Amendment No. 2 to Form 8-K

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K/A

(Amendment No.2)

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): November 10, 2010

001-34219

(Commission File Number)

 

 

CASUAL MALE RETAIL GROUP, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   04-2623104
(State of Incorporation)  

(IRS Employer

Identification Number)

555 Turnpike Street, Canton, Massachusetts 02021

(Address of registrant’s principal executive office)

(781) 828-9300

(Registrant’s telephone number)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

¨  

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨  

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨  

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act(17 CFR 240.14d-2(b))

 

¨  

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


EXPLANATORY NOTE

Pursuant to a Current Report on Form 8-K filed with the Securities and Exchange Commission on November 10, 2010 (the “Original 8-K”), Casual Male Retail Group, Inc. (the “Company”) reported that it had amended its credit facility with Bank of America, N.A. by executing the Sixth Amended and Restated Loan and Security Agreement (the “Credit Facility”). On December 1, 2010, the Company filed Amendment No. 1 to the Original 8-K in order to include a copy of the Credit Facility as Exhibit 10.1 (with certain redactions pursuant to a request for confidential treatment). The Company is filing this Amendment No. 2 to the Original 8-K, as amended, in order to file a revised, redacted version of Exhibit 10.1.

ITEM 9.01 - FINANCIAL STATEMENTS AND EXHIBITS

(d) Exhibits

 

Exhibit No.

  

Description

10.1*    Sixth Amended and Restated Loan and Security Agreement dated November 10, 2010 by and among Bank of America, N.A. as Administrative Agent and Collateral Agent, the Revolving Credit Lenders identified therein, the Company, as Borrowers’ Representative, and the Company and CMRG Apparel, LLC, as Borrowers.

 

* Portions of this Exhibit have been omitted pursuant to a request for confidential treatment.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

CASUAL MALE RETAIL GROUP, INC.
By:  

/S/    DENNIS R. HERNREICH        

Name:   Dennis R. Hernreich
Title:  

Executive Vice President

and Chief Financial Officer

Date: January 7, 2011

Sixth Amended and Restated Loan and Security Agreement

Exhibit 10.1

Confidential Treatment Requested as to certain information contained in this Exhibit and filed separately with the Securities and Exchange Commission.

 

 

SIXTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

 

 

BANK OF AMERICA, N.A.

AS ADMINISTRATIVE AGENT AND

COLLATERAL AGENT

 

 

REVOLVING CREDIT LENDERS

NAMED HEREIN

 

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

JPMORGAN CHASE BANK, N.A.

AS CO-SYNDICATION AGENTS

PNC BANK, NATIONAL ASSOCIATION

AS DOCUMENTATION AGENT

 

 

CASUAL MALE RETAIL GROUP, INC.

THE BORROWERS’ REPRESENTATIVE

FOR:

CASUAL MALE RETAIL GROUP, INC.

CMRG APPAREL, LLC

 

 

November 10, 2010


 

ARTICLE 1 - DEFINITIONS:

     2   

ARTICLE 2 - COMMITMENTS AND CREDIT EXTENSIONS:

     37   

2.1.

  

Establishment of Revolving Credit Facility

     37   

2.2.

  

Advances in Excess of Borrowing Base (OverLoans)

     38   

2.3.

  

Initial Reserves. Changes to Reserves

     38   

2.4.

  

Risks of Value of Collateral

     39   

2.5.

  

Commitment to Make Revolving Credit Loans and Support Letters of Credit

     39   

2.6.

  

Loan Requests

     39   

2.7.

  

Making of Revolving Credit Loans

     41   

2.8.

  

SwingLine Loans

     42   

2.9.

  

The Loan Account

     43   

2.10.

  

The Revolving Credit Notes

     44   

2.11.

  

Payment of The Loan Account

     44   

2.12.

  

Interest on Revolving Credit Loans

     45   

2.13.

  

Arrangement Fee

     46   

2.14.

  

Upfront Fees

     46   

2.15.

  

Administrative Agent’s Fee

     46   

2.16.

  

Unused Line Fee

     46   

2.17.

  

Agents’ and Revolving Credit Lenders’ Discretion

     46   

2.18.

  

Procedures For Issuance of L/C’s

     47   

2.19.

  

Fees For L/C’s

     49   

2.20.

  

Concerning L/Cs

     50   

2.21.

  

Changed Circumstances

     52   

2.22.

  

Designation of Borrowers’ Representative as Borrowers’ Agent

     52   

2.23.

  

Revolving Credit Lenders’ Commitments

     53   

2.24.

  

Increase in Revolving Credit Commitments

     54   

2.25.

  

References to Existing Loan Agreement

     56   

ARTICLE 3 - CONDITIONS PRECEDENT:

     56   

3.1.

  

Due Diligence

     56   

3.2.

  

Opinion

     57   

3.3.

  

Additional Documents

     57   

3.4.

  

Officers’ Certificates

     57   

3.5.

  

Representations and Warranties

     58   

3.6.

  

All Fees and Expenses Paid

     58   

3.7.

  

Collateral, Etc.

     58   

3.8.

  

No Default.

     58   

3.9.

  

Financial Statements; Legal Due Diligence; No Adverse Change

     59   

3.10.

  

No Litigation

     59   

3.11.

  

Patriot Act

     59   

3.12.

  

Benefit of Conditions Precedent

     59   

ARTICLE 4 - GENERAL REPRESENTATIONS, COVENANTS AND WARRANTIES:

     60   

4.1.

  

Payment and Performance of Liabilities

     60   

 

(ii)


4.2.

  

Due Organization; Authorization; No Conflicts

     60   

4.3.

  

Trade Names

     61   

4.4.

  

Infrastructure

     61   

4.5.

  

Locations

     62   

4.6.

  

Stores

     63   

4.7.

  

Title to Assets

     63   

4.8.

  

Indebtedness

     64   

4.9.

  

Insurance

     64   

4.10.

  

Licenses

     65   

4.11.

  

Leases

     65   

4.12.

  

Requirements of Law

     65   

4.13.

  

Labor Relations

     66   

4.14.

  

Maintain Properties; Asset Sales

     66   

4.15.

  

Taxes

     67   

4.16.

  

No Margin Stock; Not Investment Company

     68   

4.17.

  

ERISA

     68   

4.18.

  

Hazardous Materials

     68   

4.19.

  

Litigation

     69   

4.20.

  

Dividends. Investments. Entity Action

     69   

4.21.

  

Permitted Acquisitions

     70   

4.22.

  

Loans

     71   

4.23.

  

Restrictions on Sale of Collateral; License Agreements

     72   

4.24.

  

Protection of Assets

     72   

4.25.

  

Line of Business

     72   

4.26.

  

Affiliate Transactions

     73   

4.27.

  

Further Assurances

     73   

4.28.

  

Adequacy of Disclosure

     74   

4.29.

  

No Restrictions on Liabilities

     75   

4.30.

  

Other Covenants

     75   

4.31.

  

Inventory Purchasing

     75   

4.32.

  

Solvency

     75   

4.33.

  

Patriot Act

     75   

4.34.

  

Foreign Assets Control Regulations

     76   

ARTICLE 5 - FINANCIAL REPORTING AND PERFORMANCE COVENANTS:

     76   

5.1.

  

Maintain Records

     76   

5.2.

  

Access to Records

     77   

5.3.

  

Prompt Notice to Administrative Agent

     78   

5.4.

  

Borrowing Base Certificate

     79   

5.5.

  

Monthly Reports

     79   

5.6.

  

Quarterly Reports

     79   

5.7.

  

Annual Reports

     80   

5.8.

  

Compliance Certificates

     81   

5.9.

  

Inventories, Appraisals, and Audits

     81   

5.10.

  

Additional Financial Information

     83   

5.11.

  

Excess Availability Covenant

     83   

 

(iii)


 

ARTICLE 6 - USE OF COLLATERAL:      83   

6.1.

   Use of Inventory Collateral      83   

6.2.

   Inventory Quality      84   

6.3.

   Adjustments and Allowances      84   
ARTICLE 7 - CASH MANAGEMENT, PAYMENT OF LIABILITIES:      84   

7.1.

   Depository Accounts      84   

7.2.

   Credit Card Receipts      85   

7.3.

   The Administrative Agent’s, Blocked, and Operating Accounts      85   

7.4.

   Proceeds and Collections      85   

7.5.

   Payment of Liabilities      86   

7.6.

   The Operating Account      87   
ARTICLE 8 - GRANT OF SECURITY INTEREST:      88   

8.1.

   Grant of Security Interest      88   

8.2.

   Extent and Duration of Security Interest; Notice      89   
ARTICLE 9 - COLLATERAL AGENT AS ATTORNEY-IN-FACT:      89   

9.1.

   Appointment as Attorney-In-Fact      89   

9.2.

   No Obligation to Act      90   
ARTICLE 10 - EVENTS OF DEFAULT:      91   

10.1.

   Failure to Pay the Revolving Credit Facility      91   

10.2.

   Failure To Make Other Payments      91   

10.3.

   Failure to Perform Covenant or Liability (No Grace Period)      91   

10.4.

   Financial Reporting Requirements      91   

10.5.

   Failure to Perform Covenant or Liability (Grace Period)      92   

10.6.

   Misrepresentation      92   

10.7.

   Acceleration of Other Debt; Breach of Lease      92   

10.8.

   Default Under Other Agreements      92   

10.9.

   Uninsured Casualty Loss      92   

10.10.

   Attachment; Judgment; Restraint of Business      92   

10.11.

   Indictment - Forfeiture      93   

10.12.

   Challenge to Loan Documents      93   

10.13.

   Change in Control      93   

10.14.

   Business Failure      93   

10.15.

   Bankruptcy      94   

10.16.

   Termination of Business      94   

10.17.

   Payment of Other Indebtedness      94   

10.18.

   Default by Guarantor; Termination of Guaranty      94   

10.19.

   Material Adverse Change      94   
ARTICLE 11 - RIGHTS AND REMEDIES UPON DEFAULT:      95   

11.1.

   Acceleration      95   

11.2.

   Rights of Enforcement      95   

11.3.

   Sale of Collateral      95   

 

(iv)


11.4.

   Occupation of Business Location      96   

11.5.

   Grant of Nonexclusive License      97   

11.6.

   Assembly of Collateral      97   

11.7.

   Rights and Remedies      97   
ARTICLE 12 - LOAN FUNDINGS AND DISTRIBUTIONS:      97   

12.1.

   Funding Procedures      97   

12.2.

   SwingLine Loans      98   

12.3.

   Administrative Agent’s Covering of Fundings:      99   

12.4.

   Ordinary Course Distributions: Revolving Credit Facility      102   
ARTICLE 13 - ACCELERATION AND LIQUIDATION:      103   

13.1.

   Acceleration Notices      103   

13.2.

   Acceleration      103   

13.3.

   Initiation of Liquidation      104   

13.4.

   Actions At and Following Initiation of Liquidation      104   

13.5.

   Distribution of Liquidation Proceeds      104   

13.6.

   Relative Priorities To Proceeds of Liquidation      105   
ARTICLE 14 - THE AGENTS:      106   

14.1.

   Appointment of The Agents      106   

14.2.

   Responsibilities of Agents      107   

14.3.

   Concerning Distributions By the Agents      108   

14.4.

   Dispute Resolution      109   

14.5.

   Distributions of Notices and of Documents      109   

14.6.

   Confidential Information      109   

14.7.

   Reliance by Agents      110   

14.8.

   Non-Reliance on Agents and Other Revolving Credit Lenders      110   

14.9.

   Indemnification      111   

14.10.

   Resignation of Agent      111   
ARTICLE 15 - ACTION BY AGENTS - CONSENTS - AMENDMENTS - WAIVERS:      112   

15.1.

   Administration of Revolving Credit Facility      112   

15.2.

   Actions Requiring or On Direction of Majority Revolving Credit Lenders      113   

15.3.

   Action Requiring Certain Consent      113   

15.4.

   Miscellaneous Actions      115   

15.5.

   Actions Requiring Borrowers’ Representative’s Consent      115   

15.6.

   NonConsenting Revolving Credit Lender      116   
ARTICLE 16 - ASSIGNMENTS BY REVOLVING CREDIT LENDERS:      117   

16.1.

   Assignments and Assumptions      117   

16.2.

   Assignment Procedures      118   

16.3.

   Effect of Assignment      118   
ARTICLE 17 - NOTICES:      119   

17.1.

   Notice Addresses      119   

 

(v)


17.2.

   Notice Given      120   

17.3.

   Wire Instructions      121   
ARTICLE 18 - TERM:      121   

18.1.

   Termination of Revolving Credit Facility      121   

18.2.

   Actions On Termination      121   
ARTICLE 19 - GENERAL:      122   

19.1.

   Protection of Collateral      122   

19.2.

   Publicity      122   

19.3.

   Successors and Assigns      122   

19.4.

   Severability      122   

19.5.

   Amendments. Course of Dealing      123   

19.6.

   Power of Attorney      123   

19.7.

   Application of Proceeds      123   

19.8.

   Increased Costs      124   

19.9.

   Costs and Expenses of Agents and Revolving Credit Lenders      124   

19.10.

   Copies, Facsimiles and Electronic Communications      125   

19.11.

   Massachusetts Law      125   

19.12.

   Indemnification      126   

19.13.

   Rules of Construction      126   

19.14.

   Intent      128   

19.15.

   Participations      128   

19.16.

   Right of Set-Off      128   

19.17.

   Pledges To Federal Reserve Banks      129   

19.18.

   Maximum Interest Rate      129   

19.19.

   Waivers      129   

19.20.

   Additional Waivers      130   

19.21.

   Replacement of Revolving Credit Lenders      131   

19.22.

   Patriot Act Notice      132   

19.23.

   Counterparts; Integration; Effectiveness      133   

19.24.

   Existing Loan Agreement Amended and Restated      133   

 

(vi)


EXHIBITS

 

1.0(a)    :      Casual Male Companies
1.0(b)    :      Guarantors
1.1    :      Permitted Encumbrances
2.8    :      SwingLine Note
2.10    :      Revolving Credit Note
2.23    :      Revolving Credit Lenders’ Commitments
3.8(b)    :      Existing Defaults under Material Contracts
4.2    :      Loan Parties’ Information
4.3    :      Trade Names
4.4(b)    :      Exceptions to Property Rights
4.5    :      Locations, Leases, and Landlords
4.7(b)    :      Consigned Inventory
4.7(c)(ii)    :      Equipment Usage Agreement
4.9    :      Insurance Policies
4.11    :      Capital Leases
4.13(a)    :      Labor Relations
4.19    :      Litigation
4.28(b)    :      Contingent Obligations
5.4    :      Borrowing Base Certificate
5.8    :      Compliance Certificate
7.1    :      DDA’s
7.2    :      Credit Card Arrangements
16.1    :      Assignment / Assumption

 

(vii)


 

SIXTH AMENDED AND RESTATED  
LOAN AND SECURITY AGREEMENT   Bank of America, N.A.
  Administrative and Collateral Agent

 

 

 

November 10, 2010

THIS SIXTH AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Agreement”) is made among:

Bank of America, N.A., a national banking association with an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as administrative agent (in such capacity, the “Administrative Agent”) for the benefit of (i) the Collateral Agent, (ii) the “Revolving Credit Lenders” who are, at present, those financial institutions identified on the signature pages of this Agreement and any Person who becomes a “Revolving Credit Lender” in accordance with the provisions of this Agreement, and (iii) the other Secured Parties;

and

Bank of America, N.A., a national banking association with an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as collateral agent (in such capacity, the “Collateral Agent”) for the benefit of (i) the Administrative Agent, (ii) the Revolving Credit Lenders, and (iii) the other Secured Parties;

and

The Revolving Credit Lenders;

and

Casual Male Retail Group, Inc., a Delaware corporation with its principal executive offices at 555 Turnpike Street, Canton, Massachusetts 02021, as agent (in such capacity, the “Borrowers’ Representative”) for Casual Male Retail Group, Inc. and CMRG Apparel, LLC (successor by conversion to Designs Apparel, Inc.), a Delaware limited liability company (“CMRG Apparel”) (individually, a “Borrower” and collectively, the “Borrowers”).

WHEREAS, on December 28, 2006, the Borrowers entered into a Fifth Amended and Restated Loan and Security Agreement (as amended and in effect, the “Existing Loan Agreement”) among (i) the Borrowers, (ii) Bank of America, N.A., as Administrative Agent and Collateral Agent, (iii) the Revolving Credit Lenders, and (iv) the “Last Out Lenders” party to, and as defined in, the Existing Loan Agreement, pursuant to which, among other things, the Revolving Credit Lenders agreed to make Revolving Credit Loans to the Borrowers and the Last Out Lenders agreed to make Last Out Revolving Loans to the Borrowers;

 

-1-


WHEREAS, the Borrowers have requested that the Agent and the Revolving Credit Lenders extend the Maturity Date (as defined in the Existing Loan Agreement), terminate the Last Out Commitments (as defined in the Existing Loan Agreement) and amend and restate the other provisions of the Existing Loan Agreement in its entirety; and

WHEREAS, in accordance with Article 15 of the Existing Loan Agreement, the Agent and the Revolving Credit Lenders are willing to amend and restate the Existing Loan Agreement in its entirety on the terms set forth herein

NOW THEREFORE, in consideration of the mutual agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Agent, the Revolving Credit Lenders and the Borrowers hereby agree that the Existing Loan Agreement shall be amended and restated in its entirety as follows (it being agreed that this Agreement shall not be deemed to evidence or result in a novation or repayment and reborrowing of the Liabilities under, and as defined in, the Existing Loan Agreement):

ARTICLE 1 - DEFINITIONS:

As used herein, the following terms have the following meanings or are defined in the section of this Agreement so indicated:

Accelerated Borrowing Base Delivery Event”: Either (i) the occurrence and continuance of any Default or Event of Default, or (ii) the failure of the Borrowers to maintain Excess Availability at all times equal to or greater than fifteen percent (15%) of the Loan Cap. For purposes of this Agreement, the occurrence of an Accelerated Borrowing Base Delivery Event shall be deemed continuing (A) so long as such Default or Event of Default is continuing, and/or (B) if the Accelerated Borrowing Base Delivery Event arises as a result of the Borrowers’ failure to maintain Excess Availability as required pursuant to clause (ii) above, until Excess Availability has equaled or exceeded fifteen percent (15%) of the Loan Cap for sixty (60) consecutive calendar days, in which case an Accelerated Borrowing Base Delivery Event shall no longer be deemed to be continuing for purposes of this Agreement.

Acceleration”: The making of demand or declaration that any indebtedness, not otherwise due and payable, is due and payable. Derivations of the word “Acceleration” (such as “Accelerate”) are used with like meaning in this Agreement.

Acceleration Notice”: Written notice as follows:

(a) From the Administrative Agent to the Collateral Agent and the Revolving Credit Lenders, as provided in Section 13.1(a).

(b) From the Majority Revolving Credit Lenders to the Administrative Agent, as provided in Section 13.1(b).

 

-2-


Account Debtor”: Has the meaning given that term in the UCC.

Accounts” and “Accounts Receivable”: Include, without limitation, “accounts” as defined in the UCC, and also all: accounts, accounts receivable, receivables, and rights to payment (whether or not earned by performance) for: property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of; services rendered or to be rendered; a policy of insurance issued or to be issued; a secondary obligation incurred or to be incurred; for the use or hire of a vessel; arising out of the use of a credit or charge card or information contained on or used with that card; and also all Inventory which gave rise thereto, and all rights associated with such Inventory, including the right of stoppage in transit; all reclaimed, returned, rejected or repossessed Inventory (if any) the sale of which gave rise to any Account.

ACH”: Automated clearing house.

Acquisition”: The purchase or other acquisition, by a Loan Party (no matter how structured in one transaction or in a series of transactions), of: (a) equity interests in any other Person which would constitute or which results in a Change in Control of such other Person (as if such Person were Casual Male, as used in the definition of “Change of Control”), or (b) such of the assets of any Person as would permit a Loan Party to operate one or more retail locations of such Person or to conduct other business operations with such assets; provided, however, none of the following shall constitute an “Acquisition”: purchases of inventory in the ordinary course of a Loan Party’s business; purchases, leases or other acquisitions of Equipment in the ordinary course of a Loan Party’s business; and Capital Expenditures permitted hereunder.

Additional Commitment Lender”: Defined in Section 2.24(c).

Administrative Agent”: Defined in the Preamble.

Administrative Agent’s Account”: Defined in Section 7.3.

Administrative Agent’s Cover”: Defined in Section 12.3(c)(i).

Affiliate”: The following:

(a) With respect to any two Persons, a relationship in which (i) one holds, directly or indirectly, not less than twenty five percent (25%) of the capital stock, beneficial interests, partnership interests, or other equity interests of the other; or (ii) one has, directly or indirectly, the right, under ordinary circumstances, to vote for the election of a majority of the directors (or other body or Person who has those powers customarily vested in a board of directors of a corporation); or (iii) not less than twenty five percent (25%) of their respective ownership is directly or indirectly held by the same third Person.

 

-3-


(b) Any Person which: is a parent, brother-sister or Subsidiary of a Loan Party; could have such enterprise’s tax returns or financial statements consolidated with that Loan Party’s; could be a member of the same controlled group of corporations (within the meaning of Section 1563(a)(1), (2) and (3) of the Internal Revenue Code of 1986, as amended from time to time) of which any Loan Party is a member; or controls or is controlled by any Loan Party.

Agent”: When not preceded by “Administrative” or “Collateral”, the term “Agent” refers collectively and individually to the Administrative Agent and the Collateral Agent.

Agent’s Fee”: Defined in Section 2.15.

Agents’ Rights and Remedies”: Defined in Section 11.7.

Applicable Inventory Advance Rate”: 90%.

Applicable Law”: As to any Person: (i) All statutes, rules, regulations, orders, or other requirements having the force of law; and (ii) all court orders and injunctions, arbitrator’s decisions, and/or similar rulings, in each instance ((i) and (ii)) of or by any federal, state, municipal, and other governmental authority, or court, tribunal, panel, or other body which has or claims jurisdiction over such Person, or any property of such Person, or of any other Person for whose conduct such Person would be responsible.

Applicable Margin”: The following percentages for Base Margin Loans and Libor Loans based upon the following criteria:

 

LEVEL

  

AVERAGE EXCESS AVAILABILITY

   APPLICABLE
MARGIN FOR
LIBOR LOANS
    APPLICABLE
MARGIN FOR
BASE MARGIN
LOANS
 

I

  

Greater than or equal to 50% of the Borrowing Base

     2.00     1.00

II

  

Less than 50% of the Borrowing Base

     2.25     1.25

The Applicable Margin shall be set on the Closing Date based upon the Average Excess Availability for the three (3) months immediately preceding the Closing Date. Thereafter, the Applicable Margin shall be adjusted quarterly on the first day of each calendar quarter based upon the Average Excess Availability during the prior quarter; provided that, if any Borrowing Base Certificate is at any time restated or otherwise revised or if the information set forth in any such Borrowing Base Certificate otherwise proves to be false or incorrect such that the Applicable

 

-4-


Margin would have been higher than was otherwise in effect during any period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand. Upon the occurrence of an Event of Default and for so long as such Event of Default continues in existence, the Applicable Margin may, at the option of the Administrative Agent, be immediately increased to the percentages set forth in Level II (even if the Average Excess Availability requirements for another Level have been met) and interest shall be determined in the manner set forth in Section 2.12(f).

Appraised Inventory Liquidation Value”: The product of (a) the Cost of Eligible Inventory (net of Inventory Reserves) of the Casual Male Companies and RBT, multiplied by (b) that percentage, determined from the then most recent appraisal of the Loan Parties’ Inventory undertaken at the request of the Administrative Agent, to reflect the appraiser’s estimate of the net recovery on the Loan Parties’ Inventory in the event of an in-store liquidation of that Inventory.

Approved Fund”: Any Fund that is administered or managed by (a) a Revolving Credit Lender, (b) an Affiliate of a Revolving Credit Lender (c) an entity or an Affiliate of an entity that administers or manages a Revolving Credit Lender, or (d) the same investment advisor or an advisor under common control with such Revolving Credit Lender, Affiliate or advisor, as applicable.

Arrangement Fee”: Has the meaning set forth in the Fee Letter.

Assignee Revolving Credit Lender”: Defined in Section 16.1.

Assigning Revolving Credit Lender”: Defined in Section 16.1.

Assignment and Acceptance”: Defined in Section 16.2.

Availability”: The lesser of (a) or (b) where:

 

  (a) is the result of

(i) The Revolving Credit Commitments;

Minus

(ii) The aggregate outstanding Revolving Credit Loans and SwingLine Loans;

Minus

(iii) The aggregate undrawn Stated Amount of all then outstanding L/Cs.

 

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  (b) is the result of

(i) The Borrowing Base;

Minus

(ii) The aggregate outstanding Revolving Credit Loans and SwingLine Loans;

Minus

(iii) The aggregate undrawn Stated Amount of all then outstanding L/Cs;

Minus

(iv) The aggregate of the Availability Reserves.

Availability Condition”: At the time of determination with respect to any specified transaction or payment that is subject to satisfaction of the Payment Conditions, Excess Availability at the time of such determination and immediately following, and after giving effect to, such transaction or payment was, and is projected by the Loan Parties on a pro forma basis for each of the twelve (12) Fiscal months immediately following such transaction or payment to be, equal to or greater than twenty percent (20%) of the Loan Cap.

Availability Reserves”: Such reserves as the Administrative Agent from time to time determines in the Administrative Agent’s reasonable discretion as being appropriate to reflect the impediments to the Collateral Agent’s ability to realize upon the Collateral. Without limiting the generality of the foregoing, Availability Reserves may include (but are not limited to) reserves based on the following:

 

  (i) Rent (but only if a landlord’s waiver, acceptable to the Administrative Agent, has not been received by the Administrative Agent).

 

  (ii) Customer Credit Liabilities.

 

  (iii) Taxes and other governmental charges, including, ad valorem, personal property, and other taxes which might have priority over the Collateral Interests of the Collateral Agent in the Collateral.

 

  (iv) L/C Landing Costs.

 

  (v) Banking Services Reserves.

 

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Average Excess Availability”: The average daily Excess Availability for the immediately preceding quarter.

BALC”: Bank of America Leasing & Capital, LLC, and its successors and assigns.

BALC Equipment”: The Equipment specifically set forth on Exhibit 1.1(a) hereto, as such exhibit may be amended from time to time by the Borrowers, with the consent of the Administrative Agent.

BALC Indebtedness”: Indebtedness pursuant to the BALC Loan Agreement in the aggregate principal amount not to exceed $20,000,000 less all principal payments made after the Closing Date by the Borrowers to BALC pursuant to the terms thereof.

BALC Loan Agreement”: That certain Master Loan and Security Agreement and Equipment Security Note each dated as of July 20, 2007 entered into among others BALC and Casual Male Retail Group, Inc., as each is in effect as of July 20, 2007.

Banking Services”: Each and any bank services or facilities provided to any Loan Party by any Agent or any Revolving Credit Lender or any of their respective Affiliates, including, without limitation, the following: (a) Hedge Agreements; (b) purchase cards; (c) ACH transactions; (d) cash management services, including, without limitation, controlled disbursement services, treasury, depository, overdraft, and electronic funds transfer services; (e) foreign exchange facilities; (f) credit card processing services; and (g) credit or debit cards.

Banking Services Obligations”: 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.

Banking Services Reserves”: Such reserves as the Administrative Agent from time to time determines in its reasonable discretion as being appropriate to reflect the Banking Services Obligations then outstanding.

Bank of America”: Bank of America, N.A., a national banking association and its Subsidiaries, Affiliates, branches, and their respective successors with offices at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110.

Bankruptcy Code”: Title 11, U.S.C., as amended from time to time.

BAS”: Is defined in Section 2.13.

Base Rate”: For any day, a fluctuating rate per annum equal to the highest of: (a) the Federal Funds Rate plus one-half of one percent (0.50%), (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America

 

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as its “prime rate”; or (c) the Libor Rate for a one-month Interest Period in effect on such day plus one percent (1.00%). The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the Base Rate due to a change in Bank of America’s “prime rate”, the Federal Funds Rate or the Libor Rate, respectively, shall take effect at the opening of business on the day specified in the public announcement of such change.

Base Margin”: As determined from the definition of Applicable Margin.

Base Margin Loan”: Each Revolving Credit Loan while bearing interest at the Base Margin Rate.

Base Margin Rate”: The aggregate of Base Rate plus the then Base Margin.

Blocked Account”: Defined in Section 7.3(a)(ii).

Blocked Account Agreement”: An agreement, in form and substance satisfactory to the Collateral Agent, which recognizes the Collateral Agent’s Collateral Interest in the contents of the deposit account which is the subject of such agreement and provides that, after the occurrence and during the continuance of a Cash Dominion Event, such contents shall be transferred only to the Administrative Agent’s Account or as otherwise instructed by the Collateral Agent.

Blocked Account Bank”: Each bank with whom deposit accounts are maintained in which any funds of any of the Loan Parties from one or more DDAs are concentrated and with whom a Blocked Account Agreement has been, or is required to be, executed in accordance with the terms hereof.

Borrower” and “Borrowers”: Defined in the Preamble.

Borrowers’ Representative”: Defined in the Preamble.

Borrowing Base”: The aggregate of the following:

(a) The Applicable Inventory Advance Rate multiplied by the Appraised Inventory Liquidation Value.

Plus

(b) The face amount of Eligible Credit Card Receivables multiplied by the Credit Card Advance Rate.

Borrowing Base Certificate”: A certificate substantially in the form of EXHIBIT 5.4 annexed hereto (as such form may be revised from time to time by the

 

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Administrative Agent), executed and certified as accurate and complete by the Borrowers’ Representative, which shall include appropriate exhibits, schedules, supporting documentation, and additional reports as reasonably requested by the Administrative Agent.

Business Day”: Any day other than (a) a Saturday or Sunday; (b) any day on which banks in Boston, Massachusetts generally are not open to the general public for the purpose of conducting commercial banking business; or (c) a day on which the principal office of the Administrative Agent is not open to the general public to conduct business.

Business Plan”: The Loan Parties’ most recent projected balance sheet, income statement, statement of cash flows, and availability model, each on a monthly basis for the following twelve (12) month period, delivered by the Borrowers’ Representative from time to time pursuant to Section 5.7(c), as updated from time to time by the Borrowers’ Representative pursuant to this Agreement.

Canton Lease”: The lease and related documents entered into by and among Casual Male and Spirit SPE Canton, LLC dated as of February, 2006.

Capital Expenditures”: The expenditure of funds or the incurrence of liabilities which may be capitalized in accordance with GAAP.

Capital Lease”: Any lease which may be capitalized in accordance with GAAP.

Capital Lease Obligations”: With respect to any Person for any period, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as liabilities on a balance sheet of such Person under GAAP and the amount of which obligations shall be the capitalized amount thereof determined in accordance with GAAP.

Cash Dominion Event”: Either (a) the occurrence and continuance of any Event of Default, or (b) the failure of the Borrowers to maintain Excess Availability at all times equal to or greater than fifteen percent (15%) of the Loan Cap. For purposes of this Agreement, the occurrence of a Cash Dominion Event shall be deemed continuing at the option of the Administrative Agent (i) so long as such Event of Default has not been waived, and/or (ii) if the Cash Dominion Event arises as a result of the Borrowers’ failure to maintain Excess Availability as required hereunder, until Excess Availability has equaled or exceeded fifteen percent (15%) of the Loan Cap for sixty (60) consecutive calendar days, in which case a Cash Dominion Event shall no longer be deemed to be continuing for purposes of this Agreement; provided that a Cash Dominion Event shall be deemed continuing (even if an Event of Default is no longer continuing and/or Excess Availability exceeds the required amount for sixty (60) consecutive

 

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calendar days) (A) at the option of the Borrowers’ Representative upon notice to the Administrative Agent or (B) at all times after a Cash Dominion Event has occurred and been discontinued on two (2) occasions after the Closing Date. The termination of a Cash Dominion Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Cash Dominion Event in the event that the conditions set forth in this definition again arise.

Casual Male”: Casual Male Retail Group, Inc.

Casual Male Companies”: The Persons listed on EXHIBIT 1.0(a) annexed hereto.

Change in Control”: The occurrence of any of the following:

(a) The acquisition, by any group of persons (within the meaning of the Securities Exchange Act of 1934, as amended) or by any Person, of beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission) of 35% or more of the issued and outstanding capital stock of Casual Male having the right, under ordinary circumstances, to vote for the election of directors of Casual Male.

(b) At any time, (a) occupation of a majority of the seats (other than vacant seats) on the board of directors of Casual Male by Persons who were neither (i) nominated by the board of directors of Casual Male nor (ii) appointed by directors so nominated.

(c) The persons who are directors of Casual Male as of the Closing Date cease, for any reason other than death, disability, retirement or resignation in the ordinary course (and not in connection with a proxy contest or similar occurrence), to constitute a majority of the board of directors of Casual Male.

(d) The failure by Casual Male (i) to own, directly or indirectly, 100% of the issued and outstanding membership interests of CMRG Apparel and RBT, or (ii) to own, directly or indirectly, 100% of the issued and outstanding capital stock or membership interests of all other Loan Parties.

Chattel Paper”: Has the meaning given that term in the UCC.

Closing Date”: November 10, 2010.

CMRG Apparel”: Defined in the Preamble.

Collateral”: Defined in Section 8.1.

Collateral Agent”: Defined in the Preamble.

 

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Collateral Interest”: Any interest in property to secure an obligation, including, without limitation, a security interest, mortgage, and deed of trust.

Compliance Certificate”: Defined in Section 5.8.

Consent”: (a) Actual consent given by the Revolving Credit Lender from whom such consent is sought; or (b) except with respect to matters set forth in Section 15.3 (as to which matters actual written consent given by the Revolving Credit Lender from whom such consent is sought shall be required), the passage of seven (7) Business Days from receipt of written notice to a Revolving Credit Lender from an Agent of a proposed course of action to be followed by an Agent without such Revolving Credit Lender’s giving that Agent written notice of that Revolving Credit Lender’s objection to such course of action; provided that all Agents may rely on such passage of time as consent by a Revolving Credit Lender only if such written notice states that consent will be deemed effective if no objection is received within such time period.

Consolidated”: When used to modify a financial term, test, statement, or report, refers to the application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or operating results of the Loan Parties.

Consolidated EBITDA”: For any period, an amount equal to the Consolidated Net Income of the Borrowers’ Representative and its Subsidiaries for such period, plus (a) the following to the extent deducted in calculating Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision for federal, state, local and foreign income taxes, (iii) depreciation and amortization expense and (iv) other non-recurring expenses reducing Consolidated Net Income which do not represent a cash item in such period or any future period (in each case of or by the Borrowers’ Representative and its Subsidiaries for such period), minus (b) the following to the extent included in calculating Consolidated Net Income: (i) federal, state, local and foreign income tax credits and (ii) all non-cash items increasing Consolidated Net Income (in each case of or by the Borrowers’ Representative and its Subsidiaries for such period), all as determined on a Consolidated basis in accordance with GAAP.

Consolidated Fixed Charge Coverage Ratio”: For any period, the ratio of (a) (i) Consolidated EBITDA for such period minus (ii) Capital Expenditures made during such period, minus (iii) the aggregate amount of federal, state, local and foreign income taxes paid in cash during such period to (b) Debt Service Charges during such period, in each case, of or by the Borrowers’ Representative and its Subsidiaries for such period, all as determined on a Consolidated basis in accordance with GAAP.

Consolidated Interest Charges”: For any period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses in connection with

 

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borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, including, without limitation, all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Hedge Agreements, but excluding any non-cash or deferred interest financing costs, and (b) the portion of rent expense with respect to such period under Capital Lease Obligations that is treated as interest in accordance with GAAP, in each case of or by the Borrowers’ Representative and its Subsidiaries for such period, all as determined on a Consolidated basis in accordance with GAAP.

Consolidated Net Income”: For any period, the net income of the Borrowers’ Representative and its Subsidiaries for such period, all as determined on a Consolidated basis in accordance with GAAP; provided, however, that there shall be excluded (a) the income (or loss) of such Person during such period in which any other Person has a joint interest, except to the extent of the amount of cash dividends or other distributions actually paid in cash to such Person during such period, (b) the income (or loss) of such Person during such period and accrued prior to the date it becomes a Subsidiary of a Person or any of such Person’s Subsidiaries or is merged into or consolidated with a Person or any of its Subsidiaries or that Person’s assets are acquired by such Person or any of its Subsidiaries, and (c) the income of any direct or indirect Subsidiary of a Person to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its organizational documents or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary, except that the Borrowers’ Representative’s equity in any net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income.

Cost”: The lower of:

(a) the calculated cost of purchases, as determined from invoices received by CMRG Apparel its purchase journal or stock ledger, based upon its accounting practices, known to the Administrative Agent, which practices are in effect on the date on which this Agreement was executed; or

(b) the lowest ticketed or promoted price at which the subject inventory is offered to the public by any Loan Party, after all mark-downs (whether or not such price is then reflected on a Loan Party’s accounting system).

“Cost” does not include inventory capitalization costs or other non-purchase price charges used in a Loan Party’s calculation of cost of goods sold (other than freight, which may be capitalized consistent with GAAP and such Loan Party’s prior practices).

 

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Costs of Collection”: Includes, without limitation, all reasonable attorneys’ fees and reasonable out-of-pocket expenses incurred by any Agent’s attorneys, and all reasonable out-of-pocket costs incurred by any Agent in the administration of the Liabilities and/or the Loan Documents, including, without limitation, reasonable costs and expenses associated with travel on behalf of any Agent, where such costs and expenses are directly or indirectly related to or in respect of any Agent’s: administration and management of the Liabilities; negotiation, documentation, and amendment of any Loan Document; or efforts to preserve, protect, collect, or enforce the Collateral, the Liabilities, and/or the Agents’ Rights and Remedies and/or any of the rights and remedies of any Agent against or in respect of any guarantor or other person liable in respect of the Liabilities (whether or not suit is instituted in connection with such efforts). “Costs of Collection” also includes the reasonable fees and expenses of Lenders’ Special Counsel. The Costs of Collection are Liabilities, and at the Administrative Agent’s option may bear interest at the then effective Base Margin Rate.

Credit Card Advance Rate”: 90%.

Credit Card Receivables”: Each Account, together with all income, payments and proceeds thereof, owed by (a) a major credit or debit card issuer (including, but not limited to, Visa, MasterCard and American Express and such other issuers approved by the Administrative Agent) and (b) any Person on account of any private label credit card receivables under programs between a Loan Party and a third party acceptable to the Administrative Agent) where the third party retains the consumer credit exposure to a Loan Party resulting from charges by a customer of a Loan Party on credit or debit cards issued by such issuer in connection with the sale of goods by a Loan Party, or services performed by a Loan Party, in each case in the ordinary course of its business.

Customer Credit Liabilities”: Gift certificates, gift cards, customer deposits, merchandise credits, layaway obligations, discounts, credits and similar items earned by customers in respect of frequent shopping programs, and similar liabilities of any Loan Party to its retail customers and prospective customers.

DDA”: Any store level checking, demand daily depository account or other bank or like account maintained by any Loan Party for the purpose of depositing store receipts and paying de minimis store level expenses, including, on the date of this Agreement, the accounts listed on EXHIBIT 7.1 hereto, but excluding, however, any Exempt DDA.

Debt Service Charges”: For any period, the sum of (a) Consolidated Interest Charges paid or required to be paid for such period, plus (b) scheduled principal payments made or required to be made on account of Indebtedness (excluding the

 

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Liabilities, but including, without limitation, Capital Lease Obligations) for such period, in each case determined on a Consolidated basis in accordance with GAAP.

Default”: Any occurrence, circumstance, or state of facts with respect to a Loan Party which (a) is an Event of Default; or (b) would become an Event of Default if any requisite notice were given and/or any requisite period of time were to run and such occurrence, circumstance, or state of facts were not cured within any applicable grace period.

Delinquent Revolving Credit Lender”: Defined in Section 12.3(c).

Deposit Account”: Has the meaning given that term in the UCC.

Deteriorating Revolving Credit Lender”: (a) Any Delinquent Revolving Credit Lender or (b) any Revolving Credit Lender (i) as to which the Issuer has a good faith belief that such Revolving Credit Lender has defaulted in fulfilling its obligations under one or more other syndicated credit facilities (unless such default arises as a result of a bona fide dispute being contested in good faith by such Revolving Credit Lender), or (ii) which has been deemed insolvent or become the subject of a proceeding under the Bankruptcy Code, or any federal, state or foreign bankruptcy, insolvency, receivership or similar law, or the assets or management of which have been taken over by any governmental authority, or (iii) as to which a Person that Controls such Revolving Credit Lender has been deemed insolvent or become the subject of a proceeding under the Bankruptcy Code, or any federal, state or foreign bankruptcy, insolvency, receivership or similar law, or the assets or management of which have been taken over by any governmental authority.

Documents”: Has the meaning given that term in the UCC.

Documents of Title”: Has the meaning given that term in the UCC.

Eligible Assignee”: With respect to an assignee of a Revolving Credit Lender: (a) a bank, insurance company, or company engaged in the business of making commercial loans having a combined capital and surplus in excess of $300 Million; or (b) a Revolving Credit Lender or any Affiliate of any Revolving Credit Lender; or (c) any Person to whom a Revolving Credit Lender assigns its rights and obligations under this Agreement as part of a programmed assignment and transfer of such Revolving Credit Lender’s rights in and to a material portion of such Revolving Credit Lender’s portfolio of asset based credit facilities; or (d) an Approved Fund.

