Exhibit 4-C-2
EXECUTION
HARTMARX CORPORATION
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is dated as of February 28, 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, BANK OF AMERICA, N.A. and BANK ONE as co-agents (collectively, the "Co-
Agents") and, for purposes of Section 3 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 permit Borrower to finance certain real
properties located in Illinois and Indiana;
WHEREAS, Borrowers and Requisite Lenders desire, subject to the terms and
conditions set forth herein, to (i) amend the Credit Agreement to permit the
Illinois Real Estate Financing (as defined below) and the Indiana Real Estate
Financing (as defined below) pursuant to the Credit Agreement, and (ii) to make
certain other amendments to the Credit Agreement 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
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(a) Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
"Illinois Special Purpose LLC" means HSM Real Estate LLC, a Delaware limited
liability company and wholly owned indirect subsidiary of Borrower.
"Illinois Real Estate Financing" means that certain Loan Agreement between
Illinois Special Purpose LLC and Bank of America, N.A.(and its successors and
assigns) and all mortgages, deeds of trust and other agreements executed in
connection therewith in substantially the form delivered to Managing Agent prior
to February 28, 2001, the "Illinois Loan Documents"); provided that in no event
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shall the principal amount of the Illinois Real Estate Financing exceed
$9,500,000 or be secured by any assets other than the Premises, the Rents and
Profits and the Intangible Personalty (each as defined in the Mortgage executed
in connection with such loan agreement substantially in the form delivered to
the Managing Agent prior to February 28, 2001), it being further understood that
the Illinois Real Estate Financing shall be deemed to be Refinancing
Indebtedness approved by Managing Agent and Requisite Lenders for purposes of
the Credit Agreement to the extent the proceeds thereof have been applied to
repay the Senior Subordinated Notes.
"Indiana Real Estate Financing" means that certain promissory note (in
substantially the form delivered to Managing Agent prior to February 28, 2001,
the "Indiana Promissory Note") issued by Borrower in favor of General Electric
Capital Business Asset Funding Corporation ("GECC") (and its successors and
assigns), that certain Guaranty by Jaymar Ruby, Inc. in favor of GECC (in
substantially the form delivered to Managing Agent prior to February 28, 2001,
the "Guaranty") and all mortgages, deeds of trust and other agreements executed
in connection therewith in substantially the form delivered to the Managing
Agent prior to the Second Amendment Effective Date, as amended from time to
time; provided that in no event shall the principal amount of the Indiana Real
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Estate Financing exceed $9,375,000 or be secured by Borrower or any assets other
than the Property (as defined in the mortgage securing such Indiana Promissory
Note substantially in the form delivered to the Managing Agent prior to February
28, 2001), it being further understood that the Indiana Real Estate Financing
shall be deemed to be Refinancing Indebtedness approved by Managing Agent and
Requisite Lenders for purposes of the Credit Agreement to the extent the
proceeds thereof have been applied to repay the Senior Subordinated Notes.
(b) Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Refinancing Indebtedness" in its entirety and substitute the
following therefor:
""Refinancing Indebtedness" means unsecured senior, senior
subordinated or subordinated Indebtedness of the Borrower, in an aggregate
principal amount of up to $125,000,000, the proceeds of which are used, to
refinance all or a portion of the Senior Subordinated Notes, other Refinancing
Indebtedness and/or repay the Loans to the extent required hereunder, and to pay
fees, penalties, premiums and expenses related to the foregoing, the terms and
conditions of such
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Indebtedness to be in form and substance satisfactory to Managing Agent and
Requisite Lenders; provided that, notwithstanding anything herein to the
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contrary, the Illinois Real Estate Financing and the Indiana Real Estate
Financing shall be deemed to be Refinancing Indebtedness to the extent the
respective proceeds thereof have been applied to repay the Senior Subordinated
Notes. Without limiting their ability to approve the terms and conditions of
Refinancing Indebtedness as provided above, Managing Agent and Lenders
acknowledge that the following terms of Refinancing Indebtedness are
satisfactory: (i) the cash interest expense incurred by Borrower in connection
with such Refinancing Indebtedness does not exceed 12%, (ii) no principal or
