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EXHIBIT 10.18
SECOND AMENDMENT
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of November 8, 1996 ("Amendment"), by and among THE MEN'S
WEARHOUSE, INC., a Texas corporation ("Borrower"), the banks listed on the
signature pages hereof (each individually a "Bank" and collectively the
"Banks"), and NATIONSBANK OF TEXAS, N.A. (in its individual capacity,
"NationsBank") as Agent (in its capacity as Agent, the "Agent") for the Banks
to the Second Amended and Restated Credit Agreement, dated as of March 14, 1995
(as amended, "Second Restated Credit Agreement"), by and among the Borrower,
the Bank and the Agent. Terms used herein and not otherwise defined shall have
the meanings assigned to them in the Second Restated Credit Agreement;
WHEREAS, the Borrower, the Banks and the Agent are parties to
the Second Restated Credit Agreement;
WHEREAS, the Borrower proposes to form a new Subsidiary, Value
Priced Clothing, Inc., a corporation to be incorporated under the laws of the
State of California ("NewCo"), to be directly and wholly-owned by the Borrower;
WHEREAS, the Borrower proposes to make an initial loan of
$9,000,000 to NewCo (the "Loan") and make an initial $8,500,000 capital
contribution to NewCo (the "Investment");
WHEREAS, it is proposed that NewCo shall use the proceeds of
the Loan and the Investment to purchase certain assets of C&R Clothiers, Inc.
(the "Acquisition") as well as make other Investments; and
WHEREAS, the Borrower, the Banks and the Agent desire to amend
certain provisions of the Second Restated Credit Agreement in connection with
the Acquisition;
NOW, THEREFORE, in consideration of the premises and
consideration of the mutual promises set forth herein and other good valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
agree as follows:
1. Section 8.02 of the Second Restated Credit Agreement
is hereby amended to include the following new Subsection:
(i) Unsecured Debt of Value Priced Clothing, Inc.
to the Borrower, provided that the terms and
provisions thereof shall be subject to
Section 8.08.
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2. Section 8.05 of the Second Restated Credit Agreement
is hereby amended to include the following new Subsection:
(i) capital contributions, loans and advances
from the Borrower to Value Priced Clothing,
Inc. (provided that the terms and provisions
of any such loans and advances shall be
subject to Section 8.08).
3. This Amendment shall become effective as of the date
hereof subject to the condition precedent that the Agent shall have received
the following in sufficient copies for each Bank:
(a) this Amendment, duly executed by the parties
hereto;
(b) a Guaranty in the form required by Section
7.07, dated as of the date hereof, duly executed by NewCo;
(c) a Certificate of the Secretary of NewCo,
dated as of the date hereof certifying (1) the names and true
signatures of the officers of NewCo authorized to sign each Loan
Document to which NewCo is a party and the notices and other documents
to be delivered by NewCo pursuant to any such Loan Document; (2) the
By-laws and Articles of Incorporation of NewCo as in effect on the
date of such certification; and (3) the resolutions of the Board of
Directors of NewCo approving and authorizing the execution, delivery
and performance by NewCo of each Loan Document to which NewCo is a
party, the notices and other documents to be delivered by NewCo
pursuant to any such Loan Document, and the transactions contemplated
thereunder; and
(d) Certificates of appropriate officials as to
the existence and good standing of NewCo in its jurisdiction of
incorporation and any and all other jurisdictions which require NewCo
to be qualified therein and where the failure to be so qualified would
have a Material Adverse Effect.
4. In order to induce the Agent and each Bank to enter
into this Amendment, the Borrower represents and warrants that as of the date
hereof, and after giving effect to the Acquisition and the terms and conditions
hereof:
(a) the representations and warranties contained
in Article IV of the Second Restated Credit Agreement are, and shall
be, true and correct at and as of such dates; and
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(b) no Default or Event of Default exists, or
will exist, at and as of such dates.
5. The Second Restated Credit Agreement as amended
hereby is hereby ratified and confirmed in all respects. Any reference to the
Second Restated Credit Agreement in any Loan Document shall be deemed to be a
reference to the Second Restated Credit Agreement as amended hereby. The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Agent or any Bank under the Second Restated Credit Agreement or any other
Loan Document nor constitute a waiver of any provision of the Second Restated
Credit Agreement or any other Loan Document.
6. This Amendment is a Loan Document, and all provisions
in the Second Restated Credit Agreement pertaining to Loan Documents apply
hereto.
7. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but
one and the same agreement.
8. This Amendment shall be governed by and construed in
accordance with the laws of the State of Texas and any applicable laws of the
United States of America in all respects, including construction, validity and
performance.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
THE MEN'S WEARHOUSE, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Vice President
NATIONSBANK OF TEXAS, N.A.,
Agent
By: /s/ XXXXXXX X. XXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
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NATIONS BANK OF TEXAS, N.A.,
in its individual capacity
By: /s/ XXXXXXX X. XXXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
UNION BANK
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
The undersigned Guarantors of indebtedness of the Borrower under the
Second Restated Credit Agreement hereby acknowledge the execution and delivery
of this Third Amendment to Second Amended and Restated Credit Agreement.
TMW TEXAS RETAIL L.P.
By: TMW Texas General, Inc.,
its general partner
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
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TMW TEXAS LIMITED, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
TMW TEXAS GENERAL, INC.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Assistant Treasurer
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