EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT (the
"AMENDMENT"), dated as of May 11, 2001, (the "AMENDMENT DATE") is among HAGGAR
CLOTHING CO. ("COMPANY"), HAGGAR CORP. ("HAGGAR"), each of the banks which are
party hereto (individually a "BANK" and collectively, the "BANKS") and THE
CHASE MANHATTAN BANK, (successor-by-merger to Chase Bank of Texas, National
Association who was formerly Texas Commerce Bank National Association)
individually as a Bank and as Agent for itself and the other Banks (in such
capacity as Agent, together with its successors in such capacity, the "AGENT").
RECITALS:
Pursuant to that certain First Amended and Restated Credit Agreement
dated September 18, 1996 (as the same has been and is hereby amended, the
"AGREEMENT"), the banks party thereto agreed to make Loans to Company as set
forth therein. Pursuant to the Agreement, Haggar and the domestic subsidiaries
of the Company are required to guaranty the obligations of the Company under
the Agreement.
Since the original date of the Agreement:
(a) AirHaggar, Inc., a guarantor under the Agreement, merged into the
Company, with the Company surviving;
(b) The following new domestic subsidiaries of the Company were
created: Edinburg Direct Garment Company, Inc.; Weslaco Direct
Cutting Company, Inc., Xxxxxx.Xxx, Inc., Xxxxxx Clothing
Management, Inc., Xxxxxx, Ltd. and Haggar Canada, Inc., all
of whom have executed a Subsidiary Guaranty (except Xxxxxx
Clothing Management, Inc. and Xxxxxx, Ltd. who together are
herein referred to as the "NEW XXXXXX SUBSIDIARIES"); and
(c) Xxxxxx, Inc., a guarantor under the Agreement, merged into Xxxxxx,
Ltd., with Xxxxxx, Ltd., surviving.
Company and Haggar have requested that the Banks agree to modify certain
terms of the Agreement as herein set forth. The Banks are willing to do so upon
the terms and provisions of this Amendment.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows, effective as of the
Amendment Date, unless otherwise indicated:
ARTICLE 1.
Definitions
Section 1.1. DEFINITIONS. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meanings as in the
Agreement, as amended hereby.
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 1 of 16
ARTICLE 2.
AMENDMENTS
Section 2.1. AMENDMENT TO SECTION 1.1. The definitions of the following
terms in Section 1.1 of the Agreement are amended in their respective entireties
to read as follows (provided that the amendment to the terms "Operating Cash
Flow" and "Fixed Charge Ratio" are effective as of March 31, 2001):
"Agent" means The Chase Manhattan Bank, successor in interest by
merger to Chase Bank of Texas, National Association (who was formerly
known as Texas Commerce Bank National Association), and any successor
Agent appointed pursuant to Section 11.15.
"Banks" means the banks listed on the Schedule 8 of this Agreement
(including The Chase Manhattan Bank in its capacity as a Bank but not in
its capacity as the Agent), and their respective successors and assigns.
"Borrowing Base" means an amount calculated as of the last day of
each fiscal month, equal to the sum of (i) eighty percent (80%) of
Eligible Receivables, and (ii) fifty percent (50%) of Eligible Inventory
(each of (i) and (ii) as determined pursuant to the most recent Borrowing
Base Certificate delivered by the Company to the Agent pursuant to
Sections 2.8 or 6.1(d)); provided however, that the portion of the
Borrowing Base attributable to Eligible Inventory shall not be greater
than sixty percent (60%) of the Total Commitments.
"CD Margin" means (a) at any time when the Funded Debt Ratio is
equal to or less than 1.50 to 1, one and one-eighth percent (1-1/8%) per
annum, (b) at any time when the Funded Debt Ratio is greater than 1.50 to
1 but less than or equal to 2.00 to 1, one and three-eighths percent
(1-3/8%) per annum, (c) at any time when the Funded Debt Ratio is greater
than 2.00 to 1 but less than or equal to 2.50 to 1, one and one-half
percent (1-1/2%) per annum, and (d) at any time when the Funded Debt Ratio
is greater than 2.50 to 1, one and five-eighths percent (1-5/8%) per
annum. Each adjustment to the previously calculated CD Margin shall be
effective five (5) Business Days following the Agent's receipt of the
reports to be delivered by the Company pursuant to Sections 6.1(a), (b)
and (c).
"Commitment" means, for any Bank, the amount set forth opposite such
Bank's name on Schedule 8 hereto or in the most recent assignment executed
by such Bank pursuant to Section 10.2, as such amount may be reduced
pursuant to Section 2.4. "Commitments" means the aggregate of such amounts
for all of the Banks.
"Eurodollar Margin" means (a) at any time when the Funded Debt Ratio
is equal to or less than 1.50 to 1, one percent (1%) per annum, (b) at any
time when the Funded Debt Ratio is greater than 1.50 to 1 but less than or
equal to 2.00 to 1, one and one-fourth percent (1-1/4%) per annum, (c) at
any time when the Funded Debt Ratio is greater than 2.00 to 1 but less
than or equal to 2.50 to 1, one and three-eighths percent (1-3/8%) per
annum, and (d) at any time when the Funded Debt Ratio is greater than 2.50
to 1, one and one-half percent (1-1/2%) per annum. Each adjustment to the
previously calculated Eurodollar Margin shall be effective five (5)
Business Days following Agent's receipt of the reports to be delivered by
the Company pursuant to Sections 6.1(a), (b) and (c).
"Fixed Charge Ratio" means the ratio of (i) Operating Cash Flow
minus all taxes (exclusive of the tax effects relating to the closing of
the Edinburg facility and the operations in
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 2 of 16
Japan), as determined in accordance with GAAP to (ii) Fixed Charges, in each
case, as measured in accordance with Section 7.6 and as measured at the end of
each fiscal quarter.
"Operating Cash Flow" means, for any period, the sum of the following for
the Company Group determined on a consolidated basis without duplication: (a)
net income (before accounting for the gains and losses on the sale of capital
assets, discontinued operations and other like extraordinary or nonrecurring
events, including all Capacity Adjustment Costs), plus (b) depreciation and
amortization, plus (c) interest expense, plus (d) taxes (exclusive of the tax
effects relating to the closing of the Edinburg facility and the operations in
Japan), plus (e), to the extent deducted in determining net income for the
period and not otherwise added pursuant to other provisions of this definition,
the charges taken in 2001 in an amount not to exceed $14,300,000 after tax
($20,800,000 before tax) relating to the closing of the Edinburg facility and
the operations in Japan, all as set forth on the financial statements of the
Company and its Subsidiaries and as determined in accordance with GAAP. In no
event shall Operating Cash Flow include any income or loss attributable to any
changes in the accounting for pension, profit sharing or employee benefits.
"Permitted Liens" means (a) Liens for Taxes not yet due and payable,
mechanic's Liens and materialman's, shipper's or warehouseman's Liens for
services or materials and landlord's Liens for rental amounts for which payment
is not yet due or that are being contested in good faith and their enforcement
stayed by appropriate proceedings, (b) Liens securing any purchase money
Indebtedness if such Liens do not encumber any property other than the property
for which such purchase money Indebtedness was incurred, (c) the currently
existing Liens described in SCHEDULE 4 to this Agreement, if any, and renewals
thereof if the principal amounts secured thereby are not increased and the
renewed Lien does not cover any assets which are not covered by the existing
Lien renewed thereby, (d) pledges or deposits made to secure payment of worker's
compensation, or to participate in any fund in connection with worker's
compensation, unemployment insurance, pensions, or other social security
programs, (e) good-faith pledges or deposits made to secure performance of bids,
tenders, contracts (other than for the repayment of borrowed money) or leases,
not in excess of twenty percent (20%) of the aggregate amount due thereunder, or
to secure statutory obligation, surety or appeal bonds, or indemnity,
performance, or other similar bonds in the ordinary course of business, (f)
encumbrances consisting of zoning restrictions, easements or other restrictions
on the use of real property, none of which materially impair the operation by
the Company Group (taken as a whole) of their business, and none of which is
violated by existing or proposed structures or land use that materially impair
the operation by the Company Group (taken as a whole), (g) the following, if (i)
the validity or amount thereof is being contested in good faith and by
appropriate and lawful proceedings and so long as levy and execution thereon
have been stayed and continue to be stayed, or (ii) they do not in the aggregate
materially detract from the value of any material assets or the operation by the
Company Group of their respective businesses: claims and Liens for Taxes due and
payable; any attachment of personal or real property or other legal process
prior to adjudication of a dispute on the merits; adverse judgments on appeal;
and Liens, and (h) Liens granted to the issuer of a documentary letter of credit
which is issued for the account of a member of the Company Group in the ordinary
course of such member's business, which Liens encumber the documents of title
and underlying goods the purchase of which is being supported with the issuance
of the letter of credit in question.
