Exhibit 4-C-8
EXECUTION COPY
HARTMARX CORPORATION
EIGHTH AMENDMENT
TO THE AMENDED AND RESTATED CREDIT AGREEMENT
This EIGHTH AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of May 14, 2002 and entered into by and
among HARTMARX CORPORATION, a Delaware corporation ("Borrower"), the
LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to
as a "Lender" and collectively as "Lenders"), GENERAL ELECTRIC CAPITAL
CORPORATION, as Managing Agent and Collateral Agent for Lenders ("Managing
Agent"), and THE BANK OF NEW YORK and BANK OF AMERICA, N.A., as co-agents
(collectively, the "Co-Agents"), and, for purposes of Sections 4 and 5
hereof, the GUARANTORS IDENTIFIED ON THE SIGNATURE PAGES HEREOF
(collectively the "Guarantors"), and is made with reference to that certain
Amended and Restated Credit Agreement dated as of August 18, 1999 among
Borrower, Lenders, Managing Agent and Co-Agents (as amended, the "Credit
Agreement"; capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement).
RECITALS
WHEREAS, as of May 1, 2002 the Borrower and its Subsidiaries had
received in excess of $6,300,000 of Liquidity Proceeds and on May 2, 2002
the Borrower received a $4,500,000 cash settlement related to certain
litigation commenced by the Borrower against a software provider (the
"Settlement Proceeds"); and
WHEREAS, the Borrower has requested the Lenders to amend, and
subject to the terms and conditions of this Amendment the Lenders hereby
agree to amend, the definition of Liquidity Proceeds set forth in Section
6.15 of the Credit Agreement to include the Settlement Proceeds and thereby
consider the Borrower as having satisfied the requirements of such section
that the Borrower receive not less than $10,000,000 in Liquidity Proceeds
by June 30, 2002.
NOW, THEREFORE, in consideration of the foregoing premises, the
terms and conditions stated herein and other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the Borrower,
the Requisite Lenders and the Managing Agent, such parties hereby agree as
follows:
SECTION 1. Amendment to the Credit Agreement.
Subject to the satisfaction of each of the
conditions set forth in Section 3 of this Amendment, Section 6.15
of the Credit Agreement is amended add the following provision
immediately following the existing clause (iii) thereof:
"and (iv) cash received from the settlement of Hartmarx
Corporation vs. JBA Holdings, PLC, originally filed on June 28,
1999, in the Circuit Court of Xxxx County, Illinois, County
Department, Law Division, Case Xx. 00 X 00000 and removed to
United States District Court for the Northern District of
Illinois, Eastern Division Case No. 99 C 4874 and settled pursuant
to that certain Settlement Agreement and Mutual General Release
dated as of April 26, 2002"
SECTION 2. Application of Cash Settlement.
Managing Agent acknowledges that the Settlement Proceeds were paid
to Managing Agent on May 3, 2002, and Managing Agent shall apply such
amount as Liquidity Proceeds in accordance with the provisions of Section
2.4A(iii)(d) of the Credit Agreement to the extent the Liquidity Proceeds
requirements of Section 6.15 of the Credit Agreement have not been
otherwise theretofore satisfied, or if the Liquidity Proceeds have been
satisfied prior to such application, or to the extent such amount paid to
the Managing Agent exceeds the remaining amount required to be received by
the Borrower pursuant to Section 6.15 of the Credit Agreement, then the
Managing Agent shall apply such amount (or excess) as a voluntary
prepayment of Swing Line Loans or Revolving Loans in accordance with the
provisions of Section 2.4A(i) of the Credit Agreement.
SECTION 3. Effectiveness of the Amendment; Conditions Precedent.
The provisions of Section 1 of this Amendment shall become effective as of
the date hereof upon the Managing Agent's receipt of originally-executed
(or facsimiles of originally-executed) counterparts of this Amendment
executed and delivered by duly authorized officers of the Borrower, each
Guarantor and the Requisite Lenders.
SECTION 4. Representations and Warranties; Covenant.
The Borrower and each Guarantor hereby represents and warrants
that (i) this Amendment constitutes its legal, valid and binding
obligation, enforceable against each such party in accordance with its
terms and (ii) there is no consent, approval or other requirement known to
the Borrower or such Guarantor which could reasonably be expected to impair
or materially delay the Borrower's or such Guarantor's ability to perform
its obligations under this Amendment and (iii) no Default or Event of
Default exists and is continuing.
