EXHIBIT 4-C-4
HARTMARX CORPORATION
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of August 9, 2001 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 Section 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). Unless otherwise
indicated, Section and subsection references contained herein shall be to
the corresponding Sections and subsections of the Credit Agreement.
RECITALS
WHEREAS, Borrower has requested that Requisite Lenders amend
certain provisions of the Credit Agreement to extend the date by which
Borrower may make the CAG Acquisition from July 15, 2001 to August 15,
2001;
WHEREAS, Borrower and Requisite Lenders desire, subject to the
terms and conditions set forth herein, to amend the Credit Agreement to (i)
extend the date by which Borrower may make the CAG Acquisition from July
15, 2001 to August 15, 2001, and (ii) make certain other amendments as set
forth below;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto
agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Definitions
-------------------------------------
Subsection 1.1 of the Credit Agreement is hereby amended by
deleting "July 11, 2001" appearing in the definition of "CAG Acquisition"
and substituting "August 10, 2001" therefor.
1.2 Amendments to Section 7: Borrower's Negative Covenants
------------------------------------------------------
A. Subsection 7.4(xi) of the Credit Agreement is hereby amended by
deleting the phrase "Letter of Indemnity dated as of July 11, 2001" therein
and substituting "Letter of Indemnity dated on or about the date of the
consummation of the CAG Acquisition" therefor.
B. Subsection 7.7(v) of the Credit Agreement is hereby amended by
deleting "July 15, 2001" therein and substituting "August 15, 2001"
therefor.
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Fourth
Amendment Effective Date"):
A. On or before the Fourth Amendment Effective Date, Borrower shall
deliver to Lenders (or to Managing Agent for Lenders with sufficient
originally executed copies for each Lender and its counsel) executed copies
of this Amendment dated the Fourth Amendment Effective Date.
B. On or before the Fourth Amendment Effective Date, Managing Agent
and Requisite Lenders shall have delivered to Managing Agent an executed
original or telefacsimile of a counterpart of this Amendment.
Section 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment,
Borrower represents and warrants to Lenders that after giving effect to
this Amendment in the manner contemplated by Section 2 of this Amendment,
each of the following is true and correct:
(a) no event has occurred and is continuing which constitutes an
Event of Default or Potential Event of Default;
(b) the representations and warranties of Borrower and the other
Credit Parties contained in the Credit Agreement and the other
Loan Documents are true and correct on and as of the date
hereof and as of the Fourth Amendment Effective Date to the
same extent as though made on and as of the date hereof and as
of the Fourth Amendment Effective Date except to the extent
such representations and warranties specifically relate to an
earlier date, in which case they are true and correct in all
material respects as of such earlier date;
(c) each of Borrower and the other Credit Parties has performed all
agreements on its part to be performed prior to the date hereof
as set forth in the Credit Agreement and the other Loan
Documents;
(d) Borrower and the Guarantors have all requisite corporate power
and authority to enter into this Amendment, to consummate the
transactions contemplated by this Amendment and the
transactions contemplated by, and perform its obligations
under, the Credit Agreement and the other Loan Documents;
(e) the execution of this Amendment, and the consummation of the
transactions contemplated by this Amendment, have been duly
authorized by all necessary corporate action on the part of
Borrower and the Guarantors; and
(f) the execution and delivery by Borrower and the Guarantors of
this Amendment, and the consummation of the transactions
contemplated by this Amendment by Borrower and the Guarantor,
does not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to Borrower, the
Guarantors or any of their respective Subsidiaries, any
constating documents of Borrower, the Guarantors or any order,
judgment or decree of any court or other agency of government
binding on Borrower, the Guarantors or any or their respective
Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of Borrower, the Guarantors or
any of their respective Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the
properties or assets of Borrower, the Guarantors or any of
their respective Subsidiaries (other than any Liens created
under any of the Loan Documents in favor of Collateral Agent on
behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any
Contractual Obligation of Borrower, the Guarantors or any of
their respective Subsidiaries.
Section 4. GUARANTORS
Each of the Guarantors hereby consents to this Amendment and
agrees that each Loan Document to which it is a party shall continue in
full force and effect and shall be valid and enforceable and shall not be
impaired or affected by the execution of this Amendment and is hereby
ratified and confirmed.
Section 5. MISCELLANEOUS
5.1 References to and Effect on the Credit Agreement and Other Loan Documents
-------------------------------------------------------------------------
A. On and after the Fourth Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof" ,
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof", or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby;
B. Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed; and
C. The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of any
Agent or any Lender under, the Credit Agreement or any of the other Loan
Documents.
5.2 Fees and Expenses
-----------------
Borrower acknowledges that all costs, fees and expenses as
described in subsection 10.2 of the Credit Agreement incurred by Managing
Agent and its counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Borrower.
5.3 Headings
--------
Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose or be given any substantive effect.
5.4 Applicable Law
--------------
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
5.5 Counterparts
------------
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 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.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
BORROWER:
HARTMARX CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx, Executive Vice President
and Chief Financial Officer
GUARANTORS:
HMX Sportswear, Inc. (formerly known as
American Apparel Brands, Inc.)
Anniston Sportswear Corporation
Biltwell Company, Inc.
Briar, Inc.
CAG Acquisition Corp.
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.
Plaid Clothing Company, Inc.
Xxxxxx Sportswear Corporation
Robert's International Corporation
SALHOLD, Inc.
Seaford Clothing Co.
Society Brand, Inc.
Xxxxxx Surrey, Inc.
Tailored Trend, Inc.
Thorngate Uniforms, Inc.
Trade Finance International Limited
Universal Design Group, Ltd.
X. Xxxx & Company, Inc.
Winchester Clothing Company
Yorke Shirt Corporation
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
Vice President of each of the foregoing
LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
individually, as Managing Agent
and as Collateral Agent
By: /s/ Xxxxxxx X. XxXxx
---------------------------------------
Name: Xxxxxxx X. XxXxx
Title: Its Duly Authorized Signatory
THE BANK OF NEW YORK,
individually, as Co-Agent and as
Issuing Lender for the Letters of Credit
By: /s/ Xxxxxxxxx Xxxx Xxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxx Xxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
individually and as Co-Agent
By:
--------------------------------------
Name:
Title:
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/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Second Vice President
