EXHIBIT 4.1
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
"Amendment"), dated as of July 7, 2004 (the "Amendment Effective Date"), is by
and among The Men's Wearhouse, Inc., a Texas corporation (the "Borrower"), the
financial institutions party hereto (collectively, the "Banks" and individually,
a "Bank") and JPMorgan Chase Bank (together with any successor thereof,
"JPMorgan Chase") in its capacity as administrative agent (the "Agent") for the
Banks.
WHEREAS, the Borrower, the Banks, the Agent, JPMorgan Chase, X.X.
Xxxxxx Securities Inc. (as "Sole Bookrunner"), X.X. Xxxxxx Securities Inc. and
Fleet Securities, Inc. (together as "Co-Lead Arrangers"), Wachovia Bank,
National Association and Fleet National Bank (together, as "Co-Syndication
Agents") previously entered into that certain Revolving Credit Agreement dated
as of January 29, 2003 (as amended from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested the Agent and the Banks to
extend the scheduled Maturity Date to the fifth (5th) anniversary of the
Amendment Effective Date;
WHEREAS, in connection with the foregoing, the Banks which are a
party hereto have agreed to such request subject to the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants, representations and warranties contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned such terms in the Credit Agreement.
Section 1. Amendments. The Credit Agreement is hereby amended as follows:
(a) Section 1.2 is amended as follows:
(i) The terms "Adjustment Amount", "Adjustment Date", "Canadian Term
Loan Facility", "Extension Election Date", "Extension Request",
"Intercompany Credit Agreements", "Intercreditor Agreement", "Negative
Adjustment Amount", "Non-Extending Bank", "Positive Adjustment Amount",
"Replacement Bank", "Subscription Agreement", "Term Borrowers", and "Term
Lenders" are hereby deleted.
(ii) The definition of "Adjusted Debt" is hereby amended in its
entirety to provide as follows:
"Adjusted Debt" means, at any time and without duplication, an
amount (if positive) equal to (a) Total Funded Debt plus (b) an
amount equal to the product of (i)
Base Rent Expense for the immediately preceding quarter times (ii)
thirty-two (32) less (c) Excess Cash.
(iii) The definitions of "Default" is hereby amended by deleting
therefrom (1) the term "(i)" and (2) the phrase "or (ii) any "Default" as
defined in the Canadian Term Loan Facility".
(iv) The definition of "Applicable Margin" is hereby amended by
replacing the pricing grid therein with the following:
APPLICABLE MARGIN FOR APPLICABLE MARGIN FOR
ADJUSTED DEBT TO EBITDA PLUS EURODOLLAR LOANS AND APPLICABLE MARGIN FOR ABR COMMITMENT FEES ON THE
BASE RENT EXPENSE LETTER OF CREDIT FEES LOANS UNUSED COMMITMENT
----------------- --------------------- ----- -----------------
Less than 3.25:1.0 1.50% 0.00% 0.275%
Equal to or greater than
3.25:1.0 but less than
4.0:1.0 1.75% 0.00% 0.350%
Equal to or greater than
4.0:1.0 but less than
4.25:1.0 2.00% 0.25% 0.425%
Equal to or greater than 2.25% 0.50% 0.500%
4.25:1.0
(v) The definition of "Related Facilities" is hereby amended by
deleting therefrom the phrase "collectively, (i) the Canadian Term Loan
Facility and (ii)".
(vi) The definition of "Maturity Date" is hereby amended in its
entirety to provide as follows:
"Maturity Date" shall mean July 7, 2009.
(vii) The following definition is hereby inserted in proper
alphabetical order:
"Excess Cash" means an amount, if positive, equal to the
difference of (i) unrestricted cash and Cash Equivalents reflected
on the Borrower's most recent consolidated balance sheet (exclusive
of cash and Cash Equivalents of Unrestricted Subsidiaries therein
reflected) less (ii) the sum of (x) $15 million and (y) the
aggregate principal amount of Loans outstanding at the end of the
most recent fiscal quarter.
