Waiver and Second Amendment to Seventh Amended and Restated Credit Agreement dated as of September 5, 2019, by and among Bank of America, N.A., as Administrative Agent and Collateral Agent, the Lenders identified therein, the Company, as Lead Borrower, the Company and CMRG Apparel, LLC, as Borrowers, and the Guarantors identified therein. 3

EX-10.1 2 dxlg-ex101_6.htm EX-10.1 SECOND AMENDMENT TO CREDIT FACILITY dxlg-ex101_6.htm

Exhibit 10.1

WAIVER AND SECOND AMENDMENT TO SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT

WAIVER AND SECOND AMENDMENT TO SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT (this “Second Amendment”), dated as of September 5, 2019, by and among DESTINATION XL GROUP, INC., a Delaware corporation, for itself and as Lead Borrower (in such capacity, the “Lead Borrower”) for the other Borrowers (individually, a “Borrower” and, collectively, the “Borrowers”), the Borrowers, the Guarantors, the Lenders party hereto and BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent (in such capacities, the “Agent”).

W I T N E S S E T H:

WHEREAS, the Borrowers, the Guarantors, the Lenders and the Agent, among others, have entered into a certain Seventh Amended and Restated Credit Agreement, dated as of May 24, 2018, as amended by a certain First Amendment to Seventh Amended and Restated Credit Agreement, dated as of June 3, 2019 (as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);

WHEREAS, the Loan Parties have notified the Agent of the occurrence of an Event of Default under Section 8.01(b) of the Credit Agreement arising from the Loan Parties’ Disposition of the Himalaya Outfitters Trademark (Registration No. 1975575) and the Himalaya Trademark (Registration No. 1974456) in violation of Section 7.05 of the Credit Agreement (the “Specified Event of Default”)

WHEREAS, the Loan Parties have requested that the Agent and the Lenders agree to waive the Specified Event of Default and to modify certain provisions of the Credit Agreement; and

WHEREAS, the Agent and the undersigned Lenders have agreed to waive the Specified Event of Default and modify such provisions of the Credit Agreement, in each case upon the terms and subject to the conditions set forth herein;

NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto hereby agree as follows:

Incorporation of Terms and Conditions of Credit Agreement. Except as amended hereby, all of the terms and conditions of the Credit Agreement (including, without limitation, all definitions set forth therein) are specifically incorporated herein by reference. Except as amended hereby, all capitalized terms used (including in the preamble hereto) but not otherwise defined herein shall have the same meaning as in the Credit Agreement, as applicable.

Representations and Warranties. Each Loan Party hereby represents and warrants that, as of the Second Amendment Effective Date, (i) no Default or Event of Default exists under the Credit Agreement or under any other Loan Document and (ii) all representations and warranties contained in the Credit Agreement or in any other Loan Document are true and correct in all material respects, except (i) 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) in the case of any representation and warranty qualified by materiality, they are true and correct in all respects.

Ratification of Loan Documents, Guaranties and Security Interests. The Credit Agreement, as hereby amended, and all other Loan Documents, are hereby ratified, confirmed and re-affirmed in all material respects and shall continue in full force and effect. Each Guarantor hereby acknowledges, confirms and agrees that its Guaranteed Obligations as a Guarantor under, and as defined in, the Facility Guaranty include, without limitation, all Obligations of the Loan Parties at any time and from time to time outstanding under the Credit Agreement and the other Loan Documents, each as amended hereby. The Loan Parties hereby acknowledge, confirm and agree that the Loan Documents and any and all Collateral pledged to the Agent, for the benefit of the Secured Parties (as defined in the Security Agreement), pursuant to the Loan Documents as amended hereby shall continue to secure all applicable Obligations of the Loan Parties at any time and from time to time outstanding under the Credit Agreement (as amended hereby) and the other Loan Documents.

4.	Amendments to Credit Agreement. Subject to the satisfaction or waiver of the conditions precedent set forth in Section 5 hereof:

Article 1 of the Credit Agreement is hereby amended as follows:

The pricing grid contained in subsection (b) of the definition of “Applicable Margin” is hereby deleted in its entirety and the following is substituted in its stead:

Level

Average Revolving Availability

Applicable Margin for Revolving Loans that are LIBOR Rate Loans

Applicable Margin for Revolving Loans that are Base Rate Loans

Applicable Margin for FILO Loans that are LIBOR
Rate Loans from the Second Amendment Effective Date through May 24, 2021

Applicable Margin for FILO Loans that are Base Rate Loans from the Second Amendment Effective Date through May 24, 2021

Applicable Margin for FILO Loans that are LIBOR
Rate Loans after May 24, 2021 through the Maturity Date

Applicable Margin for FILO Loans that are Base Rate Loans after May 24, 2021 through the Maturity Date

Greater than 35% of the Borrowing Base

1.25%

0.25%

3.25%

2.25%

2.75%

1.75%

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Less than or equal to 35% of the Borrowing Base

1.50%

0.50%

3.50%

2.50%

3.00%

2.00%

ii.