sinking fund payments or redemptions of such Refinancing Indebtedness shall be
required prior to December 31, 2003, (iii) such Refinancing Indebtedness
contains covenants and defaults that are no more restrictive than those
contained in this Agreement, and (iv) the terms of the Illinois Real Estate
Financing and the Indiana Real Estate Financing"
1.2 Amendment to Subsection 2.1: Commitments; Loans; Notes
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Subsection 2.1A(i) of the Credit Agreement is hereby amended by deleting the
second paragraph thereof in its entirety and substitute the following therefor:
"Anything contained in this Agreement to the contrary notwithstanding, the
Tranche A Revolving Loans and the Tranche A Revolving Loan Commitments shall be
subject to the limitation that (x) in no event shall the Total Utilization of
Tranche A Revolving Commitments at any time exceed the lesser of (i) Tranche A
Revolving Loan Commitments and (ii) the Borrowing Base, in each case as then in
effect, (y) on and after the Subordinated Note Refinancing Date until the date
that the Senior Subordinated Notes are repaid in full, in addition to the
foregoing limitations Borrower may not request the making of any Tranche A
Revolving Loans that would cause the difference between Excess Availability and
the then outstanding aggregate principal amount of Senior Subordinated Notes to
be less than $15,000,000 (other than Loans, the proceeds of which, are used
immediately to repay all of the Senior Subordinated Notes in full at maturity)
and, (z) in the event and to the extent that the proceeds of the Illinois Real
Estate Financing or the Indiana Real Estate are not concurrently applied to
repay Senior Subordinated Notes (such proceeds that are not so applied, the
"Unapplied Proceeds") Borrower may not request the making of any Tranche A
Revolving Loans that would cause Excess Availability to be less than an amount
equal to the sum of the Unapplied Proceeds (less Tranche A Revolving Loans that
are used immediately to repay Senior Subordinated Notes) and amount required
under clause (y) of this paragraph."
1.3 Amendment to Subsection 6.11: Subsidiaries
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Subsection 6.11A is hereby amended by adding the following sentence at
the end thereof: "Notwithstanding anything to the contrary contained in this
subsection 6.11A, Borrower shall not be required to comply with the provisions
in this subsection 6.11A with respect to the Illinois Special Purpose LLC, so
long as (i) the sole assets that the Illinois Special Purpose LLC owns are the
assets securing the Illinois Real Estate Financing and (ii) the sole
Indebtedness incurred by the Illinois Special Purpose LLC is the Indebtedness
incurred in connection with the Illinois Real Estate Financing."
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1.4 Amendment to Subsection 7.1: Indebtedness
-----------------------------------------
Subsection 7.1 of Credit Agreement is hereby amended by (i) deleting the
"; and" at the end of clause (xi) thereof and substituting therefor ";"; (ii)
deleting the "." at the end of clause (xii) thereof and substituting therefor
";"; and (iii) adding new clauses (xiii) and (xiv) at the end thereof as
follows:
"(xiii) Borrower and Jaymar Ruby, Inc. may incur and remain liable with
respect to the Indebtedness under the Indiana Real Estate Financing in an
aggregate principal amount not to exceed $9,375,000 at any time outstanding (and
it is hereby acknowledged and agreed that the proceeds of such Indebtedness
should not be used for any purposes other than (i) to repurchase or redeem the
Senior Subordinated Notes pursuant to subsection 7.5(vii) or (ii) to repay the
Revolving Loans pursuant to subsection 2.4A); provided that the assets securing
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such Indebtedness are limited solely to those assets described in the definition
of the term "Indiana Real Estate Financing"; and
(xiv) The Illinois Special Purpose LLC may incur and remain liable with respect
to the Indebtedness under the Illinois Real Estate Financing in an aggregate
principal amount not to exceed $9,500,000 at any time outstanding (and it is
hereby acknowledged and agreed that the proceeds of such Indebtedness should not
be used for any purposes other than (i) to repurchase or redeem the Senior
Subordinated Notes pursuant to subsection 7.5(vii) or (ii) to repay the
Revolving Loans pursuant to subsection 2.4A); provided that the assets securing
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such Indebtedness are limited solely to those assets described in the definition
of the term "Illinois Real Estate Financing"."
1.5 Amendment to Section 7.2: Liens and Related Matters
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(a) Subsection 7.2A(iii) of the Credit Agreement is hereby amended by
deleting it in its entirety and substituting the following therefor: "(iii)
Other Liens securing Indebtedness permitted pursuant to subsections 7.1(vii),
7.1(xiii) and 7.1(xiv);".
