Exhibit 4-C-6
HARTMARX CORPORATION
SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is dated as of October 15, 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, including but not limited
to the minimum excess availability requirements, provisions relating to the
delivery of certain collateral documents and certain financial covenants
set forth in subsection 7.15;
WHEREAS, Borrower and Requisite Lenders have agreed that
the Credit Agreement shall be amended 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 AND RELATED MATTERS
1.1 Amendments to Section 1 of the Credit Agreement
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:
"Sixth Amendment" shall mean that certain Sixth Amendment
to Amended and Restated Credit Agreement dated as of October 15, 2001 by
and among Borrower, Managing Agent, Co-Agents and Lenders.
"Sixth Amendment Effective Date" shall have the meaning
set forth in the Sixth Amendment.
B. Subsection 1.1 of the Credit Agreement is hereby further
amended by deleting the definitions of "Interest Payment Date,"
"Refinancing Indebtedness" and "Required Excess Available Amount" in their
entirety and substituting the following therefor:
"'Interest Payment Date' means (i) with respect to any
Index Rate Loan, the first day of each month, and (ii) with respect to any
LIBOR Rate Loan, the last day of each Interest Period applicable to such
Loan; provided that in the case of each Interest Period of longer than 30
days, `Interest Payment Date' shall also include the date that is the first
day of each month after the commencement of such Interest Period and the
last day of such Interest Period.
'Refinancing Indebtedness' means unsecured senior, senior
subordinated or subordinated Indebtedness of the Borrower in an aggregate
principal amount of up to $50,000,000, the proceeds of which are used, to
refinance all or a portion of the Loans, and to pay fees, penalties,
premiums and expenses related to the foregoing, the terms and conditions of
such Indebtedness, including all intercreditor and other documentation with
respect thereto, to be in form and substance satisfactory to Managing Agent
and Requisite Lenders; provided that, notwithstanding anything herein to
the 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.
'Required Excess Availability Amount' shall mean the
Excess Availability amount required to be maintained by the Borrower as set
forth below opposite the applicable monthly period and as adjusted as
provided in the proviso hereto:
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Period Required Excess
Availability Amount
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October 15, 2001 - November 12, 2001 $25.0 million
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November 13, 2001 - November 26, 2001 $35.0 million
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November 27, 2001 - December 13, 2001 $40.0 million
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December 14, 2001 - January 14, 2002 $65.0 million
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January 15, 2002 - January 30, 2002 $30.0 million
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January 31, 2002 and thereafter $15.0 million
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; provided that for the periods prior to December 14, 2001, the Required
Excess Availability Amount shall be increased by the amount of any
Additional Liquidity Proceeds that have been received by the Borrower or
its Subsidiaries on or prior to December 14, 2001."
1.2 Amendments to Subsection 2.2A of the Credit Agreement
A. Subsection 2.2A of the Credit Agreement is hereby amended by
deleting the third and fourth paragraphs of Subsection 2.2A in their
entirety and substituting the following therefor:
"The "Applicable Margin" for each (i) Index Rate Loan
shall be (x) 1.00% for all periods prior to the Sixth Amendment Effective
Date and (y) 2.00% for all relevant periods thereafter, and (ii) LIBOR Rate
Loan shall be (x) 2.00% for all periods prior to the Third Amendment
Effective Date, (y) 2.50% for all relevant periods thereafter and prior to
the Sixth Amendment Effective Date and (z) 3.50% for all relevant periods
thereafter.
Each Tranche C Term Loan shall bear interest on the
unpaid principal amount thereof from the date made through maturity
(whether by acceleration or otherwise) at a rate determined by reference to
the Index Rate plus (i) 5.00% per annum for all periods prior to the Sixth
Amendment Effective Date and (ii) 5.50% per annum for all relevant periods
thereafter. The basis for determining the interest rate with respect to any
Tranche C Term Loan may not be changed at any time, and in no event shall
any Tranche C Term Loan bear interest at a rate determined by reference to
the Adjusted LIBOR Rate."
