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EXHIBIT 4.16
THIRD AMENDMENT TO
REVOLVING CREDIT AGREEMENT
(C $30,000,000 Revolving Credit Agreement)
THIS THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as of
February 13, 2001 (this "Amendment"), by and among XXXXXX RETAIL GROUP INC. (the
"Borrower"), THE MEN'S WEARHOUSE, INC. (the "Parent"), the financial
institutions listed on the signature pages hereto (the "Banks") and BANK OF
AMERICA CANADA, in its capacity as agent (the "Agent") and in its individual
capacity as a Bank hereunder.
WHEREAS, the Borrower, the Parent, the Agent and the Banks
have entered into that certain Revolving Credit Agreement dated as of February
10, 1999, as amended by that certain First Amendment to Revolving Credit
Agreement (the "First Amendment") dated as of September 14, 1999, and as further
amended by that certain Second Amendment to Revolving 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 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 Parent
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 PROVINCE OF NEW BRUNSWICK AND THE FEDERAL LAWS OF
CANADA.
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.
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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 XXXXXX RETAIL GROUP INC.
By: /s/ NEILL X. XXXXX
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Name: Neill X. Xxxxx
Title: Treasurer
Banks BANK OF AMERICA CANADA
as a Bank and as Agent
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Vice President
Corporate Investment Banking
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 REVOLVER)
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.)
Golden Moores Finance Company (100% owned by The Men's Wearhouse, Inc.)
Xxxxxx The Suit People Inc. (100% owned by Xxxxxx Retail Group Inc.)
Golden Brand Clothing (Canada) Ltd. (100% owned by Xxxxxx Retail Group
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
Xxxxxx Retail Group Inc. (100% of the voting Common Shares and
nonvoting Exchangeable Shares owned by Golden Moores Company)
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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