exv4w2






EXHIBIT
4.2




AGREEMENT AND AMENDMENT

TO AMENDED AND RESTATED CREDIT AGREEMENT

(January 31, 2007)




          THIS AGREEMENT AND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“Amendment”), dated as of January 31, 2007 (the “Effective Date”), is made and
entered into by and among THE MEN’S WEARHOUSE, INC., a corporation organized under the laws of the
State of Texas (the “Revolving Borrower”); MOORES THE SUIT PEOPLE INC., a corporation
organized under the laws of the Province of New Brunswick, Canada (“MSP”); GOLDEN BRAND
CLOTHING (CANADA) LTD., a corporation organized under the laws of the Province of New Brunswick,
Canada (together with MSP, collectively, the “Term Borrowers” and individually, a “Term
Borrower”); the financial institutions whose names appear on the signature pages hereto
(collectively, the “Lenders” and individually, a “Lender”); JPMORGAN CHASE BANK,
N.A., as Administrative Agent (in such capacity, the “Administrative Agent”); and JPMORGAN
CHASE BANK, N.A., TORONTO BRANCH, as Canadian Agent (in such capacity, the “Canadian
Agent”). The Revolving Borrower, the Term Borrowers, the Lenders, the Administrative Agent and
the Canadian Agent are herein collectively called the “Parties”. This Amendment is joined
in by each Guarantor and each Pledgor for the purposes expressed herein.




Preliminary Statements




     1. The Parties are party to an Amended and Restated Credit Agreement dated as of December 21,
2005 (the “Credit Agreement”). Unless defined herein, terms used herein which are defined
in the Credit Agreement shall have the meanings therein ascribed to them.



     2. Pursuant to the Credit Agreement, certain Subsidiaries of the Revolving Borrower executed
and delivered to the Secured Parties (as defined therein) a Revolving Guaranty Agreement, the
Revolving Borrower as Term Guarantor executed and delivered to the Secured Parties (as defined
therein) a Term Guaranty Agreement, and certain Subsidiaries of the Revolving Borrower executed and
delivered to the Administrative Agent on behalf of the Secured Parties (as defined therein) a
Pledge and Security Agreement.



     3. The Revolving Borrower has asked the Lenders to extend the Revolving Maturity Date and to
increase the Total Revolving Commitment (without, however, reducing the Revolving Borrower’s
ability to cause an increase in the Total Revolving Commitment pursuant to and upon the terms
stated in Section 4.9 of the Credit Agreement). The Lenders are willing to extend the
Revolving Maturity Date and to increase the Total Revolving Commitment, all upon the terms and
conditions set forth in this Amendment.



 









 





Agreements




     NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the Parties, the Parties
agree as follows:



     1. Amendment and Addition of Definitions. 



     (a) The definition of “Revolving Maturity Date” set forth in Section 1.1 of the Credit
Agreement is hereby amended to provide in its entirety as follows:




          ““Revolving Maturity Date” means February 11, 2012.”



     (b) The definition of “Total Revolving Commitment” set forth in Section 1.1 of the
Credit Agreement is hereby amended to provide in its entirety as follows:




          ““Total Revolving Commitment” means, at any time, the sum of the Revolving
Commitments of all Revolving Lenders at such time. The amount of the Total Revolving
Commitment as of the effective date of the First Amendment is $200,000,000. The amount of
each Revolving Lender’s Revolving Commitment as of the date of the First Amendment is set
forth on Schedule 1.1(a).”



     (c) There is hereby added to Section 1.1 of the Credit Agreement the following
definition:




          ““First Amendment” means that certain Agreement and Amendment to First Amended
and Restated Credit Agreement dated as of January 31, 2007, by and among the Borrowers, the
Lenders signatory thereto, the Administrative Agent, and the Canadian Agent, and joined in
by the Guarantors and the Pledgors.”



     (d) Schedule 1.1(a) to the Credit Agreement is hereby amended to conform to
Schedule 1.1(a) of this Amendment.



     2. No Impairment. Nothing in this Amendment is intended to or shall be construed to
limit, impair or diminish any right or obligation of the Revolving Borrower under Section
4.9 of the Credit Agreement.