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(b) Section 3.6 is hereby amended by deleting therefrom the phrases "and
the Canadian Term Loan Facility" and "and under the Canadian Term Loan
Facility".
(c) Section 4.9 is hereby amended by (1) deleting therefrom subsections
(b)(ii) and (iii) and renumbering the remaining subsections accordingly and (2)
deleting from subsection (b)(iv) the phrase "and under the Canadian Term Loan
Facility".
(d) Section 4.10 is hereby deleted.
(e) Section 4.12 is hereby deleted.
(f) Section 7.17 is hereby amended by deleting in each case the term
"Closing Date" and inserting therein the date "July 7, 2004".
(g) Section 9.7 (d) is hereby deleted.
(h) Section 10.2 (h) is hereby deleted.
(i) Section 10.3(d) is hereby amended by (i) deleting the date "October
13, 2003" each place it occurs and inserting in lieu thereof the date "July 7,
2004" and (ii) deleting the figure "$100,000,000" and inserting in lieu thereof
the figure "$56,500,000".
(j) Section 10.3(e) is hereby amended by (i) deleting the date "October
13, 2003" each place it occurs and inserting in lieu thereof the date "July 7,
2004" and (ii) deleting the figure "$100,000,000" and inserting in lieu thereof
the figure "$56,500,000".
(k) Section 10.8 (ii) is hereby deleted and the remaining subsection
renumbered accordingly.
(l) Section 10.10 is hereby amended by deleting from the last sentence
therefrom the phrase "and (3) at such time as Chelsea Market System, LLC is a
Restricted Subsidiary, up to 25% of the Capital Stock thereof may be owned by
un-Affiliated Person(s)".
(m) Section 10.21 (d) is hereby deleted.
(n) Section 10.22 is hereby deleted.
(o) Section 11.13 is hereby deleted.
(p) Section 13.10 (b)(ii)(E) is hereby deleted.
(q) Schedule 7.17 is hereby replaced with Schedule 7.17 attached hereto.
(r) On the Amendment Effective Date, the Commitments shall be as disclosed
on the signature pages hereto.
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Section 2. Amendment and Ratification. Upon the effectiveness hereof as
provided in Section 13.18 of the Credit Agreement, this Amendment shall be
deemed to be an amendment to the Credit Agreement, and the Credit Agreement, as
modified hereby, is hereby ratified, approved and confirmed to be in full force
and effect in each and every respect. The execution, delivery and effectiveness
of this Amendment shall not operate as a waiver of any right, power or remedy of
any Bank, any Agent, or Issuing Bank under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents. All
references to the Credit Agreement in any other document, instrument, agreement
or writing shall hereafter be deemed to refer to the Credit Agreement as
modified hereby.
Section 3. Conditions to Effectiveness. This Amendment shall become
effective as of the Amendment Effective Date when the Agent has confirmed (and
has so notified the Borrower) that:
(i) counterparts hereof have been duly executed by the
Borrower and the Banks and delivered to the Agent;
(ii) (a) promissory notes shall be executed and delivered by
the Borrower in favor of each Bank requesting a promissory note to
evidence its new Commitment, which notes, to the extent delivered in
favor of a Bank that is a party to the Credit Agreement immediately
prior to the effectiveness of this Amendment shall be in renewal and
replacement of, and shall be delivered in substitution and exchange
for (and not in payment of), the promissory note held by such Bank
prior to the Amendment Effective Date, and (b) promissory notes
executed by the Borrower hereunder (other than those executed
pursuant to the preceding clause (a)) which are outstanding as of
the Amendment Effective Date shall be marked "Cancelled and Replaced
by Renewal" or "Cancelled and Discharged", or words of similar
import, as applicable, and delivered to the Agent for ultimate
delivery to the Borrower;
(iii) payment of (i) all fees due and owing and described in
Section 5 hereof and (ii) the reasonable expenses of, or incurred
by, the Agent and counsel, to the extent billed as of the Amendment
Effective Date, to and including the Amendment Effective Date in
connection with the negotiation and closing of the transactions
contemplated herein;
(iv) Borrower shall deliver to the Agent written evidence
satisfactory to the Agent and its counsel that Borrower has taken
all corporate and other action and obtained all consents necessary
to duly approve and authorize its execution, delivery and
performance of this Amendment, any other documents which it is
required to execute, and an opinion of counsel to Borrower in form,
scope and substance reasonably acceptable to the Agent;
(v) Borrower shall deliver to Agent a certificate as to the
matters set forth in Section 4 (i), (ii) and (iii);
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(vi) Borrower has paid all amounts due under Section 3.5 of
the Credit Agreement, if any, caused by the effectiveness of this
Amendment; and
(vii) such Assignment and Assumption Agreements as required to
establish the new Commitments have been duly executed and delivered.
