AMENDMENT NO. 7 TO LOAN AND SECURITY AGREEMENT
EXHIBIT
4-C-8
[Execution]
AMENDMENT
NO. 7 TO
AMENDMENT
NO. 7 TO LOAN AND SECURITY AGREEMENT dated as of March 14, 2008, by and among
Hartmarx Corporation ("Hartmarx"), Xxxxxxx 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"), Monarchy Group,
Inc., formerly known as M Acquisition Corp. (“Monarchy”) and Wachovia Capital
Finance Corporation (Central), formerly known as Congress Financial Corporation
(Central), in its capacity as agent (in such capacity, "Agent") for the parties
from time to time to the Loan Agreement (as hereinafter defined) as lenders
(each individually, a "Lender" and collectively, "Lenders").
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, Xxxxx
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, Amendment No. 2 to Loan and
Security Agreement, dated July 22, 2004, Amendment No. 3 to Loan and Security
Agreement, dated January 3, 2005, Amendment No. 4 to Loan and Security
Agreement, dated October 31, 2005, Amendment No. 5 to Loan and Security
Agreement dated September 29, 2006, and Amendment No. 6 to Loan and Security
Agreement, dated May 26, 2007, 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,
Monarchy, a wholly-owned subsidiary of Hartmarx, has acquired substantially all
of the assets of Monarchy, LLC (“Monarchy Seller”); and
WHEREAS,
Borrowers, Guarantors and Monarchy have requested that Agent and Lenders agree
to certain amendments to the Loan Agreement in connection with the addition of
Monarchy as an additional party to the Loan Agreement and certain of the other
Financing Agreements and certain related matters, and Agent and Lenders are
willing to provide such consents and agree to such amendments, subject to the
terms and conditions herein; and
WHEREAS,
by this Amendment Xx. 0, Xxxxxxxxx, Xxxxxxxxxx, Monarchy, Agent and Lenders
desire and intend to evidence such consents and 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:
Section
1. Definitions.
1.1 Defined Terms. For
purposes of this Amendment No. 7, unless otherwise defined herein, all
capitalized terms used herein shall have the meanings assigned thereto 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. 7"
shall mean this Amendment No. 7 to Loan and Security Agreement by and among
Borrowers, Guarantors, Monarchy, Agent and Lenders, as it now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(b) "Monarchy" shall
mean Monarchy Group, Inc., formerly known as M Acquisition Corp., a Delaware
corporation, and its successors and assigns.
(c) "Monarchy
Purchase Agreement" shall mean the Purchase Agreement, dated as of August 14,
2007, by and among Monarchy, Monarchy Seller, Hartmarx, Xxxx Xxx and Hyung Xxx
Xxx, as the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
(d) "Monarchy
Purchase Documents" shall mean, collectively, the following (as the same now
exist or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced): (i) the Monarchy Purchase Agreement, (ii) all bills of
sale, deeds, and such instruments of transfer as are referred to therein, and
(iii) all side letters with respect thereto and all other agreements, documents
and instruments executed and/or delivered in connection therewith.
(e) "Monarchy
Purchased Assets" shall mean, collectively, the assets described on Exhibit B
hereto, consisting of the "Assets", as such term is defined in the Monarchy
Purchase Agreement.
(f) "Monarchy
Seller" shall mean Monarchy, LLC, a California limited liability company and its
successors and assigns.
1.3 Amendments to
Definitions.
(a) All references to
the term "Borrowing Base Guarantors" in the Loan Agreement and in any of the
other Financing Agreements shall be deemed to include, in addition and not in
limitation, Monarchy.
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(b) All references to
the term "Financing Agreements" in the Loan Agreement and in any of the other
Financing Agreements shall be deemed to include, in addition and not in
limitation, this Amendment No. 7.
(c) All references to
the term "Information Certificate" in the Loan Agreement and in any of the other
Financing Agreements shall be deemed to include, in addition and not in
limitation, the Information Certificate of Monarchy constituting Exhibit C
hereto.
