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EXHIBIT 4.15
THIRD AMENDMENT TO
TERM CREDIT AGREEMENT
(C $75,000,000 Term Credit Agreement)
THIS THIRD AMENDMENT TO TERM CREDIT AGREEMENT dated as of February 13,
2001 (this "Amendment"), by and among GOLDEN MOORES FINANCE COMPANY (the
"Borrower"), THE MEN'S WEARHOUSE, INC. (the "Parent"), the financial
institutions listed on the signature pages hereto (the "Banks") and BANK OF
AMERICA, N.A., formerly known as NationsBank, N.A., in its capacity as agent
(the "Agent") and in its individual capacity as a Bank hereunder.
WHEREAS, the Borrower, the Agent and the Banks have entered into that
certain Term Credit Agreement dated as of February 5, 1999, as amended by that
certain First Amendment to Term Credit Agreement (the "First Amendment") dated
as of September 14, 1999, and as further amended by that certain Second
Amendment to Term Credit Agreement (the "Second Amendment") dated as of January
28, 2000 (together with any and all amendments and modifications thereof, the
"Credit Agreement"); and
WHEREAS, the Restructuring Transactions, as defined in the Second
Amendment, have been consummated; and
WHEREAS, the Parent desires to dissolve Xxxxx Cigars, LLC, a Georgia
limited liability company acquired by the Parent and designated as a de minimis
Restricted Subsidiary pursuant to the First Amendment; and
WHEREAS, the Borrower, the Parent, the Agent and the Banks desire to
amend the Credit Agreement: (i) to reflect the capital structure of the Parent
and its Subsidiaries following the Restructuring Transactions, (ii) with respect
to certain limits on Restricted Payments as provided for herein, and (iii) to
permit the dissolution of Xxxxx Cigars, LLC (capitalized terms used herein but
not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement);
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement. (a) Section 10.3(d) of the
Credit Agreement is hereby amended by deleting the phrase "U.S. $30,000,000 in
the aggregate" and by replacing it with the phrase "U.S. $90,000,000 in the
aggregate."
(b) Schedule 7.17 of the Credit Agreement is hereby amended by deleting
it in its entirety and by replacing it with the Schedule 7.17 attached hereto as
Exhibit A.
(c) The Parent hereby represents and warrants that Xxxxx Cigars, LLC,
since the date of the Parent's indirect acquisition of its equity interest
therein, has been, and at all times
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therefrom and preceding its dissolution will be, a de minimis Restricted
Subsidiary without material net worth. The Agent and the Banks hereby consent to
the dissolution of Xxxxx Cigars, LLC, and it is agreed that, upon the
consummation of such dissolution, Xxxxx Cigars, LLC shall be deleted from
Schedule 7.17 of the Credit Agreement.
Section 2. Conditions to Effectiveness. This Amendment shall become
effective as of February, 13 2001 (the "Effective Date") upon (i) execution and
delivery of this Amendment by a duly authorized officer of each of the Borrower,
the Parent, the Agent and the Majority Banks, and (ii) payment by the Borrower
to the Agent, for the account of each Bank which executes and delivers this
Amendment, of an amendment fee equal to 0.075% of each such Bank's Commitment.
Section 3. Ratification of Related Documents. The Credit Agreement and
each other Loan Document and any related document to which the Borrower or the
Parent is a party are hereby ratified and confirmed to be in full force and
effect.
Section 4. Limitations. The modifications set forth herein are limited
precisely as written, and shall not be deemed to (a) be a consent to, or waiver
or modification of, any other term or condition of the Credit Agreement or any
of the other Loan Documents, or (b) prejudice any right or rights which the
Banks may now have or may have in the future under or in connection with the
Credit Agreement or any of the other Loan Documents. Except as expressly
modified hereby, the terms and provisions of the Credit Agreement and the other
Loan Documents are and shall remain in full force and effect. In the event of a
conflict between this Amendment and any of the foregoing documents, the terms of
this Amendment shall be controlling.
Section 5. Representations and Warranties; No Default. The Parent
hereby represents and warrants that on and as of the date hereof, and after
giving effect hereto: (i) the representations and warranties of the Borrower
made herein and in Article 7 of the Credit Agreement shall be true and correct
(other than those representations and warranties limited by their terms to a
specific date); and (ii) no Default or Event of Default shall have occurred and
be continuing.