1.3 Amendment to Subsection 2.2E of the Credit Agreement
Subsection 2.2E of the Credit Agreement is hereby amended by
adding the following paragraph after the first paragraph thereof:
"Borrower acknowledges and agrees that prior to the
execution and delivery of the Sixth Amendment certain events occurred which
entitled Managing Agent or Requisite Lenders to give the notice
contemplated by subsection 2.2E(ii) to Borrower and that if the Sixth
Amendment Effective Date did not occur and such notice were given, among
other things, Borrower would not be entitled to request LIBOR Rate Loans
pursuant to the Credit Agreement. In order to, among other things, induce
Requisite Lenders to enter into the Sixth Amendment, Borrower agrees that
during the period from and after the earlier of October 8, 2001 and the
Sixth Amendment Effective Date until such date as Requisite Lenders in
their sole discretion shall agree in writing, Borrower shall not be
entitled to request a LIBOR Rate Loan or any continuation thereof."
1.4 Amendments to Subsection 2.4 of the Credit Agreement
A. Subsection 2.4A(iii)(b) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following
therefor:
"(b) Prepayments Due to Certain Refinancing Indebtedness.
On any date on or after the Sixth Amendment Effective Date of receipt by
Borrower or any of its Subsidiaries of the proceeds of Refinancing
Indebtedness (other than Refinancing Indebtedness constituting Liquidity
Proceeds or Additional Liquidity Proceeds except to the extent provided in
Subsection 2.4A(iii)(d)), Borrower shall repay the Swing Line Loans and the
Revolving Loans in an amount equal to the amount of such proceeds. Any
mandatory prepayment of the Loans pursuant to this subsection 2.4A(iii)(b)
shall be applied as provided in subsection 2.4A(iv), except that the
Revolving Loan Commitments will not be reduced as a result of such
prepayment."
B. Subsection 2.4A(iii)(d) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following
therefor:
"(d) Prepayments from Liquidity Proceeds and Additional
Liquidity Proceeds. Immediately upon receipt by Borrower of Liquidity
Proceeds or Additional Liquidity Proceeds pursuant to subsection 6.15 prior
to January 15, 2002, Borrower shall prepay the Swing Line Loans and the
Revolving Loans in any amount equal to the amount of such proceeds;
provided that, if and to the extent Liquidity Proceeds described in clause
(i) of the definition thereof are applied to repay Senior Subordinated
Notes in accordance with subsection 7.5(vi) on or prior to December 21,
2001 Borrower shall not be required to repay Swing Line Loans or Revolving
Loans with such Liquidity Proceeds. Any mandatory prepayment of the Loans
pursuant to this subsection 2.4A(iii)(d) shall be applied as provided in
subsection 2.4A(iv), except that the Revolving Loan Commitments will not be
reduced as a result of such prepayment."
C. Subsection 2.4A(iii) of the Credit Agreement is hereby amended
to add the following paragraph as paragraph (f) thereof in its entirety and
substituting the following therefor:
"(f) Prepayments Pursuant to Mortgages. On any date on or
after the Sixth Amendment Effective Date of receipt by Borrower or any of
its Subsidiaries of any insurance or condemnation proceeds pursuant to any
Mortgage that Collateral Agent has determined to be applied to the
Obligations in accordance with the relevant Mortgage, Borrower shall repay
the Swing Line Loans and the Revolving Loans in an amount equal to the
amount of such proceeds, it being understood that the Commitments shall not
be permanently reduced pursuant to subsection 2.4A(iv) as a result of such
payments."
1.5 Amendments to Subsection 6.8 of the Credit Agreement
A. Subsection 6.8(iv)(b) of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following therefor:
"(b) Collateral Agent, in its sole discretion may review
or have an outside consultant selected by Collateral Agent review, upon
reasonable notice and at any time, the quality and amount of Inventory; it
being understood that as soon as practicable following the date of the
Sixth Amendment, the Borrower shall commence and complete at its sole
expense an update satisfactory to Collateral Agent of the inventory
appraisal conducted in June, 2001 and that the first such review conducted
during any fiscal quarter shall be at the Borrower's sole expense."
