EXHIBIT 4.7
NATIONAL CITY
NATIONAL CITY BANK
CANADA BRANCH
THE EXCHANGE TOWER
130 KING STREET WEST, SUITE 2140
P.O. BOX 462
TORONTO, ONTARIO M5X 1E4
(416) 361-1744 FAX (416) 361-0085
JANUARY 15, 2003
GOLDEN BRAND CLOTHING (CANADA) LTD.
44 CHIPMAN HILL,
10TH FLOOR
SAINT JOHN, NB
DEAR SIRS:
We are pleased to advise that National City Bank, Canada Branch (the LENDER) is
prepared to provide a credit facility to you, subject to the following terms and
conditions.
BORROWER: Golden Brand Clothing (Canada) Ltd.
CREDIT
FACILITIES: Facility 1: Uncommitted revolving credit facility
up to Canadian Dollars Ten Million (CDN $ 10,000,000)
(or the equivalent amount in US Dollars) by way of
Letters of Credit.
PURPOSE: Facility 1: To support the ongoing issuance of import
Letters of Credit (with maturities of up to 180
days); and the one-time issuance of a Stand-By Letter
of Credit up to Canadian Dollars Six Million (CDN $
6,000,000) (with maturity of up to 150 days) (or the
equivalent amount in US Dollars) to support
outstanding import Letters of Credit issued by Bank
of America; with the aggregate not to exceed Canadian
Dollars Ten Million (CDN $ 10,000,000) (or the
equivalent amount in US Dollars).
TERM AND
MATURITY: Facility 1: On demand.
AVAILABILITY
AND INTEREST
RATES: Facility 1: In Canadian dollars by way of Letters
of Credit for a term of up to 364 days at the L/C
Usage Fee Rate.
In US dollars by way of Letters of Credit for a term
of up to 364
GOLDEN BRAND CLOTHING (CANADA) LTD.
JANUARY 15, 2003
days at the L/C Usage Fee Rate.
Interest on the Stand-By Letter of Credit shall be
levied at the rate of 175 basis points per annum.
USAGE FEE: Facility 1: Usage Fee of 35 basis points per annum
on the average facility usage will be payable
quarterly in arrears on the first business day
following each quarter, commencing April 1, 2003.
SECURITY: Facility 1:
Guarantee of The Men's Wearhouse, Inc. for full
liability.
CONDITIONS
PRECEDENT: (a) The Borrower shall have obtained all
requisite consents, approvals, orders and
rulings required for the execution, delivery
and performance by the Borrower of its
obligations under this Agreement;
(b) The security to be delivered at closing
shall have been executed and delivered;
(c) There shall be no material adverse change in
the financial condition, operations, assets
or properties of the Borrower as of closing.
COVENANTS: (a) Use of Proceeds. The Borrower shall use the
Letters of Credit hereunder for the purpose
provided under the Purpose heading and in
the ordinary course of the Borrower's
business.
(b) Compliance with Legislation. The Borrower
shall comply with all applicable laws,
rules, regulations or court orders in all
material respects, other than any failure to
be in compliance that could not reasonably
be expected to result in a material adverse
effect to the Borrower.
(c) Material Litigation. The Borrower shall
promptly give written notice to the Lender
of any commencement of litigation, legal,
administrative, or arbitration proceeding or
dispute affecting the Borrower or any of its
subsidiaries if the result might, in the
Borrower's bona fide opinion, have a
materially adverse effect on the financial
condition or operations of the Borrower or
any of its subsidiaries, and from time to
time furnish to the Lender all reasonable
information requested by the Lender
concerning the
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GOLDEN BRAND CLOTHING (CANADA) LTD.
JANUARY 15, 2003
status of any such litigation, proceeding or
dispute; provided that such notice or
request for information does not require a
waiver of the attorney-client privilege.
REPRESENTATIONS
AND WARRANTIES: (a) Corporate Status. The Borrower is a
corporation duly incorporated and validly
existing under the laws of ? New Brunswick
and has all necessary corporate power and
authority to own its respective properties
and carry on its respective business as
presently carried on and is duly licensed,
registered or qualified in all jurisdictions
where the character of its property owned or
leased or the nature of the activities
conducted by it makes such licensing,
registration or qualification necessary and
where failure to be so qualified would have
a material adverse effect on the financial
condition or operations of the Borrower.
(b) Corporate Authority. The Borrower has full
corporate power and authority to enter into
this Agreement and the documents
contemplated hereunder and to do all acts
and execute and deliver all other documents
as are required hereunder or thereunder to
be done, observed or performed by it in
accordance with their terms.
(c) Valid Authorization. The Borrower has taken
all necessary corporate action to authorize
the creation, execution, delivery and
performance of this Agreement and the
documents contemplated hereunder and to
observe and perform the provisions of each
in accordance with its terms.
