EXHIBIT 4-C-1
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EXECUTION
HARTMARX CORPORATION
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
AND PLEDGE AND SECURITY AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND PLEDGE
AND SECURITY AGREEMENT (this "Amendment") is dated as of November 21, 2000 and
entered into by and among HARTMARX CORPORATION, a Delaware corporation
("Borrower"), the LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each
individually referred to as a "Lender" and collectively as "Lenders"), GENERAL
ELECTRIC CAPITAL CORPORATION, as Managing Agent and Collateral Agent for Lenders
("Managing Agent"), and THE BANK OF NEW YORK, BANK OF AMERICA, N.A. and THE
FIRST NATIONAL BANK OF CHICAGO as co-agents (collectively, the "Co-Agents") and,
for purposes of Section 3 hereof, the GUARANTORS IDENTIFIED ON THE SIGNATURE
PAGES HEREOF (collectively the "Guarantors"), and is made with reference to that
certain (i) Amended and Restated Credit Agreement dated as of August 18, 1999
among Borrower, Lenders, Managing Agent and Co-Agents (the "Credit Agreement";
capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement) and (ii) Pledge and Security
Agreement dated as of March 23, 1994 among Borrower, certain of its Subsidiaries
and Managing Agent (the "Pledge and Security 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 Issuing Lender, Managing Agent and
Lenders amend certain provisions of the Credit Agreement to permit a letter of
credit to be issued pursuant of the terms of the Credit Agreement to support
certain obligations of Borrower under certain Severance Agreements Borrower has
entered into with certain of its officers;
WHEREAS, Borrower, Issuing Lender, Managing Agent and Lenders desire,
subject to the terms and conditions set forth herein, to (i) amend the Credit
Agreement to permit the issuance of Severance Letters of Credit (as hereinafter
defined) pursuant to the Credit Agreement, and (ii) to make certain other
amendments to the Credit Agreement and the Pledge and Security Agreement as set
forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
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SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Definitions
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A. Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definitions, which shall be inserted in proper
alphabetical order:
""Severance Agreements" means those severance agreements entered into
between Borrower and certain of its officers from time to time
substantially the form of Schedule 1.1CH(a) attached hereto; it being
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understood and agreed that certain modifications of any such Severance
Agreement from the form attached hereto as Schedule 1.1CH(a) shall be
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subject to Requisite Lender consent as provided in subsection 7.15D."
""Severance Letter of Credit" means the Standby Letter of Credit or
Standby Letters of Credit substantially in the form of Schedule 1.1CH(b)
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annexed hereto and otherwise satisfactory in form and substance to Issuing
Lender and Managing Agent to be issued, subject to the terms and
conditions of this Agreement, upon Company's request in accordance with
the terms of this Agreement, to support the obligations of Borrower under
a Severance Agreement; provided that, notwithstanding anything to the
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contrary contained in this Agreement, in no event shall the aggregate
stated amount of such Severance Letters of Credit that have been issued
and are outstanding and the aggregate amount of all drawings under all
Severance Letters of Credit exceed $25,000,000. All Severance Letters of
Credit shall be deemed to be financial Standby Letters of Credit."
B. Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Change of Control" and substituting therefor the following:
""Change of Control" means any of the following events: (i) any person or
any two or more persons acting in concert within the meaning of Section
13(d) of the Exchange Act is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person or
Persons shall be deemed to have beneficial ownership of all shares that
any such Person or Persons has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 40% of the total voting power of equity
securities entitled to vote in the election of directors of the Borrower;
(ii) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the
Borrower (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Borrower was approved by a vote of 66-2/3% of the directors of the
Borrower then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the Board of
Directors of the Borrower then in office; or (iii) a "Change in Control"
as defined in any of the Severance Agreements. A Change of Control will be
deemed to have occurred if an event described in any of the foregoing
clauses (i), (ii) or (iii) has occurred, regardless of whether one of the
events in any of the other clauses has also occurred."