(b) Subsection 7.2C of the Credit Agreement is hereby amended by (i)
deleting the "and" at the end of clause (ii) thereof and substituting therefor
";"; (ii) deleting the "," at the end of clause (iii) thereof and substituting
therefor ", and"; and (iii) adding a new clause (iv) at the end thereof as
follows:
"(iv) with respect to the Illinois Special Purpose LLC solely in connection
with the Illinois Real Estate Financing,"
(c) Subsection 7.2D of the Credit Agreement is hereby amended by
adding, immediately prior to the period at the end of such Subsection, the
following:
"and other than restrictions contained in Section 5.2(f) of the loan agreement
to be entered into by the Illinois Special Purpose LLC in connection with the
Illinois Real Estate Financing"
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1.6 Amendment to Section 7.3
------------------------
Section 7.3 of the Credit Agreement is hereby amended by (i) deleting the
"and" at the end of clause (ix) thereof and substituting "therefor";" (ii)
deleting the "." At the end of clause (x) thereof and substituting ", and"
therefor; and (iii) adding a new clause (xi) at the end thereof as follows:
"(xi) Borrower and its Subsidiaries may contribute the Premises (as
defined in the Illinois Loan Documents) to the Illinois Special Purpose
LLC."
1.7 Amendment to Section 7.5: Restricted Junior Payments
----------------------------------------------------
Subsection 7.5 of the Credit Agreement is hereby amended by deleting
clause (vii) thereof in its entirety and substituting the following therefore:
"(vii) in addition to transactions permitted by clauses (iii), (v) and (vi)
above, use cash on hand to redeem or repurchase the Senior Subordinated Notes,
the Refinancing Indebtedness and/or make Borrower Stock Purchases; provided that
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Excess Availability (assuming if Borrower has refinanced the Senior Subordinated
Notes at the time of determination, Borrower had had any Refinancing Surplus
available to it at all times prior to the date of determination) both as of the
date of such redemption and repurchase and for the last day of each of the four
fiscal quarters ending prior to such date of redemption and repurchase, shall
not be less than the sum of (A) $15,000,000 and (B) the aggregate amount of all
such redemptions and repurchases under this clause (vii) that have occurred from
the last day of the fourth fiscal quarter prior to such redemption and
repurchase through and including the date of such redemption and repurchase
(provided that this clause (B) shall not include (x) any such redemption and
repurchase under this clause (vii) after the date of the Illinois Real Estate
Financing up to the amount of proceeds received by Borrower in connection
therewith plus (y) any such redemption and repurchase under this clause (vii)
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after the date of the Indiana Real Estate Financing up to the amount of proceeds
received by Borrower in connection therewith) and, prior to such redemption or
repurchase, Managing Agent shall have received an Officer=s Certificate of
Borrower, in form and substance satisfactory to Managing Agent, confirming such
Excess Availability in reasonable detail as of such date and for such dates."
SECTION 2. 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 6.6 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
Effective Date (as defined below) to the same extent as though made on
and as of the date hereof and as of the 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;
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(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 3. 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 4. MISCELLANEOUS
4.1 References to and Effect on the Credit Agreement and Other Loan
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Documents.
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(i) On and after the Second 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;
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(ii) 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
(iii) 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.
4.2 Fees and Expenses.
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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.
4.3 Headings.
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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.
4.4 Applicable Law.
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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
4.5 Counterparts.
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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.
4.6 Effectiveness.
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This Amendment shall become effective (such date being the "Second
Amendment Effective Date") upon the execution of a counterpart hereof by
Managing Agent, the Requisite Lenders, the Borrower and the Guarantors and
receipt by Borrower and Managing Agent of written or telephone notification of
such execution and authorization of delivery thereof.
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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
BlLTWELL COMPANY, INC.
BRIAR, 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. (formerly known as HGA
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. (formerly
known as HMX/PBP COMPANY)
XXXXXX SPORTSWEAR CORPORATION
XXXXXXX 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: ______________________________________
Name:
Title:
THE BANK OF NEW YORK,
individually, as Co-Agent and as Issuing Lender for the
Letters of Credit
By: ______________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
individually and as Co-Agent
By: ______________________________________
Name:
Title:
BANK ONE,
individually and as Co-Agent
By: ______________________________________
Name:
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By: ______________________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK
By: ______________________________________
Name:
Title:
THE NORTHERN TRUST COMPANY
By: ______________________________________
Name:
Title:
