Exhibit 10.2
FIFTH AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
This Fifth Amendment to Second Amended and Restated Loan Agreement
dated as of March 30, 1999, by and between Citizens Bank of Massachusetts
(herein "BANK"), and DM Management Company, a Delaware corporation (herein
"BORROWER").
WITNESSETH:
WHEREAS, BANK and BORROWER are parties to that certain Loan Agreement
made as of June 5, 1997 by and between BANK and BORROWER, as the same has been
amended and restated in a certain Amended and Restated Loan Agreement dated as
of October 31, 1997, and in a certain Second Amended and Restated Loan Agreement
dated March 5, 1998, and as amended by a certain First Amendment to Second
Amended and Restated Loan Agreement dated as of June 30, 1998, and Second
Amendment to Second Amended and Restated Loan Agreement dated as of September 4,
1998, Third Amendment to Second Amended and Restated Loan Agreement dated
September 4, 1998 and Fourth Amendment to Second Amended and Restated Loan
Agreement dated as of December 31, 1998 (as so restated and amended, the "Loan
Agreement");
WHEREAS, BORROWER and the BANK wish to further amend the Loan Agreement
as more particularly hereafter set forth. Capitalized terms used herein without
definition shall have the meanings ascribed to them in the Loan Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereby agree that the Loan Agreement is hereby amended as
follows:
1. The following definitions are hereby deleted, and replaced, as
the case may be:
(a) "ADVANCE FORMULA".
(b) "AVAILABILITY".
(c) "ELIGIBLE INVENTORY".
(d) "IN TRANSIT INVENTORY".
(e) "REVOLVING CREDIT COMMITMENT AMOUNT"
and the following substituted in lieu
thereof:
"REVOLVING CREDIT COMMITMENT AMOUNT"
(sometimes the "REVOLVING COMMITMENT
AMOUNT") shall mean the sum of Fifteen
Million Nine Hundred Nine Thousand Six
Hundred Forty Dollars ($15,909,640.00)
unless BORROWER delivers written notice to
the BANK requesting a lesser amount and BANK
confirms same in writing.
2. Section 2.01 is hereby deleted and the following substituted
in lieu thereof:
"2.01 Subject to, and upon the terms and
conditions herein provided, during the AVAILABILITY
PERIOD, the BANK agrees to make ADVANCES to the
BORROWER including, without limitation, those
ADVANCES provided for in Section 3.06 hereof which
shall be deemed ADVANCES under this Section 2.01 so
long as (A) after giving effect to the making of each
ADVANCE, then the CREDIT BALANCE does not exceed the
REVOLVING CREDIT COMMITMENT AMOUNT and (B) at the
time of such ADVANCE the conditions specified in
Section 2.08 have been and remain fulfilled."
3. Section 2.10 is hereby deleted and the following substituted
in lieu thereof:
"2.10 If at any time the CREDIT BALANCE
exceeds the REVOLVING CREDIT COMMITMENT AMOUNT,
BORROWER shall forthwith pay to the BANK such amount
as may be necessary to reduce the CREDIT BALANCE to
the COMMITMENT AMOUNT."
4. Section 2.12 is hereby deleted and the following substituted
in lieu thereof:
"2.12 Notwithstanding the provisions of this
Article II, the BANK, in its discretion, may make
ADVANCES in excess of the REVOLVING CREDIT COMMITMENT
AMOUNT."
-2-
5. Section 3.06 is hereby deleted and the following substituted
in lieu thereof:
"3.06 If a draft shall be presented under a LETTER OF CREDIT and the
BANK shall honor the same, the BANK shall charge any demand deposit account of
the BORROWER and if the balance(s) of such account(s) is not sufficient, such
presentation, up to the full amount of the LETTER OF CREDIT, shall be deemed to
be a request of the BANK for a PRIME RATE ADVANCE, pursuant to Section 2.01
hereof without any notice to or from BORROWER being required and the amount paid
by the BANK with respect to such draft shall be deemed to be a PRIME RATE
ADVANCE provided however that if by virtue of such ADVANCE, the CREDIT BALANCE
shall exceed the REVOLVING COMMITMENT AMOUNT, the excess shall be forthwith
repaid by the BORROWER."
6. Section 10.01(d) is hereby deleted.
7. Section 10.01(e) is hereby deleted.
8. Section 11.06 is hereby deleted and the following inserted
in lieu thereof:
11.06 Except with respect to the BANK as
provided herein, the BORROWER shall not grant or
suffer to exist, any mortgage, pledge, title
retention agreement, security interest, lien or
encumbrance with respect to any of its assets,
tangible or intangible, whether now owned or
hereafter acquired including, but not limited to, its
ownership interests, and any other of its interests,
in Birch Pond Realty Corporation, or subject any of
its assets to the prior payment of any indebtedness,
or transfer in any manner any of such assets with the
intent or purpose, directly or indirectly, of
subjecting such assets to the payment of INDEBTEDNESS
except (i) landlords', carriers', warehousemans',
mechanics' and other similar liens arising by
operation of law in the ordinary course of the
BORROWER'S businesses; (ii) liens arising out of
pledge or deposits under worker's compensation,
unemployment insurance, old age pension, social
security, retirement benefits or other similar
legislation; (iii) liens in favor of the BANK; (iv)
liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings
and the BORROWER maintain appropriate reserves
(reasonably approved by the BANK) in respect thereto;
(iv) judgment or prejudgment liens with respect to
which there has issued a stay of execution
-3-
pending appeal or otherwise and as to which the
BORROWER maintain appropriate reserves in respect
thereto (reasonably approved by the BANK); (vi)
easements, rights of way, restrictions and other
similar charges or liens relating to real property
and not interfering in a material way with the
ordinary conduct of the BORROWER'S business; (vii)
liens securing the payment of INDEBTEDNESS permitted
under Section 11.01 hereof; and (viii) encumbrances
on the BORROWER'S property or assets created in
connection with the refinancing of INDEBTEDNESS
secured by liens on such property permitted hereunder
that do not extend to property and assets of the
BORROWER not encumbered prior to such refinancing.
9. Section 12.01 is hereby amended by adding the following
Section (k) thereto:
(k) Birch Pond Realty Corporation shall
grant or suffer to exist, any mortgage, pledge, title
retention agreement, security interest or, lien other
than a mortgage to Xxxx Xxxxxxx Real Estate Finance,
Inc. with respect to that real estate in Tilton, New
Hampshire originally subject to a mortgage to the
BANK under the Loan Agreement and subsequently
conveyed to Birch Pond Realty Corporation with the
consent of the BANK.
This Amendment shall take effect as of the date first above written.
Except as hereby amended, the Loan Agreement is hereby ratified,
confirmed and republished.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the date first above written.
Witness: DM MANAGEMENT COMPANY
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
--------------------------- -------------------------------------
Xxxxx X. Xxxx, Vice President Finance
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx, Senior Vice President
-4-