(d) All references to
the term "Intercompany Notes" or an "Intercompany Note" in the Loan Agreement
and in any of the other Financing Agreements shall be deemed to include, in
addition and not in limitation, the promissory note issued by Monarchy payable
to Hartmarx.
(e) All references to
the term "Intercompany Security Agreements" or an "Intercompany Security
Agreement" in the Loan Agreement and in any of the other Financing Agreements
shall be deemed to include, in addition and not in limitation, the security
agreements by Monarchy in favor of Hartmarx, as each of the same now exists or
may hereafter be amended, modified, supplemented, extended, renewed or
replaced.
Section
2. Amendment and
Acknowledgement of Financing Agreements.
2.1 Amendment of Financing
Agreements.
(a) Monarchy hereby
expressly (i) assumes and agrees to be directly liable to Agent and Lenders,
jointly and severally, with the other Guarantors for all Obligations under,
contained in, or arising pursuant to the Loan Agreement or any of the other
Financing Agreements applicable to any or all Guarantors and as applied to
Monarchy as a Guarantor, (ii) agrees to perform, comply with and be bound by all
terms, conditions and covenants of the Loan Agreement and the other Financing
Agreements applicable to any or all Guarantors and as applied to Monarchy with
the same force and effect as if Monarchy had originally executed and been an
original Guarantor party signatory to the Loan Agreement and the other Financing
Agreements, (iii) is deemed to make, and is, in all respects, bound by all
representations and warranties made by the other Guarantors to Agent and Lenders
set forth in the Loan Agreement or in any of the other Financing Agreements, and
(iv) agrees that Agent and Lenders shall have all rights, remedies and
interests, including security interests in and to the Collateral granted
pursuant to Section 3 hereof, the Loan Agreement and the other Financing
Agreements, with respect to Monarchy and its properties and assets with the same
force and effect as Agent and Lenders have with respect to the other Guarantors
and their assets and properties, as if Monarchy had originally executed and had
been an original Guarantor party signatory to the Loan Agreement and the other
Financing Agreements.
(b) Each Guarantor
hereby agrees that (i) the Guarantee, dated August 30, 2002, by the Guarantors
in favor of Agent and Lenders (as the same now exists, as amended and
supplemented hereby and as the same may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "Guarantee") and (ii)
the Contribution Agreement, dated August 30, 2002, by the Guarantors, as
contribution parties, in favor of Agent (as the same now exists, as amended and
supplemented hereby and as the same may hereafter be further amended, modified,
supplemented, extended, renewed, restated or
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replaced,
the "Contribution Agreement"), are each hereby amended to include Monarchy as an
additional guarantor and contribution party signatory thereto (as applicable),
and Monarchy, by its execution below, hereby agrees that the Guarantee and the
Contribution Agreement are each hereby amended to include Monarchy as an
additional guarantor and contribution party signatory thereto (as
applicable).
(c) Monarchy hereby
expressly (i) assumes and agrees to be directly liable to Agent and Lenders,
jointly and severally, with the other signatories thereto, for payment and
performance of all Guaranteed Obligations (as defined in the Guarantee), (ii)
agrees to perform, comply with and be bound by all terms, conditions and
covenants of each of the Guarantee and the Contribution Agreement with the same
force and effect as if Monarchy had originally executed and been an original
party signatory to the Guarantee and the Contribution Agreement as an additional
guarantor and contribution party, respectively and (iii) agrees that Agent and
Lenders shall each have all rights, remedies and interests with respect to
Monarchy and its property under the Guarantee with the same force and effect as
if Monarchy had originally executed and been an original party
signatory as a guarantor to the Guarantee.
2.2 Acknowledgement of
Guarantee. Each Guarantor, including, without limitation,
Monarchy, in its capacity as a Guarantor as set forth in Section 2.1 hereof,
hereby expressly and specifically ratifies, restates and confirms the terms and
conditions of the Guarantee in favor of Agent and Lenders and its liability for
all of the Guaranteed Obligations, and other obligations, liabilities,
agreements and covenants thereunder.
Section
3. Grant of
Security Interest.