The definition of “Covenant Compliance Event” is hereby deleted in its entirety and the following is substituted in its stead:

“Covenant Compliance Event” means either (a) that an Event of Default has occurred and is continuing, or (b) Availability at any time (i) for the period commencing on the Second Amendment Effective Date and ending on May 24, 2021 is less than the greater of (x) twelve and one-half of one percent (12.5%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) and (y) $7,500,000 and (ii) for any other period, is less than the greater of (x) ten percent (10%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) and (y) $7,500,000. For purposes hereof, the occurrence of a Covenant Compliance Event shall be deemed continuing (a) so long as such Event of Default has not been waived or is no longer continuing, and/or (b) if the Covenant Compliance Event arises as a result of the Borrowers’ failure to achieve Availability as required hereunder, until Availability has exceeded (i) for the period commencing on the Second Amendment Effective Date and ending on May 24, 2021 the greater of (x) twelve and one-half of one percent (12.5%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) and (y) $7,500,000 and (ii) for any other period, the greater of (x) ten percent (10%) of the Revolving Loan Cap (calculated without giving effect to the FILO Push Down Reserve) and (y) $7,500,000, in each case for thirty (30) consecutive days, in which case a Covenant Compliance Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of a Covenant Compliance Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Covenant Compliance Event in the event that the conditions set forth in this definition again arise.

iii.

The definition of “FILO Advance Rate” is hereby deleted in its entirety and the following is substituted in its stead:

“FILO Advance Rate” shall mean the percentages set forth below:

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Period	FILO Advance Rate
From the Second Amendment Effective Date through May 24, 2020	10%
From May 25, 2020 until May 24, 2021	7.5%
From May 25, 2021 until the Maturity Date	5%

iv.

The definition of “FILO IP Advance Rate” is hereby deleted in its entirety and the following is substituted in its stead:

“FILO IP Advance Rate” shall mean the percentages set forth below:


Period	FILO IP Advance Rate
From the Second Amendment Effective Date through May 24, 2020	50%
From May 25, 2020 through May 24, 2021	45%
From May 25, 2021 through May 24, 2022	40%
From May 25, 2022 through the Maturity Date	35%

The definition of “Immaterial Subsidiary” is hereby deleted in its entirety and the following is substituted in its stead:

“Immaterial Subsidiary” means (a) Canton PL Liquidating Corp., a Nevada corporation, and (b) Casual Male RBT (U.K.) LLC, a Delaware limited liability company, in each case so long as such Person (a) does not have assets in an amount greater than or equal to 3.0% of the consolidated assets of the Lead Borrower and its Subsidiaries as of the last day of the most recently completed Fiscal Quarter, as determined in accordance with GAAP for such period, and (b) does not hold legal or beneficial title to any assets of the type included in the Borrowing Base or the FILO Borrowing Base.

vi.

By adding the following new definition in appropriate alphabetical order: ““Second Amendment Effective Date”: means September 5, 2019.”

Section 7.15 of the Credit Agreement is hereby amended to delete the text “during the Fiscal Years set forth below” contained therein.

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Exhibit F of the Credit Agreement is hereby amended and restated in its entirety as of the Second Amendment Effective Date as set forth in Annex A hereto.

5.	Conditions to Effectiveness. This Second Amendment shall not be effective until each of the following conditions precedent has been fulfilled to the satisfaction of the Agent (such date being the “Second Amendment Effective Date”):

This Second Amendment shall have been duly executed and delivered by the Loan Parties and the Required Supermajority Lenders. The Agent shall have received a fully executed original hereof.

All action on the part of each Loan Party necessary for the valid execution, delivery and performance by such Loan Party of this Second Amendment shall have been duly and effectively taken.

After giving effect to this Second Amendment, no Default or Event of Default shall have occurred and be continuing.

The Agent shall have received an updated Borrowing Base Certificate.