Eligible Credit Card Receivables”: At the time of any determination thereof, each Credit Card Receivable that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Credit Card Receivable (i) has been earned by performance and represents the bona fide

 

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amounts due to a Loan Party from a credit card payment processor and/or credit card issuer, and in each case originated in the ordinary course of business of such Loan Party, and (ii) in each case is acceptable to the Administrative Agent in its reasonable discretion, and is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (k) below. Without limiting the foregoing, to qualify as an Eligible Credit Card Receivable, an Account shall indicate no Person other than a Loan Party as payee or remittance party. In determining the amount to be so included, the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Loan Party may be obligated to rebate to a customer, a credit card payment processor, or credit card issuer pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Loan Parties to reduce the amount of such Credit Card Receivable. Except as otherwise agreed by the Administrative Agent, any Credit Card Receivable included within any of the following categories shall not constitute an Eligible Credit Card Receivable:

(a) Credit Card Receivables which do not constitute an “Account” (as defined in the UCC);

(b) Credit Card Receivables that have been outstanding for more than five (5) Business Days from the date of sale;

(c) Credit Card Receivables (i) that are not subject to a perfected first-priority security interest in favor of the Collateral Agent, or (ii) with respect to which a Loan Party does not have good, valid and marketable title thereto, free and clear of any Encumbrance (other than Encumbrances granted to the Collateral Agent pursuant to the Loan Documents);

(d) Credit Card Receivables which are disputed, are with recourse, or with respect to which a claim, counterclaim, offset or chargeback has been asserted (to the extent of such claim, counterclaim, offset or chargeback);

(e) Credit Card Receivables as to which the processor has the right under certain circumstances to require a Loan Party to repurchase the Accounts from such credit card processor;

(f) Credit Card Receivables due from an issuer or payment processor of the applicable credit card which is the subject of any bankruptcy or insolvency proceedings;

 

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(g) Credit Card Receivables which are not a valid, legally enforceable obligation of the applicable issuer with respect thereto;

(h) Credit Card Receivables which do not conform to all representations, warranties or other provisions in the Loan Documents relating to Credit Card Receivables;

(i) Credit Card Receivables which are evidenced by “chattel paper” or an “instrument” of any kind unless such “chattel paper” or “instrument” is in the possession of the Collateral Agent, and to the extent necessary or appropriate, endorsed to the Collateral Agent; or

(j) Credit Card Receivables which the Administrative Agent determines in its reasonable discretion to be uncertain of collection or which do not meet such other reasonable eligibility criteria for Credit Card Receivables as the Administrative Agent may determine.

Eligible In-Transit Inventory”: “Eligible In-Transit Inventory” will be calculated at 80% of the Cost value of such of the Inventory of the Casual Male Companies and RBT (in each case, without duplication as to Eligible Inventory and Eligible L/C Inventory), in each case in which title has passed to a Loan Party and which is then being shipped from a foreign location for receipt, within 45 days, at a warehouse of one of the Loan Parties; provided that

(a) Such Inventory is of such types, character, qualities and quantities (net of Inventory Reserves) as the Administrative Agent in its reasonable discretion from time to time determines to be eligible for borrowing;

(b) If applicable, the documents which relate to such shipment names the Collateral Agent as consignee of the subject Inventory and the Collateral Agent has control over the documents which evidence ownership of the subject Inventory (such as by the providing to the Collateral Agent of a Customs Brokers Agreement in form reasonably satisfactory to the Collateral Agent); and

(c) The Collateral Agent has a first priority perfected security interest in such Inventory;

provided further that the Administrative Agent may, in its reasonable discretion, exclude any particular Inventory from the definition of “Eligible In-Transit Inventory” in the event that the Administrative Agent determines that such Inventory is subject to any Person’s right or claim which is (or is capable of being) senior to, or pari passu with, the Encumbrance of the Collateral Agent (such as, without limitation, a right of stoppage in transit) or may otherwise adversely impact the ability of the Collateral Agent to realize upon such Inventory.

 

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Eligible Inventory”: The following (without duplication):

(a) Such of the Loan Parties’ Inventory, at such locations, and of such types, character, qualities and quantities, as the Administrative Agent, in its reasonable discretion from time to time determines to be acceptable for borrowing, as to which Inventory, the Collateral Agent has a perfected security interest which is prior and superior to all security interests, claims, and encumbrances.

(b) Eligible L/C Inventory.

(c) Eligible In-Transit Inventory.

Without limiting the foregoing, “Eligible Inventory” shall not include: (i) direct shipment Inventory; (ii) Inventory which cannot be sold including, without limitation, any non-merchandise inventory (such as labels, bags, and packaging materials, etc.); (iii) “dummy warehouse inventory”; (iv) damaged goods, return to vendor merchandise, packaways, samples and other similar categories; (v) Inventory that is leased by or is on consignment to a Loan Party or which is consigned by a Loan Party to a Person which is not a Loan Party; (vi) inventory which is the subject of a store closing, liquidation, going-out-of-business or similar sale, as to which in each case, any Loan Party has received an initial payment of the guaranteed price from the Person conducting the sale; and (vii) inventory in locations outside the United States or Canada (except for Eligible L/C Inventory) and in locations in the United States or Canada not under any Loan Party’s control (unless waivers acceptable to the Agents are obtained); provided, however, in no event shall Inventory in locations outside of the United States be Eligible Inventory unless the Agent (A) has a first priority perfected security interest in such Inventory, (B) has completed or received an appraisal of such Inventory from appraisers satisfactory to the Agent and such other due diligence as the Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Agent, (C) has established applicable advance rates and Reserves in connection therewith, and (D) has otherwise determined in its reasonable discretion that such Inventory is eligible to be included in the Borrowing Base.

Eligible L/C Inventory”: “Eligible L/C Inventory” will be calculated at 85% of the Cost value of such of the Inventory of the Casual Male Companies and RBT (in each case, without duplication as to Eligible Inventory and Eligible In-Transit Inventory), in each case the purchase of which is supported by a documentary L/C then having an initial expiry of forty-five (45) or less days; provided that

(a) Such Inventory is of such types, character, qualities and quantities (net of Inventory Reserves) as the Administrative Agent in its reasonable discretion from time to time determines to be eligible for borrowing; and

 

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(b) The documentary L/C supporting such purchase names the Collateral Agent as consignee of the subject Inventory and the Collateral Agent has control over the documents which evidence ownership of the subject Inventory (such as by the providing to the Collateral Agent of a Customs Brokers Agreement in form reasonably satisfactory to the Collateral Agent).

Employee Benefit Plan”: As defined in ERISA.

Encumbrance”: A Collateral Interest or agreement to create or grant a Collateral Interest; the interest of a lessor under a Capital Lease, conditional sale or other title retention agreement; sale of accounts receivable or chattel paper; or other arrangement pursuant to which any Person is entitled to any preference or priority with respect to the property or assets of another Person or the income or profits of such other Person; and each of the foregoing whether consensual or non-consensual and whether arising by way of agreement, operation of law, legal process or otherwise.

End Date”: The date upon which all of the following conditions are met: (a) all Liabilities (other than continuing representations, warranties and indemnity obligations) have been paid in full; (b) all obligations of any Revolving Credit Lender to make loans and advances and to provide other financial accommodations to the Borrowers hereunder shall have been irrevocably terminated; and (c) the arrangements regarding L/Cs described in Section 18.2(b) have been made.

Environmental Laws”: All of the following:

(a) Applicable Law which regulates or relates to, or imposes any standard of conduct or liability on account of or in respect to environmental protection matters, including, without limitation, Hazardous Materials, as are now or hereafter in effect.

(b) The common law relating to damage to Persons or property from Hazardous Materials.

Equipment”: Includes, without limitation, “equipment” as defined in the UCC, and also all furniture, store fixtures, motor vehicles, rolling stock, machinery, office equipment, plant equipment, tools, dies, molds, and other goods, property, and assets which are used and/or were purchased for use in the operation or furtherance of a Person’s business, and any and all accessions or additions thereto, and substitutions therefor.

ERISA”: The Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate”: Any Person which is under common control with a Loan Party within the meaning of Section 4001 of ERISA or is part of a group which includes any Loan Party and which would be treated as a single employer under Section 414 of the Internal Revenue Code of 1986, as amended.

 

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Events of Default”: Defined in Article 10. An “Event of Default” shall be deemed to have occurred and to be continuing unless and until that Event of Default has been duly waived by the requisite Revolving Credit Lenders or by the Administrative Agent, as applicable.

Excess Availability”: The result of (a) Availability minus (b) all then past due obligations of the Loan Parties including accounts payable which are beyond customary trade terms and rent obligations which are beyond applicable grace periods.

Executive Order”: Defined in Section 4.34.

Exempt DDA”: A depository account maintained by any Loan Party, the only contents of which may be transfers from the Operating Account and actually used solely (i) for petty cash purposes or (ii) for payroll.

Existing Loan Agreement”: Defined in the Preamble.

Farm Products”: Has the meaning given that term in the UCC.

Federal Funds Rate”: For any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of  1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

Fee Letter”: The letter dated as of September 28, 2010 between Borrowers’ Representative and the Administrative Agent, as such letter may from time to time be amended.

Fiscal”: When followed by “month” or “quarter”, it refers to the relevant fiscal period based on the Loan Parties’ fiscal year and accounting conventions (e.g. reference to the Loan Parties’ “Fiscal June 2010” is to the Loan Parties’ fiscal month of June in the calendar year 2010). When followed by reference to a specific year, it refers to the fiscal year which ends in a month of the year to which reference is being made (e.g. if the Loan Parties’ fiscal year ends in January 2011 reference to that year would be to the Loan Parties’ “Fiscal 2011”).

 

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Fixtures”: Has the meaning given that term in the UCC.

Foreign Assets Control Regulations”: Defined in Section 4.34.

Fund”: Any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.

GAAP”: Principles which are consistent with those promulgated or adopted by the Financial Accounting Standards Board and its predecessors (or successors) in effect and applicable to that accounting period in respect of which reference to GAAP is being made; provided, however, in the event of a Material Accounting Change, then unless otherwise specifically agreed to by the Administrative Agent, the Borrowers’ Representative shall include, with its monthly, quarterly, and annual financial statements a schedule, certified by the Borrowers’ Representative’s chief financial officer, on which the effect of such Material Accounting Change on that statement shall be described.

General Intangibles”: Includes, without limitation, “general intangibles” as defined in the UCC; and also all: rights to payment for credit extended; deposits; amounts due to any Person; credit memoranda in favor of any Person; warranty claims; tax refunds and abatements; insurance refunds and premium rebates; all means and vehicles of investment or hedging, including, without limitation, options, warrants, and futures contracts; records; customer lists; telephone numbers; goodwill; causes of action; judgments; payments under any settlement or other agreement; literary rights; rights to performance; royalties; license and/or franchise fees; rights of admission; licenses; franchises; license agreements, including all rights of any Person to enforce same; permits, certificates of convenience and necessity, and similar rights granted by any governmental authority; patents, patent applications, patents pending, and other intellectual property; internet addresses and domain names; developmental ideas and concepts; proprietary processes; blueprints, drawings, designs, diagrams, plans, reports, and charts; catalogs; manuals; technical data; computer software programs (including the source and object codes therefor), computer records, computer software, rights of access to computer record service bureaus, service bureau computer contracts, and computer data; tapes, disks, semi-conductors chips and printouts; trade secrets rights, copyrights, mask work rights and interests, and derivative works and interests; user, technical reference, and other manuals and materials; trade names, trademarks, service marks, and all goodwill relating thereto; applications for registration of the foregoing; and all other general intangible property of any Person in the nature of intellectual property; proposals; cost estimates, and reproductions on paper, or otherwise, of any and all concepts or ideas, and any matter related to, or connected with, the design, development, manufacture, sale, marketing, leasing, or use of any or all property produced, sold, or leased, by any or credit extended or services performed, by any Person, whether intended for an individual customer or the general business of any Person, or used or useful in connection with research by any Person.

 

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Goods”: Has the meaning given that term in the UCC, and also includes all things movable when a Collateral Interest therein attaches and also all computer programs embedded in goods and any supporting information provided in connection with a transaction relating to the program if (i) the program is associated with the goods in such manner that it customarily is considered part of the goods or (ii) by becoming the owner of the goods, a Person acquires a right to use the program in connection with the goods.

Guarantor” and “Guarantors”: Each Person named on EXHIBIT 1.0(b) annexed hereto individually, and the Persons named on EXHIBIT 1.0(b) annexed hereto, collectively.

Guarantor Agreement”: Each instrument and document executed by a Guarantor of the Liabilities to evidence or secure the Guarantor’s guaranty thereof.

Guarantor Default”: Default or breach or the occurrence of any event of default under any Guarantor Agreement.

Hazardous Materials”: Any (a) substance which is defined or regulated as a hazardous material in or under any Environmental Law and (b) oil in any physical state.

Hedge Agreement”: Any and all transactions, agreements or documents now existing or hereafter entered into, which provides for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging the Borrowers’ exposure to fluctuations in interest or exchange rates, loan, credit exchange, security or currency valuations or commodity prices and not for speculative purposes.

Hedge Exposure”: On any Business Day, the amount, if any, estimated by the Revolving Credit Lender or its Affiliate which is party to a Hedge Agreement with a Loan Party in good faith and in a commercially reasonable manner (for which calculations and computations will be provided to such Loan Party at its request) pursuant to methodology set forth in the applicable Hedge Agreement, which would be payable to such Revolving Credit Lender or its Affiliate if the Hedge Agreement were terminated as of such Business Day as a result of an event of default (as defined in the Hedge Agreement) with respect to the Loan Party and a payment were due thereunder to the Revolving Credit Lender or its Affiliate.

Increase Effective Date”: Defined in Section 2.24(d).

Indebtedness”: All indebtedness and obligations of or assumed by any Person on account of or with respect to any of the following:

(a) In respect of money borrowed (including any indebtedness which is non-recourse to the credit of such Person but which is secured by an Encumbrance on any asset of such Person) whether or not evidenced by a promissory note, bond, debenture or other written obligation to pay money.

 

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(b) In connection with any letter of credit or acceptance transaction (including, without limitation, the face amount of all letters of credit and acceptances issued for the account of such Person or reimbursement on account of which such Person would be obligated).

(c) In connection with the sale or discount of accounts receivable or chattel paper of such Person.

(d) On account of deposits or advances (but not including any liabilities with respect to Customer Credit Liabilities including gift cards, gift certificates, merchandise credits and/or frequent shopper or other consumer loyalty programs).

(e) As lessee under Capital Leases.

(f) In connection with any sale and leaseback transaction.

“Indebtedness” of any Person also includes:

(x) Indebtedness of others secured by an Encumbrance on any asset of such Person, whether or not such Indebtedness is assumed by such Person.

(y) Any guaranty, endorsement, suretyship or other undertaking pursuant to which that Person may be liable on account of any obligation of any third party other than on account of the endorsement of checks and other items in the ordinary course.

(z) The Indebtedness of a partnership or joint venture for which such Person is liable as a general partner or joint venturer.

Indemnified Person”: Defined in Section 19.12.

Instruments”: Has the meaning given that term in the UCC.

Interest Payment Date”: With reference to:

Each Libor Loan: The last day of the Interest Period relating thereto (and on the last day of the third month for any such loan which has a six (6) month Interest Period); the Termination Date; and the End Date.

 

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Each Base Margin Loan: The first day of each month; the Termination Date; and the End Date.

Interest Period”: The following:

(a) With respect to each Libor Loan: Subject to Subsection (c), below, the period commencing on the date of the making or continuation of, or conversion to, the subject Libor Loan and ending one, two, three or six months thereafter, and if available to all Revolving Credit Lenders, fourteen days thereafter, as the Borrowers’ Representative may elect by notice (pursuant to Section 2.6) to the Administrative Agent.

(b) With respect to each Base Margin Loan: Subject to Subsection (c), below, the period commencing on the date of the making or continuation of or conversion to such Base Margin Loan and ending on that date (i) as of which the subject Base Margin Loan is converted to a Libor Loan, as the Borrowers’ Representative may elect by notice (pursuant to Section 2.6) to the Administrative Agent, or (ii) on which the subject Base Margin Loan is paid by the Borrowers.

(c) The setting of Interest Periods is in all instances subject to the following:

(i) Any Interest Period for a Base Margin Loan which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day.

(ii) Any Interest Period for a Libor Loan which would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day, unless that succeeding Business Day is in the next calendar month, in which event such Interest Period shall end on the last Business Day of the month during which the Interest Period ends.

(iii) Subject to Subsection (iv), below, any Interest Period applicable to a Libor Loan, which Interest Period begins on a day for which there is no numerically corresponding day in the calendar month during which such Interest Period ends, shall end on the last Business Day of the month during which that Interest Period ends.

(iv) Any Interest Period which would otherwise end after the Termination Date shall end on the Termination Date.

 

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(v) The number of Interest Periods in effect at any one time is subject to Section 2.12(d) hereof.

Inventory”: Includes, without limitation, “inventory” as defined in the UCC and also all: (a) Goods which are leased by a Person as lessor; are held by a Person for sale or lease or to be furnished under a contract of service; are furnished by a Person under a contract of service; or consist of raw materials, work in process, or materials used or consumed in a business; (b) Goods of said description in transit; (c) Goods of said description which are returned, repossessed and rejected; (d) packaging, advertising, and shipping materials related to any of the foregoing; (e) all names, marks, and General Intangibles affixed or to be affixed or associated thereto; and (f) Documents and Documents of Title which represent any of the foregoing.

Inventory Purchase Agreement”: The Inventory Purchase Agreement dated October 29, 2004 by and between CMRG Apparel and the other Loan Parties.

Inventory Reserves”: Such Reserves as may be established from time to time by the Administrative Agent in the Administrative Agent’s reasonable discretion with respect to the determination of the saleability, at retail, of the Eligible Inventory or which reflect such other factors affecting the market value of the Eligible Inventory. Without limiting the generality of the foregoing, Inventory Reserves may include (but are not limited to) reserves based on the following:

 

  (i) Obsolescence (based upon Inventory on hand beyond a given number of days).

 

  (ii) Seasonality.

 

  (iii) Shrinkage.

 

  (iv) Imbalance.

 

  (v) Change in Inventory character.

 

  (vi) Change in Inventory composition.

 

  (vii) Change in Inventory mix.

 

  (viii) Point of sale markdowns and, to the extent not reflected in permanent markdowns.

 

  (ix) Markups inconsistent with prior period practice and performance; industry standards; current business plans; or advertising calendar and planned advertising events.

 

  (x) Consigned Inventory.

 

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Investment Property”: Has the meaning given that term in the UCC.

Issuer”: Bank of America, N.A. or any of its successors.

L/C”: Any letter of credit, the issuance of which is procured by the Administrative Agent for the account of any Borrower and any acceptance made on account of such letter of credit.

L/C Borrowing”: An extension of credit resulting from a drawing under any L/C which has not been reimbursed on the date when made or refinanced as a Revolving Credit Loan.

L/C Landing Costs”: To the extent not included in the Stated Amount of an L/C, customs, duty, freight, and other out-of-pocket costs and expenses which will be expended to “land” the Inventory, the purchase of which is supported by such L/C.

Lease”: Any lease or other agreement, no matter how styled or structured, pursuant to which a Loan Party is entitled to the use or occupancy of any space.

Leasehold Interest”: Any interest of a Loan Party as lessee under any Lease.

Lenders’ Special Counsel”: A single counsel selected by Revolving Credit Lenders holding more than 51% of the Revolving Credit Commitments (other than any Revolving Credit Dollar Commitments held by Delinquent Revolving Credit Lenders) following the occurrence of an Event of Default to represent their interests in connection with the enforcement, attempted enforcement, or preservation of any rights and remedies under this, or any other Loan Document.

Letter-of-Credit Right”: Has the meaning given that term in the UCC and also refers to any right to payment or performance under any letter of credit, whether or not the beneficiary has demanded or is at the time entitled to demand payment or performance.

Liabilities”: (a) Any and all direct and indirect liabilities, debts, and obligations of each Borrower to any Agent, any Revolving Credit Lender, or any other Secured Party, each of every kind, nature, and description owing on account of this Agreement or any other Loan Document, whether now existing or hereafter arising under this Agreement or under any of the other Loan Documents, including, without limitation, the following:

(i) Each obligation to repay any loan, advance, indebtedness, note, obligation, overdraft, or amount now or hereafter owing by any Borrower to any Agent, any Revolving Credit Lender or any other Secured Party (including all future advances whether or not made pursuant to a commitment by any Agent or any Revolving Credit Lender), whether or not any of such are liquidated, unliquidated, primary, secondary, secured,

 

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unsecured, direct, indirect, absolute, contingent, or of any other type, nature, or description, or by reason of any cause of action which any Agent, any Revolving Credit Lender or any other Secured Party may hold against any Borrower.

(ii) All notes and other obligations of each Borrower now or hereafter assigned to or held by any Agent, any Revolving Credit Lender or any other Secured Party, each of every kind, nature, and description

(iii) All interest, fees, and charges and other amounts which may be charged by any Agent, any Revolving Credit Lender or any other Secured Party to any Borrower and/or which may be due from any Borrower to any Agent, any Revolving Credit Lender or any other Secured Party from time to time.

(iv) All costs and expenses incurred or paid by any Agent in respect of this Agreement or any other Loan Document (including, without limitation, Costs of Collection, reasonable attorneys’ fees, and all court and reasonable litigation costs and expenses).

(v) Any and all covenants of each Borrower to or with any Agent, any Revolving Credit Lender or any other Secured Party under this Agreement or any other Loan Document and any and all obligations of each Borrower to act or to refrain from acting in accordance with this Agreement or any other Loan Document or any instrument furnished by that Borrower to any Agent, any Revolving Credit Lender or any other Secured Party pursuant to this Agreement or any other Loan Document.

(vi) Each of the foregoing as if each reference to “any Agent, any Revolving Credit Lender or any other Secured Party” were to each Affiliate of each Agent, each Revolving Credit Lender and each other Secured Party.

(b) Any and all direct or indirect liabilities, debts, and obligations of each Borrower to any Agent, any Revolving Credit Lender or any other Secured Party or any Affiliate of any Agent, any Revolving Credit Lender or any other Secured Party, each of every kind, nature, and description owing on account of any service or accommodation provided to, or for the account of, any Borrower pursuant to this or any other Loan Document, including any Banking Services Obligations; provided, however, that the Banking Services Obligations shall be secured solely to the extent that there is sufficient Collateral following satisfaction of all other liabilities, debts, and obligations of each Borrower to any Agent, any Revolving Credit Lender and any other Secured Party described in clause (a) of this definition of Liabilities.

 

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Libor Business Day”: Any day which is both a Business Day and a day on which the principal interbank market for Libor deposits in London in which Bank of America participates is open for dealings in United States Dollar deposits.

Libor Loan”: Any Revolving Credit Loan which bears interest at the Libor Rate.

Libor Margin”: As determined from the definition of Applicable Margin.

Libor Offer Rate”: For any Interest Period with respect to a Libor Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “Libor Offer Rate” for such Interest Period shall be the rate per annum reasonably determined by the Administrative Agent in good faith to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Libor Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two (2) Business Days prior to the commencement of such Interest Period.

Libor Rate”: That per annum rate which is the aggregate of the Libor Offer Rate plus the Libor Margin except that, in the event that the Administrative Agent determines in good faith that any Revolving Credit Lender may be subject to the Reserve Percentage, the “Libor Rate” shall mean, with respect to any Libor Loans then outstanding (from the date on which that Reserve Percentage first became applicable to such loans), and with respect to all Libor Loans thereafter made so long as any Revolving Credit Lender is subject to the Reserve Percentage, an interest rate per annum equal the sum of (a) plus (b), where:

 

  (a) is the decimal equivalent of the following fraction:

 

  Libor Offer Rate        
  1 minus Reserve Percentage        

 

  (b) is the applicable Libor Margin.

Liquidation”: The exercise by the Collateral Agent of those rights accorded to the Collateral Agent under the Loan Documents as a creditor of the Loan Parties following and on account of the occurrence of an Event of Default looking towards the realization on the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.

 

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Loan Account”: Defined in Section 2.9.

Loan Cap”: At any time of determination, the lesser of (a) the Revolving Credit Commitments at such time or (b) the Borrowing Base at such time.

Loan Documents”: This Agreement, each instrument and document executed as contemplated by the Existing Loan 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 Agent, any Revolving Credit Lender or any other Secured Party or any Affiliate of any Agent, any Revolving Credit Lender or any other Secured Party which arises out of any Banking Services provided by any Agent, any Revolving Credit Lender or any other Secured Party or any Affiliate of any Agent, any Revolving Credit Lender or any other Secured Party, as each may be amended from time to time.

Loan Party and Loan Parties”: Each Borrower and each Guarantor.

Majority Revolving Credit Lenders”: Revolving Credit Lenders (other than Deteriorating Revolving Credit Lenders) holding 51% or more of the Revolving Credit Commitments (other than any Revolving Credit Dollar Commitment held by a Deteriorating Revolving Credit Lender).

Material Accounting Change”: Any change in GAAP applicable to accounting periods subsequent to the Loan Parties’ Fiscal year most recently completed prior to the execution of this Agreement, which change has a material effect on the Loan Parties’ Consolidated financial condition or operating results, as reflected on financial statements and reports prepared by or for the Loan Parties, when compared with such condition or results as if such change had not taken place or where preparation of the Loan Parties’ statements and reports in compliance with such change.

Maturity Date”: November 10, 2014.

Moody’s”: Moody’s Investors Service, Inc. and any successor thereto.

Nominee”: A business entity (such as a corporation or limited partnership) formed by the Collateral Agent to own or manage any Post Foreclosure Asset.

NonConsenting Revolving Credit Lender”: Defined in Section 15.6.

Operating Account”: Defined in Section 7.3.

OverLoan”: A loan, advance, or providing of credit support (such as the issuance of any L/C) to the extent that, immediately after its having been made, Availability is less than zero.

 

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Participant”: Defined in Section 19.15 hereof.

Patriot Act”: Defined in Section 3.11.

Payment Conditions”: At the time of determination with respect to any specified transaction or payment that is subject to satisfaction of the Payment Conditions:

(a) no Default or Event of Default then exists or would arise as a result of entering into such transaction or making such payment;

(b) the Borrowers are in compliance with the Availability Condition; and

(c) the Consolidated Fixed Charge Coverage Ratio for each of the twelve (12) Fiscal months immediately preceding the date of such transaction or payment for which the Administrative Agent has received financial statements shall be equal to or greater than 1.00:1.00 after giving pro forma effect to such transaction or payment as if such transaction had been entered into or such payment had been made as of the first day of such twelve-month period; and

Prior to undertaking any transaction or payment which is subject to the Payment Conditions, the Borrowers’ Representative shall deliver to the Administrative Agent (i) a certificate signed by the Chief Executive Officer, President or Chief Financial Officer of the Borrowers’ Representative certifying that the conditions contained in clauses (a), (b) and (c) of the preceding sentence have been satisfied, and (ii) evidence of satisfaction of the conditions contained in clauses (b) and (c) above on a basis (including, without limitation, giving due consideration to results for prior Fiscal periods and giving effect to the proposed transaction or payment) reasonably satisfactory to the Administrative Agent.

Payment Intangible”: Has the meaning given that term in the UCC and also refers to any general intangible under which the Account Debtor’s primary obligation is a monetary obligation.

Permitted Acquisition”: An Acquisition complying with the following:

(a) Such Acquisition shall be of assets ancillary, incidental or necessary to the retail sale of apparel and related activities, or of 100% of the stock of a corporation whose assets consist substantially of such assets, or through the merger of such a corporation with a Loan Party (with a Loan Party as the surviving corporation), or with a Subsidiary of a Loan Party where, after giving effect to such merger, such corporation becomes a wholly-owned Subsidiary of a Loan Party;

(b) If such Acquisition includes the acquisition of assets by, or the merger of, a Loan Party, there shall have been no change in the identity of the president, chief financial officer or any executive vice president of such Loan Party as a consequence of such acquisition, or if

 

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there has been such a change, the Administrative Agent shall have consented in writing to such change in identity within thirty (30) days thereafter (which consent shall not be unreasonably withheld or delayed); and

(c) If a new Subsidiary is formed or acquired as a result of such Acquisition, such Subsidiary shall execute documentation, reasonably satisfactory in form and substance to the Administrative Agent, guarantying payment and performance of the Liabilities and granting a first lien, subject only to Permitted Encumbrances, in its assets in favor of the Collateral Agent, for the ratable benefit of the Secured Parties.

Permitted Asset Disposition”: A sale or other disposition of the assets of any Loan Party in the ordinary course, so long as the following conditions are satisfied:

(a) The sale, liquidation or other disposition of Inventory at any locations from which a Loan Party determines to cease the conduct of its business, (i) shall be on terms satisfactory to the Administrative Agent and (ii) notwithstanding the Administrative Agent’s furnishing of any such consent, the Administrative Agent may, in the exercise of its reasonable discretion, impose Inventory Reserves as a result of the occurrence of any such sale, liquidation, or disposition;

(b) The aggregate of all such sales or other dispositions of the assets of any Loan Party shall not exceed (i) in any Fiscal year of the Loan Parties, ten percent (10%) of the value of all assets of the Loan Parties as of the beginning of such Fiscal year and (ii) in the aggregate from and after the Closing Date, thirty-five percent (35%) of the value of all assets of the Loan Parties as of the Closing Date;

(c) Each such sale or other disposition shall be for fair consideration in an arm’s length transaction; and

(d) On the date on which any sale or other disposition of assets is consummated, no Default shall have occurred and be continuing or will occur as a result of such consummation.

Permitted Encumbrances”: The following:

(a) Encumbrances described on EXHIBIT 1.1 hereto.

(b) Encumbrances on properties to secure taxes, assessments and other government charges or claims for labor, material or supplies in respect of obligations not then overdue; deposits or pledges made in connection with, or to secure payment of, workmen’s compensation, unemployment insurance, old age pensions or other social security

 

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obligations; Encumbrances on property hereafter acquired (either in connection with purchase money encumbrances, rental purchase agreements, including Capital Leases, or conditional sale or other title retention agreements), which are restricted to the property so acquired and do not secure Indebtedness exceeding the fair value (at the time of acquisition) thereof; Encumbrances of carriers, warehousemen, mechanics and materialmen, and other like Encumbrances in existence less than 90 days from the date of creation thereof in respect of obligations not overdue; and Encumbrances on properties consisting of easements, rights of way, zoning restrictions, restrictions on the use of real property and defects and irregularities in the title thereto, landlord’s or lessor’s Encumbrances under leases to which any Loan Party is a party, and other minor Encumbrances or encumbrances none of which interferes materially with the use of the property affected in the ordinary conduct of the business of the Loan Parties, which defects do not individually or in the aggregate have a materially adverse effect on the business of any Loan Party individually or of the Loan Parties as a whole or which are being actively contested in good faith by appropriate proceedings as to which the Loan Parties have established reasonable reserves, it being understood, however, that the filing of a tax lien which includes any Inventory or Accounts does not constitute a “Permitted Encumbrance”, even if being so contested.

(c) Encumbrances on the BALC Equipment solely to the extent securing the BALC Indebtedness.

Permitted Indebtedness”: The following Indebtedness:

 

  (a) The Liabilities.

 

  (b) Capital Leases and purchase money Indebtedness secured by Permitted Encumbrances.

 

  (c) Unsecured Indebtedness assumed in connection with Permitted Acquisitions pursuant to Section 4.21 (it being understood that the principal amount so assumed shall be deemed part of the purchase price of any such Permitted Acquisition) and any refinancing or replacement thereof on terms and conditions (including, without limitation, interest rate and providing that, in any event, the principal amount thereof shall not exceed that outstanding on the date of refinance or replacement) at least as favorable as those being refinanced or replaced.

 

  (d) Intercompany Indebtedness permitted under Section 4.22.

 

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  (e) Indebtedness arising from a guaranty by a Loan Party of the Indebtedness of a Borrower with respect to a Borrower’s ordinary course trade payables.

 

  (f) Indebtedness on account of the Canton Lease.

 

  (g) The BALC Indebtedness.

“Permitted Investments”: Any or all of the following:

(a) marketable direct full faith and credit obligations of, or marketable obligations guaranteed by, the United States of America; provided that such securities, as a group, may not, on the date of determination, have a remaining weighted average maturity of more than five years;

(b) marketable direct full faith and credit obligations of States of the United States or of political subdivisions or agencies; provided that such securities, as a group, may not, on the date of determination, have a remaining weighted average maturity of more than five years; and provided further that such obligations carry a rating of “A” or better by a Rating Service;

(c) certificates of deposit and bankers acceptances maturing within one year after the acquisition thereof issued by: (i) Bank of America; or (ii) any commercial bank organized under the laws of the United States of America or of any political subdivision thereof the long term obligations of which are rated “A” or better by a Rating Service;

(d) Eurodollar certificates of deposit maturing within one year after the acquisition thereof issued by any commercial bank having combined capital, surplus and undivided profits of at least $1 billion;

(e) tax-exempt bonds or notes which have a remaining maturity at the time of purchase of no more than five years issued by any State of the United States or the District of Columbia, or any political subdivision thereof; provided that such obligations carry a rating of “A” or better by a Rating Service;

(f) the Term Note made payable by LP Innovations Acquisition Corp. to LP Innovations, Inc. dated as of April 25, 2006 in the original principal amount of $2,200,000.00, which note is currently held by Canton PL liquidating Corp.;

(g) commercial paper issued by any Person organized under the laws of any state of the United States of America and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof;

 

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(h) fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above (without regard to the limitation on maturity contained in such clause) and entered into with a financial institution satisfying the criteria described in clause (c) above or with any primary dealer and having a market value at the time that such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such counterparty entity with whom such repurchase agreement has been entered into;

(i) Investments, classified in accordance with GAAP as current assets of the Loan Parties, in any money market fund, mutual fund, or other investment companies that are registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and which invest substantially in one or more of the types of securities described in clauses (a), (b), (c) or (g) above; and

(j) Investments in money market mutual funds consistent with SEC rule 2a-7 that are rated AAA by Moody’s or S&P and have minimum assets of at least $5 billion;

provided, however, that notwithstanding the foregoing, after the occurrence and during the continuance of a Cash Dominion Event, no such investments specified in clauses (a) through (e) and (g) through (i) shall be permitted unless (A) either (1) no loans or advances under the Revolving Credit Facility are then outstanding, or (2) the investment is a temporary investment pending expiration of an Interest Period for a Libor Loan, the proceeds of which investment will be applied to the Liabilities after the expiration of such Interest Period, and (B) such investments are pledged to the Collateral Agent as additional collateral for the Liabilities pursuant to such agreements as may be reasonably required by the Collateral Agent.

Permitted Minority Investment”: The Investment by a Loan Party in a joint venture or an Acquisition by a Loan Party of less than 100% of the equity interests of a Person, in each case whose assets are ancillary, incidental or necessary to the retail sale of apparel and related activities.

Permitted Protective OverAdvance”: Is defined in Section 2.2(c).

Permitted Repurchase”: The repurchase, repayment, redemption, or acquisition by the Borrowers of Casual Male’s capital stock, provided that the Borrowers are in compliance with the Payment Conditions.

 

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Person”: Any natural person, and any corporation, limited liability company, trust, partnership, joint venture, or other enterprise or entity.

Post Foreclosure Asset”: All or any part of the Collateral, ownership of which is acquired by the Collateral Agent or a Nominee on account of the “bidding in” at a disposition as part of a Liquidation or by reason of a “deed in lieu” type of transaction.

Proceeds”: Includes, without limitation, “Proceeds” as defined in the UCC and each type of property described in Section 8.1 hereof.

Pro-Rata”: A proportional distribution based upon a Revolving Credit Lender’s percentage claim to the overall aggregate amount being distributed.

Protective OverAdvances”: Revolving Credit Loans which are OverLoans, but as to which each of the following conditions is satisfied: (a) the Revolving Credit Commitments are not exceeded; (b) when aggregated with all other Protective OverAdvances, such Revolving Credit Loans do not aggregate more than 5% of the aggregate of the Borrowing Base; and (c) such Revolving Credit Loans are made or undertaken in the Agents’ discretion to protect and preserve the interests of the Revolving Credit Lenders.

RBT”: Collectively, Casual Male RBT, LLC and Casual Male RBT (U.K.), LLC.

Receipts”: All cash, cash equivalents, money, checks, credit card slips, receipts and other Proceeds from any sale of the Collateral.

Register”: Is defined in Section 16.2(c).

Requirements of Law”: As to any Person: (a) Applicable Law; (b) that Person’s organizational documents; and (c) that Person’s by-laws and/or other instruments which deal with corporate or similar governance, as applicable.

Reserve Percentage”: The decimal equivalent of that rate applicable to any Revolving Credit Lender under regulations issued from time to time by the Board of Governors of the Federal Reserve System for determining the maximum reserve requirement of such Revolving Credit Lender with respect to “Eurocurrency liabilities” as defined in such regulations. The Reserve Percentage applicable to a particular Libor Loan shall be based upon that in effect during the subject Interest Period, with changes in the Reserve Percentage which take effect during such Interest Period to take effect (and to consequently change any interest rate determined with reference to the Reserve Percentage) if and when such change is applicable to such loans.

Reserves”: Availability Reserves and Inventory Reserves.

Revolving Credit Commitment Increase”: Defined in Section 2.24(a).

 

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Revolving Credit Commitments”: The aggregate of each Revolving Credit Lender’s Revolving Credit Dollar Commitment, as such amount may be increased or reduced from time to time in accordance with the terms of this Agreement. The aggregate Revolving Credit Dollar Commitments as of the Closing Date is $75,000,000.00.

Revolving Credit Dollar Commitment”: As to each Revolving Credit Lender, the amount set forth on EXHIBIT 2.23, annexed hereto (as such amounts may change in accordance with the provisions of this Agreement).

Revolving Credit Facility”: Is defined in Section 2.1.

“Revolving Credit Fees”: The Unused Line Fee, Upfront Fees, fees for L/C’s which are specifically for the account of the Revolving Credit Lenders and all other fees (such as a fee (if any) on account of the execution of an amendment of a Loan Document) payable by any Borrower in respect of the Revolving Credit Loans other than any amount payable to an Agent as reimbursement for any cost or expense incurred by that Agent on account of the discharge of that Agent’s duties under the Loan Documents.

Revolving Credit Lenders”: Each Revolving Credit Lender to which reference is made in the Preamble and any other Person who becomes a “Revolving Credit Lender” in accordance with the provisions of this Agreement.

Revolving Credit Loans”: Loans made by the Revolving Credit Lenders under the Revolving Credit Facility.

Revolving Credit Note”: Is defined in Section 2.10.

Revolving Credit Percentage Commitment”: As to each Revolving Credit Lender, the amount set forth on EXHIBIT 2.23, annexed hereto (as such amounts may change in accordance with the provisions of this Agreement).

SEC”: The Securities and Exchange Commission.

Secured Parties”: Collectively, and each individually, the Revolving Credit Lenders, each Agent, the Issuer and each of their respective Affiliates.

S&P”: Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.

Solvent” and “Solvency”: With respect to any Person on a particular date, on such date: (a) the fair salable value of the assets of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person; and (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; and (c) such Person

 

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does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature; and (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital.

Stated Amount”: The maximum amount for which an L/C may be honored.

Store”: Each location at which a Loan Party regularly offers Inventory for sale to the public.

Subsidiary”: With respect to any Person, any corporation, partnership or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person.

Supporting Obligation”: Has the meaning given that term in UCC and also refers to a Letter-of-Credit Right or secondary obligation which supports the payment or performance of an Account, Chattel Paper, a Document, a General Intangible, an Instrument, or Investment Property.

SwingLine”: The facility pursuant to which the SwingLine Lender may advance Revolving Credit Loans aggregating up to the SwingLine Loan Ceiling.

SwingLine Lender”: Bank of America, N.A.

SwingLine Loan Ceiling”: $15,000,000.

SwingLine Loans”: Defined in Section 2.8.

SwingLine Note”: Defined in Section 2.8(c).

Termination Date”: The earliest of (a) the Maturity Date; or (b) the Administrative Agent’s notice to the Borrowers’ Representative setting the Termination Date on account of the occurrence of any Event of Default; or (c) a date, irrevocable written notice of which is provided by the Borrowers’ Representative to the Administrative Agent, which is at least ninety (90) days after the date of such written notice.

Trading with the Enemy Act”: Defined in Section 4.34.

Transfer”: Wire transfer pursuant to the wire transfer system maintained by the Board of Governors of the Federal Reserve Board, or as otherwise may be agreed to from time to time by the Administrative Agent making such Transfer and the subject Revolving Credit Lender. Wire instructions may be changed in the same manner that Notice Addresses may be changed (Section 17.1), except that no change of the wire instructions for Transfers to any Revolving Credit Lender shall be effective without the consent of the Administrative Agent.

 

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Type”: As to any Revolving Credit Loan, its nature as a Base Margin Loan or a LIBOR Rate Loan.

UCC”: The Uniform Commercial Code as in effect from time to time in Massachusetts.

Unanimous Consent”: Written Consent of Revolving Credit Lenders (other than Deteriorating Revolving Credit Lenders) holding 100% of the Revolving Credit Commitments (other than any Revolving Credit Dollar Commitment held by a Deteriorating Revolving Credit Lender).

Unused Line Fee”: Defined in Section 2.16.

Upfront Fees”: Defined in Section 2.14.

ARTICLE 2 - COMMITMENTS AND CREDIT EXTENSIONS:

2.1. ESTABLISHMENT OF REVOLVING CREDIT FACILITY.

(a) The Revolving Credit Lenders hereby establish the revolving line of credit (the “Revolving Credit Facility”) in the Borrowers’ favor pursuant to which each Revolving Credit Lender, subject to, and in accordance with, this Agreement, acting through the Administrative Agent, shall make loans and advances and otherwise provide financial accommodations to and for the account of the Borrowers as provided herein.

(b) Loans, advances, and financial accommodations under the Revolving Credit Facility shall be subject to Availability. The Borrowing Base and Availability shall be determined by the Administrative Agent by reference to Borrowing Base Certificates furnished as provided in Section 5.4, below, and shall be subject to the following:

(i) Such determination shall take into account such Reserves as the Administrative Agent may determine as being applicable thereto.

