EXHIBIT 4-C-3
[Execution]
AMENDMENT NO. 3 TO
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT, dated as of January
3, 2005, by and among Hartmarx Corporation ("Hartmarx"), ▇▇▇▇▇▇▇ Apparel Group
Limited ("Coppley", and together with Hartmarx, each individually, a
"Borrower" and collectively, "Borrowers"), each of the companies listed on
Exhibit A hereto (each, individually, a "Guarantor" and collectively,
"Guarantors"), the parties from time to time to the Loan Agreement (as
hereinafter defined) as lenders (each individually, a "Lender" and
collectively, "Lenders"), Congress Financial Corporation (Central), in its
capacity as agent for Lenders pursuant to the Loan Agreement (in such
capacity, "Agent"), JPMorgan Chase Bank, in its capacity as syndication agent
for Lenders (in such capacity, "Syndication Agent") and ▇▇▇▇▇ Fargo Foothill,
LLC, in its capacity as documentary agent for Lenders (in such capacity,
"Documentary Agent").
W I T N E S S E T H
WHEREAS, Borrowers and Guarantors have entered into financing
arrangements with Agent and Lenders pursuant to which Lenders (or Agent on
behalf of Lenders) have made and may make loans and advances and provide other
financial accommodations to Borrowers as set forth in, and subject to the
terms and conditions of, the Loan and Security Agreement, dated August 30,
2002, by and among Agent, Lenders, JPMorgan Chase Bank, in its capacity as
syndication agent for Lenders, ▇▇▇▇▇ Fargo Foothill, LLC, in its capacity as
documentary agent for Lenders, Borrowers and Guarantors (as amended and
supplemented by Amendment No. 1 to Loan and Security Agreement, dated February
25, 2003 and Amendment No. 2 to Loan and Security Agreement, dated July 22,
2004, as amended and supplemented hereby and as the same may hereafter be
further amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and the other Financing Agreements (as defined
therein); and
WHEREAS, Borrowers and Guarantors have requested Agent and Lenders
agree to certain amendments to the Loan Agreement, and Agent and Lenders are
willing to agree to such amendments, subject to the terms and conditions
herein; and
WHEREAS, by this Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Agent and
Lenders desire and intend to evidence such amendments;
NOW, THEREFORE, in consideration of the foregoing, the mutual
conditions and agreements and covenants set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1 Defined Terms. For purposes of this Amendment No. 3, unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings assigned to such terms in the Loan Agreement.
1.2 Additional Definitions. As used herein, the following terms shall
have the meanings given to them below, and the Loan Agreement and the other
Financing Agreements are hereby amended to include, in addition and not in
limitation, the following definitions:
(a) "Amendment No. 3" shall mean this Amendment No. 3 to Loan and
Security Agreement by and among Borrowers, Guarantors, Agent and Lenders, as
it now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
(b) "Documentary Agent" shall mean ▇▇▇▇▇ Fargo Foothill, LLC, in its
capacity as documentary agent on behalf of Lenders pursuant to the terms
hereof and any replacement or successor documentary agent hereunder.
(c) "Monthly Average Excess Availability" shall mean, at any time,
the daily average of the aggregate amount of the Excess Availability of
Borrowers for the immediately preceding fiscal month based on the books and
records of Agent.
(d) "Syndication Agent" shall mean JPMorgan Chase Bank, in its
capacity as syndication agent on behalf of Lenders pursuant to the terms
hereof and any replacement or successor syndication agent hereunder.
1.3 Amendments to Definitions.
(a) The definition of the term "Financing Agreements" in the Loan
Agreement and in any of the other Financing Agreements is hereby amended to
include, in addition and not in limitation, this Amendment No. 3.