"Termination Date" means June 30, 2003, unless the Commitments are
terminated prior to such date pursuant to Sections 2.4 or 9.1; provided,
however, if the Agent receives written notice from the Company by April 30, 2002
(and written consent from Haggar and Domestic
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 3 of 16
Subsidiaries), and each April 30 thereafter, of its intention to extend
for one (1) additional year (and the Company receives notice from the
Agent by June 15, 2002, and each June 15 thereafter, of the election of
all the Banks to so extend, with the decision whether to extend by a Bank
to be within its sole discretion, no Bank having any obligation to do so),
then the Termination Date shall be extended for one (1) additional year,
unless the Commitments are terminated prior to such extended date pursuant
to Sections 2.4 or 9.1.
Section 2.2. AMENDMENT TO "PERMITTED INDEBTEDNESS" DEFINITION IN SECTION
1.1. The definition of the term "Permitted Indebtedness" in Section 1.1 of the
Agreement is amended as follows:
(i) Clause (a) of the definition is amended in its entirety to
read as follows:
(a) obligations to reimburse advances made under commercial
letters of credit or similar instruments incurred in the ordinary course
of business but only to the extent that the aggregate outstanding amount
thereof does not exceed $45,000,000;
(ii) The "and" at the end of clause (h) of the definition is
deleted, the period at the end of clause (i) is deleted and replaced with an
";"; the word "and" is added to the end of clause (i) and add a new clause (j)
is added immediately after clause (i) to read in its entirety as follows:
(j) obligations evidenced by senior unsecured promissory
notes issued after March 31, 2001 in an aggregate amount not to exceed
$35,000,000; provided that: (i) the interest rate charged thereon does not
exceed eleven percent (11%); (ii) the average life to maturity for such
notes occurs after the Termination Date; and (iii) such notes are not
governed by covenants that are more onerous on the Company Group than the
covenants set forth in the Loan Documents or that confer rights on the
holders of such notes greater than the rights provided to the Banks under
the Loan Documents.
Section 2.3. AMENDMENT TO SECTION 2.5. Clause (a) in Section 2.5 of the
Agreement is amended in its entirety to read as follows:
(a) On each Payment Date and on the Termination Date, a
commitment fee equal to a fluctuating percentage of the average daily
amount of the Total Commitments minus the sum of (i) the outstanding
principal amount of all Advances and (ii) the Letter of Credit Exposure
during the quarter ending on and including such Payment Date, or such
shorter period ending on and including the Termination Date, as the case
may be. The percentage shall be equal to the following: (a) at any time
when the Funded Debt Ratio is equal to or less than 1.50 to 1,
eleven-fortieths of one percent (11/40%) per annum, (b) at any time when
the Funded Debt Ratio is greater than 1.50 to 1 but less than or equal to
2.00 to 1, three-tenths of one percent (3/10%) per annum, (c) at any time
when the Funded Debt Ratio is greater than 2.00 to 1 but less than or
equal to 2.50 to 1, thirteen-fortieths of one percent (13/40%) per annum,
and (d) at any time when the Funded Debt Ratio is greater than 2.50 to 1,
three-eighths of one percent (3/8%) per annum. Each adjustment to the
percentage used to calculate the Commitment Fee shall be effective five
(5) Business Days following Agent's receipt of the reports to be
delivered, by the Company pursuant to Sections 6.1(a), (b) and (c);
Section 2.4. ADDITION OF SECTION 2.16. The Agreement is amended to add a
new Section 2.16 to read in its entirety as follows:
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 4 of 16
2.16. INCREASE OF COMMITMENTS. By written notice sent to the Agent
(which the Agent shall promptly distribute to the Banks), the Company may
request an increase of the Total Commitments one or more times under this
Section 2.16 up to an aggregate increased amount not to exceed $10,000,000
(i.e., to Total Commitments not to exceed $100,000,000); provided that
(i) no Unmatured Default or Default exists and (ii) the Total Commitments
shall not have been reduced, nor shall the Company have given notice of
any such reduction under Section 2.4. At any time that the Total
Commitments are to be increased pursuant to this Section 2.16, one or more
financial institutions, each as approved by the Company and the Agent (a
"New Bank"), or any existing Bank, may commit to provide an amount equal
to the aggregate amount of the requested increase (the "Increase Amount");
provided, that the Commitment of each New Bank shall be at least
$5,000,000 and if any existing Bank increases its Commitment, the amount
of the increase shall be at least $2,000,000. No existing Bank shall have
any obligation to increase its Commitment under this Section 2.16, without
the consent of such Bank. Upon receipt of notice from the Agent to the
Banks and the Company that the Banks, or sufficient Banks and New Banks,
have agreed to commit to an aggregate amount equal to the Increase Amount,
then: provided that no Unmatured Default or Default exists at such time or
after giving effect to the requested increase, the Company, the Agent and
the Banks willing to increase their respective Commitments and the New
Banks (if any) shall execute and deliver an Increased Commitment
Supplement (herein so called) in the form attached hereto as Exhibit "H".
If all existing Banks shall not have provided their Ratable Share of the
requested increase, on the effective date of the Increased Commitment
Supplement, the Company shall request a borrowing hereunder which shall be
made only by the Banks who have increased their Commitment and, if
applicable, the New Banks. The proceeds of such borrowing shall be
utilized by the Company to repay the Banks who did not agree to increase
their Commitments, such borrowing and repayments to be in amounts
sufficient so that after giving effect thereto, the Loans shall be held by
the Banks in accordance with their respective Ratable Shares. The Company
agrees to exchange the Note of each existing Bank that has increased its
Commitment under this Section 2.16 for a new Note payable to the order of
such Bank in the amount of its increased Commitment. The Company agrees to
execute and deliver new Notes to each New Bank that has provided a new
Commitment under this Section 2.16 in an amount equal to such new
Commitment.
Section 2.5. AMENDMENT TO SECTION 5.3. Section 5.3 of the Agreement is
amended in its entirety to read as follows:
5.3 LITIGATION. There is no Litigation pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any of the Guarantors other than that which, collectively or
individually, has not and could not reasonably be expected to result in a
Material Adverse Effect.
Section 2.6. AMENDMENT TO SECTION 5.11. Section 5.11 of the Agreement is
amended in its entirety to read as follows:
5.11 SUBSIDIARIES. As of March 31, 2001, Schedule 3 to this
Agreement contains an accurate list of all of the presently existing
Subsidiaries of the Company, setting forth their respective jurisdictions
of incorporation and the percentage of their respective capital stock
owned by the Company Group; all of the issued and outstanding shares of
capital stock of the Domestic Subsidiaries of the Company have been duly
authorized and issued and are fully paid and non-assessable.
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 5 of 16
Section 2.7. AMENDMENT TO SECTIONS 7.6 AND 7.7. Effective as of March 31,
2001, Sections 7.6 and 7.7 of the Agreement are each amended in their respective
entireties to read as follows:
7.6 FIXED CHARGE REQUIREMENT. As of the end of each fiscal
quarter (commencing with the fiscal quarter ending December 31, 1997),
permit the Fixed Charge Ratio to be or become less than 1.25 to 1.00, as
calculated for the twelve (12) months period then ended.
7.7 FUNDED DEBT LIMITATION. As of the end of each fiscal
quarter, permit the Funded Debt Ratio to be or become greater than 3.0
to 1.0.
Section 2.8. AMENDMENT TO SECTION 7.8. Effective as of March 31, 2001,
clauses (a) and (b) in Section 7.8 of the Agreement are each amended in their
respective entireties read as follows:
(a) Permit Net Worth of the Company Group to be or become less
than an amount equal to the sum of (1) $120,000,000, plus (2) fifty percent
(50%) of the cumulative net income of the Company Group, on a consolidated
basis, for the period commencing April 1, 2001, and ending June 30, 2001,
and each subsequently completed fiscal quarter thereafter, plus (3) in the
event Haggar or the Company shall make a registered public offering of its
capital stock, sixty-six and two-thirds percent (66-2/3%) of that portion
of the net proceeds from such offering attributable to the primary
issuance of new shares (but not the secondary issuance of existing
shares).
(b) Permit Net Worth of the Company to be or become less than
$40,000,000.
Section 2.9. AMENDMENT TO SECTION 7.13. Section 7.13 of the Agreement
is amended in its entirety to read as follows:
7.13. DISTRIBUTIONS. Make or agree to make any Distribution
except: (i) a Distribution from a Subsidiary of the Company to the
Company; (ii) if no Default nor any Unmatured Default exists or would
result therefrom, any member of the Company Group may repurchase shares
of Haggar's common stock on the open market or through privately
negotiated transactions; provided that the aggregate amount paid for
such repurchases for the entire term of this Agreement (commencing
September 18, 1996) shall not exceed $40,000,000; and (iii) if no
Default nor Unmatured Default exists or would result therefrom, the
Company and Haggar may make any Distribution other than those of the
type described in clause (ii).
