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EXHIBIT 4-C-8
[Execution]
AMENDMENT NO. 7 TO
LOAN AND
SECURITY AGREEMENT
AMENDMENT NO. 7 TO LOAN AND SECURITY AGREEMENT dated as of March
14, 2008, by and among Hartmarx Corporation ("Hartmarx"), Coppley
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, Wells 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 No. 7, Borrowers, Guarantors, 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, Eric
Kim and Hyung Tae Kim, 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.
(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
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;
(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, deposi
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