**EXHIBIT 4-C-3**

 

 

AGREEMENT 

 

AMENDMENT NO. 2 TO LOAN ANDSECURITY AGREEMENT dated July 22, 2004 by and among Hartmarx Corporation (“Hartmarx”), Coppley Apparel Group Limited (“Coppley”), Royal Shirt Company Limited (“Royal”, and together with Hartmarx and Coppley, eachindividually, an “Existing Borrower” and collectively, “Existing Borrowers”), EM Acquisition Corp. (“EM Acquisition” and together with Existing Borrowers, each individually, a “Borrower” and collectively,“Borrowers”) and 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) aslenders (each individually, a “Lender” and collectively, “Lenders”) and Congress Financial Corporation (Central), an Illinois corporation, in its capacity as agent for Lenders pursuant to the Loan Agreement (in such capacity,“Agent”). 

 

W I T N E S S E T H 

 

WHEREAS, Existing Borrowers and Guarantors have entered into financingarrangements 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 Existing Borrowers as set forth in, and subject to the terms andconditions of, the Loan and Security Agreement, dated August 30, 2002, by and among Agent, Lenders, JPMorgan Chase Bank, in its capacity as co-agent for Lenders, Existing Borrowers and Guarantors (as amended and supplemented by Amendment No. 1 toLoan and Security Agreement, dated February 25, 2003, 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 otherFinancing Agreements (as defined therein); and 

 

WHEREAS,Hartmarx has formed EM Acquisition, which is a wholly-owned subsidiary of Hartmarx; and 

 

WHEREAS, Hartmarx and EM Acquisition have requested that Agent and Lenders consent to the potential acquisition by EM Acquisition of certain assets of the Seller (as hereinafter defined) pursuant to the EM PurchaseDocuments (as hereinafter defined) and enter into certain amendments to the Financing Agreements in connection therewith; and 

 

WHEREAS, Existing Borrowers, Guarantors and EM Acquisition have requested that Agent and Lenders provide certain consents and agree to certain amendmentsto the Loan Agreement in connection with the formation of EM Acquisition, the addition of EM Acquisition as an additional party to the Loan Agreement and certain of the other Financing Agreements and certain related matters, and Agent and Lendersare willing to provide such consents and agree to such amendments, subject to the terms and conditions herein; and 

WHEREAS, by this Amendment No. 2, Existing Borrowers, Guarantors, EM Acquisition, Agent and Lendersdesire 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 partieshereto agree as follows: 

 

Section 1. Definitions.

 

1.1 Defined Terms. For purposes of this Amendment No.2, 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 otherFinancing Agreements are hereby amended to include, in addition and not in limitation, the following definitions: 

 

(a) “Amendment No. 2” shall mean this Amendment No. 2 to Loan and Security Agreement by and among Existing Borrowers, Guarantors, EMAcquisition, Agent and Lenders, as it now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced. 

 

(b) “EM Acquisition” shall mean EM Acquisition Corp., a Delaware corporation, and its successors and assigns. 

 

(c) “EM Purchase Agreement” shall mean the Purchase Agreement,dated as of June 25, 2004, by and among EM Acquisition, Hartmarx, Exclusively Misook, Inc., Misook Doolittle and Harry Doolittle, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.

 

(d) “EM 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 EM Purchase Agreement, (ii) all bills of sale, deeds, and such instruments of transfer as arereferred to therein, and (iii) all side letters with respect thereto and all other agreements, documents and instruments executed and/or delivered in connection therewith. 

 

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(e) “EM Purchased Assets” shall mean, collectively, the assets described on Exhibit B hereto,consisting of the “Assets”, as such term is defined in the EM Purchase Agreement. 

 

(f) “Seller” shall mean Exclusively Misook, Inc., a New York corporation, and its successors and assigns. 

 

1.3 Amendments to Definitions. 

 

(a) All references to the term “Borrowing Base Guarantors” or a “Borrowing Base Guarantor” in the Loan Agreement and in any of theother Financing Agreements shall be deemed to include, in addition and not in limitation, EM Acquisition. 