Section 2.10. AMENDMENT TO SECTION 7.15. Section 7.15 of the Agreement is
amended in its entirety to read as follows:
7.15. CAPITAL EXPENDITURES LIMITATION. Make or agree to make
Capital Expenditures in excess of (i) during the Company's fiscal year
commencing on October 1, 1997, $18,000,000.00 and (ii) during each
fiscal year thereafter, an amount equal to ten percent (10%) of the
Company Group's Net Worth; provided that (i) expenditures for remodeling
and refurbishment of and additions to its existing corporate headquarters
situated at 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxx (to the extent such
expenditures in the aggregate do not exceed the sum of (A) $2,721,000 and
(B) the net cash amount realized by the Company from any sale of the "G.M."
and "Cedar Springs" buildings situated, respectively, at 0000 Xxxxxx Xxxxxx
and 0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxx) and (ii) expenditures for the repair
or replacement of property with insurance proceeds (to the extent such
expenditures do not exceed the net cash amount of
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 6 of 16
such insurance proceeds) shall not be included in Capital Expenditures for
purposes of the foregoing calculation.
Section 2.11. AMENDMENT TO SECTION 9.3. Section 9.3 of the Agreement is
amended in its entirety to read as follows:
9.3. AMENDMENTS AND WAIVERS. The Agent, the Company, and the
Banks or New Banks increasing or providing new Commitments under the
terms of Section 2.16 may modify this Agreement pursuant to the terms of
an Increase Commitment Supplement executed pursuant to the terms of
Section 2.16 without the consent or agreement of any other Bank, any
Guarantor or any other member of the Company Group; provided however, no
Commitment of a Bank shall be increased pursuant to Section 2.16,
without the consent of such Bank. Subject to the other terms of this
Section 9.3, the Required Banks (or the Agent with the consent in
writing of the Required Banks), the Company and each of the Guarantors
may enter into other agreements supplemental hereto or to any other Loan
Document for the purpose of adding any provisions to this Agreement or
other Loan Document or changing in any manner any provision of this
Agreement or any other Loan Document or the rights of the Banks or the
Company or any Guarantor hereunder or thereunder or waiving any Default
or Unmatured Default hereunder; provided, however, that no such
supplemental agreement executed pursuant to this sentence shall:
(a) Extend the maturity of a Note or reduce the principal amount
thereof, or reduce the rate of interest thereon or of any fees due
hereunder or change the time of payment of interest thereon or of any fees
due hereunder, or waive any non-payment of principal, interest or fees
then existing, without the consent of each Bank affected thereby;
(b) Reduce the percentage specified in the definition of
Required Banks, without the consent of all the Banks;
(c) Permit the Company to assign its rights under this
Agreement, without the consent of all the Banks;
(d) Release the Parent Guaranty without the consent of all the
Banks; or
(e) Amend this Section without the consent of all the Banks.
No amendment of any provision of this Agreement or any other Loan Document
relating to the Agent shall be effective without the written consent of
the Agent.
Section 2.12. AMENDMENT TO SECTION 10.2. Clause (a) of Section 10.2 of the
Agreement is amended in its entirety to read as follows:
(a) A Bank may sell to any Person with a Standard & Poor's
rating of "A" or better, to any other Bank or to any Bank Affiliate, one
or more participations in all or a portion of its interests, rights and
obligations under this Agreement (including, without limitation, all or
a portion of its Commitment and the corresponding portion of the Note
held by it); provided, however, that other than in the case of a
participation sold to a Bank Affiliate or another Bank, the Agent and
the Company must give their respective prior written consent, which
consent will not be unreasonably withheld. Prior to consenting to any
participation which requires its consent, the Company shall be afforded
a period not to exceed sixty (60) days in which it may
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 7 of 16
identify a participant acceptable to it and reasonably acceptable to the
selling Bank. The term "BANK AFFILIATE" means (a) with respect to any Bank
(i) an Affiliate of such Bank or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course of it business and is administered or
managed by a Bank or an Affiliate of such Bank and (b) with respect to any
Bank that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions
of credit and is managed by the same investment advisor as such Bank or by
an Affiliate of such investment advisor. In the event any Bank shall sell
any participation, (i) the Company, the Agent and the other Banks shall
continue to deal solely and directly with such selling Bank in connection
with such selling Bank's rights and obligations under the Loan Documents
(including the Note held by such selling Bank); (ii) such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Company and the Guarantors relating to the Loans, including the right to
approve any amendment, modification or waiver of any provision of this
Agreement other than amendments, modifications or waivers with respect to
(1) any fees payable hereunder to the Banks, and (2) the amount of
principal or the rate of interest payable on, or the dates fixed for the
scheduled repayment of principal of, the Loans and other sums to be paid
to the Banks hereunder, and (iii) the Company and Haggar agree, to the
fullest extent they may effectively do so under applicable law, that any
participant of a Bank may exercise all rights of set-off, bankers' lien,
counterclaim or similar rights with respect to such participation as fully
as if such participant were a direct holder of Loans if such Bank has
previously given notice of such participation to the Company.
Section 2.13. AMENDMENT TO SECTION 11.7. Section 11.7 of the Agreement is
amended in its entirety to read in its entirety to read as follows:
11.7. RIGHT TO INDEMNITY. EACH OF THE BANKS SHALL, RATABLY IN
ACCORDANCE WITH THE PERCENTAGE OF ITS COMMITMENT, INDEMNIFY THE AGENT (TO
THE EXTENT NOT REIMBURSED BY THE COMPANY) FOR AND AGAINST ANY COST,
EXPENSE (INCLUDING ATTORNEY'S FEES AND DISBURSEMENTS), CLAIM, DEMAND,
ACTION, LOSS OR LIABILITY (EXCEPT SUCH AS RESULT FROM THE AGENT'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT) THAT THE AGENT MAY SUFFER OR INCUR IN
CONNECTION WITH THIS AGREEMENT OR ANY ACTION TAKEN OR OMITTED BY THE AGENT
HEREUNDER, IN ITS CAPACITY AS THE AGENT, INCLUDING, WITHOUT LIMITATION,
MATTERS ARISING OUT OF THE AGENT'S OWN NEGLIGENCE (OTHER THAN ITS GROSS
NEGLIGENCE). The Agent shall be fully justified in failing or refusing to
take any action hereunder unless it shall first be indemnified to its
satisfaction by the Banks pro rata against any and all liability and
expense that may be incurred by it by reason of taking or continuing to
take any such action.
Section 2.14. AMENDMENT TO EXHIBITS. Exhibits B and G to the Agreement are
each amended in their respective entireties to read as set forth on Exhibit B
and G attached hereto, respectively. Exhibit "H" is hereby added to the
Agreement to read in its entirety as set forth on Exhibit "H" hereto.
Section 2.15. AMENDMENT TO SCHEDULES. Schedule 3 to the Agreement is
amended in its entirety to read as set forth on Schedule 3 hereto. The Agreement
is amended to add a new Schedule 8 to read in its entirety as set forth on
Schedule 8 hereto.
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 8 of 16
ARTICLE 3.
Changes in Bank Group and Commitments
Section 3.1. ASSIGNMENT. Immediately prior to giving effect to Article 2
of this Amendment, each Bank identified on Schedule 3.1 hereto as a Selling Bank
(herein so called) hereby sells and assigns to the Person or Persons identified
as a Purchasing Bank (herein so called) on Schedule 3.1 hereto opposite its name
thereon, without recourse, representation or warranty except as specifically set
forth herein, and each Purchasing Bank hereby purchases and assumes from its
Selling Bank, the Dollar amount of the Commitment of the applicable Selling Bank
designated on Schedule 3.1 together with a corresponding interest (herein the
"PRO RATA INTEREST" which shall equal a percentage determined by dividing the
Dollar amount of the Commitment purchased by the Dollar amount of the Commitment
of the applicable Selling Bank and multiplying the resulting quotient by 100) in
all of the applicable Selling Bank's rights and obligations under the Agreement
and the other Loan Documents as of the Amendment Date, including, without
limitation, such Pro Rata Interest in the following: (i) the Loans owing to, and
Letter of Credit Exposure participated in by the applicable Selling Bank and
outstanding on the Amendment Date; and (ii) all unpaid interest and fees accrued
on the Loans purchased hereunder from the Amendment Date. A Selling Bank's
assignment to a Purchasing Bank shall not be effective until it shall have
received the purchase price for the assignment from such Purchasing Bank in the
amount equal to the product of (i) the Purchasing Bank's Pro Rata Interest
multiplied by (ii) the Loans owing to the applicable Selling Bank on the
Amendment Date ("PURCHASE PRICE").
