FOURTEENTH AMENDMENT AND MODIFICATION
TO LOAN AND SECURITY AGREEMENT
THIS FOURTEENTH AMENDMENT AND MODIFICATION TO LOAN AND
SECURITY AGREEMENT (the "Amendment") is made effective as of September 30, 2002
by and among TODAY'S MAN, INC., a Pennsylvania corporation ("Borrower"); each of
the Subsidiaries of the Borrower identified under the caption "Guarantor" on the
signature pages of this Amendment (individually, a "Guarantor" and,
collectively, the "Guarantors"); each of the financial institutions identified
under the caption "Lenders" on the signature pages of this Amendment (including
without limitation Standard Federal Bank National Association in such capacity)
(individually, a "Lender" and, collectively, the "Lenders"); and STANDARD
FEDERAL BANK NATIONAL ASSOCIATION, formerly known as Michigan National Bank, as
successor in interest to Mellon Bank, N.A., as agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Agent").
BACKGROUND
A. Borrower, Guarantors, Lender and Agent previously entered into a
certain Loan and Security Agreement dated December 4, 1998, as amended by (i)
that certain First Amendment and Modification to Loan and Security Agreement
dated Xxxxx 00, 0000, (xx) that certain Second Amendment and Modification to
Loan and Security Agreement dated October 13, 1999, (iii) that certain Third
Amendment and Modification to Loan and Security Agreement dated March 15, 2000,
(iv) that certain Fourth Amendment and Modification to Loan and Security
Agreement dated May 1, 2000, (v) that certain Fifth Amendment and Modification
to Loan and Security Agreement dated May 11, 2000, (vi) that certain Sixth
Amendment and Modification to Loan and Security Agreement dated August 16, 2000,
(vii) that certain Seventh Amendment and Modification to Loan and Security
Agreement dated November 15, 2000, (viii) that certain Eighth Amendment and
Modification to Loan and Security Agreement dated February 28, 2001, (ix) that
certain Ninth Amendment and Modification to Loan and Security Agreement dated
June 14, 2001, (x) that certain Tenth Amendment and Modification to Loan and
Security Agreement dated September 21, 2001, (xi) that certain Eleventh
Amendment and Modification to Loan and Security Agreement dated December 14,
2001, (xii) that certain Twelfth Amendment and Modification to Loan and Security
Agreement dated February 27, 2002 (the "Twelfth Amendment"), and (xiii) that
certain Thirteenth Amendment and Modification to Loan and Security Agreement
dated April 25, 2002 (collectively, the "Loan Agreement"), pursuant to which,
inter alia, Lender agreed to extend to Borrower a revolving credit facility up
to a maximum outstanding principal amount of Twenty-Three Million Dollars
($23,000,000.00).
B. Borrower, Guarantors, Lender and Agent are entering into this
Amendment to amend certain terms and conditions of the Loan Agreement.
C. Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth for such terms in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Discretionary Out-Of-Formula Advances and Usage.
Notwithstanding anything to the contrary contained in the Loan Agreement, upon
the consent of Agent in writing, which consent shall be at Agent's sole and
absolute discretion, Borrower may exceed the Out-Of-Formula Advances otherwise
permitted pursuant to Section 5 of the Twelfth Amendment by an additional amount
not to exceed $500,000 (the "Discretionary Out-Of-Formula Advances") for the
period from September 30, 2002 and at all times thereafter until November 14,
2002. On November 15, 2002, all Discretionary Out-Of-Formula Advances must be
repaid in full. In no event shall the outstanding Revolving Credit Facility
Usage (including any permitted Out-Of-Formula Advances pursuant to Section 5 of
the Twelfth Amendment and any Discretionary Out-Of-Formula Advances as described
above) exceed $23,000,000 at any time after the date hereof. Upon the occurrence
of a Default or an Event of Default under the Loan Documents, at the Agent's
option, Borrower will repay in full all Out-Of-Formula Advances and all
Discretionary Out-Of-Formula Advances.
