Exhibit 10.1
FOURTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Second Amendment to Fourth Amended and Restated Loan and
Security Agreement (the "Second Amendment") is made as of this 15th day
of December, 2005 by and among
CASUAL MALE RETAIL GROUP, INC., and DESIGNS APPAREL, INC.
(referred to individually as a "Borrower" and collectively as the
"Borrowers"); and
CASUAL MALE RETAIL GROUP, INC., as Borrowers' Representative for
the Borrowers; and
FLEET RETAIL GROUP, LLC, (formerly known as FLEET RETAIL GROUP,
INC.), ▇▇▇▇▇▇ FINANCIAL, INC., NATIONAL CITY BUSINESS CREDIT,
INC., ▇▇▇▇▇ FARGO FOOTHILL, INC., ▇▇▇▇▇ FARGO BUSINESS CREDIT,
INC., LASALLE RETAIL FINANCE, A DIVISION OF LASALLE BUSINESS
CREDIT, INC., AGENT FOR STANDARD FEDERAL BANK NATIONAL
ASSOCIATION, and ▇▇▇▇▇▇▇ BUSINESS CREDIT CORPORATION (together
with each of their successors and assigns, referred to
individually as a "Revolving Credit Lender" and collectively as
the "Revolving Credit Lenders"); and
FLEET RETAIL GROUP, LLC, (formerly known as FLEET RETAIL GROUP,
INC.), as SwingLine Lender; and
FLEET RETAIL GROUP, LLC, (formerly known as FLEET RETAIL GROUP,
INC.), as Tranche B Lender (together with the Revolving Credit
Lenders and the SwingLine Lender, the "Lenders"); and
FLEET RETAIL GROUP, LLC, (formerly known as FLEET RETAIL GROUP,
INC.), as Administrative Agent and Collateral Agent for the
Lenders; and
▇▇▇▇▇ FARGO FOOTHILL, INC., as Syndication Agent; and
NATIONAL CITY BUSINESS CREDIT, INC. and ▇▇▇▇▇▇ FINANCIAL, INC.,
as Co-Documentation Agents (together with the Administrative
Agent, Collateral Agent and Syndication Agent, the "Agents").
in consideration of the mutual covenants herein contained and benefits
to be derived herefrom.
W I T N E S S E T H
A. Reference is made to the Fourth Amended and Restated Loan
and Security Agreement dated as of October 29, 2004 by and among the
Borrowers, the Borrowers' Representative, the Lenders and the Agents,
as amended by that certain First Amendment to Fourth Amended and
Restated Loan and Security Agreement dated March 16, 2005 (as amended
and in effect the "Credit Agreement").
B. The Borrowers have requested that the Agents and the
Lenders agree to amend the Credit Agreement to allow the Loan Parties
to (i) amend the definition of Permitted Indebtedness to include a
mortgage loan on real property to be owned by Casual Male Retail Group,
Inc.; (ii) permit prepayment of Indebtedness subject to the terms and
conditions contained herein; and (iii) amend the definition of
Applicable Inventory Advance Rate, Revolving Credit Casual Male
Companies Inventory Advance Rate and Revolving Credit ▇▇▇ Inventory
Advance Rate to extend the Rate which is applicable through December
15, 2005 to February 1, 2006.
C. The Agents and the Lenders, subject to the terms and
conditions of this Second Amendment, have agreed to modify the Credit
Agreement.
Accordingly, the Agents, the Lenders, the Loan Parties , and the
Borrowers' Representative agree as follows:
1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms
in the Credit Agreement.
2. Amendment to Credit Agreement.
a. Article 1 of the Credit Agreement is amended as
follows:
(i) The definitions of "Applicable Inventory
Advance Rate", "Revolving Credit Casual Male
Companies Inventory Advance Rate" and
"Revolving Credit ▇▇▇ Inventory Advance Rate"
are hereby amended to extend the Rate which is
applicable through December 15, 2005 to
February 1, 2006.
(ii) The definition of "Permitted Indebtedness" in
Article 1 shall be amended by adding new
subsection (k) and (l), which subsections shall
read as follows:
"(k) Indebtedness arising pursuant to the
LaSalle Mortgage Loan.
(l) Indebtedness arising pursuant to a loan
which may be made by Bank of America,
N.A., in a principal amount not to exceed
$15,000,000.00, with a maturity date of
not longer than one (1) year, to be
secured by a junior Encumbrance on the
Collateral and a mortgage on the Canton
Property, to be repaid only from the
proceeds of a refinancing or
sale/leaseback of the Canton Property,
subject to such further terms and
conditions as are reasonably acceptable
to the Administrative Agent."
(iii) The following definitions are added to Article
1 of the Credit Agreement:
"Canton Property": The real property known and
numbered as ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇.
