Exhibit 4-C-9
EXECUTION COPY
HARTMARX CORPORATION
NINTH AMENDMENT
TO THE AMENDED AND RESTATED CREDIT AGREEMENT
This NINTH AMENDMENT TO THE AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of June 15, 2002 and entered into by and
among HARTMARX CORPORATION, a Delaware corporation ("Borrower"), the
LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to
as a "Lender" and collectively as "Lenders"), GENERAL ELECTRIC CAPITAL
CORPORATION, as Managing Agent and Collateral Agent for Lenders ("Managing
Agent"), and THE BANK OF NEW YORK and BANK OF AMERICA, N.A., as co-agents
(collectively, the "Co-Agents"), and, for purposes of Sections 3 and 4
hereof, the GUARANTORS IDENTIFIED ON THE SIGNATURE PAGES HEREOF
(collectively the "Guarantors"), and is made with reference to that certain
Amended and Restated Credit Agreement dated as of August 18, 1999 among
Borrower, Lenders, Managing Agent and Co-Agents (as amended, the "Credit
Agreement"; capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Credit Agreement).
RECITALS
WHEREAS, the Borrower has informed the Managing Agent of its plan
to continue to sell idle and non-operating manufacturing locations and
related machinery and equipment; and
WHEREAS, the Borrower has requested the Lenders to amend, and
subject to the terms and conditions of this Amendment the Lenders hereby
agree to amend, the restriction on Asset Sales set forth in Section 7.7(iv)
of the Credit Agreement to increase the Asset Sale basket from $1,500,000
to $1,750,000 for the period commencing June 15, 2002 through the end of
the Fiscal Year 2002 and for each Fiscal Year thereafter, and to increase
the amount for which Managing Agent's consent shall be required for
individual Asset Sales from $250,000 to $500,000.
NOW, THEREFORE, in consideration of the foregoing premises, the
terms and conditions stated herein and other valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the Borrower,
the Requisite Lenders and the Managing Agent, such parties hereby agree as
follows:
SECTION 1. Amendment to the Credit Agreement.
Subject to the satisfaction of each of the
conditions set forth in Section 2 of this Amendment, Section
7.7(iv) of the Credit Agreement is deleted and replaced in its
entirety with the following new Section 7.7(iv):
"(iv) Borrower and its Subsidiaries may make Asset Sales having a
net book value not in excess of $1,750,000 in the aggregate during
the period commencing on June 15, 2002 through the end of the
Fiscal Year 2002, and not in excess of such amount during any
Fiscal Year thereafter; provided that all of the total
consideration received shall be Cash or Cash Equivalents; provided
further that the proceeds of all such Asset Sales shall be applied
as required by subsection 2.4A(iii)(a) or as permitted under
subsection 6.15; provided further, that, for all purposes of this
Credit Agreement, any sale of real property by Borrower or any of
its Subsidiaries shall be deemed to be an Asset Sale and no
particular Asset Sale involving assets with a book value of more
than $500,000 shall be permitted without the consent of Managing
Agent; and"
SECTION 2. Effectiveness of the Amendment; Conditions Precedent.
The provisions of Section 1 of this Amendment shall become effective as of
the date hereof upon the Managing Agent's receipt of originally-executed
(or facsimiles of originally-executed) counterparts of this Amendment
executed and delivered by duly authorized officers of the Borrower, each
Guarantor and the Requisite Lenders.
SECTION 3. Representations and Warranties; Covenant.
The Borrower and each Guarantor hereby represents and warrants
that (i) this Amendment constitutes its legal, valid and binding
obligation, enforceable against each such party in accordance with its
terms and (ii) there is no consent, approval or other requirement known to
the Borrower or such Guarantor which could reasonably be expected to impair
or materially delay the Borrower's or such Guarantor's ability to perform
its obligations under this Amendment and (iii) no Default or Event of
Default exists and is continuing.
