Exhibit 10.55
FOURTH AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
This Fourth Amendment to Second Amended and Restated Loan Agreement
dated as of December 31, 1998, 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 and Third Amendment to Second Amended and Restated Loan Agreement dated
September 4, 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:
(a) By deleting the definition of CERTIFICATE OF DEPOSIT and
substituting the following in lieu thereof:
"CERTIFICATE OF DEPOSIT" shall mean a certain Certificate
of Deposit of the BANK issued to the BORROWER numbered
9802250739 in the amount of $12,327,632.99 as the same may be
amended, substituted for, replaced, increased or reduced.
(b) By deleting the definition of REVOLVING CREDIT COMMITMENT
AMOUNT and substituting the following in lieu thereof:
"'REVOLVING CREDIT COMMITMENT AMOUNT' (sometimes the
'REVOLVING COMMITMENT AMOUNT') shall mean the sum of Eight
Million Five Hundred Thousand Dollars ($8,500,000.00) except
that during the period from the date hereof through March 31,
1999 it shall mean Twenty-Three Million Five Hundred Thousand
Dollars ($23,500,000.00) (unless BORROWER delivers written
notice to the BANK requesting a lesser amount and BANK
confirms same in writing), provided however that any such
increase as aforesaid (consisting of Fifteen Million Dollars
($15,000,000)) shall be reduced by the amount financed under
the CITIZENS LEASE."
(c) By deleting the definition of "SPECIAL EVENT".
(d) By deleting the definition of "SPECIAL PERIOD".
(e) By inserting a definition of "SECOND REPLACEMENT NEW
BRIDGE NOTE" as follows:
"SECOND REPLACEMENT NEW BRIDGE NOTE" is defined in
Section 5A.05.
2. Section 5A.05 is hereby deleted and the following substituted in
lieu thereof:
"5A.05 The term of the BRIDGE NOTE having expired and all
of the conditions of Article XV and Section 2.08 having been
satisfied and no EVENT OF DEFAULT having occurred, the BANK
agreed to extend the term for repayment of the BRIDGE LOAN
until December 31, 1998 and to reprice the same in the manner
provided. Such BRIDGE LOAN was evidenced by the NEW BRIDGE
NOTE. The BORROWER having represented that all of the
conditions of Article XV and Section 2.08 have been satisfied
and remain fulfilled as of the date hereof, and that no EVENT
OF DEFAULT has occurred, the BANK agrees to further extend
the term of the BRIDGE LOAN until March 31, 1999 and to
reprice the same in the manner provided in Section 5A.08
hereof."
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3. Concurrently herewith, BORROWER shall execute and deliver to the
BANK a replacement of the REPLACEMENT NEW BRIDGE NOTE (the "SECOND
REPLACEMENT NEW BRIDGE NOTE") to reflect the amended maturity date
of such note. All references in the Loan Agreement to the "NEW
BRIDGE NOTE" or "REPLACEMENT NEW BRIDGE NOTE" shall hereafter be
deemed to refer to such "SECOND REPLACEMENT NEW BRIDGE NOTE"
executed of even date herewith.
4. Section 5A.08 is hereby deleted and the following substituted in
lieu thereof:
"5A.08 The BORROWER shall from March 5, 1998 until the
full balance of principal and interest on the BRIDGE LOAN
shall have been paid in full, pay interest monthly in arrears
on the daily outstanding balance of the BRIDGE LOAN from time
to time outstanding at the rate provided in Section 5A.04.
for each INTEREST PERIOD (unless otherwise provided).
5. Concurrently herewith, BORROWER shall execute and deliver to the
BANK a replacement of the REPLACEMENT SHORT TERM REVOLVING NOTE
(the "SECOND REPLACEMENT SHORT TERM REVOLVING NOTE") to reflect
the amended maturity date(s) of such note. All references in the
Loan Agreement to "SHORT TERM REVOLVING NOTE" or "REPLACEMENT
SHORT TERM REVOLVING NOTE" shall hereafter be deemed to refer to
such "SECOND REPLACEMENT SHORT TERM REVOLVING NOTE" executed of
even date herewith.
6. Section 5B.02 is hereby deleted and the following substituted in
lieu thereof:
"5B.02 The SHORT TERM REVOLVING LOAN shall be paid in
full on the first to occur of (1) the obtaining of permanent
financing with respect to the Project or (2) March 31, 1999."
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.
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Witness: DM MANAGEMENT COMPANY
/s/ Xxxx X. Xxxxx
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By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Chief Financial Officer
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Senior Vice President
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