B. Subsection 6.8 of the Credit Agreement is hereby amended by
adding the following clause (vi) at the end thereof:
"(vi) Borrower shall deliver to Collateral Agent, in form
and detail satisfactory to Collateral Agent, on or prior to the second
Business Day of each week during the period from the Sixth Amendment
Effective Date to January 31, 2002, a weekly cash budget."
1.6 Amendments to Subsection 6.14 of the Credit Agreement
Subsection 6.14 of the Credit Agreement is hereby amended
by deleting the first sentence of the first paragraph thereof in its
entirety and substituting the following therefor:
"On or prior to October 15, 2001 (or, in the case of the
Mortgage relating to the Easton, Pennsylvania property, October 26, 2001)
or such later date determined by the Collateral Agent to be necessary or
advisable, Borrower shall have delivered fully executed and notarized
Mortgages ("Third Amendment Mortgages"), duly recorded in all appropriate
places in all applicable jurisdictions, encumbering the interest of such
Credit Party in the properties listed on Exhibit A and Exhibit B attached
to the Third Amendment (any such property, together with any property
described in the proviso of this sentence, "Third Amendment Mortgage
Property")."
1.7 Amendments to Subsection 6.15 of the Credit Agreement
A. Subsection 6.15 of the Credit Agreement is hereby amended by
deleting the first paragraph of subsection 6.15 in its entirety and
substituting the following therefor:
"During the period from the Third Amendment Effective
Date to December 14, 2001, Borrower shall receive not less than $10,000,000
of net cash proceeds from any of the following transactions in the
aggregate (such proceeds in the aggregate, received from such sources,
whether received on, prior to or after such date and prior to January 15,
2002, being the "Liquidity Proceeds"): (i) Indebtedness secured by Liens on
any of the properties listed in Exhibit B to the Third Amendment permitted
under subsection 7.1(xv) hereof, (ii) the sale of the capital stock of
Xxxxxx Xxxx or other Asset Sales permitted under subsection 7.7 hereof,
(iii) the issuance by Borrower of its common or preferred equity securities
pursuant to documentation delivered to Managing Agent and Lenders and in
form and substance satisfactory to Managing Agent; provided that all net
cash proceeds from all transactions described in this sentence of
subsection 6.15 shall be immediately applied to repay Loans in accordance
with this Agreement or, solely in the case of Liquidity Proceeds received
on or prior to December 21, 2001 in connection with a transaction described
in clause (i) above, to redeem Senior Subordinated Notes in accordance with
subsection 7.5(vi) hereof; provided further, for purposes of this sentence,
all Additional Liquidity Proceeds received in excess of $25,000,000 shall
be deemed to be Liquidity Proceeds. In addition to the receipt of Liquidity
Proceeds as provide in the preceding sentence, during the period from the
Sixth Amendment Effective Date to December 14, 2001, Borrower shall receive
not less than $25,000,000 of net cash proceeds from the issuance by
Borrower of its common or preferred equity securities pursuant to
documentation delivered to Managing Agent and Lenders and in form and
substance satisfactory to Managing Agent or from the issuance of
Refinancing Indebtedness (such proceeds in the aggregate, received from
such sources, excluding any Liquidity Proceeds, the "Additional Liquidity
Proceeds"). In furtherance but not in limitation of Borrower's obligations
pursuant to the preceding sentence, (a) on or prior to October 26, 2001,
Borrower shall have received a bona fide proposal letter or letter of
interest to provide not less than $25,000,000 of Additional Liquidity
Proceeds from a Person that has the financial ability to provide such
Additional Liquidity Proceeds, which letter shall be in form and substance
acceptable to Managing Agent and a copy of which shall be delivered to
Managing Agent and Lenders on or prior to such date, and (b) on or prior to
November 26, 2001 Borrower shall have received a binding commitment letter
to provide not less than $25,000,000 of Additional Liquidity Proceeds from
a Person that has the financial ability to provide such Additional
Liquidity Proceeds, which letter shall be in form and substance acceptable
to Managing Agent and a copy of which shall be delivered to Managing Agent
and Lenders on or prior to such date. Borrower represents that it has
received not less than $3,700,000 of Liquidity Proceeds contemplated by
this subsection 6.15 on or prior to the Sixth Amendment Effective Date."