Section 3.2. REPRESENTATIONS AND DISCLOSURES. Each Selling Bank represents
and warrants to the Purchasing Bank designated as such opposite such Selling
Bank's name on Schedule 3.1 that: (i) the Purchase Price paid to it by such
Purchasing Bank equals the Purchasing Bank's Pro Rata Interest in the principal
amount of the Loans outstanding on the Amendment Date which are owned by the
Selling Bank and assigned to the Purchasing Bank in accordance with this
Amendment; (ii) it is legally authorized to enter in this Amendment, (iii) it is
the legal and beneficial owner of the interest being assigned by it hereunder;
and (iv) such interest is free and clear of any adverse claim. Except as
provided in the proceeding sentence, no Selling Bank has made any representation
or warranty nor assumes any responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreement or any
other Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreement or any other Loan Document
and makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or any Guarantor (collectively
with the Company, the "OBLIGATED PARTIES") or the performance or observance by
any Obligated Party of any of their obligations under the Agreement or any other
Loan Document.
Section 3.3. PURCHASING BANK REPRESENTATIONS AND AGREEMENTS. Each
Purchasing Bank (i) represents and warrants to its Selling Bank that it is
legally authorized to enter in this Amendment; (ii) confirms that it has
received a copy of the Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 6.1 thereof, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Amendment; (iii) agrees that it will,
independently and without reliance upon the Agent, the Selling Bank, or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Agreement and the other Loan Documents; (iv)
appoints and authorizes the Agent to take such action on its behalf and to
exercise such powers under the Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all
obligations which by the terms of the Agreement and the other Loan Documents are
required to be performed by it as a Bank; and (vi), if it is organized under the
laws of a jurisdiction outside the United States, agrees to provide Agent the
forms prescribed by the Internal Revenue Service of the United States certifying
as to its exemption from United States withholding taxes with respect to all
payments to be made to it under the
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 9 of 16
Agreement or such other Loan Documents as are necessary to indicate that all
such payments are subject to such tax at a rate reduced by an applicable tax
treaty.
Section 3.4. CONSENT. By execution of this Amendment below, the Company
and the Agent provide their written consent to the Assignments as required by
Section 10.2 of the Agreement. From and after the Amendment Date: (i) each
Purchasing Bank shall be a party to the Agreement and shall have the rights and
obligations of a Bank thereunder and under the other Loan Documents with a
Commitment as set forth on Schedule 8 hereto, (ii) each Selling Bank shall, to
the extent of the Assignments provided in this Article 3, relinquish its rights
and be released from its obligations under the Agreement and the other Loan
Documents (If all of its Commitment has been assigned pursuant hereto, such
Selling Bank shall no longer be a party to the Agreement or any other Loan
Documents and the Agreement and the other Loan Documents may be amended or
otherwise modified without the consent or agreement of the applicable Selling
Bank), and (iii) the Agent shall make all payments in respect of the interest
assigned hereby (including payments of principal, interest, fees, and other
amounts) to the applicable Purchasing Bank. Each Selling Bank and each
Purchasing Bank shall make all appropriate adjustments in payments under the
Agreement and the Notes for periods before the Amendment Date directly between
themselves. After giving effect to this Amendment, both The Bank of
Tokyo-Mitsubishi, Ltd. and National City Bank, Kentucky have relinquished all of
their respective rights and are released from all of their respective
obligations under the Agreement and the other Loan Documents and are no longer a
party to the Agreement or any other Loan Documents. The Agreement and the other
Loan Documents may be amended or otherwise modified without the consent or
agreement of The Bank of Tokyo-Mitsubishi, Ltd or National City Bank, Kentucky.
Section 3.5. EXCHANGE OF NOTES; NEW COMMITMENTS. Company agrees to
exchange each Selling Bank's existing Notes for new Notes payable to the order
of (A) each Purchasing Bank in amounts equal to the Commitments assumed by each
Purchasing Bank pursuant hereto and (B) to each Selling Bank in amounts equal to
the Commitments retained by it under the Agreement as specified herein, if any.
Section 3.6. ADDRESS FOR NOTICES. For purposes of Section 13.1 of the
Agreement, the "Address for Notices" for each Purchasing Bank that is not
already a Bank under the Agreement is as set forth on Schedule 3.6 hereto.
ARTICLE 4.
CONDITIONS PRECEDENT
Section 4.1. CONDITIONS. The effectiveness of Articles 2 and 3 of
this Amendment is subject to the satisfaction of the following conditions
precedent:
(a) The Agent shall have received all of the following, each
dated (unless otherwise indicated) the Amendment Date, in form and substance
satisfactory to the Agent:
(i) This Amendment executed by the Company, each
Guarantor and each New Xxxxxx Subsidiary (collectively the "OBLIGATED
PARTIES");
(ii) such evidence of each New Xxxxxx Subsidiary's
existence, good standing and authority to execute, deliver, and perform this
Amendment and the Loan Documents to which it is or is to be a party hereunder;
(iii) such additional documentation and information
as the Agent or its legal counsel, Jenkens & Xxxxxxxxx, a Professional
Corporation, may reasonably request; and
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 10 of 16
(b) The Banks, the Agent and XX Xxxxxx, a division of Chase
Securities Inc. as the Arranger shall have received all reimbursable fees
required to be paid on the Amendment Date and all expenses for which invoices
have been presented, on or before the Amendment Date, including without
limitation or in addition, the following:
(i) any amounts due under Section 3.4 of the Agreement
as a result of the Assignments made pursuant to Article 3 of this Amendment
and the termination of all Eurodollar Interest Periods as of the Amendment
Date (all of which are hereby terminated) and all unpaid interest and fees
accrued under the Agreement to the Amendment Date;
(ii) an amendment fee to each Bank that is currently a party
to the Agreement, that executes this Amendment (an "EXISTING BANK") and that
continues to provide a Commitment under the Agreement, such amendment fee to be
in an amount equal to three-twentieths of one percent (3/20%) of such Bank's
Commitment (before giving effect to any increase in the amount thereof affected
pursuant to this Amendment but after giving effect to any decrease in the amount
thereof affected pursuant to this Amendment); and
(iii) an upfront fee to each Bank that provides a new or
increased Commitment hereunder in an amount equal to one-fifth of one percent
(1/5%) of the new Commitment of such Bank under the Agreement. If an Existing
Bank increases its Commitment from that in effect prior to the date of this
Amendment, such Bank will be paid an amendment fee under clause (i) above
calculated on its Commitment before giving effect to the amendments contemplated
hereby and an upfront fee calculated in accordance with this clause (ii) with
respect to the amount of the increase in its Commitment.
(c) The representations and warranties contained herein and in
all other Loan Documents, as amended hereby, shall be true and correct in all
material respects as of the date hereof as if made on the date hereof, except
for such representations and warranties limited by their terms to a specific
date;
(d) No Unmatured Default or Default shall have occurred and be
continuing; and
(e) All proceedings taken in connection with the transactions
contemplated by this Amendment and all documentation and other legal matters
incident thereto shall be satisfactory to the Agent and its legal counsel,
Jenkens & Xxxxxxxxx, a Professional Corporation.
ARTICLE 5.
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
Section 5.1. RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement, the Parent Guaranty and
the other Loan Documents are ratified and confirmed and shall continue in full
force and effect. Company, Haggar, the Agent and the Banks agree that the
Agreement as amended hereby, the Parent Guaranty and the other Loan Documents
shall continue to be legal, valid, binding and enforceable in accordance with
their respective terms.