(b) The definition of the term "Applicable Margin" in the Loan
Agreement and in any of the other Financing Agreements is hereby amended to
delete the table therein in its entirety and replace it with the following:
Applicable Applicable Applicable
Quarterly Average US Prime Eurodollar Canadian Prime
Tier Excess Availability Leverage Ratio Rate Margin Rate Margin Rate Margin
-------------------------------------------------------------------------------------------------------------------
1 $45,000,000 or more 2.00 to 1.00 or less 0% 1 1/2% 1%
2 Greater than or equal to Greater than 2.00 to 1.00 but 0% 1 3/4% 1 1/4%
$30,000,000 and less than equal to or less than 3.00 to
$45,000,000 1.00
3 Greater than or equal to Greater than 3.00 to 1.00 but 1/4% 2% 1 1/2%
$15,000,000 and less than equal to or less than 4.00 to
$30,000,000 1.00
4 Less than $15,000,000 Greater than 4.00 to 1.00 1/2% 2 1/4% 1 3/4%
2. Letter of Credit Accommodations. Section 2.2(b) of the Loan
Agreement is hereby amended to delete the reference therein to "two (2%)
percent" and replace it with "one and three-quarters (1.75%) percent".
3. Inventory Covenants. Section 7.3(d) of the Loan Agreement is
hereby deleted in its entirety and the following substituted therefor:
"(d) upon Agent's request, Borrowers shall, at their
expense, no more than two (2) times in any twelve (12) month period,
but at any time or times as Agent may request on or after an Event of
Default and for so long as the same is continuing, deliver or cause
to be delivered to Agent written appraisals as to the Inventory in
form, scope and methodology acceptable to Agent and by an appraiser
acceptable to Agent, addressed to Agent and Lenders and upon which
Agent and Lenders are expressly permitted to rely (provided, that,
(i) any appraisal requested at such time as an Event of Default
exists or has occurred and is continuing shall not be considered for
purposes of the limitation on the number of appraisals provided for
herein, and (ii) Borrowers shall not be required to deliver or cause
to be delivered to Agent more than one (1) such appraisal in any
twenty-four (24) month period at their expense, so long as Monthly
Average Excess Availability is greater than $50,000,000 or no Event
of Default has occurred and is continuing);"
4. Appointment, Powers and Immunities.
4.1 Section 12.1 of the Loan Agreement is hereby amended by
adding the following at the end thereof:
"JPMorgan Chase Bank is hereby designated as the syndication
agent, and ▇▇▇▇▇ Fargo Foothill, LLC is hereby designated as the
documentary agent. The designations of JPMorgan Chase Bank as
syndication agent and ▇▇▇▇▇ Fargo Foothill, LLC as documentary agent
shall not create any rights in favor of such Lenders in such
capacities nor subject such Lenders to any duties or obligations in
such capacities."
4.2 Section 12.14 of the Loan Agreement is hereby deleted
in its entirety.
5. Term. Section 13.1(a) of the Loan Agreement is hereby amended to
delete the reference therein to "February 28, 2006" and replace it with
"February 28, 2009".
6. Extension Fee. In addition to all other fees, charges, interest
and expenses payable by any Borrower or Guarantor to Agent or Lenders under
the Loan Agreement or the other Financing Agreements, Borrowers and Guarantors
shall pay to Agent for the account of Lenders, contemporaneously with the
effectiveness of this Amendment No. 3, an extension fee in the amount of
$300,000, which fee shall be fully earned and nonrefundable as of the date
hereof and may be charged to any loan account of Borrowers.
7. Representations, Warranties and Covenants. Borrowers and
Guarantors jointly and severally represent, warrant and covenant with and to
Agent and Lenders as follows, which representations, warranties and covenants
shall survive the execution and delivery hereof:
7.1 This Amendment No. 3 and each other agreement or
instrument to be executed and delivered by Borrowers and the Guarantors
pursuant hereto have been duly authorized, executed and delivered by all
necessary action on the part of each of the Borrowers and Guarantors which is
a party hereto and thereto and, if necessary, their respective stockholders
and is in full force and effect as of the date hereof, as the case may be, and
the agreements and obligations of each of the Borrowers and Guarantors, as the
case may be, contained herein and therein, constitute the legal, valid and
binding obligations of each of the Borrowers and Guarantors, respectively,
enforceable against them in accordance with their terms, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors' rights and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.