     3. Conditions Precedent. This Amendment shall be effective as of the date set forth
above, subject to the satisfaction, in a manner satisfactory to the Administrative Agent, of each
of the following conditions precedent:



     (a) Documents and Certificates. The Administrative Agent shall have received the
following, in each case in form, scope and substance satisfactory to the Administrative Agent:



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          (1) this Amendment, duly executed by the Borrowers, the Guarantors, the Pledgors, the
Lenders, the Administrative Agent, and the Canadian Agent;




          (2) a certificate of each Loan Party, dated as of the Effective Date and executed by
its Secretary or Assistant Secretary, certifying, inter alia, (A) Articles of Incorporation
and Bylaws (or equivalent corporate documents), as amended and in effect, of such Loan
Party; (B) resolutions duly adopted by the Board of Directors, members or other body of such
Loan Party authorizing the transactions contemplated by this Amendment, and (C) the
incumbency and specimen signatures of the officers of such Loan Party executing this
Amendment on its behalf;




          (3) such documents and certificates as the Administrative Agent may reasonably request
relating to the organization, existence and good standing of each Loan Party, and any other
legal matters relating to the Loan Parties, this Amendment, or the other Loan Documents;




          (4) a certificate dated the Effective Date executed by a Responsible Officer of the
Revolving Borrower certifying that, to the best of such Responsible Officer’s knowledge, (i)
since the end of Fiscal Year 2005 there has not occurred a material adverse change in the
business, property, operation or condition (financial or otherwise) of the Revolving
Borrower and its Subsidiaries, taken as a whole, (ii) the Revolving Borrower and the
Restricted Subsidiaries are, in all material respects, in compliance with all existing
financial obligations, (iii) no Default or Event of Default has occurred and is continuing,
(iv) the representations and warranties of the Revolving Borrower and each Restricted
Subsidiary contained in the Loan Documents (other than those representations and warranties
limited by their terms to a specific date, in which case they shall be true and correct as
of such date) are true and correct on and as of the Effective Date, (v) the Revolving
Borrower has no Material Restricted Subsidiary that has not executed and delivered to the
Secured Parties the Revolving Guaranty Agreement, and (vi) the Revolving Borrower has no
Material Restricted Subsidiary all of the Capital Stock in which (other than the total
issued and outstanding Foreign Subsidiary Voting Stock of a Foreign Subsidiary, as to which
no more than 65% is required to be pledged) has not been pledged to the Administrative Agent
for the equal and ratable benefit of the Secured Parties pursuant to the Pledge Agreement;




          (5) a duly executed promissory note, in the amount of such Lender’s new Revolving
Commitment, for the account of each Lender that requested a promissory note prior to the
Effective Date; and




          (6) any other documents reasonably requested by Administrative Agent on or before the
Effective Date.



     (b) Approvals. Each Loan Party shall have obtained all governmental and third party
approvals necessary or, in the reasonable judgment of the Administrative Agent, advisable to be



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obtained by such Loan Party in connection with such Loan Party’s execution and delivery of
this Amendment.



     (c) Compliance with Law. No Law shall prohibit the transactions contemplated by this
Amendment. No order, judgment or decree of any Governmental Authority, and no action, suit,
investigation or proceeding pending or, to the knowledge of the Revolving Borrower, threatened in
any court or before any arbitrator or Governmental Authority that purports to affect the Revolving
Borrower or any Restricted Subsidiary shall exist that could reasonably be expected to have a
Material Adverse Effect.



     (d) Payment of Fees and Expenses. The Administrative Agent shall have received
payment of all fees and expenses (to the extent invoiced) required to be paid by the Borrowers
hereunder or under the Credit Agreement, including the reasonable fees and expenses of counsel for
the Administrative Agent in connection with the negotiation and closing of this Amendment.



     The Administrative Agent shall notify the Borrowers and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.



     4. Financial Statements. The Revolving Borrower has furnished the Lenders with (a) its
audited consolidated financial statements for the Fiscal Year 2005 and (b) its unaudited
consolidated financial statements for the fiscal quarters ended April 29, 2006, July 29, 2006, and
October 28, 2006, certified by its chief financial officer, including balance sheets, income
statements and cash flow statements. The financial statements described above have been prepared
in conformity with GAAP, subject to year-end audit adjustments and the absence of footnotes in the
case of the financial statements referred to in clause (b) above. The financial statements
described above fairly present the consolidated financial condition of the Revolving Borrower and
its Subsidiaries and the results of their operations as of the dates and for the periods indicated.
As of the Effective Date, there has been no event since January 28, 2006, which could reasonably
be expected to have a Material Adverse Effect. As of the Effective Date, there exist no material
contingent liabilities or obligations, unusual long-term commitments or unrealized losses of the
Revolving Borrower or any Subsidiary which are not fully disclosed in the financial statements
described above or disclosed by the Revolving Borrower to the Administrative Agent in writing.



