Exhibit 10.4


 


EXECUTION ORIGINAL


 


THIRD MASTER AMENDMENT TO

SECOND AMENDED AND RESTATED REVOLVING

CREDIT AGREEMENT


 


THIS THIRD MASTER
AMENDMENT TO SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this “Amendment”)
is entered into on May 20, 2004 by and between CACHÈ, INC., a Florida
corporation, (“Borrower”) and FLEET NATIONAL BANK, a national banking
association (“Bank”).


 


RECITALS


 


WHEREAS, the Borrower and
the Bank are parties to a Second Amended and Restated Revolving Credit
Agreement dated as of August 26, 1996 (as amended by that certain Master
Amendment to Revolving Credit Agreement and Security Agreement dated July 19,
1999, a certain Second Master Amendment to Revolving Credit Agreement and
Security Agreement dated November 21, 2002, and as the same may be
further amended, (the “Agreement”); and


 


WHEREAS, the Borrower and
the Bank have agreed to further amend the terms of the Agreement as set forth
in this Amendment.


 


Now, therefore, in
consideration of Bank’s continued extension of credit and the agreements
contained herein, the parties agree as follows:


 


AGREEMENT


 


1)              ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that the most recent statement
of account sent to Borrower with respect to the Loans is correct.


 


2)              MODIFICATIONS. The Agreement be and hereby is modified as follows:


 


(A)                              The second “Whereas” clause is hereby
amended by replacing the reference to “$15,000,000” with “$17,500,000.”


 


(B)                                Section 1.1(b) of the Agreement
is hereby deleted and replaced in its entirety to read as follows:


 


(b)                                 The total principal amount of all
outstanding Loans, together with the face amount of all outstanding Letters of
Credit, as hereinafter defined, shall not exceed $17,500,000; provided,
however, that for one consecutive thirty-day period during each fiscal year of
the Borrower, there shall be no Loans or Letters of Credit outstanding.


 


(C)                                Section 4.15 of the Agreement is
hereby amended by amending and restating subsections (s) and (t) thereof in
their entirety to read as follows:


 


s)                                      The Borrower shall not make capital
expenditures in excess of $20,000,000 for the fiscal year ending December 31,
2004.


 


(t)                                    The Borrower shall not make capital
expenditures in excess of $25,000,000 for the fiscal year ending December 31,
2005.


 


(D)                               The first “Whereas” clause in a certain
Security Agreement between the Borrower and the Bank dated August 26, 1996
(the “Security Agreement”) is hereby amended by deleting the reference to “$15,000,000”
and substituting in its place “$17,500,000.”


 


3)              ACKNOWLEDGMENTS. Borrower acknowledges and represent that:


 


(A)                              the Agreement and the Loan Documents, as
amended hereby, are in full force and effect without any defense, claim,
counterclaim, right or claim of set-off;


 


(B)                                after giving effect to this Amendment, no
Default or Event of Default under the Agreement or the Loan Documents has
occurred,


 


(C)                                no default by the Lender in the
performance of its duties under the Agreement or the Loan Documents has
occurred;


 


 


 


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((D)                           all representations and warranties
contained herein and in the Agreement and the Loan Documents are true and
correct as of this date;


 


(E)                                 Borrower has taken all necessary action
to authorize the execution and delivery of this Amendment; and


 


(F)                                 this Amendment is a modification of an
existing obligation and is not a novation.


 


4)              PRECONDITIONS. As a precondition to the effectiveness of any of the modifications
contained herein, the Borrower agrees to:


 


(A)                              provide the Bank with a resolution, in form and
substance acceptable to the Lender, which approves the transaction contemplated
hereby;


 


(B)                                provide the Bank with the $17,500,000
Note; and


 


(C)                                pay all fees and costs incurred by the
Bank in entering into this Amendment and the other documents executed in connection
herewith.


 


5)     MISCELLANEOUS. This Amendment
shall be construed in accordance with and governed by the laws of the
applicable state as originally provided in the Agreement, without reference to
that state’s conflicts of law principles. This Amendment, the Agreement and the
Loan Documents constitute the sole agreement of the parties with respect to the
subject matter thereof and supersede all oral negotiations and prior writings
with respect to the subject matter thereof. No modifications of this Amendment,
the Agreement, and no waiver of any one or more of the provisions hereof shall
be effective unless set forth in writing and signed by the parties hereto. The
illegality, unenforceability or inconsistency of any provision of
his Amendment shall not in any way
affect or impair the legality, enforceability or consistency of the remaining
provisions of this Amendment, the Agreement or the Loan Documents. This
Amendment and the Loan Documents are intended to be consistent. However, in the
event of any inconsistencies among this Amendment, the Agreement, and any of
the Loan Documents, the terms of this Amendment, then the Agreement, shall
control. This Amendment may be executed in any number of counterparts and
by the different parties on separate counterparts. Each such counterpart shall
be deemed an original, but all such counterparts shall together constitute one
and the same agreement. Terms used in this Amendment which are capitalized and
not otherwise defined herein shall have the meanings ascribed to such terms in
the Agreement and the Loan Documents.


 


6)              DEFINITIONS. The
terms used herein and not otherwise defined or modified herein shall have the
meanings ascribed to them in the Agreement. The terms used herein and not
otherwise defined or modified herein or defined in the Agreement shall have the
meanings ascribed to them by the Uniform Commercial Code as enacted in New
Jersey.