"LaSalle Mortgage Loan": The mortgage loan
from LaSalle Bank National Association, as
trustee, as successor to Chase Manhattan Bank
to JBAK Canton Realty, Inc. dated December 30,
1996, in the original principal amount of
$15,500,000.00, and assumed by Designs Canton
Property Corp., secured by a Mortgage and
Security Agreement and Assignment of Leases and
Rents on the Canton Property.
b. Section 5.8 of the Credit Agreement is amended by the
addition of the following paragraph at the end thereof:
"Notwithstanding anything to the contrary
contained in this Section 5.8, from December
[15], 2005 through February 1, 2006 payments
permitted by this Section 5.8 shall be limited
to the following: (i) the Loan Parties shall be
permitted to make payments permitted to be made
in accordance with the terms of Section 5.8(a);
and (ii) the Loan Parties shall be permitted to
make prepayments of and/or retire Permitted
Indebtedness (exclusive of any payments on the
Tranche B Loan, except as expressly permitted
by Section 3.3) up to a maximum aggregate
principal amount of $30,000,000.00, provided
that after giving effect to any payment under
this subsection (ii) Excess Availability is
greater than $15,000,000.00."
c. Section 11.8 of the Credit Agreement is amended by
the addition of the following sentence at the end thereof:
"Notwithstanding anything to the contrary
contained in this Section 11.8, provided that
the LaSalle Mortgage Loan is repaid in full on
or before February 1, 2006, the occurrence of
any event which gives rise to the right to
accelerate such loan shall not constitute an
Event of Default hereunder."
3. Ratification of Loan Documents. Except as otherwise
provided for herein, the terms and conditions of the Credit Agreement
and of the other Loan Documents remain in full force and effect, and
each Loan Party hereby ratifies, confirms and reaffirms, all and
singular, the terms and conditions of, and the warranties and
representations set forth, therein.
4. Conditions Precedent to Effectiveness. This Second
Amendment shall not be effective until each of the following conditions
precedent have been fulfilled to the satisfaction of the Administrative
Agent:
a. This Second Amendment shall have been duly
executed and delivered by the respective
parties hereto, and, shall be in full force and
effect.
b. All action on the part of the Loan Parties
necessary for the valid execution, delivery and
performance by the Loan Parties of this Second
Amendment shall have been duly and effectively
taken and evidence thereof satisfactory to the
Administrative Agent shall have been provided
to the Administrative Agent.
c. The Loan Parties shall have provided such
additional instruments and documents to the
Administrative Agent as the Administrative
Agent and the Administrative Agent's counsel
may have reasonably requested.
d. The Loan Parties shall have paid to the
Administrative Agent, for the benefit of the
Lenders, an amendment fee in the amount of
$45,000.00.
5. Miscellaneous.
a. This Second Amendment may be executed in
several counterparts and by each party on a
separate counterpart, each of which when so
executed and delivered shall be an original,
and all of which together shall constitute one
instrument.
b. This Second Amendment expresses the entire
understanding of the parties with respect to
the transactions contemplated hereby. No prior
negotiations or discussions shall limit,
modify, or otherwise affect the provisions
hereof.
c. Any determination that any provision of this
Second Amendment or any application hereof is
invalid, illegal or unenforceable in any
respect and in any instance shall not effect
the validity, legality or enforceability of
such provision in any other instance, or the
validity, legality or enforceability of any
other provisions of this Second Amendment.
d. The Loan Parties shall pay on demand all
reasonable costs and expenses of the
Administrative Agent, including, without
limitation, reasonable attorneys' fees in
connection with the preparation, negotiation,
execution and delivery of this Second
Amendment.
e. Each Loan Party warrants and represents that
the Loan Party has consulted with independent
legal counsel of each Loan Party's selection in
connection with this Second Amendment and is
not relying on any representations or
warranties of the Administrative Agent or its
counsel in entering into this Second Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this Second
Amendment as of the day and year first above written.
CASUAL MALE RETAIL GROUP,
INC., a Delaware
corporation, as Borrower and
Borrowers' Representative
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
DESIGNS APPAREL, INC., as
Borrower
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
("GUARANTORS")
CASUAL MALE CANADA INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
CAPTURE, LLC
By Designs Apparel, Inc., its
sole Member
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
CASUAL MALE STORE, LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
CASUAL MALE RETAIL STORE, LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
CASUAL MALE DIRECT, LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
LP INNOVATIONS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------
Print
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, CFO and
Treasurer
SECUREX LLC
By LP Innovations, Inc., its
sole Member
By /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------
Print
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President, CFO and
Treasurer
CASUAL MALE ▇▇▇, LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
CASUAL MALE ▇▇▇ (U.K.) LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Operating
Officer, Chief Financial
Officer, Treasurer and
Secretary
FLEET RETAIL GROUP, LLC, as
Administrative Agent,
Collateral Agent, Revolving
Credit Lender, SwingLine
Lender, and Tranche B Lender
By_/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇ FINANCIAL, INC., as
Co-Documentation Agent and
Revolving Credit Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
NATIONAL CITY BUSINESS
CREDIT, INC., as Co-
Documentation Agent and
Revolving Credit Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO FOOTHILL, INC.,
as Syndication Agent and
Revolving Credit Lender
By /s/ ▇▇▇▇▇▇ ▇▇▇
-----------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BUSINESS CREDIT,
INC., as Revolving Credit
Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Relationship Manager
LASALLE RETAIL FINANCE, A
DIVISION OF LASALLE BUSINESS
CREDIT, INC., AGENT FOR
STANDARD FEDERAL BANK
NATIONAL ASSOCIATION, as
Revolving Credit Lender
By___________________________
Name:
Title:
▇▇▇▇▇▇▇ BUSINESS CREDIT
CORPORATION, as Revolving
Credit Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: AVP
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