     5. Litigation. As of the Effective Date, there is no action, suit or proceeding pending
(or, to the best knowledge of the Revolving Borrower, threatened) against the Revolving Borrower or
any Subsidiary before any court, administrative agency or arbitrator (i) which could reasonably be
expected to have a Material Adverse Effect or (ii) that involves any of the Loan Documents or the
Transactions.



     6. Representations True; No Default. The Revolving Borrower represents and warrants
that (a) the representations and warranties of the Revolving Borrower and each Restricted
Subsidiary contained in the Loan Documents (other than those representations and warranties limited
by their terms to a specific date, in which case they shall be true and correct as
of such date) are true and correct on and as of the Effective Date and (b) as of the Effective
Date of this Amendment, no Default or Event of Default has occurred and is continuing.



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     7. Ratification. The Credit Agreement, as hereby amended, and the other Loan
Documents are in all respects ratified and confirmed and are, and shall continue to be, in full
force and effect. The Borrowers, each Guarantor and each Pledgor hereby agree and acknowledge that
all of their respective liabilities and obligations under the Credit Agreement, the other Loan
Documents, or otherwise, remain in full force and effect as of the date of this Amendment and after
giving effect to it.



     8. Definitions and References. Unless otherwise defined herein, terms used herein
which are defined in the Credit Agreement or in the other Loan Documents shall have the meanings
therein ascribed to them. The term “Agreement” as used in the Credit Agreement and the term
“Credit Agreement” as used in the other Loan Documents or any other instrument, document or writing
furnished to the Administrative Agent, the Canadian Agent, or any Lender by or on behalf of any
Loan Party shall mean the Credit Agreement as hereby amended.



     9. Expenses. Each Borrower agrees to pay within fifteen (15) days after demand all
reasonable costs and expenses (including reasonable counsel’s fees) incurred in connection with the
preparation, reproduction, execution and delivery of this Amendment and with respect to advising
the Administrative Agent as to its rights and responsibilities under the Credit Agreement, as
hereby amended. In addition, the Borrowers shall pay all costs and expenses of the Administrative
Agent and each Secured Party (including counsel’s fees) in connection with the enforcement of this
Amendment.



     10. Severability. Should any clause, sentence, paragraph or section of this
Amendment, or of the Credit Agreement as amended by this Amendment, be judicially declared to be
invalid, unenforceable or void, such decision shall not have the effect of invalidating or voiding
the remainder of this Amendment or of the Credit Agreement, and the Parties agree that the part or
parts of this Amendment or of the Credit Agreement as amended by this Amendment so held to be
invalid, unenforceable or void will be deemed to have been stricken herefrom and therefrom and the
remainder will have the same force and effectiveness as if such part or parts had never been
included herein.



     11. Miscellaneous. This Amendment (a) may be modified, amended or waived only in the
manner prescribed by the Credit Agreement; (b) SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK AND THE UNITED STATES OF AMERICA; (c) embodies the entire
agreement and understanding among the Parties, the Guarantors and the Pledgors with respect to the
subject matter hereof and supersedes all prior agreements, consents and understandings relating to
such subject matter, and (d) is a Loan Document.



     12. Survival of Representations, Warranties and Covenants. All representations,
warranties and covenants contained herein or made in writing by the Revolving Borrower and the
Restricted Subsidiaries in connection herewith shall survive the execution and delivery of this
Amendment and will bind and inure to the benefit of the respective successors and permitted
assigns of the Parties, whether so expressed or not. No investigation at any time made by or
on



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behalf of the Lenders shall diminish the Lenders’ right to rely on such representations,
warranties and covenants.



     13. Counterparts. This Amendment may be executed in several counterparts, and by the
Parties, the Guarantors and the Pledgors on separate counterparts, and each counterpart, when so
executed and delivered, shall constitute an original instrument, and all such separate counterparts
shall constitute but one and the same instrument. Delivery of an executed counterpart of a
signature page to any Loan Document by facsimile or internet transmission shall be as effective as
delivery of an original, manually executed counterpart thereof.



     14. Descriptive Headings. The section headings in this Amendment have been inserted
for convenience only and shall be given no substantive meaning or significance whatsoever in
construing the terms and provisions of this Amendment.



     15. Provisions Incorporated by Reference. The provisions of Article 11 and of
Sections 13.1, 13.5, 13.10, 13.12 through 13.16, and 13.18 through 13.21 of the
Credit Agreement are incorporated into this Amendment by this reference and shall be applicable to
this Amendment and the matters addressed in it as if set forth herein in full.