7.2 The execution, delivery and performance of this
Amendment No. 3 (a) are all within each Borrower's and each Guarantor's
corporate powers and (b) are not in contravention of law or the terms of any
Borrower's or Guarantor's certificate of incorporation, by-laws, or other
organizational documentation, or any indenture, agreement or undertaking to
which any Borrower or Guarantor is a party or by which any Borrower or
Guarantor or its property are bound.
7.3 No Default or Event of Default exists or has occurred
and is continuing.
7.4 On or before February 14, 2005, Borrowers and Guarantors
shall deliver to Agent, in form and substance satisfactory to Agent, a
modification agreement with respect to each of the Mortgages listed on Exhibit
B hereto duly authorized, executed and delivered by the parties to such
Mortgages.
7.5 On or before February 14, 2005, Borrowers and Guarantors
shall deliver to Agent, in form and substance satisfactory to Agent, an
updated endorsement to the existing title insurance policy or a new title
insurance policy issued by Chicago Title Insurance Company with respect to
each of the Mortgages listed on Exhibit B hereto (i) insuring the priority,
amount and sufficiency of such Mortgages, each as amended by the modification
agreements described in Section 7.4 above, and (ii) containing any legally
available endorsements, assurance or affirmative coverage requested by Agent
for protection of its interests.
7.6 On or before February 14, 2005, Borrowers and Guarantors
shall deliver to Agent, in form and substance satisfactory to Agent, a Flood
Hazard Certification with respect to the Real Property subject to all of the
Mortgages.
8. Conditions Precedent. This Amendment No. 3 shall only be effective
upon the satisfaction of each of the following conditions precedent in a
manner satisfactory to Agent:
8.1 Agent shall have received an executed original or
executed original counterparts of this Amendment No. 3 (as the case may be),
duly authorized, executed and delivered by Borrowers and Guarantors;
8.2 No Default or Event of Default shall exist or have
occurred and be continuing.
9. Provisions of General Application.
9.1 Effect of this Amendment. Except as expressly amended
pursuant hereto, no other changes or modifications to the Financing Agreements
are intended or implied and, in all other respects, the Financing Agreements
are hereby specifically ratified, restated and confirmed by all parties hereto
as of the effective date hereof. To the extent that any provision of the Loan
Agreement or any of the other Financing Agreements are inconsistent with the
provisions of this Amendment No. 3, the provisions of this Amendment No. 3
shall control. The Loan Agreement and this Amendment No. 3 shall be read and
construed as one agreement. Agent represents and warrants to Borrowers and
Guarantors that Agent has exercised its option under Section 11.3(a) of the
Loan Agreement to execute and deliver this Amendment No. 3 with the
authorization of the Required Lenders, and Agent has received the
authorization of the Required Lenders for Agent to execute and deliver this
Amendment No. 3 on their behalf as required under Section 11.3(a) of the Loan
Agreement.
9.2 Governing Law. The validity, interpretation and
enforcement of this Amendment No. 3 and the other Financing Agreements (except
as otherwise provided therein) and any dispute arising out of the parties
hereto, whether in contract, tort, equity or otherwise, shall be governed by
the internal laws of the State of Illinois, but excluding any principles of
conflicts of law or other rule of law that would cause the application of the
law of any jurisdiction other than the laws of the State of Illinois.
9.3 Binding Effect. This Amendment No. 3 shall be binding
upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns. Any acknowledgments or consents contained
herein shall not be construed to constitute a consent to any other or further
action by any Borrower or Guarantor or to entitle such Borrower or Guarantor
to any other consent.
9.4 Further Assurances. Each Borrower and Guarantor shall
execute and deliver such additional documents and take such additional action
as may be reasonably requested by Agent and Lenders to effectuate the
provisions and purposes of this Amendment No. 3.
9.5 Headings. The headings listed herein are for convenience
only and do not constitute matters to be construed in interpreting this
Amendment No. 3.