(a) Without limiting
the provisions of Section 2 hereof, the Loan Agreement and the other Financing
Agreements, to secure payment and performance of its Obligations, Monarchy
hereby grants to Agent, for itself and the benefit of Lenders, a continuing
security interest in, a lien upon, and a right of set off against, all personal
property and fixtures, and interests in personal property and fixtures, whether
now owned or hereafter acquired or existing, and wherever located, all of which
shall be included in the definition of Collateral as set forth in the Loan
Agreement, including without limitation, the following:
(i) all Accounts;
(ii) all general intangibles,
including, without limitation, all Intellectual Property;
(iii) all goods, including, without
limitation, Inventory and Equipment;
(iv) all chattel paper, including,
without limitation, all tangible and electronic chattel paper;
(v) all instruments, including,
without limitation, all promissory notes;
(vi) all documents;
(vii) all deposit accounts;
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(viii) all letters of credit, banker’s acceptances
and similar instruments and including all letter-of-credit rights;
(ix) all supporting obligations and all
present and future liens, security interests, rights, remedies, title and
interest in, to and in respect of Receivables and other Collateral, including
(A) rights and remedies under or relating to guaranties, contracts of
suretyship, letters of credit and credit and other insurance related to the
Collateral, (B) rights of stoppage in transit, replevin, repossession,
reclamation and other rights and remedies of an unpaid vendor, lienor or secured
party, (C) goods described in invoices, documents, contracts or instruments with
respect to, or otherwise representing or evidencing, Receivables or other
Collateral, including returned, repossessed and reclaimed goods, and (D)
deposits by and property of account debtors or other persons securing the
obligations of account debtors;
(x) all (A) investment property
(including securities, whether certificated or uncertificated, securities
accounts, security entitlements, commodity contracts or commodity accounts) and
(B) monies, credit balances, deposits and other property now or hereafter held
or received by or in transit to Agent, any Lender or its Affiliates or at any
other depository or other institution from or for the account of Monarchy,
whether for safekeeping, pledge, custody, transmission, collection or
otherwise;
(xi) all commercial tort claims,
including, without limitation, those identified in the Information
Certificate;
(xii) to the extent not otherwise described
above, all Receivables;
(xiii) all Records; and
(xiv) all
products and proceeds of the foregoing, in any form, including insurance
proceeds (other than business interruption insurance proceeds) and all claims
against third parties for loss or damage to or destruction of or other
involuntary conversion of any kind or nature of any or all of the other
Collateral.
(b) Notwithstanding
anything to the contrary set forth in Section 3(a) above, the types or items of
Collateral described in such Section shall not include:
(i) any rights or interests in
any contract, lease, permit, license, charter or license agreement covering real
or personal property, as such, if under the terms of such contract, lease,
permit, license, charter or license agreement, or applicable law with respect
thereto, the valid grant of a security interest or lien therein to Agent is
prohibited and such prohibition has not been or is not waived or the consent of
the other party to such contract, lease, permit, license, charter or license
agreement has not been or is not otherwise obtained or under applicable law such
prohibition cannot be waived; provided, that, the foregoing
exclusion shall in no way be construed (A) to apply if any such prohibition is
unenforceable under Sections 9-406, 9-407 or 9-408 of the UCC or other
applicable law or (B) so as to limit, impair or otherwise affect Agent's
unconditional continuing security interests in and liens upon any rights or
interests of a Borrower or Guarantor in or to monies due or to become
due under any such contract, lease, permit, license, charter or license
agreement (including any Receivables);
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(ii) the rights of Monarchy to
business interruption insurance; and
(iii) the Excluded Real
Property.
Section
4. Schedules. Schedule
8.17 of the Loan Agreement is hereby amended to include, in addition and not in
limitation, the information set forth on Supplement No. 4 to such schedule
attached hereto as Exhibit D.
Section
5. Representations and
Warranties. Each Borrower and Guarantor (including Monarchy)
hereby represents and warrants to Agent and Lenders the following (which shall
survive the execution and delivery of this Amendment No. 7), the truth and
accuracy of which are a continuing condition of the making of Loans and
providing Letter of Credit Accommodations to Borrowers:
(a) This Amendment
No. 7 and each other agreement or instrument to be executed and delivered by any
Borrower, Monarchy or any other Guarantor pursuant hereto have been duly
authorized, executed and delivered by all necessary action on the part of the
Borrowers, Monarchy, and each of the other 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 the Borrowers, Monarchy, and each of the other Guarantors as
the case may be, contained herein and therein, constitute the legal, valid and
binding obligations of such Borrower, Monarchy and such Guarantor, enforceable
against them in accordance with their respective terms, except as such
enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general principles of equity.
(b) The execution,
delivery and performance of this Amendment No. 7 (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.
(c) Monarchy is a
Delaware corporation, duly organized and validly existing in good standing under
the laws of the State of Delaware and has all requisite power and authority to
own, lease and operate its properties, if any, and to carry on its business as
it is now being conducted.
(d) All of the
outstanding shares of Capital Stock of Monarchy have been duly authorized,
validly issued and are fully paid and non-assessable, free and clear of all
claims, liens, pledges and encumbrances of any kind, except for the pledge and
security interest in favor of Agent. Hartmarx is the beneficial and
direct owner of record of one hundred (100%) percent of the issued and
outstanding shares of Capital Stock of Monarchy. There is no debt
outstanding that is convertible into Capital Stock and there are no outstanding
rights, options or warrants to acquire any Capital Stock or debt convertible
into capital stock of either.
(e) No Default or
Event of Default exists or has occurred and is continuing.
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(f) Monarchy
has acquired all of the Monarchy Sellers’ rights, title and interest in and to
the Monarchy Purchased Assets, free and clear of all liens, claims, charges and
encumbrances in accordance with the Monarchy Purchase Documents.
(g) Neither the
execution and delivery of the Monarchy Purchase Documents, nor the consummation
of the transactions contemplated by the Monarchy Purchase Documents, nor
compliance with the provisions of the Monarchy Purchase Documents or instruments
thereunder shall result in (i) the creation or imposition of any lien, claim,
charge or encumbrance upon any of the Collateral, except in favor of Agent, for
itself and the benefit of Lenders, or as expressly permitted by Section 9.8
of the Loan Agreement and by the other Financing Agreements or (ii) the
incurrence, creation or assumption of any Indebtedness of any Borrower or
Guarantor, except as expressly permitted under Section 9.9 of the Loan
Agreement.
(h) All actions and
proceedings required by the Monarchy Purchase Documents, applicable law or
regulation have been duly and validly taken and consummated.
(i) No court of
competent jurisdiction has issued any injunction, restraining order or other
order which prohibits consummation of the transactions contemplated in respect
of the Monarchy Purchase Documents and no governmental or other action or
proceeding has been threatened or commenced in the United States of America,
seeking any injunction, restraining order or other order which seeks to void or
otherwise modify the transactions described in the Monarchy Purchase Documents,
nor compliance with the provisions thereof, has violated or shall violate any
Federal or State securities laws or any other law or regulation or any order or
decree of any court or governmental instrumentality in respect or does or shall
conflict with or result in the breach of, or constitute a default in any respect
under, any indenture, mortgage, deed of trust, security agreement, agreement or
instrument to which any Borrower or Guarantor is a party or may be bound, or
violate any provision of the organizational documents of any Borrower or
Guarantor.
(j) Agent has,
on or before the date hereof, received true and complete copies of all of the
Monarchy Purchase Documents and all notices, consents, instruments, documents
and agreements relating thereto, including all exhibits and schedules thereto,
all as duly executed and delivered by the parties thereto, each in form and
substance satisfactory to Agent.
(k) Borrowers
and Guarantors shall take such steps and execute and deliver, and cause to be
executed and delivered, to Agent, such additional UCC financing statements and
termination statements, and other and further agreements, documents and
instruments as Agent may require in order to more fully evidence, perfect and
protect Agent's security interest in, among other Collateral, the Monarchy
Purchased Assets.
(l) Each of the
Monarchy Purchase Documents has been duly authorized, executed and delivered by
Monarchy, and each is in full force and effect as of the date
hereof.
(m) The purchase and
acquisition by Monarchy of the Monarchy Purchased Assets pursuant to the
Monarchy Purchase Documents are permitted under Section 9.10 of the Loan
Agreement.
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(n) The outstanding
principal balance of the Intercompany Indebtedness of Monarchy to Hartmarx under
the Intercompany Credit Facility of Hartmarx with Monarchy and are as set forth
in Supplement No. 4 to Schedule 8.17 attached hereto as Exhibit D as of the last
day of the month identified in such supplement.
(o) The Intercompany
Loan Agreement executed by Monarchy constitutes the legal, valid and
binding obligations of each of the parties thereto, enforceable in accordance
with their respective terms, is in compliance with all applicable laws and
regulations, and has been executed by the duly authorized and acting officers of
the parties thereto whose signatures are indicated thereon. Borrowers
and Guarantors have no notice of any facts which impairs or may impair the
validity or enforceability of such Intercompany Loan Agreements or the
Indebtedness evidenced thereby or arising pursuant thereto. The
Indebtedness of Monarchy to Hartmarx under the Intercompany Credit Facility of
Hartmarx with Monarchy and is and shall be valid and
enforceable. There are no defaults existing under the Intercompany
Loan Agreements executed by Monarchy, and there exists no state of facts
which, with the giving of notice or passage of time or both, would constitute a
default under such Intercompany Loan Agreements.
(p) The
obligations, liabilities and indebtedness of Monarchy to Hartmarx evidenced by
or arising pursuant to the Intercompany Loan Agreement executed by Monarchy,
owed free and clear of all offsets, deductions, defenses and counterclaims of
every kind and nature and are not now nor will at any time become contingent
upon the fulfillment of any contract or condition whatsoever.
Section
6. Conditions
Precedent. The effectiveness of the consents and amendments
contained herein shall only be effective upon the receipt by Agent of each of
the following, in each case in form and substance reasonably satisfactory to
Agent:
(a) an executed
original or executed original counterparts of this Amendment No. 7 (as the case
may be), duly authorized, executed and delivered by the respective party or
parties hereto;
(b) the approval of
Required Lenders of the terms and conditions of this Amendment No.
7;
(c) all
consents, waivers, acknowledgments and other agreements from third persons
(other than Deposit Account Control Agreements not required to be obtained under
clause (d) below) which Agent may deem necessary or desirable in order to
permit, protect and perfect its security interests in and liens upon the
Collateral of Monarchy, including, without limitation, the Monarchy Purchased
Assets, in favor of Agent or to effectuate the provisions or purposes of this
Amendment No. 7 and the other Financing Agreements;
(d) Deposit Account
Control Agreements by and among Agent, Monarchy and each bank where Monarchy has
a deposit account (other than as to those deposit accounts for which Agent is
not requiring a Deposit Account Control Agreement as of the date hereof), in
each case, duly authorized, executed and delivered by such bank and
Monarchy;
(e) an Information
Certificate duly authorized, executed and delivered by Monarchy;
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(f) (i) a copy
of the Certificate of Incorporation of Monarchy and all amendments thereto,
certified by the Secretary of State of the State of Delaware as of the most
recent practicable date certifying that the foregoing document remains in full
force and effect and has not been modified or amended, except as described
therein, (ii) a copy of the By-Laws of Monarchy, certified by the Secretary of
Monarchy, and (iii) a certificate from the Secretary of Monarchy dated the date
hereof certifying that each of the foregoing documents remains in full force and
effect and has not been modified or amended, except as described
therein;
(g) Secretary's
Certificates of Directors' Resolutions evidencing the adoption and subsistence
of corporate resolutions approving the execution, delivery and performance by
Monarchy of this Amendment No. 7 and the agreements, documents and instruments
to be delivered pursuant to this Amendment No. 7;
(h) original good
standing certificates (or its equivalent) from the Secretary of State (or
equivalent Governmental Authority) from each jurisdiction where Monarchy
conducts business;
(i) a true and
correct copy of any consent, waiver or approval to or of this Amendment No. 7,
which any Borrower or Guarantor is required to obtain from any other
Person;
(j) such
opinion letter(s) of counsel to Monarchy with respect to the matters
contemplated by this Amendment No. 7 and such other matters as Agent may
reasonably request;
(k) lien and judgment
search results for the jurisdiction of incorporation of Monarchy and the
Monarchy Sellers, the jurisdiction of the chief executive offices of Monarchy
and the Monarchy Sellers and all jurisdictions in which assets of Monarchy are
located, which search results shall be in form and substance satisfactory to