(d) Validity of Documents and Enforceability.
This Agreement when executed and delivered
will constitute valid and legally binding
obligations of the Borrower enforceable
against it in accordance with its respective
terms subject to applicable federal, state,
provincial or foreign liquidation,
dissolution, winding-up, conservatorship,
moratorium, receivership, reorganization,
bankruptcy, insolvency and other laws of
general application limiting the
enforceability of creditors' rights and to
the fact that specific performance is an
equitable remedy available only in the
discretion of the court. Neither the
execution and delivery of this Agreement nor
compliance with the terms and conditions of
it, (i) has resulted or will result in a
violation of the articles or the by-laws of
the Borrower or any resolutions passed by
the Board of Directors or shareholders of
the Borrower or any applicable law, rule,
regulation, order, judgment, injunction,
award or decree, (ii) has resulted or will
result in a breach of, or constitute a
default
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GOLDEN BRAND CLOTHING (CANADA) LTD.
JANUARY 15, 2003
under, any material agreement to which the
Borrower is a party or by which it is bound
or (iii) requires any approval or consent of
any governmental authority or agency having
jurisdiction over the Borrower except such
as has already been obtained.
(e) Non-Default. As of closing date/the date of
application for a letter of credit, no Event
of Default as hereinafter defined has
occurred and no event has occurred which
constitutes or which, with the giving of
notice, lapse of time or otherwise would
constitute an Event of Default, and, in each
case, is continuing.
(f) Absence of Litigation. There are no actions,
suits or proceedings pending or, to the
knowledge of the Borrower, threatened
against or affecting the Borrower or any of
its subsidiaries or any of their
undertakings and assets, at law, in equity
or before any arbitrator or before or by any
governmental department, body, commission,
board, bureau, agency or instrumentality
having jurisdiction in the premises in
respect of which there is a reasonable
possibility of a determination adverse to
the Borrower or any subsidiary and which
could, if determined adversely, materially
and adversely affect the ability of the
Borrower to perform any of its obligations
under this Agreement and the documents
contemplated hereunder. Neither the Borrower
nor any subsidiary is in violation of any
law, regulation, order, writ, judgment,
injunction or award of any competent
government, commission, board, agency,
court, arbitrator or instrumentality which
would have such an effect, and, in each case
with respect to the foregoing, which
violation could reasonably be expected to
have a material adverse effect on them.
(g) Environmental. The Borrower is not aware of
any failure on its part or on the part of
any of its subsidiaries to comply in all
material respects with all requirements of
environmental law other than any failure to
be in compliance that could not reasonably
be expected to result in a material adverse
effect to the Borrower or any of its
subsidiaries.
ACCOUNT
OF RECORD: The Lender shall maintain accounts evidencing all
amounts owing by the Borrower to the Lender under
this Agreement. The information entered in the
foregoing accounts shall constitute prima facie
evidence of the obligations of the Borrower to the
Lender with respect to all amounts owing by the
Borrower hereunder. The Lender shall advise the
Borrower promptly after receipt by the Lender of
Borrower's request in writing of all entries made in
such accounts.
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GOLDEN BRAND CLOTHING (CANADA) LTD.
JANUARY 15, 2003
EVENTS OF DEFAULT: The Borrower will be in default under this Agreement
upon the occurrence and during the continuance of any
of the following events (herein referred to as an
EVENT OF DEFAULT):
(a) the Borrower does not pay to the Lender any
sum when due and payable pursuant to the
terms of this Agreement and such default is
not remedied within five Banking Days
following such due date;
(b) the Borrower defaults in the observance or
performance of any material covenant or
obligation of the Borrower contained in this
Agreement and such default continues
unremedied for thirty days after the
occurrence of each event;
(c) any representation or warranty made by the
Borrower herein or in any document or
certificate provided at any time to the
Lender in connection herewith is proven to
be incorrect or misleading in any material
respect;
(d) an event of default under any loan, letter
of credit, letter of guaranty, banker's
acceptance, bond, debenture, note, or other
similar agreement between the Lender and the
Borrower or under any such material
agreement between the Borrower and any other
person;
(e) the Borrower ceases or adopts resolutions to
dissolve, liquidate, wind-up or otherwise
cease to carry on the business currently
being carried on by it or makes a
substantial change in the nature of the
business currently being carried on by the
Borrower or makes or agrees to make an
assignment, disposition or conveyance,
whether by way of sale or otherwise, of its
assets in bulk;
(f) the Borrower is an insolvent person within
the meaning of the Bankruptcy and Insolvency
Act (Canada) or commences or threatens to
commence a voluntary bankruptcy proceeding;
(g) the commencement of any proceeding or the
taking of any step by or against the
Borrower for the dissolution, liquidation or
winding-up of the Borrower or for any relief
under the laws of any jurisdiction relating
to bankruptcy, insolvency, reorganization,
arrangement, compromise or winding-up, or
for the appointment of one or more of a
trustee, receiver, receiver and manager,
custodian, liquidator or any other person
with similar powers with respect to the
Borrower or any part thereof;
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GOLDEN BRAND CLOTHING (CANADA) LTD.
