FOURTH AMENDMENT TO
FOURTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Fourth Amended and Restated Loan and Security
Agreement (the "Fourth Amendment") is made as of this 19 day of May, 2006 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.),
XXXXXX FINANCIAL, INC., NATIONAL CITY BUSINESS CREDIT, INC., XXXXX
FARGO FOOTHILL, INC., XXXXX FARGO BUSINESS CREDIT, INC., LASALLE RETAIL
FINANCE, A DIVISION OF LASALLE BUSINESS CREDIT, INC., AGENT FOR
STANDARD FEDERAL BANK NATIONAL ASSOCIATION, and XXXXXXX 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 together with the Revolving Credit Lenders the
"Lenders"; and
FLEET RETAIL GROUP, LLC, (formerly known as FLEET RETAIL GROUP, INC.),
as Administrative Agent and Collateral Agent for the Lenders; and
XXXXX FARGO FOOTHILL, INC., as Syndication Agent; and
NATIONAL CITY BUSINESS CREDIT, INC. and XXXXXX 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 by that certain Second Amendment
to Fourth Amended and Restated Loan and Security Agreement dated December 15,
2005, and as amended by that Third Amendment to Fourth Amended and Restated
Loan and Security Agreement dated December 15, 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 repurchase
some of the capital stock of Casual Male.
C. The Agents and the Lenders, subject to the terms and conditions
of this Fourth 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 following definitions are added to Article 1 of
the Credit Agreement:
"Permitted Stock Repurchase" :The repurchase,
redemption, or acquisition by the Borrowers of Casual
Male's capital stock provided that (i) as of the date
of such repurchase, redemption, or acquisition, and
immediately after giving effect thereto, there exists
no Default; (ii) as of the date of such repurchase,
redemption, or acquisition and immediately after
giving effect thereto, Excess Availability is greater
than $30,000,000.00 as determined by the Agent based
upon the Borrowing Base Certificate delivered to the
Agent pursuant to Section 6.4 of the Loan Agreement;
and (iii) the Borrowers' Representative has delivered
to the Agent contemporaneously with the monthly
officers certificate delivered pursuant to Sections
6.5 and 6.8 of the Loan Agreement monthly pro forma
financial projections demonstrating immediately after
giving effect to all repurchases, redemptions, or
acquisitions projected to be made during the then
next Fiscal quarter (x) Excess Availability would not
be less than $30,000,000.00 for such Fiscal quarter
and (y) the Excess Availability would not be less
than $30,000,000.00 as determined on a pro forma
basis over the two (2) Fiscal quarters next following
such Fiscal quarter, which projections are in form
and substance satisfactory to the Agent are based on
reasonable projections of the financial performance
of the Borrowers and are accompanied by a certificate
of the Borrowers' Representative's Chief Executive
Officer, President or Chief Financial Officer
certifying that such projections are accurate and
complete provided that at any time the actual
repurchases, redemptions, or acquisitions, made
during any Fiscal quarter exceed those projected to
be made for such Fiscal quarter as set forth in the
certificate described in clause (iii) hereof,
Borrowers' Representatives shall promptly deliver to
the Agent updated monthly pro forma financial
projections demonstrating compliance with the
requirements set forth in clause (iii) hereof based
on the actual repurchases, redemptions, or
acquisitions made together with a certificate of the
Borrowers' Representative's Chief Executive Officer,
President or Chief Financial Officer certifying the
updated projections as accurate and complete.
b. Article 5 of the Credit Agreement is amended as follows:
(i) Section 5.20(b) of the Credit Agreement is deleted in
its entirety and replaced with the following:
"Redeem, retire, purchase, or acquire any of Casual
Male's capital stock, other than pursuant to a
Permitted Stock Repurchase.
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 Fourth Amendment
shall not be effective until each of the following conditions precedent have
been fulfilled to the satisfaction of the Administrative Agent:
a. This Fourth 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
Fourth 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.
5. Miscellaneous.
a. This Fourth 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 Fourth 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 Fourth
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 Fourth 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 Fourth 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 Fourth Amendment and is not relying on any
representations or warranties of the Administrative Agent or its counsel in
entering into this Fourth Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this Fourth
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/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, Treasurer and Secretary
DESIGNS APPAREL, INC., as Borrower
By /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President, Chief
Operating Officer, Chief Financial Officer,
Treasurer and Secretary
("GUARANTORS")
CASUAL MALE CANADA INC.
By /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, Treasurer and Secretary
CAPTURE, LLC
By Casual Male Store, LLC, its sole
Member
By /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, Treasurer and Secretary
CASUAL MALE STORE, LLC
By /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, Treasurer and Secretary
CASUAL MALE RETAIL STORE, LLC
By /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, Treasurer and Secretary
CASUAL MALE DIRECT, LLC
By /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, Treasurer and Secretary
CASUAL MALE XXX, LLC
By /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President,
Chief Operating Officer, Chief
Financial Officer, Treasurer and Secretary
CASUAL MALE XXX (U.K.) LLC
By /s/ XXXXXX X. XXXXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
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, and
SwingLine Lender
By /s/ XXXXXXXX XXXXXX
-------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Director
XXXXXX FINANCIAL, INC., as Co-
Documentation Agent and Revolving
Credit Lender
By /s/ XXXXXX XXX XXXXX
---------------------
Name: Xxxxxx Xxx Xxxxx
Title: Duly Authorized Signatory
NATIONAL CITY BUSINESS CREDIT,
INC., as Co-Documentation Agent and
Revolving Credit Lender
By /s/ XXXXXXX X. XXXXXX
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO FOOTHILL, INC., as
Syndication Agent and Revolving
Credit Lender
By /s/ XXXXXX XXX
---------------
Name: Xxxxxx Xxx
Title: Vice President
XXXXX FARGO BUSINESS CREDIT, INC.,
as Revolving Credit Lender
By /s/ XXXX XXXXX
--------------
Name: Xxxx Xxxxx
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 /s/ XXXXXX X'XXXXXX
---------------------
Name: Xxxxxx X'Xxxxxx
Title: First Vice President
XXXXXXX BUSINESS CREDIT
CORPORATION, as Revolving Credit
Lender
By /s/ XXXXXX X. XXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