 

(b) All references to the term “Financing Agreements” in the Loan Agreement and in any of the other Financing Agreements shall be deemed toinclude, in addition and not in limitation, this Amendment No. 2. 

 

(c) All references to the term “Guarantors” or a “Guarantor” in the Loan Agreement and in any of the other Financing Agreements shall be deemed to include, in addition and not in limitation, EM Acquisition. 

 

(d) All references to the term “Information Certificate” in theLoan Agreement and in any of the other Financing Agreements shall be deemed to include, in addition and not in limitation, the Information Certificate of EM Acquisition constituting Exhibit C hereto. 

 

(e) 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 EM Acquisition payable to Hartmarx, as the same now existsor may hereafter be amended, modified, supplemented, extended, renewed or replaced. 

 

(f) 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 toinclude, in addition and not in limitation, the security agreements by EM Acquisition in favor of Hartmarx, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed or replaced. 

 

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Section 2. Amendment and Acknowledgement of Financing Agreements. 

 

2.1 Amendment of Financing Agreements. 

 

(a) EM Acquisition hereby expressly (i) assumes and agrees to be directlyliable 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 asapplied to EM Acquisition 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 EMAcquisition, with the same force and effect as if EM Acquisition 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, boundby 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 andinterests, 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 EM Acquisition and its properties and assets with the same force and effectas Agent and Lenders have with respect to the other Guarantors and their assets and properties, as if EM Acquisition 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, datedAugust 30, 2002, by the Guarantors in favor of Agent and Lenders (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 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 EM Acquisition as an additional guarantor and contribution party signatory thereto (as applicable), and EM Acquisition, by its execution below, herebyagrees that the Guarantee and the Contribution Agreement are each hereby amended to include EM Acquisition as an additional guarantor and contribution party signatory thereto (as applicable). 

 

(c) EM Acquisition hereby expressly (i) assumes and agrees to be directlyliable 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 EM Acquisition had originally executed and been an original party signatory to the Guarantee and the Contribution Agreement as anadditional guarantor and contribution party, respectively and (iii) agrees that Agent and Lenders shall each have all rights, remedies and interests with respect to EM Acquisition and its property under the Guarantee with the same force and effectas if EM Acquisition had originally executed and been an original party signatory as a guarantor to the Guarantee. 

 

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2.2 Acknowledgement of Guarantee. Each Guarantor, including, without limitation, EM Acquisition,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 GuaranteedObligations, 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, EM Acquisition hereby grants to Agent, for itselfand 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, of EM Acquisition, whether now owned or hereafteracquired 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 IntellectualProperty; 

 

(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) alldeposit accounts; 

 

(viii) all letters of credit, banker’sacceptances and similar instruments and including all letter-of-credit rights; 

 

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(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 otherwiserepresenting 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 certificatedor uncertificated, securities accounts, security entitlements, commodity contracts or commodity accounts) and (B) monies, credit balances, deposits and other property of EM Acquisition now or hereafter held or received by or in transit to Agent, anyLender or its Affiliates or at any other depository or other institution from or for the account of EM Acquisition, whether for safekeeping, pledge, custody, transmission, collection or otherwise; 

 

(xi) all commercial tort claims, including, without limitation, thoseidentified in the Information Certificate; 

 

(xii) to the extentnot otherwise described above, all Receivables; 

 

(xiii) allRecords; 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 theother Collateral. 

 

(b) Notwithstanding anything to the contraryset 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 underthe 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 notwaived 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 foregoingexclusion 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 

 

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other applicable law or (B) so as to limit, impair or otherwise affect Agent’s unconditional continuing security interests in and liens upon any rightsor 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); 

 

(ii) the rights of EM Acquisition to business interruption insurance; and 

 

(iii) the Excluded Real Property. 

 

Section 4. Schedules. Schedule 8.17 of the Loan Agreement is herebyamended to include, in addition and not in limitation, the information set forth on Supplement No. 1 to such schedule attached hereto as Exhibit D. 