Agent;
(l) evidence of
insurance and loss payee endorsements required hereunder and under the other
Financing Agreements with respect to Monarchy and certificates of insurance
policies and/or endorsements naming Agent as loss payee;
(m) a Pledge and Security
Agreement by Hartmarx in favor of Agent, for itself and for the benefit of
Lenders, with respect to the pledge of all of the issued and outstanding shares
of Capital Stock of Monarchy by Hartmarx to Agent, for itself and for the
benefit of Lenders, duly authorized, executed and delivered by
Hartmarx;
(n) all
releases, terminations and such other documents as Agent may request to evidence
and effectuate the termination or the release by any party of any interest in
and to any of the Monarchy Purchased Assets, including, without limitation, UCC
termination statements for all UCC financing statements previously filed by any
such person against any Seller, Borrower or Guarantor, as debtor;
(o) evidence that the
Monarchy Purchase Documents have been duly authorized, executed and delivered by
and to the appropriate parties thereto and that the transactions
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contemplated
under the terms and conditions of the Monarchy Purchase Documents have been
consummated prior to or contemporaneously with the execution of this Amendment
No. 7; and
(p) an original of
the Intercompany Loan Agreement executed by Monarchy as duly authorized,
executed and delivered by the parties thereto and evidence that such
Intercompany Loan Agreements are valid and enforceable and in full force and
effect.
Section
7. Additional
Events of Default. The parties hereto acknowledge, confirm and
agree that the failure of any Borrower or Guarantor to comply with the
covenants, conditions and agreements contained herein shall constitute an Event
of Default under the Loan Agreement and the other Financing Agreements (subject
to the applicable cure period, if any, with respect thereto provided for in the
Loan Agreement as in effect on the date hereof).
Section
8. Provisions of
General Application.
8.1 Effect of this
Amendment. Except as expressly amended pursuant hereto and
except for the consents expressly granted herein, 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. 7, the provisions of this Amendment No. 7 shall
control. The Loan Agreement and this Amendment No. 7 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. 7 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. 7 on their behalf as required under Section 11.3(a) of the Loan
Agreement.
8.2 Governing
Law. The validity, interpretation and enforcement of this
Amendment No. 7 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.
8.3 Binding
Effect. This Amendment No. 7 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.
8.4 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. 7.
8.5 Headings. The
headings listed herein are for convenience only and do not constitute matters to
be construed in interpreting this Amendment No. 7.
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8.6 Counterparts. This
Amendment No. 7 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. 7 by telefacsimile shall have the same force and effect as the
delivery of an original executed counterpart of this Amendment No.
7. Any party delivering an executed counterpart of this Amendment No. 7 by telefacsimile shall also deliver an
originally executed counterpart of this Amendment No. 7, but the failure to do
so shall not affect the validity, enforceability or binding effect of this
Amendment No. 7.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 7 to be duly
executed and delivered by their authorized officers as of the date and year
first above written.
WACHOVIA
CAPITAL FINANCE
CORPORATION
(CENTRAL), formerly known
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as
Congress Financial Corporation (Central),
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as
Agent and as Lender
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By:
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/s/
Xxxxx Xxxxx
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Xxxxx
Xxxxx, Director
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HARTMARX
CORPORATION
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By:
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx, Executive Vice President and Chief Financial
Officer
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XXXXXXX
APPAREL GROUP LIMITED
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By:
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx, Vice President
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MONARCHY
GROUP, INC.
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By:
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx, Vice President
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EACH
OF THE COMPANIES LISTED ON
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EXHIBIT
A HERETO
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By:
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Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx, Vice President of each such company
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