2. Confirmation of Collateral. Nothing contained herein shall
be deemed to be a compromise, satisfaction, accord and satisfaction, novation or
release of any of the Loan Documents, or any rights or obligations thereunder,
or a waiver by Agent or any Lender of any of its rights under the Loan Documents
or at law or in equity. All liens, security interest, rights and remedies
granted to Agent or Lenders in Loan Documents are hereby ratified, confirmed and
continued. Borrower and Guarantors acknowledge and agree that the term "Loan
Documents" as used in the Loan Agreement and any other documents executed in
connection therewith shall include, without limitation, this Amendment and any
and all other documents executed in connection herewith.
3. Challenge to Enforcement. Borrower and Guarantors
acknowledge and agree that they do not have any defense, set-off, counterclaim
or challenge against the payment of any sums owing under the Loan Documents, or
the enforcement of any of the terms or conditions thereof.
4. Representation and Warranties. Borrower and Guarantors
hereby represent and warrant, which representations and warranties shall survive
until all Obligations are paid and satisfied in full, as follows:
(a) All representations and warranties of Borrower and
Guarantors set forth in the Loan Documents are true and complete in all material
respects as of the date hereof.
(b) Upon the effectiveness of this Amendment, no condition
or event exists or has occurred which would constitute an event of default under
the Loan Documents or under any other material agreement between Borrower, any
Guarantor and any other third party (or would, upon the giving of notice or the
passage of time, or both constitute an event of default).
(c) Except as otherwise previously disclosed to Agent in
writing, Borrower has not received any notice of default or event of default
from any other lender, trustee or lessor with respect to any other loan,
financing or lease agreement.
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(d) The execution and delivery of this Amendment by
Borrower and Guarantors and all documents and agreements to be executed and
delivered pursuant to the terms hereof:
(i) have been duly authorized by all requisite
corporate action by Borrower and by each Guarantor;
(ii) will not conflict with or result in the breach of
or constitute a default (upon the passage of time, delivery of notice or both)
under Borrower's or any Guarantor's Articles of Incorporation, By-Laws or any
applicable statute, law, rule, regulation or ordinance or any indenture,
mortgage, loan or other document or agreement to which Borrower or any Guarantor
is a party or by which any of them is bound or affected; and
(iii) will not result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of Borrower or any Guarantor, except liens in favor of the
Agent or as permitted hereunder or under the Loan Documents.
5. Conditions. The obligation of Agent and Lender to enter
into this Amendment is subject to the following conditions (any of which may be
waived by Agent):
5.1 Loan Documents. Borrower and Guarantors and all other
required persons and entities will have executed and delivered to Agent this
Amendment and such other documents as Agent may require.
5.2 Secretary Certificate. Borrower will have delivered to
Agent a certificate from the Secretary of Borrower and each Guarantor attesting
to the resolutions of Borrower's and each Guarantor's board of directors
authorizing its execution, delivery and performance of the Loan Agreement, this
Amendment, the other Loan Documents to which Borrower and each Guarantor,
respectively, is a party and authorizing certain specific officers of Borrower
and each Guarantor to execute the same. Such certificate shall include a list of
each member of the Borrower's and each Guarantor's board of directors and
officers by name and title.
5.3 Other Documents. Such other documents as may be
required to be submitted to Agent by the terms hereof or any of the Loan
Documents shall have been delivered by or on behalf of Borrower and Guarantors
to Agent.
6. Additional Documents; Further Assurances. Borrower
covenants and agrees to execute and deliver to Agent, or to cause to be executed
and delivered to Agent contemporaneously herewith, at the sole cost and expense
of Borrower, any and all other documents, agreements, statements, resolutions,
certificates, consents and information as Agent may require in connection with
the matters or actions described herein. Borrower further covenants and agrees
to execute and deliver to Agent or to cause to be executed and delivered at the
sole cost and expense of Borrower, from time to time, any and all other
documents, agreements, statements, certificates and information as Agent shall
reasonably request to evidence or effect the terms hereof, the Loan Agreement,
as amended, or any of the other Loan Documents, or to enforce or to protect
Agent's interest in the Collateral. All such documents, agreements, statements,
certificates and information shall be in form and content acceptable to Agent in
its sole discretion.