 

Section 5. Representations and Warranties. Each Borrower and Guarantor (including EM Acquisition) hereby represents and warrants to Agent andLenders the following (which shall survive the execution and delivery of this Amendment No. 2), 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. 2 and each other agreement or instrument to beexecuted and delivered by Borrowers, EM Acquisition or any other Guarantor pursuant hereto have been duly authorized, executed and delivered by all necessary action on the part of each Borrower, EM Acquisition and each of the other Guarantors whichis 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 Borrower, EM Acquisition and each of the otherGuarantors, as the case may be, contained herein and therein, constitute the legal, valid and binding obligations of such Borrower, EM Acquisition and such Guarantor, enforceable against them in accordance with their respective terms, except as suchenforceability 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. 2 (a) areall 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) EM Acquisition is a Delaware corporation, duly organized and validly existing in good standing under the laws of the State of Delaware and has allrequisite power and authority to own, lease and operate its properties, if any, and to carry on its business as it is now being conducted. 

 

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(d) All of the outstanding shares of Capital Stock of EM Acquisition have been duly authorized, validlyissued and are fully paid and non-assessable, free and clear of all claims, liens, pledges and encumbrances of any kind. Hartmarx is the beneficial and direct owner of record of one hundred (100%) percent of the issued and outstanding shares ofCapital Stock of EM Acquisition. There is no debt outstanding that is convertible into Capital Stock of EM Acquisition, and there are no outstanding rights, options or warrants to acquire any Capital Stock or debt convertible into capital stock ofEM Acquisition. 

 

(e) No Default or Event of Default exists orhas occurred and is continuing. 

 

(f) EM Acquisition hasacquired all of the Seller’s rights, title and interest in and to the EM Purchased Assets, free and clear of all liens, claims, charges and encumbrances in accordance with the EM Purchase Documents. 

 

(g) Neither the execution and delivery of the EM Purchase Documents, nor theconsummation of the transactions contemplated by the EM Purchase Documents, nor compliance with the provisions of the EM Purchase Documents or instruments thereunder shall result in (i) the creation or imposition of any lien, claim, charge orencumbrance 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 orassumption 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 EM Purchase Documents, applicable law or regulation have been duly and validly taken and consummated.

 

(i) No court of competent jurisdiction has issued anyinjunction, restraining order or other order which prohibits consummation of the transactions contemplated in respect of the EM Purchase Documents and no governmental or other action or proceeding has been threatened or commenced in the UnitedStates of America, seeking any injunction, restraining order or other order which seeks to void or otherwise modify the transactions described in the EM Purchase Documents, nor compliance with the provisions thereof, has violated or shall violateany 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 respectunder, 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.

 

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(j) Agent has, on or before the date hereof, received from EM Acquisition, true and complete copies ofthe EM 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 substancesatisfactory to Agent. 

 

(k) Borrowers and Guarantors shall takesuch 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 tomore fully evidence, perfect and protect Agent’s security interest in, among other Collateral, the EM Purchased Assets. 

 

(l) Each of the EM Purchase Documents has been duly authorized, executed and delivered by EM Acquisition, and each is in full force and effect as of thedate hereof. 

 

(m) The purchase and acquisition by EMAcquisition of the EM Purchased Assets pursuant to the EM Purchase Documents are permitted under Section 9.10 of the Loan Agreement. 

 

(n) The outstanding principal balance of the Intercompany Indebtedness of EM Acquisition to Hartmarx under the Intercompany Credit Facility of Hartmarxwith EM Acquisition is as set forth in the Supplement to Schedule 8.17 attached hereto as Exhibit D as of the last day of the month identified in such supplement. 

 

(o) Each of the Intercompany Loan Agreements executed by EM Acquisition constitutes the legal, valid and binding obligationsof 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 whosesignatures 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 EM Acquisition to Hartmarx under the Intercompany Credit Facility of Hartmarx with EM Acquisition is and shall be valid and enforceable. There are no defaults existing under the Intercompany Loan Agreements executed by EMAcquisition, 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. 

