<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
TODAY'S MAN, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, no par value per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
888910205
- --------------------------------------------------------------------------------
(CUSIP Number)
Steven Jackson
777 Long Ridge Rd.
Stamford, CT 06902
(203) 614-2000
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
December 31, 1997
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is subject of this Schedule 13D, and is filing this
statement because of Rule 13d-l(b)(3) or (4), check the following box:[ ].
(Continued on the following page)
Page 1 of 13 Pages
<PAGE> 2
SCHEDULE 13D
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CUSIP NO. 888910205 Page 2 of 13
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1 NAME OF REPORTING PERSON
TOTH, LLC
TAX I.D. NO. 06-1475340
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ]
(b)[X]
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3 SEC USE ONLY
- -------------------------------------------------------------------------------
4 SOURCE OF FUNDS
00
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 916,692 SHARES
OWNED BY EACH ----------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------
9 SOLE DISPOSITIVE POWER
916,692 SHARES
----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
916,692 SHARES
- -------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4%
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14 TYPE OF REPORTING PERSON
00
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<PAGE> 3
SCHEDULE 13D
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CUSIP NO. 888910205 Page 3 of 13
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1 NAME OF REPORTING PERSON
TOTH II, LLC
TAX I.D. No. 06-1476831
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ]
(b)[X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 983,308 SHARES
OWNED BY EACH ----------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------
9 SOLE DISPOSITIVE POWER
983,308 SHARES
----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
983,308 SHARES
- -------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.6%
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14 TYPE OF REPORTING PERSON
00
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<PAGE> 4
SCHEDULE 13D
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CUSIP NO. 888910205 Page 4 of 13
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1 NAME OF REPORTING PERSON
OSIRIS GROUP, L.P.
TAX I.D. NO. 13-3855505
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ]
(b)[X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
- -------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 1,900,000 SHARES
OWNED BY EACH ----------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------
9 SOLE DISPOSITIVE POWER
1,900,000 SHARES
----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,900,000 SHARES
- -------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.0%
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14 TYPE OF REPORTING PERSON
PN
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<PAGE> 5
SCHEDULE 13D
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CUSIP NO. 888910205 Page 5 of 13
- -------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
OSIRIS MANAGEMENT, LLC
TAX I.D. NO. 13-3855504
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ]
(b)[X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 1,900,000 SHARES
OWNED BY EACH ----------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
0
----------------------------------------------
9 SOLE DISPOSITIVE POWER
1,900,000 SHARES
----------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,900,000 SHARES
- -------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.0%
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14 TYPE OF REPORTING PERSON
00
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<PAGE> 6
SCHEDULE 13D
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CUSIP NO. 888910205 Page 6 of 13
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1 NAME OF REPORTING PERSON
STEVEN JACKSON
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ]
(b)[X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY EACH ----------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
1,900,000 SHARES
----------------------------------------------
9 SOLE DISPOSITIVE POWER
0
----------------------------------------------
10 SHARED DISPOSITIVE POWER
1,900,000 SHARES
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,900,000 SHARES
- -------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.0%
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14 TYPE OF REPORTING PERSON
IN
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<PAGE> 7
SCHEDULE 13D
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CUSIP NO. 888910205 Page 7 of 13
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1 NAME OF REPORTING PERSON
DAVID BLUMBERG
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ]
(b)[X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
00
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES
- -------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY EACH ----------------------------------------------
REPORTING 8 SHARED VOTING POWER
PERSON WITH
1,900,000 SHARES
----------------------------------------------
9 SOLE DISPOSITIVE POWER
0
----------------------------------------------
10 SHARED DISPOSITIVE POWER
1,900,000 SHARES
- -------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,900,000 SHARES
- -------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES [ ]
- -------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.0%
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14 TYPE OF REPORTING PERSON
IN
- -------------------------------------------------------------------------------
<PAGE> 8
Page 8 of 13
ITEM 1. SECURITY AND ISSUER.
This statement relates to shares of common stock, no par value per share
(the "Common Stock"), of Today's Man, Inc., a Pennsylvania corporation (the
"Company"). The principal executive offices of the Company are located at 835
Lancaster Drive, Moorestown West Corporate Center, Moorestown, NJ 08057.
ITEM 2. IDENTITY AND BACKGROUND.