B. Subsection 6.15 of the Credit Agreement is hereby amended by
deleting the phrase "On or prior to September 17, 2001" set forth in the
first sentence of the paragraph of subsection 6.15 that appears after the
first paragraph thereof and substituting "On or prior to October 12, 2001"
therefor.
1.8 Amendments to Subsection7.1
Subsection 7.1(xii) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following
therefor:
"(xii) Borrower and its Subsidiaries may incur and remain
liable with respect to Refinancing Indebtedness in an
aggregate principal amount not in excess of $50,000,000
with the prior written consent of Managing Agent and
Requisite Lenders; provided that after giving effect to
the incurrence of such Refinancing Indebtedness, Excess
Availability shall not be less than the Required Excess
Availability Amount as of the date of such incurrence;
provided further that proceeds of any such Refinancing
Indebtedness shall be applied as required by subsection
2.4A (iii);"
1.9 Amendments to Subsection 7.5
A. Subsection 7.5(iii) of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting "(iii) [Intentionally
omitted]" therefor.
B. Subsection 7.5(vi) and 7.5(vii) of the Credit Agreement is
hereby amended by deleting it in its entirety and substituting the
following therefor:
"(vi) Repay the Senior Subordinated Notes an aggregate
amount not to exceed $8,000,000 with the proceeds of
Indebtedness received on or prior to December 21, 2001
and secured by Liens on any of the properties listed on
Exhibit B to the Third Amendment permitted under
subsection 7.1(xv) hereof; and (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 in full; provided that Excess
Availability as of the date of such redemption and
repurchase shall not be less than the Required Excess
Availability Amount; provided further that on or prior to
the date of such redemption or repurchase, as the case
may be, 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 and the satisfaction of any other
requirements of this subsection 7.5(vii), in reasonable
detail as of such date."
1.10 Amendments to Subsection 7.6
Subsection 7.6 of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting the following therefore:
"A. Minimum Consolidated Debt Service Coverage Ratio. Borrower
shall not permit the Consolidated Debt Service Coverage Ratio for any four
consecutive fiscal quarter period ending as of the last day of any fiscal
quarter set forth below to be less than the correlative ratio indicated:
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Period Minimum Consolidated Debt Service
Coverage Ratio
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May 31, 2001 1.25:1.00
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August 31, 2001 0.12:1.00
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August 31, 2002 1.10:1.00
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November 30, 2002 and thereafter 1.25:1.00
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B. Maximum Consolidated Leverage Ratio. Borrower shall not permit
the Consolidated Leverage Ratio for any twelve consecutive month period
ending on the last day of any fiscal quarter set forth below to be more
than the correlative ratio indicated:
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Period Maximum Consolidated Leverage Ratio
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May 31, 2001 6.60:1.00
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August 31, 2001 18.20:1.00
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November 30, 2002 and thereafter 5.50:1.00
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C. Minimum Consolidated Adjusted EBITDA. Borrower shall not permit
its Consolidated Adjusted EBITDA for the period commencing on September 1,
2001 and ending as of the last day of such month set forth below to be less
(or, in the case of a loss, to be a greater loss) than the correlative
amount indicated:
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Period Minimum Consolidated Adjusted EBITDA
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October 31, 2001 $1,300,000
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November 30, 2001 $2,500,000
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December 31, 2001 $(1,700,000)
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January 31, 2002 $(3,600,000)
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February 28, 2002 $9,500,000
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Borrower shall not permit its Consolidated Adjusted
EBITDA to be less than $15,000,000 for the period commencing on September
1, 2001 and ending on May 31, 2002.
As soon as available and in any event within thirty days
after the end of each month or quarter period, as the case may be, during
which this subsection 7.6C is applicable (or, in the case of the period
ending November 30, 2001, by January 10, 2002), Borrower shall deliver to
Managing Agent and Lenders a compliance certificate in form and substance
satisfactory to Managing Agent setting forth its Consolidated Adjusted
EBITDA for the applicable monthly or quarterly period, as the case may be,
and stating whether or not Borrower is in compliance with this subsection
7.6C as of the end of such period."