 

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(p) The obligations, liabilities and indebtedness of EM Acquisition to Hartmarx evidenced by or arisingpursuant to the Intercompany Loan Agreements executed by EM Acquisition are 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 thefulfillment of any contract or condition whatsoever. 

 

Section6. Conditions Precedent. 

 

6.1 Amendment No. 2.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 AmendmentNo. 2 (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. 2; 

 

(c) all consents, waivers, acknowledgments and other agreements from third persons (other than Deposit Account ControlAgreements 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 EM Acquisition, including, withoutlimitation, the EM Purchased Assets, in favor of Agent or to effectuate the provisions or purposes of this Amendment No. 2 and the other Financing Agreements; 

 

(d) Deposit Account Control Agreements by and among Agent, EM Acquisition and each bank where EM Acquisition has a deposit account (other than as tothose 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 EM Acquisition; 

 

(e) an Information Certificate duly authorized, executed and delivered by EMAcquisition; 

 

(f) (i) a copy of the Certificate ofIncorporation of EM Acquisition, and all amendments thereto, certified by the Secretary of State of its jurisdiction of incorporation as of the most recent practicable date certifying that each of the foregoing documents remains in full force andeffect and has not been modified or amended, except as described therein, (ii) a copy of the By-Laws of EM Acquisition, certified by the Secretary of EM Acquisition, and (iii) a certificate from the Secretary of EM Acquisition dated the date hereofcertifying that each of the foregoing documents remains in full force and effect and has not been modified or amended, except as described therein; 

 

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(g) Secretary’s Certificates of Directors’ Resolutions evidencing the adoption and subsistenceof corporate resolutions approving the execution, delivery and performance by EM Acquisition of this Amendment No. 2 and the agreements, documents and instruments to be delivered pursuant to this Amendment No. 2; 

 

(h) original good standing certificates (or its equivalent) from theSecretary of State (or equivalent Governmental Authority) from each jurisdiction where EM Acquisition conducts business; 

 

(i) a true and correct copy of any consent, waiver or approval to or of this Amendment No. 2, which any Borrower or Guarantor is required to obtain fromany other Person; 

 

(j) such opinion letter(s) of counsel to EMAcquisition with respect to the matters contemplated by this Amendment No. 2 and such other matters as Agent may reasonably request; 

 

(k) lien and judgment search results for the jurisdiction of incorporation of EM Acquisition and Seller, the jurisdiction of the chief executive office ofEM Acquisition and Seller and all jurisdictions in which assets of EM Acquisition 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 withrespect to EM Acquisition 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 theissued and outstanding shares of capital stock of EM Acquisition 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 orthe release by any party of any interest in and to any of the EM Purchased Assets, including, without limitation, UCC termination statements for all UCC financing statements previously filed by any such person against Seller, Borrower or Guarantor,as debtor; 

 

(o) evidence that the EM Purchase Documents havebeen duly authorized, executed and delivered by and to the appropriate parties thereto and that the transactions contemplated under the terms and conditions of the EM Purchase Documents have been consummated prior to or contemporaneously with theexecution of this Amendment No. 2; and 

 

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(p) the originals of each of the Intercompany Loan Agreements executed by EM Acquisition as dulyauthorized, executed and delivered by the parties thereto and evidence that such Intercompany Loan Agreements are valid and enforceable and in full force and effect. 

 

6.2 Eligibility of EM Purchased Assets. Notwithstanding any consent or amendment contained herein, the EM PurchasedAssets consisting of Inventory shall not be treated by Agent as Eligible Inventory of EM Acquisition for lending purposes under the Financing Agreements, unless and until such time that Agent receives a Collateral Access Agreement signed by thelessor of the premises where such Inventory is located. 

 

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 anEvent 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 pursuanthereto 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 andconfirmed 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. 2, the provisions of thisAmendment No. 2 shall control. The Loan Agreement and this Amendment No. 2 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 LoanAgreement to execute and deliver this Amendment No. 2 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. 2 on their behalf as requiredunder Section 11.3(a) of the Loan Agreement. 