(ii) The Cost of Eligible Inventory will be calculated in a manner consistent with current tracking practices, based on stock ledger inventory at Cost.

(c) The commitment of each Revolving Credit Lender to provide such loans, advances, and financial accommodations is subject to Section 2.23.

(d) The proceeds of borrowings under the Revolving Credit Facility shall be used solely as follows:

 

  (i) For the Borrowers’ working capital needs and general corporate purposes.

 

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  (ii) For advances by the Borrowers to Guarantors to finance the purchases by Guarantors of Inventory pursuant to the Inventory Purchase Agreement and to permit such Guarantors to pay ordinary course operating expenses (including, without limitation, rent, utilities and taxes).

 

  (iii) For Capital Expenditures to the extent permitted by this Agreement.

 

  (iv) For Permitted Repurchases and Permitted Acquisitions in accordance with the terms and conditions of this Agreement.

2.2. ADVANCES IN EXCESS OF BORROWING BASE (OVERLOANS).

(a) Except as otherwise provided in Section 2.2(c), no Revolving Credit Lender has any obligation to make any loan or advance, or otherwise to provide any credit to or for the benefit of the Borrowers where the result of such loan, advance, or credit is an OverLoan.

(b) The Revolving Credit Lenders’ obligations, among themselves, are subject to Section 12.3(a) (which relates to each Revolving Credit Lender’s making amounts available to the Administrative Agent).

(c) The Revolving Credit Lenders agree that any loan or advance under the Revolving Credit Facility which results in a Protective OverAdvance may be made by the Administrative Agent in its discretion without the Consent of the Revolving Credit Lenders and that each Revolving Credit Lender shall be bound thereby; provided, however, the Consent or direction of the Majority Revolving Credit Lenders is required to permit a Protective OverAdvance to be outstanding for more than 45 consecutive Business Days or more than twice in any twelve month period. (Any Protective OverAdvance which is permitted by this Section 2.2(c) is referred to as a “Permitted Protective OverAdvance”).

(d) The Revolving Credit Lenders’ providing of an OverLoan on any one occasion does not affect the obligations of each Borrower hereunder (including each Borrower’s obligation to immediately repay any amount which otherwise constitutes an OverLoan) nor obligate the Revolving Credit Lenders to do so on any other occasion.

2.3. INITIAL RESERVES. CHANGES TO RESERVES.

(a) At the execution of this Agreement, the only Reserves are as reflected on the Borrowing Base Certificate, a specimen of which is annexed hereto as EXHIBIT 5.4.

(b) The Administrative Agent shall provide not less than seven (7) days prior notice to the Borrowers’ Representative of the establishment of any Reserve (other than those established at the execution of this Agreement), except that the following may be undertaken without such prior notice:

(i) a change to the amount of a then existing Reserve (as distinguished from a change by which such Reserve is measured or determined), which change reflects the Administrative Agent’s reasonable determination of changed circumstances (e.g. the amount of the Reserve for Customer Credit Liabilities will change based on the aggregate of Customer Credit Liabilities at any one time);

 

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(ii) the creation of, or a change to an existing, Reserve on account of circumstances which the Administrative Agent determines as having a material adverse change on the maintenance of loan to collateral values; and

(iii) the creation of, or a change to an existing, Reserve after the occurrence and during the continuance of a Default or an Event of Default.

2.4. RISKS OF VALUE OF COLLATERAL. The Administrative Agent’s reference to a given asset in connection with the making of loans, credits, and advances and the providing of financial accommodations under the Revolving Credit Facility and/or the monitoring of compliance with the provisions hereof shall not be deemed a determination by the Administrative Agent or any Revolving Credit Lender relative to the actual value of the asset in question. All risks concerning the value of the Collateral are and remain upon the Borrowers. All Collateral secures the prompt, punctual, and faithful performance of the Liabilities whether or not relied upon by the Administrative Agent in connection with the making of loans, credits, and advances and the providing of financial accommodations under the Revolving Credit Facility.

2.5. COMMITMENT TO MAKE REVOLVING CREDIT LOANS AND SUPPORT LETTERS OF CREDIT. Subject to the provisions of this Agreement, the Revolving Credit Lenders shall make a loan or advance under the Revolving Credit Facility and the Administrative Agent shall cause L/C’s to be issued for the account of the Borrowers’ Representative, in each instance if duly and timely requested by the Borrowers’ Representative as provided herein, provided that:

(a) Except as otherwise provided in Section 2.2(c), no OverLoan is then outstanding and none will result therefrom.

(b) No Default has occurred and is continuing or will occur as a result of the borrowing of such loan or advance or the issuance of such L/C.

2.6. LOAN REQUESTS.

(a) Requests for loans and advances under this Agreement or for the continuance or conversion of an interest rate applicable to a Revolving Credit Loan may be requested by the Borrowers’ Representative in such manner as may from time to time be reasonably acceptable to the Administrative Agent.

 

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(b) Subject to the provisions of this Agreement, the Borrowers’ Representative may request a Revolving Credit Loan and elect an interest rate and Interest Period to be applicable to that Revolving Credit Loan by giving notice to the Administrative Agent by no later than the following:

(i) If such Revolving Credit Loan is to be or is to be converted to a Base Margin Loan: By 1:00 PM on the Business Day prior to the Business Day on which the subject Revolving Credit Loan is to be made or is to be so converted. Base Margin Loans requested by the Borrowers’ Representative, other than those resulting from the conversion of a Libor Loan, shall not be less than $100,000.00.

(ii) If such Revolving Credit Loan is to be, or is to be continued as, or converted to, a Libor Loan: By 1:00 PM three (3) Libor Business Days before the commencement of any new Interest Period or the end of the then applicable Interest Period. Libor Loans and conversions to Libor Loans shall each be not less than $1,000,000.00 and in increments of $100,000.00 in excess of such minimum.

(iii) Any Libor Loan which matures while a Default has occurred and is continuing shall be converted, at the option of the Administrative Agent, to a Base Margin Loan notwithstanding any notice from the Borrowers’ Representative that such Revolving Credit Loan is to be continued as a Libor Loan.

(c) Any request for a Revolving Credit Loan or for the continuance or conversion of an interest rate applicable to a Revolving Credit Loan which is made after the applicable deadline therefore, as set forth above, shall be deemed to have been made at the opening of business on the then next Business Day or Libor Business Day, as applicable. Each request for a Revolving Credit Loan or for the conversion of a Revolving Credit Loan shall be made in such manner as may from time to time be acceptable to the Administrative Agent.

(d) The Borrowers’ Representative may request that the Administrative Agent cause the issuance by the Issuer of L/C’s for the account of a Borrower as provided in Section 2.18.

(e) The Administrative Agent may rely on any request for a loan or advance, or other financial accommodation under the Agreement which the Administrative Agent, in good faith, believes to have been made by a Person duly authorized to act on behalf of the Borrowers’ Representative and may decline to make any such requested loan or advance, or issuance, or to provide any such financial accommodation pending the Administrative Agent’s being furnished with such documentation concerning that Person’s authority to act as reasonably may be satisfactory to the Administrative Agent.

(f) A request by the Borrowers’ Representative for a loan or advance, or other financial accommodation under this Agreement shall be irrevocable and shall constitute certification by each Borrower that as of the date of such request, each of the following is true and correct:

(i) There has been no material adverse change in the Loan Parties’ financial condition (taken as a whole) from the most recent financial information furnished Administrative Agent or any Revolving Credit Lender pursuant to this Agreement.

 

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(ii) Each representation, not relating to a specific date, which is made herein or in any of the Loan Documents is then true and correct in all material respects as of and as if made on the date of such request, except (A) to the extent of changes resulting from transactions contemplated or permitted by this Agreement or the other Loan Documents and changes occurring in the ordinary course of business which singly or in the aggregate are not materially adverse, (B) to the extent that such representations and warranties expressly relate to a then earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and (C) in the case of any such representations and warranties that are qualified by materiality, such representations and warranties shall be true and correct in all respects.

(iii) Unless accompanied by the Certificate of the Borrowers’ Representative’s Chief Executive Officer, President, or Chief Financial Officer describing (in reasonable detail) the facts and circumstances thereof and the steps (if any) being taken to remedy such condition, no Default has occurred and is continuing.

(g) If, at any time or from time to time, a Default shall occur:

(i) The Administrative Agent may suspend the Borrowers right to request Revolving Credit Loans, SwingLine Loans, or L/Cs immediately, in which event, neither the Administrative Agent nor any Revolving Credit Lender shall be obligated during such suspension, to make any loan or advance, or to provide any financial accommodation hereunder or to seek the issuance of any L/C.

(ii) The Administrative Agent may suspend the right of the Borrowers’ Representative to request any Libor Loan or to convert any Base Margin Loan to a Libor Loan.

2.7. MAKING OF REVOLVING CREDIT LOANS.

(a) A loan or advance under this Agreement shall be made by the transfer of the proceeds of such loan or advance to the Operating Account or as otherwise instructed by the Borrowers’ Representative.

(b) A loan or advance shall be deemed to have been made under this Agreement (and the Borrowers shall be indebted to the Administrative Agent and the Revolving Credit Lenders for the amount thereof immediately) at the following:

(i) The Administrative Agent’s initiation of the transfer of the proceeds of such loan or advance in accordance with the Borrowers’ Representative’s instructions (if such loan or advance is of funds requested by the Borrowers’ Representative).

 

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(ii) The charging of the amount of such loan to the Loan Account (in all other circumstances).

(c) There shall not be any recourse to or liability of any Agent or any Revolving Credit Lender on account of:

(i) Any delay, beyond the reasonable control of the Agents and the Revolving Credit Lenders, in the making of any loan or advance requested under this Agreement.

(ii) Any delay, beyond the reasonable control of the Agents and the Revolving Credit Lenders, by any bank or other depository institution in treating the proceeds of any such loan or advance as collected funds.

(iii) Any delay in the receipt, and/or any loss, of funds which constitute a loan or advance under this Agreement, the wire transfer of which was properly initiated by the Administrative Agent in accordance with wire instructions provided to the Administrative Agent by the Borrowers’ Representative.

2.8. SWINGLINE LOANS.

(a) For ease of administration, Base Margin Loans may be made by the SwingLine Lender in its sole discretion (in the aggregate, the “SwingLine Loans”) in accordance with the procedures set forth in this Agreement for the making of loans and advances under the Revolving Credit Facility. The unpaid principal balance of the SwingLine Loans shall not at any one time be in excess of the SwingLine Loan Ceiling.

(b) The aggregate unpaid principal balance of SwingLine Loans shall bear interest at the rate applicable to Base Margin Loans and shall be repayable as a Revolving Credit Loan.

(c) The SwingLine Lender may request that the Borrowers’ obligation to repay SwingLine Loans shall be evidenced by a promissory note (the “SwingLine Note”) in the form of EXHIBIT 2.8, annexed hereto, executed by the Borrowers, and payable to the SwingLine Lender. Neither the original nor a copy of that SwingLine Note shall be required, however, to establish or prove any Liability. The Borrowers shall execute a replacement of any SwingLine Note which has been lost, mutilated, or destroyed thereof and deliver such replacement to the SwingLine Lender.

(d) For all purposes of this Loan Agreement, the SwingLine Loans and the Borrowers’ obligations to the SwingLine Lender constitute Revolving Credit Loans and are secured as “Liabilities”.

(e) SwingLine Loans may be subject to periodic settlement with the Revolving Credit Lenders as provided in this Agreement.

 

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2.9. THE LOAN ACCOUNT.

(a) An account (“Loan Account”) shall be opened on the books of the Administrative Agent in which a record shall be kept of all loans and advances made under the Revolving Credit Facility.

(b) The Administrative Agent shall also keep a record (either in the Loan Account or elsewhere, as the Administrative Agent may from time to time elect) of all interest, fees, service charges, costs, expenses, and other debits owed to the Administrative Agent and each Revolving Credit Lender on account of Revolving Credit Loans and L/Cs and of all credits against such amounts so owed.

(c) All credits against the Liabilities shall be conditional upon final payment to the Administrative Agent for the account of each Revolving Credit Lender of the items giving rise to such credits. The amount of any item credited against the Liabilities which is charged back against the Administrative Agent or any Revolving Credit Lender for any reason or is not so paid shall be a Liability and, if arising under the Revolving Credit Facility, shall be added to the Loan Account, whether or not the item so charged back or not so paid is returned.

(d) Except as otherwise provided herein, all fees, service charges, costs, and expenses for which any Borrower is obligated hereunder are payable on demand. In the determination of Availability, the Administrative Agent may deem fees, service charges, accrued interest, and other payments which will be due and payable between the date of such determination and the first day of the then next succeeding month as having been advanced under the Revolving Credit Facility whether or not such amounts are then due and payable.

(e) The Administrative Agent, without the request of the Borrowers’ Representative, may advance under the Revolving Credit Facility any interest, fee, service charge, or other payment to which any Agent or any Revolving Credit Lender is entitled from any Borrower pursuant hereto and may charge the same to the Loan Account notwithstanding that an OverLoan may result thereby. Such action on the part of the Administrative Agent shall not constitute a waiver of the Administrative Agent’s rights and each Borrower’s obligations under Section 2.11(b). Any amount which is added to the principal balance of the Loan Account as provided in this Section 2.9(e) shall bear interest at the interest rate then and thereafter applicable to Base Margin Loans.

(f) In the absence of manifest error, a statement rendered by the Administrative Agent or any Revolving Credit Lender to the Borrowers’ Representative concerning the Liabilities shall be considered correct and accepted by each Borrower and shall be conclusively binding upon each Borrower unless the Borrowers’ Representative provides the Administrative Agent with written objection thereto within thirty (30) days from the mailing of such statement, which written objection shall indicate, with particularity, the reason for such objection. In the absence of manifest error, the Loan Account and the Administrative Agent’s books and records concerning the loan arrangement contemplated herein and the Liabilities shall be prima facie evidence and proof of the items described therein.

 

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2.10. THE REVOLVING CREDIT NOTES. The Borrowers’ obligation to repay Revolving Credit Loans with interest as provided herein, shall be evidenced by notes (each, a “Revolving Credit Note”) in the form of EXHIBIT 2.10, annexed hereto, executed by each Borrower, one payable to each Revolving Credit Lender. Neither the original nor a copy of any Revolving Credit Note shall be required, however, to establish or prove any Liability. Upon the Borrowers’ Representative’s being provided with an affidavit from the Administrative Agent to the effect that any Revolving Credit Note has been lost, mutilated, or destroyed, the Borrowers shall execute a replacement thereof and deliver such replacement to the Administrative Agent.

2.11. PAYMENT OF THE LOAN ACCOUNT.

(a) The Borrowers may repay all or any portion of the principal balance of the Loan Account from time to time until the Termination Date. Unless the Borrowers’ Representative otherwise advises the Administrative Agent, such payments shall be applied first to Base Margin Loans and only then to Libor Loans. All payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Revolving Credit Lenders to which such payment is owed, at the Administrative Agent’s office in Dollars and in immediately available funds.

(b) The Borrowers, without notice or demand from the Administrative Agent or any Revolving Credit Lender, shall pay the Administrative Agent that amount, from time to time, which is necessary so that there is no OverLoan outstanding.

(c) The Borrowers shall repay the then entire unpaid balance of the Loan Account and all other Liabilities on the Termination Date.

(d) The Administrative Agent shall endeavor to cause the application of payments (if any), pursuant to Sections 2.11(a) and 2.11(b) against Libor Loans then outstanding in such manner as results in the least cost to the Borrowers, but shall not have any affirmative obligation to do so nor liability on account of the Administrative Agent’s failure to have done so. In no event shall action or inaction taken by the Administrative Agent excuse any Borrower from any indemnification obligation under Section 2.11(e).

(e) The Borrowers shall indemnify the Administrative Agent and each Revolving Credit Lender and hold the Administrative Agent and each Revolving Credit Lender harmless from and against any loss, cost or expense (including loss of anticipated profits and amounts payable by the Administrative Agent or such Revolving Credit Lender on account of “breakage fees” (so-called)) which the Administrative Agent or such Revolving Credit Lender may sustain or incur (including, without limitation, by virtue of acceleration after the occurrence of any Event of Default) as a consequence of the following:

(i) Default by any Borrower in payment of the principal amount of or any interest on any Libor Loan as and when due and payable, including any such loss or expense arising from interest or fees payable by such Revolving Credit Lender in order to maintain its Libor Loans.

 

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(ii) Default by any Borrower in making a borrowing or conversion after the Borrowers’ Representative has given (or is deemed to have given) a request for a Revolving Credit Loan or a request to convert a Revolving Credit Loan from one applicable interest rate to another.

(iii) The making of any payment on a Libor Loan or the making of any conversion of any such Libor Loan to a Base Margin Loan on a day that is not the last day of the applicable Interest Period with respect thereto.

2.12. INTEREST ON REVOLVING CREDIT LOANS.

(a) Each Revolving Credit Loan shall bear interest at the Base Margin Rate unless timely notice is given (as provided in Section 2.6) that the subject Revolving Credit Loan (or a portion thereof) is, or is to be converted to, a Libor Loan.

(b) Each Revolving Credit Loan which consists of a Libor Loan shall bear interest at the applicable Libor Rate.

(c) Subject to, and in accordance with, the provisions of this Agreement, the Borrowers’ Representative may cause all or a part of the unpaid principal balance of the Loan Account to bear interest at the Base Margin Rate or the Libor Rate as specified from time to time by notice to the Administrative Agent. For ease of reference and administration, each part of the Loan Account which bears interest at the same interest and for the same Interest Period is referred to herein as if it were a separate “Revolving Credit Loan”.

(d) The Borrowers’ Representative shall not select, renew, or convert any interest rate for a Revolving Credit Loan such that, in addition to interest at the Base Margin Rate, there are more than seven (7) Libor Rates applicable to the Revolving Credit Loans at any one time.

(e) The Borrowers shall pay accrued and unpaid interest on each Revolving Credit Loan in arrears as follows:

(i) On the applicable Interest Payment Date for that Revolving Credit Loan.

(ii) On the Termination Date and on the End Date.

(iii) Following the occurrence of any Event of Default, with such frequency as may be determined by the Administrative Agent.

(f) Following the occurrence of any Event of Default (and whether or not the Administrative Agent exercises the Administrative Agent’s rights on account thereof), all Revolving Credit Loans shall bear interest, at the option of the Administrative Agent or at the instruction of the Majority Revolving Credit Lenders, at a rate which is the aggregate of the rate applicable to Base Margin Loans plus three percent (3%) per annum.

 

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2.13. ARRANGEMENT FEE.

In consideration of the Agent and Bank of America Securities LLC (“BAS”) having arranged the Revolving Credit Facility for the Borrowers, there has been earned by BAS and the Borrowers shall pay the “Arrangement Fee” to BAS in the amount and payable as provided in the Fee Letter.

2.14. UPFRONT FEES. In consideration of the commitment to make loans and advances to the Borrowers under this Agreement, and to maintain sufficient funds available for such purpose, there has been earned by the Revolving Credit Lenders, and the Borrowers shall pay, the “Upfront Fees” (so referred to herein) to the Administrative Agent on behalf of the Revolving Credit Lenders in the amount and as payable as provided in the Fee Letter.

2.15. ADMINISTRATIVE AGENTS FEE. In addition to any other fee or expense to be paid by the Borrowers on account of the Revolving Credit Facility, the Borrowers shall pay the Administrative Agent the “Agent’s Fee” at the times and in the amounts as set forth in the Fee Letter.

2.16. UNUSED LINE FEE. In addition to any other fee to be paid by the Borrowers on account of the Revolving Credit Facility, the Borrowers shall pay the Administrative Agent (i) the “Unused Line Fee” (so referred to herein) of 0.375% per annum of the average difference, during the quarter just ended (or relevant period with respect to the payment being made on the Termination Date) between the Revolving Credit Commitments and the aggregate of the unpaid principal balance of the Revolving Credit Loans and the undrawn Stated Amount of L/C’s outstanding during the relevant period. The Unused Line Fee shall be paid in arrears, on the first day of each quarter after the execution of this Agreement and on the Termination Date.

2.17. AGENTSAND REVOLVING CREDIT LENDERS’ DISCRETION.

(a) Each reference in the Loan Documents to the exercise of discretion, reasonable discretion, or the like by any Agent or any Revolving Credit Lender shall be to such Person’s reasonable exercise of its judgment, in good faith (which shall be rebuttably presumed), based upon such Person’s consideration of any such factors as that Agent or that Revolving Credit Lender, taking into account information of which that Person then has actual knowledge, reasonably believes:

(i) Will or reasonably could be expected to affect, in more than a de minimis manner, the value of the Collateral, the enforceability of the Collateral Agent’s Collateral Interests therein, or the amount which the Collateral Agent would likely realize therefrom (taking into account delays which may possibly be encountered in the Collateral Agent’s realizing upon the Collateral and likely Costs of Collection).

 

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(ii) Indicates that any report or financial information delivered to any Agent or any Revolving Credit Lender by or on behalf of any Loan Party is incomplete, inaccurate, or misleading in any material manner or was not prepared in accordance with the requirements of this Agreement.

(iii) That a Default has occurred and is continuing.

(b) In the exercise of such judgment, each Agent or each Revolving Credit Lender reasonably also may take into account any of the following factors:

(i) Those included in, or tested by, the definitions of “Eligible Accounts” and “Eligible Inventory”.

(ii) The current financial and business climate of the industry in which each Loan Party competes (having regard for that Loan Party’s position in that industry).

(iii) General macroeconomic conditions which have a material effect on the Loan Parties’ cost structure.

(iv) Material changes in or to the mix of the Borrowers’ Inventory.

(v) Seasonality with respect to the Borrowers’ Inventory and patterns of retail sales.

(vi) Such other factors as each Agent and each Revolving Credit Lender reasonably determine as having a material bearing on credit risks associated with the providing of loans and financial accommodations to the Borrowers.

(c) The burden of establishing the failure of any Agent or any Revolving Credit Lender to have acted in a reasonable manner in such Person’s exercise of such discretion shall be the Loan Parties’ and may be made only by clear and convincing evidence.

2.18. PROCEDURES FOR ISSUANCE OF L/C’S.

(a) The Borrowers’ Representative may request that the Administrative Agent cause the issuance by the Issuer of L/C’s for the account of a Borrower. Each such request shall be in such manner as may from time to time be reasonably acceptable to the Administrative Agent.

(b) The Administrative Agent will endeavor to cause the issuance of any L/C so requested by the Borrowers’ Representative, provided that, at the time that the request is made, the Revolving Credit Facility has not been suspended as provided in Section 2.6(g) and if so issued:

(i) The aggregate Stated Amount of all L/C’s then outstanding, does not exceed $20,000,000.

 

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(ii) The expiry of the L/C is not later than the earlier of thirty (30) days prior to the Maturity Date or the following:

(A) Standby’s: One (1) year from initial issuance or such later date as may be agreed to by the Issuer.

(B) Documentaries: one hundred (100) days from issuance or such later date as may be agreed to by the Issuer.

(iii) If the expiry of an L/C is later than the Maturity Date, it is 103% cash collateralized at its issuance.

(iv) An OverLoan will not result from the issuance of the subject L/C.

(c) Each Borrower shall execute such documentation to apply for and support the issuance of an L/C as may be required by the Issuer.

(d) The Issuer shall not be under any obligation to issue any L/C if any Revolving Credit Lender is at such time a Deteriorating Revolving Credit Lender hereunder, unless the Issuer has entered into satisfactory arrangements with the Borrowers or such Deteriorating Revolving Credit Lender to eliminate the Issuer’s risk of full reimbursement with respect to such L/C (it being agreed that this requirement shall have been satisfied if the Borrowers or such Deteriorating Revolving Credit Lender has pledged and deposited with or delivered to the Administrative Agent, for the benefit of the Issuer and the Revolving Credit Lenders, cash collateral in an amount equal to 100% of such Deteriorating Revolving Credit Lender’s Revolving Credit Percentage Commitment of the aggregate Stated Amount of L/Cs outstanding from time to time, such cash collateral to be held by the Administrative Agent in accordance with the terms of Section 12.3(c)(ii)).

(e) There shall not be any recourse to, nor liability of, any Agent or any Revolving Credit Lender on account of:

(i) Any delay or refusal by an Issuer to issue an L/C;

(ii) Any action or inaction of an Issuer on account of or in respect to, any L/C except where there is a specific finding in a judicial proceeding (in which the Administrative Agent has had an opportunity to be heard), from which finding no further appeal is available, that the subject action or omission to act had been in actual bad faith or grossly negligent or constituted willful misconduct.

(f) The Borrowers shall reimburse the Issuer for the amount of any honoring of a drawing under an L/C on the same day on which such honoring takes place. The Administrative Agent, without the request of any Borrower, may make Revolving Credit Loans (and charge the Loan Account) for the amount of any honoring of any L/C and other amount for which any Borrower, the Issuer, or the Revolving Credit Lenders become obligated on account of, or in respect to, any L/C. Such advance shall be made whether or not any Default has occurred and is continuing or such advance would result in an OverLoan. Such action shall not constitute a waiver of the Borrowers’ obligations under Section 2.11(b) hereof.

 

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2.19. FEES FOR L/C’S.

(a) The Borrowers shall pay to the Administrative Agent the following per annum fees on account of L/C’s, the issuance of which had been procured by the Administrative Agent, quarterly in arrears, and on the Termination Date and on the End Date based on the weighted average Stated Amount of L/C’s outstanding during the period in respect of which such fee is being paid; provided that, following the occurrence and during the continuance of any Event of Default (and whether or not the Administrative Agent exercises the Administrative Agent’s rights on account thereof), such fees, at the option of the Administrative Agent or the direction of the Majority Revolving Credit Lenders, shall be the respective aggregate of those set forth below plus three percent (3%) per annum.

(i) Documentaries: The Libor Margin then in effect minus 50 basis points.

(ii) Standbys: The Libor Margin then in effect.

(b) In addition to the fee to be paid as provided in Section 2.19(a) above, the Borrowers shall pay to the Administrative Agent (or to the Issuer, if so requested by Administrative Agent), on demand, all customary issuance, processing, negotiation, amendment, and administrative fees and other amounts charged by the Issuer on account of, or in respect to, any L/C.

(c) If any change in Applicable Law shall either:

(i) impose, modify or deem applicable any reserve, special deposit or similar requirements against letters of credit heretofore or hereafter issued by any Issuer or with respect to which any Revolving Credit Lender or any Issuer has an obligation to lend to fund drawings under any L/C; or

(ii) impose on any Issuer any other condition or requirements relating to any such letters of credit;

and the result of any event referred to in Section 2.19(c)(i) or 2.19(c)(ii), above, shall be to increase the cost to any Revolving Credit Lender or to any Issuer of issuing or maintaining any L/C (which increase in cost shall be the result of such Issuer’s reasonable allocation among that Revolving Credit Lender’s or Issuer’s letter of credit customers of the aggregate of such cost increases resulting from such events), then, upon demand by the Administrative Agent and delivery by the Administrative Agent to the Borrowers’ Representative of a certificate of an officer of the subject Revolving Credit Lender or the subject Issuer describing such change in law, executive order, regulation, directive, or interpretation thereof, its effect on such Revolving Credit Lender or such Issuer, and the basis for determining such increased costs and their allocation, the Borrowers shall immediately pay to the Administrative Agent, from time to time as specified by the Administrative Agent, such amounts as shall be sufficient to compensate the

 

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subject Revolving Credit Lender or the subject Issuer for such increased cost. In the absence of manifest error, any Revolving Credit Lender’s or any Issuer’s determination of costs incurred under Sections 2.19(c)(i) or 2.19(c)(ii), above, and the allocation, if any, of such costs among the Borrowers and other letter of credit customers of such Revolving Credit Lender or such Issuer, if done in good faith and made on an equitable basis and in accordance with such officer’s certificate, shall be conclusive and binding on the Borrowers.

2.20. CONCERNING L/CS.

(a) None of the Issuer, the Issuer’s correspondents, any Revolving Credit Lender, any Agent, or any advising, negotiating, or paying bank with respect to any L/C shall be responsible in any way for:

(i) The performance by any beneficiary under any L/C of that beneficiary’s obligations to any Borrower.

(ii) The form, sufficiency, correctness, genuineness, authority of any person signing; falsification; or the legal effect of; any documents called for under any L/C if (with respect to the foregoing) such documents on their face appear to be in order.

(b) The Issuer may honor, as complying with the terms of any L/C and of any drawing thereunder, any drafts or other documents otherwise in order, but signed or issued by an administrator, executor, conservator, trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, liquidator, receiver, or other legal representative of the party authorized under such L/C to draw or issue such drafts or other documents.

(c) Unless otherwise agreed to, in the particular instance, each Borrower hereby authorizes any Issuer to:

(i) Select an advising bank, if any.

(ii) Select a paying bank, if any.

(iii) Select a negotiating bank, if any.

(d) All directions, correspondence, and funds transfers relating to any L/C are at the risk of the Borrowers. The Issuer shall have discharged the Issuer’s obligations under any L/C which, or the drawing under which, includes payment instructions, by the initiation of the method of payment called for in, and in accordance with, such instructions (or by any other commercially reasonable and comparable method). None of the Agent, the Revolving Credit Lenders, or the Issuer shall have any responsibility for any inaccuracy, interruption, error, or delay in transmission or delivery by post, telegraph or cable, or for any inaccuracy of translation.

(e) Each Agent’s, each Revolving Credit Lender’s and the Issuer’s rights, powers, privileges and immunities specified in or arising under this Agreement are in addition to any heretofore or at any time hereafter otherwise created or arising, whether by statute or rule of law or contract.

 

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(f) Except to the extent otherwise expressly provided hereunder or agreed to in writing by the Issuer and the Borrowers’ Representative, documentary L/C’s will be governed by the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce, Publication No. 600, and standby L/C’s will be governed by International Standby Practices ISP98 (adopted by the International Chamber of Commerce on April 6, 1998) and any respective subsequent revisions thereof.

(g) The obligations of the Borrowers under this Agreement with respect to L/C’s are absolute, unconditional, and irrevocable and shall be performed strictly in accordance with the terms hereof under all circumstances, whatsoever including, without limitation, the following:

(i) Any lack of validity or enforceability or restriction, restraint, or stay in the enforcement of this Agreement, any L/C, or any other agreement or instrument relating thereto.

(ii) Any Borrower’s consent to any amendment or waiver of, or consent to the departure from, any L/C.

(iii) The existence of any claim, set-off, defense, or other right which any Borrower may have at any time against the beneficiary of any L/C.

(iv) Any good faith honoring of a drawing under any L/C, which drawing possibly could have been dishonored based upon a strict construction of the terms of the L/C.

(h) Each Issuer shall be deemed to have agreed as follows:

(i) That any action taken or omitted by that Issuer, that Issuer’s correspondents, or any advising, negotiating or paying bank with respect to any L/C and the related drafts and documents, shall be done in good faith and in compliance with foreign or domestic laws.

(ii) That the Borrowers shall not be required to indemnify the Issuer, the Issuer’s correspondents, or any advising, negotiating or paying bank with respect to any L/C for any claims, damages, losses, liabilities, costs or expenses to the extent, caused by (x) the willful misconduct or gross negligence of the Issuer, the Issuer’s correspondents, or any advising, negotiating or paying bank with respect to any L/C in determining whether a request presented under any Letter of Credit complied with the terms of such Letter of Credit or (y) the Issuer’s failure to pay under any Letter of Credit after the presentation to it of a request strictly complying with the terms and conditions of such Letter of Credit.

 

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2.21. CHANGED CIRCUMSTANCES.

(a) The Administrative Agent may advise the Borrowers’ Representative (in reasonable detail as to the facts and circumstances thereof) that the Administrative Agent has made the good faith determination (which determination, in the absence of manifest error, shall be final and conclusive) of any of the following:

(i) Adequate and fair means do not exist for ascertaining the rate for Libor Loans.

(ii) The continuation of or conversion of any Revolving Credit Loan to a Libor Loan has been made impracticable or unlawful by the occurrence of a contingency that materially and adversely affects the applicable market or the compliance by the Administrative Agent or any Revolving Credit Lender in good faith with any Applicable Law.

(iii) The indices on which the interest rates for Libor Loans are based shall no longer represent the effective cost to the Administrative Agent or any Revolving Credit Lender for U.S. dollar deposits in the interbank market for deposits in which it regularly participates.

(b) In the event that the Administrative Agent advises the Borrowers’ Representative of an occurrence described in Section 2.21(a), then, until the Administrative Agent notifies the Borrowers’ Representative that the circumstances giving rise to such notice no longer apply:

(i) The obligation of the Agent or each Revolving Credit Lender to make loans of the type affected by such changed circumstances or to permit the Borrowers’ Representative to select the affected interest rate as otherwise applicable to any Revolving Credit Loans shall be suspended.

(ii) Any notice which the Borrowers’ Representative had given the Administrative Agent with respect to any Libor Loan, the time for action with respect to which has not occurred prior to the Administrative Agent’s having given notice pursuant to Section 2.21(a), shall be deemed at the option of the Administrative Agent to not having been given.

2.22. DESIGNATION OF BORROWERS’ REPRESENTATIVE AS BORROWERS’ AGENT.

(a) Each Borrower hereby irrevocably designates and appoints the Borrowers’ Representative as that Borrower’s agent to obtain loans and advances under the Revolving Credit Facility, the proceeds of which shall be available to each Borrower for those uses set forth in this Agreement. As the disclosed principal for its agent, each Borrower shall be obligated to the Agents and each Revolving Credit Lender on account of loans and advances so made as if made directly by the Revolving Credit Lenders to that Borrower, notwithstanding the manner by which such loans and advances are recorded on the books and records of the Borrowers’ Representative and of any Borrower. In addition, each Loan Party other than the Borrowers hereby irrevocably designates and appoints the Borrowers’ Representative as that Loan Party’s agent to represent such Loan Party in all respects under this Agreement and the other Loan Documents.

 

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(b) Each Borrower recognizes that credit available to it under the Revolving Credit Facility is in excess of and on better terms than it otherwise could obtain on and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all other Borrowers. Consequently, each Borrower hereby assumes and agrees to discharge all Liabilities of each of the other Borrowers as if the Borrower which is so assuming and agreeing was each of the other Borrowers.

(c) The Borrowers’ Representative shall act as a conduit for each Borrower (including itself, as a “Borrower”) on whose behalf the Borrowers’ Representative has requested a Revolving Credit Loan.

(d) The proceeds of each loan and advance provided under the Revolving Credit Facility which is requested by the Borrowers’ Representative shall be deposited into the Operating Account or as otherwise indicated by the Borrowers’ Representative. The Borrowers’ Representative shall cause the transfer of the proceeds thereof to the (those) Borrower(s) on whose behalf such loan and advance was obtained. Neither the Agent nor any Revolving Credit Lender shall have any obligation to see to the application of such proceeds.

2.23. REVOLVING CREDIT LENDERS’ COMMITMENTS.

(a) Subject to Section 16.1 (which provides for assignments and assumptions of commitments), each Revolving Credit Lender’s “Revolving Credit Percentage Commitment” and “Revolving Credit Dollar Commitment” (respectively so referred to herein) is set forth on EXHIBIT 2.23, annexed hereto.

(b) The obligations of each Revolving Credit Lender are several and not joint. No Revolving Credit Lender shall have any obligation to make any loan or advance under the Revolving Credit Facility in excess of either of the following:

(i) That Revolving Credit Lender’s Revolving Credit Percentage Commitment of the subject loan or advance or of Availability.

(ii) That Revolving Credit Lender’s Revolving Credit Dollar Commitment.

(c) No Revolving Credit Lender shall have any liability to the Borrowers on account of the failure of any other Revolving Credit Lender to provide any loan or advance under the Revolving Credit Facility nor any obligation to make up any shortfall which may be created by such failure.

(d) Subject to Section 16.1, the Revolving Credit Dollar Commitments, Revolving Credit Percentage Commitments, and identities of the Revolving Credit Lenders may be changed, from time to time by the reallocation or assignment of Revolving Credit Dollar Commitments and Revolving Credit Percentage Commitments among the Revolving Credit Lenders or with other Persons who determine to become a Revolving Credit Lender.

 

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(e) Upon written notice given the Borrowers’ Representative from time to time by the Administrative Agent of any assignment or allocation referenced in Section 2.23(d):

(i) Each Borrower shall execute one or more replacement Revolving Credit Notes to reflect such changed Revolving Credit Dollar Commitments, Revolving Credit Commitment Percentages, and identities and shall deliver such replacement Revolving Credit Notes to the Administrative Agent (which promptly thereafter shall deliver to the Borrowers’ Representative the Revolving Credit Notes so replaced); provided, however, in the event that a Revolving Credit Note is to be exchanged following its acceleration or the entry of an order for relief under the Bankruptcy Code with respect to any Borrower, the Administrative Agent, in lieu of causing the Borrowers to execute one or more new Revolving Credit Notes, may issue the Administrative Agent’s Certificate confirming the resulting Revolving Credit Dollar Commitments and Revolving Credit Percentage Commitments.

(ii) Such change shall be effective from the effective date specified in such written notice and any Person added as a Revolving Credit Lender shall have all rights, privileges, and obligations of a Revolving Credit Lender hereunder thereafter as if such Person had been a signatory to this Agreement and any other Loan Document to which a Revolving Credit Lender is a signatory and any Person removed as a Revolving Credit Lender shall be relieved of any obligations or responsibilities of a Revolving Credit Lender hereunder thereafter.

2.24. INCREASE IN REVOLVING CREDIT COMMITMENTS.

(a) Provided no Default then exists or would arise therefrom, upon notice to the Administrative Agent (which shall promptly notify the Revolving Credit Lenders), the Borrowers’ Representative may from time to time request an increase in the Revolving Credit Commitments by an amount (for all such requests) not exceeding $50,000,000 (each such increase, a “Revolving Credit Commitment Increase”); provided that (i) any such request for a Revolving Credit Commitment Increase shall be in a minimum amount of $10,000,000 and (ii) the Borrowers’ Representative may make a maximum of three (3) such requests. At the time of sending such notice, the Borrowers’ Representative (in consultation with the Administrative Agent) shall specify the time period within which each Revolving Credit Lender is requested to respond (which shall in no event be less than ten (10) Business Days from the date of delivery of such notice to the Revolving Credit Lenders).

(b) Each Revolving Credit Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Revolving Credit Dollar Commitment and, if so, whether by an amount equal to, greater than, or less than its Revolving Credit Percentage Commitment of such requested Revolving Credit Commitment Increase. Any Revolving Credit Lender not responding within such time period shall be deemed to have declined to increase its Revolving Credit Dollar Commitment.

 

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(c) The Administrative Agent shall notify the Borrowers’ Representative and each Revolving Credit Lender of the Revolving Credit Lenders’ responses to each request made hereunder. To achieve the full amount of a requested Revolving Credit Commitment Increase, and subject to the approval of the Administrative Agent, the Issuer and the SwingLine Lender (which approvals shall not be unreasonably withheld), to the extent that the existing Revolving Credit Lenders decline to increase their Revolving Credit Dollar Commitments, or decline to increase their Revolving Credit Dollar Commitments to the amount requested by the Borrowers’ Representative, the Administrative Agent, in consultation with the Borrowers’ Representative, will use its reasonable efforts to arrange for one or more other Eligible Assignees to become a Revolving Credit Lender hereunder and to issue commitments in an amount equal to the amount of the increase in the Revolving Credit Commitments requested by the Borrowers’ Representative and not accepted by the existing Revolving Credit Lenders (and the Borrowers’ Representative may also invite additional Eligible Assignees to become Revolving Credit Lenders) (each, an “Additional Commitment Lender”); provided, however, that without the consent of the Administrative Agent, at no time shall the Revolving Credit Dollar Commitment of any Additional Commitment Lender be less than $5,000,000.

(d) If the Revolving Credit Commitments are increased in accordance with this Section 2.24, the Administrative Agent, in consultation with the Borrowers’ Representative shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Revolving Credit Commitment Increase. The Administrative Agent shall promptly notify the Borrowers’ Representative and the Revolving Credit Lenders of the final allocation of such Revolving Credit Commitment Increase and the Increase Effective Date and, on the Increase Effective Date, (i) the Revolving Credit Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Revolving Credit Commitment Increase, and (ii) EXHIBIT 2.25 shall be deemed modified, without further action, to reflect the revised Revolving Credit Dollar Commitments and Revolving Credit Percentage Commitments of the Revolving Credit Lenders.

(e) As conditions precedent to each such Revolving Credit Commitment Increase: (i) the Borrowers’ Representative shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Revolving Credit Lender) signed by a Responsible Officer of such Loan Party (A) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such Revolving Credit Commitment Increase, and (B) in the case of the Borrowers, certifying that, before and after giving effect to such Revolving Credit Commitment Increase, the representations and warranties contained in Article 4 and the other Loan Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date; (ii) the Borrowers, the Administrative Agent, and any Additional Commitment Lender shall have executed and delivered a joinder to the Loan Documents in such form as the Administrative Agent shall reasonably require; (iii) the Borrowers shall have paid such fees and other compensation to the Additional Commitment

 

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Lenders as the Lead Borrower and such Additional Commitment Lenders shall agree; (iv) the Borrowers shall have paid such arrangement fees to the Administrative Agent or its Affiliates as the Borrowers’ and the Administrative Agent may agree; (v) the Borrowers shall deliver to the Administrative Agent and the Revolving Credit Lenders an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Borrowers reasonably satisfactory to the Administrative Agent and dated such date; (vi) the Borrowers and the Additional Commitment Lenders shall have delivered such other instruments, documents and agreements as the Administrative Agent may reasonably have requested to effectuate the documentation of the foregoing; and (vii) no Default exists. The Borrowers shall prepay any Revolving Credit Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 2.11(e)) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Revolving Credit Percentage Commitments arising from any nonratable increase in the Revolving Credit Commitments under this Section 2.24.

(f) This Section 2.24 shall supersede any provisions in Article 15 to the contrary.

2.25. REFERENCES TO EXISTING LOAN AGREEMENT. The terms “Loan and Security Agreement,” “this Agreement,” “Loan Agreement,” and similar references as used in the documents, instruments and agreements executed and/or delivered in connection with the Existing Loan Agreement, shall mean the Existing Loan Agreement as amended and restated hereby in its entirety, and each of such documents, instruments and agreements is hereby so amended. Except as specifically agreed herein or in any of the Loan Documents executed concurrently herewith, each of the Loan Documents executed and delivered in connection with the Existing Loan Agreement is hereby ratified and confirmed and shall remain in full force and effect in accordance with its terms. Without limitation of the foregoing, the Loan Parties hereby confirm that the Collateral Interests granted under the Existing Loan Agreement and each other applicable Loan Document continue to secure all of the Liabilities.

ARTICLE 3 - CONDITIONS PRECEDENT:

As a condition to the effectiveness of this Agreement, the establishment of the Revolving Credit Facility, the making of the first Revolving Credit Loan under the Revolving Credit Facility, each of the documents respectively described in Sections 3.1 through and including Section 3.12 (each in form and substance satisfactory to the Administrative Agent) shall have been delivered to the Administrative Agent, and the conditions respectively described in Sections 3.5 through and including Section 3.12, shall have been satisfied:

3.1. DUE DILIGENCE.

(a) Certificates of good standing for each Loan Party, respectively issued by the Secretary of State for the state in which that Loan Party is organized.

 

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(b) Certificates of due qualification, in good standing, issued by the Secretary of State for the Commonwealth of Massachusetts for those Loan Parties required to file to do business in the Commonwealth of Massachusetts.

(c) Certificates of each Loan Party’s clerk or secretary, as applicable, of the due adoption, continued effectiveness, and setting forth the texts of, each resolution adopted in connection with the establishment of the loan arrangement contemplated by the Loan Documents and attesting to the true signatures of each Person authorized as a signatory to any of the Loan Documents.

3.2. OPINION. One or more reasonable and customary opinions of counsel to the Loan Parties.

3.3. ADDITIONAL DOCUMENTS. Such additional instruments and documents as the Administrative Agent or its counsel reasonably may require or request.

3.4. OFFICERS’ CERTIFICATES. Certificates executed by (a) either the President or the Chief Executive Officer and (b) the Chief Financial Officer of the Borrowers’ Representative and stating that:

(a) The representations and warranties made by the Loan Parties to the Agents and the Revolving Credit Lenders in this Agreement and the other Loan Documents are true and complete in all material respects as of the Closing Date, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and complete in all material respects as of such earlier date, and (ii) in the case of any such representations and warranties that are qualified by materiality, such representations and warranties shall be true and complete in all respects.

(b) No event has occurred which is or which, solely with the giving of notice or passage of time (or both) would be, an Event of Default.

(c) As of the Closing Date, and immediately after giving effect to the consummation of the transactions contemplated by this Agreement (including the initial Revolving Credit Loans to be made under this Agreement on the Closing Date), the Borrowers’ Representative and its Subsidiaries taken as a whole, and each Borrower, is Solvent.

 

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3.5. REPRESENTATIONS AND WARRANTIES. Each of the representations made by or on behalf of each Loan Party in this Agreement or in any of the other Loan Documents or in any other report, statement, document, or paper provided by or on behalf of each Loan Party shall be true and complete in all material respects as of the date as of which such representation or warranty was made, except (i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and complete in all material respects as of such earlier date, and (ii) in the case of any representation and warranty qualified by materiality, they shall be true and correct in all respects.

3.6. ALL FEES AND EXPENSES PAID. All fees due at or immediately after the first funding under the Revolving Credit Facility (including, without limitation, any such fees set forth in the Fee Letter), and all costs and expenses incurred by the Administrative Agent and the Collateral Agent in connection with the establishment of the Revolving Credit Facility contemplated hereby (including the reasonable fees and expenses of counsel to the Administrative Agent and the Collateral Agent), shall have been paid in full.

3.7. COLLATERAL, ETC.

(a) Each document (including, without limitation, Uniform Commercial Code financing statements) required by law or requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent a first priority perfected security interest in the Collateral shall have been properly filed, registered or recorded in each jurisdiction where required and the Collateral Agent shall have a first priority perfected security interest in the Collateral, subject only to Permitted Encumbrances.

(b) All accounts payable of the Loan Parties shall be within invoice terms (subject only to good faith disputes).

(c) The Inventory Purchase Agreement shall have been executed and delivered by all the Loan Parties, shall be in full force and effect and shall be satisfactory to the Administrative Agent.

3.8. NO DEFAULT.

(a) No Default shall have occurred and be continuing.

(b) Except as specifically set forth on EXHIBIT 3.8(b), no default shall have occurred and be continuing under any material contract or other agreement to which any Loan Party is a party.

 

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3.9. FINANCIAL STATEMENTS; LEGAL DUE DILIGENCE; NO ADVERSE CHANGE.

(a) The Administrative Agent shall be satisfied that all financial statements and projections delivered to it fairly present the Consolidated business and financial condition of the Borrowers and their Consolidated Subsidiaries.

(b) No event shall have occurred or failed to occur, which occurrence or failure is or could have a materially adverse effect upon any Loan Party’s financial condition when compared with the financial condition of such Loan Party as reflected in its most recent interim management prepared financial statements, annual report(s), public filings and projections provided to the Administrative Agent or any Revolving Credit Lender.

(c) The Administrative Agent shall be satisfied that no information or materials supplied by or on behalf of the Loan Parties contain material misstatements or omissions which could be materially misleading.

(d) The Administrative Agent shall be satisfied that no materially adverse change in any governmental regulations or policies affecting any Loan Party or Agent shall have occurred.

3.10. NO LITIGATION. The Administrative Agent and its counsel shall have received evidence satisfactory to each that there are no actions, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority now pending or threatened against any Loan Party the result of which is reasonably likely to have a material adverse effect on such Loan Party or its businesses or assets.

3.11. PATRIOT ACT. The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”).

3.12. BENEFIT OF CONDITIONS PRECEDENT. The conditions set forth in this Article 3 are for the sole benefit of each Agent and each Revolving Credit Lender and may be waived by the Administrative Agent, in whole or in part, without prejudice to any Agent or any Revolving Credit Lender.

No document shall be deemed delivered to the Administrative Agent, the Collateral Agent, or any Revolving Credit Lender until received and accepted by the Administrative Agent at its offices in Boston, Massachusetts. Under no circumstances shall this Agreement take effect until executed and accepted by the Administrative Agent at said offices.

 

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ARTICLE 4 - GENERAL REPRESENTATIONS, COVENANTS AND WARRANTIES:

To induce each Revolving Credit Lender to establish the Revolving Credit Facility contemplated herein and to induce the Revolving Credit Lenders to provide loans and advances hereunder (each of which loans shall be deemed to have been made in reliance thereupon), respectively, as contemplated hereby, the Loan Parties, in addition to all other representations, warranties, and covenants made by any Loan Party in any other Loan Document, make those representations, warranties, and covenants included in this Agreement.

4.1. PAYMENT AND PERFORMANCE OF LIABILITIES. The Borrowers shall pay each payment Liability when due (or when demanded, if payable on demand) and shall promptly, punctually, and faithfully perform each other Liability.

4.2. DUE ORGANIZATION; AUTHORIZATION; NO CONFLICTS.

(a) Each Loan Party presently is and hereafter shall remain in good standing under the laws of the State in which it is organized, as set forth on EXHIBIT 4.2 annexed hereto, and is and shall hereafter remain duly qualified and in good standing in every other State in which, by reason of the nature or location of such Loan Party’s assets or operation of such Loan Party’s business, such qualification is necessary, except where the failure to so qualify could not reasonably be expected to have a material adverse effect on the business or assets of that Loan Party.

(b) Each Loan Party’s respective federal employer identification number is stated on EXHIBIT 4.2, annexed hereto.

(c) No Loan Party shall change (i) its State of organization, or (ii) that Loan Party’s federal taxpayer identification number, in each case on less than sixty (60) days prior written notice (in reasonable detail) to the Administrative Agent.

(d) Each Affiliate of the Loan Parties is listed on EXHIBIT 4.2. The Borrowers’ Representative shall provide the Administrative Agent with prior written notice of any entity’s becoming or ceasing to be an Affiliate.

(e) Each Loan Party has all requisite power and authority to execute and deliver all Loan Documents to which that Loan Party is a party and has and will hereafter retain all requisite power to perform all Liabilities.

(f) The execution and delivery by each Loan Party of each Loan Document to which it is a party; each Loan Party’s consummation of the transactions contemplated by such Loan Documents (including, without limitation, the creation of Collateral Interests by that Loan Party to secure the Liabilities); each Loan Party’s performance under those of the Loan Documents to which it is a party; the borrowings hereunder; and the use of the proceeds thereof:

(i) Have been duly authorized by all necessary action.

 

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(ii) Do not, and will not, contravene in any material respect any provision of any Requirement of Law or obligation of that Loan Party, where such contravention would have a material adverse effect on that Loan Party.

(iii) Will not result in the creation or imposition of, or the obligation to create or impose, any Encumbrance upon any assets of that Loan Party pursuant to any Requirement of Law or obligation, except pursuant to or as permitted by the Loan Documents.

(g) The Loan Documents have been duly executed and delivered by each Loan Party and are the legal, valid and binding obligations of each Loan Party, enforceable against each Loan Party in accordance with their respective terms, except as such enforceability may be subject to limitations on the rights and remedies of secured creditors generally imposed under bankruptcy or insolvency law and that the availability of equitable relief is subject to the discretion of the court from which such relief is sought.

4.3. TRADE NAMES.

(a) EXHIBIT 4.3, annexed hereto, is a listing of:

(i) All names under which any Loan Party conducted its business during the five (5) years preceding the date of this Agreement.

(ii) All Persons with whom any Loan Party consolidated or merged, or from whom any Loan Party acquired in a single transaction or in a series of related transactions substantially all of such Person’s assets, in each case during the five (5) years preceding the date of this Agreement.

(b) The Borrowers’ Representative will provide the Administrative Agent with not less than twenty-one (21) days prior written notice (with reasonable particularity) of any change to any Loan Party’s name from that under which that Loan Party is conducting its business at the execution of this Agreement and will not effect such change unless each Loan Party is then in compliance with all provisions of this Agreement.

4.4. INFRASTRUCTURE.

(a) Each Loan Party has and will maintain a sufficient infrastructure to conduct its business as presently conducted and as contemplated to be conducted following its execution of this Agreement.

(b) To the Borrowers’ knowledge, except as set forth in EXHIBIT 4.4(b), each Loan Party owns and possesses, or has the right to use (and will hereafter own, possess, or have such right to use) all patents, industrial designs, trademarks, trade names, trade styles,

 

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brand names, service marks, logos, copyrights, trade secrets, know-how, confidential information, and other intellectual or proprietary property of any third Person necessary for that Loan Party’s conduct of that Loan Party’s business except where the failure to own, possess, or have such right or use will not have more than a de minimis adverse effect on any Loan Party.

(c) To the Borrowers’ knowledge, the conduct by each Loan Party of that Loan Party’s business does not presently infringe (nor will any Loan Party conduct its business in the future so as to infringe) the patents, industrial designs, trademarks, trade names, trade styles, brand names, service marks, logos, copyrights, trade secrets, know-how, confidential information, or other intellectual or proprietary property of any third Person except where such infringement will not have no more than a de minimis adverse effect on that Loan Party.

4.5. LOCATIONS.

(a) The Collateral, and the books, records, and papers of the Loan Parties pertaining thereto, are kept and maintained solely at the following locations:

(i) The Borrowers’ Representative’s chief executive offices which are at 555 Turnpike Street, Canton, Massachusetts 02021.

(ii) Those locations which are listed on EXHIBIT 4.5, annexed hereto, which EXHIBIT includes, with respect to each such location, the name and address of the landlord on the Lease which covers such location (or an indication that a Loan Party owns the subject location) and of all service bureaus with which any such records are maintained and the names and addresses of each Loan Party’s landlord(s).

(b) No Loan Party shall remove any of the Collateral from said chief executive office or those locations listed on EXHIBIT 4.5 except for the following purposes:

(i) To accomplish sales of Inventory in the ordinary course of business or sales permitted by Section 4.14(d).

(ii) To move Inventory from one such location to another such location.

(iii) To utilize such of the Collateral as is removed from such locations in the ordinary course of business (such as motor vehicles).

(c) Except where caused by a force majeure or as otherwise agreed by the Administrative Agent, and except with respect to the locations referred to in Section 4.14(d) as to which five (5) days notice shall be deemed sufficient, no Loan Party shall cease the conduct of business at any of its present or future Stores for more than fifteen (15) consecutive days without first furnishing the Administrative Agent with not less than thirty (30) days (or such lesser period as the Administrative Agent may agree) prior written notice thereof.

 

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4.6. STORES.

(a) No Loan Party is or may commit to or become legally obligated to open additional Stores where such commitment, obligation, or opening is prohibited by, or would result in a breach of, this Agreement.

(b) Except for in-transit Inventory, no tangible personal property of any Loan Party (beyond a de minimis amount of such property) is in the care or custody of any third party or stored or entrusted with a bailee or other third party other than as otherwise consented to in writing by the Administrative Agent.

4.7. TITLE TO ASSETS.

(a) The Loan Parties are, and shall hereafter remain, the owners of the Collateral free and clear of all Encumbrances with the exceptions of the following:

(i) Encumbrances in favor of the Collateral Agent.

(ii) Permitted Encumbrances.

(b) Except as disclosed on EXHIBIT 4.7(b), annexed hereto, the Loan Parties do not have possession of any property on consignment to the Loan Parties and will not have possession of property on consignment hereafter.

(c) No Loan Party shall acquire or obtain the right to use any Equipment in which any third party has an interest, except for:

(i) Equipment which is merely incidental to the conduct of that Loan Party’s business; or

(ii) Equipment, the acquisition or right to use of which has been consented to by the Administrative Agent, which consent may be conditioned solely upon the Administrative Agent’s receipt of an agreement, substantially in the form of EXHIBIT 4.7(c)(ii), annexed hereto with the third party which has an interest in such Equipment; or

(iii) Equipment subject to Leases, Capital Leases or licenses otherwise permitted hereunder.

(d) No Affiliate (other than a Loan Party) which is owned, directly or indirectly, by a Loan Party has, and none will acquire, any assets other than assets of nominal value, unless (i) such acquisition of assets is not prohibited by another provision of this Agreement and (ii) the ownership interests of such Affiliate shall have been pledged to the Collateral Agent for the benefit of the Revolving Credit Lenders as their interests may appear and the Collateral Agent has a first priority, perfected security interest in such ownership interests.

 

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4.8. INDEBTEDNESS.

(a) The Loan Parties do not, and shall not hereafter, have any Indebtedness with the exception of Permitted Indebtedness and shall not make, directly or indirectly, any payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any Indebtedness; provided, however, that the Loan Parties shall be permitted to make the following payments on Permitted Indebtedness:

(i) regularly scheduled payments (but not prepayments) of principal and interest on account of Permitted Indebtedness when due; and

(ii) voluntary prepayments, repurchases, redemptions or defeasances of principal and interest on account of Permitted Indebtedness as long as the Loan Parties are in compliance with the Payment Conditions.

4.9. INSURANCE.

(a) EXHIBIT 4.9, annexed hereto, is a schedule of all insurance policies owned by the Loan Parties or under which any Loan Party is the named insured. Each of such policies is in full force and effect. Neither the issuer of any such policy nor any Loan Party is in default or violation of any such policy.

(b) The Loan Parties shall have and maintain at all times insurance covering such risks, in such amounts, containing such terms, in such form, for such periods, and written by such companies as may be satisfactory to the Administrative Agent.

(c) All insurance carried by the Loan Parties shall provide for a minimum of thirty (30) days’ prior written notice of cancellation to the Administrative Agent and all such insurance which covers the Collateral shall include an endorsement in favor of the Agents, which endorsement shall provide that the insurance, to the extent of the Agent’s respective interest therein, shall not be impaired or invalidated, in whole or in part, by reason of any act or neglect of any Loan Party or by the failure of any Loan Party to comply with any warranty or condition of the policy, and shall not include an endorsement in favor of any other Person.

(d) The coverage reflected on EXHIBIT 4.9 presently satisfies the foregoing requirements, it being recognized by each Loan Party, however, that such requirements may hereafter be modified as required by the Administrative Agent in its reasonable discretion to reflect changing circumstances.

 

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(e) The Borrowers’ Representative shall furnish the Administrative Agent from time to time with certificates or other evidence satisfactory to the Administrative Agent regarding compliance by the Loan Parties with the foregoing requirements.

(f) In the event of the failure by the Loan Parties to maintain insurance as required herein, the Administrative Agent, at its option, may obtain such insurance; provided, however, the Administrative Agent’s obtaining of such insurance shall not constitute a cure or waiver of any Event of Default occasioned by the Loan Parties’ failure to have maintained such insurance.

4.10. LICENSES. Each license, distributorship, franchise, and similar agreement issued to, or to which any Loan Party is a party, is in full force and effect, except where the failure thereof to be in full force and effect could not reasonably be expected to have a material adverse effect on the Loan Parties. Neither the Borrowers nor, to the best knowledge of the Borrowers, any other party to any such license or agreement is in default or violation thereof. No Loan Party has received any notice or threat of cancellation of any such license or agreement.

4.11. LEASES. EXHIBIT 4.11, annexed hereto, is a schedule of all presently effective Capital Leases. EXHIBIT 4.5 includes a list of all other presently effective Leases. Each of such Leases and Capital Leases is in full force and effect. Neither the Borrower nor, to the best knowledge of the Borrowers, any other party to any such Lease or Capital Lease is in default or violation of any such Lease or Capital Lease and no Loan Party has received notice or a threat of cancellation of any such Lease or Capital Lease. Each Loan Party hereby authorizes the Administrative Agent at any time and from time to time, with the consent of the Borrowers’ Representative and at any time following the occurrence of an Event of Default, to contact any of the Loan Parties’ respective landlords in order to confirm the Loan Parties’ continued compliance with the terms and conditions of the Lease(s) between the subject Loan Party and that landlord and to discuss such issues, concerning the subject Loan Party’s occupancy under such Lease(s), as the Administrative Agent may determine.

4.12. REQUIREMENTS OF LAW. Each Loan Party is in compliance with, and shall hereafter comply with and use its assets in compliance with, all Requirements of Law except where the failure of such compliance will not have more than a de minimis adverse effect on the Loan Party’s business. No Loan Party has received any notice of any violation of any Requirement of Law (other than of a violation which has no more than a de minimis adverse effect on the Loan Party’s business or assets), which violation has not been cured or otherwise remedied.

 

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4.13. LABOR RELATIONS.

(a) Except as disclosed on EXHIBIT 4.13(a), annexed hereto, no Loan Party is presently a party to any collective bargaining or other labor contract.

(b) There is not presently pending and, to any Loan Party’s knowledge, there is not threatened any of the following:

(i) Any strike, slowdown, picketing, work stoppage, or material employee grievance process.

(ii) Any proceeding against or affecting any Loan Party relating to the alleged violation of any Applicable Law pertaining to labor relations or before National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable governmental body, organizational activity, or other labor or employment dispute against or affecting any Loan Party, which, if determined adversely to that Loan Party could have more than a de minimis adverse effect on that Loan Party.

(iii) Any lockout of any employees by any Loan Party (and no such action is contemplated by any Loan Party).

(iv) Any application for the certification of a collective bargaining agent.

(c) To the knowledge of the Borrowers’ Representative and each Loan Party, no material event has occurred or circumstance exists which could provide the basis for any work stoppage or other labor dispute.

(d) Each Loan Party:

(i) Has complied in all material respects with all Applicable Law relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, the payment of social security and similar taxes, occupational safety and health, and plant closing.

(ii) Is not liable for the payment of more than a de minimis amount of compensation, damages, taxes, fines, penalties, or other amounts, however designated, for that Loan Party’s failure to comply with any Applicable Law referenced in Section 4.13(d)(i).

4.14. MAINTAIN PROPERTIES; ASSET SALES. The Loan Parties shall:

(a) Keep the Collateral in good order and repair (ordinary reasonable wear and tear and insured casualty excepted).

(b) Not suffer or cause the waste or destruction of any material part of the Collateral.

 

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(c) Not use any of the Collateral in violation of any policy of insurance thereon.

(d) Not sell, lease, or otherwise dispose of any of the Collateral, other than the following:

(i) The sale of Inventory in compliance with this Agreement.

(ii) The disposal of Equipment which is obsolete, worn out, or damaged beyond repair, which Equipment is replaced to the extent necessary to preserve or improve the operating efficiency of any Loan Party.

(iii) The turning over to the Administrative Agent of all Receipts as provided herein.

(iv) Permitted Asset Dispositions.

4.15. TAXES.

(a) The Loan Parties, in compliance with all Applicable Law, have properly filed the Loan Party’s tax returns due to be filed up to the date of this Agreement. All federal and state taxes and other amounts in the nature of taxes for which any Loan Party is liable or obligated are presently due and payable without penalty; or have been paid or settled.

(b) The Loan Parties shall: pay, as they become due and payable, all taxes and unemployment contributions and other charges of any kind or nature levied, assessed or claimed against any Loan Party or the Collateral by any Person whose claim could result in an Encumbrance upon any asset of any Loan Party or by any governmental authority; properly exercise any trust responsibilities imposed upon any Loan Party by reason of withholding from employees’ pay or by reason of any Loan Party’s receipt of sales tax or other funds for the account of any third party; timely make all contributions and other payments as may be required pursuant to any Employee Benefit Plan now or hereafter established by any Loan Party; and timely file all tax and other returns and other reports with each governmental authority to whom any Loan Party is obligated to so file except where failure to file could not reasonably be expected to have a material adverse effect; provided, however, nothing included in this Section 4.15(b) shall prevent the Loan Parties from contesting, in good faith and by appropriate proceedings, any tax liability claimed against any Loan Party, but only provided that and so long as no tax lien is filed with respect thereto.

(c) At its option, with prior notice to the Borrowers’ Representative, the Administrative Agent may pay any tax, charge levied, assessed, or claimed upon any Loan Party or the Collateral by any Person, or entity or governmental authority, and make any payments on account of any Loan Party’s Employee Benefit Plan as the Administrative Agent, in the Administrative Agent’s reasonable discretion, may deem necessary or desirable, to protect the Agents’ Rights and Remedies.

 

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4.16. NO MARGIN STOCK; NOT INVESTMENT COMPANY.

(a) No Loan Party is engaged in the business of extending credit for the purpose of purchasing or carrying any margin stock (within the meaning of Regulations U, T, and X of the Board of Governors of the Federal Reserve System of the United States). No part of the proceeds of any borrowing hereunder will be used at any time to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.

(b) No Loan Party or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

4.17. ERISA.

(a) Neither any Loan Party nor any ERISA Affiliate has ever:

(i) Violated or failed to be in full compliance with any Employee Benefit Plan maintained by any Loan Party.

(ii) Failed timely to file all reports and filings required by ERISA to be filed by any Loan Party.

(iii) Engaged in any nonexempt “prohibited transactions” or “reportable events” (respectively as described in ERISA).

(iv) Engaged in, or committed, any act such that a tax or penalty could be imposed upon any Loan Party on account thereof pursuant to ERISA.

(v) Accumulated any material cumulative funding deficiency within the meaning of ERISA.

(vi) Terminated any Employee Benefit Plan such that a lien could be asserted against any assets of any Loan Party on account thereof pursuant to ERISA.

(vii) Been a member of, contributed to, or had any obligation under any Employee Benefit Plan which is a multiemployer plan within the meaning of Section 4001(a) of ERISA.

(b) Neither any Loan Party nor any ERISA Affiliate shall ever engage in any action of the type described in Section 4.17(a).

4.18. HAZARDOUS MATERIALS.

(a) No Loan Party has ever: (i) been legally responsible for any release or threat of release of any Hazardous Material or (ii) received notification of the incurrence of any expense in connection with the assessment, containment, or removal of any Hazardous Material for which that Loan Party would be responsible.

 

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(b) Each Loan Party shall: (i) dispose of any Hazardous Material only in compliance with all Environmental Laws and (ii) have possession of any Hazardous Material only in the ordinary course of that Loan Party’s business and in compliance with all Environmental Laws.

4.19. LITIGATION. Except as described in EXHIBIT 4.19, annexed hereto, there is not presently pending or to the knowledge of the Borrowers, threatened in writing, by or against any Loan Party, any suit, action, proceeding, or investigation which if determined adversely to such Loan Party, would have a material adverse effect upon the Loan Parties’ financial condition or the ability of the Loan Parties to conduct their business as such business is presently conducted or is contemplated to be conducted in the foreseeable future.

4.20. DIVIDENDS. INVESTMENTS. ENTITY ACTION. No Loan Party shall:

(a) Pay any cash dividend or make any other distribution in respect of any class of their respective capital stock or other ownership interests, other than payments to another Loan Party, unless the Loan Parties are in compliance with the Payment Conditions.

(b) Redeem, retire, purchase, or acquire any of Casual Male’s capital stock, other than pursuant to a Permitted Repurchase.

(c) Invest in or purchase any stock or securities or other ownership interests, or rights to purchase any such stock or securities or other ownership interests, of any corporation or other Person, except for:

(i) Permitted Investments;

(ii) Permitted Acquisitions subject to the provisions of Section 4.21;

(iii) Investments in new wholly owned Subsidiaries formed in connection with any such Permitted Acquisition, subject to the provisions of Section 4.21(c);

(iv) Permitted Minority Investments; provided that (A) the Borrowers are in compliance with the Payment Conditions and (B) (1) at any time that any Revolving Credit Loan is outstanding before and after giving effect to such Permitted Minority Investment, the aggregate amount of all Permitted Minority Investments made shall not exceed $50,000,000 or (2) if there is no Revolving Credit Loan outstanding before and after giving effect to such Permitted Minority Investment, then such Permitted Minority Investment shall not be added to the aggregate limit set forth in clause (B)(1) above; and

 

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(v) Investments by the Loan Parties in Subsidiaries that are not Loan Parties; provided that (A) such Investments may only be made following the Closing Date to the extent that such Investments, together with the principal amount of any intercompany loans permitted pursuant to Section 4.22(g), shall not exceed $10,000,000.00 in the aggregate from and after the Closing Date, and (B) in the event that the aggregate amount of such Investments, together with the principal amount of any intercompany loans permitted pursuant to Section 4.22(g), exceeds $5,000,000.00, the Payment Conditions shall have been satisfied.

(d) Merge or consolidate or be merged or consolidated with or into any other corporation or other entity; provided that nothing in this Agreement shall prevent any Loan Party from merging into any other Loan Party.

(e) Consolidate any of that Loan Party’s operations with those of any other corporation or other entity other than another Loan Party.

(f) Subordinate any debts or obligations owed to that Loan Party by any third party to any other debts owed by such third party to any other Person.

(g) Engage in any interest rate swaps, caps, or similar activities, or any hedging activities, other than in the ordinary course and conduct of that Loan Party’s business and then only with a Revolving Credit Lender or any Affiliate of a Revolving Credit Lender.

4.21. PERMITTED ACQUISITIONS. The Loan Parties may make Permitted Acquisitions without the consent of the Agent or the Revolving Credit Lenders; provided that:

(a) Not less than fifteen (15) days prior written notice (with reasonable particularity as to the facts and circumstances in respect of which such notice is being given) of such Permitted Acquisition is given to the Administrative Agent.

(b) The Loan Parties are in compliance with the Payment Conditions.

(c) With respect, to and in the event of any Permitted Acquisition which consists of, or results in the creation of, a Subsidiary, the Administrative Agent shall be provided with such Subsidiary’s Guarantor Agreement (in form and substance satisfactory to the Administrative Agent), which Guarantor Agreement shall be secured by first perfected security interests and liens on substantially all of the assets of such Subsidiary, subject to the same limitations set forth in Section 8.1 hereof and subject to Permitted Encumbrances.

(d) The Agent and the Revolving Credit Lenders shall have no obligation to include any Inventory acquired in such Permitted Acquisition (or Inventory of a similar type and nature acquired after the Permitted Acquisition) as Eligible Inventory unless the Agent (i)

 

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has a first priority perfected security interest in such Inventory, (ii) has completed or received an appraisal of such Inventory from appraisers satisfactory to the Agent and such other due diligence as the Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Agent, (iii) has established applicable advance rates and Reserves in connection therewith, and (iv) has otherwise determined in its reasonable discretion that such Inventory is eligible to be included in the Borrowing Base.

4.22. LOANS. The Loan Parties shall not make any loans to, nor acquire the Indebtedness of, any Person; provided, however, the foregoing does not prohibit any of the following:

(a) Subject to such conditions respectively as apply thereto, the making of Permitted Investments.

(b) Advance payments made to a Loan Party’s suppliers in the ordinary course.

(c) Advances to a Loan Party’s officers, employees, and salespersons with respect to reasonable expenses to be incurred by such officers, employees, and salespersons for the benefit of a Loan Party, which expenses are properly substantiated by the person seeking such advance and properly reimbursable by a Loan Party.

(d) Loans to a Loan Party’s officers and employees not exceeding $400,000 in the aggregate at any one time outstanding, provided that each such loan is for a term of not more than 90 days from the date on which it is made and is paid within such 90-day period; provided that, all amounts due on account of loans permitted under this clause (d) shall constitute Collateral and shall be pledged to the Collateral Agent for the benefit of the Revolving Credit Lenders.

(e) Advances to contractors for the construction or renovation of stores, buildings or improvements for use in the business of a Loan Party.

(f) Loans made by the Borrowers to the Guarantors to finance the purchases by the Guarantors of Inventory pursuant to the Amended and Restated Inventory Purchase Agreement and to permit the Guarantors to pay ordinary course operating expenses (including, without limitation, rent, utilities and taxes) so long as, in each case, such intercompany loans shall be evidenced by, and subject to, such documentation (including, without limitation, notes and pledge agreements) as the Collateral Agent may require.

(g) Loans made by the Loan Parties to Subsidiaries that are not Loan Parties to finance the purchase by such Subsidiaries of Inventory and to permit such Subsidiaries to pay ordinary course operating expenses (including, without limitation, rent, utilities and taxes) so long as, in each case, such intercompany loans shall be evidenced by, and subject to, such documentation (including, without limitation, notes and pledge agreements) as the Collateral Agent may require; provided that (A) such intercompany loans may only be made following the Closing Date to the extent that the principal amount of such intercompany loans, together with

 

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Investments permitted pursuant to Section 4.20(c)(v), shall not exceed $10,000,000.00 in the aggregate from and after the Closing Date, and (B) in the event that the aggregate principal amount of such intercompany loans, together with Investments permitted pursuant to Section 4.20(c)(v), exceeds $5,000,000.00, the Payment Conditions shall have been satisfied.

4.23. RESTRICTIONS ON SALE OF COLLATERAL; LICENSE AGREEMENTS. To the Loan Parties’ knowledge, the Loan Parties are not, and shall not become, party to any agreement or understanding which limits, impairs, or otherwise restricts the ability of the Collateral Agent to freely sell and dispose of any of the Collateral (including, without limitation, any repurchase agreements, rights of first refusal or other agreements which limit or condition the time, manner, place or price for the sale or disposition of the Collateral). The Loan Parties shall not effect or permit any material change or amendment to the terms of such License Agreements which would impose further restrictions to the Collateral Agent’s disposition of the Collateral or would shorten the term of such License Agreements.

4.24. PROTECTION OF ASSETS. The Administrative Agent, in the Administrative Agent’s reasonable discretion, from time to time, may discharge any tax or Encumbrance on any of the Collateral, or take any other action which the Administrative Agent may deem necessary or desirable to repair, insure, maintain, preserve, collect, or realize upon any of the Collateral. The Administrative Agent shall not have any obligation to undertake any of the foregoing and shall have no liability on account of any action so undertaken except where there is a specific finding in a judicial proceeding (in which the Administrative Agent has had an opportunity to be heard), from which finding no further appeal is available, that the Administrative Agent had acted in actual bad faith or in a grossly negligent manner. The Loan Parties shall pay to the Administrative Agent, on demand, or the Administrative Agent, in its discretion, may add to the Loan Account, all amounts paid or incurred by the Administrative Agent pursuant to this Section 4.24.

4.25. LINE OF BUSINESS.

(a) Except as provided in Sections 4.20, 4.23 and 4.25(c), no Loan Party shall engage in any business other than the business in which it is currently engaged or plans to be engaged, as reflected in the Business Plan, or a business reasonably related thereto (the conduct of which reasonably related business is reflected in the Business Plan); provided that the foregoing shall not prohibit the expansion or contraction of a Loan Party’s business so long as the Loan Parties are still engaged solely in the retail sale of apparel, footwear and related accessories and other activities, ancillary, incidental or necessary thereto, and such expansion or contraction is otherwise permitted under other Sections of this Agreement.

(b) The Loan Parties, with the prior written notice to the Administrative Agent in each instance, may license the use of up to 5% of the selling space of any Store (measured in terms of square feet) for the operation of certain departments of their Stores by third parties.

 

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(c) The Loan Parties, with the prior written consent of the Administrative Agent (as to which, see Section 4.25(c)(i)), may (x) license the use of more than 5% of the selling space of any Store (measured in terms of square feet) for the operation of certain departments by third parties and (y) franchise to others the right to operate comparable Stores, it being understood that:

(i) The Administrative Agent’s determination to consent to the Loan Parties’ activities described in Section 4.25(c) may be conditioned on the Administrative Agent’s being satisfied that the secured position of the Collateral Agent, and the Agents’ Rights and Remedies, would not be adversely affected by such restructuring and that such restructuring does not place any material additional administrative burdens on the Agents.

(ii) The Administrative Agent may provide such consent pursuant to this Section 4.25(c) on its own authority and without obtaining the Consent of the Majority Revolving Credit Lenders.

(iii) The Administrative Agent may condition its providing of such consent pursuant to this Section 4.25(c) on the Consent of the Majority Revolving Credit Lenders.

4.26. AFFILIATE TRANSACTIONS. No Loan Party shall make any payment, nor give any value, to any Affiliate except for:

(a) Goods and services actually purchased by that Loan Party from, or sold by that Loan Party to, such Affiliate for a price and on terms which shall

(i) be competitive and fully deductible as an “ordinary and necessary business expense” and/or fully depreciable under the Internal Revenue Code of 1986 and the Treasury Regulations, each as amended; and

(ii) be no less favorable to that Loan Party than those which would have been charged and imposed in an arms’ length transaction.

(b) Dividends, investments and other transactions expressly permitted pursuant to Section 4.20.

4.27. FURTHER ASSURANCES.

(a) No Loan Party is the owner of, nor has it any interest in, any property or asset which, immediately upon the satisfaction of the conditions precedent to the effectiveness of the credit facility contemplated hereby (Article 4) and the proper filing of Uniform Commercial Code Financing Statements and delivery of any Collateral in which a security interest must be perfected by possession, will not be subject to a perfected Collateral Interest in favor of the Collateral Agent (subject only to Permitted Encumbrances) to secure the Liabilities.

 

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(b) Except as otherwise permitted by this Agreement, no Loan Party will hereafter acquire any asset or any interest in property which is not, immediately upon such acquisition, subject to such a perfected Collateral Interest in favor of the Collateral Agent to secure the Liabilities (subject only to Permitted Encumbrances).

(c) Each Loan Party shall execute and deliver to the Administrative Agent such instruments, documents, and papers, and shall do all such things from time to time hereafter as the Administrative Agent reasonably may request, to carry into effect the provisions and intent of this Agreement; to protect and perfect the Collateral Agent’s Collateral Interests in the Collateral; and to comply with all applicable statutes and laws, and facilitate the collection of the Receivables Collateral. Each Loan Party shall execute all such instruments as may be required by the Administrative Agent with respect to the recordation and/or perfection of the Collateral Interests created or contemplated herein.

(d) Each Loan Party hereby designates the Collateral Agent as and for that Loan Party’s true and lawful attorney, with full power of substitution, to sign and file any financing statements in order to perfect or protect the Collateral Agent’s Collateral Interests in the Collateral.

(e) This Agreement constitutes an authenticated record which authorizes the Collateral Agent to file such financing statements as the Collateral Agent determines as appropriate to perfect or protect the Agent’s Collateral Interests created hereby.

(f) A carbon, photographic, or other reproduction of this Agreement or of any financing statement or other instrument executed pursuant to this Section 4.27 shall be sufficient for filing to perfect the security interests granted herein.

4.28. ADEQUACY OF DISCLOSURE.

(a) All financial statements furnished to each Agent and each Revolving Credit Lender by each Loan Party have been prepared in accordance with GAAP consistently applied and present fairly the condition of the Loan Parties at the date(s) thereof and the results of operations and cash flows for the period(s) covered; provided, however, that unaudited financial statements are subject to normal year-end adjustments and to the absence of footnotes. There has been no change in the Consolidated financial condition, results of operations, or cash flows of the Loan Parties since the date(s) of the most recent financial statements delivered to the Administrative Agent, as supplemented by the Business Plan, other than changes in the ordinary course of business, which changes have not been materially adverse, either singularly or in the aggregate.

(b) Except as set forth on EXHIBIT 4.28(b), annexed hereto, no Loan Party has any contingent obligations or obligation under any Lease or Capital Lease which is not

 

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noted in the Loan Parties’ Consolidated financial statements furnished to each Agent and each Revolving Credit Lender prior to the execution of this Agreement other than obligations which are entered into in the ordinary course of business since the date of such financial statement.

(c) No document, instrument, agreement, or paper now or hereafter given to any Agent and any Revolving Credit Lender by or on behalf of each Loan Party or any guarantor of the Liabilities in connection with the execution of this Agreement by each Agent and each Revolving Credit Lender (except for any projections provided by or on behalf of any Loan Party) contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements therein not misleading.

4.29. NO RESTRICTIONS ON LIABILITIES. No Loan Party shall enter into or directly or indirectly become subject to any agreement which prohibits or restricts, in any manner, any Loan Party’s:

(a) Creation of, and granting of Collateral Interests in favor of the Collateral Agent.

(b) Incurrence of Liabilities.

4.30. OTHER COVENANTS. No Loan Party shall indirectly do or cause to be done any act which, if done directly by that Loan Party, would breach any covenant contained in this Agreement.

4.31. INVENTORY PURCHASING. Any Person which at any time becomes a Loan Party shall become party to, and shall at all times comply with the terms and conditions set forth in, the Inventory Purchase Agreement including, without limitation, the obligation of each Loan Party (other than CMRG Apparel) to purchase of all of its Inventory exclusively from CMRG Apparel; provided, however, RBT may directly purchase de minimis amounts of Inventory for its own account. The Inventory Purchase Agreement may not be amended, modified or supplemented, except for the addition of Loan Parties, or terminated without the prior written consent of the Administrative Agent.

4.32. SOLVENCY. After giving effect to the transactions contemplated hereby, the Borrowers’ Representative and its Subsidiaries taken as a whole, and each Borrower, is Solvent.

4.33. PATRIOT ACT. Each Loan Party is in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Revolving Credit Loans will be used by the Loan Parties, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.

 

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4.34. FOREIGN ASSETS CONTROL REGULATIONS. Neither the advance of the Revolving Credit Loans nor the use of the proceeds thereof will violate the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With the Enemy Act”) or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (the “Foreign Assets Control Regulations”) or any enabling legislation or executive order relating thereto (which for the avoidance of doubt shall include, but shall not be limited to, (a) Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001) (the “Executive Order”) and (b) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)). Furthermore, none of the Borrowers or their Affiliates (a) is or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations or (b) engages or will engage in any dealings or transactions, or be otherwise associated, with any such “blocked person” or in any manner violative of any such order.

ARTICLE 5 - FINANCIAL REPORTING AND PERFORMANCE COVENANTS:

5.1. MAINTAIN RECORDS. The Loan Parties shall:

(a) At all times, keep proper books of account, in which full, true, and accurate entries shall be made of all of the Loan Parties’ financial transactions, all in accordance with GAAP applied consistently with prior periods to fairly reflect the Consolidated financial condition of the Loan Parties at the close of, and its results of operations for, the periods in question.

(b) Timely provide the Administrative Agent with those financial reports, statements, and schedules required by this Article 5 or otherwise, each of which reports, statements and schedules shall be prepared, to the extent applicable, in accordance with GAAP applied consistently with prior periods to fairly reflect the Consolidated financial condition of the Loan Parties at the close of, and the results of operations for, the period(s) covered therein.

(c) At all times, keep accurate current records of the Collateral including, without limitation, accurate current stock, cost, and sales records of its Inventory, accurately and sufficiently itemizing and describing the kinds, types, and quantities of Inventory and the cost and selling prices thereof.

(d) At all times, retain Ernst & Young, LLP or such other independent certified public accountants who are reasonably satisfactory to the Administrative Agent and instruct such accountants to fully cooperate with, and be available to, the Administrative Agent to discuss the Loan Parties’ financial performance, financial condition, operating results, controls, and such other matters, within the scope of the retention of such accountants, as may be raised by the Administrative Agent.

 

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(e) Not change any Loan Party’s Fiscal year.

5.2. ACCESS TO RECORDS.

(a) Each Loan Party shall accord the Administrative Agent with reasonable access on reasonable notice during customary business hours from time to time as the Administrative Agent reasonably may require to all properties owned by or over which any Loan Party has control. The Administrative Agent shall have the right during customary business hours on reasonable notice, and each Loan Party will permit the Administrative Agent from time to time as Administrative Agent reasonably may request, to examine, inspect, copy, and make extracts from any and all of the Loan Parties’ books, records, electronically stored data, papers, and files. Each Loan Party shall make all of that Loan Party’s copying facilities available to the Administrative Agent.

(b) Each Loan Party hereby authorizes the Administrative Agent during customary business hours on reasonable notice to:

(i) Inspect, copy, duplicate, review, cause to be reduced to hard copy, run off, draw off, and otherwise use any and all computer or electronically stored information or data which relates to any Loan Party, or any service bureau, contractor, accountant, or other person, and directs any such service bureau, contractor, accountant, or other person fully to cooperate with the Administrative Agent with respect thereto.

(ii) Verify at any time the Collateral or any portion thereof, including verification with Account Debtors, and/or with each Loan Party’s computer billing companies, collection agencies, and accountants and to sign the name of each Loan Party on any notice to each Loan Party’s Account Debtors or verification of the Collateral.

(c) The Borrowers’ Representative, on reasonable request from time to time from the Administrative Agent, will make representatives of management available from time to time to discuss the Loan Parties’ operating results and other related matters with the Administrative Agent.

(d) The Administrative Agent from time to time may designate one or more representatives to exercise the Administrative Agent’s rights under this Section 5.2 as fully as if the Administrative Agent were doing so.

 

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5.3. PROMPT NOTICE TO ADMINISTRATIVE AGENT.

(a) The Borrowers’ Representative shall provide the Administrative Agent with written notice promptly upon its becoming aware of the occurrence of any of the following events, which written notice shall be with reasonable particularity as to the facts and circumstances in respect of which such notice is being given:

(i) Any material adverse change in the business affairs of any Loan Party.

(ii) Any change in the executive officers of any Loan Party.

(iii) Any ceasing of the Loan Parties’ making of payments, in the ordinary course, to any of its creditors, on account of obligations aggregating in excess of $1,000,000.00 (including the ceasing of the making of such payments on account of a dispute with the subject creditor).

(iv) Any failure by a Loan Party to pay rent at (A) any leased distribution center at which such Loan Party maintains Inventory, (B) ten percent (10%) or more of such Loan Party’s store locations or (C) any of such Loan Party’s locations if such failure continues for more than ten (10) days following the day on which such rent first came due, except in the event that such rent is timely paid into a valid escrow account as a result of a bona fide dispute.

(v) Any Default.

(vi) Any intention on the part of a Loan Party to discharge that Loan Party’s present independent accountants or any withdrawal or resignation by such independent accountants from their acting in such capacity (as to which, see Subsection 5.1(d)).

(vii) Any litigation which, if determined adversely to a Loan Party, would have a material adverse effect on the financial condition of that Loan Party.

(b) The Borrowers’ Representative shall:

(i) At the request of the Administrative Agent, provide the Administrative Agent with a copy of the results of any physical or cycle count of a Loan Party’s Inventory.

(ii) Provide the Administrative Agent, when received by any Loan Party, with a copy of any management letter or similar communications from any accountant of that Loan Party.

(iii) Provide the Administrative Agent with copies of all filings by each Loan Party with the Securities and Exchange Commission, when so filed, and when received, copies of all correspondence from the SEC, other than routine non-substantive general communications from the SEC.

 

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(iv) Provide the Administrative Agent with written notice of any intended bulk sale, liquidation, or other disposition of assets of any Loan Party at least ten (10) Business Days prior to the consummation of such sale or disposition, or commencement of such liquidation and a detailed summary of the net proceeds expected to be received therefrom; provided that nothing in this Section is intended to be, or shall be deemed to be, a waiver of any restriction on such disposition of assets set forth elsewhere in this Agreement, including, without limitation, Section 4.14.

(v) Provide the Administrative Agent, when so distributed, with copies of any materials distributed to the shareholders of Casual Male and each of the other Loan Parties (qua such shareholders).

5.4. BORROWING BASE CERTIFICATE. The Borrowers’ Representative shall provide the Administrative Agent on the fourth Business Day of each Fiscal Month as of the close of business the last day of the immediately preceding month, with a Borrowing Base Certificate; provided that, upon the occurrence and during the continuance of an Accelerated Borrowing Base Delivery Event, at the election of the Administrative Agent, such Borrowing Base Certificate shall be delivered weekly on Thursday of each week as of the close of business for the immediately preceding week. Such Certificate may be sent to the Administrative Agent by facsimile transmission or by electronic mail, provided that the original thereof is forwarded to the Administrative Agent on the date of such transmission.

5.5. MONTHLY REPORTS. Monthly, within thirty (30) days following the end of each Fiscal month of the Loan Parties, the Borrowers’ Representative shall provide the Administrative Agent with the following:

(a) A management prepared Consolidated financial statement of the Loan Parties for the subject month and for the period from the beginning of the Loan Parties’ then current Fiscal year through the end of the subject month, with comparative information for the same period of the previous Fiscal year and to the Business Plan or updated forecast, which statement shall include, at a minimum, a balance sheet, income statement, and cash flows.

(b) The Compliance Certificate described in Section 5.8.

5.6. QUARTERLY REPORTS. Quarterly, within fifty (50) days following the end of each Fiscal quarter of the Loan Parties, the Borrowers’ Representative shall provide the Administrative Agent with the following:

(a) A management prepared Consolidated financial statement of the Loan Parties for the subject quarter and for the period from the beginning of the Loan Parties’ then current Fiscal year through the end of the subject quarter, with comparative information for the same period of the previous Fiscal year and to the Business Plan or updated forecast, which statement shall include, at a minimum, a balance sheet, income statement, and cash flows.

 

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(b) The Compliance Certificate described in Section 5.8.

5.7. ANNUAL REPORTS.

(a) Annually within ninety-five (95) days following the end of the Loan Parties’ Fiscal year, the Borrowers’ Representative shall furnish the Administrative Agent with the following:

(i) The Loan Parties’ annual Consolidated financial statement (with consolidating schedules), which statement shall have been prepared by, and bear the unqualified opinion of, the Loan Parties’ independent certified public accountants (i.e. said statement shall be “certified” by such accountants). Such annual statement shall include, at a minimum (with comparative information for the then prior Fiscal year), a balance sheet, income statement, statement of changes in shareholders’ equity, and cash flows.

(ii) The following Consolidated financial statements for the Loan Parties for the prior Fiscal year (each prepared by the Loan Parties’ independent accountants): Balance sheet, income statement, statement of changes in stockholders’ equity and cash flow.

(b) Each annual financial statement shall be accompanied by such accountant’s certificate certifying such annual financial statement.

(c) Annually within thirty (30) days following the end of each of the Loan Parties’ Fiscal years, the Borrowers’ Representative shall furnish the Administrative Agent with an updated Business Plan for the current Fiscal year which Business Plan shall include, at a minimum, a balance sheet, income statement, cash flows, and availability model each on a monthly basis for the following twelve (12) month period.

(d) Documents required to be delivered pursuant to this Section 5.7 and Sections 5.5 and 5.6 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date: (i) on which the Borrowers’ Representative posts such documents, or provides a link thereto, on the Borrowers’ Representative’s website on the Internet at the website address from time to time provided by the Borrowers’ Representative to the Administrative Agent; or (ii) on which such documents are posted on the Borrowers’ Representative’s behalf on an Internet or intranet website, if any, to which each Revolving Credit Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrowers’ Representative shall deliver paper copies of such documents to the Administrative Agent or any

 

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Revolving Credit Lender that requests the Borrowers’ Representative to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Revolving Credit Lender and (ii) the Borrowers’ Representative shall notify the Administrative Agent and each Revolving Credit Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Loan Parties with any such request for delivery, and each Revolving Credit Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

5.8. COMPLIANCE CERTIFICATES. The Borrowers’ Representative shall cause the Borrowers’ Representative’s Chief Executive Officer, its President or its Chief Financial Officer of the Borrowers’ Representative, in each instance, to provide such Person’s certificate, in the form annexed hereto as EXHIBIT 5.8 (each such certificate, a “Compliance Certificate”), with those monthly, quarterly, and annual statements to be furnished pursuant to this Agreement, which Compliance Certificate shall:

(a) Indicate that the subject financial statement was prepared in accordance with GAAP consistently applied and presents fairly the Consolidated financial condition of the Loan Parties at the close of, and the results of the Loan Parties’ operations and cash flows for, the period(s) covered thereby, subject, however to the following:

(i) Usual year-end adjustments (this exception shall not be included in the Compliance Certificate which accompanies the Loan Parties’ annual financial statement).

(ii) Material Accounting Changes.

(b) Indicate either that (i) no Default has occurred and is continuing, or (ii) if a Default has occurred and is continuing, its nature (in reasonable detail) and the steps (if any) being taken or contemplated by the Loan Parties to be taken on account thereof.

5.9. INVENTORIES, APPRAISALS, AND AUDITS.

(a) The Administrative Agent may observe each inventory and any cycle count of the Collateral which is undertaken on behalf of any Loan Party. The Loan Parties shall conduct not less than one (1) physical inventory per Store and one (1) cycle count per warehouse, per Fiscal year. The Administrative Agent does not contemplate undertaking or requiring any additional physical inventories or cycle counts by or of the Loan Parties; provided, however, the Administrative Agent may do so if a Default has occurred and is continuing.

(i) On the Administrative Agent’s request, the Borrowers’ Representative shall provide the Administrative Agent with a copy of the preliminary

 

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results of each such physical inventory and cycle count (as well as of any other physical inventory or cycle count undertaken by any Loan Party) within ten (10) days following the completion of such physical inventory and such cycle count.

(ii) The Borrowers’ Representative, within thirty (30) days following the completion of such physical inventory and such cycle count, shall provide the Administrative Agent with a reconciliation of the results of each such physical inventory and cycle count (as well as of any other physical inventory or cycle count undertaken by any Loan Party) and shall post such results to the Loan Parties’ stock ledger and, as applicable to the Loan Parties’ other financial books and records.

(iii) The Administrative Agent, in its discretion, if a Default has occurred and is continuing, may cause such additional physical inventories and cycle counts to be taken as the Administrative Agent determines (each, at the expense of the Loan Parties).

(b) The Administrative Agent may obtain appraisals of the Collateral conducted by such appraisers as are satisfactory to the Administrative Agent. As of the Closing Date, the Administrative Agent shall be entitled to obtain one (1) appraisal (at the Loan Parties’ expense) of the Loan Parties’ Inventory during any twelve (12) month period during which this Agreement is in effect, conducted by such appraisers as are satisfactory to the Administrative Agent; provided that, if Excess Availability at any time is less than fifty percent (50%) of the Loan Cap, the Loan Parties acknowledge that the Administrative Agent may, in its discretion, undertake up to two (2) appraisals of the Loan Parties’ Inventory in the following twelve (12) month period at the Loan Parties’ expense; provided further that, if Excess Availability at any time is less than fifteen percent (15%) of the Loan Cap, the Loan Parties acknowledge that the Administrative Agent may, in its discretion, undertake up to three (3) appraisals of the Loan Parties’ Inventory in the following twelve (12) month period at the Loan Parties’ expense. In addition, the Administrative Agent may obtain additional appraisals at its own expense; provided, however, following the occurrence of an Event of Default, the Administrative Agent may cause additional appraisals to be undertaken at the Loan Parties’ expense.

(c) The Administrative Agent may obtain commercial finance audits of the Loan Parties’ books and records, conducted by such examiners as are satisfactory to the Administrative Agent. As of the Closing Date, the Administrative Agent shall be entitled to conduct one (1) commercial finance audit (at the Loan Parties’ expense) of the Loan Parties’ books and records during any twelve (12) month period during which this Agreement is in effect, conducted by such examiners as are satisfactory to the Administrative Agent; provided that, if Excess Availability at any time is less than fifty percent (50%) of the Loan Cap, the Loan Parties acknowledge that the Administrative Agent may, in its discretion, undertake up to two (2) commercial finance audits of the Loan Parties’ books and records in the following twelve (12) month period at the Loan Parties’ expense; provided further that, if Excess Availability at any time is less than fifteen percent (15%) of the Loan Cap, the Loan Parties acknowledge that the Administrative Agent may, in its discretion, undertake up to three (3) commercial finance audits of the Loan Parties’ books and records in the following twelve (12) month period at the Loan Parties’ expense. In addition, the Administrative Agent may obtain

 

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additional commercial finance audits at its own expense; provided, however, following the occurrence of an Event of Default, the Administrative Agent may cause additional commercial finance audits to be undertaken at the Loan Parties’ expense.

5.10. ADDITIONAL FINANCIAL INFORMATION.

(a) In addition to all other information required to be provided pursuant to this Article 5, the Borrowers’ Representative promptly shall provide the Administrative Agent with such other and additional information concerning the Loan Parties (and any guarantor of the Liabilities), the Collateral, the operation of the Loan Parties’ business, and the Loan Parties’ financial condition, including original counterparts of financial reports and statements, as the Administrative Agent reasonably may from time to time request, in its reasonable discretion.

(b) Each Loan Party recognizes that all appraisals, inventories, analyses, financial information, and other materials which the Administrative Agent may obtain, develop, or receive with respect to the Loan Parties are confidential to the Administrative Agent and that, except with the consent of the Administrative Agent, no Loan Party is entitled to receipt of any of such appraisals, inventories, analyses, financial information, and other materials, nor copies or extracts thereof or therefrom.

5.11. EXCESS AVAILABILITY COVENANT. The Loan Parties shall maintain Excess Availability at all times of not less than the greater of (a) ten percent (10%) of the Loan Cap or (b) $5,000,000.00.

ARTICLE 6 - USE OF COLLATERAL:

6.1. USE OF INVENTORY COLLATERAL.

(a) No Loan Party shall engage in any of the following with respect to its Inventory:

(i) Any sale other than for fair consideration in the conduct of the Loan Parties’ business in the ordinary course.

(ii) Sales or other dispositions to creditors.

(iii) Sales or other dispositions in bulk, except for Permitted Asset Dispositions.

(iv) Sales of any Collateral in breach of any provision of this Agreement.

(b) No sale of Inventory shall be on consignment, approval, or under any other circumstances such that, with the exception of the Loan Parties’ customary return policy applicable to the return of Inventory purchased by the Loan Parties’ retail customers in the ordinary course, such Inventory may be returned to a Loan Party without the consent of the

 

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Administrative Agent, unless, in the case of Inventory consigned by a Loan Party to another Person, (i) such Loan Party has filed against the third party consignee a UCC financing statement or such other registration (which UCC financing statement or other registration shall be assigned to the Collateral Agent) as the Administrative Agent may reasonably determine to be necessary to perfect and protect its security interest in such consigned Inventory, and (ii) as to which such Loan Party has delivered to each secured party of the third party consignee (if any) notice of such Loan Party’s interest in such Inventory to the extent required pursuant to the UCC or other Applicable Law.

6.2. INVENTORY QUALITY. All Inventory now owned or hereafter acquired by a Loan Party is and will be of good and merchantable quality and free from defects (other than defects within customary trade tolerances), other than Inventory owned or acquired for outlet stores, which in the ordinary course sell manufacturer’s overruns, discontinued lines, and irregulars.

6.3. ADJUSTMENTS AND ALLOWANCES. Each Loan Party may grant such allowances or other adjustments to that Loan Party’s Account Debtors (exclusive of extending the time for payment of any material Account or Account Receivable, which shall not be done without first obtaining the Administrative Agent’s prior written consent in each instance) as that Loan Party may reasonably deem to accord with sound business practice, provided, however, at any time that a Default has occurred and is continuing, the authority granted the Loan Parties pursuant to this Section 6.3 may be limited or terminated by the Administrative Agent at any time in the Administrative Agent’s reasonable discretion.

ARTICLE 7 - CASH MANAGEMENT. PAYMENT OF LIABILITIES:

7.1. DEPOSITORY ACCOUNTS.

(a) Annexed hereto as EXHIBIT 7.1 is a schedule of all present DDA’s, which schedule includes, with respect to each depository: (i) the name and address of that depository; (ii) the account number(s) of the account(s) maintained with such depository; and (iii) a contact person at such depository.

(b) The Borrowers’ Representative shall deliver to the Administrative Agent, as a condition to the effectiveness of this Agreement, a Blocked Account Agreement with each Blocked Account Bank.

(c) No Loan Party will establish any deposit account other than an Exempt DDA, unless the Borrowers’ Representative provides the Administrative Agent with notice thereof and, if required pursuant to the terms of this Agreement, a Blocked Account Agreement.

 

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7.2. CREDIT CARD RECEIPTS.

(a) Annexed hereto as EXHIBIT 7.2 is a schedule which describes all arrangements to which each Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for sales by such Loan Party.

(b) The Borrowers’ Representative shall deliver to the Administrative Agent, as a condition to the effectiveness of this Agreement, notification, executed on behalf of the relevant Loan Party, to each of such Loan Party’s credit card clearinghouses and processors (in form satisfactory to the Administrative Agent), which notice provides that payment of all credit card charges submitted by any Loan Party to that clearinghouse or processor and any other amount payable to any Loan Party by such clearinghouse or processor shall be directed to (i) a Blocked Account or (ii) after the occurrence and during the continuance of a Cash Dominion Event, the Administrative Agent’s Account or as otherwise designated from time to time by the Administrative Agent. No Loan Party shall change such direction or designation except upon and with the prior written consent of the Administrative Agent.

7.3. THE ADMINISTRATIVE AGENTS, BLOCKED, AND OPERATING ACCOUNTS.

(a) The following checking accounts have been or will be established (and are so referred to herein):

(i) The “Administrative Agent’s Account” (so referred to herein): Established by the Administrative Agent with Bank of America.

(ii) The “Blocked Accounts” (so referred to herein): The deposit accounts from time to time established by any Loan Party with a Blocked Account Bank in respect of which the Agent has required a Blocked Account Agreement pursuant to the terms of this Agreement.

(iii) The “Operating Account” (so referred to herein): Established by the Borrowers’ Representative with Bank of America.

(b) The contents of each DDA and of the Blocked Accounts constitutes Collateral and Proceeds of Collateral. The contents of the Administrative Agent’s Account constitutes the Administrative Agent’s property.

(c) The Loan Parties shall pay all fees and charges of, and maintain such impressed balances as may be required by the depository in which any account is opened as required hereby (even if such account is opened by and/or is the property of the Administrative Agent).

7.4. PROCEEDS AND COLLECTIONS.

(a) All Receipts and all other cash proceeds of any sale or other disposition of any of each Loan Party’s assets:

(i) Constitute Collateral and proceeds of Collateral.

 

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(ii) Shall be held in trust by the Loan Parties for the Administrative Agent.

(iii) Shall not be commingled with any of any Loan Party’s other funds.

(iv) Shall be deposited in a DDA or a Blocked Account and, after the occurrence and during the continuance of a Cash Dominion Event, shall be transferred only to a Blocked Account and/or the Administrative Agent’s Account.

(b) The Borrowers’ Representative shall cause by ACH or wire transfer to a Blocked Account, no less frequently than daily (and whether or not there is then an outstanding balance in the Loan Account), the following:

(i) The entire contents (net of any minimum required balance not in any event to exceed $2500) of each DDA (but excluding any Exempt DDA).

(ii) The proceeds of all credit card charges not otherwise provided for pursuant hereto.

So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts.

(c) After the occurrence and during the continuance of a Cash Dominion Event, the Borrowers’ Representative shall cause by ACH or wire transfer to the Administrative Agent’s Account, no less frequently than daily (and whether or not any Liabilities are then outstanding), of the entire ledger balance (net of any minimum required balance not in any event to exceed $2500) of each Blocked Account.

(d) In the event that, notwithstanding the provisions of this Section 7.4, any Loan Party receives or otherwise has dominion and control of any Receipts, or any other proceeds or collections of any Collateral, after the occurrence and during the continuance of a Cash Dominion Event, such Receipts, proceeds, and collections shall be held in trust by that Loan Party for the Administrative Agent, shall not be commingled with any of that Loan Party’s other funds or deposited in any account of any Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Administrative Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.

7.5. PAYMENT OF LIABILITIES.

(a) On each Business Day, the Administrative Agent shall apply the then collected balance of the Administrative Agent’s Account (net of fees charged, and of such impressed balances as may be required by the bank at which the Administrative Agent’s Account is maintained) first, against the SwingLine Loans (if any), and, second, against the unpaid balance of the Loan Account. For purposes of the calculation of interest on the unpaid principal balance of the Loan Account, such payment shall be deemed to have been made one (1) Business Day after such transfer, and further provided that until the occurrence, and during

 

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the continuance, of an Event of Default, unless the Borrower Representative otherwise instructs the Administrative Agent, the balance of the Administrative Agent’s Account shall not be applied to any LIBOR Loans until the end of the applicable Interest Period therefor.

(b) The following rules shall apply to deposits and payments under and pursuant to this Section 7.5:

(i) Funds shall be deemed to have been deposited to the Administrative Agent’s Account on the Business Day on which deposited, provided that such deposit is delivered to the Administrative Agent by 2:00 PM on that Business Day.

(ii) Funds paid to the Administrative Agent, other than by deposit to the Administrative Agent’s Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that such payment is delivered to the Administrative Agent by 2:00 PM on that Business Day.

(iii) If a deposit to the Administrative Agent’s Account (Section 7.5(b)(i)) or payment (Section 7.5(b)(ii)) is not delivered to the Administrative Agent until after 2:00 PM on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 AM on the then next Business Day.

(iv) All deposits to the Administrative Agent’s Account and other payments to the Administrative Agent are subject to clearance and collection.

(c) The Administrative Agent shall transfer to the Operating Account any surplus in the Administrative Agent’s Account remaining after the application towards the Liabilities referred to in Section 7.5(a) above (less those amount which are to be netted out, as provided therein); provided, however, in the event that

(i) a Default has occurred and is continuing; and

(ii) one or more L/C’s are then outstanding;

then the Administrative Agent may establish a funded reserve of up to 103% of the aggregate of the Stated Amounts of such L/C’s. Such funded reserve shall either be (i) returned to the Borrowers’ Representative at such time that no Default has occurred and is continuing or (ii) applied towards the Liabilities following Acceleration.

7.6. THE OPERATING ACCOUNT. Except as otherwise specifically provided in, or permitted by, this Agreement, all checks shall be drawn by the Borrowers’ Representative upon, and other disbursements shall be made by the Borrowers’ Representative solely from, the Operating Account.

 

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ARTICLE 8 - GRANT OF SECURITY INTEREST:

8.1. GRANT OF SECURITY INTEREST. To secure the Borrowers’ prompt, punctual, and faithful performance of all and each of the Liabilities, each Borrower hereby grants to the Collateral Agent, for the benefit of the Secured Parties as their interests may appear herein, a continuing security interest in and to, and assigns to the Collateral Agent, for the benefit of the Secured Parties as their interests may appear herein the following, and each item thereof, whether now owned or now due, or in which that Borrower has an interest, or hereafter acquired, arising, or to become due, or in which that Borrower obtains an interest, and all products, Proceeds, substitutions, and accessions of or to any of the following (all of which, together with any other property in which the Collateral Agent may in the future be granted a security interest, is referred to herein as the “Collateral”; any of the following terms not defined in this Agreement shall have the meanings attributed thereto in the UCC):

(a) All Accounts and accounts receivable.

(b) All Inventory.

(c) All General Intangibles.

(d) All Equipment.

(e) All Goods.

(f) All Farm Products.

(g) All Fixtures.

(h) All Chattel Paper.

(i) All Letter-of-Credit Rights.

(j) All Payment Intangibles.

(k) All Supporting Obligations.

(l) All books, records, and information relating to the Collateral and/or to the operation of each Borrower’s business, and all rights of access to such books, records, and information, and all property in which such books, records, and information are stored, recorded, and maintained.

(m) All Leasehold Interests.

(n) All Investment Property, Instruments, Documents, Deposit Accounts, money, policies and certificates of insurance, deposits, impressed accounts, compensating balances, cash, or other property.

(o) Commercial Tort Claims

 

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(p) All insurance proceeds, refunds, and premium rebates, including, without limitation, proceeds of fire and credit insurance, whether any of such proceeds, refunds, and premium rebates arise out of any of the foregoing (8.1(a) through 8.1(n)) or otherwise.

(q) All liens, guaranties, rights, remedies, and privileges pertaining to any of the foregoing (8.1(a) through 8.1(p)), including the right of stoppage in transit.

Notwithstanding anything in this Agreement to the contrary, with respect to each item of Collateral constituting Equipment subject to a Capital Lease, or constituting an agreement, license, permit or other instrument of a Borrower, such item shall be subject to the security interest created hereby only to the extent that the granting of such security interest, under the terms of such Capital Lease, agreement, license, permit or other instrument, or as provided by law, does not cause any default under or termination of such Capital Lease, agreement, license, permit or other instrument or the loss of any material right of a Borrower thereunder; provided, however, that in no event shall the foregoing be construed to exclude from the security interest created by this Agreement, proceeds or products of any such Capital Lease, agreement, license, permit or other instrument of a Borrower or any accounts receivable or the right to payments due or to become due a Borrower under any such agreement or other instrument.

8.2. EXTENT AND DURATION OF SECURITY INTEREST; NOTICE.

(a) The security interest created and granted herein is in addition to, and supplemental of, any security interest previously granted by any Borrower to the Collateral Agent and shall continue in full force and effect applicable to all Liabilities until both (a) all Liabilities have been paid and/or satisfied in full and (b) the security interest created herein is specifically terminated in writing by a duly authorized officer of the Collateral Agent.

(b) It is intended that the Collateral Interests created herein extend to and cover all assets of each Borrower.

(c) If a Borrower shall at any time acquire a Commercial Tort Claim, the Borrowers’ Representative shall promptly notify the Administrative Agent in writing of the details thereof and the Borrower shall take such actions as the Collateral Agent shall request in order to grant to the Collateral Agent, for the benefit of the Revolving Credit Lenders as their interests may appear herein, a perfected and first priority security interest therein and in the Proceeds thereof.

ARTICLE 9 - COLLATERAL AGENT AS ATTORNEY-IN-FACT:

9.1. APPOINTMENT AS ATTORNEY-IN-FACT. Each Borrower hereby irrevocably constitutes and appoints the Collateral Agent (acting through any of its officers or representatives) as that Borrower’s true and lawful attorney, with full power of substitution, following the occurrence of an Event of Default, to convert the Collateral into cash at the sole risk, cost, and expense of that Borrower, but for the sole benefit of the Agents and the Secured Parties. The rights and powers granted the Collateral Agent by this appointment include but are not limited to the right and power to:

(a) Prosecute, defend, compromise, or release any action relating to the Collateral.

 

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(b) Sign change of address forms to change the address to which each Borrower’s mail is to be sent to such address as the Collateral Agent shall designate; receive and open each Borrower’s mail; remove any Receivables Collateral and Proceeds of Collateral therefrom and turn over the balance of such mail either to the Borrowers’ Representative or to any trustee in bankruptcy or receiver of the Borrowers’ Representative, or other legal representative of a Borrower whom the Collateral Agent determines to be the appropriate person to whom to so turn over such mail.

(c) Endorse the name of the relevant Borrower in favor of the Collateral Agent upon any and all checks, drafts, notes, acceptances, or other items or instruments; sign and endorse the name of the relevant Borrower on, and receive as secured party, any of the Collateral, any invoices, schedules of Collateral, freight or express receipts, or bills of lading, storage receipts, warehouse receipts, or other documents of title respectively relating to the Collateral.

(d) Sign the name of the relevant Borrower on any notice to that Borrower’s Account Debtors or verification of the Receivables Collateral; sign the relevant Borrower’s name on any Proof of Claim in Bankruptcy against Account Debtors, and on notices of lien, claims of mechanic’s liens, or assignments or releases of mechanic’s liens securing the Accounts.

(e) Take all such action as may be necessary to obtain the payment of any letter of credit and/or banker’s acceptance of which any Borrower is a beneficiary.

(f) Repair, manufacture, assemble, complete, package, deliver, alter or supply goods, if any, necessary to fulfill in whole or in part the purchase order of any customer of each Borrower.

(g) Use, license or transfer any or all General Intangibles of each Borrower.

9.2. NO OBLIGATION TO ACT. The Collateral Agent shall not be obligated to do any of the acts or to exercise any of the powers authorized by Section 9.1 herein, but if the Collateral Agent elects to do any such act or to exercise any of such powers, it shall not be accountable for more than it actually receives as a result of such exercise of power, and shall not be responsible to any Borrower for any act or omission to act except for any act or omission to act as to which there is a final determination made in a judicial proceeding (in which proceeding the Collateral Agent has had an opportunity to be heard) which determination includes a specific finding that the subject act or omission to act had been grossly negligent or in actual bad faith or constituted willful misconduct.

 

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ARTICLE 10 - EVENTS OF DEFAULT:

The occurrence of any event described in this Article 10 respectively shall constitute an “Event of Default” herein.

10.1. FAILURE TO PAY THE REVOLVING CREDIT FACILITY. The failure by any Loan Party to pay when due any principal of, interest on, or fees in respect of, the Revolving Credit Facility.

10.2. FAILURE TO MAKE OTHER PAYMENTS. The failure by any Loan Party to pay within five (5) Business Days when due (or upon demand, if payable on demand) any payment Liability other than any payment liability on account of the principal of, or interest on, or fees in respect of, the Revolving Credit Facility.

10.3. FAILURE TO PERFORM COVENANT OR LIABILITY (NO GRACE PERIOD). The failure by any Loan Party to promptly, punctually, faithfully and timely perform, discharge, or comply with any covenant or Liability not otherwise described in Section 10.1 or Section 10.2 hereof, and included in any of the following provisions hereof:

 

Section

  

Relates to            :

4.5    Location of Collateral
4.7(a)    Title to Assets
4.8    Indebtedness
4.9    Insurance Policies
4.20    Dividends, Investments and Other Entity Actions
4.26    Affiliate Transactions
4.27    Further Assurances
5.11    Excess Availability Covenant
6.1    Use of Inventory Collateral
Article 7    Cash Management (except if the failure to comply is as a result of force majeure or through no fault of the Loan Parties)

10.4. FINANCIAL REPORTING REQUIREMENTS. The failure by any Loan Party to promptly, punctually, faithfully and timely perform, discharge, or comply with the financial reporting requirements included in Article 5, subject, however, to the following limited number of grace periods applicable to certain of those requirements:

 

REPORT / STATEMENT

   REQUIRED
BY
SECTION
  

GRACE PERIOD

  

NUMBER OF GRACE PERIODS

Borrowing Base Certificates

   5.4    One Business Day    Three per Fiscal Quarter

Monthly Reports (30 Days)

   5.5    Three Business Days    Three in any 12 months

 

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10.5. FAILURE TO PERFORM COVENANT OR LIABILITY (GRACE PERIOD). The failure by any Loan Party, within fifteen (15) days following the earlier of any Loan Party’s knowledge of a breach of any covenant or Liability not described in any of Sections 10.1, 10.2, 10.3, or 10.4, or of the Borrowers’ Representative’s receipt of written notice from the Administrative Agent of the breach of any such covenants or Liabilities.

10.6. MISREPRESENTATION. The determination by the Administrative Agent that any representation or warranty at any time made by any Loan Party to any Agent or any Revolving Credit Lender was not true or complete in all material respects when given.

10.7. ACCELERATION OF OTHER DEBT; BREACH OF LEASE. The occurrence of any event such that any Indebtedness of any Loan Party in excess of $5,000,000.00 to any creditor other than the Agent or any Revolving Credit Lender could be accelerated or, without the consent of a Loan Party, Leases with aggregate monthly rents of at least $1,000,000.00 could be terminated prior to the stated termination date thereof (whether or not the subject creditor or lessor takes any action on account of such occurrence).

10.8. DEFAULT UNDER OTHER AGREEMENTS. The occurrence of any breach or default under any agreement between the Agent or any Revolving Credit Lender and any Loan Party or instrument or paper given the Agent or any Revolving Credit Lender by any Loan Party not constituting a Loan Document, whether such agreement, instrument, or paper now exists or hereafter arises, with respect to Indebtedness in excess of $5,000,000.00 (notwithstanding that the Agent or the subject Revolving Credit Lender may not have exercised its rights upon default under any such other agreement, instrument or paper).

10.9. UNINSURED CASUALTY LOSS. The occurrence of any uninsured loss, theft, damage, or destruction of or to any material portion of the Collateral.

10.10. ATTACHMENT; JUDGMENT; RESTRAINT OF BUSINESS.

(a) The service of process upon any Agent or any Revolving Credit Lender or any Participant of a court order or order of any other applicable governmental authority attaching, by trustee, mesne, or other process, any funds of any Loan Party on deposit with, or assets of any Loan Party in the possession of, that Agent or that Revolving Credit Lender or such Participant.

 

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(b) The entry of judgments against any Loan Party, to the extent not covered by insurance (subject to a reasonable deductible) aggregating more than $750,000, which judgments are not satisfied (if a money judgment) or appealed from (with execution or similar process stayed) within thirty (30) days of entry.

(c) The entry of any order or the imposition of any other process having the force of law, the effect of which is to restrain in any material way the conduct by any Loan Party of its business in the ordinary course.

10.11. INDICTMENT - FORFEITURE. The indictment of, or institution of any legal process or proceeding against, any Loan Party, under any federal, state, municipal, and other civil or criminal statute, rule, regulation, order, or other requirement having the force of law where the relief, penalties, or remedies sought or available include the forfeiture of more than a de minimis part of the property of that Loan Party and/or the imposition of any stay or other order, the effect of which could be to restrain in any material way the conduct by any Loan Party of its business in the ordinary course.

10.12. CHALLENGE TO LOAN DOCUMENTS.

(a) Any challenge by or on behalf of the Borrowers’ Representative, any Loan Party to the validity of any Loan Document or the applicability or enforceability of any Loan Document strictly in accordance with the subject Loan Document’s terms or which seeks to void, avoid, limit, or otherwise adversely affect any security interest created by or in any Loan Document or any payment made pursuant thereto.

(b) Any determination by any court or any other judicial or government authority that any Loan Document is not enforceable strictly in accordance with the subject Loan Document’s terms or which voids, avoids, limits, or otherwise adversely affects any security interest created by any Loan Document or any payment made pursuant thereto.

10.13. CHANGE IN CONTROL. Any Change in Control.

10.14. BUSINESS FAILURE. Any act by, against or relating to any Loan Party, or its property or assets, which act constitutes the determination by any Loan Party to initiate or acquiesce to: a program of partial or total self-liquidation; an application for, consent to, or sufferance of the appointment of a receiver, trustee, or other person, pursuant to court action or otherwise, with respect to all or any part of any Loan Party’s property; the granting of any trust mortgage or execution of an assignment for the benefit of the creditors of any Loan Party; any other voluntary or involuntary liquidation or extension of debt agreement for any Loan Party; the offering by, or entering into by, any Loan Party of any composition, extension, or any other arrangement seeking relief from or extension of the debts of any Loan Party; or the initiation of any judicial or non-judicial proceeding or agreement by, against, or including any Loan Party which seeks or intends to

 

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accomplish a reorganization or arrangement with creditors; and/or the initiation by or on behalf of any Loan Party of the liquidation or winding up of all or any part of any Loan Party’s business or operations.

10.15. BANKRUPTCY. The failure by any Loan Party to generally pay the debts of that Loan Party as they mature; adjudication of bankruptcy or insolvency relative to any Loan Party; the entry of an order for relief or similar order with respect to any Loan Party in any proceeding pursuant to the Bankruptcy Code or any other federal bankruptcy law; the filing of any complaint, application, or petition by any Loan Party initiating any matter in which any Loan Party is or may be granted any relief from the debts of that Loan Party pursuant to the Bankruptcy Code or any other insolvency statute or procedure; the filing of any complaint, application, or petition against any Loan Party initiating any matter in which that Loan Party is or may be granted any relief from the debts of that Loan Party pursuant to the Bankruptcy Code or any other insolvency statute or procedure, which complaint, application, or petition is not timely contested in good faith by that Loan Party by appropriate proceedings or, if so contested, is not dismissed within ninety (90) days of when filed.

10.16. TERMINATION OF BUSINESS. Unless subject to the prior written consent of the Agent, the determination of the Loan Parties, whether by vote of the Loan Parties’ board of directors or otherwise to: suspend the operation of the Loan Parties’ business in the ordinary course, liquidate all or a material portion of the Loan Parties’ assets or Stores, or employ an agent or other third party to conduct any so-called store closing, store liquidation or “Going-Out-Of-Business” sales (other than in connection with a Permitted Asset Disposition).

10.17. PAYMENT OF OTHER INDEBTEDNESS. The Loan Parties shall prepay or discharge any Indebtedness prior to its maturity date except as expressly permitted hereunder.

10.18. DEFAULT BY GUARANTOR; TERMINATION OF GUARANTY. The occurrence of any Guarantor Default and/or the termination or attempted termination of any Guaranty Agreement by any Person.

10.19. MATERIAL ADVERSE CHANGE. An event shall have occurred or failed to occur, which occurrence or failure is or could have a materially adverse effect upon the financial condition of Casual Male and its Subsidiaries when compared with such financial condition as of July 31, 2010.

 

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ARTICLE 11 - RIGHTS AND REMEDIES UPON DEFAULT:

11.1. ACCELERATION. Upon the occurrence of any Event of Default, the Administrative Agent may (and on the issuance of Acceleration Notice(s) requisite to the causing of Acceleration, the Administrative Agent shall) declare all Indebtedness of the Loan Parties to the Revolving Credit Lenders to be immediately due and payable and may exercise all of the Administrative Agent’s Rights and Remedies (and the Collateral Agent may likewise exercise all of its rights and remedies upon default) as the Administrative Agent from time to time thereafter determines as appropriate.

11.2. RIGHTS OF ENFORCEMENT. The Collateral Agent shall have all of the rights and remedies of a secured party upon default under the UCC, in addition to which the Collateral Agent shall have all and each of the following rights and remedies:

(a) To give notice to any bank at which any DDA or Blocked Account is maintained and in which Proceeds of Collateral are deposited, to turn over such Proceeds directly to the Collateral Agent.

(b) To give notice to any customs broker of any of the Loan Parties to follow the instructions of the Collateral Agent as provided in any written agreement or undertaking of such broker in favor of the Collateral Agent.

(c) To collect the Receivables Collateral with or without the taking of possession of any of the Collateral.

(d) To take possession of all or any portion of the Collateral.

(e) To sell, lease, or otherwise dispose of any or all of the Collateral, in its then condition or following such preparation or processing as the Collateral Agent deems advisable and with or without the taking of possession of any of the Collateral.

(f) Subject to the terms of store leases and provisions of applicable law, to conduct one or more going out of business sales which include the sale or other disposition of the Collateral.

(g) To apply the Receivables Collateral or the Proceeds of the Collateral towards (but not necessarily in complete satisfaction of) the Liabilities.

(h) To exercise all or any of the rights, remedies, powers, privileges, and discretions under all or any of the Loan Documents.

11.3. SALE OF COLLATERAL.

(a) Any sale or other disposition of the Collateral may be at public or private sale upon such terms and in such manner as the Collateral Agent deems advisable, having due regard to compliance with any statute or regulation which might affect, limit, or apply to the Collateral Agent’s disposition of the Collateral.

 

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(b) The Collateral Agent, in the exercise of the Collateral Agent’s rights and remedies upon default, may, subject to the terms of store leases and provisions of applicable law, conduct, or may require the Loan Parties to conduct, one or more going out of business sales, in the Collateral Agent’s own right or by one or more agents and contractors. Subject to the terms of store leases such sale(s) may be conducted upon any premises owned, leased, or occupied by any Loan Party. Subject to applicable law, the Collateral Agent and any such agent or contractor, in conjunction with any such sale, may augment the Inventory with other goods (all of which other goods shall remain the sole property of the Collateral Agent or such agent or contractor). The Borrowers shall have no responsibility or liability for any such augmented inventory. Any amounts realized from the sale of such goods which constitute augmentations to the Inventory (net of an allocable share of the costs and reasonable expenses incurred in their disposition) shall be the sole property of the Collateral Agent or such agent or contractor and neither any Loan Party nor any Person claiming under or in right of any Loan Party shall have any interest therein. The proceeds of any such going out of business sale which is conducted by a Loan Party at the request of the Collateral Agent shall be first applied to the direct costs of such sale.

(c) Unless the Collateral is perishable or threatens to decline speedily in value, or is of a type customarily sold on a recognized market (in which event the Collateral Agent shall provide the Borrowers’ Representative such notice as may be practicable under the circumstances), the Collateral Agent shall give the Borrowers’ Representative at least ten (10) days prior written notice of the date, time, and place of any proposed public sale, and of the date after which any private sale or other disposition of the Collateral may be made. Each Borrower agrees that such written notice shall satisfy all requirements for notice to that Borrower which are imposed under the UCC or other applicable law with respect to the exercise of the Collateral Agent’s rights and remedies upon default.

(d) The Collateral Agent, the Administrative Agent, and any Revolving Credit Lender may purchase the Collateral, or any portion of it at any sale held under this Article.

(e) If any of the Collateral is sold, leased, or otherwise disposed of by the Collateral Agent on credit, the Liabilities shall not be deemed to have been reduced as a result thereof unless and until payment is finally received thereon by the Collateral Agent.

(f) The Collateral Agent shall turn over to the Administrative Agent the proceeds of the exercise by the Collateral Agent of its rights and remedies under this Article 11. The Administrative Agent shall apply the proceeds of the Collateral Agent’s exercise of its rights and remedies upon default pursuant to this Article 11 in accordance with Sections 13.5 and 13.6.

11.4. OCCUPATION OF BUSINESS LOCATION. In connection with the Collateral Agent’s exercise of the Collateral Agent’s rights under this Article 11, the Collateral Agent may enter upon, occupy, and use any premises owned or occupied by each Loan Party, and may exclude each Loan Party from such premises or portion

 

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thereof as may have been so entered upon, occupied, or used by the Collateral Agent. The Collateral Agent shall not be required to remove any of the Collateral from any such premises upon the Collateral Agent’s taking possession thereof, and may render any Collateral unusable to the Loan Parties. In no event shall the Collateral Agent be liable to any Loan Party for use or occupancy by the Collateral Agent of any premises pursuant to this Article 11 nor for any charge (such as wages for any Loan Party’s employees and utilities) incurred in connection with the Collateral Agent’s exercise of the Collateral Agent’s Rights and Remedies.

11.5. GRANT OF NONEXCLUSIVE LICENSE. Except to the extent prohibited by a Borrower’s contractual obligations, which prohibition has been disclosed to the Administrative Agent, each Borrower hereby grants to the Collateral Agent a royalty free, nonexclusive and irrevocable license to use, apply, and affix any trademark, trade name, logo, or the like in which any Borrower now or hereafter has rights, such license being with respect to the Collateral Agent’s exercise of the rights hereunder including, without limitation, in connection with any completion of the manufacture of Inventory or sale or other disposition of Inventory.

11.6. ASSEMBLY OF COLLATERAL. The Collateral Agent may require any Borrower to assemble the Collateral and make it available to the Collateral Agent at the Loan Parties’ sole risk and expense at a place or places which are reasonably convenient to both the Collateral Agent and the Borrowers’ Representative.

11.7. RIGHTS AND REMEDIES. The rights, remedies, powers, privileges, and discretions of the Administrative Agent hereunder (herein, the “Agents’ Rights and Remedies”) shall be cumulative and not exclusive of any rights or remedies which it would otherwise have. No delay or omission by an Agent in exercising or enforcing any of the Agents’ Rights and Remedies shall operate as, or constitute, a waiver thereof. No waiver by an Agent of any Event of Default or of any default under any other agreement shall operate as a waiver of any other default hereunder or under any other agreement. No single or partial exercise of any of the Agents’ Rights or Remedies, and no express or implied agreement or transaction of whatever nature entered into between any Agent and any person, at any time, shall preclude the other or further exercise of the Agents’ Rights and Remedies. No waiver by any Agent of any of the Agents’ Rights and Remedies on any one occasion shall be deemed a waiver on any subsequent occasion, nor shall it be deemed a continuing waiver. The Agents’ Rights and Remedies may be exercised at such time or times and in such order of preference as the Agents may determine. The Agents’ Rights and Remedies may be exercised without resort or regard to any other source of satisfaction of the Liabilities.

ARTICLE 12 - LOAN FUNDINGS AND DISTRIBUTIONS:

12.1. FUNDING PROCEDURES.

(a) The Administrative Agent shall advise each Revolving Credit Lender, no later than 3:00 PM on the date on which any Revolving Credit Loan (other than a SwingLine

 

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Loan) is requested, that such Revolving Credit Loan is to be made. Such advice, in each instance, may be by telephone or facsimile transmission; provided that, if such advice is by telephone, it shall be confirmed in writing. Advice of a Revolving Credit Loan shall include the amount of and interest rate applicable to the subject Revolving Credit Loan.

(b) Subject to that Revolving Credit Lender’s Revolving Credit Dollar Commitment, each Revolving Credit Lender, by no later than the end of business on the day on which the subject Revolving Credit Loan is to be made, shall Transfer that Revolving Credit Lender’s Revolving Credit Percentage Commitment of the subject Revolving Credit Loan to the Administrative Agent.

12.2. SWINGLINE LOANS.

(a) In the event that, when a Revolving Credit Loan is requested, the aggregate unpaid balance of the SwingLine Loan is less than the SwingLine Loan Ceiling, then the SwingLine Lender may in its sole discretion advise the Administrative Agent that the SwingLine Lender has determined to include up to the amount of the requested Revolving Credit Loan as part of the SwingLine Loan. In such event, the SwingLine Lender shall Transfer the amount of the requested Revolving Credit Loan to the Administrative Agent.

(b) The SwingLine Loan shall be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate as follows:

(i) At any time and from time to time, the SwingLine Lender may advise the Administrative Agent that all, or any part, of the SwingLine Loan is to be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate, provided that if the Administrative Agent is not so advised by the SwingLine Lender, then all SwingLine Loans shall be converted no less frequently than weekly to Revolving Credit Loans in which all Revolving Credit Lenders participate.

(ii) At the initiation of a Liquidation, the then entire unpaid principal balance of the SwingLine Loan shall be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate.

In either such event, the Administrative Agent shall advise each Revolving Credit Lender of such conversion as if, and with the same effect as if, such conversion were the making of a Revolving Credit Loan as provided in Section 13.1.

(c) The SwingLine Lender, in separate capacities, may also be one or more Agents or Revolving Credit Lenders.

(d) The SwingLine Lender, in its capacity as SwingLine Lender, is not a “Revolving Credit Lender” for any of the following purposes:

(i) Except as otherwise specifically provided in the relevant Section, any distribution pursuant to Section 13.6.

 

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(ii) Determination of whether the requisite Revolving Credit Lenders have Consented to action requiring such Consent.

12.3. ADMINISTRATIVE AGENTS COVERING OF FUNDINGS:

(a) Each Revolving Credit Lender shall make available to the Administrative Agent, as provided herein, that Revolving Credit Lender’s Revolving Credit Percentage Commitment of the following:

(i) Each Revolving Credit Loan, up to the maximum amount of that Revolving Credit Lender’s Revolving Credit Dollar Commitment of the Revolving Credit Loans.

(ii) Up to the maximum amount of that Revolving Credit Lender’s Revolving Credit Dollar Commitment of each L/C Drawing (to the extent that such L/C Drawing is not “covered” by a Revolving Credit Loan as provided herein).

(b) In all circumstances, the Administrative Agent may:

(i) Assume that each Revolving Credit Lender, subject to Section 12.3(a), timely shall make available to the Administrative Agent that Revolving Credit Lender’s Revolving Credit Percentage Commitment of each Revolving Credit Loan, notice of which is provided pursuant to Section 12.1 and shall make available, to the extent not “covered” by a Revolving Credit Loan, that Revolving Credit Lender’s Revolving Credit Percentage Commitment of any honoring of an L/C.

(ii) In reliance upon such assumption, make available the corresponding amount to the Loan Parties.

(iii) Assume that each Revolving Credit Lender timely shall pay, and shall make available, to the Administrative Agent all other amounts which that Revolving Credit Lender is obligated to so pay and/or make available hereunder or under any of the other Loan Documents.

(c) In the event that, (i) in reliance upon any of such assumptions, the Administrative Agent makes available a Revolving Credit Lender’s Revolving Credit Percentage Commitment of one or more Revolving Credit Loans, or any other amount to be made available hereunder or under any of the other Loan Documents, which amount a Revolving Credit Lender (a “Delinquent Revolving Credit Lender”) fails to provide to the Administrative Agent within one (1) Business Day of written notice of such failure, or (ii) for any reason, any Revolving Credit Lender shall become a Deteriorating Revolving Credit Lender, then:

(i) The amount which had been made available by the Administrative Agent is an “Administrative Agent’s Cover” (and is so referred to herein).

 

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(ii) All interest paid by the Loan Parties on account of the Revolving Credit Loan or coverage of the subject honoring of any L/C which consists of the Administrative Agent’s Cover shall be retained by the Administrative Agent until the Administrative Agent’s Cover, with interest, has been paid. At the option of the Administrative Agent, all other amounts payable to a Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender hereunder (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender, be retained by the Administrative Agent as cash collateral for future funding obligations of such Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender in respect of any Revolving Credit Loan or existing or future participating interest in any SwingLine Loan or L/C.

(iii) The Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender shall pay to the Administrative Agent, on demand, interest at a rate equal to the prevailing Federal Funds Rate on any Administrative Agent’s Cover in respect of that Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender.

(iv) The Administrative Agent shall have succeeded to all rights to payment to which the Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender otherwise would have been entitled hereunder in respect of those amounts paid by or in respect of the Loan Parties on account of the Administrative Agent’s Cover together with interest until it is repaid. Such payments shall be deemed made first towards the amounts in respect of which the Administrative Agent’s Cover was provided and only then towards amounts in which the Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender is then participating. For purposes of distributions to be made pursuant to Section 12.4(a) (which relates to ordinary course distributions) or Section 13.5 (which relates to distributions of proceeds of a Liquidation) below, amounts shall be deemed distributable to a Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender, as applicable (and consequently, to the Administrative Agent to the extent to which the Administrative Agent is then entitled), at the highest level of distribution (if applicable) at which the Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender would otherwise have been entitled to a distribution.

(v) The Deteriorating Revolving Credit Lender’s or Delinquent Revolving Credit Lender’s right to participate in the administration of, or decision-making rights related to, the Liabilities, this Agreement or the other Loan Documents shall be suspended during the pendency of its status as a Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender.

(vi) The non-Deteriorating Revolving Credit Lenders and non-Delinquent Revolving Credit Lenders shall also have the right, but not the obligation, in their respective, sole and absolute discretion, to cause the assignment to one or more of the non-Deteriorating Revolving Credit Lenders and non-Delinquent Revolving Credit

 

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Lenders, without any further action by the Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender for no cash consideration (pro rata, based on the respective Revolving Credit Percentage Commitment of those non-Deteriorating Revolving Credit Lenders and non-Delinquent Revolving Credit Lenders electing to exercise such right), of the Deteriorating Revolving Credit Lender’s or Delinquent Revolving Credit Lender’s Revolving Credit Dollar Commitment to fund future Revolving Credit Loans. Upon any such assignment of the Revolving Credit Dollar Commitment of any Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender to one or more of the non-Deteriorating Revolving Credit Lenders or the non-Delinquent Revolving Credit Lenders, the Deteriorating Revolving Credit Lender’s or Delinquent Revolving Credit Lender’s share in future Revolving Credit Loans and its rights under the Loan Documents with respect thereto shall terminate on the date of assignment, and the Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender shall promptly execute all documents reasonably requested to surrender and transfer such interest, including, if so requested, an Assignment and Acceptance.

(d) The Deteriorating Revolving Credit Lender’s or Delinquent Revolving Credit Lender’s decision-making and participation rights and rights to payments as set forth in clauses (i) through (vi) hereinabove shall be restored only upon the payment by the Delinquent Revolving Credit Lender of the amounts set forth in Section 12.3(f) or upon the cure by the Deteriorating Revolving Credit Lender of its status as a Deteriorating Revolving Credit Lender, as applicable.

(e) A Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender shall not be relieved of any obligation of such Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender hereunder (all and each of which shall constitute continuing obligations on the part of any Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender).

(f) A Delinquent Revolving Credit Lender may cure its status as a Delinquent Revolving Credit Lender by paying the Administrative Agent the aggregate of the following:

(i) The Administrative Agent’s Cover (to the extent not previously repaid by the Loan Parties and retained by the Administrative Agent in accordance with Section 12.3(c)(iv), above) with respect to that Delinquent Revolving Credit Lender.

Plus

(ii) The aggregate of the amount payable under Section 12.3(c)(iii), above (which relates to interest to be paid by that Delinquent Revolving Credit Lender).

Plus

(iii) All such costs and expenses as may be incurred by the Administrative Agent in the enforcement of the Administrative Agent’s rights against such Delinquent Revolving Credit Lender.

 

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(g) Each Deteriorating Revolving Credit Lender and Delinquent Revolving Credit Lender shall indemnify the Administrative Agent and each non-Deteriorating Revolving Credit Lender and non-Delinquent Revolving Credit Lender from and against any and all loss, damage or expenses, including, but not limited to, reasonable attorneys’ fees and funds advanced by the Administrative Agent or by any non-Deteriorating Revolving Credit Lender or non-Delinquent Revolving Credit Lender, on account of a Deteriorating Revolving Credit Lender’s or Delinquent Revolving Credit Lender’s failure to timely fund its Revolving Credit Percentage Commitment of a Revolving Credit Loan or to otherwise perform its obligations under the Loan Documents.

12.4. ORDINARY COURSE DISTRIBUTIONS: REVOLVING CREDIT FACILITY. (This Section 12.4 applies unless the provisions of Section 13.5 (which relates to distributions in the event of a Liquidation) become operative).

(a) Weekly, on such day as may be set from time to time by the Administrative Agent (or more frequently at the Administrative Agent’s option), the Administrative Agent and each Revolving Credit Lender shall settle up on amounts advanced under the Revolving Credit Facility and collected funds received in the Administrative Agent’s Account.

(b) The Administrative Agent shall distribute to the SwingLine Lender and to each Revolving Credit Lender such Person’s respective Pro-Rata share of interest payments on the Loans when actually received and collected by the Administrative Agent (excluding the one Business Day for settlement provided for in Section 7.5(a) which shall be for the account of the Administrative Agent only). For purposes of calculating interest due to a Revolving Credit Lender, that Revolving Credit Lender shall be entitled to receive interest on the actual amount contributed by that Revolving Credit Lender towards the principal balance of the Revolving Credit Loans outstanding during the applicable period covered by the interest payment made by the Loan Parties. Any net principal reductions to the Revolving Credit Loans received by the Administrative Agent in accordance with the Loan Documents during such period shall not reduce such actual amount so contributed, for purposes of calculation of interest due to that Revolving Credit Lender, until the Administrative Agent has distributed to that Revolving Credit Lender its Pro-Rata share thereof.

(c) The Administrative Agent shall distribute fees paid on account of the Revolving Credit Facility, as follows:

(i) L/C Fee (Section 2.19(a)): Pro-Rata to the Revolving Credit Lenders.

(ii) Unused Line Fee (Section 2.16): Pro-Rata to the Revolving Credit Lenders.

(iii) Upfront Fees (Section 2.14): As provided in the Fee Letter.

 

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(d) No Revolving Credit Lender shall have any interest in or right to receive any part of the following:

(i) Any interest which reflects “float” as described in the proviso included in Section 7.5(a), all of which float shall be for the account of the Administrative Agent only.

(ii) The Administrative Agent’s Fee (Section 2.15) to be paid by the Loan Parties to the Administrative Agent.

(iii) Fees described in Section 2.19(b) (which relates to fees associated with, among other things, the issuance of L/C’s): Retained by the Issuer.

(iv) The Arrangement Fee which shall be retained by BAS.

(e) Any amount received by the Administrative Agent or the Collateral Agent as reimbursement for any cost or expense (including without limitation, reasonable attorneys’ fees) shall be distributed by the Administrative Agent to that Person which is entitled to such reimbursement as provided in this Agreement (and if such Person(s) is (are) the Revolving Credit Lenders, Pro-Rata determined as of the date on which the expense, in respect of which such reimbursement is being made, was incurred).

(f) Each distribution pursuant to this Section 12.4 is subject to Section 12.3(c), above (which relates to the effect of the failure of any Revolving Credit Lender to have Transferred to the Administrative Agent any amount which that Revolving Credit Lender is then obligated to so Transfer pursuant to the within Agreement).

ARTICLE 13 - ACCELERATION AND LIQUIDATION:

13.1. ACCELERATION NOTICES.

(a) The Administrative Agent may give the Collateral Agent and Revolving Credit Lenders an Acceleration Notice at any time following the occurrence of an Event of Default.

(b) The Majority Revolving Credit Lenders may give the Administrative Agent an Acceleration Notice at any time following the occurrence of an Event of Default. Such notice may be by multiple counterparts.

13.2. ACCELERATION. Unless stayed by judicial or statutory process, the Administrative Agent shall Accelerate the Liabilities within a commercially reasonable time following:

(a) The Administrative Agent’s giving of an Acceleration Notice to the Collateral Agent and the Revolving Credit Lenders as provided in Section 13.1(a).

 

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(b) The Administrative Agent’s receipt of an Acceleration Notice from the Majority Revolving Credit Lenders, in compliance with Section 13.1(b).

13.3. INITIATION OF LIQUIDATION. Unless stayed by judicial or statutory process, a Liquidation shall be initiated by the Collateral Agent within a commercially reasonable time following Acceleration of the Liabilities.

13.4. ACTIONS AT AND FOLLOWING INITIATION OF LIQUIDATION.

(a) At the initiation of a Liquidation:

(i) The unpaid principal balance of the SwingLine Loan (if any) shall be converted to a Revolving Credit Loan in which all Revolving Credit Lenders participate.

(ii) The Administrative Agent and the Revolving Credit Lenders shall “net out” each Revolving Credit Lender’s respective contributions towards the Revolving Credit Loans, so that each Revolving Credit Lender holds that Revolving Credit Lender’s Revolving Credit Percentage Commitment of the Revolving Credit Loans and advances.

(b) Following the initiation of a Liquidation, each Revolving Credit Lender shall contribute, towards any L/C thereafter honored and not immediately reimbursed by the Loan Parties, that Revolving Credit Lender’s Revolving Credit Percentage Commitment of such honoring.

(c) Following the initiation of a Liquidation, each Revolving Credit Lender shall contribute, towards any L/C thereafter honored and not immediately reimbursed by the Loan Parties, that Revolving Credit Lender’s Revolving Credit Percentage Commitment of such honoring.

13.5. DISTRIBUTION OF LIQUIDATION PROCEEDS.

(a) The Collateral Agent may establish one or more reasonably funded reserve accounts into which proceeds of the conduct of any Liquidation may be deposited in anticipation of future expenses which may be incurred by any Agent in the exercise of rights as a secured creditor of the Loan Parties and prior claims which the Agents anticipate may need to be paid.

(b) The Collateral Agent shall distribute the proceeds of any Liquidation to the Administrative Agent.

(c) The Administrative Agent shall distribute the net proceeds of Liquidation, as distributed to the Administrative Agent by the Collateral Agent pursuant to Section 13.5(b), in accordance with the relative priorities set forth in Section 13.6.

 

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(d) Each Revolving Credit Lender, on the written request of the Administrative Agent and/or any Nominee, not more frequently than once each month, shall reimburse the Agents and/or any Nominee, Pro-Rata, for any cost or expense reasonably incurred by the Agents and/or the Nominee in the conduct of a Liquidation, which amount is not covered out of current proceeds of the Liquidation, which reimbursement shall be paid over to and distributed by the Administrative Agent.

13.6. RELATIVE PRIORITIES TO PROCEEDS OF LIQUIDATION. All distributions of proceeds of a Liquidation shall be applied by the Administrative Agent in the following order:

(a) First, to payment of that portion of the Liabilities (excluding the Banking Services Obligations) constituting fees, indemnities, Costs of Collection and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and the Collateral Agent and amounts payable under Sections 2.11(e), 2.19(c) and 19.8) payable to the Administrative Agent and the Collateral Agent, each in its capacity as such;

(b) Second, to payment of that portion of the Liabilities (excluding the Banking Services Obligations) constituting indemnities, Costs of Collection, and other amounts (other than principal, interest and fees) payable to the Revolving Credit Lenders and the Issuer (including Costs of Collection to the respective Revolving Credit Lenders and the Issuer and amounts payable under Sections 2.11(e), 2.19(c) and 19.8), Pro-Rata in proportion to the amounts described in this clause Second payable to them;

(c) Third, to the extent not previously reimbursed by the Revolving Credit Lenders, to payment to the Agent of that portion of the Liabilities constituting principal and accrued and unpaid interest on any Permitted Protective OverAdvances;

(d) Fourth, to the extent that SwingLine Loans have not been refinanced by a Revolving Credit Loan, payment to the SwingLine Lender of that portion of the Liabilities constituting accrued and unpaid interest on the SwingLine Loans;

(e) Fifth, to the extent that SwingLine Loans have not been refinanced by a Revolving Credit Loan, to payment to the SwingLine Lender of that portion of the Liabilities constituting unpaid principal of the SwingLine Loans;

(f) Sixth, to payment of that portion of the Liabilities constituting accrued and unpaid interest on the Revolving Credit Loans, L/C Borrowings and other Obligations, and fees (including Revolving Credit Fees and fees payable pursuant to Section 2.19), Pro-Rata among the Revolving Credit Lenders and the Issuer in proportion to the respective amounts described in this clause Sixth payable to them;

(g) Seventh, to payment of that portion of the Liabilities constituting unpaid principal of the Revolving Credit Loans and L/C Borrowings, Pro-Rata among the Revolving Credit Lenders and the Issuer in proportion to the respective amounts described in this clause Seventh held by them;

 

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(h) Eighth, to the Administrative Agent for the account of the Issuer, as cash collateral for the aggregate undrawn amount of L/Cs;

(i) Ninth, to payment of all other Liabilities (including, without limitation, the cash collateralization of unliquidated indemnification obligations as provided in Section 19.9(d), but excluding any Banking Services Obligations), Pro-Rata among the Secured Parties in proportion to the respective amounts described in this clause Ninth held by them;

(j) Tenth, to payment of all Banking Services Obligations, Pro-Rata among the Secured Parties in proportion to the respective amounts described in this clause Tenth held by them; and

(k) Last, the balance, if any, after all of the Liabilities have been indefeasibly paid in full, to the Loan Parties or as otherwise required by Applicable Law.

Amounts used to cash collateralize the aggregate undrawn amount of L/Cs pursuant to clause Eighth above shall be applied to satisfy drawings under such L/Cs as they occur. If any amount remains on deposit as cash collateral after all L/Cs have either been fully drawn or expired, such remaining amount shall be applied to the other Liabilities, if any, in the order set forth above.

ARTICLE 14 - THE AGENTS:

14.1. APPOINTMENT OF THE AGENTS.

(a) Each Revolving Credit Lender appoints and designates Bank of America as the “Administrative Agent” hereunder and under the Loan Documents.

(b) Each Revolving Credit Lender appoints and designates Bank of America as the “Collateral Agent” hereunder and under the Loan Documents.

(c) Each Revolving Credit Lender authorizes each Agent:

(i) To execute those of the Loan Documents and all other instruments relating thereto to which that Agent is a party.

(ii) To take such action on behalf of the Revolving Credit Lenders and to exercise all such powers as are expressly delegated to that Agent hereunder and in the Loan Documents and all related documents, together with such other powers as are reasonably incident thereto.

(d) Reserved.

(e) Wells Fargo Capital Finance, LLC and JPMorgan Chase Bank, N.A. have been granted the title of “Co-Syndication Agents”, and PNC Bank, National Association has been granted the title of “Documentation Agent” in which capacity none shall have any rights nor any responsibilities. Any of the foregoing may resign such position at any time by written notice to the Administrative Agent and, in any event, shall cease to be Co-Syndication Agent or Documentation Agent, as the case may be, contemporaneously with its ceasing to be a Revolving Credit Lender.

 

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14.2. RESPONSIBILITIES OF AGENTS.

(a) The Administrative Agent shall have principal responsibilities for and primary authority for the administration of the Revolving Credit Facility contemplated by this Agreement and for all matters for which the Collateral Agent is not responsible. In all instances where the allocation of responsibility and authority, as between the Collateral Agent and the Administrative Agent is in doubt, the Administrative Agent shall be vested with such responsibility and authority.

(b) The Collateral Agent shall have principal responsibilities for and primary authority for the conduct of the Liquidation and the distribution of the proceeds of such Liquidation.

(c) Neither Agent shall have any duties or responsibilities to, or any fiduciary relationship with, any Revolving Credit Lender except for those expressly set forth in this Agreement.

(d) Neither Agent nor any of its Affiliates shall be responsible to any Revolving Credit Lender for any of the following:

(i) Any recitals, statements, representations or warranties made by any Loan Party or any other Person.

(ii) Any appraisals or other assessments of the assets of any Loan Party or of any other Person responsible for or on account of the Liabilities.

(iii) The value, validity, effectiveness, genuineness, enforceability, or sufficiency of the Loan Agreement, the Loan Documents or any other document referred to or provided for therein.

(iv) Any failure by any Loan Party or any other Person (other than the subject Agent) to perform its obligations under the Loan Documents.

(e) Each Agent may employ attorneys, accountants, and other professionals and agents and attorneys-in-fact and shall not be responsible for the negligence or misconduct of any such attorneys, accountants, and other professionals or agents or attorneys-in-fact selected by the subject Agent with reasonable care. No such attorney, accountant, other professional, agent, or attorney-in-fact shall be responsible for any action taken or omitted to be taken by any other such Person.

(f) Neither Agent, nor any of its directors, officers, or employees shall be responsible for any action taken or omitted to be taken or omitted to be taken by any other of them in connection herewith in reliance upon advice of their respective counsel nor, in any other event except for any action taken or omitted to be taken as to which a final judicial

 

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determination has been or is made (in a proceeding in which such Person has had an opportunity to be heard) that such Person had acted in a grossly negligent manner, in actual bad faith, or in willful misconduct.

(g) Neither Agent shall have any responsibility in any event for more funds than that Agent actually receives and collects.

(h) The Agents, in their separate capacities as Revolving Credit Lenders, shall have the same rights and powers hereunder as any other Revolving Credit Lender.

14.3. CONCERNING DISTRIBUTIONS BY THE AGENTS.

(a) Each Agent, in that Agent’s reasonable discretion based upon that Agent’s determination of the likelihood that additional payments will be received, expenses incurred, and/or claims made by third parties to all or a portion of such proceeds, may delay the distribution of any payment received on account of the Liabilities.

(b) Each Agent may disburse funds prior to determining that the sums which that Agent expects to receive have been finally and unconditionally paid to that Agent. If and to the extent that Agent does disburse funds and it later becomes apparent that the Agent did not then receive a payment in an amount equal to the sum paid out, then any Revolving Credit Lender to whom the Agent made the funds available, on demand from the Agent, shall refund to the Administrative Agent the sum paid to that person.

(c) If, in the opinion of an Agent, the distribution of any amount received by that Agent might involve that Agent in liability, or might be prohibited hereby, or might be questioned by any Person, then that Agent may refrain from making distribution until that Agent’s right to make distribution has been adjudicated by a court of competent jurisdiction.

(d) The proceeds of any Revolving Credit Lender’s exercise of any right of, or in the nature of, set-off shall be deemed, First, to the extent that a Revolving Credit Lender is entitled to any distribution hereunder, to constitute such distribution and Second, shall be shared with the other Revolving Credit Lenders as if distributed pursuant to (and shall be deemed as distributions under) Section 13.6.

(e) Each Revolving Credit Lender recognizes that the crediting of the Loan Parties with the “proceeds” of any transaction in which a Post Foreclosure Asset is acquired is a non-cash transaction and that, in consequence, no distribution of such “proceeds” will be made by the Administrative Agent to any Revolving Credit Lender.

(f) In the event that (x) a court of competent jurisdiction shall adjudge that any amount received and distributed by the Administrative Agent is to be repaid or disgorged or (y) the Majority Revolving Credit Lenders determine to effect such repayment or disgorgement, then each Revolving Credit Lender to which any such distribution shall have been made shall repay, to the Agent which had made such distribution, that Revolving Credit Lender’s Pro-Rata share of the amount so adjudged or determined to be repaid or disgorged.

 

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14.4. DISPUTE RESOLUTION. Any dispute among the Revolving Credit Lenders and/or any Agent concerning the interpretation, administration, or enforcement of the financing arrangements contemplated by this or any other Loan Document or the interpretation or administration of this or any other Loan Document which cannot be resolved amicably shall be resolved in the United States District Court for the District of Massachusetts, sitting in Boston or in the Superior Court of Suffolk County, Massachusetts, to the jurisdiction of which courts each Revolving Credit Lender hereby submits.

14.5. DISTRIBUTIONS OF NOTICES AND OF DOCUMENTS. The Administrative Agent will forward to each Revolving Credit Lender, promptly after the Administrative Agent’s receipt thereof, a copy of each notice or other document furnished to the Administrative Agent pursuant to this Agreement, including monthly, quarterly, and annual financial statements received from the Borrowers’ Representative pursuant to Article 5 of this Agreement, other than any of the following:

(a) Routine communications associated with requests for Revolving Credit Loans and/or the issuance of L/C’s.

(b) Routine or nonmaterial communications.

(c) Any notice or document required by any of the Loan Documents to be furnished directly to the Revolving Credit Lenders by the Borrowers’ Representative.

(d) Any notice or document of which the Administrative Agent has knowledge that such notice or document had been forwarded to the Revolving Credit Lenders other than by the Administrative Agent.

14.6. CONFIDENTIAL INFORMATION.

(a) Each Revolving Credit Lender will maintain, as confidential (other than to their respective attorneys, agents, accountants, Participants and prospective Participants) all of the following:

(i) Proprietary approaches, techniques, and methods of analysis which are applied by the Administrative Agent in the administration of the Revolving Credit Facility contemplated by this Agreement.

(ii) Proprietary forms and formats utilized by the Administrative Agent in providing reports to the Revolving Credit Lenders pursuant hereto, which forms or formats are not of general currency.

(iii) Confidential information provided by any Loan Party pursuant to the Loan Documents, other than any information which becomes known to the general public through sources other than that Revolving Credit Lender.

 

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(b) Nothing included herein shall prohibit the disclosure of any such information: (i) as may be required to be provided by Applicable Law or by any subpoena or similar legal process or by regulatory authorities having jurisdiction over any party to this Agreement; (ii) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, funding sources, attorneys, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential); (iii) to any other party hereto; (iv) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (v) subject to an agreement containing provisions substantially the same as those of this Section 14.6, to (A) any assignee of or Participant in, or any bona fide prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (B) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any Loan Party and its obligations; (vi) with the consent of the Borrowers’ Representative; or (vii) to the extent such information (A) becomes publicly available other than as a result of a breach of this Section 14.6 or (B) becomes available to any Secured Party or any of their respective Affiliates on a non-confidential basis from a source other than the Loan Parties and other than as a result of a breach of this Section 14.6. Any Person required to maintain the confidentiality of information as provided in this Section 14.6 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person would accord to its own confidential information.

14.7. RELIANCE BY AGENTS. Each Agent shall be entitled to rely upon any certificate, notice or other document (including any cable, telegram, telex, or facsimile) reasonably believed by that Agent to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of attorneys, accountants and other experts selected by that Agent. As to any matters not expressly provided for in this Agreement, any Loan Document, or in any other document referred to therein, that Agent shall in all events be fully protected in acting, or in refraining from acting, in accordance with the applicable Consent required by this Agreement. Instructions given with the requisite Consent shall be binding on all Revolving Credit Lenders.

14.8. NON-RELIANCE ON AGENTS AND OTHER REVOLVING CREDIT LENDERS.

(a) Each Revolving Credit Lender represents to all other Revolving Credit Lenders and to the Agents that such Revolving Credit Lender:

(i) Independently and without reliance on any representation or act by any Agent or by any other Revolving Credit Lender, and based on such documents and information as that Revolving Credit Lender has deemed appropriate, has made such Revolving Credit Lender’s own appraisal of the financial condition and affairs of the Loan Parties and decision to enter into this Agreement.

 

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(ii) Has relied upon that Revolving Credit Lender’s review of the Loan Documents by that Revolving Credit Lender and by counsel to that Revolving Credit Lender as that Revolving Credit Lender deemed appropriate under the circumstances.

(b) Each Revolving Credit Lender agrees that such Revolving Credit Lender, independently and without reliance upon any Agent or any other Revolving Credit Lender, and based upon such documents and information as such Revolving Credit Lender shall deem appropriate at the time, will continue to make such Revolving Credit Lender’s own appraisals of the financial condition and affairs of the Loan Parties when determining whether to take or not to take any discretionary action under this Agreement.

(c) Neither Agent in the discharge of that Agent’s duties hereunder, shall be required to make inquiry of, or to inspect the properties or books of, any Person.

(d) Except for notices, reports, and other documents and information expressly required to be furnished to the Revolving Credit Lenders by the Administrative Agent pursuant to Section 14.5, the Agents shall not have any affirmative duty or responsibility to provide any Revolving Credit Lender with any credit or other information concerning any Person, which information may come into the possession of Agents or any Affiliate of an Agent.

14.9. INDEMNIFICATION. Without limiting the liabilities of the Loan Parties under any this or any of the other Loan Documents, each Revolving Credit Lender shall indemnify each Agent (to the extent not reimbursed by the Loan Parties), Pro-Rata, for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including reasonable attorneys’ fees and expenses and other out-of-pocket expenditures) which may at any time be imposed on, incurred by, or asserted against that Agent and in any way relating to or arising out of this Agreement or any other Loan Document or any documents contemplated by or referred to therein or the transactions contemplated thereby or the enforcement of any of terms hereof or thereof or of any such other documents; provided, however, no Revolving Credit Lender shall be liable for any of the foregoing to the extent that any of the foregoing arises from any action taken or omitted to be taken by the subject Agent as to which a final judicial determination has been or is made (in a proceeding in which the subject Agent has had an opportunity to be heard) that the subject Agent had acted in a grossly negligent manner, in actual bad faith, or in willful misconduct.

14.10. RESIGNATION OF AGENT.

(a) An Agent may resign at any time by giving 60 days’ prior written notice thereof to the Revolving Credit Lenders and to the other Agent. Upon receipt of any such notice of resignation, the Majority Revolving Credit Lenders shall have the right to appoint a successor to such Agent (and if no Event of Default has occurred, with the consent of the Borrowers’ Representative, not to be unreasonably withheld and, in any event, deemed given by the Borrowers’ Representative if no written objection is provided by the Borrowers’ Representative

 

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to the (resigning) Agent within seven (7) Business Days notice of such proposed appointment). If a successor Agent shall not have been so appointed and accepted such appointment within 30 days after the giving of notice by the resigning Agent, then the resigning Agent may appoint a successor Agent, which shall be a financial institution having a combined capital and surplus in excess of $500,000,000.00. The consent of the Borrowers’ Representative otherwise required by this Section 14.10(a) shall not be required if an Event of Default has occurred.

(b) Upon the acceptance of any appointment as an Agent hereunder by a successor Agent, such successor shall thereupon succeed to, and become vested with, all the rights, powers, privileges, and duties of the (resigning) Agent so replaced, and the (resigning) Agent shall be discharged from the (resigning) Agent’s duties and obligations hereunder, other than on account of any responsibility for any action taken or omitted to be taken by the (resigning) Agent as to which a final judicial determination has been or is made (in a proceeding in which the (resigning) Person has had an opportunity to be heard) that such Person had acted in a grossly negligent manner or in bad faith.

(c) After any retiring Agent’s resignation, the provisions of this Agreement and of all other Loan Documents shall continue in effect for the retiring Person’s benefit in respect of any actions taken or omitted to be taken by it while it was acting as an Agent.

ARTICLE 15 - ACTION BY AGENTS - CONSENTS - AMENDMENTS - WAIVERS:

15.1. ADMINISTRATION OF REVOLVING CREDIT FACILITY.

(a) Except as otherwise specifically provided in this Agreement, each Agent may take any action with respect to the Revolving Credit Facility contemplated by the Loan Documents as that Agent determines to be appropriate within their respective areas of responsibility and authority, as set forth in Sections 14.2(a) and 14.2(b); provided, however, neither Agent is under any affirmative obligation to take any action which it is not required by this Agreement or the Loan Documents specifically to so take.

(b) Except as specifically provided in Sections 15.2 and 15.3 of this Agreement, whenever a Loan Document or this Agreement provides that action may be taken or omitted to be taken in an Agent’s discretion or reasonable discretion, as applicable, that Agent shall have the sole right to take, or refrain from taking, such action without, and notwithstanding, any vote of the Revolving Credit Lenders.

(c) The rights granted to the Revolving Credit Lenders in Sections 15.2 and 15.3 shall not otherwise limit or impair any Agent’s exercise of its discretion or reasonable discretion, as applicable, under the Loan Documents.

 

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15.2. ACTIONS REQUIRING OR ON DIRECTION OF MAJORITY REVOLVING CREDIT LENDERS. Except as otherwise provided in this Agreement, the Consent or direction of the Majority Revolving Credit Lenders is required for any amendment, waiver, or modification of any Loan Document. Without limiting the foregoing:

(a) If any Default has occurred and is continuing, the Majority Revolving Credit Lenders may direct the Administrative Agent to suspend the Revolving Credit Facility, whereupon, as long as a Default shall have occurred and be continuing, the only Loans which may be made are the following:

(i) Revolving Credit Loans made to “cover” the honoring of L/C’s.

(ii) Permitted Protective OverAdvances.

(iii) Loans made with Consent of the Majority Revolving Credit Lenders.

(b) If an Event of Default has occurred and not been duly waived, the Majority Revolving Credit Lenders may:

(i) Give the Administrative Agent an Acceleration Notice in accordance with Section 13.1(b).

(ii) Direct the Administrative Agent to increase the rate of interest to the default rate of interest as provided in Section 2.12(f) of this Agreement.

15.3. ACTION REQUIRING CERTAIN CONSENT. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no Consent to any departure by any Loan Party therefrom, shall:

(a) extend or increase the Revolving Credit Dollar Commitment of any Revolving Credit Lender (or reinstate any Revolving Credit Dollar Commitment previously terminated pursuant to this Agreement) without the written Consent of such Revolving Credit Lender;

(b) as to any Revolving Credit Lender, postpone any date fixed by this Agreement or any other Loan Document for any scheduled payment (including the Maturity Date) of principal, interest, fees or other amounts due hereunder or under any of the other Loan Documents without the written Consent of such Revolving Credit Lender, without the written Consent of such Revolving Credit Lender;

(c) as to any Revolving Credit Lender, reduce the principal of, or the rate of interest specified herein on, any Revolving Credit Loan, or (subject to clause (iv) of the proviso to this Section 15.3) any fees or other amounts payable hereunder or under any other Loan Document, without the written Consent of such Revolving Credit Lender; provided, however, that only the Consent of the Majority Revolving Credit Lenders shall be necessary (i) to amend Section 2.12(f) or to waive any obligation of the Borrowers to pay interest at the rate set forth in Section 2.12(f) or L/C fees at the rate set forth in Section 2.19(a);

 

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(d) as to any Revolving Credit Lender, change Section 12.4, Section 13.5 or Section 13.6 in a manner that would alter the Pro-Rata sharing of payments required thereby without the written Consent of such Revolving Credit Lender;

(e) change any provision of this Section 15.3 or the definition of “Majority Revolving Credit Lenders” or any other provision hereof specifying the number or percentage of Revolving Credit Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without Unanimous Consent;

(f) except as expressly permitted hereunder or under any other Loan Document, release, or limit the liability of, any Loan Party without the Unanimous Consent;

(g) except for Permitted Asset Dispositions (or as otherwise provided in Section 4.14(d)) or to facilitate a Liquidation, release all or substantially all of the Collateral from the Encumbrances of the Loan Documents without Unanimous Consent;

(h) except as provided in Section 2.24, increase the Revolving Credit Commitments without Unanimous Consent;

(i) change the definition of the term “Borrowing Base” or any component definition thereof if, as a result thereof, the amounts available to be borrowed by the Borrowers would be increased without Unanimous Consent; provided that the foregoing shall not (i) limit the discretion of the Administrative Agent to change, establish or eliminate any Reserves or (ii) prevent the Administrative Agent, in its administration of the Revolving Credit Facility, from restoring any component of Borrowing Base which had been lowered by the Administrative Agent back to the value of such component, as stated in this Agreement or to an intermediate value;

(j) make any Revolving Credit Loan which, when made, exceeds Availability and is not a Permitted Protective OverAdvance; provided, however, (i) no Consent shall be required in connection with the making of any Revolving Credit Loan to “cover” any honoring of a drawing under any L/C, and (ii) each Revolving Credit Lender recognizes that subsequent to the making of a Revolving Credit Loan which does not constitute a Permitted Protective OverAdvance, the unpaid principal balance of the Loan Account may exceed the Borrowing Base on account of changed circumstances beyond the control of the Administrative Agent (such as a drop in collateral value);

(k) modify the definition of Permitted Protective OverAdvance so as to increase the time period for a Permitted Protective OverAdvance, except as otherwise provided in the definition thereof, without Unanimous Consent; and

(l) except as expressly permitted herein or in any other Loan Document, subordinate the Liabilities hereunder or the Encumbrances granted hereunder or under the other Loan Documents, to any other Indebtedness or Encumbrance, as the case may be without Unanimous Consent;

 

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provided that (i) no amendment, waiver or Consent shall, unless in writing and signed by the Issuer in addition to the Revolving Credit Lenders required above, affect the rights or duties of the Issuer under this Agreement or any Issuer Document relating to any L/C issued or to be issued by it; (ii) no amendment, waiver or Consent shall, unless in writing and signed by the SwingLine Lender in addition to the Revolving Credit Lenders required above, affect the rights or duties of the SwingLine Lender under this Agreement; (iii) no amendment, waiver or Consent shall, unless in writing and signed by the Administrative Agent in addition to the Revolving Credit Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (iv) no amendment, waiver or Consent shall, unless in writing and signed by the Collateral Agent in addition to the Revolving Credit Lenders required above, affect the rights or duties of the Collateral Agent under this Agreement or any other Loan Document, and (v) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Deteriorating Revolving Credit Lender or Delinquent Revolving Credit Lender shall have any right to approve or disapprove any amendment, waiver or Consent hereunder, except that the Revolving Credit Dollar Commitment of such Revolving Credit Lender may not be increased or extended without the consent of such Revolving Credit Lender.

15.4. MISCELLANEOUS ACTIONS.

(a) Notwithstanding any other provision of this Agreement, no single Revolving Credit Lender independently may exercise any right of action or enforcement against or with respect to any Loan Party.

(b) Each Agent shall be fully justified in failing or refusing to take action under this Agreement or any Loan Document on behalf of any Revolving Credit Lender unless that Agent shall first:

(i) receive such clear, unambiguous, written instructions as that Agent deems appropriate; and

(ii) be indemnified to that Agent’s satisfaction by the Revolving Credit Lenders against any and all liability and expense which may be incurred by that Agent by reason of taking or continuing to take any such action, unless such action had been grossly negligent, in willful misconduct, or in bad faith.

(c) Each Agent may establish reasonable procedures for the providing of direction and instructions from the Revolving Credit Lenders to that Agent, including its reliance on multiple counterparts, facsimile transmissions, and time limits within which such direction and instructions must be received in order to be included in a determination of whether the requisite Revolving Credit Lenders have provided their direction, Consent, or instructions.

15.5. ACTIONS REQUIRING BORROWERS’ REPRESENTATIVES CONSENT.

(a) The Borrowers’ Representative’s consent is required for any amendment of this Agreement, except that Articles 12 and 15 of this Agreement may be amended without the consent of the Borrowers’ Representative.

 

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(b) The Borrowers’ Representative’s consent to the amendment of those provisions referenced in Section 15.5(a) (i) shall be deemed given unless written objection is made, within seven (7) Business Days following the Administrative Agent’s giving notice to the Borrowers’ Representative of the proposed amendment, and (ii) shall not be required following the occurrence of any Event of Default.

15.6. NONCONSENTING REVOLVING CREDIT LENDER.

(a) In the event that a Revolving Credit Lender (in this Section 15.6, a “NonConsenting Revolving Credit Lender”) does not provide its Consent to a proposal by the Administrative Agent to take action which requires Unanimous Consent and that has been approved by the Majority Revolving Credit Lenders, then the Borrowers’ Representative may require the assignment, without recourse and in accordance with the procedures outlined in Section 16.1, below, of the NonConsenting Revolving Credit Lender’s Revolving Credit Dollar Commitment hereunder to one or more Eligible Assignees on five (5) days written notice to the Administrative Agent and to the NonConsenting Revolving Credit Lender.

(b) At the end of such five (5) days, and provided that the NonConsenting Revolving Credit Lender delivers the Revolving Credit Note (or a lost note affidavit containing customary indemnification provisions) held by the NonConsenting Revolving Credit Lender to the Administrative Agent, the Borrowers shall transfer the following to the NonConsenting Revolving Credit Lender:

(i) Such NonConsenting Revolving Credit Lender’s Pro-Rata share of the principal and interest of the Revolving Credit Loans to the date of such assignment.

(ii) All fees distributable hereunder to the NonConsenting Revolving Credit Lender to the date of such assignment.

(iii) Any out-of-pocket costs and expenses for which the NonConsenting Revolving Credit Lender is entitled to reimbursement from the Loan Parties.

(c) In the event that the NonConsenting Revolving Credit Lender fails to deliver to the Administrative Agent the Revolving Credit Note (or a lost note affidavit containing customary indemnification provisions) held by the NonConsenting Revolving Credit Lender as provided in Section 15.6(b), then:

(i) The amount otherwise to be transferred to the NonConsenting Revolving Credit Lender shall be transferred to the Administrative Agent and held by the Administrative Agent, without interest, to be turned over to the NonConsenting Revolving Credit Lender upon delivery of the Revolving Credit Note (or a lost note affidavit containing customary indemnification provisions) held by that NonConsenting Revolving Credit Lender.

(ii) The Revolving Credit Note held by the NonConsenting Revolving Credit Lender shall have no force or effect whatsoever.

 

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(iii) The NonConsenting Revolving Credit Lender shall cease to be a “Revolving Credit Lender”.

(iv) The Eligible Assignee(s) to whom the NonConsenting Revolving Credit Lender’s Revolving Credit Dollar Commitment hereunder has been assigned shall have succeeded to all rights and become subject to all of the obligations of the NonConsenting Revolving Credit Lender as a “Revolving Credit Lender”.

ARTICLE 16 - ASSIGNMENTS BY REVOLVING CREDIT LENDERS:

16.1. ASSIGNMENTS AND ASSUMPTIONS.

Except as provided herein, each Revolving Credit Lender (in this Section 16.1, an “Assigning Revolving Credit Lender”) may assign to one or more Eligible Assignees (in this Section 16.1, each an “Assignee Revolving Credit Lender”) all or a portion of that Revolving Credit Lender’s interests, rights and obligations under this Agreement and the Loan Documents (including all or a portion of its Revolving Credit Dollar Commitment) and the same portion of the Revolving Credit Loans at the time owing to it, and of the Revolving Credit Note held by the Assigning Revolving Credit Lender, provided that:

(a) Unless such assignment is to a Person that is a Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or an Approved Fund, the Administrative Agent shall have given its prior written consent to such assignment, which consent shall not be unreasonably withheld, but need not be given if the proposed assignment would result in any Assignee Revolving Credit Lender having a Revolving Credit Dollar Commitment of less than the “minimum hold” amount specified in Section 16.1(c).

(b) Each such assignment shall be of a constant, and not a varying, percentage of all the Assigning Revolving Credit Lender’s rights and obligations under this Agreement.

(c) Following the effectiveness of such assignment, the Assigning Revolving Credit Lender’s Revolving Credit Dollar Commitment (if not an assignment of all of the Assigning Revolving Credit Lender’s Revolving Credit Dollar Commitment) shall not be less than $5,000,000.00.

(d) If no Event of Default has occurred, any such assignment to a Person not then a Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or an Approved Fund shall be subject to the prior consent of the Borrowers’ Representative, not to be unreasonably withheld or delayed, which consent shall be deemed given unless the Borrowers’ Representative provides the Administrative Agent with written objection not more than five (5) Business Days after the Administrative Agent shall have given the Borrowers’ Representative written notice of a proposed assignment, such notice to state that consent will be deemed given by the Borrowers’ Representative if written objection is not received by the Administrative Agent within such five (5) Business Days.

 

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16.2. ASSIGNMENT PROCEDURES. (This Section 16.2 describes the procedures to be followed in connection with an assignment effected pursuant to this Article 16 and permitted by Section 16.1).

(a) The parties to such an assignment shall execute and deliver to the Administrative Agent, for recording in the Register, an Assignment and Acceptance substantially in the form of EXHIBIT 16.1, annexed hereto (an “Assignment and Acceptance”).

(b) The Assigning Revolving Credit Lender shall deliver to the Administrative Agent, with such Assignment and Acceptance, the Revolving Credit Note held by the subject Assigning Revolving Credit Lender and the Administrative Agent’s processing fee of $3,000.00; provided, however, no such processing fee shall be due where the Assigning Revolving Credit Lender is one of the Revolving Credit Lenders at the initial execution of this Agreement.

(c) The Administrative Agent shall maintain a copy of each Assignment and Acceptance delivered to it and a register or similar list (the “Register”) for the recordation of the names and addresses of the Revolving Credit Lenders and of the Revolving Credit Dollar Commitment and Revolving Credit Percentage Commitment of each Revolving Credit Lender. The Register shall be available for inspection by the Revolving Credit Lenders at any reasonable time and from time to time upon reasonable prior notice. In the absence of manifest error, the entries in the Register shall be conclusive and binding on all Revolving Credit Lenders. The Administrative Agent and the Revolving Credit Lenders may treat each Person whose name is recorded in the Register as a “Revolving Credit Lender” hereunder for all purposes of this Agreement.

(d) The Assigning Revolving Credit Lender and Assignee Revolving Credit Lender, directly between themselves, shall make all appropriate adjustments in payments for periods prior to the effective date of an Assignment and Assumption.

16.3. EFFECT OF ASSIGNMENT.

(a) From and after the effective date specified in an Assignment and Acceptance which has been executed, delivered, and recorded (which effective date the Administrative Agent may delay by up to five (5) Business Days after the delivery of such Assignment and Acceptance):

(i) The Assignee Revolving Credit Lender:

(A) Shall be a party to this Agreement and the other Loan Documents (and to any amendments thereof) as fully as if the Assignee Revolving Credit Lender had executed each.

(B) Shall have the rights of a Revolving Credit Lender hereunder to the extent of the Revolving Credit Dollar Commitment and the Revolving Credit Percentage Commitment assigned by such Assignment and Acceptance.

 

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(ii) The Assigning Revolving Credit Lender shall be released from the Assigning Revolving Credit Lender’s obligations under this Agreement and the Loan Documents to the extent of the Revolving Credit Dollar Commitment assigned by such Assignment and Acceptance.

(iii) The Administrative Agent shall undertake to obtain and distribute replacement Revolving Credit Notes to the subject Assigning Revolving Credit Lender and Assignee Revolving Credit Lender.

(b) By executing and delivering an Assignment and Acceptance, the parties thereto confirm to and agree with each other and with all parties to this Agreement as to those matters which are set forth in the subject Assignment and Acceptance.

ARTICLE 17 - NOTICES:

17.1. NOTICE ADDRESSES. All notices, demands, and other communications made in respect of any Loan Document (other than a request for a loan or advance or other financial accommodation under the Revolving Credit Facility) shall be made to the following addresses, each of which may be changed upon seven (7) days written notice to all others given by certified mail, return receipt requested:

If to either Agent:

Bank of America, N.A.

100 Federal Street, 9th Floor

Boston, Massachusetts 02110

Attention:    Kathleen Dimock
   Managing Director

Fax: 617-434-4312

E-Mail:    kathleen.dimock@baml.com

With a copy to:

Riemer & Braunstein LLP

Three Center Plaza

Boston, Massachusetts 02108

Attention:    Kevin J. Simard Esquire

Fax: 617-880-3456

E-Mail:    ksimard@riemerlaw.com

If to the Borrowers’ Representative and all Loan Parties:

Casual Male Retail Group, Inc.

555 Turnpike Street

Canton, Massachusetts 02021

Attention:    Dennis Hernreich
   Chief Financial Officer

Fax: 781-828-3221

E-Mail:    dhernreich@cmal.com

 

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With a copy to:

Greenberg Traurig LLP

One International Place

Boston, Massachusetts 02110

Attention:    Jonathan Bell, Esquire

Fax: 617-310-6001

E-Mail:    bellj@gtlaw.com

17.2. NOTICE GIVEN.

(a) Except as otherwise specifically provided herein, notices shall be deemed made and correspondence received, as follows (all times being local to the place of delivery or receipt):

(i) By mail: the sooner of when actually received or three (3) days following deposit in the United States mail, postage prepaid.

(ii) By recognized overnight express delivery: the Business Day following the day when sent.

(iii) By hand: If delivered on a Business Day after 9:00 AM and no later than three (3) hours prior to the close of customary business hours of the recipient, when delivered. Otherwise, at the opening of the then next Business Day.

(iv) By facsimile transmission (which must include a header on which the party sending such transmission is indicated): If sent on a Business Day after 9:00 AM and no later than three (3) hours prior to the close of customary business hours of the recipient, one (1) hour after being sent. Otherwise, at the opening of the then next Business Day.

(v) By electronic communication (including e-mail and Internet or intranet websites): unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (A) of notification that such notice or communication is available and identifying the website address therefor.

 

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(b) Rejection or refusal to accept delivery and inability to deliver because of a changed address or Facsimile Number for which no due notice was given shall each be deemed receipt of the notice sent.

17.3. WIRE INSTRUCTIONS. Subject to change in the same manner that a notice address may be changed (as to which, see Section 17.1), wire transfers to the Administrative Agent shall be made in accordance with the following wire instructions:

 

  Bank of America, N.A.
  ABA No.    026009593
  Acct Name:    Bank of America Retail Finance
     Collection Account
  Acct No. :    502-52044
  Reference:    Casual Male Retail Group

ARTICLE 18 - TERM:

18.1. TERMINATION OF REVOLVING CREDIT FACILITY. The Revolving Credit Facility shall remain in effect (subject to suspension as provided in Section 2.6(g) hereof) until the Termination Date.

18.2. ACTIONS ON TERMINATION.

(a) On the Termination Date, the Loan Parties shall pay the Administrative Agent (whether or not then due), in immediately available funds, all then Liabilities including, without limitation: the following:

(i) The entire balance of the Loan Account (including the unpaid principal balance of the Loans and SwingLine Loan).

(ii) Any then remaining unpaid installments of the Commitment Fees.

(iii) Any then remaining unpaid installments of the Administrative Agent’s Fee.

(iv) Any payments due on account of the indemnification obligations included in Section 2.11(e).

(v) Any accrued and unpaid Unused Line Fee.

 

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(vi) All unreimbursed costs and expenses of each Agent and of Lenders’ Special Counsel for which each Loan Party is responsible.

(b) On the Termination Date, the Loan Parties shall also shall make such arrangements concerning any L/C’s then outstanding as are reasonably satisfactory to the Administrative Agent (such as their being cash collateralized at 103 % of their then Stated Amount).

(c) Until such payment (Section 18.2(a)) and arrangements concerning L/C’s (Section 18.2(b)), all provisions of this Agreement, other than those included in Article 2 which place any obligation on the Administrative Agent or any Revolving Credit Lender to make any loans or advances or to provide any financial accommodations to any Borrower shall remain in full force and effect until all Liabilities shall have been paid in full.

(d) The release by the Collateral Agent of the Collateral Interests granted the Collateral Agent by the Loan Parties hereunder may be upon such conditions and indemnifications as the Administrative Agent reasonably may require.

ARTICLE 19 - GENERAL:

19.1. PROTECTION OF COLLATERAL. No Agent has any duty as to the collection or protection of the Collateral beyond the safe custody of such of the Collateral as may come into the possession of that Agent.

19.2. PUBLICITY. The Agent may issue a “tombstone” notice of the establishment of the credit facility contemplated by this Agreement and may make reference to each Loan Party (and may utilize any logo or other distinctive symbol associated with each Loan Party) in connection with any advertising, promotion, or marketing undertaken by the Agent.

19.3. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the Borrowers’ Representative, each Loan Party, and their respective representatives, successors, and assigns and shall inure to the benefit of each Agent and each Revolving Credit Lender and their respective successors and assigns; provided, however, no trustee or other fiduciary appointed with respect to any Loan Party shall have any rights hereunder. In the event that any Agent or any Revolving Credit Lender assigns or transfers its rights under this Agreement, the assignee shall thereupon succeed to and become vested with all rights, powers, privileges, and duties of such assignor hereunder and such assignor shall thereupon be discharged and relieved from its duties and obligations hereunder.

19.4. SEVERABILITY. Any determination that any provision of this Agreement or any application thereof is invalid, illegal, or unenforceable in any respect in any instance shall not affect the validity, legality, or enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Agreement.

 

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19.5. AMENDMENTS. COURSE OF DEALING.

(a) This Agreement and the other Loan Documents incorporate all discussions and negotiations between each Loan Party and each Agent and each Revolving Credit Lender, either express or implied, concerning the matters included herein and in such other instruments, any custom, usage, or course of dealings to the contrary notwithstanding. No such discussions, negotiations, custom, usage, or course of dealings shall limit, modify, or otherwise affect the provisions thereof. No failure by any Agent or any Revolving Credit Lender to give notice to the Borrowers’ Representative of any Loan Party’s having failed to observe and comply with any warranty or covenant included in any Loan Document shall constitute a waiver of such warranty or covenant or the amendment of the subject Loan Document.

(b) Each Loan Party may undertake any action otherwise prohibited hereby, and may omit to take any action otherwise required hereby, upon and with the express prior written consent of the Administrative Agent. Subject to Article 16, no consent, modification, amendment, or waiver of any provision of any Loan Document shall be effective unless executed in writing by or on behalf of the party to be charged with such modification, amendment, or waiver (and if such party is the Administrative Agent then by a duly authorized officer thereof). Any modification, amendment, or waiver provided by the Administrative Agent shall be in reliance upon all representations and warranties theretofore made to the Administrative Agent by or on behalf of the Loan Parties (and any other guarantor, endorser, or surety of the Liabilities) and consequently may be rescinded in the event that any of such representations or warranties was not true and complete in all material respects when given.

19.6. POWER OF ATTORNEY. In connection with all powers of attorney included in this Agreement, each Loan Party hereby grants unto the Administrative Agent (acting through any of its officers) full power to do any and all things necessary or appropriate in connection with the exercise of such powers as fully and effectually as that Loan Party might or could do, hereby ratifying all that said attorney shall do or cause to be done by virtue of this Agreement. No power of attorney set forth in this Agreement shall be affected by any disability or incapacity suffered by any Loan Party and each shall survive the same. All powers conferred upon the Administrative Agent or the Collateral Agent by this Agreement, being coupled with an interest, shall be irrevocable until this Agreement is terminated by a written instrument executed by a duly authorized officer of the Administrative Agent.

19.7. APPLICATION OF PROCEEDS. The proceeds of any collection, sale, or disposition of the Collateral, or of any other payments received hereunder, shall be applied towards the Liabilities in such order and manner as the Administrative Agent determines in its discretion, consistent, however, with Sections 13.5 and 13.6 and any other applicable provisions of this Agreement. The Loan Parties shall remain liable for any deficiency remaining following such application.

 

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19.8. INCREASED COSTS. If, as a result of any Requirement of Law, or of the interpretation or application thereof by any court or by any governmental or other authority or entity charged with the administration thereof, whether or not having the force of law, which on and after the Closing Date:

(a) subjects any Revolving Credit Lender to any taxes or changes the basis of taxation, or increases any existing taxes, on payments of principal, interest or other amounts payable by any Loan Party to the Administrative Agent or any Revolving Credit Lender under this Agreement (except for taxes on the Administrative Agent or any Revolving Credit Lender based on net income or capital imposed by the jurisdiction in which the principal or lending offices of the Administrative Agent or that Revolving Credit Lender are located);

(b) imposes, modifies or deems applicable any reserve, cash margin, special deposit or similar requirements against assets held by, or deposits in or for the account of or loans by or any other acquisition of funds by the relevant funding office of any Revolving Credit Lender;

(c) imposes on any Revolving Credit Lender any other condition with respect to any Loan Document; or

(d) imposes on any Revolving Credit Lender a requirement to maintain or allocate capital in relation to the Liabilities;

and the result of any of the foregoing, in such Revolving Credit Lender’s reasonable opinion, is to increase the cost to that Revolving Credit Lender of making or maintaining any loan, advance or financial accommodation or to reduce the income receivable by that Revolving Credit Lender in respect of any loan, advance or financial accommodation by an amount which that Revolving Credit Lender deems to be material, then upon written notice from the Administrative Agent, from time to time, to the Borrowers’ Representative (such notice to set out in reasonable detail the facts giving rise to and a summary calculation of such increased cost or reduced income), the Loan Parties shall forthwith pay to the Administrative Agent, for the benefit of the subject Revolving Credit Lender, upon receipt of such notice, that amount which shall compensate the subject Revolving Credit Lender for such additional cost or reduction in income.

19.9. COSTS AND EXPENSES OF AGENTS AND REVOLVING CREDIT LENDERS.

(a) The Loan Parties shall pay from time to time on demand all Costs of Collection and all reasonable costs, expenses, and disbursements (including reasonable attorneys’ fees and expenses) which are incurred by each Agent in connection with the preparation, negotiation, execution, and delivery of this Agreement and of any other Loan Documents, and all other reasonable costs, expenses, and disbursements which may be incurred in connection with or in respect to the credit facility contemplated hereby or which otherwise are incurred with respect to the Liabilities.

 

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(b) The Loan Parties shall pay from time to time on demand all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Revolving Credit Lenders to Lenders’ Special Counsel.

(c) Each Loan Party authorizes the Administrative Agent to pay all such fees and expenses and in the Administrative Agent’s reasonable discretion, to add such fees and expenses to the Loan Account.

(d) In connection with the termination of this Agreement and the release and termination of the security interests in the Collateral, the Agent may require such indemnities and collateral security as it shall reasonably deem necessary and appropriate to protect the Secured Parties against (i) loss on account of credits previously applied to the Liabilities that may subsequently be reversed or revoked, (ii) any obligations that may thereafter arise with respect to the Banking Services Obligations, and (iii) any Liabilities that may thereafter arise under this Section 19.9 and Section 19.12 hereof.

(e) The undertaking on the part of each Loan Party in this Section 19.9 shall survive payment of the Liabilities and/or any termination, release, or discharge executed by any Agent in favor of any Loan Party, other than a termination, release, or discharge which makes specific reference to this Section 19.9.

19.10. COPIES, FACSIMILES AND ELECTRONIC COMMUNICATIONS. Each Loan Document and all documents and papers which relates thereto which have been or may be hereinafter furnished any Agent or any Revolving Credit Lender may be reproduced by any Revolving Credit Lender or by any Agent by any photographic, microfilm, xerographic, digital imaging, or other process, and such Person making such reproduction may destroy any document so reproduced. Any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business). Any facsimile or other electronic communication (such as a .pdf) which bears proof of transmission (or, in the case of an electronic communication transmitted by e-mail, which is deemed to have been received pursuant to Section 17.2(a)) shall be binding on the party which or on whose behalf such transmission was initiated and likewise shall be so admissible in evidence as if the original of such facsimile or other electronic communication had been delivered to the party which or on whose behalf such transmission was received.

19.11. MASSACHUSETTS LAW. This Agreement and all rights and obligations hereunder, including matters of construction, validity, and performance, shall be governed by the law of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof).

 

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19.12. INDEMNIFICATION. The Borrowers’ Representative and each Loan Party shall indemnify, defend, and hold each Agent and each Revolving Credit Lender and any of their respective employees, officers, or agents (each, an “Indemnified Person”) harmless of and from any claim brought or threatened against any Indemnified Person by any Loan Party, any other guarantor or endorser of the Liabilities, or any other Person (as well as from reasonable attorneys’ fees, expenses, and disbursements in connection therewith) on account of the relationship of the Borrowers’ Representative, the Loan Parties or of any other guarantor or endorser of the Liabilities, including all costs, expenses, liabilities, and damages as may be suffered by any Indemnified Person in connection with (x) the Collateral; (y) the occurrence of any Event of Default; or (z) the exercise of any rights or remedies under any of the Loan Documents (each of claims which may be defended, compromised, settled, or pursued by the Indemnified Person with counsel of the Administrative Agent’s selection, but at the expense of the Borrowers’ Representative and the Loan Parties) other than any claim as to which a final determination is made in a judicial proceeding (in which the Administrative Agent and any other Indemnified Person has had an opportunity to be heard), which determination includes a specific finding that the Indemnified Person seeking indemnification had acted in a grossly negligent manner or in actual bad faith or willful misconduct. This indemnification shall survive payment of the Liabilities and/or any termination, release, or discharge executed by the Administrative Agent in favor of the Borrowers’ Representative and/or the Loan Parties, other than a termination, release, or discharge duly executed on behalf of the Administrative Agent which makes specific reference to this Section 19.12.

19.13. RULES OF CONSTRUCTION. The following rules of construction shall be applied in the interpretation, construction, and enforcement of this Agreement and of the other Loan Documents:

(a) Unless otherwise specifically provided for herein, interest and any fee or charge which is stated as a per annum percentage shall be calculated based on a 360 day year and actual days elapsed.

(b) Words in the singular include the plural and words in the plural include the singular.

(c) Any reference, herein, to a circumstance or event’s having “more than a de minimis adverse effect” and any similar reference is to a circumstance or event which (x) in a well managed enterprise, would receive the active attention of senior management with a view towards its being reversed or remedied; or (y) if not reversed or remedied could reasonably be expected to lead to its becoming a material adverse effect.

(d) Titles, headings (indicated by being underlined or shown in SMALL CAPITALS) and any Table of Contents are solely for convenience of reference; do not constitute a part of the instrument in which included; and do not affect such instrument’s meaning, construction, or effect.

(e) The words “includes” and “including” are not limiting.

 

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(f) Text which follows the words “including, without limitation” (or similar words) is illustrative and not limitational.

(g) Text which is shown in italics (except for parenthesized italicized text), shown in bold, shown IN ALL CAPITAL LETTERS, or in any combination of the foregoing, shall be deemed to be conspicuous.

(h) The words “may not” are prohibitive and not permissive.

(i) Any reference to a Person’s “knowledge” (or words of similar import) are to such Person’s knowledge assuming that such Person has undertaken reasonable and diligent investigation with respect to the subject of such “knowledge” (whether or not such investigation has actually been undertaken).

(j) Terms which are defined in one section of any Loan Document are used with such definition throughout the instrument in which so defined.

(k) “Dollars” and the symbol “$” refers to United States Dollars.

(l) Unless limited by reference to a particular Section or provision, any reference to “herein”, “hereof”, or “within” is to the entire Loan Document in which such reference is made.

(m) References to “this Agreement” or to any other Loan Document is to the subject instrument as amended to the date on which application of such reference is being made.

(n) Except as otherwise specifically provided, all references to time are to Boston time.

(o) In the determination of any notice, grace, or other period of time prescribed or allowed hereunder:

(i) Unless otherwise provided (I) the day of the act, event, or default from which the designated period of time begins to run shall not be included and the last day of the period so computed shall be included unless such last day is not a Business Day, in which event the last day of the relevant period shall be the then next Business Day and (II) the period so computed shall end at 5:00 PM on the relevant Business Day.

(ii) The word “from” means “from and including”.

(iii) The words “to” and “until” each mean “to, but excluding”.

(iv) The word “through” means “to and including”.

(p) The Loan Documents shall be construed and interpreted in a harmonious manner and in keeping with the intentions set forth in Section 19.14 hereof; provided, however, in the event of any inconsistency between the provisions of this Agreement and any other Loan Document, the provisions of this Agreement shall govern and control.

 

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19.14. INTENT. It is intended that:

(a) This Agreement take effect as a sealed instrument.

(b) The scope of all Collateral Interests created by any Loan Party to secure the Liabilities be broadly construed in favor of the Administrative Agent and that they cover all assets of each Loan Party.

(c) All Collateral Interests created in favor of the Collateral Agent at any time and from time to time by any Loan Party secure all Liabilities, whether now existing or contemplated or hereafter arising.

(d) All reasonable costs, expenses, and disbursements incurred by any Agent, and, to the extent provide in Section 19.9 each Revolving Credit Lender, in connection with such Person’s relationship(s) with any Loan Party shall be borne by the Loan Parties.

(e) Unless otherwise explicitly provided herein, the Administrative Agent’s consent to any action of any Loan Party which is prohibited unless such consent is given may be given or refused by the Administrative Agent in its discretion or reasonable discretion, as applicable, and without reference to Section 2.17 hereof.

19.15. PARTICIPATIONS. Each Revolving Credit Lender may sell participations to one or more financial institutions (each, a “Participant”) in that Revolving Credit Lender’s interests herein, provided that no such participation shall include any provision which accords that Participant with any rights, vis a vis any Agent, with respect to any requirement herein for approval by a requisite number or proportion of the Revolving Credit Lenders. No such sale of a participation shall relieve a Revolving Credit Lender from that Revolving Credit Lender’s obligations hereunder nor obligate any Agent to any Person other than a Revolving Credit Lender.

19.16. RIGHT OF SET-OFF. Any and all deposits or other sums at any time credited by or due to any Loan Party from any Agent or any Revolving Credit Lender or any Participant or from any Affiliate of any of the foregoing, and any cash, securities, instruments or other property of any Loan Party in the possession of any of the foregoing, whether for safekeeping or otherwise (regardless of the reason such Person had received the same) to the extent permitted by law, shall at all times constitute security for all Liabilities and for any and all obligations of each Loan Party to each Agent and such Revolving Credit Lender or any Participant or such Affiliate and following the occurrence of an Event of Default may be applied or set off against the Liabilities and against such obligations at any time, whether or not such are then due and whether or not other collateral is then available to any Agent or that Revolving Credit Lender.

 

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19.17. PLEDGES TO FEDERAL RESERVE BANKS. Nothing included in this Agreement shall prevent or limit any Revolving Credit Lender, to the extent that such Revolving Credit Lender is subject to any of the twelve Federal Reserve Banks organized under §4 of the Federal Reserve Act (12 U.S.C. §341) from pledging all or any portion of that Revolving Credit Lender’s interest and rights under this Agreement; provided, however, neither such pledge nor the enforcement thereof shall release the pledging Revolving Credit Lender from any of its obligations hereunder or under any of the Loan Documents.

19.18. MAXIMUM INTEREST RATE. Regardless of any provision of any Loan Document, neither any Agent nor any Revolving Credit Lender shall be entitled to contract for, charge, receive, collect, or apply as interest on any Liability, any amount in excess of the maximum rate imposed by Applicable Law. Any payment which is made which, if treated as interest on a Liability would result in such interest’s exceeding such maximum rate shall be held, to the extent of such excess, as additional collateral for the Liabilities as if such excess were “Collateral.”

19.19. WAIVERS.

(a) The Borrowers’ Representative and each Loan Party (and all guarantors, endorsers, and sureties of the Liabilities) make each of the waivers included in Section 19.19(b), below, knowingly, voluntarily, and intentionally, and understands that each Agent and each Revolving Credit Lender, in establishing the facilities contemplated hereby and in providing loans and other financial accommodations to or for the account of the Loan Parties as provided herein, whether not or in the future, is relying on such waivers.

(b) THE BORROWERS’ REPRESENTATIVE, EACH LOAN PARTY, AND EACH SUCH GUARANTOR, ENDORSER, AND SURETY RESPECTIVELY WAIVES THE FOLLOWING:

(i) Except as otherwise specifically required hereby, notice of non-payment, demand, presentment, protest and all forms of demand and notice, both with respect to the Liabilities and the Collateral.

(ii) Except as otherwise specifically required hereby or under applicable law, the right to notice and/or hearing prior to an Agent’s exercising of that Agent’s rights upon default.

(iii) THE RIGHT TO A JURY IN ANY TRIAL OF ANY CASE OR CONTROVERSY IN WHICH ANY AGENT OR ANY REVOLVING CREDIT LENDER IS OR BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST ANY AGENT OR ANY REVOLVING CREDIT LENDER OR IN WHICH ANY AGENT OR ANY

 

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REVOLVING CREDIT LENDER IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF OR IS IN RESPECT OF, ANY RELATIONSHIP AMONGST OR BETWEEN THE BORROWERS’ REPRESENTATIVE, ANY LOAN PARTY OR ANY OTHER PERSON AND THE AGENT AND EACH REVOLVING CREDIT LENDER LIKEWISE WAIVES THE RIGHT TO A JURY IN ANY TRIAL OF ANY SUCH CASE OR CONTROVERSY).

(iv) Except for manifest error, any defense, counterclaim, set-off, recoupment, or other basis on which the amount of any Liability, as stated on the books and records of the Administrative Agent or any Revolving Credit Lender, could be reduced or claimed to be paid otherwise than in accordance with the tenor of and written terms of such Liability.

(v) Any claim to consequential, special, or punitive damages.

19.20. ADDITIONAL WAIVERS.

(a) The Liabilities are the joint and several obligations of each Borrower. To the fullest extent permitted by Applicable Law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any Revolving Credit Lender to assert any claim or demand or to enforce or exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, or any release of the obligations of any other Borrower from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any Revolving Credit Lender.

(b) The obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any Revolving Credit Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any default, failure or delay, willful or otherwise, in the performance of the Liabilities, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Liabilities).

(c) To the fullest extent permitted by Applicable Law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Liabilities. The Collateral Agent and the Revolving Credit Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise

 

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or adjust any part of the Liabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or any security.

(d) Upon payment by any Borrower of any Liabilities, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Liabilities. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Borrowers will demand, sue for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Agent and the Revolving Credit Lenders and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.

19.21. REPLACEMENT OF REVOLVING CREDIT LENDERS.

(a) If any Revolving Credit Lender (i) is a Deteriorating Revolving Credit Lender or a Delinquent Revolving Credit Lender or (ii) requests compensation under Section 2.19(c) or Section 19.8, then the Borrowers’ Representative may, at its sole expense and effort, upon notice to such Revolving Credit Lender and the Administrative Agent, require such Revolving Credit Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 16.2), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Revolving Credit Lender, if a Revolving Credit Lender accepts such assignment), provided that:

(i) the Borrowers shall have paid to the Administrative Agent the assignment fee specified in Section 16.2(b);

(ii) such Revolving Credit Lender shall have received payment of an amount equal to the outstanding principal of its Revolving Credit Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of all other amounts); and

 

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(iii) such assignment does not conflict with Applicable Law.

A Revolving Credit Lender shall not be required to make any such assignment or delegation if, prior thereto, the circumstances entitling the Borrowers to require such assignment and delegation cease to apply. Each Revolving Credit Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Revolving Credit Lender, as assignor, any Assignment and Acceptance or other agreement necessary to effectuate any assignment of such Revolving Credit Lender’s interests hereunder in the circumstances contemplated by this Section 19.21 in the event any such Revolving Credit Lender fails to execute the agreements required under Article 16 in connection with an assignment pursuant to this Section 19.21, and any such agreements so executed by the assignee and Administrative Agent shall be effective for purposes of this Section 19.21 and for Article 16.

(b) In the event that such Revolving Credit Lender fails to deliver to the Administrative Agent the Revolving Credit Note held by such Revolving Credit Lender (or a lost note affidavit containing customary indemnification provisions), then:

(i) Unless otherwise approved by the Borrowers’ Representative and the Administrative Agent, the amounts otherwise to be paid to such Revolving Credit Lender as described above shall be paid to the Administrative Agent and held by the Administrative Agent, without interest, to be turned over to such Revolving Credit Lender upon delivery of the Revolving Credit Note (or a lost note affidavit containing customary indemnification provisions) held by such Revolving Credit Lender.

(ii) The Revolving Credit Note held by such Revolving Credit Lender shall have no force or effect whatsoever.

(iii) Such Revolving Credit Lender shall cease to be a “Revolving Credit Lender”.

(iv) The assignee shall have succeeded to all rights and become subject to all of the obligations of such Revolving Credit Lender as “Revolving Credit Lender”.

19.22. PATRIOT ACT NOTICE. Each Revolving Credit Lender that is subject to the Patriot Act and the Administrative Agent (for itself and not on behalf of any Revolving Credit Lender) hereby notifies the Loan Parties that, pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Revolving Credit Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the Patriot Act.

 

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19.23. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Article 3, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Agreement.

19.24. EXISTING LOAN AGREEMENT AMENDED AND RESTATED. Upon satisfaction of the conditions precedent to the effectiveness of this Agreement, (a) this Agreement shall amend and restate the Existing Loan Agreement in its entirety (except to the extent that definitions from the Existing Loan Agreement are incorporated herein by reference) and (b) the rights and obligations of the parties under the Existing Loan Agreement shall be subsumed within, and be governed by, this Agreement; provided, however, that the Borrowers hereby agree that (i) the L/Cs outstanding under, and as defined in, the Existing Loan Agreement on the Closing Date shall be L/Cs outstanding hereunder, and (ii) all Liabilities of the Loan Parties under, and as defined in, the Existing Loan Agreement shall remain outstanding, shall constitute continuing Liabilities secured by the Collateral, and this Agreement shall not be deemed to evidence or result in a novation or repayment and reborrowing of such obligations and other liabilities.

[SIGNATURE PAGES FOLLOW]

 

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THE BORROWERS’ REPRESENTATIVE:
CASUAL MALE RETAIL GROUP, INC.
By:   /s/ Dennis R. Hernreich
Name:   Dennis R. Hernreich
Title:   Executive Vice President, Chief Operating Officer, Chief Financial Officer, Treasurer and Secretary
BORROWERS:
CASUAL MALE RETAIL GROUP, INC.
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
By:   /s/ Dennis R. Hernreich
Name:   Dennis R. Hernreich
Title:   Executive Vice President, Chief Operating Officer, Chief Financial Officer, Treasurer and Secretary

 

S-1


 

ADMINISTRATIVE AGENT AND COLLATERAL AGENT:
BANK OF AMERICA, N.A.
By:   /s/ Kahtleen A. Dimock
Name:   Kathleen A. Dimock
Title:   Managing Director
THE REVOLVING CREDIT LENDERS:
BANK OF AMERICA, N.A.
(REVOLVING CREDIT LENDER)
By   /s/ Kahtleen A. Dimock
Name:   Kathleen A. Dimock
Title:   Managing Director

 

S-2


 

PNC BANK, NATIONAL ASSOCIATION
(REVOLVING CREDIT LENDER)
By:   /s/ Dean Newman
Name:   Dean Newman
Title:   Relationship Manager

 

S-3


 

WELLS FARGO BANK, NATIONAL ASSOCIATION
(REVOLVING CREDIT LENDER)
By:     /s/ Connie Lin
Name:     Connie Lin
Title:       Vice President

 

S-4


 

JPMORGAN CHASE BANK, N.A.
(REVOLVING CREDIT LENDER)
By:         /s/ Kelly G. Maier
Name:     Kelly G. Maier
Title:       Vice President

1247018.10

 

S-5


Exhibit 1.0(a)

Casual Male Companies

 

NAME

  

FEDERAL ID

Casual Male Retail Group, Inc.    04-2623104
Casual Male CANADA Inc.    BN 86224-0074
CMRG Apparel, LLC    02-0525277
Casual Male Store, LLC    20-1627444
Capture, LLC    33-1003155
Casual Male Retail Store, LLC    20-1628392
Casual Male Direct, LLC    20-1628414
Casual Male RBT, LLC    20-1653061
Casual Male RBT (U.K.) LLC    20-1653147
Think Big Products LLC    20-5572744
Canton PL Liquidating Corp.    13-4222128
Casual Male (EUROPE) LLC    26-0854419
CMRG Holdco, LLC    26-1530177
CMRG Apparel Management, Inc.    26-1530263
CMXL Apparel, LP    26-1530365


EXHIBIT 1.0(a)

CASUAL MALE COMPANIES

LOGO


Exhibit 1.0(b)

Guarantors

 

NAME

  

FEDERAL ID

Casual Male CANADA Inc.

   BN 86224-0074

Casual Male Store, LLC

   20-1627444

Capture, LLC

   33-1003155

Casual Male Retail Store, LLC

   20-1628392

Casual Male Direct, LLC

   20-1628414

Casual Male RBT, LLC

   20-1653061

Casual Male RBT (U.K.) LLC

   20-1653147

Think Big Products LLC

   20-5572744

Canton PL Liquidating Corp.

   13-4222128

Casual Male (EUROPE) LLC

   26-0854419

CMRG Holdco, LLC

   26-1530177

CMRG Apparel Management, Inc.

   26-1530263

CMXL Apparel, LP

   26-1530365


Exhibit 1.1

Permitted Encumbrances

 

Debtor Name

  

Jurisdiction

  

Type

  

File Date

  

File No.

  

Secured Party Name

  

Status

  

Description

Casual Male Retail Group, Inc.    Delaware    UCC-1    08/03/04    42171181    NMHG Financial Services, Inc.    Active    Sweeper/Scrubber
Casual Male Retail Group, Inc.    Delaware    UCC-1    04/13/05    51144345    Siemens Financial Services, Inc.    Active    RapidSORT Controller
Casual Male Retail Group, Inc.    Delaware    UCC-1    09/21/05    52915453    De Lage Landen Financial Services, Inc.    Active    DMX2000 for AS400 System
Casual Male Retail Group, Inc.    Delaware    UCC-1    09/22/05    52937432    Xerox Corporation    Active    Color Copier
Casual Male Retail Group, Inc.    Delaware    UCC-1    12/01/05    53712156    Cisco Systems Capital Corporation    Active    Routers and Ethernet Computer Networking and Telecommunications Equipment
Casual Male Retail Group, Inc.    Delaware    UCC-1    05/01/06    61457340    IOS Capital    Active    Copiers/Scanners/Fax
Casual Male Retail Group, Inc.    Delaware    UCC-1    08/07/07    3172516    Banc of America Leasing & Capital, LLC    Active    Store equipment and fixtures, signage, distribution equipment and POS Equipment
Casual Male Retail Group, Inc.    Delaware    UCC-1    09/11/07    3439402    IKON Financial Services    Active    IKON (Generic) CPP650 Copier & Canon IR 5000
Casual Male Retail Group, Inc.    Delaware    UCC-1    09/11/07    3447181    IKON Financial Services    Active    Copier/Scanner


Casual Male Retail Group, Inc.    Delaware    UCC-1    12/28/07    4907001    De Lage Landen Financial Services, Inc.    Active    Clarion CX500 and Celerra NS502G-FD Storage Devices
Casual Male Retail Group, Inc.    Delaware    UCC-1    01/16/08    0202315    Banc of America Leasing & Capital, LLC    Active    Store equipment and fixtures, signage, distribution equipment and POS Equipment
Casual Male Retail Group, Inc.    Delaware    UCC-1    02/04/09    0385184    IBM Credit LLC    Active    IBM Value Plan Lease Reseller Software, Value Plan Lease Optical Storage Device


Exhibit 2.8

 

 

AMENDED AND RESTATED SWINGLINE NOTE

 

 

 

$15,000,000.00     November 10, 2010
    Boston, Massachusetts

FOR VALUE RECEIVED, the undersigned (individually, a “Borrower” and collectively, the “Borrowers”) jointly and severally promise to pay to the order of BANK OF AMERICA, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110 (with any subsequent holder, the “SwingLine Lender”), the principal sum of FIFTEEN MILLION DOLLARS ($15,000,000.00) or, if less, the aggregate unpaid principal balance of loans and advances made to the Borrowers pursuant to the SwingLine established pursuant to the Sixth Amended and Restated Loan and Security Agreement of even date herewith (as amended, modified, supplemented or restated and in effect from time to time, the “Loan Agreement”) between Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as Administrative Agent and as Collateral Agent (with any successor in such capacities, so referred to herein) for the benefit of the Revolving Credit Lenders, and the Revolving Credit Lenders, on the one hand, and each of the Borrowers, on the other hand, with interest at the rate and payable in the manner stated therein. This Amended and Restated SwingLine Note replaces in full that certain SwingLine Note dated December 28, 2006, made payable to Bank of America, N.A. as SwingLine Lender thereunder from the Borrowers.

This Amended and Restated SwingLine Note is the “SwingLine Note” to which reference is made in the Loan Agreement and is subject to all terms and provisions thereof. Terms used herein which are defined in the Loan Agreement are used as so defined.

The Administrative Agent’s books and records concerning loans and advances pursuant to the SwingLine, the accrual of interest thereon, and the repayment of such loans and advances, shall be prima facie evidence of the indebtedness hereunder.

The principal of, and interest on, this SwingLine Note shall be payable as provided in the Loan Agreement and shall be subject to acceleration as provided therein.

No delay or omission by the Administrative Agent or the SwingLine Lender in exercising or enforcing any of their respective powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any default hereunder shall operate as a waiver of any other default hereunder, nor as a continuing waiver.