     16. Confirmation of Revolving Guaranty Agreement and Pledge and Security Agreement.



     (a) Each of the Guarantors and each of the Pledgors hereby (i) consents to the execution and
delivery by the Borrowers of this Amendment and (ii) acknowledges that without such consent and
confirmation, the Secured Parties would not agree to this Amendment.



     (b) Each Revolving Guarantor hereby confirms that, notwithstanding the changes made by this
Amendment, the Revolving Guaranty Agreement dated as of December 21, 2005, applies and shall
continue to apply to the Credit Agreement, as amended by this Amendment, and all Obligations of the
Revolving Borrower now or hereafter existing (except as otherwise limited by the Revolving Guaranty
Agreement).



     (c) The Term Guarantor hereby confirms that, notwithstanding the changes made by this
Amendment, the Term Guaranty Agreement dated as of December 21, 2005, applies and shall continue to
apply to the Credit Agreement, as amended by this Amendment, and all Obligations of the Term
Borrowers now or hereafter existing.



     (d) Each Pledgor hereby (i) pledges to the Administrative Agent, for the equal and ratable
benefit of the Secured Parties, and hereby grants to the Administrative Agent, for the equal and
ratable benefit of the Secured Parties, a security interest in, and a lien on, the Pledged
Collateral to secure the Obligations of the Revolving Borrower and the Restricted Subsidiaries as
the same may be modified and increased pursuant to this Amendment, and (ii) confirms that,
notwithstanding the changes made by this Amendment, the Pledge and Security Agreement dated as of
December 21, 2005, which such Pledgor executed in favor of the Secured Parties under the



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Credit Agreement, secures and shall continue to secure all Obligations of the Revolving
Borrower and the Restricted Subsidiaries under the Loan Documents.



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     THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT AMONG THE PARTIES, THE GUARANTORS AND THE
PLEDGORS AS TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES.



     IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their respective
duly authorized officers.



	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC., as Revolving Borrower

 	 
	 	By:  	/s/ Neill P. Davis
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Executive Vice President, Chief Financial

Officer, Treasurer and Principal Financial Officer 	 
	 
	 	MOORES THE SUIT PEOPLE INC., as Term Borrower

 	 
	 	By:  	/s/ Neill P. Davis
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Treasurer 	 
	 
	 	GOLDEN BRAND CLOTHING (CANADA) LTD., as Term Borrower

 	 
	 	By:  	/s/ Neill P. Davis
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Treasurer 	 
	 




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     Each Guarantor and each Pledgor signs below to agree as provided in Section 16 of
this Amendment.



	 	 	 	 	 
	 	THE MEN’S WEARHOUSE, INC.,

as Pledgor and Term Guarantor

 	 
	 	By:  	/s/ Neill P. Davis
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Executive Vice President, Chief Financial
Officer, Treasurer and Principal Financial Officer 	 
	 




 









 








	 	 	 	 	 
	 	TMW MARKETING COMPANY, INC.

as Pledgor and as Revolving Guarantor

 	 
	 	By:  	/s/ Claudia Pruitt
 	 
	 	 	Name:  	Claudia Pruitt 	 
	 	 	Title:  	Vice President and Treasurer 	 
	 




 









 








	 	 	 	 	 
	 	TMW MERCHANTS LLC,

as Pledgor and as Revolving Guarantor

 	 
	 	By:  	/s/ Neill P. Davis
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Vice President, Treasurer and Chief Financial
Officer 	 
	 




 









 








	 	 	 	 	 
	 	MOORES RETAIL GROUP INC.,

as Pledgor

 	 
	 	By:  	/s/ Neill P. Davis
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Treasurer 	 
	 




 









 








	 	 	 	 	 
	 	TMW PURCHASING LLC,

as Revolving Guarantor

 	 
	 	By:  	/s/ Neill P. Davis
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Vice President, Treasurer and Chief Financial
Officer 	 
	 




 









 








	 	 	 	 	 
	 	K&G MEN’S COMPANY INC.,

as Revolving Guarantor

 	 
	 	By:  	/s/ Neill P. Davis
 	 
	 	 	Name:  	Neill P. Davis 	 
	 	 	Title:  	Treasurer 	 
	 




 