Section 4. Representation and Warranty. The Borrower hereby represents and
warrants that, as of the Amendment Effective Date, after giving effect hereto:
(i) the representations and warranties of the Borrower and
each Subsidiary contained in the Loan Documents are correct on and
as of such date (other than those representations and warranties
that expressly relate solely to a specific earlier date, which shall
remain correct as of such earlier date), as though made on and as of
such date;
(ii) no event has occurred and is continuing which constitutes
a Default or an Event of Default;
(iii) no change in the business, assets, management,
operations, financial condition or prospects of the Borrower and its
Subsidiaries, as a whole, has occurred since the date of the most
recent financial statements delivered pursuant to Section 9.1(b) of
the Credit Agreement, which change has or is reasonably likely to
have a Material Adverse Effect; and
(iv) As of the Amendment Effective Date, the Borrower owns the
percentage of all classes of Capital Stock of each Subsidiary and
the ownership of each such Subsidiary and the ownership of Borrower
as of such date is as set forth on Schedule 7.17 attached hereto.
Except for the Subsidiaries described on Schedule 7.17, the Borrower
has no other Subsidiaries as of the Amendment Effective Date. As of
the Amendment Effective Date, Borrower has no partnership or joint
venture interests in any other Person except as set forth in
Schedule 7.17. All of the issued and outstanding shares of Capital
Stock of the Borrower and each Subsidiary are fully paid and
nonassessable and, except as created by the Pledge Agreements are
free and clear of any Lien. As of the Amendment Effective Date, each
Non-Guaranteeing Restricted Subsidiary is set forth on Schedule
7.17.
Section 5. Fees.
(a) The Borrower agrees to pay to X.X. Xxxxxx Securities Inc., for
its own account, an arrangement fee payable in the amount separately
agreed upon between the Borrower and X.X. Xxxxxx Securities Inc.
(b) The Borrower agrees to pay to the Agent, for the account of each
Bank, an upfront fee in an amount equal to 20 basis points of the new
Commitment of such Bank, payable on the Amendment Effective Date.
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Section 6. Governing Law. This Amendment shall be construed in accordance
with and be governed by the laws of the State of New York.
Section 7. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile shall be
effective as delivery of a manually executed counterpart of this Amendment.
[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 duly authorized officers as
of the Amendment Effective Date.
THE MEN'S WEARHOUSE, INC.
By: /s/ XXXXXXX XXXXXX
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: VP & Treasurer
COMMITMENTS
$17,000,000 JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS AGENT
By: /s/ H. XXXXX XXXXX
-------------------------------
Name: H. Xxxxx Xxxxx
Title: Vice President
$16,000,000 BANK OF AMERICA, N.A.
By: /s/ XXXX XXXXX
-------------------------------
Name: Xxxx Xxxxx
Title: Vice President
$16,000,000 WACHOVIA BANK, NATIONALASSOCIATION
By: /s/ XXXXX X. XXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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$13,000,000 UNION BANK OF CALIFORNIA, N.A.
By: /s/ XXXXX X. XXXXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
$11,000,000 U.S. BANK NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
$12,000,000 NATIONAL CITY BANK
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
$15,000,000 SOUTHWEST BANK OF TEXAS N.A.
By: /s/ XXXXXXX X. XXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: SVP
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