NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(the "AMENDMENT"), dated as of January 9, 2002, (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 JPMORGAN CHASE BANK, (successor in interest by merger to The
Chase Manhattan Bank) 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, "Agent").
RECITALS:
A. 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.
B. 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.
ARTICLE 2.
AMENDMENT
Section 2.1. AMENDMENT TO SECTION 7.8(b) OF THE AGREEMENT. CLAUSE
(b) of SECTION 7.8 of the Agreement is amended and restated in its entirety to
read as follows:
(b) Permit the sum of the following to be or become less than
$40,000,000: (i) the Net Worth of the Company PLUS (ii) the lesser of
$20,000,000 or the actual aggregate amount of non-cash losses
(amortization) attributable to the impairment of the Company's
goodwill which were incurred and reported by the Company on its
financial statements during its fiscal quarter ending December 31,
2001 and which resulted from the Company's compliance with statement
number 142 of the Financial Accounting Standards Board.
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 1
ARTICLE 3.
MISCELLANEOUS
Section 3.1. 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 and
the other Loan Documents are ratified and confirmed and shall continue in full
force and effect.
Section 3.2. REPRESENTATIONS AND WARRANTIES. Company and Haggar
hereby represent and warrant to Agent and the Banks as follows: (a) after
giving effect to this Amendment, no Default exists; and (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 limited by their terms to a
specific date.
Section 3.3. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and no investigation by Agent or any
Bank or any closing shall affect the representations and warranties or the
right of Agent or any Bank to rely upon them.
Section 3.4. REFERENCE TO AGREEMENT. Each of the Loan Documents,
including the Agreement, are hereby amended so that any reference in such Loan
Documents to the Agreement shall mean a reference to the Agreement as amended
hereby.
Section 3.5. EXPENSES OF BANK. As provided in the Agreement,
Company agrees to pay on demand all costs and expenses incurred by Agent or
any Bank in connection with the preparation, negotiation, and execution of
this Amendment, including without limitation, the costs and fees of Agent's
and each Bank's legal counsel.
Section 3.6. 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 3.7. APPLICABLE LAW. This Amendment and all other Loan
Documents 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 3.8. SUCCESSORS AND ASSIGNS. This Amendment is binding upon
and shall inure to the benefit of Agent, each Bank, Company and Haggar and
their respective successors and assigns, except that neither Company or Haggar
may assign or transfer any of its rights or obligations hereunder without the
prior written consent of the Banks.
Section 3.9. 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 3.10. EFFECT OF WAIVER. No consent or waiver, express or
implied, by 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.
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 2
Section 3.11. HEADINGS. The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 3.12. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL,
ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES 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.
Section 3.13. REQUIRED BANKS. The Agreement may be modified as
provided in this Amendment with the agreement of the Required Banks which
means the Banks having sixty percent (60%) of the sum of (i) the aggregate
unpaid principal amount of the outstanding Loans plus (ii) the Letter of
Credit Exposure (such percentage applicable to a Bank, herein such Bank's
"REQUIRED BANK PERCENTAGE"). For purposes of determining the effectiveness of
this Amendment, each Bank's Required Bank Percentage is set forth on SCHEDULE
3.13 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
AGENT:
JPMORGAN CHASE BANK (successor in interest
by merger to THE CHASE MANHATTAN BANK),
Individually and as Agent
By:
--------------------------------------
Name:
-------------------------------
Title:
-------------------------------
BANKS:
BANK OF AMERICA, N.A.
By:
--------------------------------------
Name:
-------------------------------
Title:
-------------------------------
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 3
Section 3.11. HEADINGS. The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 3.12. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL,
ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES 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.