9.6 Counterparts. This Amendment No. 3 may be executed in
any number of counterparts, each of which shall be an original but all of
which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of this Amendment No. 3 by telefacsimile shall have
the same force and effect as the delivery of an original executed counterpart
of this Amendment No. 3. Any party delivering an executed counterpart of this
Amendment No. 3 by telefacsimile shall also deliver an originally executed
counterpart of this Amendment No. 3, but the failure to do so shall not affect
the validity, enforceability or binding effect of this Amendment No. 3.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
3 to be duly executed and delivered by their authorized officers as of the
date and year first above written.
AGENT BORROWERS AND GUARANTORS
CONGRESS FINANCIAL CORPORATION
(CENTRAL), as Agent and as Lender HARTMARX CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President Title: Executive Vice President
and Chief Financial
Officer
▇▇▇▇▇▇▇ APPAREL GROUP LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
EACH OF THE COMPANIES LISTED ON
EXHIBIT A HERETO
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President of each
company
LENDERS
JPMORGAN CHASE BANK, N.A., as Syndication
Agent and as Lender (formerly known as
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank)
By: /s/ ▇▇▇▇ ▇. Hariazcyi
------------------------------------
Title: Vice President
▇▇▇▇▇ FARGO FOOTHILL, LLC, as Documentary
Agent and as Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇
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Title: Vice President
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[SIGNATURE PAGES CONTINUED FROM PREVIOUS PAGE]
LaSalle Bank, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: First Vice President
The CIT Group/Commercial Services, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
UPS Capital Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director of Portfolio Management
▇▇▇▇▇▇▇ Business Credit Corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Assistant Vice President
RZB Finance LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Title: Group Vice President
By: /s/ ▇▇▇▇▇▇▇ Kirilos
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Title: Group Vice President
EXHIBIT A
TO
AMENDMENT NO. 3
TO
LOAN AND SECURITY AGREEMENT
1. Anniston Sportswear Corporation
2. Consolidated Apparel Group, Inc.
3. Direct Route Marketing Corporation
4. Exclusively ▇▇▇▇▇▇ Apparel, Inc.
5. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
6. ▇▇▇▇▇▇-▇▇▇▇▇▇▇ Co., Inc. (f/k/a NYH-F Co., Inc.)
7. HMX Sportswear, Inc.
8. International Women's Apparel, Inc.
9. ▇▇▇▇▇▇-▇▇▇▇, Inc.
10. HMX Luxury, Inc.
11. ▇. ▇▇▇▇ & Company, Inc.
12. National Clothing Company, Inc.
13. Universal Design Group, Ltd.
14. Briar, Inc.
15. Chicago Trouser Company, Ltd.
16. C. M. Clothing, Inc.
17. C. M. Outlet Corp.
18. Country Miss, Inc.
19. Country Suburbans, Inc.
20. E-Town Sportswear Corporation
21. ▇▇▇▇▇▇▇▇-▇▇▇▇▇, Inc.
22. Gleneagles, Inc.
23. Handmacher Fashions Factory Outlet, Inc.
24. ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, Inc.
25. Hartmarx International, Inc.
26. ▇▇▇▇ Services, Inc.
27. ▇▇▇▇. ▇▇▇▇▇ Clothes, Inc.
28. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Hill, Inc.
29. Hoosier Factories, Incorporated
30. HSM University, Inc.
31. Intercontinental Apparel, Inc.
32. JRSS, Inc.
33. Kuppenheimer Men's Clothiers Dadeville, Inc.
34. 106 Real Estate Corp.
35. ▇▇▇▇▇▇ Surrey, Inc.
36. Robert's International Corporation
37. SALHOLD, Inc.
38. Seaford Clothing Co.
39. Society Brand, Ltd.
40. TAG Licensing, Inc.
41. Tailored Trend, Inc.
42. Thorngate Uniforms, Inc.
43. Trade Finance International Limited
44. Winchester Clothing Company
45. Yorke Shirt Corporation
EXHIBIT B
TO
AMENDMENT NO. 3
TO
LOAN AND SECURITY AGREEMENT
List of Modified Mortgages
1. Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture
Filing given by ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ to Agent with respect to the real
property located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
2. Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture
Filing given by ▇. ▇▇▇▇ & Company, Inc. with the respect to the real
property located at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
