have been modified pursuant to the Schedules annexed to this Amendment Agreement
in which event they shall be true and correct after giving effect to such
modifications. Each Borrower and each Guarantor represents and warrants (which
representations and warranties shall survive the execution and delivery hereof)
to the Administrative Agent that:
(a) it has the corporate power and authority to execute,
deliver and carry out the terms and provisions of this Amendment Agreement and
the transactions contemplated hereby and has taken or caused to be taken all
necessary corporate action to authorize the execution, delivery and performance
of this Amendment Agreement and the transactions contemplated hereby;
(b) no consent of any other person (including, without
limitation, shareholders or creditors of any Borrower or any Guarantor), and no
action of, or filing with any governmental or public body or authority is
required to authorize, or is otherwise required in connection with the
execution, delivery and performance of this Amendment Agreement;
(c) this Amendment Agreement has been duly executed and
delivered on behalf of each Borrower and each Guarantor by a duly authorized
officer, and constitutes a legal, valid and binding obligation of each Borrower
and each Guarantor enforceable in accordance with its terms, subject to
bankruptcy, reorganization, insolvency, moratorium and other similar laws
affecting the enforcement of creditors' rights generally and the exercise of
judicial discretion in accordance with general principles of equity;
(d) the execution, delivery and performance of this Amendment
Agreement will not violate any law, statute or regulation, or any order or
decree of any court or
13
governmental instrumentality, or conflict with, or result in the breach of, or
constitute a default under any contractual obligation of any Borrower or any
Guarantor; and
(e) as of the date hereof (after giving effect to the
consummation of the transactions contemplated under this Amendment Agreement)
there exists no Default.
By its signature below, each Borrower and each Guarantor agree
that it shall constitute an Event of Default if any representation or warranty
made above should be false or misleading in any material respect.
5.2 Each Borrower and each Guarantor confirms in favor of the
Administrative Agent and each Lender that it agrees that it has no defense,
offset, claim, counterclaim or recoupment with respect to any of its obligations
or liabilities under the Credit Agreement or any other Financing Document and
that, except for the specific waiver(s) provided for herein, nothing herein
shall be deemed to be a waiver of any covenant or agreement contained in the
Credit Agreement, and except as herein expressly amended, the Credit Agreement
and other Financing Documents are each ratified and confirmed in all respects
and shall remain in full force and effect in accordance with their respective
terms.
5.3 All references to the Credit Agreement and the other
Financing Documents in the Credit Agreement, the Financing Documents and the
other documents and instruments delivered pursuant to or in connection therewith
shall mean such agreements as amended hereby and as each may in the future be
amended, restated, supplemented or modified from time to time.
5.4 Upon presentation of its invoice, the Borrowers covenant
and agree to pay in full all legal fees charged, and all costs and expenses
incurred, by ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Administrative Agent, in
connection with the transactions contemplated under this Amendment Agreement.
5.5 This Amendment Agreement may be executed by the parties
hereto individually or in combination, in one or more counterparts, each of
which shall be an original and all of which shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page by telecopier
shall be effective as delivery of a manually executed counterpart.
14
5.6 THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
5.7 The parties hereto shall, at any time and from time to
time following the execution of this Amendment Agreement, execute and deliver
all such further instruments and take all such further action as may be
reasonably necessary or appropriate in order to carry out the provisions of this
Amendment Agreement.
▇▇▇▇▇▇▇▇-VAN HEUSEN CORPORATION, Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
THE IZOD CORPORATION, Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
PVH WHOLESALE CORP., Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
PVH RETAIL CORP., Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
▇▇▇▇.▇▇▇. INC., Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
15
▇.▇. ▇▇▇▇ FRANCHISES INC., Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
CD GROUP INC., Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
JPMORGAN CHASE BANK, individually and as
Administrative and Collateral Agent, and as Lead
Arranger
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice-President
FLEET RETAIL FINANCE INC., individually and as
Co-Arranger and Co-Syndication Agent,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
SUN TRUST BANK, individually and as
Co-Syndication Agent,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
16
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
individually and as Co-Documentation Agent,
By: /s/ ▇▇▇▇▇. ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice-President
BANK OF AMERICA, N.A., individually and as
Co-Documentation Agent,
By: /s/ ▇▇▇▇▇▇ Scolzitti
------------------------------------------
Name: ▇▇▇▇▇▇ Scolzitti
Title: Vice-President
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇. ▇. ▇▇▇▇▇
Title: Vice-President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice-President
WHITEHALL BUSINESS CREDIT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice-President
17
STANDARD FEDERAL BANK NATIONAL ASSOCIATION
By:LASALLE BUSINESS CREDIT, INC., as Agent
(formerly known as Michigan National Bank, as
successor-in-interest to Mellon Bank, Inc.)
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
CONGRESS FINANCIAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice-President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
BANK LEUMI USA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: First Vice-President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice-President
18