THIRD AMENDMENT TO
FIFTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Third Amendment to Fifth Amended and Restated Loan and Security
Agreement (the "Third Amendment") is made as of this 20th day of December,
2007 by and among:
CASUAL MALE RETAIL GROUP, INC., and CMRG APPAREL, LLC (successor by
conversion to 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
BANK OF AMERICA, N.A., NATIONAL CITY BUSINESS CREDIT, INC., WELLS
FARGO FOOTHILL, LLC, and JPMORGAN CHASE BANK, N.A. (together with each
of their successors and assigns, referred to individually as a
"Revolving Credit Lender" and collectively as the "Revolving Credit
Lenders"); and
BANK OF AMERICA, N.A., NATIONAL CITY BUSINESS CREDIT, INC., and
JPMORGAN CHASE BANK, N.A. (together with each of their successors and
assigns, referred to individually as a "Last Out Revolving Lender" and
collectively as the "Last Out Revolving Lenders" and together with the
Revolving Credit Lenders, hereinafter the "Lenders"); and
BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent
for the Lenders; and
WELLS FARGO FOOTHILL, LLC, as Syndication Agent; and
NATIONAL CITY BUSINESS CREDIT, INC., as Documentation Agent,
JP MORGAN CHASE BANK, N.A., as Senior Managing Agent (together with
the Administrative Agent, Collateral Agent, Syndication Agent, and
Documentation 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 Fifth Amended and Restated Loan and
Security Agreement dated as of December 28, 2006 by and among
the Borrowers, the Borrowers' Representative, the Lenders and
the Agents, as amended by that certain Amendment dated July 11,
2007, as further amended by that certain Second Amendment to
Fifth Amended and Restated Loan and Security Agreement dated
July 20, 2007 (as amended and in effect the "Loan Agreement").
B. The Borrowers' Representative has advised the Agents and the
Lenders that it intends to form certain new wholly owned
Subsidiaries, which Subsidiaries will directly or indirectly own
100% of the membership interest in CMRG Apparel, LLC (the
"Corporate Restructuring").
C. The Borrowers have requested that the Agents and the Lenders
agree to amend the Loan Agreement to (i) extend the Maturity
Date; (ii) amend the definition Last Out Advance Percentage; and
(iii) amend the definition of Change of Control to permit the
Corporate Restructuring.
D. The Agents and the Lenders, subject to the terms and conditions
of this Third Amendment have agreed to amend the Loan 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 Loan Agreement.
2. Amendment to Loan Agreement.
a. Article 1 of the Loan Agreement is hereby amended by
adding the following definitions in appropriate
alphabetical order:
"Banking Services" means each and any of the
following bank services provided to any Loan Party
by any Lender or any of its Affiliates: (a)
commercial credit cards, (b) stored value cards and
(c) treasury management services (including, without
limitation, controlled disbursement, automated
clearinghouse transactions, return items, overdrafts
and interstate depository network services).
"Banking Services Obligations" of the Loan Parties
means any and all obligations of the Loan Parties,
whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired
(including all renewals, extensions and
modifications thereof and substitutions therefor)
in connection with Banking Services.
"Third Amendment Effective Date": December 20, 2007
b. Article 1 of the Loan Agreement is amended as
follows:
(i) Clause (d) of the definition of "Change in
Control" is deleted in its entirety and
replaced with the following:
(d) the failure by Casual Male (i) to own,
directly or indirectly, 100% of the issue and
outstanding membership interest of CMRG
Apparel, LLC and RBT, or (ii) to own, directly
or indirectly, 100% of the issue and
outstanding capital stock or membership
interest of all other Loan Parties.
ii) The definition of "Last Out Advance
Percentage" is deleted in its entirety and
replaced with the following:
"Last Out Advance Percentage": At the
relevant time of reference thereto, (a) from
the Closing Date through but excluding the
second anniversary of the Closing Date, 10%,
and (b) on and after the second anniversary of
the Closing Date, 5%.