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7. Certain Fees, Costs, Expenses and Expenditures. Borrower
will pay all of the Agent's expenses in connection with the review, preparation,
negotiation, documentation and closing of this Amendment and the consummation of
the transactions contemplated hereunder, including without limitation, costs and
fees and expenses of counsel retained by Agent and all fees related to filings,
recording of documents and searches, whether or not the transactions
contemplated hereunder are consummated. Nothing contained herein shall limit in
any manner whatsoever any Lender's or Agent's right to reimbursement under any
of the Loan Documents.
8. Communications and Notices. All notices, requests and other
communications made or given in connection with this Amendment shall be made in
accordance with the provisions of the Loan Agreement.
9. Time of Essence. Time is of the essence of this Amendment.
10. No Waiver. Except as otherwise provided herein, nothing
contained and no actions taken by Agent in connection herewith shall constitute
nor shall they be deemed to be a waiver, release or amendment of or to any
rights, remedies, or privileges afforded to Agent under the Loan Documents or
under the UCC. Nothing herein shall constitute a waiver by Agent of Borrower's
or any Guarantor's compliance with the terms of the Loan Documents, nor shall
anything contained herein constitute an agreement by Agent to enter into any
further amendments with Borrower and Guarantors.
11. Inconsistencies. To the extent of any inconsistencies
between the terms and conditions of this Amendment and the terms and conditions
of the Loan Documents, the terms and conditions of this Amendment shall prevail.
All terms and conditions of the Loan Documents not inconsistent herewith shall
remain in full force and effect and are hereby ratified and confirmed by
Borrower and Guarantors.
12. Binding Effect. This Amendment and all rights and powers
granted hereby will bind and inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
13. Severability. The provisions of this Amendment and all
other Loan Documents are deemed to be severable, and the invalidity or
unenforceability of any provision shall not affect or impair the remaining
provisions which shall continue in full force and effect.
14. No Third Party Beneficiaries. The rights and benefits of
this Amendment and the Loan Documents shall not inure to the benefit of any
third party.
15. Modifications. No modifications of this Amendment or any
of the Loan Documents shall be binding or enforceable unless in writing and
signed by or on behalf of the party against whom enforcement is sought.
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16. Holidays. If the day provided herein for the payment of
any amount or the taking of any action falls on a Saturday, Sunday or public
holiday at the place for payment or action, then the due date for such payment
or action will be the next succeeding Business Day.
17. Law Governing. This Amendment has been made, executed and
delivered in the Commonwealth of Pennsylvania and will be construed in
accordance with and governed by the laws of such Commonwealth, without regard to
any rules or principles regarding conflicts of law or any rule or canon of
construction which interprets agreements against the draftsman.
18. Headings. The headings of the Articles, Sections,
paragraphs and clauses of this Amendment are inserted for convenience only and
shall not be deemed to constitute a part of this Amendment.
19. Counterparts; Facsimile Signatures. This Amendment may be
executed in any number of counterparts, all of which taken together constitute
one and the same instrument, and any of the parties hereto may execute this
Amendment by signing any such counterpart. Any signature delivered via facsimile
shall be deemed an original signature hereto.
20. Joint and Several. The obligations of Borrower and
Guarantors under this Amendment shall be joint and several obligations.
21. Waiver of Right to Trial by Jury. BORROWER, GUARANTORS AND
THE LENDER GROUP WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (a) ARISING UNDER THIS AMENDMENT, (b) ARISING UNDER ANY OF
THE OTHER LOAN DOCUMENTS OR (c) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF BORROWER, GUARANTORS OR ANY MEMBER OF THE LENDER
GROUP WITH RESPECT TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE. BORROWER, GUARANTORS AND THE LENDER GROUP AGREE
AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF BORROWER, GUARANTORS AND THE LENDER GROUP TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY. BORROWER AND GUARANTORS ACKNOWLEDGE THAT
THEY HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING THIS SECTION,
THAT THEY FULLY UNDERSTAND ITS TERMS, CONTENT AND EFFECT, AND THAT THEY
VOLUNTARILY AND KNOWINGLY AGREE TO THE TERMS OF THIS SECTION.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, intending to be legally bound hereby.
