Exhibit 10.4
FIRST AMENDMENT TO
ASSIGNMENT OF CERTIFICATE OF DEPOSIT
This First Amendment to Assignment of Certificate of Deposit dated as of
September 4, 1998 by and between Citizens Bank of Massachusetts ("Bank") and DM
Management Company ("Debtor").
W I T N E S S E T H:
WHEREAS, Bank and Debtor are parties to that certain Assignment of
Certificate of Deposit dated as of March 5, 1998 (the "Assignment"); and
WHEREAS, the parties wish to amend the Assignment as hereafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Section 1 of the Assignment is hereby amended by deleting the third
and fourth lines of said Section and substituting therefor the following:
"accommodations to the undersigned debtor (the "Debtor"), pursuant to
a certain Second Amended and Restated Loan Agreement dated March 5,
1998, as previously amended and as further amended by a certain Third
Amendment to Second Amended and Restated Loan Agreement dated
September 4, 1998, and as the same may be further amended from time to
time (collectively, the "Loan Agreement"),"
2. Exhibit A to said Assignment is hereby deleted in its entirety and is
replaced by Exhibit A hereto.
Except as amended hereby, the Assignment is hereby ratified, confirmed and
republished.
EXECUTED as an instrument under seal to be construed under the laws of The
Commonwealth of Massachusetts.
DEBTOR:
WITNESS: DM MANAGEMENT COMPANY
/s/ Richard J. Snyder
- ------------------------------ By: /s/ Olga L. Conley
--------------------------
Olga L. Conley
Chief Financial Officer
BANK:
WITNESS: CITIZENS BANK OF MASSACHUSETTS
/s/ Richard J. Snyder
- ------------------------------
By: /s/ Lori B. Leeth, SVP
---------------------------
Lori B. Leeth
Senior Vice President
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EXHIBIT A
(a) the full payment of the sum of $8,500,000.00, or such lesser amount
which shall have been advanced, together with interest and other charges, all as
provided in a certain "Revolving Note" of the Debtor to the order of the Bank
dated June 5, 1997, which Note was amended and replaced by a certain Replacement
Revolving Note dated October 31, 1997 in the face amount of $8,500,000.00 which
note was amended and replaced by a certain "Second Replacement Revolving Note"
dated September 4, 1998 in the face amount of $23,500,000.00, all as provided in
a certain Loan Agreement dated June 5, 1997, as amended and restated as of the
March 5, 1998, as amended dated September 4, 1998 hereof and as the same may
hereafter be amended (collectively, the "Loan Agreement") together with all
substitutions or replacements therefor and all renewals or extensions thereof
and the full performance of all other obligations of the maker of said note as
provided therein; (b) the full payment of the sum of $1,650,000.00, as provided
in a certain "Real Estate Note" (as defined in the Loan Agreement) of the Debtor
to the order of the Bank executed and delivered by the Debtor to the Bank,
pursuant to the Loan Agreement in the face amount of $1,650,000.00, with
interest and other charges as provided therein, together with all substitutions
and replacements therefor and all renewals and extensions thereof and the full
performance of all other obligations of the maker of said note as provided
therein and a certain Second Amendment to Mortgage executed and delivered in
connection therewith as the same may be amended from time to time; (c) the full
payment of the sum of $3,600,000.00, with interest and other charges, all as
provided in a certain "Term Note" (as defined in the Loan Agreement) of the
Debtor to the order of the Bank, dated June 5, 1997, executed and delivered by
the Debtor to the Bank pursuant to the Loan Agreement, in the original face
amount of $3,600,000.00, together with all substitutions or replacements
therefor and all renewals or extensions thereof and the full performance of all
other obligations of the maker of said note as provided therein; (d) the full
payment of the sum of Four Million Three Hundred Thousand Dollars
($4,300,000.00) together with interest and other charges, all as provided in a
certain "New Bridge Note" (as defined in the Loan Agreement) of the Debtor at
the order of the Bank dated as of March 5, 1998, executed and delivered by the
Debtor to the Bank pursuant to the Loan Agreement in the original face amount of
Four Million Three Hundred Thousand Dollars ($4,300,000.00) as amended and
replaced by that certain "Replacement New Bridge Note" (as defined in the Loan
Agreement) dated September 4, 1998 together with all substitutions or
replacements therefor and all renewals and extensions thereof and the full
performance of all other obligations of the maker of said note as provided
therein; (e) the full payment of the sum of $17,000,000.00 together with all
interest and other charges all as provided in a certain "Short Term Revolving
Note" (as defined in the Loan Agreement) of the Debtor to the order of the Bank
dated March 5, 1998 pursuant to the Loan Agreement in the face amount of
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$17,000,000.00, as amended and replaced by that certain "Replacement Short Term
Revolving Note" (as defined in the Loan Agreement) dated September 4, 1998 and
all substitutions or replacements therefor and all renewals and extensions
thereof and the full performance of all other Obligations of the maker of said
Note, and in a certain "Assignment of Certificate of Deposit dated as of March
5, 1998 and executed and delivered in connection therewith, as amended dated
September 4, 1998, and as the same may hereafter be amended; (f) the full
payment and performance by the Debtor of all indebtedness, obligations and
liabilities of the Debtor to the Bank under the Loan Agreement, direct or
indirect, absolute or contingent, now existing or hereafter arising (including,
without limitation, all "Obligations", as defined in the Loan Agreement whether
or not specifically referred to herein) which Loan Agreement provides, among
other things, for the establishment of a "Revolving Loan" (as defined therein)
and for the issuance of Letter of Credit pursuant to L/C Appreciations as
defined therein, pursuant to which "Advances" (as defined therein) may be made
from time to time, and for repayment of all or a portion of the outstanding
balance of such Advances together with interest and other charges all in
accordance therewith and for the grant of "Loans" (as defined therein) as
provided therein; (g) the full payment and performance of all covenants and
agreements herein contained or referred to on the part of the Debtor to be kept
and performed (collectively hereafter referred to as "Obligations").
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