SECTION 4. Reaffirmation, Ratification and Acknowledgment. The
Borrower and each of the Guarantors hereby (i) ratifies and reaffirms all
of its payment and performance obligations, contingent or otherwise, and
each grant of security interests and liens in favor of the Managing Agent,
under each Loan Document to which it is a party, (ii) agrees and
acknowledges that such ratification and reaffirmation is not a condition to
the continued effectiveness of such Loan Documents, and (iii) agrees that
neither such ratification and reaffirmation, nor the Managing Agent's nor
any Lenders' solicitation of such ratification and reaffirmation,
constitutes a course of dealing giving rise to any obligation or condition
requiring a similar or any other ratification or reaffirmation from the
Borrower or the Guarantors with respect to any subsequent modifications
consent or waiver with respect to the Credit Agreement or other Loan
Documents. The Credit Agreement and each other Loan Document is in all
respects hereby ratified and confirmed and, neither the execution, delivery
nor effectiveness of this Amendment shall operate as a waiver of any
Default or Event of Default (whether or not known to the Managing Agent,
the Collateral Agent or any Lender) or any right, power or remedy of the
Managing Agent, the Collateral Agent or any Lender of any provision
contained in the Credit Agreement or any other Loan Document, whether as a
result of any Default or Event of Default or otherwise. This Amendment
shall constitute a "Loan Document" for purposes of the Credit Agreement.
SECTION 5. Miscellaneous.
(a) Execution in Counterparts; Governing Law. This Amendment may
be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which when taken together
shall constitute but one and the same instrument. This Amendment shall be
governed by and construed in accordance with the laws of the State of New
York.
(b) Section Titles. The section titles contained in this Amendment
are and shall be without substance, meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
(c) Managing Agent's Expense. The Borrower hereby agrees to
promptly reimburse the Managing Agent for all reasonable out-of-pocket
expenses, including, without limitation, attorneys' and paralegals fees, it
has heretofore or hereafter incurred or incurs in connection with the
preparation, negotiation and execution of this Amendment or any document,
instrument, agreement delivered pursuant to this Amendment.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER:
HARTMARX CORPORATION
By:
Xxxxx X. Xxxxxx, Executive Vice President and
Chief Financial Officer
GUARANTORS:
HMX Sportswear, Inc. (formerly known as
American Apparel Brands, Inc.)
Anniston Sportswear Corporation
Briar, Inc.
Consolidated Apparel Group, Inc.
C.M. Clothing, Inc.
C.M. Outlet Corp.
Chicago Trouser Company, Ltd.
Country Miss, Inc.
Country Suburbans, Inc.
Direct Route Marketing Corporation
E-Town Sportswear Corporation
Xxxxxxxx-Xxxxx, Inc.
Gleneagles, Inc.
Handmacher Fashions Factory Outlet, Inc.
Xxxxxxxxxx-Xxxxx, Inc.
Hartmarx International, Inc.
Xxxx Xxxxxxxxx & Xxxx
Xxxx Services, Inc.
Xxxx. Xxxxx Clothes, Inc.
TAG Licensing, Inc.
Xxxxxx-Xxxxxxx Co., Inc.
Xxxxxxx, Xxxxx & Xxxx, Inc.
Hoosier Factories, Incorporated
HSM University, Inc.
Intercontinental Apparel, Inc.
International Women's Apparel, Inc.
Xxxxxx-Xxxx, Inc.
JRSS, Inc.
Kuppenheimer Men's Clothiers
Dadeville, Inc.
Men's Quality Brands, Inc.
National Clothing Company, Inc.
106 Real Estate Corp.
Robert's International Corporation
SALHOLD, Inc.
Seaford Clothing Co.
Society Brand, Ltd.
Xxxxxx Surrey, Inc.
Tailored Trend, Inc.
Thorngate Uniforms, Inc.
Trade Finance International Limited
Universal Design Group, Ltd.
X. Xxxx & Company, Inc.
Winchester Clothing Company
Yorke Shirt Corporation
By:________________________________________
Xxxxx X. Xxxxxx
Vice President of each of the foregoing
LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
individually, as Managing Agent and as
Collateral Agent
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Duly Authorized Signer
THE BANK OF NEW YORK,
individually, as Co-Agent
and as Issuing Lender for
the Letters of Credit
By: /s/ XXXXX XXXXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
individually and as Co-Agent
By: /s/ XXXXX XXXXXXX
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ XXXXXXXXXXX XXXXX
-------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ XXXXXX X. XXXX
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ X. XXXXXXXX
-------------------------------------
Name: X. Xxxxxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ XXXXXX XXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
TRANSAMERICA BUSINESS CAPITAL
CORPORATION
By: /s/ XXX XXXXXXXX
-----------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President