The Borrowers, and each endorser and guarantor of this SwingLine Note, respectively waives presentment, demand, notice, and protest, and also waives any delay on the part of the


holder hereof. Each assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Administrative Agent with respect to this SwingLine Note and/or any Collateral or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of any Borrower or any other Person obligated on account of this SwingLine Note.

This SwingLine Note shall be binding upon each Borrower, and each endorser and guarantor hereof, and upon their respective heirs, successors, assigns, and representatives, and shall inure to the benefit of the SwingLine Lender and its successors, endorsees, and assigns.

The liabilities of each Borrower, and of any endorser or guarantor of this SwingLine Note, are joint and several; provided, however, the release by the SwingLine Lender or the Administrative Agent of any one or more such Persons, endorsers or guarantors shall not release any other Person obligated on account of this SwingLine Note. Each reference in this SwingLine Note to each Borrower, any endorser, and any guarantor, is to such Person individually and also to all such Persons jointly. No Person obligated on account of this SwingLine Note may seek contribution from any other Person also obligated unless and until all Liabilities, obligations and indebtedness to the SwingLine Lender of the Person from whom contribution is sought have been satisfied in full.

This SwingLine Note is delivered at the offices of the Administrative Agent in Boston, Massachusetts, shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof), and shall take effect as a sealed instrument.

Each Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Administrative Agent and the SwingLine Lender in the establishment and maintenance of their respective relationship with the Borrowers contemplated by this SwingLine Note, is relying thereon. EACH BORROWER, TO THE EXTENT ENTITLED THERETO, WAIVES ANY PRESENT OR FUTURE RIGHT OF THAT BORROWER, OR OF ANY GUARANTOR OR ENDORSER OF THAT BORROWER OR OF ANY OTHER PERSON LIABLE TO THE SWINGLINE LENDER ON ACCOUNT OF OR IN RESPECT TO THE LIABILITIES, TO A TRIAL BY JURY IN ANY CASE OR CONTROVERSY IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE SWINGLINE LENDER IS OR BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE ADMINISTRATIVE AGENT AND/OR THE SWINGLINE LENDER OR IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE SWINGLINE LENDER IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT TO, ANY RELATIONSHIP AMONGST OR BETWEEN ANY BORROWER, ANY SUCH PERSON, AND THE ADMINISTRATIVE AGENT AND/OR THE SWINGLINE LENDER.

[Signatures on Next Page]

 

2


 

    The Borrowers:
Witness:     CASUAL MALE RETAIL GROUP, INC.
    By   /s/ Dennis R. Hernreich
      Name:   Dennis R. Hernreich

/s/ James W. Caffarella

      Title:   Executive Vice President, Chief Operating Officer,
      Chief Financial Officer, Treasurer and Secretary
Witness:     CMRG APPAREL, LLC
    By:   /s/ Dennis R. Hernreich
      Name:   Dennis R. Hernreich

/s/ Kathleen E. Lehmann

      Title:   Executive Vice President, Chief Operating Officer,
      Chief Financial Officer, Treasurer and Secretary

1250979.2

 

3


EXHIBIT 2.10

 

 

AMENDED AND RESTATED REVOLVING CREDIT NOTE

 

 

 

$17,500,000.00   November     , 2010
  Boston, Massachusetts

FOR VALUE RECEIVED, the undersigned (individually, a “Borrower” and collectively, the “Borrowers”), jointly and severally promise to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (hereinafter, with any subsequent holders, the “Revolving Credit Lender”), c/o Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, the principal sum of SEVENTEEN MILLION FIVE HUNDRED THOUSAND AND  00/100 Dollars ($17,500,000.00) or, if less, the aggregate unpaid principal balance of Revolving Credit Loans made to or for the account of the Borrowers pursuant to the Sixth Amended and Restated Loan and Security Agreement dated as of November     , 2010 (as amended, modified, supplemented or restated and in effect from time to time, the “Loan Agreement”) between Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as Administrative Agent and as Collateral Agent (with any successor in such capacities, so referred to herein) for the benefit of the Revolving Credit Lenders, and the Revolving Credit Lenders, on the one hand, and each of the Borrowers, on the other hand, with interest at the rate and payable in the manner stated therein. This Amended and Restated Revolving Credit Note replaces in full the Amended and Restated Revolving Credit Note(s) held by the Revolving Credit Lender and issued in connection with the Existing Loan Agreement.

This Amended and Restated Revolving Credit Note is a “Revolving Credit Note” to which reference is made in the Loan Agreement and is subject to all terms and provisions thereof. Terms used herein which are defined in the Loan Agreement are used as so defined.

The principal of, and interest on, this Revolving Credit Note shall be payable as provided in the Loan Agreement and shall be subject to acceleration as provided therein.

The Administrative Agent’s books and records concerning loans and advances pursuant to the Revolving Credit Facility, the accrual of interest thereon, and the repayment of such loans and advances, shall be prima facie evidence of the indebtedness hereunder. Each of the Borrowers shall be bound by and obligated on account of any increase or decrease in the amount of the holder’s Revolving Credit Dollar Commitment notwithstanding that such increase or decrease may not be reflected on this Revolving Credit Note.

No delay or omission by the Administrative Agent or the Revolving Credit Lender in exercising or enforcing any of the Administrative Agent’s or the Revolving Credit Lender’s powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any default hereunder shall operate as a waiver of any other default hereunder, nor as a continuing waiver.


The Borrowers, and each endorser and guarantor of this Revolving Credit Note, respectively waives presentment, demand, notice, and protest, and also waives any delay on the part of the holder hereof. Each assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Administrative Agent with respect to this Revolving Credit Note and/or any Collateral or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of any Borrower or any other Person obligated on account of this Revolving Credit Note.

This Revolving Credit Note shall be binding upon each Borrower, and each endorser and guarantor hereof, and upon their respective heirs, successors, assigns, and representatives, and shall inure to the benefit of the Revolving Credit Lender and its successors, endorsees, and assigns.

The liabilities of each Borrower, and of any endorser or guarantor of this Revolving Credit Note, are joint and several; provided, however, the release by the Administrative Agent or the Revolving Credit Lender of any one or more such Persons, endorsers or guarantors shall not release any other Person obligated on account of this Revolving Credit Note. Each reference in this Revolving Credit Note to each Borrower, any endorser, and any guarantor, is to such Person individually and also to all such Persons jointly. No Person obligated on account of this Revolving Credit Note may seek contribution from any other Person also obligated unless and until all Liabilities, obligations and indebtedness to the Revolving Credit Lender of the Person from whom contribution is sought have been satisfied in full.

This Revolving Credit Note is delivered at the offices of the Administrative Agent in Boston, Massachusetts, shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof), and shall take effect as a sealed instrument.

Each Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Administrative Agent and the Revolving Credit Lender, in the establishment and maintenance of their respective relationship with the Borrowers contemplated by this Revolving Credit Note, is relying thereon. EACH BORROWER, TO THE EXTENT ENTITLED THERETO, WAIVES ANY PRESENT OR FUTURE RIGHT OF THAT BORROWER, OR OF ANY GUARANTOR OR ENDORSER OF THAT BORROWER OR OF ANY OTHER PERSON LIABLE TO THE REVOLVING CREDIT LENDER ON ACCOUNT OF OR IN RESPECT TO THE LIABILITIES, TO A TRIAL BY JURY IN ANY CASE OR CONTROVERSY IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER IS OR BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER OR IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT TO, ANY RELATIONSHIP AMONGST OR BETWEEN ANY BORROWER, ANY SUCH PERSON, AND THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER.

[Remainder of page left intentionally blank]

 

2


 

        The Borrowers:
Witness:     CASUAL MALE RETAIL GROUP, INC.
    By  

/s/ Dennis R. Hernreich

      Name:   Dennis R. Hernreich

/s/ James Caffarella

      Title:   Executive Vice President, Chief Operating Officer,
      Chief Financial Officer, Treasurer and Secretary
Witness:     CMRG APPAREL, LLC
    By  

/s/ Dennis R. Hernreich

      Name:   Dennis R. Hernreich

/s/ Kathleen E. Lehmann

      Title:   Executive Vice President, Chief Operating Officer,
        Chief Financial Officer, Treasurer and Secretary

1250966.2

 

3


 

 

AMENDED AND RESTATED REVOLVING CREDIT NOTE

 

 

 

$17,500,000.00   November     , 2010
  Boston, Massachusetts

FOR VALUE RECEIVED, the undersigned (individually, a “Borrower” and collectively, the “Borrowers”), jointly and severally promise to pay to the order of JPMORGAN CHASE BANK, N.A. (hereinafter, with any subsequent holders, the “Revolving Credit Lender”), c/o Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, the principal sum of SEVENTEEN MILLION FIVE HUNDRED THOUSAND AND  00/100 Dollars ($17,500,000.00) or, if less, the aggregate unpaid principal balance of Revolving Credit Loans made to or for the account of the Borrowers pursuant to the Sixth Amended and Restated Loan and Security Agreement dated as of November     , 2010 (as amended, modified, supplemented or restated and in effect from time to time, the “Loan Agreement”) between Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as Administrative Agent and as Collateral Agent (with any successor in such capacities, so referred to herein) for the benefit of the Revolving Credit Lenders, and the Revolving Credit Lenders, on the one hand, and each of the Borrowers, on the other hand, with interest at the rate and payable in the manner stated therein. This Amended and Restated Revolving Credit Note replaces in full the Amended and Restated Revolving Credit Note(s) held by the Revolving Credit Lender and issued in connection with the Existing Loan Agreement.

This Amended and Restated Revolving Credit Note is a “Revolving Credit Note” to which reference is made in the Loan Agreement and is subject to all terms and provisions thereof. Terms used herein which are defined in the Loan Agreement are used as so defined.

The principal of, and interest on, this Revolving Credit Note shall be payable as provided in the Loan Agreement and shall be subject to acceleration as provided therein.

The Administrative Agent’s books and records concerning loans and advances pursuant to the Revolving Credit Facility, the accrual of interest thereon, and the repayment of such loans and advances, shall be prima facie evidence of the indebtedness hereunder. Each of the Borrowers shall be bound by and obligated on account of any increase or decrease in the amount of the holder’s Revolving Credit Dollar Commitment notwithstanding that such increase or decrease may not be reflected on this Revolving Credit Note.

No delay or omission by the Administrative Agent or the Revolving Credit Lender in exercising or enforcing any of the Administrative Agent’s or the Revolving Credit Lender’s powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any default hereunder shall operate as a waiver of any other default hereunder, nor as a continuing waiver.


The Borrowers, and each endorser and guarantor of this Revolving Credit Note, respectively waives presentment, demand, notice, and protest, and also waives any delay on the part of the holder hereof. Each assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Administrative Agent with respect to this Revolving Credit Note and/or any Collateral or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of any Borrower or any other Person obligated on account of this Revolving Credit Note.

This Revolving Credit Note shall be binding upon each Borrower, and each endorser and guarantor hereof, and upon their respective heirs, successors, assigns, and representatives, and shall inure to the benefit of the Revolving Credit Lender and its successors, endorsees, and assigns.

The liabilities of each Borrower, and of any endorser or guarantor of this Revolving Credit Note, are joint and several; provided, however, the release by the Administrative Agent or the Revolving Credit Lender of any one or more such Persons, endorsers or guarantors shall not release any other Person obligated on account of this Revolving Credit Note. Each reference in this Revolving Credit Note to each Borrower, any endorser, and any guarantor, is to such Person individually and also to all such Persons jointly. No Person obligated on account of this Revolving Credit Note may seek contribution from any other Person also obligated unless and until all Liabilities, obligations and indebtedness to the Revolving Credit Lender of the Person from whom contribution is sought have been satisfied in full.

This Revolving Credit Note is delivered at the offices of the Administrative Agent in Boston, Massachusetts, shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof), and shall take effect as a sealed instrument.

Each Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Administrative Agent and the Revolving Credit Lender, in the establishment and maintenance of their respective relationship with the Borrowers contemplated by this Revolving Credit Note, is relying thereon. EACH BORROWER, TO THE EXTENT ENTITLED THERETO, WAIVES ANY PRESENT OR FUTURE RIGHT OF THAT BORROWER, OR OF ANY GUARANTOR OR ENDORSER OF THAT BORROWER OR OF ANY OTHER PERSON LIABLE TO THE REVOLVING CREDIT LENDER ON ACCOUNT OF OR IN RESPECT TO THE LIABILITIES, TO A TRIAL BY JURY IN ANY CASE OR CONTROVERSY IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER IS OR BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER OR IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT TO, ANY RELATIONSHIP AMONGST OR BETWEEN ANY BORROWER, ANY SUCH PERSON, AND THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER.

[Remainder of page left intentionally blank]

 

2


 

        The Borrowers:
Witness:     CASUAL MALE RETAIL GROUP, INC.
    By  

/s/ Dennis R. Hernreich

      Name:   Dennis R. Hernreich

/s/ James Caffarella

      Title:   Executive Vice President, Chief Operating Officer,
      Chief Financial Officer, Treasurer and Secretary
Witness:     CMRG APPAREL, LLC
    By  

/s/ Dennis R. Hernreich

      Name:   Dennis R. Hernreich

/s/ Kathleen E. Lehmann

      Title:   Executive Vice President, Chief Operating Officer,
        Chief Financial Officer, Treasurer and Secretary

1250966.2

 

3


 

 

AMENDED AND RESTATED REVOLVING CREDIT NOTE

 

 

 

$17,500,000.00   November     , 2010
  Boston, Massachusetts

FOR VALUE RECEIVED, the undersigned (individually, a “Borrower” and collectively, the “Borrowers”), jointly and severally promise to pay to the order of PNC BANK, NATIONAL ASSOCIATION (hereinafter, with any subsequent holders, the “Revolving Credit Lender”), c/o Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, the principal sum of SEVENTEEN MILLION FIVE HUNDRED THOUSAND AND  00/100 Dollars ($17,500,000.00) or, if less, the aggregate unpaid principal balance of Revolving Credit Loans made to or for the account of the Borrowers pursuant to the Sixth Amended and Restated Loan and Security Agreement dated as of November     , 2010 (as amended, modified, supplemented or restated and in effect from time to time, the “Loan Agreement”) between Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as Administrative Agent and as Collateral Agent (with any successor in such capacities, so referred to herein) for the benefit of the Revolving Credit Lenders, and the Revolving Credit Lenders, on the one hand, and each of the Borrowers, on the other hand, with interest at the rate and payable in the manner stated therein. This Amended and Restated Revolving Credit Note replaces in full the Amended and Restated Revolving Credit Note(s) held by the Revolving Credit Lender and issued in connection with the Existing Loan Agreement.

This Amended and Restated Revolving Credit Note is a “Revolving Credit Note” to which reference is made in the Loan Agreement and is subject to all terms and provisions thereof. Terms used herein which are defined in the Loan Agreement are used as so defined.

The principal of, and interest on, this Revolving Credit Note shall be payable as provided in the Loan Agreement and shall be subject to acceleration as provided therein.

The Administrative Agent’s books and records concerning loans and advances pursuant to the Revolving Credit Facility, the accrual of interest thereon, and the repayment of such loans and advances, shall be prima facie evidence of the indebtedness hereunder. Each of the Borrowers shall be bound by and obligated on account of any increase or decrease in the amount of the holder’s Revolving Credit Dollar Commitment notwithstanding that such increase or decrease may not be reflected on this Revolving Credit Note.

No delay or omission by the Administrative Agent or the Revolving Credit Lender in exercising or enforcing any of the Administrative Agent’s or the Revolving Credit Lender’s powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any default hereunder shall operate as a waiver of any other default hereunder, nor as a continuing waiver.


The Borrowers, and each endorser and guarantor of this Revolving Credit Note, respectively waives presentment, demand, notice, and protest, and also waives any delay on the part of the holder hereof. Each assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Administrative Agent with respect to this Revolving Credit Note and/or any Collateral or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of any Borrower or any other Person obligated on account of this Revolving Credit Note.

This Revolving Credit Note shall be binding upon each Borrower, and each endorser and guarantor hereof, and upon their respective heirs, successors, assigns, and representatives, and shall inure to the benefit of the Revolving Credit Lender and its successors, endorsees, and assigns.

The liabilities of each Borrower, and of any endorser or guarantor of this Revolving Credit Note, are joint and several; provided, however, the release by the Administrative Agent or the Revolving Credit Lender of any one or more such Persons, endorsers or guarantors shall not release any other Person obligated on account of this Revolving Credit Note. Each reference in this Revolving Credit Note to each Borrower, any endorser, and any guarantor, is to such Person individually and also to all such Persons jointly. No Person obligated on account of this Revolving Credit Note may seek contribution from any other Person also obligated unless and until all Liabilities, obligations and indebtedness to the Revolving Credit Lender of the Person from whom contribution is sought have been satisfied in full.

This Revolving Credit Note is delivered at the offices of the Administrative Agent in Boston, Massachusetts, shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof), and shall take effect as a sealed instrument.

Each Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Administrative Agent and the Revolving Credit Lender, in the establishment and maintenance of their respective relationship with the Borrowers contemplated by this Revolving Credit Note, is relying thereon. EACH BORROWER, TO THE EXTENT ENTITLED THERETO, WAIVES ANY PRESENT OR FUTURE RIGHT OF THAT BORROWER, OR OF ANY GUARANTOR OR ENDORSER OF THAT BORROWER OR OF ANY OTHER PERSON LIABLE TO THE REVOLVING CREDIT LENDER ON ACCOUNT OF OR IN RESPECT TO THE LIABILITIES, TO A TRIAL BY JURY IN ANY CASE OR CONTROVERSY IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER IS OR BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER OR IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT TO, ANY RELATIONSHIP AMONGST OR BETWEEN ANY BORROWER, ANY SUCH PERSON, AND THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER.

[Remainder of page left intentionally blank]

 

2


 

        The Borrowers:
Witness:     CASUAL MALE RETAIL GROUP, INC.
    By  

/s/ Dennis R. Hernreich

      Name:   Dennis R. Hernreich

/s/ James Caffarella

      Title:   Executive Vice President, Chief Operating Officer,
      Chief Financial Officer, Treasurer and Secretary
Witness:     CMRG APPAREL, LLC
    By  

/s/ Dennis R. Hernreich

      Name:   Dennis R. Hernreich

/s/ Kathleen E. Lehmann

      Title:   Executive Vice President, Chief Operating Officer,
        Chief Financial Officer, Treasurer and Secretary

1250966.2

 

3


 

 

AMENDED AND RESTATED REVOLVING CREDIT NOTE

 

 

 

$22,500,000.00   November     , 2010
  Boston, Massachusetts

FOR VALUE RECEIVED, the undersigned (individually, a “Borrower” and collectively, the “Borrowers”), jointly and severally promise to pay to the order of BANK OF AMERICA, N.A. (hereinafter, with any subsequent holders, the “Revolving Credit Lender”), c/o Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, the principal sum of TWENTY-TWO MILLION FIVE HUNDRED THOUSAND AND  00/100 Dollars ($22,500,000.00) or, if less, the aggregate unpaid principal balance of Revolving Credit Loans made to or for the account of the Borrowers pursuant to the Sixth Amended and Restated Loan and Security Agreement dated as of November     , 2010 (as amended, modified, supplemented or restated and in effect from time to time, the “Loan Agreement”) between Bank of America, N.A., a national banking association having an office at 100 Federal Street, 9th Floor, Boston, Massachusetts 02110, as Administrative Agent and as Collateral Agent (with any successor in such capacities, so referred to herein) for the benefit of the Revolving Credit Lenders, and the Revolving Credit Lenders, on the one hand, and each of the Borrowers, on the other hand, with interest at the rate and payable in the manner stated therein. This Amended and Restated Revolving Credit Note replaces in full the Amended and Restated Revolving Credit Note(s) held by the Revolving Credit Lender and issued in connection with the Existing Loan Agreement.

This Amended and Restated Revolving Credit Note is a “Revolving Credit Note” to which reference is made in the Loan Agreement and is subject to all terms and provisions thereof. Terms used herein which are defined in the Loan Agreement are used as so defined.

The principal of, and interest on, this Revolving Credit Note shall be payable as provided in the Loan Agreement and shall be subject to acceleration as provided therein.

The Administrative Agent’s books and records concerning loans and advances pursuant to the Revolving Credit Facility, the accrual of interest thereon, and the repayment of such loans and advances, shall be prima facie evidence of the indebtedness hereunder. Each of the Borrowers shall be bound by and obligated on account of any increase or decrease in the amount of the holder’s Revolving Credit Dollar Commitment notwithstanding that such increase or decrease may not be reflected on this Revolving Credit Note.

No delay or omission by the Administrative Agent or the Revolving Credit Lender in exercising or enforcing any of the Administrative Agent’s or the Revolving Credit Lender’s powers, rights, privileges, remedies, or discretions hereunder shall operate as a waiver thereof on that occasion nor on any other occasion. No waiver of any default hereunder shall operate as a waiver of any other default hereunder, nor as a continuing waiver.


The Borrowers, and each endorser and guarantor of this Revolving Credit Note, respectively waives presentment, demand, notice, and protest, and also waives any delay on the part of the holder hereof. Each assents to any extension or other indulgence (including, without limitation, the release or substitution of Collateral) permitted by the Administrative Agent with respect to this Revolving Credit Note and/or any Collateral or any extension or other indulgence with respect to any other liability or any collateral given to secure any other liability of any Borrower or any other Person obligated on account of this Revolving Credit Note.

This Revolving Credit Note shall be binding upon each Borrower, and each endorser and guarantor hereof, and upon their respective heirs, successors, assigns, and representatives, and shall inure to the benefit of the Revolving Credit Lender and its successors, endorsees, and assigns.

The liabilities of each Borrower, and of any endorser or guarantor of this Revolving Credit Note, are joint and several; provided, however, the release by the Administrative Agent or the Revolving Credit Lender of any one or more such Persons, endorsers or guarantors shall not release any other Person obligated on account of this Revolving Credit Note. Each reference in this Revolving Credit Note to each Borrower, any endorser, and any guarantor, is to such Person individually and also to all such Persons jointly. No Person obligated on account of this Revolving Credit Note may seek contribution from any other Person also obligated unless and until all Liabilities, obligations and indebtedness to the Revolving Credit Lender of the Person from whom contribution is sought have been satisfied in full.

This Revolving Credit Note is delivered at the offices of the Administrative Agent in Boston, Massachusetts, shall be governed by the laws of The Commonwealth of Massachusetts (without regard to the conflict of laws principles thereof), and shall take effect as a sealed instrument.

Each Borrower makes the following waiver knowingly, voluntarily, and intentionally, and understands that the Administrative Agent and the Revolving Credit Lender, in the establishment and maintenance of their respective relationship with the Borrowers contemplated by this Revolving Credit Note, is relying thereon. EACH BORROWER, TO THE EXTENT ENTITLED THERETO, WAIVES ANY PRESENT OR FUTURE RIGHT OF THAT BORROWER, OR OF ANY GUARANTOR OR ENDORSER OF THAT BORROWER OR OF ANY OTHER PERSON LIABLE TO THE REVOLVING CREDIT LENDER ON ACCOUNT OF OR IN RESPECT TO THE LIABILITIES, TO A TRIAL BY JURY IN ANY CASE OR CONTROVERSY IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER IS OR BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER OR IN WHICH THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF, OR IS IN RESPECT TO, ANY RELATIONSHIP AMONGST OR BETWEEN ANY BORROWER, ANY SUCH PERSON, AND THE ADMINISTRATIVE AGENT AND/OR THE REVOLVING CREDIT LENDER.

[Remainder of page left intentionally blank]

 

2


 

        The Borrowers:
Witness:     CASUAL MALE RETAIL GROUP, INC.
    By  

/s/ Dennis R. Hernreich

      Name:   Dennis R. Hernreich

/s/ James Caffarella

      Title:   Executive Vice President, Chief Operating Officer,
      Chief Financial Officer, Treasurer and Secretary
Witness:     CMRG APPAREL, LLC
    By  

/s/ Dennis R. Hernreich

      Name:   Dennis R. Hernreich

/s/ Kathleen E. Lehmann

      Title:   Executive Vice President, Chief Operating Officer,
        Chief Financial Officer, Treasurer and Secretary

1250966.2

 

3


EXHIBIT 2.23

Revolving Credit Lenders’ Commitments

 

Revolving Credit Lender

   Revolving Credit
Dollar Commitment
     Revolving Credit
Percentage
Commitment
 

Bank of America, N.A.

   $ 22,500,000         30.000000000

PNC Bank, National Association

   $ 17,500,000         23.333333333

JPMorgan Chase Bank, N.A.

   $ 17,500,000         23.333333333

Wells Fargo Bank, National Association

   $ 17,500,000         23.333333333

Total

   $ 75,000,000         100


Exhibit 3.8(b)

Existing Defaults under Material Contracts

None.


Exhibit 4.2

Loan Parties’ Information

 

                        Name    Jurisdiction of Organization    Federal Tax ID #

Casual Male Retail Group, Inc.

   Delaware    04-2623104

CMRG Apparel, LLC

   Delaware    02-0525277

Casual Male RBT, LLC

   Delaware    20-1653061

Casual Male RBT (U.K.) LLC

   Delaware    20-1653147

Casual Male CANADA Inc.

   Ontario, Canada    BN 86224-0074

Capture, LLC

   Virginia    33-1003155

Casual Male Store, LLC

   Delaware    20-1627444

Casual Male Retail Store, LLC

   Delaware    20-1628392

Casual Male Direct, LLC

   Delaware    20-1628414

Think Big Products LLC

   Delaware    20-5572744

Canton PL Liquidating Corp.

   Nevada    13-4222128

Casual Male (Europe) LLC

   Delaware    26-0854419

CMRG Holdco, LLC

   Delaware    26-1530177

CMRG Apparel Management, Inc.

   Delaware    26-1530263

CMXL Apparel, LP

   Delaware    26-153065

CMRG Global Holdings, Ltd.

   Cayman Islands    TR-208869

CMRG Europe B.V.

   Netherlands    NL8194.91.524.B01


EXHIBIT 4.3

TRADE NAMES

 

(a)(i) The following is a list of all names under which any Loan Party conducted business during the five (5) years preceding the date of this Agreement:

 

TRADE NAMES USED BY CASUAL MALE RBT, LLC & CASUAL MALE RBT (U.K.) LLC **

 

Rochester Big & Tall Clothing (07/01/74 – Pres.)

Rochester Clothing Co. (01/02/57 – 07/01/74)

Rochester Big & Tall (07/01/74 – Pres.)

Rochester Sport (not used)

California Big & Tall (not used)

Rochester Big & Tall Newark Park, Inc. *

Rochester Big & Tall Stevens Creek, Inc. *

 

*       In use until (circa) July 1991

**     By way of assignment pursuant to acquisition of Rochester Big & Tall Clothing on 10/29/04

 

TRADE NAMES ACQUIRED FROM INTELLIGENT TECHNOLOGIES, INC. d/b/a “SUPERSIZEWORLD” *

 

SuperSizeWorld (10/18/06 – 10/31/06) **

Big Lou Toilet Seat (not used)

MegaBand (not used)

MegaTowel (not used)

SuperSize Towel (not used)

SuperValue Towel (not used)

MegaHanger (not used)

Hangerzilla (not used)

 

*       By way of assignment pursuant to acquisition of supersizeworld.com business of Intelligent Technologies, Inc. on 10/18/06

**     The business and operations of SuperSizeWorld is conducted by Think Big Products, LLC d/b/a Living XL

  

TRADE NAMES USED BY CASUAL MALE RETAIL GROUP, INC.

 

Designs, Inc. (01/29/76 – 08/07/02)

Casual Male Retail Group, Inc. (08/08/02 – Pres.)

Levi’s Outlet by Designs *

Dockers Outlet by Designs *

Designs Exclusively Levi Strauss & Co. *

Designs Exclusively Levi’s *

 

*       In use from pre-1997 to 11/11/04

 

TRADE NAMES USED BY CASUAL MALE STORE, LLC & CASUAL MALE RETAIL STORE, LLC

 

Casual Male (in use since 11/01/73)

Casual Male Big & Tall (in use since 11/01/73)

Casual Male XL (in use since 08/10/05)

Destination XL (in use since 07/08/10)

DXL (in use since 07/08/10)

 

TRADE NAMES USED BY THINK BIG PRODUCTS, LLC

 

LivingXL (in use since 11/01/06)

 

TRADE NAMES USED BY CASUAL MALE DIRECT, LLC

 

ShoesXL (in use since 01/01/07)

Think Big (in use since 01/01/93)

Think Big Direct (in use since 01/01/93)

B&T Big & Tall Factory Direct (in use since 09/07/06)

B&T Factory Direct (in use since 09/07/06)

 

TRADE NAMES USED BY CASUAL MALE CANADA INC.

 

Casual Male (in use since 05/07/04)

Casual Male Big & Tall (in use since 05/07/04)

Casual Male XL (in use since 03/24/06)


 

(a)(ii) All Persons with whom any Loan Party consolidated or merged or from whom any Loan Party acquired in a single transaction or in a series of related transactions substantially all of such Person’s assets, in each case during the five (5) years preceding the date of this Agreement, is as follows:

 

  1. Casual Male Retail Group, Inc. and its wholly-owned subsidiary, Think Big Products, LLC, consummated the acquisition of certain assets and assumption of certain liabilities of the supersizeworld.com business from Intelligent Technologies, Inc., a Washington corporation, and Timothy C. Barry, an individual, pursuant to Asset Purchase Agreement, dated October 18, 2006.

 

NOTE:   CMRG Apparel, LLC is the applicant/registrant for all trademark applications and registrations for the trademarks/service marks listed in Exhibit A to Trademark Security Agreement.


Exhibit 4.4(b)

Exceptions to Property Rights

Casual Male Retail Group, Inc., and certain of its subsidiaries (“Casual Male”), use the trademarks, trade names, trade styles, brand names, service marks and logos of third party suppliers to the extent that they are affixed to the inventory supplied to Casual Male but otherwise only with each supplier’s prior consent in each instance.


Exhibit 4.5

Locations, Leases and Landlords

Casual Male Retail Group, Inc. (“CMRG”) leases its headquarters office, at 555 Turnpike Street, Canton, Massachusetts from Spirit SPE Canton, LLC, a Delaware limited liability company, a wholly-owned subsidiary of Spirit Finance Corporation, with a corporate address of 1431 N. Scottsdale Road, Suite 200, Scottsdale, Arizona 85254-2711. The property consists of a 1-building, 2-story multi-tenant warehouse/flex industrial facility containing 755,992 gross square feet on approximately 27.3-acre parcel of land.

As of July 31, 2010, CMRG leases and operates approximately 451 Casual Male XL stores, 1 Destination XL store and 19 Rochester Big and Tall stores. See attached schedule for leases of CMRG.


Exhibit 4.5

Locations, Leases, and Landlords

 

STORE  

LANDLORD

#  

Store Address

 

City

 

State

  Zip  

LL Name

 

LL Address

 

LL Address

 

City

 

State

  Zip
4295   463 SEVENTH AVE   NEW YORK CITY   New York   10018   ADAMS & COMPANY REAL ESTATE LLC   411 5TH AVENUE     NEW YORK   New York   10016-2203
5000   700 MISSION STREET   SAN FRANCISCO   California   94103   706 MISSION STREET CO LLC   JMA VENTURES   FOUR EMBARCADERO CENTER SUITE 3100   SAN FRANCISCO   California   94111
5008   9737 WILSHIRE BLVD., SUITE 100-E   BEVERLY HILLS   California   90212   BEVERLY HILLS GATEWAY, LP   OFFICE OF THE BUILDING   9777 WILSHIRE BLVD SUITE 815   BEVERLY HILLS   California   90212
5011   840 N. MICHIGAN AVENUE   CHICAGO   Illinois   60611   PMUDI, LLC   US EQUITIES ASSET MANAGEMENT, LLC   20 NORTH MICHIGAN AVE., SUITE 325   CHICAGO   Illinois   60602
5012   399 BOYLSTON STREET   BOSTON   Massachusetts   02116   SRI EIGHT 399 BOYLSTON LLC   SHORENSTEIN COMPANY LLC/CORP SECRETARY   235 MONTGOMERY ST., 16TH FLOOR   SAN FRANCISCO   California   94104
5013   1301 AVENUE OF THE AMERICAS   NEW YORK   New York   10019   1301 PROPERTIES OWNER LP   c/o PARAMOUNT GROUP, INC   1633 BROADWAY, SUITE 1801   NEW YORK   New York   10019
5014   11661 PRESTON FOREST VILLAGE RD. STE 101   DALLAS   Texas   75230   KIMCO REALTY CORPORATION   PO BOX 5020   3333 NEW HYDE PARK ROAD   NEW HYDE PARK   New York   11042-0020
5015   3157 PEACHTREE ROAD   ATLANTA   Georgia   30305   GEORGE E. MAYER & PHILIP OSBOURNE   PO BOX 2006     HIGHLANDS   North Carolina   28741
5015   3157 PEACHTREE ROAD   ATLANTA   Georgia   30305   GEORGE E. MAYER & PHILIP OSBOURNE   PO BOX 2006     HIGHLANDS   North Carolina   28741
5016   1020 CONNECTICUT AVE, NW   WASHINGTON   DC   20036   WASHINGTON SQUARE LP, LLP   LERNER CORP, MANAGING AGENT/ LEGAL   2000 TOWER OAKS BLVD., 8TH FL   ROCKVILLE   Maryland   20852
5022   901-H SOUTH COAST DRIVE   COSTA MESA   California   92626   METRO POINTE RETAIL ASSOCIATES II   COMMERCIAL RETAIL DEPT   949 SOUTH COAST DR., SUITE 600   COSTA MESA   California   92626
5025   BISCAYNE (US1) & NE 187TH STREET   AVENTURA   Florida   33180   PRUDENTIAL INSURANCE CO. OF AMERICA   SEC COMMERCIAL REALTY GROUP, INC   7284 W. PALMETTO PARK RD. STE 210S   BOCA RATON   Florida   33433-3414
5028   1801 5TH AVENUE   SEATTLE   Washington   98101   TIMES SQUARE BUILDING LLC   VANCE CORP   1809 7TH AVE., SUITE 300   SEATTLE   Washington   98101-1313
5029   1625 NORTHERN BOULEVARD   MANHASSET   New York   11030   G&M BAHAR CORP   BAHAR CORP   108-18 QUEENS BLVD, SUITE 705   FOREST HILLS   New York   11375
5033   150 ALLENDALE RD., BLG 1, 2N FL   KING OF PRUSSIA   Pennsylvania   19406   CPW GRAT TRUSTS U/A 4/19/99, PA TRUST   WILLNER PROPERTIES   150 ALLENDALE ROAD   KING OF PRUSSIA   Pennsylvania   19406
5101   1337 NORTH MAIN STREET   WALNUT CREEK   California   94596   STOW PARTNERS   MAJORIE FREDERICKS   16 PARK AVE   WALNUT CREEK   California   94595
5103   2301 GLADES ROAD, BAY 700   BOCA RATON   Florida   33431   GLADES-BUTTS ASSOCIATES, LTD   SCHMIER & FEURRING PROPERTIES, INC. C/O   7777 GLADES ROAD, SUITE 310   BOCA RATON   Florida   33434
5401   202 RED APPLE COURT   CENTRAL VALLEY   New York   10917   CPG PARTNERS, LP   CHELSEA PROPERTY GROUP, INC   105 EISENHOWER PARKWAY   ROSELAND   New Jersey   07068
59059   25000 SOUTHFIELD ROAD   SOUTHFIELD   Michigan   48075   PLATINUM ASSOCIATES, L.L.C.   VELICK PROPERTIES, INC. C/O   30701 W. TEN MILE ROAD #500   FARMINGTON HILLS   Michigan   48336
59180   443 ROUTE 17 SOUTH   PARAMUS   New Jersey   07652-   ROBERT WELLS     19 SCARSDALE FARM ROAD   SCARSDALE   New York   10583
59412   150 WORCESTER ROAD   FRAMINGHAM   Massachusetts   01701-   FRAMINGHAM-150 FR REALTY LP     1051 RESERVOIR AVE.   CRANSTON   Rhode Island   02910
9052   605 NORTH 98TH STREET   OMAHA   Nebraska   68114   LUND COMPANY   120 REGENCY PARKWAY   SUITE 116   OMAHA   Nebraska   68114
9053   8721 METCALF AVENUE   OVERLAND PARK   Kansas   66212   METCALF 87 ASSOCAITES, LLC   MARKS, NELSON, VOHLAND & CAMPBELL   7701 COLLEGE BLVD., SUITE 150   OVERLAND PARK   Kansas   66210
9054   445 EAST TOWNLINE ROAD   VERNON HILLS   Illinois   60061   445 TOWNLINE INVESTMENTS, LLC   C/O TERRACO INC   3201 OLD GLENVIEW RD., SUITE 300   WILMETTE   Illinois   60091
9055   1113 KENNY CENTRE   COLUMBUS   Ohio   43220   SCHOTTENSTEIN PROPERTY GROUP   1798 FREBIS AVENUE     COLUMBUS   Ohio   43206
9056   847 S. WHITE STATION ROAD   MEMPHIS   Tennessee   38117   UNION REALTY COMPANY   BELZ ENTERPRISES   100 PEABODY PLACE SUITE 1400   MEMPHIS   Tennessee   38103
9058   1026 SOUTH BRENTWOOD BLVD.   RICHMOND HEIGHT   Missouri   63117   WAGNER ENTERPRISES, LLC     4604 SE 20TH PL   CAPE CORAL   Florida   33904
9059   26300 SOUTHFIELD ROAD   LATHRUP VILLAGE   Michigan   48076   26300 INVESTMENTS LP   C/O TERESA KARLAVAGE   30600 TELEGRAPH RD-SUITE 3244   BINGHAM FARMS   Michigan   48025
9060   3480 FAIRLANE DRIVE   ALLEN PARK   Michigan   48101   GREEN DRIVE LLC   LORMAX STERN DEVELOPMENT CO   6755 DALY ROAD   WEST BLOOMFIELD   Michigan   48322
9063   43115 CRESCENT BLVD.   NOVI   Michigan   48375   NOVI TOWN CENTER INVESTORS LLC   242 TRUMBULL STREET     HARTFORD   Connecticut   06156
9064   13967 LAKESIDE CIRCLE   STERLING HEIGHTS   Michigan   48313   LAKE BELLAIRE, LLC   MICHIGAN PROPERTY GROUP   34355 GLOUSTER CIRCLE   FARMINGTON HILLS   Michigan   48331
9066   540 US HIGHWAY 46   TOTOWA   New Jersey   07512   ABLAR ASSOCIATES, LLC   19195 MYSTIC POINTE DRIVE   UNIT 2001   AVENTURA   Florida   33180
9067   236 LAFAYETTE ROAD   MENLO PARK   New Jersey   08837   MILLED FAMILY LIMITED PARTNERSHIP   499 ERNSTON ROAD   PO BOX 741   PARLIN   New Jersey   08859
9069   7939 S. ORANGE BLOSSOM TRAIL   ORLANDO   Florida   32809   DDRM SKYVIEW PLAZA LLC   DEVELOPERS DIVERSIFIED REALTY CORP   3300 ENTERPRISE PARKWAY   BEACHWOOD   Ohio   44122
9070   11503A ROCKVILLE PIKE   ROCKVILLE   Maryland   20852   11503 ROCKVILLE PIKE LLC   c/o SAUL HOLDINGS LP   7501 WISCONSIN AVE, SUITE 1500 EAST   BETHESDA   Maryland   20814-6522
9071   1457 W. SOUTHERN AVE., SUITE 13   MESA   Arizona   85202   HJ MESA, LLC   JAKOSKY PROEPRTIES   503 32nd ST., STE 200   NEWPORT BEACH   California   92663
9072   1725 NORTH TOWN EAST BLVD., SUITE 205   MESQUITE   Texas   75150   MESQUITE EMPORIUM, LP   QUINE & ASSOCIATES, INC   PO BOX 833009   RICHARDSON   Texas   75083-3009
9073   1025 N. CENTRAL EXPRESSWAY   PLANO   Texas   75075   RREEF ASSET MANAGER   200 CRESCENT COURT   SUITE 560   DALLAS   Texas   75201
9074   5393-A WESTHEIMER   HOUSTON   Texas   77056   UPTOWN JOINT VENTURE   105 TOWN CENTER ROAD   PO BOX 60851   KING OF PRUSSIA   Pennsylvania   19406-2394
9076   4100 S. COOPER STREET   ARLINGTON   Texas   76015   GRAVLEE COMMERCIAL   5956 SHERRY LANE   SUITE 1000   DALLAS   Texas   75225
9080   1004 WEST VALLEY PARKWAY #23   ESCONDIDO   California   92025   MC STRAUSS COMPANY   990 HIGHLAND DRIVE #200     SOLANA BEACH   California   92075
9081   340 N. GLENDALE AVENUE, #340   GLENDALE   California   91206   GLENDALE GARDEN CENTER, LLC   1101 EAST 18TH STREET     LOS ANGELES   California   90021
9082   19422 NORDHOFF STREET   NORTHRIDGE   California   91324   19420 NORDOFF LLC   KELLER WILLIAMS REALTY   2701 OCEAN PARK BLVD, SUITE 140   SANTA MONICA   California   90405
9083   11075 IH-10 WEST SUITE 302   SAN ANTONIO   Texas   78230   INLAND SOUTHWEST MANAGEMENT LLC #35105   ATTN: CLAUDETTE ZOCH   5741 LEGACY DRIVE, STE 315   PLANO   Texas   75024
9084   10300 LITTLE PATUXENT PKWY, SPACE #1870   COLUMBIA   Maryland   21044   GENERAL GROWTH PROPERTIES, INC   COLUMBIA REGIONAL OFFICE/LAW/LEASING   10275 LITTLE PATUXENT PARKWAY   COLUMBIA   Maryland   21044
9105   800 BALD HILL ROAD   WARWICK