EX-10 2 exh10-1.txt EXHIBIT 10.1 SECOND AMENDMENT TO THE FOURTH AMENDED AND RESTATED LOAN AND SECUIRTY AGREEMENT 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.), HELLER FINANCIAL, INC., NATIONAL CITY BUSINESS CREDIT, INC., WELLS FARGO FOOTHILL, INC., WELLS FARGO BUSINESS CREDIT, INC., LASALLE RETAIL FINANCE, A DIVISION OF LASALLE BUSINESS CREDIT, INC., AGENT FOR STANDARD FEDERAL BANK NATIONAL ASSOCIATION, and WEBSTER 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 WELLS FARGO FOOTHILL, INC., as Syndication Agent; and NATIONAL CITY BUSINESS CREDIT, INC. and HELLER 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 RBT 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 RBT 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 555 Turnpike Street, Canton, Massachusetts. "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. [The remainder of this page is intentionally left blank] 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/ DENNIS R. HERNREICH ----------------------- Name: Dennis R. Hernreich Title: Executive Vice President, Chief Operating Officer, Chief Financial Officer, Treasurer and Secretary DESIGNS APPAREL, INC., 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 Designs Apparel, Inc., its sole Member 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 LP INNOVATIONS, INC. By /s/ DOUG A. LAUE --------------- Print Name: Doug A. Laue Title: Senior Vice President, CFO and Treasurer SECUREX LLC By LP Innovations, Inc., its sole Member By /s/ DOUG A. LAUE --------------- Print Name: Doug A. Laue Title: Senior Vice President, CFO and Treasurer 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 FLEET RETAIL GROUP, LLC, as Administrative Agent, Collateral Agent, Revolving Credit Lender, SwingLine Lender, and Tranche B Lender By_/s/ KATHLEEN DIMOCK ------------------- Name: Kathleen Dimock Title: Managing Director HELLER FINANCIAL, INC., as Co-Documentation Agent and Revolving Credit Lender By /s/ BRIAN SCHWINN ----------------- Name: Brian Schwinn Title: Duly Authorized Signatory NATIONAL CITY BUSINESS CREDIT, INC., as Co- Documentation Agent and Revolving Credit Lender By /s/ KATHRYN C. ELLERO --------------------- Name: Kathryn C. Ellero Title: Vice President WELLS FARGO FOOTHILL, INC., as Syndication Agent and Revolving Credit Lender By /s/ EUNNIE KIM ----------------- Name: Eunnie Kim Title: Vice President WELLS FARGO BUSINESS CREDIT, INC., as Revolving Credit Lender By /s/ NIKI STONE ----------------- Name: Niki Stone 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: WEBSTER BUSINESS CREDIT CORPORATION, as Revolving Credit Lender By /s/ ANDREW D. WIERMAN --------------------- Name: Andrew D. Wierman Title: AVP bos-fs1\178632v03