(a) This statement is being filed jointly by Toth, LLC, a Delaware
limited liability company ("Toth"), Toth II, LLC, a Delaware limited liability
company ("Toth II"), Osiris Group, L.P., a Delaware limited partnership
("Osiris"), Osiris Management, LLC, a Delaware limited liability company
("Osiris Management"), Steven Jackson ("Jackson") and David Blumberg
("Blumberg" and together with Toth, Toth II, Osiris, Osiris Management and
Jackson, the "Reporting Persons"). The Reporting Persons are filing this
statement jointly pursuant to a Joint Filing Agreement attached hereto as
Exhibit 1.
Toth is the direct record owner of 916,692 shaers of the Common Stock and
Toth II is the direct record owner of 983,308 shares of the Common Stock, which
constitute approximately 3.4% and 3.6% of the total number of outstanding
shares of the Common Stock, respectively. Osiris is the managing member of
Toth I and Toth II, Osiris Management is the general partner of Osiris and
Jackson and Blumberg are the managing members of Osiris Management.
S.A.C. Capital Management, L.P. and S.A.C. Investments, L.P. are the
only other members of Toth and Toth II. S.A.C. Capital Management, LLC is the
general partner of S.A.C. Capital Management, L.P. and S.A.C. Investments,
L.P., and Steven A. Cohen ("Cohen") is the controlling member of S.A.C. Capital
Management, LLC. S.A.C. Capital Management, L.P., S.A.C. Investments, L.P.,
S.A.C. Capital Management, LLC and Cohen are not listed as reporting persons on
this Schedule 13D because all voting and investment power (as defined in Rule
13D-3) over the Common Stock is held by Osiris under the organizational
documents of Toth and Toth II. In addition, S.A.C. Capital Management, L.P.
and S.A.C. Investments, L.P. have vested voting and investment power with
S.A.C. Capital Advisors, LLC, a Delaware limited liability company, pursuant to
an Investment Management Agreement. Cohen is the Managing Member, President
and Chief Executive Officer of S.A.C. Capital Advisors, LLC. The other
officers of S.A.C. Capital Advisors, LLC are Scott J. Lederman, Executive Vice
President and Secretary, Barry M. Skalka, Executive Vice President and
Treasurer, and Terence E. Fox, Executive Vice President.
(b) The business address of each of the Reporting Persons
and each other individual named in this Item 2 is 777 Long Ridge Road,
Stamford, CT 06902.
(c) The principal business of the Reporting Persons and each other
individual named in this Item 2 is investment management.
(d) During the last five years, none of the Reporting Persons nor any
of the other individuals named in this Item 2 has been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons nor any
of the other individuals named in this Item 2 has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and,
as a result of such proceeding, was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) To the best knowledge of the Reporting Persons, each such Reporting
Person that is a natural person and each other individual named in this Item 2
is a United States citizen.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
See Item 4 below.
ITEM 4. PURPOSE OF TRANSACTION.
On February 2, 1996, the Company and certain of its subsidiaries filed
voluntary petitions in the United States Bankruptcy Court for the District of
Delaware (the "Bankruptcy Court") seeking to reorganize under Chapter 11 of the
U.S. Bankruptcy Code. NationsBank, N.A. ("NationsBank") and Bank of New York
("BONY") were pre-petition lenders to the Company and
<PAGE> 9
Page 9 of 13
certain of its subsidiaries under an Amended and Restated Credit Agreement,
dated as of April 27, 1995, amended and restated as of November 17, 1995 (the
"Credit Agreement"). On February 7, 1997 Toth purchased substantially all of
NationsBank's right, title and interest in bankruptcy claims arising from the
Credit Agreement, and on February 28, 1997 Toth II purchased substantially all
of BONY's right, title and interest arising from the Credit Agreement
(together, the "Assigned Claims"). On the same dates, Toth and Toth II entered
into Participation Agreements (the "Participation Agreements") with FSP, Inc.
pursuant to which FSP, Inc. paid Toth and Toth II 50% of the amount they paid
to NationsBank and BONY, respectively, for the Assigned Claims, and in exchange
received the right to receive 50% of any payment received by Toth or Toth II on
account of the Assigned Claims.