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C. Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Standby Letter of Credit" and substituting therefor the
following:
""Standby Letter of Credit" means (x) any Existing Letter of Credit,
standby letter of credit or similar instrument issued in each case for the
purpose of supporting (i) Indebtedness of Borrower or any of its
Subsidiaries in respect of industrial revenue or development bonds or
financings, (ii) workers' compensation liabilities of Borrower or any of
its Subsidiaries, (iii) the obligations of third party insurers of
Borrower or any of its Subsidiaries arising by virtue of the laws of any
jurisdiction requiring third party insurers, (iv) obligations with respect
to Capital Leases or Operating Leases of Borrower or any of its
Subsidiaries, and (v) performance, payment, deposit or surety obligations
of Borrower or any of its Subsidiaries, in any case if required by law or
governmental rule or regulation or in accordance with custom and practice
in the industry or (y) any Severance Letter of Credit; provided that
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Standby Letters of Credit may not be issued for the purpose of supporting
(a) trade payables or (b) Indebtedness constituting "antecedent debt" (as
that term is used in Section 547 of the Bankruptcy Code).
1.2 Amendment to Section 3: Letters of Credit
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A. Section 3.1A of Credit Agreement is hereby amended by (i) deleting the
reference to "or" immediately prior to clause (v); (ii) deleting the reference
to "." at the end of clause (v) and substituting "; or" therefor; and (iii)
adding the following new clause (vi) at the end thereof as follows:
"(vi) any Severance Letter of Credit if, after giving effect to such
issuance, (a) the aggregate stated amount of all Severance Letters of Credit
that have been issued and are outstanding and the aggregate amount of all
drawings under all Severance Letters of Credit exceeds $25,000,000 or (b) the
Excess Availability would be less than the lesser of (y) $15,000,000 or (z) the
aggregate stated amount of all Severance Letters of Credit that have been issued
and are outstanding and the aggregate amount of all drawings under all Severance
Letters of Credit."
B. Section 3 of Credit Agreement is hereby amended by adding a new
subsection 3.8 at the end thereof as follows:
"3.8 Severance Letters of Credit.
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Each Lender hereby acknowledges and agrees that upon Borrower's request in
accordance with the terms of this Agreement and the satisfaction of the
conditions set forth in subsection 4.3 (including, without limitation, that on
the date of issuance of such Letter of Credit no Event of Default or Potential
Event of Default shall have occurred and be continuing or would result from the
issuance of such Letter of Credit), Issuing Lender may issue a Severance Letter
of Credit or Severance Letters of Credit, as the case may be."
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1.3 Amendment to Subsection 4.2: Conditions to All Loans
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Subsection 4.2B of Credit Agreement is hereby amended by (i)
deleting the reference to "and" immediately prior to clause (vi); (ii) deleting
the reference to "." at the end of clause (vi) and substituting "; and"
therefor; and (iii) adding a new clause (vii) at the end thereof as follows:
"(vii) In the event that any Severance Letters of Credit have been issued and
are outstanding, the making of the Loans shall not cause the Excess Availability
to be less than the lesser of (y) $15,000,000 or (z) the aggregate stated amount
of all Severance Letters of Credit that have been issued and are outstanding and
the aggregate amount of all drawings under all Severance Letters of Credit."
1.4 Amendment to Subsection 4.3: Conditions to Letters of Credit
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Subsection 4.3 of Credit Agreement is hereby amended by adding a new
subsection 4.3C at the end thereof as follows: "C. On the date of issuance of
any Severance Letter of Credit, after giving effect to the issuance of such
Severance Letter of Credit, no "Imminent Control Change Date" shall have
occurred or be continuing under any Severance Agreement and the Excess
Availability shall not be less than the lesser of (y) $15,000,000 or (z) the
aggregate stated amount of all Severance Letters of Credit that have been issued
and are outstanding and the aggregate amount of all drawings under all Severance
Letters of Credit."
1.5 Amendment to Subsection 7.15: Amendments of Related Documents; License
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Agreements
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Subsection 7.15 of Credit Agreement is hereby amended by adding a new
subsection 7.15D at the end thereof as follows: "D. Borrower shall not, and
shall not permit any of its Subsidiaries to, amend or otherwise change the
definitions of "Imminent Control Change Date" and "Change in Control" as such
terms are defined in the Severance Agreements, without, in each case, obtaining
the written consent of Requisite Lenders to such amendment."