Section 6. Payment of Expenses. The Parent agrees to pay and reimburse
the Agent for all its reasonable costs and out-of-pocket expenses incurred in
connection with the preparation, execution and delivery of this Amendment and
ancillary documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent.
Section 7. Choice of Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK AND THE UNITED STATES OF AMERICA.
Section 8. Descriptive Headings. The descriptive headings of the
several Sections of this Amendment are inserted for convenience only and shall
not be deemed to affect the meaning or construction of any of the provisions
hereof.
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Section 9. Entire Agreement. THIS AMENDMENT AND THE DOCUMENTS REFERRED
TO HEREIN REPRESENT THE ENTIRE UNDERSTANDING OF THE PARTIES HERETO REGARDING THE
SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS ORAL AND
WRITTEN AGREEMENTS OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 10. Counterparts. This Amendment may be executed in any number
of counterparts and by parties hereto on separate counterparts, each
counterpart, when so executed and delivered, constitute an original instrument,
and all such counterparts shall constitute but one and the same instrument.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and authorized by their respective officers as of the date first
above written.
Parent THE MEN'S WEARHOUSE, INC.
By: /s/ NEILL X. XXXXX
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Name: Neill X. Xxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
Borrower GOLDEN MOORES FINANCE
COMPANY
By: /s/ NEILL X. XXXXX
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Name: Neill X. Xxxxx
Title: Treasurer
Banks BANK OF AMERICA, N.A.
as a Bank and as Agent
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ XXXXXX X.X. XXXXX
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Name: Xxxxxx X.X. Xxxxx
Title: Director
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ XXXX XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
(formerly known as Chase Bank of Texas,
National Association)
By: /s/ XXXXX X. DOLPHIN
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Name: Xxxxx X. Dolphin
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX X. XXX
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Name: Xxxxxxx X. Xxx
Title: Vice President
BANK OF MONTREAL
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Director
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EXHIBIT A
SCHEDULE 7.17 (CANADIAN TERM LOAN)
SUBSIDIARIES
1. Guarantors:
The Men's Wearhouse of Michigan, Inc. (100% owned by The Men's
Wearhouse, Inc.)
Value Priced Clothing, LLC (100% owned by The Men's Wearhouse of
Michigan, Inc.)
TMW Capital Inc. (100% owned by The Men's Wearhouse, Inc.)
TMW Equity LLC (100% owned by TMW Capital Inc.)
TMW Finance LP (1% general partner interest owned by TMW Equity LLC)
(99% limited partner interest owned by TMW Capital Inc.)
TMW Realty Inc. (100% owned by The Men's Wearhouse, Inc.)
TMW Texas General LLC (100% owned by TMW Realty Inc.)
The Men's Wearhouse of Texas LP (1% general partner interest owned by
TMW Texas General LLC) (99% limited partner interest
owned by TMW Realty Inc.)
Xxxxxxx Technologies, Inc. (100% owned by The Men's Wearhouse, Inc.)
TMW Marketing Company, Inc.(formerly TMW Licensing Company, Inc.)
(100% owned by The Men's Wearhouse, Inc.)
TMW Licensing I, Inc. (100% owned by TMW Marketing Company, Inc.)
TMW Licensing II, Inc.(100% owned by TMW Licensing I, Inc.)
TMW Merchants LLC (100% owned by TMW Marketing Company, Inc.)
TMW Purchasing LLC (100% owned by TMW Merchants LLC)
Golden Moores Company (100% owned by The Men's Wearhouse, Inc.)
K&G Men's Center, Inc. (100% owned by The Men's Wearhouse, Inc.)
K&G Men's Company Inc. (100% owned by K&G Men's Center, Inc.)
2. Non-Guarantors
Golden Moores Finance Company (100% owned by The Men's Wearhouse, Inc.)
("Borrower")
Xxxxxx Retail Group Inc. (100% of the voting Common Shares and
nonvoting Exchangeable Shares owned by Golden Moores
Company)
Xxxxxx The Suit People Inc. (100% owned by Xxxxxx Retail Group Inc.)
Golden Brand Clothing (Canada) Ltd. (100% owned by Xxxxxx Retail Group
Inc.)
Xxxxxx The Suit People U.S., Inc. (100% owned by Golden Moores Company)
Xxxxx Cigars, LLC (at least 70% owned by K & G Men's Center, Inc.)
3. Unrestricted Subsidiaries
None
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