On December 12, 1997, the Bankruptcy Court confirmed the Company's
Second Amended Joint Plan of Reorganization dated September 26, 1997, as amended
on December 12, 1997 (the "Plan"). Pursuant to the terms of the Plan, the
Company issued 916,692 shares of its Common Stock to Toth and 983,308 shares of
its Common Stock to Toth II on December 31, 1997. Such shares were received by
Toth and Toth II on January 2, 1998.
The Reporting Persons intend to review their investment in the Company
from time to time and, depending on their evaluation of various factors, may
sell or otherwise dispose of, some or all of the shares of the Common Stock in
open market transactions or otherwise. Depending upon various factors, including
the evaluation of the investment potential of the Common Stock, the Company's
business prospects and financial position, other developments concerning the
Company, the price level and availability of the Common Stock, available
opportunities to dispose of the Common Stock, realize trading profits or
minimize trading losses, conditions in the securities markets and general
economic and industry conditions, reinvestment opportunities, developments
relating to the business of the Reporting Persons and other factors deemed
relevant, the Reporting Persons may in the future take such other actions with
respect to their holdings in the Company as they deem appropriate in light of
circumstances existing from time to time. Such actions may include the purchase
of additional shares of Common Stock in the open market, through privately
negotiated transactions with third parties or otherwise, or the sale at any
time, in the open market, through privately negotiated transactions with third
parties or otherwise, of all or a portion of the shares now owned or hereafter
acquired.
Pursuant to the terms of the respective Participation Agreements, Toth
and Toth II are obligated to transfer 50% of any payment received on account of
the Assigned Claims to FSP, Inc., including payment received in the form of the
Common Stock. Subject to the resolution of certain legal issues with respect to
indemnification, Toth and Toth II intend to transfer 458,346 and 491,654 shares
of Common Stock to FSP, Inc. respectively.
Except as set forth above, none of the Reporting Persons has any present
plan or proposal which relates to, or could result in, any of the events
referred to in paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) Toth is the direct record owner of 916,692 shares of the Common
Stock and Toth II is the direct record owner of 983,308 shares of the Common
Stock, which constitute approximately 3.4% and 3.6% of the total number of
outstanding shares of the Common Stock, respectively.
(b) Osiris is the managing member of Toth and Toth II, and acting
through Toth and Toth II, indirectly has sole power to vote or direct the vote,
and to dispose or to direct
<PAGE> 10
Page 10 of 13
the disposition of the shares of the Common Stock beneficially owned by Toth
and Toth II. Osiris Management is the general partner of Osiris and Jackson and
Blumberg are the managing members of Osiris Management. As a result, Osiris,
Osiris Management, Jackson and Blumberg may be deemed to beneficially own the
shares of the Common Stock directly owned by Toth I or Toth II.
(c) Except as described in Item 4 above, there have not been any
transactions in the Common Stock effected by or for the account of any of the
Reporting Persons or any member or controlling person of any of the Reporting
Persons during the past 60 days.
(d) Pursuant to the Participation Agreements, FSP., Inc. has the
contractual right to receive dividends from, or the proceeds from the sale of,
50% of the shares of Common Stock owned by Toth I and Toth II. Except as stated
in this Item 5, to the best knowledge of the Reporting Persons, no other person
has the right to receive or the power to direct the receipt of dividends from,
or the proceeds from the sale of, the shares of Common Stock owned by the
Reporting Persons.
(e) Not applicable
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR
RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.
As described in Item 4 and 5(d) above, pursuant to the Participation
Agreements, Toth I and Toth II are obligated to transfer 50% of any payment
received on account of the Assigned Claims to FSP, Inc., including payment
received in the form of the Common Stock.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1. Joint Filing Agreement, dated as of January 9, 1998.
Exhibit 2. Participation Agreement, dated as of February 7, 1997,
between Toth and FSP, Inc.
Exhibit 3. Participation Agreement, dated as of February 28, 1997,
between Toth II and FSP, Inc.
<PAGE> 11
Page 11 of 13
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: January 9, 1998 TOTH, LLC
By: Osiris Group, L.P.
its Managing Member
By: Osiris Management, LLC
its General Partner
By: Steven Jackson
Managing Member
of Osiris Management, LLC
/s/ Steven Jackson
-------------------------------
Name: Steven Jackson
Dated: January 9, 1998 TOTH II, LLC
By: Osiris Group, L.P.
its Managing Member
By: Osiris Management, LLC
its General Partner
By: Steven Jackson
Managing Member
of Osiris Management, LLC
/s/ Steven Jackson
-------------------------------
Name: Steven Jackson
Dated: January 9, 1998 OSIRIS GROUP, L.P.