1.6 Amendment to Section 8: Events of Default
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Section 8 of the Credit Agreement is hereby amended by deleting clause
(i)(b) of the third to last paragraph in that section and substituting therefor
the following: "(b) an amount equal to the maximum amount (provided that, with
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respect to any Severance Letter of Credit, the maximum amount shall be deemed to
be 105% of the maximum amount that may at any time be drawn under such Severance
Letter of Credit) that may at any time be drawn under all Letters of Credit then
outstanding (whether or not any beneficiary under any such Letter of Credit
shall have presented, or shall be entitled at such time to present, the drafts
or other documents or certificates required to draw under such Letter of
Credit)".
1.7 Amendment to Schedules to the Credit Agreement
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The Schedules to the Credit Agreement are hereby amended by adding (i)
Schedule 1.1CH(a) thereto which is attached hereto as Exhibit A and (ii)
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Schedule 1.1CH(b) thereto which is attached hereto as Exhibit B.
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1.8 Amendment to Section 6(c) of the Pledge and Security Agreement
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Section 6(c) of the Pledge and Security Agreement is hereby amended by
adding the following parenthetical after "maximum amount" in the third line of
the first sentence: "(provided that, with respect to any Severance Letter of
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Credit (as defined in the Credit Agreement), the maximum amount shall be deemed
to be 105% of the face value of such Severance Letter of Credit)".
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment, Borrower
represents and warrants to Lenders that after giving effect to this Amendment in
the manner contemplated by Section 4.6 of this Amendment, each of the following
is true and correct:
(a) no event has occurred and is continuing which constitutes an Event
of Default or Potential Event of Default;
(b) the representations and warranties of Borrower and the other
Credit Parties contained in the Credit Agreement and the other Loan
Documents are true and correct on and as of the date hereof and as of the
Effective Date (as defined below) to the same extent as though made on and
as of the date hereof and as of the Effective Date except to the extent
such representations and warranties specifically relate to an earlier date,
in which case they are true and correct in all material respects as of such
earlier date;
(c) each of Borrower and the other Credit Parties has performed all
agreements on its part to be performed prior to the date hereof as set
forth in the Credit Agreement and the other Loan Documents;
(d) Borrower and the Guarantors have all requisite corporate power and
authority to enter into this Amendment, to consummate the transactions
contemplated by this Amendment and the transactions contemplated by, and
perform its obligations under, the Credit Agreement and the Pledge and
Security Agreement;
(e) the execution of this Amendment, and the consummation of the
transactions contemplated by this Amendment, have been duly authorized by
all necessary corporate action on the part of Borrower and the Guarantors;
and
(f) the execution and delivery by Borrower and the Guarantors of this
Amendment, and the consummation of the transactions contemplated by this
Amendment by Borrower and the Guarantor, does not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable
to Borrower, the Guarantors or any of their respective Subsidiaries, any
constating documents of Borrower, the Guarantors or any order, judgment or
decree of any court or other agency of government binding on Borrower, the
Guarantors or any or their respective Subsidiaries, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of
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Borrower, the Guarantors or any of their respective Subsidiaries, (iii)
result in or require the creation or imposition of any Lien upon any of the
properties or assets of Borrower, the Guarantors or any of their respective
Subsidiaries (other than any Liens created under any of the Loan Documents
in favor of Collateral Agent on behalf of Lenders), or (iv) require any
approval of stockholders or any approval or consent of any Person under any
Contractual Obligation of Borrower, the Guarantors or any of their
respective Subsidiaries.
SECTION 3. GUARANTORS
Each of the Guarantors hereby consents to this Amendment and agrees that
each Loan Document to which it is a party shall continue in full force and
effect and shall be valid and enforceable and shall not be impaired or affected
by the execution of this Amendment and is hereby ratified and confirmed.
SECTION 4. MISCELLANEOUS
4.1 References to and Effect on the Credit Agreement and Other Loan Documents.
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(i) On and after the Effective Date, (x) 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 and (y) each reference in the Pledge and
Security Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Pledge and Security Agreement, and each
reference in the other Loan Documents to the "Pledge and Security Agreement",
"thereunder", "thereof", or words of like import referring to the Pledge and
Security Agreement, shall mean and be a reference to the Pledge and Security
Agreement as amended hereby;
(ii) Except as specifically amended by this Amendment, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed; and
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of any Agent or any
Lender under, the Credit Agreement or any of the other Loan Documents.
4.2 Fees and Expense.
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Borrower acknowledges that all costs, fees and expenses as described in
subsection 10.2 of the Credit Agreement incurred by Managing Agent and its
counsel with respect to this Amendment and the documents and transactions
contemplated hereby shall be for the account of Borrower.
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4.3 Headings.
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Section and subsection headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose or be given any substantive effect.
4.4 Applicable Law.
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THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES
4.5 Counterparts.
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This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
4.6 Effectiveness.
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This Amendment shall become effective (such date being the "Effective
Date") upon (i) the execution of a counterpart hereof by Issuing Lender,
Managing Agent, the Requisite Lenders, the Borrower and the Guarantors and
receipt by Borrower and Managing Agent of written or telephone notification of
such execution and authorization of delivery thereof and (ii) the Administrative
Agent receiving the payment in the amount of $50,000 from Borrower for
distribution to each Lender in accordance with each Lender's respective Pro Rata
Share of the Commitments in the aggregate.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER:
HARTMARX CORPORATION
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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.
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
▇▇▇▇▇▇▇▇-▇▇▇▇▇, INC.
GLENEAGLES, INC.
▇▇▇▇▇▇'▇ OF THE WEST INDIES APPAREL
COMPANY (formerly known as TAG
APPAREL, INC.)
HANDMACHER FASHIONS FACTORY OUTLET,
INC.
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, INC.
HARTMARX INTERNATIONAL, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ SERVICES, INC.
▇▇▇▇. ▇▇▇▇▇ CLOTHES, INC.
TAG LICENSING, INC. (formerly known
as HGA LICENSING, INC.)
▇▇▇▇▇▇-▇▇▇▇▇▇▇ CO., INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, INC.
NOVAPPAREL, INC. (formerly known as
HMXUS, INC.)
HOOSIER FACTORIES, INCORPORATED
HSM UNIVERSITY, INC.
INTERCONTINENTAL APPAREL, INC.
INTERNATIONAL WOMEN'S APPAREL, INC.
▇▇▇▇▇▇-▇▇▇▇, INC.
JRSS, INC.
KUPPENHEIMER MEN'S CLOTHIERS
DADEVILLE, INC.
MEN'S QUALITY BRANDS, INC.
NATIONAL CLOTHING COMPANY, INC.
106 REAL ESTATE CORP.
PLAID CLOTHING COMPANY, INC. (formerly
known as HMX/PBP COMPANY)
▇▇▇▇▇▇ SPORTSWEAR CORPORATION
▇▇▇▇▇▇▇ INTERNATIONAL CORPORATION
SALHOLD, INC.
SEAFORD CLOTHING CO.
SOCIETY BRAND, LTD.
▇▇▇▇▇▇ SURREY, INC.
TAILORED TREND, INC.
THORNGATE UNIFORMS, INC.
TRADE FINANCE INTERNATIONAL LIMITED
UNIVERSAL DESIGN GROUP, LTD.
▇. ▇▇▇▇ & COMPANY, INC.
WINCHESTER CLOTHING COMPANY
YORKE SHIRT CORPORATION
By:____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President of each of the
foregoing
LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
individually, as Managing Agent and as
Collateral Agent
By: __________________________________
Name:
Title:
THE BANK OF NEW YORK,
individually, as Co-Agent and as
Issuing Lender for the Letters
of Credit
By:____________________________
Name:
Title:
BANK OF AMERICA, N.A.,
individually and as Co-Agent
By: _______________________________
Name:
Title:
BANK ONE,
individually and as Co-Agent
By: _________________________________
Name:
Title:
MANUFACTURERS AND TRADERS TRUST
COMPANY
By:___________________________
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:___________________________
Name:
Title:
THE NORTHERN TRUST COMPANY
By:__________________________
Name:
Title:
EXHIBITS HAVE BEEN OMITTED AND WILL BE FURNISHED
TO THE COMMISSION UPON REQUEST