 

8.2 GoverningLaw. The validity, interpretation and enforcement of this Amendment No. 2 and the other Financing Agreements (except as otherwise provided therein) and any dispute arising out of the parties hereto, whether in contract, tort, equity orotherwise, 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 ofIllinois. 

 

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8.3 Binding Effect. This Amendment No. 2 shall be binding upon and inure to the benefit of each ofthe 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 Borroweror Guarantor to any other consent. 

 

8.4 FurtherAssurances. 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. 2.

 

8.5 Headings. The headings listed herein are forconvenience only and do not constitute matters to be construed in interpreting this Amendment No. 2. 

 

8.6 Counterparts. This Amendment No. 2 may be executed in any number of counterparts, each of which shall be an original but all of which takentogether shall constitute one and the same agreement. Delivery of an executed counterpart of this Amendment No. 2 by telefacsimile shall have the same force and effect as the delivery of an original executed counterpart of this Amendment No. 2. Anyparty delivering an executed counterpart of this Amendment No. 2 by telefacsimile shall also deliver an originally executed counterpart of this Amendment No. 2, but the failure to do so shall not affect the validity, enforceability or binding effectof this Amendment No. 2. 

 

[REMAINDER OF THIS PAGE INTENTIONALLYLEFT BLANK] 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed and deliveredby their authorized officers as of the date and year first above written. 

 

CONGRESS FINANCIAL CORPORATION (CENTRAL),

as Agent and as Lender

By:
 
/s/ VICKY GEIST

Title:
 Vice President
HARTMARX CORPORATION

By:
 
/s/ GLENN R. MORGAN
  Glenn R. Morgan
Title:
 Executive Vice President and Chief Financial Officer
COPPLEY APPAREL GROUP LIMITED

ROYAL SHIRT COMPANY LIMITED

By:
 
/s/ GLENN R. MORGAN
  Glenn R. Morgan
Title:
 Vice President of each such company
EACH OF THE COMPANIES LISTED ON

EXHIBIT A HERETO

By:
 
/s/ GLENN R. MORGAN
  Glenn R. Morgan
Title:
 Vice President of each such company
 

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EXHIBIT A TO 

AMENDMENT NO. 2 

TO 

LOAN AND SECURITY AGREEMENT 

 

AnnistonSportswear Corporation 

Consolidated Apparel Group, Inc. 

Direct Route Marketing Corporation 

EM Acquisition Corp. 

Hart Schaffner & Marx 

Hickey-Freeman Co., Inc. (f/k/a NYH-F Co., Inc.) 

HMX Sportswear, Inc. 

International Women’s Apparel, Inc. 

Jaymar-Ruby, Inc. 

HMX Luxury, Inc. 

M. Wile & Company, Inc. 

National Clothing Company, Inc. 

Universal Design Group, Ltd. 

Briar, Inc. 

ChicagoTrouser Company, Ltd. 

C. M. Clothing, Inc. 

C. M. Outlet Corp.

Country Miss, Inc. 

Country Suburbans, Inc. 

E-Town Sportswear Corporation 

Fairwood-Wells, Inc. 

Gleneagles, Inc. 

Handmacher Fashions Factory Outlet, Inc. 

Handmacher-Vogel, Inc. 

Hartmarx International, Inc. 

Hart Services, Inc. 

Thos. Heath Clothes, Inc. 

Higgins, Frank & Hill, Inc. 

Hoosier Factories, Incorporated 

HSM University, Inc. 

Intercontinental Apparel, Inc. 

JRSS, Inc. 

Kuppenheimer Men’s Clothiers Dadeville, Inc. 

106 Real Estate Corp. 

Robert Surrey, Inc. 

Robert’s International Corporation 

SALHOLD, Inc. 

Seaford Clothing Co. 

 

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Society Brand, Ltd. 

TAGLicensing, Inc. 

Tailored Trend, Inc. 

Thorngate Uniforms, Inc.

Trade Finance International Limited 

Winchester ClothingCompany 

Yorke Shirt Corporation 

 

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