By: Osiris Management, LLC
its General Partner
By: Steven Jackson
Managing Member
of Osiris Management, LLC
/s/ Steven Jackson
-------------------------------
Name: Steven Jackson
<PAGE> 12
Page 12 of 13
Dated: January 9, 1998 OSIRIS MANAGEMENT, LLC
By: Steven Jackson
its Managing Member
/s/ Steven Jackson
-----------------------------------
Name: Steven Jackson
Dated: January 9, 1998 STEVEN JACKSON
/s/ Steven Jackson
-----------------------------------
Name: Steven Jackson
Dated: January 9, 1998 DAVID BLUMBERG
/s/ David Blumberg
-----------------------------------
Name: David Blumberg
<PAGE> 13
Page 13 of 13
EXHIBIT INDEX
Exhibit 1. Joint Filing Agreement, dated as of January 9, 1998.
Exhibit 2. Participation Agreement, dated as of February 7, 1997, between
Toth and FSP, Inc.
Exhibit 3. Participation Agreement, dated as of February 28, 1997, between
Toth II and FSP, Inc.
<PAGE> 1
EXHIBIT 1
JOINT FILING AGREEMENT
The undersigned hereby agree to jointly file a statement on Schedule
13D relating to the common stock, no par value per share, of Today's Man,
Inc., together with any amendments thereto (collectively, the "Schedule 13Ds"),
with the Securities and Exchange Commission pursuant to the requirements of Rule
13d-l(f) under the Securities Exchange Act of 1934, as amended.
This Joint Filing Agreement may be signed in counterpart copies.
(Signature Page Follows)
<PAGE> 2
Dated: January 9, 1998 TOTH, LLC
By: Osiris Group, L.P.
its Managing Member
By: Osiris Management, LLC
its General Partner
By: Steven Jackson
Managing Member of Osiris
Management, LLC
/s/ Steven Jackson
-----------------------------
Name: Steven Jackson
Dated: January 9, 1998 TOTH II, LLC
By: Osiris Group, L.P.
its Managing Member
By: Osiris Management, LLC
its General Partner
By: Steven Jackson
Managing Member of Osiris
Management, LLC
/s/ Steven Jackson
-----------------------------
Name: Steven Jackson
Dated: January 9, 1998 OSIRIS GROUP, L.P.
By: Osiris Management, LLC
its General Partner
By: Steven Jackson
Managing Member of Osiris
Management, LLC
/s/ Steven Jackson
-----------------------------
Name: Steven Jackson
<PAGE> 3
Dated: January 9, 1998 OSIRIS MANAGEMENT, LLC
By: Steven Jackson
its Managing Member
/s/ Steven Jackson
-----------------------------------
Name: Steven Jackson
Dated: January 9, 1998 STEVEN JACKSON
/s/ Steven Jackson
-----------------------------------
Name: Steven Jackson
Dated: January 9, 1998 DAVID BLUMBERG
/s/ David Blumberg
-----------------------------------
Name: David Blumberg
<PAGE> 1
EXHIBIT 2
PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of February 7, 1997, is made by and between TOTH,
LLC ("Toth"), and FSP, Inc. ("FSP").
WHEREAS, NationsBank, N.A. ("NationsBank") is a lender to Today's Man,
Inc., Today's Man Outlet, Inc., F&S International, Inc., Beveman Development,
Feld & Feld, Inc., Benmal, Inc. and D&L, Inc. (the "Borrowers") pursuant to,
among other things, that certain Amended and Restated Credit Agreement, dated
as of April 27, 1995, amended and restated as of November 17, among the
Borrowers and NationsBank, Shawmut Bank, N.A., n/k/a Fleet National Bank, and
the Bank of New York; and
WHEREAS, pursuant to an Assignment Agreement, dated of even date herewith
(a copy of which is attached hereto as Exhibit A), Toth has purchased all of
the right, title and interest of NationsBank in such loans made to the
Borrowers (the "Assigned Claim"); and
WHEREAS, Toth is willing to sell and convey, and FSP is willing to
purchase and acquire, a participation interest in the Assigned Claim on the
terms and conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Toth and FSP agree as follows:
Section 1. Sale and Purchase of Participation.
a) Toth hereby sells, assigns, transfers and conveys to FSP, and FSP
hereby purchases, acquires, accepts and assumes from Toth, without recourse to
Toth, for the account and risk of FSP, a fifty (50%) percent interest in all of
Toth's rights, benefits and obligations in or to, or under, or with respect to,
the Assigned Claims, such interest of FSP in such Assigned Claim being referred
to herein as FSP's "Participation" in such Assigned Claim, and such percentage
of FSP in such Assigned Claim being referred to herein as FSP's "Percentage" in
such Assigned Claim.
b) In consideration for the sale by Toth to FSP of FSP's Participation,
FSP shall pay to Toth fifty (50%) percent of the amount which Toth paid to
NationsBank pursuant to the terms of the Assignment Agreement.
Section 2, Distributions and Payments.
a) Whenever Toth shall receive any payment on account of the Assigned
Claim, Toth shall promptly pay over to FSP, FSP's Percentage share of the
amount so received.
b) If (i) any payment received by Toth shall be rescinded or otherwise
shall be required to be returned or paid over by Toth for any reason at any
time, or (ii) Toth shall be liable for and pay any damages, penalties, actions,
judgments, costs, expenses or
<PAGE> 2
disbursements on account of, or related to, the Assigned Claim, whether
before or after termination of this Agreement, FSP, promptly upon notice from
Toth, shall pay over to Toth its Percentage share of the amount so rescinded,
returned or paid by Toth, together with its Percentage share of any interest or
penalties payable with respect thereto.
c) If FSP receives any payment on account of its Participation in the
Assigned Claim from any source other than Toth pursuant to the terms of this
Agreement, FSP shall, promptly pay over to Toth the amount in excess of FSP's
Percentage share of the amount so received.
d) Toth shall deliver to FSP copies of any and all notices received with
respect to the Assigned Claim promptly after receipt thereof by Toth.
Section 3. Amendment and Waivers/Voting Rights. Toth shall not agree to
amend, waive, or release any of the following terms or provisions of the
Assigned Claim without obtaining the prior consent of FSP: (a) any reduction in
the principal of, the interest rate on, or the extension of any stated payment
date for, the Assigned Claim or (b) the release of any collateral or guarantee
securing the Assigned Claim. All issues which are likely to have a material
impact on the Assigned Claim, its enforceability, or its collection, and any
issue which is likely to have a material impact on costs to be incurred related
to the Assigned Claim, shall be determined by vote requiring approval of the
Majority Participants. For the purposes of this Section 3, "Majority
Participants" shall mean the holders of at least 51% of the aggregate interests
in the Assigned Claim. If, after soliciting the vote of the participants there
is no such majority, the parties agree to negotiate in good faith in an attempt
to reach a consensus on such issue. Neither party shall be liable to the other
for actions or omissions on account of, or related to, the Assigned Claim
except on account of gross negligence or willful misconduct.
Section 4. Further Assignments.
a) Neither FSP's Participation interest in or any of its rights or
obligations under the Assigned Claim shall be sold, assigned, subdivided,
pledged or otherwise transferred' conveyed or encumbered without the prior
written consent of Toth.
b) Neither Toth's interest in or any of its rights or obligations under
the Assigned Claim shall be sold, assigned, subdivided, pledged or otherwise
transferred, conveyed or encumbered without the prior written consent of FSP.
-2-
<PAGE> 3
Section 5. Representations
a) Toth hereby represents and warrants to FSP that it has good and
marketable title to the Assigned Claim free and clear of any liens, interests,
security interests, encumbrances or other claims.
b) Toth hereby represents and warrants to FSP that it has the right and
power and is duly authorized to enter into this agreement.
c) FSP hereby represents and warrants to Toth that it has the right and
power and is duly authorized to enter into this agreement.
Section 6. Toth's Rights. FSP expressly acknowledges that (i) Toth has not
made any representation or warranty, express or implied, to FSP with respect to
the Assigned Claim, and that no act by Toth heretofore or hereafter taken,
including any review of the financial condition or business affairs of the
Borrowers, shall be deemed to constitute any representation or warranty by Toth
to FSP; and (ii) in connection with its entry into and its performance of his
obligations under this Agreement, FSP has made and shall continue to make its
own independent investigation of the financial condition and business affairs
of the Borrowers and his own independent appraisal of the value and lien status
of any collateral or guaranty securing the Assigned Claim. FSP agrees that it
will promptly reimburse Toth for fifty (50%) percent of all out of pocket
expenditures related to the Assigned claim, including, without limitation,
reasonable attorney's fees and expenses.