1.11 Amendments to Subsection 7.7
Subsection 7.7(iv) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting the following
therefor:
"Borrower and its Subsidiaries may make Asset Sales
having a net book value not in excess of $1,500,000 in the aggregate during
any Fiscal Year; 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
$250,000 shall be permitted without the consent of Managing Agent; and"
1.12 Approval of Certain Collateral Documents
By their execution and delivery of this Amendment,
Requisite Lenders hereby consent to the form of the Amended and Restated
Security Agreement, the Amended and Restated Intercompany Note Security
Agreement, the Mortgage and the Environmental Indemnity Agreement attached
hereto as Annexes I, II, III and IV, respectively. Borrower and Requisite
Lenders agree that each such agreement and any other agreement or power of
attorney annexed to such agreement that is executed and delivered shall
constitute a Collateral Document and a Loan Document.
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
"Sixth Amendment Effective Date"):
A. On or before the Sixth Amendment Effective Date, Borrower shall
deliver to Lenders (or to Managing Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender and its
counsel) the following, each, unless otherwise noted, dated the Sixth
Amendment Effective Date:
1. Resolutions of the Board of Directors of each Credit
Party approving and authorizing the execution, delivery, and performance of
this Amendment and the Loan Documents executed by such Credit Party in
connection herewith, certified as of the Sixth Amendment Effective Date by
its corporate secretary or an assistant secretary as being in full force
and effect without modification or amendment;
2. Signature and incumbency certificates of its officers
executing this Amendment and the Loan Documents executed by each Credit
Party in connection herewith;
3. Executed copies of this Amendment; and
4. Executed copies of the Amended and Restated Security
Agreement, the Amended and Restated Intercompany Note Security Agreement
and executed originals of the Third Amendment Mortgages except the Third
Amendment Mortgage relating to the Easton, Pennsylvania property and,
except to the extent deemed necessary or advisable by the Collateral Agent,
the requirements of subsection 6.14A(i) and (ii) shall have been satisfied
with respect to each such Third Amendment Mortgage.
B. Lenders and their respective counsel shall have received
originally executed copies of one or more favorable written opinions of
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for Borrower, in
form and substance reasonably satisfactory to Managing Agent and its
counsel, dated as of the Sixth Amendment Effective Date and setting forth
substantially the matters in the opinions designated in Annex V to this
Amendment, with respect to the enforceability of this Agreement (as
hereinafter defined) and as to such other matters as Managing Agent acting
on behalf of Lenders may reasonably request.
C. On or before the Sixth Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Managing Agent, acting on behalf of Lenders,
and its counsel shall be satisfactory in form and substance to Managing
Agent and such counsel, and Managing Agent and such counsel shall have
received all such counterpart originals or certified copies of such
documents as Managing Agent may reasonably request.
D. On or before the Sixth 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 and the Loan
Documents executed by Managing Agent in connection herewith.
E. The Managing Agent shall have received an amendment fee in
accordance with the fee letter executed by the Borrower for distribution to
each Lender who is a signatory hereto in accordance with each Lender's
respective Pro Rata Share of the Commitments.
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 in all material respects on
and as of the date hereof and as of the Sixth Amendment Effective Date
to the same extent as though made on and as of the date hereof and as
of the Sixth 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) 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;
(d) 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
(e) 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 consents to this Amendment and
acknowledges and agrees that each of the Loan Documents to which it is a
party or otherwise bound shall continue in full force and effect and that
all of its obligations thereunder (as confirmed and/or amended herein)
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment or any future amendment or
modification of this Agreement or any other Loan Document.
Section 5. MISCELLANEOUS
5.1 References to and Effect on the Credit Agreement and Other Loan
Documents
A. On and after the Sixth 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.
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.
Plaid Clothing Company, Inc.
Xxxxxx Sportswear Corporation
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: /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:
------------------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
individually and as Co-Agent
By: /s/ Xxx Xxxxxxx
------------------------------------------
Name: Xxx Xxxxxxx
Title:
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxxxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By:
------------------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By: /s/ Xxxx Georgieve
------------------------------------------
Name: Xxxx Georgieve
Title:
