FIFTH AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
This FIFTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(this "AGREEMENT") is entered into as of December 29, 1998 (the "EFFECTIVE
DATE"), by and among Haggar Clothing Co., a Nevada corporation, f/k/a Haggar
Apparel Company (the "COMPANY"), Haggar Corp., a Nevada corporation
("HAGGAR"), the banks listed on the signature pages of this Agreement
(collectively, the "BANKS"), Chase Bank of Texas, National Association, a
national banking association, f/k/a Texas Commerce Bank National Association,
individually and as agent (the "AGENT") for the Banks, and is consented to by
Haggar and the domestic subsidiaries of the Company listed on the signature
pages of this Agreement (collectively, the "SUBSIDIARIES").
R E C I T A L S:
WHEREAS, pursuant to that certain First Amended and Restated Credit
Agreement (as heretofore and herein amended, the "CREDIT AGREEMENT") dated as
of September 18, 1996, executed by and among the Company, Haggar, the Banks
and the Agent, the Banks agreed to make advances to the Company on certain
terms and conditions set forth therein (each capitalized term used but not
defined herein shall have the meaning given to such term in the Credit
Agreement, as amended); and
WHEREAS, the Credit Agreement has been amended by that certain First
Amendment to First Amended and Restated Credit Agreement dated as of December
31, 1996, that certain Second Amendment to First Amended and Restated Credit
Agreement dated as of June 30, 1998, that certain Third Amendment to First
Amended and Restated Credit Agreement dated as of December 15, 1997, and that
certain Fourth Amendment to First Amended and Restated Credit Agreement dated
as of June 30, 1998; and
WHEREAS, the Company has requested that the Credit Agreement be amended
to allow (i) the Company to receive an Advance in connection with the
acquisition of Xxxxxx, Inc., a Texas corporation ("XXXXXX"), and (ii) the
acquisition of Xxxxxx by the Company; and
WHEREAS, the Agent and the Banks are agreeable to such request under the
present circumstances and upon the terms and conditions as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed, the Company,
Haggar, the Banks and the Agent hereby agree as follows:
A G R E E M E N T:
1. AMENDMENT TO DEFINITIONS. The following definition is hereby added
to Section 1.1 of the Credit Agreement:
"Xxxxxx Acquisition" means the acquisition by the Company of
Xxxxxx, for the sum of $36,756,637 (subject to adjustment as therein
provided), pursuant to that certain Agreement and Plan of Merger dated as of
December 17, 1998, by and between the Company, JI Acquisition, Inc., Xxxxxx
and certain of Jerell's shareholders.
2. CONSENT. Notwithstanding Section 2.2 and Section 6.2 of the Credit
Agreement but subject to the other terms and conditions thereof, the Banks
consent to an Advance in connection with the Xxxxxx Acquisition.
3. AMENDMENT TO SECTION 7.4(c) AND (d). Section 7.4(c) and (d) of the
Credit Agreement are hereby amended in their entirety to read as follows:
(c) Other than the Xxxxxx Acquisition, acquire, or permit any
Subsidiary of the Company to acquire, by purchase, lease or
otherwise, all or substantially all of the assets or capital
stock of any Person, provided that such acquisitions which, when
added to any other acquisitions since the effective date of this
Agreement (other than the Xxxxxx Acquisition) and any permitted
investments made pursuant to Section 7.4(d), do not exceed
$15,000,000 in the aggregate (including all consideration given
in connection with such acquisitions), may be made so long as the
assets or Person acquired is involved in the same line of
business, or an integral part thereof, as is currently pursued by
the Company Group.
(d) Other than the Xxxxxx Acquisition, invest or acquire an ownership
interest in, or permit any Subsidiary of the Company to invest or
acquire an ownership interest in, any joint venture, partnership,
corporation or other entity which is not an Affiliate of any
member of the Company Group, or otherwise invest in any new
business venture, provided that such investment which, when added
to any other investments since the effective date of this
Agreement and any permitted acquisitions made pursuant to
Section 7.4(c) (other than the Xxxxxx Acquisition), do not exceed
$15,000,000 in the aggregate, may be made so long as no member
of the Company Group has any legal or contractual liability or
obligation in excess of such investment, and the business venture
in which the investment is made involves the same line of
business, or an integral part thereof, as is currently pursued by
the Company Group.
4. Xxxxxx is currently a party to that certain Amended and Restated
Collection Factoring Agreement (the "FACTORING AGREEMENT") executed September
1, 1998, between Xxxxxx Financial, Inc. ("XXXXXX"), Xxxxxx and San Xxxxxxx
Enterprises, Inc. pursuant to which Xxxxxx was granted a security
interest (the "XXXXXX SECURITY INTEREST") in certain collateral more
particularly described in Section 7 of the Factoring Agreement. The Banks
waive any Event of Default arising under Section 7.1 of the Credit Agreement
as a result of the Xxxxxx Security Agreement provided that (i) upon the
closing of the Xxxxxx Acquisition and thereafter no sums shall be outstanding
under the Factoring Agreement, (ii) upon the closing of the Xxxxxx
Acquisition, the Company shall give notice of termination of the Factoring
Agreement, and (iii) the Xxxxxx Security Interest shall be released of record
within ninety (90) days following the closing of the Xxxxxx Acquisition and a
copy of such recorded releases delivered to the Agent. Except as expressly
set forth above, the waiver contained herein shall not waive any right, power
or remedy of the Agent or the Banks or any provision of the Loan Documents.
5. EXECUTION OF GUARANTY. Pursuant to Section 7.11 of the Credit
Agreement, in connection with the execution of this Agreement, Xxxxxx and its
Subsidiaries shall, at the closing of the Xxxxxx Acquisition, each execute
and deliver to the Agent a Subsidiary Guaranty in the form attached as
Exhibit E to the Credit Agreement (collectively, the "XXXXXX GUARANTY").
6. CERTIFICATES. This Agreement shall be effective as of the date
first above written when executed by all parties hereto and consented to by
the Guarantors as provided on the signature pages hereto, and upon receipt by
the Agent of the following, each in form, substance and bearing a date
satisfactory to the Agent and its counsel (items (b), (c), (e) and (f) being
delivered upon the closing of the Xxxxxx Acquisition):
(a) A certificate of the Secretary or Assistant Secretary of the
Company and the Guarantors, respectively, certifying (i) that, except
as indicated therein, there has been no change to the articles of
incorporation or bylaws of the Company or the Guarantors since the same
were finished to the Agent in connection with the execution of the
Credit Agreement, (ii) as to the name and title of the officers of the
Company and the Guarantors and the authority of such officers to
execute this Agreement; and (iii) as to the existence and good standing
in their respective states of incorporation of the Company and the
Guarantors.
(b) A certificate of the Secretary or Assistant Secretary of
Xxxxxx and its Subsidiaries certifying that (i) attached thereto are
true and complete copies of the articles of incorporation and bylaws of
Xxxxxx and its Subsidiaries, as amended, (ii) attached thereto are
resolutions of the Board of Directors of Xxxxxx and its Subsidiaries
authorizing execution of the Xxxxxx Guaranty, (iii) the name and title
and bearing the signature of the officers of Xxxxxx and its
Subsidiaries identified therein are authorized to sign the Xxxxxx
Guaranty, and (iv) Xxxxxx and its Subsidiaries are in existence and
good standing in their respective states of incorporation.
(c) A written opinion of the Company's, Guarantors' and Jerell's
and its Subsidiaries' counsel in form acceptable to the Agent and its
counsel.
(d) A certificate, signed by the Treasurer of the Company or the
Chief Financial Officer of the Company, stating that as of the date of
this Agreement and after giving effect
to this Agreement the statements set forth in Sections 4.2(a), (b)
and (g) of the Credit Agreement are true and correct.
(e) The Xxxxxx Guaranty.
(f) True, complete and correct copies of the documents executed
and delivered or to be executed and delivered by the parties in
connection with the Xxxxxx Acquisition.
7. EFFECTIVENESS OF DOCUMENTS. Except as expressly modified hereby,
all terms, provisions, representations, warranties, covenants and agreements
of the Company and Haggar related to the Loans, whether contained in the
Notes, the Credit Agreement and/or any of the other Loan Documents, are
hereby ratified and confirmed by the Company and Haggar, and all such
agreements shall be and shall remain in fill force and effect, enforceable in
accordance with their terms.
8. NO CLAIMS OR DEFENSES. Each of the Company and Haggar, by the
execution of this Agreement, hereby declares that it has no offsets, claims,
counterclaims, defenses or other causes of action against the Agent or the
Banks related to any Loan, the Credit Agreement, any of the other Loan
Documents or the modification of the Credit Agreement pursuant to this
Agreement.
9. AUTHORITY. Each of the Company and Haggar represents and warrants
that all requisite corporate action necessary for it to enter into this
Agreement has been taken.
10. BINDING AGREEMENT. This Agreement shall be binding upon, and shall
inure to the benefit of, each party hereto and such party's legal
representatives, successors and assigns.
11. ENTIRE AGREEMENT. THIS AGREEMENT AND THE LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS AMONG THE
PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO.
12. CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF TEXAS,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart.
[SEE SIGNATURES ON ATTACHED PAGES]
EXECUTED as of the date first above written.
HAGGAR CLOTHING CO., a Nevada corporation, f/k/a
Haggar Apparel Company
By: /s/ X. X. Xxxxxx III
-----------------------------------------------
X. X. Xxxxxx, III
Chief Executive Officer
HAGGAR CORP., a Nevada corporation
By: /s/ X.X. Xxxxxx III
-----------------------------------------------
X. X. Xxxxxx, III
Chief Executive Officer
THE BANKS CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, f/k/a
TEXAS COMMERCE BANK National Association,
$22,222,222.22 Individually, as the Agent
By: /s/ Xxxx X.Xxxx
-----------------------------------------------
Xxxx X.Xxxx
Senior Vice President
$22,222,222.22 NATIONSBANK, N.A.,
successor-in-interest by merger to NationsBank of
Texas, N.A.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxx
Senior Vice President
$18,518,518.51 COMERICA BANK - TEXAS
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxx
Vice President
$11,111,111.12 THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxx
Vice President
$14,814,814.81 THE BANK OF TOKYO-MITSUBISHI, LTD.,
DALLAS OFFICE
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
$11,111,111.12 NATIONAL CITY BANK, KENTUCKY,
f/k/a First National Bank of Louisville
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------------------
Xxxxxx X. Xxxxxx, Xx.
Vice President
CONSENT OF HAGGAR
Haggar hereby (a) acknowledges its consent to this Agreement, (b)
ratifies and confirms all terms and provisions of the Parent Guaranty, (c)
agrees that the Parent Guaranty is and shall remain in full force and effect,
(d) acknowledges that there are no claims or offsets against, or defenses or
counterclaims to, the terms and provisions of and the obligations created and
evidenced by the Parent Guaranty, (e) reaffirms all agreements and
obligations under the Parent Guaranty with respect to the Loans, the Notes,
the Credit Agreement and all other documents, instruments or agreements
governing, securing or pertaining to the Loans, as the same may be modified
by this Agreement, and (f) represents and warrants that all requisite
corporate action necessary for it to execute this Agreement has been taken.
HAGGAR CORP.,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chief Executive Officer
Dated as of December 29, 1998.
CONSENT OF DOMESTIC SUBSIDIARIES
Each of the undersigned Subsidiaries hereby (a) acknowledges its consent
to this Agreement, (b) ratifies and confirms all terms and provisions of the
Subsidiary Guaranty to which it is a signatory, (c) agrees that the
Subsidiary Guaranty to which it is a signatory is and shall remain in full
force and effect, (d) acknowledges that there are no claims or offsets
against, or defenses or counterclaims to, the terms and provisions of and the
obligations created and evidenced by the Subsidiary Guaranty to which it is a
signatory, (e) reaffirms all agreements and obligations under the Subsidiary
Guaranty to which it is a signatory with respect to the Loans, the Notes, the
Credit Agreement and all other documents, instruments or agreements
governing, securing or pertaining to the Loans, as the same may be modified
by this Agreement, and (f) represents and warrants that all requisite
corporate action necessary for it to execute this Agreement has been taken.
BOWIE MANUFACTURING COMPANY,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
CORSICANA COMPANY,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
DALLAS PANT MANUFACTURING COMPANY,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
GREENVILLE PANT MANUFACTURING
COMPANY, a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
XXXXXXXX PANT MANUFACTURING COMPANY,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
OLNEY MANUFACTURING COMPANY,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
WAXAHACHIE GARMENT COMPANY,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
LA ROMANA MANUFACTURING CORPORATION,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
HAGGAR SERVICES, INC.,
a Texas corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
AIRHAGGAR, INC., f/k/a HAGAIR, INC.,
a Texas corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
DUNCAN MANUFACTURING COMPANY,
an Oklahoma corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
WESLACO CUTTING, INC.,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
WESLACO SEWING, INC.,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
HAGGAR DIRECT, INC.,
a Nevada corporation
By: /s/ X. X. Xxxxxx III
----------------------------------------------
X. X. Xxxxxx, III
Chairman/Chief Executive Officer
Dated as of December 29, 1998.