[CORPORATE SEAL] BORROWER:
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TODAY'S MAN, INC., a Pennsylvania corporation
By: /s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, Executive Vice President
& Chief Financial Officer
[CORPORATE SEAL] GUARANTORS:
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BENMOL, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, President
[CORPORATE SEAL] D & L, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, President
[CORPORATE SEAL] XXXX & XXXX, INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, President
(CORPORATE SEAL] XXXXXXXXX.XXX INC., a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
-------------------
Xxxxx X. Xxxxxxx, President
(SIGNATURES CONTINUED ON NEXT PAGE)
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(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
LENDERS:
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STANDARD FEDERAL BANK NATIONAL ASSOCIATION,
formerly known as Michigan National Bank, as
successor in interest to Mellon Bank, N.A.
By: LaSalle Business Credit, Inc., as agent
By: /s/Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx, Vice President
AGENT:
------
STANDARD FEDERAL BANK NATIONAL ASSOCIATION,
formerly known as Michigan National Bank,
as successor in interest to Mellon Bank, N.A.
By: LaSalle Business Credit, Inc., as agent
By: /s/Xxxxxx X. Xxxxxx
-------------------
Xxxxxx X. Xxxxxx, Vice President
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CONSENT AND AGREEMENT
The undersigned acknowledges and consents to that certain
Fourteenth Amendment and Modification to Loan and Security Agreement (the
"Amendment") between Today's Man, Inc. ("Borrower"), the Guarantors defined
therein and Standard Federal Bank National Association, formerly known as
Michigan National Bank, as successor in interest to Mellon Bank, N.A., as Lender
and in its capacity as Agent for the Lenders ("Standard"). The undersigned
further acknowledges and agrees that none of the terms of the Amendment will in
any way adversely affect his respective obligations or the rights of Standard
under that certain Mortgage and Security Agreement dated November 29, 2000 (the
"Mortgage") or that certain Assignment of Rents, Leases and Agreement of Sale
dated February 1, 2001 (the "Assignment") executed by the undersigned in favor
of Standard, all of the terms of which are hereby ratified and confirmed. The
undersigned acknowledges receipt of a copy of the Amendment and the documents
executed in connection therewith and acknowledges and agrees that he has had the
opportunity to review the same. The undersigned further acknowledges that the
liabilities and obligations of the Borrower incurred in connection with the
Amendment and the documents executed in connection therewith shall be entitled
to the benefits of and shall be part of the obligations secured by the Loan
Documents to which the undersigned is a party. The undersigned warrants to
Lender that as of the date hereof the undersigned has no defense or counterclaim
whatsoever to any action or proceeding that may be brought to enforce Standard's
or any Lender's rights and remedies under the Loan Documents to which the
undersigned is a party. The undersigned acknowledges and agrees that the
obligations of the Borrower under the foregoing Amendment, including without
limitation, the obligations with respect to the Revolving Credit Facility, shall
be secured by the Mortgage and the Assignment.
The undersigned agrees that he has received good and valuable
consideration for entering into the Mortgage and the Assignment. The undersigned
further agrees that Standard may modify, amend, increase, extend, renew or
supplement any of the Obligations or the Loan Documents, all without notice to
or further consent from the undersigned, without affecting the obligations of
the undersigned to Standard under the Mortgage or the Assignment.
The undersigned waives any and all rights undersigned may have
at any time (whether arising directly or indirectly, by operation of law or
contract) to assert any claim against Borrower or any other guarantor on account
of payments made or obligations performed under the Mortgage or the Assignment,
including, without limitation, any and all rights of subrogation, reimbursement,
exoneration, contribution or indemnity.
Capitalized terms used herein and not otherwise defined shall
have such meaning as provided in the Amendment.
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IN WITNESS WHEREOF, the undersigned have executed this Consent
and Agreement intending to be legally bound hereby, effective as of September
30, 2002.
/s/Xxxxx X. Xxxxxxx /s/Xxxxx Xxxx (SEAL)
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WITNESS XXXXX XXXX
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