SECTION 5. Reaffirmation, Ratification and Acknowledgment. The
Borrower and each of the Guarantors hereby (i) ratifies and reaffirms all
of its payment and performance obligations, contingent or otherwise, and
each grant of security interests and liens in favor of the Managing Agent,
under each Loan Document to which it is a party, (ii) agrees and
acknowledges that such ratification and reaffirmation is not a condition to
the continued effectiveness of such Loan Documents, and (iii) agrees that
neither such ratification and reaffirmation, nor the Managing Agent's nor
any Lenders' solicitation of such ratification and reaffirmation,
constitutes a course of dealing giving rise to any obligation or condition
requiring a similar or any other ratification or reaffirmation from the
Borrower or the Guarantors with respect to any subsequent modifications
consent or waiver with respect to the Credit Agreement or other Loan
Documents. The Credit Agreement and each other Loan Document is in all
respects hereby ratified and confirmed and, neither the execution, delivery
nor effectiveness of this Amendment shall operate as a waiver of any
Default or Event of Default (whether or not known to the Managing Agent,
the Collateral Agent or any Lender) or any right, power or remedy of the
Managing Agent, the Collateral Agent or any Lender of any provision
contained in the Credit Agreement or any other Loan Document, whether as a
result of any Default or Event of Default or otherwise. This Amendment
shall constitute a "Loan Document" for purposes of the Credit Agreement.
SECTION 6. Miscellaneous.
(a) Execution in Counterparts; Governing Law. This Amendment may
be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument. This Amendment shall be
governed by and construed in accordance with the laws of the State of New
York.
(b) Section Titles. The section titles contained in this Amendment
are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
(c) Managing Agent's Expense. The Borrower hereby agrees to
promptly reimburse the Managing Agent for all reasonable out-of-pocket
expenses, including, without limitation, attorneys' and paralegals fees, it
has heretofore or hereafter incurred or incurs in connection with the
preparation, negotiation and execution of this Amendment or any document,
instrument, agreement delivered pursuant to this Amendment.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER:
HARTMARX CORPORATION
By: /s/ XXXXX X. XXXXXX
--------------------------------
Xxxxx X. Xxxxxx, Executive Vice
President and Chief Financial Officer
GUARANTORS:
HMX Sportswear, Inc. (formerly known as
American Apparel Brands, Inc.)
Anniston Sportswear Corporation
Briar, Inc.
Consolidated Apparel Group, Inc.
C.M. Clothing, Inc.
C.M. Outlet Corp.
Chicago Trouser Company, Ltd.
Country Miss, Inc.
Country Suburbans, Inc.
Direct Route Marketing Corporation
E-Town Sportswear Corporation
Xxxxxxxx-Xxxxx, Inc.
Gleneagles, Inc.
Handmacher Fashions Factory Outlet, Inc.
Xxxxxxxxxx-Xxxxx, Inc.
Hartmarx International, Inc.
Xxxx Xxxxxxxxx & Xxxx
Xxxx Services, Inc.
Xxxx. Xxxxx Clothes, Inc.
TAG Licensing, Inc.
Xxxxxx-Xxxxxxx Co., Inc.
Xxxxxxx, Xxxxx & Xxxx, Inc.
Hoosier Factories, Incorporated
HSM University, Inc.
Intercontinental Apparel, Inc.
International Women's Apparel, Inc.
Xxxxxx-Xxxx, Inc.
JRSS, Inc.
Kuppenheimer Men's Clothiers
Dadeville, Inc.
Men's Quality Brands, Inc.
National Clothing Company, Inc.
106 Real Estate Corp.
Robert's International Corporation
SALHOLD, Inc.
Seaford Clothing Co.
Society Brand, Ltd.
Xxxxxx Surrey, Inc.
Tailored Trend, Inc.
Thorngate Uniforms, Inc.
Trade Finance International Limited
Universal Design Group, Ltd.
X. Xxxx & Company, Inc.
Winchester Clothing Company
Yorke Shirt Corporation
By: /s/ XXXXX X. XXXXXX
----------------------------------
Xxxxx X. Xxxxxx
Vice President of each of the foregoing
LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
individually, as Managing Agent and as
Collateral Agent
By: /s/ XXXXX XXXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Duly Authorized Signatory
THE BANK OF NEW YORK,
individually, as Co-Agent and as Issuing
Lender for the Letters of Credit
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
individually and as Co-Agent
By: /s/ XXXXX XXXXXXX
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ XXXXXXXXXXX XXXXX
-----------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ XXXXXX X. XXXX
-----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ X. Xxxxxxxx
-----------------------------------
Name: X. Xxxxxxxx
Title: Vice president
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ XXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
