EXHIBIT 4.3
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Amendment"),
dated as of October 13, 2003 (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, ▇.▇.
▇▇▇▇▇▇ Securities Inc. (as "Sole Bookrunner"), ▇.▇. ▇▇▇▇▇▇ 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 permit
the Borrower to purchase, redeem or otherwise acquire its Capital Stock pursuant
to Section 10.3(d) and Section 10.3(e) of the Credit Agreement provided that the
aggregate amount of such purchases, redemptions and acquisitions made after the
date hereof shall not exceed $100,000,000;
WHEREAS, the Borrower has requested the Agent and the Banks to permit
additional Debt to be created pursuant to Section 10.2 of the Credit Agreement
in connection with the issuance of up to $143.75 million senior unsecured
convertible notes due 2023 or, in lieu thereof, other Debt of substantially
similar nature and terms and in no greater amount (the "Convertible Notes");
WHEREAS, the Borrower has requested the Agent and the Banks to permit
the guarantee by the Borrower and its Restricted Subsidiaries of certain
payments of its Unrestricted Subsidiaries;
WHEREAS, in connection with the foregoing, the Banks have agreed to
such requests 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 by amending the definition of "Adjusted
Available Amount" in its entirety to provide as follows:
""Adjusted Available Amount" means an amount equal to the sum
of (I) $25,000,000 plus (II) if positive, the aggregate amount of (i)
one-third of Consolidated Net Income of the Borrower and the Restricted
Subsidiaries minus (ii) 100% of consolidated net losses of the Borrower
and the Restricted Subsidiaries, in each case commencing with the
beginning of the fourth fiscal quarter of 2002, minus (III) Restricted
Investments made under Section 10.5(h) (including without limitation
(i) the net present value discounted at 5% of rental payments due from
Unrestricted Subsidiaries which are guaranteed by any of the Borrower
and its Restricted Subsidiaries, (ii) guarantees by the Borrower and
its Restricted Subsidiaries of employment contracts of employees of
Unrestricted Subsidiaries and (iii) a guarantee by any of the Borrower
and its Restricted Subsidiaries of up to $1.5 million in principal
amount of a note issued by an Unrestricted Subsidiary as part of the
purchase price of an acquired business."
(b) The definition of "Unrestricted Subsidiary" in Section 1.2 is
amended to insert after subsection (iv) the phrase "other than (i) a note
payable of up to $1.5 million in principal amount issued by an Unrestricted
Subsidiary as part of the purchase price of an acquired business, which may be
guaranteed by any of the Borrower and its Restricted Subsidiaries or (ii) any
other Debt of an Unrestricted Subsidiary which may be guaranteed by any of the
Borrower and its Restricted Subsidiaries, the incurrence of which guarantee is
permitted by compliance with Section 10.5(h),"
(c) Section 1.2 is amended by deleting therefrom the definition of
"Available Amount."
(d) Section 10.2 is amended by adding Section 10.2(n) as follows:
"(n) Debt relating to the issuance prior to October, 2004 of
senior unsecured convertible notes due no more than 20 years following
its original issuance, in an aggregate principal amount not to exceed
$143,750,000, substantially in form and substance as set forth in the
Offering Memorandum dated October, 2003 delivered to the Agent,
provided that (i) such Debt shall be on terms no more restrictive than
those set forth in the Loan Documents and (ii) such Debt shall not be
incurred when a Default or Event of Default exists or would result
therefrom."
(e) Section 10.2 is amended by adding Section 10.2(o) as follows:
"(o) Guarantees by any of the Borrower and its
Restricted Subsidiaries of Debt and other obligations of its
Unrestricted Subsidiaries, to the extent such guarantees are
permitted by Section 10.5(h)."
(f) Section 10.3(d) is amended in its entirety to provide as follows:
"(d) from and after the Closing Date, the Borrower
may repurchase shares of its common stock; provided that the
aggregate amount of (i) any such payments made after October
13, 2003 pursuant to this Section 10.3(d) plus
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(ii) the aggregate amount of payments made after October 13, 2003
pursuant to Section 10.3(e) shall not exceed $100,000,000."
(g) Section 10.3(e) is amended in its entirety to provide as follows:
"(e) from and after the Closing Date, the Borrower may
purchase, redeem or otherwise acquire shares of Capital Stock in
connection with the payment for the exercise of options granted to an
employee or director pursuant to an employee or director stock option
plan or withhold shares otherwise issuable upon the exercise of an
option in connection with the payment of any federal or state taxes
resulting from the exercise of any such option; provided that that the
aggregate amount of (i) any such payments made after October 13, 2003
pursuant to this Section 10.3(e) plus (ii) the aggregate amount of
payments made after October 13, 2003 pursuant to Section 10.3(d) shall
not exceed $100,000,000 (for the avoidance of doubt, the parties hereto
acknowledge that the provisions of this Section 10.3(e) are not
intended to limit broker assisted cashless exercises of stock options
granted to an employee or director (i.e. sales by a broker of shares of
Capital Stock subject to any such options, with the option exercise
price (plus any applicable federal or state taxes resulting from the
exercise) paid to the Borrower and any remaining sales proceeds paid to
the employee or director); and"
(h) Section 10.3(f) is amended in its entirety to provide as follows:
"(f) from and after the Closing Date, the Borrower may make
payments not to exceed an aggregate amount of $500,000 to its
shareholders required in connection with any stock split or stock
dividend with respect to its common stock or in connection with the
conversion of the convertible notes described in Section 10.2(n) in
order to avoid the issuance of fractional shares of its common stock,"
(i) Section 10.5(h) is amended in its entirety to provide as follows:
"(h) the Borrower and its Restricted Subsidiaries may make or
permit to remain outstanding additional Restricted Investments (other
than the types of Restricted Investments permitted under Subsections
(a) through (g) and (i) hereof) (including, without limitation,
Restricted Investments in Unrestricted Subsidiaries including without
limitation (i) guarantees by any of the Borrower and its Restricted
Subsidiaries of rental payments of Unrestricted Subsidiaries, (ii)
guarantees by any of the Borrower and its Restricted Subsidiaries of
employment contracts of employees of Unrestricted Subsidiaries, and
(iii) a guarantee of up to $1.5 million in principal amount of a note
issued by an Unrestricted Subsidiary as part of the purchase price of
an acquired business), provided that after giving effect to any such
Restricted Investments of the Borrower and its Restricted Subsidiaries
made after the Closing Date, the Adjusted Available Amount shall not be
less than zero; provided that, prior to and
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immediately after making such Restricted Investments, no Default or
Event of Default has occurred and is continuing or would exist; and"
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 Agreement shall become
effective as of the Amendment Effective Date when the Agent has confirmed (and
has so notified the Borrower) that counterparts hereof have been duly executed
by the Borrower and the Majority Banks and delivered to the Agent.
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; and
(ii) no event has occurred and is continuing which constitutes
a Default, an Event of Default or both.
Section 5. Governing Law. This Amendment shall be construed in
accordance with and be governed by the laws of the State of New York.
Section 6. 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ A/ ▇▇▇▇▇▇
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Title: VP Treasurer
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JPMORGAN CHASE BANK,
INDIVIDUALLY AND AS AGENT
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇
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Name: H. ▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
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Title: Managing Director
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WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇ ▇▇▇
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Title: Associate
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Assistant Vice President
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COMMERCEBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
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Title: EVP
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NATIONAL CITY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
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SOUTHWEST BANK OF TEXAS N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Banking Officer
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