Section 7. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be sent by telecopy (which shall be
effective when sent) or by first class, registered or certified mail (which
shall be effective when deposited in the mail, postage prepaid). All notices
shall be sent to the applicable party at the address stated on the signature
page hereof or in accordance with the last unrevoked written direction from
such party.
Section 8. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to its principles of conflicts of laws.
Section 9. Heading, Headings are for convenience only and shall not modify
or affect the meaning or construction hereof.
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<PAGE> 4
TOTH, LLC FSP, Inc.
By: Osiris Group, L.P., By: /s/ John Constable
its Managing Member ---------------------
By: Osiris Management, LLC President
its General Partner
By: Steven Jackson,
its Managing Member
of Osiris Management, LLC
By: /s/ Steven C. Jackson
------------------
Name: Steven Jackson,
Managing Member of Osiris Management, LLC
Address for Notices: Address for Notices:
Toth, LLC FSP, Inc.
c/o SAC Capital Management, LLC Five Radnor Corporate Center
777 Long Ridge Road 100 Matson Ford Road, Suite 105
Stamford, Connecticut 06902 Radnor, PA 19087
Attn: Steven Jackson Attn: John Constable
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<PAGE> 1
EXHIBIT 3
PARTICIPATION AGREEMENT
THIS AGREEMENT, dated as of February 28, 1997, is made by and between TOTH
II, LLC ("Toth II"), and FSP, Inc. ("FSP").
WHEREAS, The Bank of New York ("BNY") is a lender to Today's Man, Inc.,
Today's Man Outlet, Inc., F&S International, Inc., Beveman Development, Feld &
Feld, Inc., Benmal, Inc. and D&L, Inc. (the "Borrowers") pursuant to, among
other things, that certain Amended and Restated Credit Agreement, dated as of
April 27, 1995, amended and restated as of November 17, among the Borrowers and
NationsBank, N.A., Shawmut, N.A., n/k/a Fleet National Bank, and the BNY; and
WHEREAS, pursuant to an Assignment Agreement, dated of even date herewith
(a copy of which is attached hereto as Exhibit A). Toth II has purchased all
of the right, title, and interest of BNY in such loans made to the Borrowers
(the "Assigned Claim"); and
WHEREAS, Toth II is willing to sell and convey, and FSP is willing to
purchase and acquire, a participation interest in the Assigned Claim on the
terms and conditions set forth herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Toth II and FSP agree as follows:
Section 1. Sale and Purchase of Participation.
a) Toth II hereby sells, assigns, transfers and conveys to FSP, and FSP
hereby purchases, acquires, accepts and assumes from Toth II, without recourse
to Toth II, for the account and risk of FSP, a fifty (50%) percent interest in
all of Toth II's rights, benefits and obligations in or to, or under, or with
respect to, the Assigned Claims, such interest of FSP in such Assigned Claim
being referred to herein as FSP's "Participation" in such Assigned Claim, and
such percentage of FSP in such Assigned Claim being referred to herein as FSP's
"Percentage" in such Assigned Claim.
In consideration for the sale by Toth II to FSP of FSP's Participation,
FSP shall pay to Toth II fifty (50%) percent of the amount which Toth II paid to
BNY pursuant to the terms of the Assignment Agreement.
Section 2. Distributions and Payments.
a) Whenever Toth II shall receive any payment on account of the Assigned
Claim, Toth II shall promptly pay over to FSP, FSP's Percentage share of the
amount so received.
b) If (i) any payment received by Toth II shall be rescinded or otherwise
shall be required to be returned or paid over by Toth II for any reason at any
time, or (ii) Toth II shall be liable for and pay any damages, penalties,
actions, judgments, costs, expenses or
<PAGE> 2
disbursements on account of, or related to, the Assigned Claim, whether before
or after the termination of this Agreement, FSP, promptly upon notice from Toth
II, shall pay over to Toth II its Percentage share of the amount so rescinded,
returned or paid by Toth II, together with its Percentage share of any interest
or penalties payable with respect thereto.
c) If FSP receives any payment on account of its Participation in the
Assigned Claim from any source other than Toth II pursuant to the terms of this
Agreement, FSP shall promptly pay over to Toth II the amount in excess of FSP's
Percentage share of the amount so received.
d) Toth II shall deliver to FSP copies of any and all notices received
with respect to the Assigned Claim promptly after receipt thereof by Toth II.