 


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IN WITNESS WHEREOF, the undersigned have signed and sealed this
Amendment the day and year first above written.


 


	
  WITNESS:

  	
   

  	
  CACHÉ, INC.

  
	
   

  	
   

  	
   

  
	
  /s/ Monica Barilles

  	
   

  	
   

  	
  BY:

  	
  /s/ Victor J. Lester

  
	
  Name: Monica Barilles

  	
   

  	
   

  	
   

  	
  Name:

  	
  Victor J. Lester

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer/Secretary

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FLEET NATIONAL BANK

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BY:

  	
  /s/ Catherine E. Garrity

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Catherine E. Garrity

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


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EXECUTION ORIGINAL


 


NOTE


 




	
  $17,500,000.00

  	
   

  	
  May 20, 2004

  






 


FOR VALUE RECEIVED, the
undersigned, CACHÈ, INC., a Florida corporation (the, “Borrower”), hereby
promises to pay to the order of FLEET NATIONAL BANK, (the “Bank”), on November 30,
2005, the lesser of (a) the principal sum of Seventeen Million Five
Hundred and 00/100 ($17,500,000.00) Dollars, or (ii) the aggregate unpaid
principal amount of all Loans, as such term is defined in the Second Amended
and Restated Revolving Credit Agreement, dated August 26, 1996, by and
between the Borrower and the Bank (as amended by the Master Amendment to
Revolving Credit Agreement and Security Agreement dated July 19, 1999, by
the Second Master Amendment to Revolving Credit Agreement and Security
Agreement dated November 21, 2002, and further by the Third Master
Amendment to the Second Amended and Restated Revolving Credit Agreement dated
as of the date hereof and as it may from time to time be further amended,
modified or supplemented, referred to as the “Credit Agreement”), then
outstanding. The Borrower further promises to pay the Bank interest on the
unpaid principal amount hereof from the date hereof until maturity at the rates
per annum set forth in or established pursuant to the Credit Agreement and as
calculated therein. Interest on this Note for each Prime Rate Loan, LIBOR Loan
or COF Loan, as the case may be, shall be payable prior to maturity on the
last day of the applicable Interest Period therefor. Interest shall be payable
on maturity of this Note, whether at stated maturity, by acceleration or
otherwise. In the event that any payment shall not be received by Bank within
ten (10) days of the due date, the undersigned shall, to the extent
permitted by law, pay Bank a late charge of five percent (5%) of the overdue
payment. Any such late charge assessed shall be immediately due and payable. In
no event shall any such payments of interest, charges or late fees exceed the
maximum amount permitted by law.


 


Anything herein to the
contrary notwithstanding, the obligation of the Borrower to make payments of
interest shall be subject to the limitation that payments of interest shall not
be required to be made to the Bank to the extent that the Bank’s receipt
thereof would not be permissible under the law or laws applicable to the Bank
limiting rates of interest which may be charged or collected by the Bank.
Any such payments of interest which are not made as a result of the limitation
referred to in the preceding sentence shall be made by the Borrower to the Bank
on the earliest interest payment date or dates on which the receipt thereof
would be permissible under such laws applicable to the Bank limiting rates of
interest which may be charged or collected by the Bank. Such deferred
interest shall not bear interest.


 


Payments of both
principal and interest on this Note are to be made at the office of the bank,
at 750 Walnut Avenue Cranford, NJ 07016 or such other place as the Bank shall
designate to the Borrower in writing, in lawful money of the United States of
America in immediately available funds.


 


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This Note is secured in
the manner provided in the Credit Agreement and the Security Documents, is
subject to prepayment upon the terms and conditions thereof and is entitled to
the benefits thereof.


 


The Bank is hereby
authorized by the Borrower to record on the schedule annexed to this Note
(or on a supplemental schedule thereto) the amount of each Loan made by
the Bank to the Borrower and the amount of each payment or prepayment of
principal of such Loans received by the Bank, it being understood, however,
that failure to make any such notation shall not affect the rights of the Bank
or the obligations of the Borrower hereunder in respect of this Note.


 


Upon the occurrence of
any Event of Default, as defined in the Credit Agreement, the principal amount
of and accrued interest on this Note may be declared due and payable in
the manner and with the effect provided in the Credit Agreement. The Borrower
hereby agrees to pay the costs of collection and reasonable attorneys’ fees and
expenses in case default occurs in the payment of this Note.


 


This Note shall replace
and supersede the Note made by the Borrower to the order of the Bank dated November 21,
2002 (the “Prior Note”); provided, however, that the execution and delivery of
this Note shall not in any circumstance be deemed to have terminated,
extinguished or discharged the Borrower’s indebtedness under such Prior Note,
all of which indebtedness shall continue under and be governed by this Note and
the documents, instruments and agreements executed pursuant hereto or in
connection herewith. This Note is a replacement, consolidation, amendment and
restatement of the Prior Note and IS NOT A NOVATION. The Borrower shall also
pay and this Note shall also evidence any and all unpaid interest in all Loans
made by the Bank to the Borrower pursuant to the Prior Note, and at the
interest rate specified therein, for which this Note has been issued as
replacement therefor.


 


All terms used in this
Note and not otherwise defined herein shall have the same meanings that such
terms have in the Credit Agreement.


 


THIS NOTE IS BEING
DELIVERED IN AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW JERSEY WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS.


 


	
   

  	
   

  	
  CACHÉ, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Victor J. Lester

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Victor J. Lester

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Treasurer/Secretary

  



 


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