Section 5.2. REPRESENTATIONS AND WARRANTIES. Company and Haggar each
represent and warrants to the Agent and the Banks as follows: (a) after giving
effect to this Amendment, no Unmatured Default or Default has occurred and is
continuing; (b) after giving effect to this Amendment, the representations and
warranties set forth in the Loan Documents are true and correct in all material
respects on and as of the date hereof with the same effect as though made on and
as of such date except with respect to any representations and warranties
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 11 of 16
limited by their terms to a specific date; (c) the execution, delivery and
performance of this Amendment has been duly authorized by all necessary action
on the part of each Obligated Party and does not and will not: (1) violate any
provision of law applicable to any Obligated Party, the certificate of
incorporation, bylaws, partnership agreement, membership agreement, or other
applicable governing document of any Obligated Party or any order, judgment, or
decree of any court or agency of government binding upon any Obligated Party;
(2) conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under any material contractual obligation of any
Obligated Party; (3) result in or require the creation or imposition of any
material lien upon any of the assets of any Obligated Party; or (4) require any
approval or consent of any Person under any material contractual obligation of
any Obligated Party; and (d) AS OF THE DATE OF ITS EXECUTION OF THIS AMENDMENT
THERE ARE NO CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO ITS OR
ANY OTHER OBLIGATED PARTY'S OBLIGATIONS UNDER THE LOAN DOCUMENTS. IN ACCORDANCE
WITH THE FORGOING CLAUSE (d) EACH OF THE COMPANY, HAGGAR AND, BY EXECUTION OF
THIS AMENDMENT, EACH OF THE OTHER OBLIGATED PARTIES HEREBY:
(a) WAIVER. WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, DEFENSES
OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF ITS
EXECUTION OF THIS AMENDMENT AND
(b) RELEASE. RELEASES AND DISCHARGES THE AGENT AND THE BANKS,
AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS,
AFFILIATES AND ATTORNEYS (COLLECTIVELY THE "RELEASED PARTIES") FROM ANY AND ALL
OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES OF ACTION OR
DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW
OR EQUITY, WHICH IT EVER HAD, NOW HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY
RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AND FROM OR IN CONNECTION WITH
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
ARTICLE 6.
MISCELLANEOUS
Section 6.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment or any other Loan Document
including any Loan Document furnished in connection with this Amendment shall
survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Agent or any Bank or any closing shall
affect the representations and warranties or the right of the Agent or any Bank
to rely upon them.
Section 6.2. REFERENCE TO AGREEMENT. Each of the Loan Documents, including
the Agreement and any and all other agreements, documents, or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Agreement as amended hereby, are hereby amended so that any
reference in such Loan Documents to the Agreement shall mean a reference to the
Agreement as amended hereby.
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 12 of 16
Section 6.3. EXPENSE OF BANK. As provided in the Agreement, Company
agrees to pay on demand all costs and expenses incurred by the Agent or any
Bank in connection with the preparation, negotiation, and execution of this
Amendment and the other Loan Documents executed pursuant hereto, including
without limitation, the costs and fees of the Agent's and each Bank's legal
counsel.
Section 6.4. SEVERABILITY. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
Section 6.5. APPLICABLE LAW. This Amendment and all other Loan
Documents executed pursuant hereto shall be governed by and construed in
accordance with the laws of the State of Texas and the applicable laws of the
United States of America.
Section 6.6. SUCCESSORS AND ASSIGNS. This Amendment is binding upon
and shall inure to the benefit of the Agent, each Bank, Company and Haggar
and their respective successors and assigns, except that neither the Company
nor Haggar may assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Banks.
Section 6.7. COUNTERPARTS. This Amendment may be executed in one or
more counterparts and on telecopy counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken
together shall constitute one and the same agreement.
Section 6.8. EFFECT OF WAIVER. No consent or waiver, express or
implied, by the Agent or any Bank to or for any breach of or deviation from
any covenant, condition or duty by any Obligated Party shall be deemed a
consent or waiver to or of any other breach of the same or any other
covenant, condition or duty.
Section 6.9. HEADINGS. The headings, captions, and arrangements used
in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 6.10. ENTIRE AGREEMENT. THIS AMENDMENT AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION
WITH THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO
THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES
HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
EXECUTED as of the date first written above.
COMPANY AND HAGGAR:
HAGGAR CLOTHING CO,. A Nevada corporation
HAGGAR CORP., a Nevada corporation
By: /s/ X.X. XXXXXX, III
--------------------------------------
X.X. XXXXXX, III
Chief Executive Officer for both
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 13 of 16
AGENT:
THE CHASE MANHATTAN BANK,
Individually and as the Agent
By: /s/ XXXXX X. XXXX
-------------------------------------------------
Name: XXXXX X. XXXX, VICE PRESIDENT
------------------------------------------
Title: THE CHASE MANHATTAN BANK
------------------------------------------
BANKS:
BANK OF AMERICA, N.A. (successor in interest by merger
to NATIONSBANK, N.A. f/k/a Nationsbank of Texas, N.A.)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
COMERICA BANK - TEXAS
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., Dallas office
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANK ONE, N.A. (successor in interest to The First
National Bank)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - PAGE 14 OF 16
AGENT:
THE CHASE MANHATTAN BANK,
Invidually and as the Agent
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANKS:
BANK OF AMERICA, N.A. (successor in interest by merger
to NATIONSBANK, N.A. f/k/a Nationsbank of Texas, N.A.)
By: /s/ XXXXXXX X. XXXXX
-------------------------------------------------
Name: XXXXXXX X. XXXXX
------------------------------------------
Title: PRINCIPAL
------------------------------------------
COMERICA BANK - TEXAS
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., Dallas office
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANK ONE, N.A. (successor in interest to The First
National Bank)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - PAGE 14 OF 16
AGENT:
THE CHASE MANHATTAN BANK,
Individually and as the Agent
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANKS:
BANK OF AMERICA, N.A. (successor in interest by merger
to NATIONSBANK, N.A. f/k/a Nationsbank of Texas, N.A.)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
COMERICA BANK - TEXAS
By: /s/ Xxxxxxxxx Xxxxxx
-------------------------------------------------
Name: Xxxxxxxxx Xxxxxx
------------------------------------------
Title: Corporate Banking Officer
------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., Dallas office
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANK ONE, N.A. (successor in interest to The First
National Bank)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - PAGE 14 OF 16
AGENT:
THE CHASE MANHATTAN BANK,
Individually and as the Agent
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANKS:
BANK OF AMERICA, N.A. (successor in interest by merger
to NATIONSBANK, N.A. f/k/a Nationsbank of Texas, N.A.)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
COMERICA BANK - TEXAS
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., Dallas office
By: /s/ X. Xxxxxxx
-------------------------------------------------
Name: X. Xxxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANK ONE, N.A. (successor in interest to The First
National Bank)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - PAGE 14 OF 16
AGENT:
THE CHASE MANHATTAN BANK,
Individually and as the Agent
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANKS:
BANK OF AMERICA, N.A. (successor in interest by merger
to NATIONSBANK, N.A. f/k/a Nationsbank of Texas, N.A.)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
COMERICA BANK - TEXAS
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD., Dallas office
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
BANK ONE, N.A. (successor in interest to The First
National Bank)
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------------
Title: Associate Director
------------------------------------------
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - PAGE 14 OF 16
NATIONAL CITY BANK, KENTUCKY (f/k/a The First National
Bank of Louisville)
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------------
Title: Account Officer
------------------------------------------
FIRST UNION NATIONAL BANK
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - PAGE 15 OF 16
NATIONAL CITY BANK, KENTUCKY (f/k/a The First National
Bank of Louisville)
By:
-------------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxx
------------------------------------------
Title: Vice President
------------------------------------------
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - PAGE 15 OF 16
JOINDER AND CONSENT OF DOMESTIC SUBSIDIARIES
--------------------------------------------
Each New Xxxxxx Subsidiary hereby assumes all the obligations of a
"Guarantor" under the Subsidiary Guaranty dated March 1, 2000 and agrees that
it is a "Guarantor" and bound as a "Guarantor" under the terms of the
Subsidiary Guaranty as if it had been an original signatory thereto. In
accordance with the foregoing and for valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each New Xxxxxx Subsidiary
irrevocably and unconditionally guarantees to the Agent and the Banks the full
and prompt payment and performance of the Obligations (as defined in the
Subsidiary Guaranty) upon the terms and conditions set forth in the Subsidiary
Guaranty. This Joinder and Consent of Domestic Subsidiaries shall be deemed to
be part of, and a modification to, the Subsidiary Guaranty and shall be
governed by all the terms and provisions of the Subsidiary Guaranty, which
terms are incorporated herein by reference, are ratified and confirmed and
shall continue in full force and effect as valid and binding agreements of each
New Xxxxxx Subsidiary enforceable against each such New Xxxxxx Subsidiary. Each
New Xxxxxx Subsidiary hereby waives notice of Agent's or any Bank's acceptance
of this Joinder and Consent of Domestic Subsidiaries. Each of the undersigned
Subsidiaries hereby (a) agrees that the Subsidiary Guaranty to which it is a
signatory is and shall remain in full force and effect; (b) ratifies and
confirms all terms and provisions of the Subsidiary Guaranty to which it is a
signatory, (c) acknowledges its consent and agreement to the Amendment,
including, without limitation, its agreement to the terms of Section 5.2 of
this Amendment, (d) reaffirms all agreements and obligations under the
Subsidiary Guaranty to which it is a signatory, with respect to the Loans, the
Notes, the Agreement and all other documents, instruments or agreements
governing, securing or pertaining to the Loans, and (f) represents and warrants
that all requisite corporate action necessary for it to execute this Joinder
and Consent of Domestic Subsidiaries has been taken.