(iii) The definition of "Liabilities" is amended by
renumbering existing clauses (iv) through
(vii) as (v) through (viii) and by adding a
new clause (iv) which provides as follows:
(iv) All Banking Services Obligations;
(iv) The definition of "Loan Documents" is deleted
in its entirety and replaced with the
following:
"Loan Documents": This Agreement, each
instrument and document executed as
contemplated by the Original Agreement and by
Article 4, below, and each other instrument or
document from time to time executed and/or
delivered in connection with the arrangements
contemplated hereby or in connection with any
transaction with any Lender or any Affiliate
of any Lender including, without limitation,
any transaction which arises out of any
Banking Services, investment, letter of
credit, interest rate protection, or equipment
leasing services provided by any Lender or any
Affiliate of any Lender, as each may be
amended from time to time.
(v) The definition of "Maturity Date" is deleted
in its entirety and replaced with the
following:
"Maturity Date": October 29, 2011
c. Article 13 of the Loan Agreement is amended as
follows:
(i) Section 13.7(b)(viii) is deleted in its
entirety and replaced with the following:
(viii) Eighth, to Lenders or any of their
Affiliates for all Banking Services
Obligations then outstanding, and then
3. Ratification of Loan Documents.
a. Except as otherwise provided for herein, the terms
and conditions of the Loan 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.
b. The Borrowers' Representative hereby ratifies and
confirms in connection with the Corporate
Restructuring, it shall cause each of its newly
formed Subsidiaries to execute documentation,
reasonably satisfactory in form and substance, to
the Administrative Agent, guarantying payment and
performance of the Liabilities and granting a first
priority lien on all of their respective assets in
favor of the Collateral Agent for the benefit of the
Lenders and Casual Male shall amend the Pledge
Agreement so as to pledge 100% of its membership
interest and/or capital stock in each newly formed
Subsidiary to the Collateral Agent for the benefit
of the Lenders.
4. Conditions Precedent to Effectiveness. This Third
Amendment shall not be effective until each of the
following conditions precedent have been fulfilled to the
satisfaction of the Administrative Agent:
a. This Third 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 Third 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, including the Amended Fee
Letter, 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 all fees set forth in the
Amended Fee Letter dated as of the date hereof.
5. Miscellaneous.
a. This Third 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 Third 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 Third
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 Third
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 Third
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 Third Amendment and is not relying on any
representations or warranties of the Administrative
Agent or its counsel in entering into this Third
Amendment.
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IN WITNESS WHEREOF, the parties have duly executed this Third
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/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CMRG APPAREL, LLC, as Borrower
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
("GUARANTORS")
CASUAL MALE CANADA INC.
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CAPTURE, LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CASUAL MALE STORE, LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CASUAL MALE RETAIL STORE, LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CASUAL MALE DIRECT, LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CASUAL MALE RBT, LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CASUAL MALE RBT (U.K.) LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CANTON PL LIQUIDATING CORP.
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
THINK BIG PRODUCTS LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CASUAL MALE JAREDM LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
CMXL, LLC
By /s/ Dennis R. Hernreich
----------------------------
Name: Dennis R. Hernreich
Title: Executive Vice
President, Chief
Operating Officer, Chief
Financial Officer,
Treasurer and Secretary
BANK OF AMERICA, N.A.
(ADMINISTRATIVE AGENT, COLLATERAL
AGENT, REVOLVING CREDIT LENDER AND
LAST OUT REVOLVING LENDER)
By /s/ Kathleen A. Dimock
-----------------------------
Name: Kathleen A. Dimock
Title: Managing Director
NATIONAL CITY BUSINESS CREDIT,
INC.
(DOCUMENTATION AGENT, REVOLVING
CREDIT LENDER AND LAST OUT
REVOLVING LENDER)
By /s/ Kathryn C. Ellero
-------------------------
Name: Kathryn C. Ellero
Title: Vice President
WELLS FARGO FOOTHILL, LLC
(SYNDICATION AGENT AND REVOLVING
CREDIT LENDER)
By /s/ Krista Wade
------------------------------
Name: Krista Wade
Title: Assistant Vice
President
JPMORGAN CHASE BANK, N.A.
(SENIOR MANAGING AGENT, REVOLVING
CREDIT LENDER AND LAST OUT
REVOLVING LENDER)
By /s/ Kim Nguyen
------------------------------
Name: Kim Nguyen
Title: Vice President
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