Section 3. Amendment and Waivers/Voting Rights. Toth II shall not agree
to amend, waive, or release any of the following terms or provisions of the
Assigned Claim without obtaining the prior consent of FSP: (a) any reduction
in the principal of, the interest rate on, or the extension of any stated
payment date for, the Assigned Claim or (b) the release of any collateral or
guarantee securing the Assigned Claim. All issues which are likely to have a
material impact on the Assigned Claim, its enforceability, or its collection,
and any issue which is likely to have a material impact on costs to be incurred
related to the Assigned Claim, shall be determined by vote requiring approval
of the Majority Participants. For the purposes of this Section 3, "Majority
Participants" shall mean the holders of at least 51% of the aggregate interest
in the Assigned Claim. If, after soliciting the vote of the participants there
is no such majority, the parties agree to negotiate in good faith in an attempt
to reach a consensus on such issue. Neither party shall be liable to the other
for actions or omissions on account of, or related to, the Assigned Claim
except on account of gross negligence or willful misconduct.
Section 4. Further Assignments.
a) Neither FSP's Participation interest in or any of its rights or
obligations under the Assigned Claim shall be sold, assigned, subdivided,
pledged or otherwise transferred, conveyed or encumbered without the prior
written notice of Toth II.
b) Neither Toth II's interest in or any of its rights or obligations under
the Assigned Claim shall be sold, assigned, subdivided, pledged or otherwise
transferred, conveyed or encumbered without the prior written consent of FSP.
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<PAGE> 3
Section 5. Representations.
a) Toth II hereby represents and warrants to FSP that it has good and
marketable title to the Assigned Claim free and clear of any liens, interests,
security interests, encumbrances or other claims.
b) Toth II hereby represents and warrants to FSP that it has the right and
power and is duly authorized to enter into the agreement.
c) FSP hereby represents and warrants to Toth II that it has the right and
power and is duly authorized to enter into this agreement.
Section 6. Toth II's Rights. FSP expressly acknowledges that (i) Toth II
has not made any representation or warranty, express or implied, to FSP with
respect to the Assigned Claim, and that no act by Toth II heretofore or
hereafter taken, including any review of the financial condition or business
affairs of the Borrowers, shall be deemed to constitute any representation or
warranty by Toth II to FSP; and (ii) in connection with its entry into and its
performance of his obligations under this Agreement, FSP has made and shall
continue to make its own independent investigation of the financial condition
and business affairs of the Borrowers and his own independent appraisal of the
value and lien status of any collateral or guaranty securing the Assigned
claim. FSP agrees that it will promptly reimburse Toth II for fifty (50%)
percent of all out of pocket expenditures related to the Assigned claim,
including, without limitation reasonable attorney's fees and expenses.
Section 7. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be sent by telecopy
(which shall be effective when sent ) or by fist class, registered or certified
mail (which shall be effective when deposited in the mail, postage prepaid).
All notices shall be sent to the applicable party at the address stated on the
signature page hereof or in accordance with the last unrevoked written
direction form such party.
Section 8. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware,
without regard to its principles of conflicts of laws.
Section 9. Heading. Headings are for convenience only and shall not
modify or affect the meaning or construction hereof.
-3-
<PAGE> 4
TOTH II, LLC FSP, Inc.
By: Osiris Group, L.P., By: /s/ John Constable
its Managing Member ------------------
By: Osiris Management, LLC President
its General Partner
By: Steven Jackson,
its Managing Member
of Osiris Management, LLC
By: /s/ Steven C. Jackson
------------------
Name: Steven Jackson,
Managing Member of Osiris Management, LLC
Address for Notices: Address for Notices:
Toth II, LLC FSP, Inc.
c/o SAC Capital Management, LLC Five Radnor Corporate Center
777 Long Ridge Road 100 Matson Ford Road, Suite 105
Stamford, Connecticut 06902 Radnor, PA 19087
Attn: Steven Jackson Attn: John Constable
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