BOWIE MANUFACTURING COMPANY, a Nevada corporation
CORSICANA COMPANY, a Nevada corporation
DALLAS PANT MANUFACTURING COMPANY, a Nevada corporation
GREENVILLE PANT MANUFACTURING COMPANY, a Nevada corporation
MCKINNEY PANT MANUFACTURING COMPANY, a Nevada corporation
OLNEY MANUFACTURING COMPANY, a Nevada corporation
WAXAHACHIE GARMENT COMPANY, a Nevada corporation
LA ROMANA MANUFACTURING CORPORATION, a Nevada corporation
HAGGAR SERVICES, INC., a Texas corporation
DUNCAN MANUFACTURING COMPANY, an Oklahoma corporation
WESLACO CUTTING, INC., a Nevada corporation
WESLACO SEWING, INC., a Nevada corporation
HAGGAR DIRECT, INC., a Nevada corporation
SAN XXXXXXX ENTERPRISES, INC., a Texas corporation
MULTIPLES, U.S.A., INC., a Texas corporation
EDINBURG DIRECT GARMENT COMPANY, INC., a Texas corporation
WESLACO DIRECT CUTTING COMPANY, INC., a Texas corporation
XXXXXX.XXX, INC., a Texas corporation
XXXXXX CLOTHING MANAGEMENT, INC., a Texas corporation
XXXXXX, LTD, a Texas limited partnership
HAGGAR CANADA, INC, a Nevada corporation
By: /s/ X. X. Xxxxxx, III
------------------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer of each Subsidiary
EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - PAGE 16 OF 16
INDEX OF SCHEDULES AND EXHIBITS
SCHEDULES:
---------
Schedule 3 - Subsidiaries
Schedule 3.1 - Assignment Detail
Schedule 3.6 - Address for Notices of Purchasing Banks
Schedule 8 - Commitments
EXHIBITS:
--------
Exhibit B - Borrowing Base Certificate
Exhibit G - Compliance Certificate
Exhibit H - Increased Commitment Supplement
INDEX OF SCHEDULES AND EXHIBITS - Solo Page
SCHEDULE 3
to
EIGHTH AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
SCHEDULE 3
SUBSIDIARIES
==============================================================================================
COMPANY NAME & ADDRESS SITUS OF INCORPORATION
==============================================================================================
----------------------------------------------------------------------------------------------
DOMESTIC
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Bowie Manufacturing Company
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Corsicana Company
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Dallas Pant Manufacturing Company
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Greenville Pant Manufacturing Company
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
McKinney Pant Manufacturing Company
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Olney Manufacturing Company
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Waxahachie Garment Company
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
La Romana Manufacturing Corporation
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Services, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Texas
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Xxxxxx Manufacturing Company
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Oklahoma
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Corp. (Parent)
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
==============================================================================================
SCHEDULE 3 - Page 1
==============================================================================================
COMPANY NAME & ADDRESS SITUS OF INCORPORATION
==============================================================================================
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Clothing Co.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Weslaco Sewing, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Weslaco Cutting, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Direct, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
San Xxxxxxx Enterprises, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Texas
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Multiples, U.S.A., Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Texas
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Edinburg Direct Garment Company, Inc.
0000 X. Xxxxxx Xxxxxxxx, Xxxxxxxx, XX 00000 Texas
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Weslaco Direct Cutting Company, Inc.
0000 X. Xxxxxx Xxxxxx, Xxxxxxx, XX 00000 Texas
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Xxxxxx.Xxx, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Texas
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Xxxxxx Clothing Management, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Texas
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Xxxxxx, Ltd.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Texas
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Canada, Inc.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Nevada
==============================================================================================
SCHEDULE 3 - Page 2
==============================================================================================
COMPANY NAME & ADDRESS SITUS OF INCORPORATION
==============================================================================================
----------------------------------------------------------------------------------------------
FOREIGN
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Mex. S.A. de C.V.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Mexico
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Apparel Ltd.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 United Kingdom
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Canada Co.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Xxxx Xxxxxx, Xxxxxx
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Haggar Japan Co., Ltd.
0000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 Japan
==============================================================================================
SCHEDULE 3 - Page 3
SCHEDULE 3.1
to
EIGHTH AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
ASSIGNMENT DETAIL
======================================================================================================
Dollar
Selling Bank Purchasing Bank Amount of Purchase Price
Commitment
Purchased(1)
======================================================================================================
The Bank of Tokyo-Mitsubishi,
1. Ltd. The Chase Manhattan Bank $ 2,222,222.22 $ 1,111,111.11
Bank of America 2,222,222.22 1,111,111.11
Comerica 2,592,592.60 1,296,296.30
Bank One 7,777,777.78 3,888,888.88
------------------------------------------------------------------------------------------------------
2. National City Bank, Kentucky First Union National Bank 11,111,111.12 5,555,555.56
======================================================================================================
----------------------------
(1) The "Dollar Amount of the Commitment Purchased" of each Purchasing Bank set
forth in this column is provided for the purposed of the calculation of the
Purchase Price for the assignments contemplated by Article 3 of this Amendment.
The actual total Commitment of a Purchasing Bank is immediately reduced or
otherwise modified to the Commitment amounts reflected on Schedule 8 and no
Purchasing Bank shall have any obligation to extend credit except under its
Commitment as set forth on Schedule 8.
SCHEDULE 3.1 - Solo Page
SCHEDULE 3.6
to
EIGHTH AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
ADDRESS FOR NOTICES
BANK ADDRESS
First Union National Bank One South Penn Square, 00xx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn.: Xxxxx Xxxxxx
SCHEDULE 3.6 - Solo Page
SCHEDULE 8
to
EIGHTH AMENDMENT
TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
COMMITMENTS
=================================================================================================
BANK COMMITMENT
=================================================================================================
1. The Chase Manhattan Bank $22,000,000
-------------------------------------------------------------------------------------------------
2. Bank of America, N.A. $22,000,000
-------------------------------------------------------------------------------------------------
3. Comerica Bank - Texas $19,000,000
-------------------------------------------------------------------------------------------------
4. Bank One, N.A. $17,000,000
-------------------------------------------------------------------------------------------------
5. First Union National Bank $10,000,000
=================================================================================================
$90,000,000.00
==============================================
SCHEDULE 8 - Solo Page
EXHIBIT B
BORROWING BASE CERTIFICATE
(for the month ending ___________________ or as of ____________________)
HAGGAR CLOTHING CO.
TO: THE CHASE MANHATTAN BANK
0000 Xxxx Xxxxxx
X.0. Xxx 000000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxx
DATE: _____________________, 200_
RE: First Amended and Restated Credit Agreement dated as of September 18,
1996 (as amended, the "Agreement"), by and among Haggar Clothing Co.,
Haggar Corp., Texas Commerce Bank National Association (now The Chase
Manhattan Bank) and the Banks listed in the Agreement.
--------------------------------------------------------------------------------
1. RECEIVABLES
A. Total Receivables $________________
B. LESS:
(i) Receivables unpaid after 90 days ($__________)
after date of invoice (or the effective
date of Dated Invoices)
(ii) all uncollectible Receivables ($__________)
(iii) reserve for "discounts ($__________)
(iv) reserve for "build-ups" ($__________)
(v) reserve for "deductions" ($__________)
(vi) reserve for GMI discounts ($__________)
(vii) other reserves ($__________)
C. Total Eligible Receivables $________________
D. 80% of Eligible Receivables $________________
EXHIBIT B, Page 1 of 3
2. INVENTORY
A. Total Inventory per attached summary schedule $________________
B. Less: ineligible Inventory ($__________)
C. Total Eligible Inventory $________________
D. 50% of Eligible Inventory $________________
3. BORROWING BASE
A. (i) 80% of Eligible Receivables $________________
(ii) 50% of Eligible Inventory $________________
B. Borrowing Base Formula Sum $________________
C. Less: amount by which (A)(ii) is greater than ($__________)
60% of the Total Commitments
D. Borrowing Base $________________
4. BORROWING BASE AVAILABILITY
A. Borrowing Base $________________
B. Less: Principal amount outstanding under the ($__________)
Agreement
C. Borrowing Base Availability $________________
5. AVAILABLE COMMITMENT
A. Total Commitments $100,000,000*
B. Less:
(i) Principal amount outstanding under the ($__________)
Agreement
(ii) aggregate amount of all issued and ($__________)
outstanding Letters of Credit
C. Available Commitment $________________
6. AVAILABILITY
-------------------------------
* Subject to reduction as provided in the Agreement
EXHIBIT B, Page 2 of 3
A. Borrowing Base Availability $________________
B. Available Commitment $________________
C. Lesser of A or B $________________
I hereby certify that, to the best of my knowledge after appropriate
inquiry, the foregoing is true and correct as of the last day of the month
indicated.