JANUARY 15, 2003
(h) any judgment shall be entered against the
Borrower in any judicial or administrative
tribunal or before any arbitrator or
mediator that, individually or in the
aggregate, is in excess of 5 % of the
Borrower's net worth (as of any date, the
total shareholders' equity of the Borrower
that appears on the balance sheet of the
Borrower as of such date) and either (1)
enforcement proceedings shall have been
commenced by any creditor upon such
judgement or order or (2) there shall be any
period of thirty consecutive days during
which a stay of enforcement of such judgment
or order, by reason of a pending appeal or
otherwise, shall not be in effect;
(i) there shall occur or commence to exist any
event, condition, or other thing that
constitutes an Event of Default as defined
in any addendum to this Agreement;
DEFINITIONS: Except where the context clearly requires otherwise,
BANKING DAY means, in respect of a Loan other than a
Libor Loan, a day on which banks are open for
business in Toronto, Ontario but does not in any
event include a Saturday or a Sunday; SUBSIDIARY
means a corporation or other business entity if
shares constituting a majority of its outstanding
capital stock (or other form of ownership) or
constituting a majority of the voting power in any
election of directors (or shares constituting both
majorities) are (or upon the exercise of any
outstanding warrants, options or other rights would
be) owned directly or indirectly at the time in
question by the corporation in question or another
subsidiary of that corporation or any combination of
the foregoing; and the foregoing definitions shall be
applicable to the respective plurals of the foregoing
defined terms.
OTHER
DEFINITIONAL
MATTERS: Unless otherwise stated, wherever in this Agreement
reference is made to a rate of interest "per annum"
or a similar expression is used, such interest shall
be calculated using the nominal rate method, and not
the effective rate method, of calculation and on the
basis of a calendar year of 365 days or 366 days, as
the case may be.
For the purposes of this Agreement, whenever interest
to be paid hereunder is to be calculated on the basis
of a year of 360 days, the yearly rate of interest to
which the rate determined pursuant to such
calculation is equivalent is the rate so determined
multiplied by the actual number of days in the
calendar year in which the same is to be ascertained
and divided by 360.
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GOLDEN BRAND CLOTHING (CANADA) LTD.
JANUARY 15, 2003
COSTS: All costs, including legal and appraisal fees,
incurred by the Lender relative to security and other
documentation, shall be for the account of the
Borrower.
GOVERNING
LAW: Laws of the Province of Ontario.
EXECUTED
COPY: The Borrower acknowledges receipt of a fully executed
copy of this Agreement.
AMENDMENTS: No Amendment of any provision of this Agreement or
any document contemplated hereunder nor consent to
any departure by the Borrower herefrom or therefrom,
shall be effective unless the same shall be in
writing and signed by the Borrower and the Lender.
THE PROVISIONS OF THIS TERM SHEET ARE TO BE READ IN CONJUNCTION WITH NATIONAL
CITY'S APPLICATIONS FOR IRREVOCABLE STANDBY LETTER OF CREDIT AND FOR IRREVOCABLE
COMMERCIAL LETTER OF CREDIT INTO WHICH THE BORROWER MAY ENTER FROM TIME TO TIME.
IF THERE ARE ANY CONFLICTS OR INCONSISTENCIES AMONG THIS AGREEMENT AND ANY OTHER
DOCUMENTS, AGREEMENTS, OR INSTRUMENTS, INCLUDING BUT NOT LIMITED TO NATIONAL
CITY'S APPLICATIONS FOR IRREVOCABLE STANDBY LETTER OF CREDIT AND FOR IRREVOCABLE
COMMERCIAL LETTER OF CREDIT, THE PROVISIONS OF THIS AGREEMENT SHALL PREVAIL AND
CONTROL.
NATIONAL CITY BANK, CANADA BRANCH
THE EXCHANGE TOWER, 130 KING STREET WEST, SUITE 2140
TORONTO, ONTARIO M5X 1E4 CANADA
PER: /s/ C. WILLIAM HINIS
------------------------------
PER:/s/ KENNETH FEAGAN
-------------------------------
WE ACKNOWLEDGE AND ACCEPT THE ABOVE TERMS AND CONDITIONS, THIS___ DAY OF
JANUARY, 2003
GOLDEN BRAND CLOTHING (CANADA) LTD.
PER: /s/ NEILL P. DAVIS
-----------------------------------
PER: ________________________________
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