The Agent shall have conducted a trade name appraisal the results of shall be reasonably satisfactory to the Agent.

To the extent that any Loan Party has (i) obtained any additional Intellectual Property Collateral (as defined in the Security Agreement) or (ii) become entitled to the benefit of any additional Intellectual Property Collateral (as defined in the Security Agreement), in each case since the date of the last Information Certificate delivered by the Loan Parties to the Agent (the “Recent Information Certificate”), the Loan Parties shall deliver to the Agent an updated Exhibit G to the Recent Information Certificate (attached hereto as Annex B) setting forth a list of all copyrights, patents, trademarks and other intellectual property (including applications for any of the foregoing) owned or licensed by any Loan Party, and such updated Exhibit G shall be deemed to replace Exhibit G to the Recent Information Certificate in its entirety.

The Lead Borrower shall, and shall cause each other Loan Party (as applicable), to execute and deliver to the Agent all such other documents, agreements and instruments necessary or proper to perfect, protect or preserve any Liens created

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pursuant to any of the Security Instruments or any other Loan Documents, or the priority thereof, or to make any recordings or file any notices and financing statements in connection therewith.

6.	Release of Casual Male RBT (U.K.) LLC.

In connection with the designation of Casual Male RBT (U.K.) LLC (“CMR”) as an Immaterial Subsidiary, as of the date hereof, the Borrowers and the Guarantors have requested that the Agent release (i) CMR from its obligations under the Loan Documents, and (ii) the Lien of the Agent on the Collateral owned by CMR. Accordingly, the Agent hereby releases as of the date hereof (i) CMR from its obligations under the Loan Documents (except to the extent such obligations survive such release by their terms), and (ii) all Liens on the Collateral owned by CMR.

Nothing herein shall be deemed a release by the Agent of (i) any Loan Party (other than CMR) from any of its obligations under the Loan Documents, or (ii) any Liens securing the Obligations (other than Liens on the Collateral owned by CMR). Each of the Loan Parties acknowledges and agrees that the Loan Documents and the Liens (other than Liens on the Collateral owned by CMR) granted thereunder remain in full force and effect as of the date hereof.

CMR hereby acknowledges and agrees that it has no offsets, defenses, claims, or counterclaims against any Credit Party or any parents, affiliates, predecessors, successors, or assigns thereof, or their respective officers, directors, employees, attorneys, or representatives, with respect to the Obligations, and that if CMR now has, or ever did have, any offsets, defenses, claims, or counterclaims against such Persons, whether known or unknown, at law or in equity, from the beginning of the world through this date and through the time of execution of this Second Amendment, all of them are hereby expressly WAIVED, and CMR hereby RELEASES such Persons from any liability therefor.

Limited Waiver. On the Second Amendment Effective Date, Agent and the Lenders party hereto waive the Specified Event of Default, which waiver shall not be applicable to any other circumstance or condition, and shall not be construed as a waiver of any other or future Default or Event of Default under the Credit Agreement that would require a waiver by any one or more Lenders. The waiver contained in this Section 7 is a limited waiver and (i) shall only be relied upon and used for the specific purpose set forth herein, (ii) shall not constitute nor be deemed to constitute a waiver, except as otherwise expressly set forth herein, of any term or condition of the Credit Agreement and the other Loan Documents, (iii) shall not constitute nor be deemed to constitute a consent by Agent or any Lender to anything other than the specific purpose set forth herein and (iv) shall not constitute a custom or course of dealing among the parties hereto.

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8.	Loan Document. This Second Amendment shall constitute a Loan Document for all purposes.

9.	Binding Effect. The terms and provisions hereof shall be binding upon the parties hereto and their successors and assigns and shall inure to the benefit of the Agent and each Lender and their respective successors and assigns.

10.

Multiple Counterparts. This Second Amendment 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. Delivery of an executed counterpart of a signature page of this Second Amendment by telecopy, pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart of this Second Amendment.

11.

Severability. If any provision of this Second Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Second Amendment shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

12.	Headings. The headings at various places in this Second Amendment are intended for convenience only and shall not affect the interpretation of this Second Amendment.

13.

Governing Law. THIS SECOND AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS SECOND AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

[Signature Pages Follow]

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IN WITNESS WHEREOF, this Second Amendment has been duly executed and delivered by each of the parties hereto as of the date first above written and is intended to take effect as a sealed instrument.

BORROWERS:

DESTINATION XL GROUP, INC., as a Lead Borrower and a Borrower