HAGGAR CLOTHING CO.
By:
---------------------------------------
Name
-------------------------------
Title:
-------------------------------
EXHIBIT B, Page 3 of 3
EXHIBIT G
COMPLIANCE CERTIFICATE
As of the date indicated below, the undersigned hereby certifies that (i)
as reflected on the attached annexes, no Default or Unmatured Default (as
defined in the Credit Agreement) has occurred and is continuing under that
certain First Amended and Restated Credit Agreement (as amended, the "Credit
Agreement") among Haggar Clothing Co.,
Haggar Corp., Texas Commerce Bank
National Association (now The Chase Manhattan Bank) and the Banks listed
therein, and (ii) the value of all Inventory (as defined in the Credit
Agreement) as reflected in the Company's financial statements does not exceed
its net realizable value.
HAGGAR CLOTHING CO.
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
Dated:
----------------------------
Compliance Certificate - Cover Page
ANNEX TO COMPLIANCE CERTIFICATE
REQUIREMENT REQUIRED LEVEL CURRENT STATUS COMPLIANCE
----------- -------------- -------------- ----------
Fixed Charge 1.25 to 1.00 to 1.00 Yes No
------
Funded Debt Ratio 3.00 to 1.00 to 1.00 Yes No
------
Net Worth Company Group: $
--------------
10% of the Net Worth of the
Company Group $
--------------
(a) $120,000,000; $
------------
(b) Plus 50% of the cumulative net $
income of the Company Group, ------------
on a consolidated basis, for the
period commencing April 1, 2001
and ending June 30, 2001, and
each subsequently completed
fiscal quarter; and
(c) PLUS (66-2/3%) of the net $
proceeds from any registered ------------
public offering of the capital stock
of Haggar or the Company (if
any).
(d) Required Tangible Net Worth of
the Company:
Sum of (a)(b) and (c) $ Yes No
------------
Net Worth Company $ 40,000,000 $ Yes No
--------------
Inventory Turns 2.0 -------------- Yes No
Actual Capital Expenditures for
current fiscal year (not to exceed 10%
of the Net Worth of the Company
Group as set forth above). $ $
------------ --------------
Yes No
---
ANNEX TO COMPLIANCE CERTIFICATE - Page 1 of 6
ANNEX TO COMPLIANCE CERTIFICATE
HAGGAR CORP.
FIXED CHARGE RATIO
12 MONTHS ENDED __________, 200_
($000'S)
Qtr. Qtr. Qtr. Qtr. 12 Months Ended
Net Income
- Gains + Losses Cap
Extr Event
+ Depreciation and Amortization
+ Interest Expense
+ Taxes (exclusive of the tax
effects relating to the closing of the
Edinburg facility and the operations
in Japan)
+ Japan + Edinburg Charges
(not to exceed $14,300,000
after tax or $20,800,000 before
tax)
Total = Operating Cash Flow
- Taxes (exclusive of the tax
effects relating to the closing of the
Edinburg facility and the operations
in Japan)
----------------------------------------------------------------
Total Operating Cash Flow minus $ $ $ $ $
tax
Interest Expense
Req. Principal Payments
Cash Dividends
Maintenance Capital Expenditure
($5,000,000)
----------------------------------------------------------------
Total Fixed Charges $ $ $ $ $
Fixed Charge Ratio
Fixed Charges/Cash Flow to 1.0
--------------
ANNEX TO COMPLIANCE CERTIFICATE - Page 2 of 6
ANNEX TO COMPLIANCE CERTIFICATE
HAGGAR CORP.
FUNDED DEBT RATIO
12 MONTHS ENDED ______________
($000'S)
Funded Debt
-----------
Revolver $
---------------
Industrial Revenue Bonds + $
---------------
other notes $
---------------
other long term indebtedness $
(excluding Guarantees) ---------------
Subtotal $
---------------
Other short term indebtedness $
(excluding Guarantees) ---------------
Total Funded Indebtedness $ $
---------------
Operating Cash Flow
-------------------
net income $
---------------
-Gains/+Losses Cap/Extr Event $
---------------
+Depreciation and Amortization $
---------------
+ Interest Expense $
---------------
+Taxes (exclusive of the tax effects $
relating to the closing of the Edinburg ---------------
facility and the operations in Japan)
+Japan + Edinburg Charges $
(not to exceed $14,300,000 after tax or ---------------
$20,800,000 before tax)
Operating Cash Flow $
---------------
Funded Debt/Operating Cash Flow to 1.00
---------------
ANNEX TO COMPLIANCE CERTIFICATE - Page 3 of 6
ANNEX TO COMPLIANCE CERTIFICATE
HAGGAR CORP.
INVENTORY TURNS ANALYSIS
($000'S)
PRIOR 12 MONTHS' COST OF SALES
3rd Prior Quarter
-------------------- $
-------------------- $
-------------------- $
--------------
Total $
2nd Prior Quarter
-------------------- $
-------------------- $
-------------------- $
--------------
Total $
Prior Quarter
-------------------- $
-------------------- $
-------------------- $
--------------
Total $
Current Quarter
-------------------- $
-------------------- $
-------------------- $
--------------
Total $
Total 12 Months
Cost of Sales
Current Inventory Level, _________, 200_
Inventory Turns
Rolling 12 Months, _________, 200_
Total 12 Months Cost of Sales/
Current Inventory Level $
ANNEX TO COMPLIANCE CERTIFICATE - Page 4 of 6
ANNEX TO COMPLIANCE CERTIFICATE
STANDBY
LETTERS OF CREDIT OUTSTANDING
__________, 200_
ISSUER LC# Maturity Amount
$
----------------
$
----------------
Total $
----------------
ANNEX TO COMPLIANCE CERTIFICATE - Page 5 of 6
ANNEX TO COMPLIANCE CERTIFICATE
PERMITTED INDEBTEDNESS
Compliance
(a) Commercial Letters of Credit
($45,000,000 permitted) $ Yes No
---------------
(b) Standby Letters of Credit (other than those
issued by the Agent)
($2,000,000 permitted) $ Yes No
---------------
(c) Share Repurchase Obligations Severance
($2,500,000 permitted)
$10,000,000 total permitted $ Yes No
---------------
(d) Indebtedness and Capitalized Lease Obligations
(permitted: $2,000,000 plus $2,000,000 x # of
fiscal years since 9/30/97)) $ Yes No
---------------
(e) Intercompany Indebtedness (no limit on
amount) $ N/A
---------------
(f) Accounts payable to officers, directors (no limit
on amount) $ N/A
---------------
(g) Guarantees (no limit on amount) $
---------------
(h) Guarantees (Haggar Direct less than one years
rental) (no limit on amount) $
Guarantees (Haggar Direct exceeding one years ---------------
rental)
($6,000,000 permitted through Termination
Date) $ Yes No
---------------
(i) Obligations $100,000,000
(j) Additional senior unsecured promissory notes
with maturities after the Termination Date $
($35,000,000 permitted) ---------------
Yes No
---------------
ANNEX TO COMPLIANCE CERTIFICATE - Page 6 of 6
EXHIBIT H
INCREASED COMMITMENT SUPPLEMENT
INCREASED COMMITMENT SUPPLEMENT
This INCREASED COMMITMENT SUPPLEMENT (this "Supplement") is dated as of
____________, ___ and entered into among HAGGAR CLOTHING CO. ("COMPANY"), each
of the banks which are party hereto (individually a "BANK" and collectively, the
"BANKS") and THE CHASE MANHATTAN BANK, (successor-by-merger to Chase Bank of
Texas, National Association who was formerly Texas Commerce Bank National
Association) as agent (in such capacity as agent, together with its successors
in such capacity, the "AGENT") and is made with reference to that certain First
Amended and Restated Credit Agreement dated as of September 18, 1996 (as
amended, the "Credit Agreement"), by and among the Company,
HAGGAR CORP, the
banks named therein and the Agent. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
RECITALS
WHEREAS, pursuant to SECTION 2.16 of the Credit Agreement, the Company, the
Agent and the Banks are entering into this Increased Commitment Supplement to
provide for the increase of the aggregate Commitments;
WHEREAS, each Bank [PARTY HERETO AND ALREADY A PARTY TO THE CREDIT
AGREEMENT] wishes to increase its Commitment [, AND EACH BANK, TO THE EXTENT NOT
ALREADY A BANK PARTY TO THE CREDIT AGREEMENT (HEREIN A "NEW BANK"), WISHES TO
BECOME A BANK PARTY TO THE CREDIT AGREEMENT];(1)
WHEREAS, the Banks are willing to agree to supplement the Credit Agreement
in the manner provided herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. INCREASE IN COMMITMENTS. Subject to the terms and conditions
hereof, each Bank severally agrees that its Commitment shall be increased to [OR
IN THE CASE OF A NEW BANK, SHALL BE] the amount set forth opposite its name on
the signature pages hereof.