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as 

Administrative Agent and as Revolving Lender

 	 
	 	By:  	/s/ H. David Jones
 	 
	 	 	Name:  	H. David Jones 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 








	 	 	 	 	 
	 	WACHOVIA BANK, NATIONAL ASSOCIATION, as Revolving Lender

 	 
	 	By:  	/s/ Mark S. Supple
 	 
	 	 	Name:  	Mark S. Supple 	 
	 	 	Title:  	Vice President 	 
	 




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Revolving Lender

 	 
	 	By:  	/s/ Brian D. Corum
 	 
	 	 	Name:  	Brian D. Corum 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 








	 	 	 	 	 
	 	BANK OF AMERICA, N.A. (CANADA BRANCH), as Term Lender

 	 
	 	By:  	/s/ Medina Sales de Andrade
 	 
	 	 	Name:  	Medina Sales de Andrade 	 
	 	 	Title:  	Vice President 	 
	 




 









 








	 	 	 	 	 
	 	NATIONAL CITY BANK, as Revolving Lender

 	 
	 	By:  	/s/ Michael J. Durbin
 	 
	 	 	Name:  	Michael J. Durbin 	 
	 	 	Title:  	Senior Vice President 	 
	 








 









 











	 	 	 	 	 
	 	NATIONAL CITY BANK, as Term Lender

 	 
	 	By:  	/s/ Michael J. Durbin
 	 
	 	 	Name:  	Michael J. Durbin 	 
	 	 	Title:  	Senior Vice President 	 
	 




 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Revolving Lender

 	 
	 	By:  	/s/ Veronica Morrissette
 	 
	 	 	Name:  	Veronica Morrissette 	 
	 	 	Title:  	Vice President 	 
	 




 









 








	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, CANADA BRANCH, as Term Lender

 	 
	 	By:  	/s/ Kevin Jephcott
 	 
	 	 	Name:  	Kevin Jephcott 	 
	 	 	Title:  	Principal Officer 	 
	 




 









 








	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, as Revolving Lender

 	 
	 	By:  	/s/ Richard Hawthorne
 	 
	 	 	Name:  	Richard Hawthorne 	 
	 	 	Title:  	Director 	 
	 




 









 





	 	 	 	 	 
	 	THE BANK OF NOVA SCOTIA, as Term Lender

 	 
	 	By:  	/s/ Richard Hawthorne
 	 
	 	 	Name:  	Richard Hawthorne 	 
	 	 	Title:  	Director 	 
	 




 









 





	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, N.A., as Revolving Lender

 	 
	 	By:  	/s/ Henry G. Montgomery
 	 
	 	 	Name:  	Henry G. Montgomery 	 
	 	 	Title:  	Vice President 	 
	 




 









 








	 	 	 	 	 
	 	UNION BANK OF CALIFORNIA, CANADA BRANCH, as Term Lender

 	 
	 	By:  	/s/ Henry G. Montgomery
 	 
	 	 	Name:  	Henry G. Montgomery 	 
	 	 	Title:  	Vice President 	 
	 




 









 








	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., as Revolving Lender

 	 
	 	By:  	/s/ Steve Melton
 	 
	 	 	Name:  	Steve Melton 	 
	 	 	Title:  	Vice President 	 
	 




 









 








	 	 	 	 	 
	 	WELLS FARGO FINANCIAL CORPORATION CANADA, as Term Lender

 	 
	 	By:  	/s/ Nick Scarfo
 	 
	 	 	Name:  	Nick Scarfo 	 
	 	 	Title:  	Vice President 	 
	 








 









 











	 	 	 	 	 
	 	BANK OF TEXAS, N.A., as Revolving Lender

 	 
	 	By:  	/s/ Marian Livingston
 	 
	 	 	Name:  	Marian Livingston 	 
	 	 	Title:  	Vice President 	 
	 




 










 





Schedule 1.1(a)

to

Agreement and Amendment to Amended and Restated Credit Agreement

dated as of January 31, 2007




	 	 	 	 	 	 	 	 	 
	Institution	 	Allocation	 	Percent of Total
	JPMorgan Chase Bank, N.A.
	 	$	30,000,000	 	 	 	15.0	%
	Wachovia Bank, National Association
	 	 	30,000,000	 	 	 	15.0	%
	Bank of America, N.A.
	 	 	25,000,000	 	 	 	12.5	%
	Wells Fargo Bank, N.A.
	 	 	22,500,000	 	 	 	11.3	%
	National City Bank
	 	 	20,000,000	 	 	 	10.0	%
	US Bank, National Association
	 	 	20,000,000	 	 	 	10.0	%
	Union Bank of California, N.A.
	 	 	17,500,000	 	 	 	8.8	%
	The Bank of Nova Scotia
	 	 	17,500,000	 	 	 	8.8	%
	Bank of Texas, N.A.
	 	 	17,500,000	 	 	 	8.8	%
	 	 	 
	Total:
	 	$	200,000,000	 	 	 	100.0	%