Section 3.13. REQUIRED BANKS. The Agreement may be modified as
provided in this Amendment with the agreement of the Required Banks which
means the Banks having sixty percent (60%) of the sum of (i) the aggregate
unpaid principal amount of the outstanding Loans plus (ii) the Letter of
Credit Exposure (such percentage applicable to a Bank, herein such Bank's
"REQUIRED BANK PERCENTAGE"). For purposes of determining the effectiveness of
this Amendment, each Bank's Required Bank Percentage is set forth on SCHEDULE
3.13 hereto.
EXECUTED as of the date first written above.
COMPANY AND HAGGAR:
HAGGAR CLOTHING CO., a Nevada corporation
HAGGAR CORP., a Nevada corporation
By:
------------------------------------------
X.X. Xxxxxx, III
Chief Executive Officer for both
AGENT:
JPMORGAN CHASE BANK (successor in interest
by merger to THE CHASE MANHATTAN BANK),
Individually and as Agent
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx, Vice President
-----------------------------------
Title: JPMorgan Chase Bank
-----------------------------------
BANKS:
BANK OF AMERICA, N.A.
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 3
Section 3.11. HEADINGS. The headings, captions, and arrangements
used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
Section 3.12. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL,
ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES 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.
Section 3.13. REQUIRED BANKS. The Agreement may be modified as
provided in this Amendment with the agreement of the Required Banks which
means the Banks having sixty percent (60%) of the sum of (i) the aggregate
unpaid principal amount of the outstanding Loans plus (ii) the Letter of
Credit Exposure (such percentage applicable to a Bank, herein such Bank's
"REQUIRED BANK PERCENTAGE"). For purposes of determining the effectiveness of
this Amendment, each Bank's Required Bank Percentage is set forth on SCHEDULE
3.13 hereto.
EXECUTED as of the date first written above.
COMPANY AND HAGGAR:
HAGGAR CLOTHING CO., a Nevada corporation
HAGGAR CORP., a Nevada corporation
By:
------------------------------------------
X.X. Xxxxxx, III
Chief Executive Officer for both
AGENT:
JPMORGAN CHASE BANK (successor in interest
by merger to THE CHASE MANHATTAN BANK),
Individually and as Agent
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
BANKS:
BANK OF AMERICA, N.A.
By: /s/ [ILLEGIBLE]
------------------------------------------
Name: [ILLEGIBLE]
-----------------------------------
Title: Principal
-----------------------------------
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 3
COMERICA BANK-TEXAS
By: /s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxxx
-----------------------------------
Title: Commercial Banking Officer
-----------------------------------
BANK ONE, N.A.
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
FIRST UNION NATIONAL BANK
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 4
COMERICA BANK-TEXAS
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
BANK ONE, N.A.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title: Vice President
-----------------------------------
FIRST UNION NATIONAL BANK
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 4
COMERICA BANK-TEXAS
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
BANK ONE, N.A.
By:
------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Assistant Vice President
-----------------------------------
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT - Page 4
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; (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 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
XXXXXXX CLOTHING MANAGEMENT, INC., a Texas corporation
XXXXXXX 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
CONSENT, Solo Page
SCHEDULE 3.13
to
HAGGAR CORP.
NINTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
REQUIRED BANK PERCENTAGE
===============================================================================
BANKS AGREEING TO NINTH
AMENDMENT (INSERT % FROM
PRIOR COLUMN IF BANK SIGNS
REQUIRED BANK NINTH AMENDMENT THEN TOTAL
BANK PERCENTAGE HELD % IN THIS COLUMN)
===============================================================================
JPMorgan Chase Bank 24.44444 24.44444
-------------------------------------------------------------------------------
Bank of America, N.A. 24.44444 24.44444
-------------------------------------------------------------------------------
Comerica Bank - Texas 21.11111 21.11111
-------------------------------------------------------------------------------
Bank One, N.A. 18.88889 18.88889
-------------------------------------------------------------------------------
First Union National Bank 11.11111 11.11111
-------------------------------------------------------------------------------
TOTAL 100.00% 100.00%
===============================================================================
SCHEDULE 3.13, Solo Page