SECTION 2. [NEW BANKS. EACH NEW BANK (i) CONFIRMS THAT IT HAS RECEIVED A
COPY OF THE CREDIT AGREEMENT, TOGETHER WITH COPIES OF THE MOST RECENT FINANCIAL
STATEMENTS OF THE COMPANY DELIVERED UNDER SECTION 6.1 AND SUCH OTHER DOCUMENTS
AND INFORMATION AS IT HAS DEEMED APPROPRIATE TO MAKE ITS OWN CREDIT ANALYSIS AND
DECISION TO ENTER INTO THIS SUPPLEMENT; (ii) AGREES THAT IT HAS, INDEPENDENTLY
AND WITHOUT RELIANCE UPON THE AGENT, ANY OTHER BANK PARTY TO THE CREDIT
AGREEMENT OR ANY OF THEIR RESPECTIVE AFFILIATES AND BASED ON SUCH DOCUMENTS AND
INFORMATION AS IT HAS DEEMED APPROPRIATE, MADE ITS OWN CREDIT ANALYSIS AND
DECISION TO ENTER INTO THIS SUPPLEMENT; (iii) AGREES THAT IT WILL, INDEPENDENTLY
AND WITHOUT RELIANCE UPON THE AGENT, ANY OTHER BANK PARTY TO THE CREDIT
AGREEMENT OR ANY OF THEIR RESPECTIVE AFFILIATES AND BASED ON SUCH DOCUMENTS AND
INFORMATION AS IT SHALL DEEM
--------------------------
(1)Bracketed alternatives should be included if there are New Banks.
INCREASED COMMITMENT SUPPLEMENT - Page 1 of 4
APPROPRIATE AT THE TIME, CONTINUE TO MAKE ITS OWN CREDIT DECISIONS IN TAKING OR
NOT TAKING ACTION UNDER THE CREDIT AGREEMENT; (iv) APPOINTS AND AUTHORIZES THE
AGENT TO TAKE SUCH ACTION AS AGENT ON ITS BEHALF AND TO EXERCISE SUCH POWERS AND
DISCRETION UNDER THE CREDIT AGREEMENT AS ARE DELEGATED TO THE AGENT BY THE TERMS
THEREOF, TOGETHER WITH SUCH POWERS AND DISCRETION AS ARE REASONABLY INCIDENTAL
THERETO; AND (v) AGREES THAT IT IS A "BANK" UNDER THE CREDIT AGREEMENT AND WILL
PERFORM IN ACCORDANCE WITH THEIR TERMS ALL OF THE OBLIGATIONS THAT BY THE TERMS
OF THE CREDIT AGREEMENT ARE REQUIRED TO BE PERFORMED BY IT AS A BANK.
Section 3. CONDITIONS TO EFFECTIVENESS. SECTION 1 of this Supplement
shall become effective only upon the satisfaction of the following conditions
precedent:
(a) receipt by the Agent of certified copies of all corporate action
taken by the Company to authorize the execution, delivery and performance
of this Supplement; and
(b) receipt by the Agent of a certificate of the Secretary or an
Assistant Secretary of the Company certifying the names and true
signatures of the officers of the Company authorized to sign this
Supplement and the other documents to be delivered hereunder.
Section 4. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks to
enter into this Supplement and to supplement the Credit Agreement in the manner
provided herein, Company represents and warrants to Agent and each Bank that (a)
the representations and warranties contained in ARTICLE 5 of the Credit
Agreement are and will be true, correct and complete in all material respects on
and as of the effective date hereof to the same extent as though made on and as
of that date (except for such representations and warranties limited by their
terms to a specific date) and for that purpose, this Supplement shall be deemed
to be the Agreement referred to therein, and (b) no event has occurred and is
continuing or will result from the consummation of the transactions contemplated
by this Supplement that would constitute a Default or Unmatured Default.
Section 5. EFFECT OF SUPPLEMENT. The terms and provisions set forth in
this Supplement shall modify and supersede all inconsistent terms and provisions
set forth in the Credit Agreement and except as expressly modified and
superseded by this Supplement, the terms and provisions of the Credit Agreement
are ratified and confirmed and shall continue in full force and effect. The
Company, the Agent, and the Banks agree that the Credit Agreement as
supplemented hereby and the other Loan Documents shall continue to be legal,
valid, binding and enforceable in accordance with their respective terms. Any
and all agreements, documents, or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the Credit
Agreement as supplemented hereby, are hereby amended so that any reference in
such documents to the Credit Agreement shall mean a reference to the Credit
Agreement as supplemented hereby.
Section 6. APPLICABLE LAW. This Supplement shall be governed by, and
construed in accordance with, the laws of the State of Texas and applicable
laws of the United States of America.
Section 7. COUNTERPARTS, EFFECTIVENESS. This Supplement may be executed in
any number of counterparts, by different parties hereto in separate counterparts
and on telecopy counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute but
one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Supplement (other than
the provisions of SECTION 1 hereof, the effectiveness of which is governed by
SECTION 3 hereof) shall become effective upon the execution of a counterpart
hereof by the Company, the Banks and receipt by the Company and the Agent of
written or telephonic notification of such execution and authorization of
delivery thereof.
INCREASED COMMITMENT SUPPLEMENT - Page 2 of 4
Section 8. ENTIRE AGREEMENT. THIS SUPPLEMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDES
ANY AND ALL PREVIOUS COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF
AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
HAGGAR CLOTHING CO., a Nevada corporation
By:
-----------------------------------
J. M Haggar, III
Chief Executive Officer
New Total Commitment:
$ THE CHASE MANHATTAN BANK,
------------------- Individually and as the Agent
By:
-----------------------------------
Xxxxx Xxxx, Vice President
$ [BANK]
--------------------------
By:
------------------------------
Name:
----------------------
Title:
----------------------
$ [NEW BANK]
--------------------------
By:
------------------------------
Name:
----------------------
Title:
----------------------
Each of the undersigned Guarantors hereby (a) agrees that the Subsidiary
Guaranty or Parent Guaranty to which it is a signatory is and shall remain in
full force and effect; (b) ratifies and confirms all terms and provisions of the
Subsidiary Guaranty or Parent Guaranty to which it is a signatory, (c)
acknowledges its consent and agreement to the Supplement, (d) reaffirms all
agreements and obligations under the Subsidiary Guaranty or Parent Guaranty to
which it is a signatory, with respect to the Loans, the Notes, the Credit
Agreement (as
INCREASED COMMITMENT SUPPLEMENT - Page 3 of 4
modified by this Supplement) and all other documents, instruments or agreements
governing, securing or pertaining to the Loans, and (f) represents and warrants
that all requisite corporate action necessary for it to execute this Supplement
has been taken.
HAGGAR CORP., a Nevada corporation
BOWIE MANUFACTURING COMPANY, a Nevada corporation
CORSICANA COMPANY, a Nevada corporation
DALLAS PANT MANUFACTURING COMPANY, a Nevada corporation
GREENVILLE PANT MANUFACTURING COMPANY, a Nevada corporation
XXXXXXXX PANT MANUFACTURING COMPANY, a Nevada corporation
OLNEY MANUFACTURING COMPANY, a Nevada corporation
WAXAHACHIE GARMENT COMPANY, a Nevada corporation
LA ROMANA MANUFACTURING CORPORATION, a Nevada corporation
HAGGAR SERVICES, INC., a Texas corporation
DUNCAN MANUFACTURING COMPANY, an Oklahoma corporation
WESLACO CUTTING, INC., a Nevada corporation
WESLACO SEWING, INC., a Nevada corporation
HAGGAR DIRECT, INC., a Nevada corporation SAN
XXXXXXX ENTERPRISES, INC., a Texas corporation
MULTIPLES, U.S.A., INC., a Texas corporation
EDINBURG DIRECT GARMENT COMPANY, INC., a Texas corporation
WESLACO DIRECT CUTTING COMPANY, INC., a Texas corporation
XXXXXX.XXX, INC., a Texas corporation
XXXXXX CLOTHING MANAGEMENT, INC., a Texas corporation
XXXXXX, LTD, a Texas limited partnership
HAGGAR CANADA, INC, a Nevada corporation
By:
------------------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer of each Subsidiary
INCREASED COMMITMENT SUPPLEMENT - Page 4 of 4
