EXHIBIT 10.39
BANK OF BOSTON
THE FIRST NATIONAL BANK OF BOSTON. Boston, Massachusetts 02106
July 18, 1996
Mr. Gary R. Klocek
Jones Apparel Group, Inc.
250 Rittenhouse Circle
Bristol, PA 19007
Dear Gary,
For your review and execution, attached is the required documentation for
our new $20,000,000 Money Market lending arrangement. The Money Market line
letter describes the borrowing procedures, and the Money Market note will
evidence the actual draw-downs against this uncommitted facility. The standard
Borrowing Resolutions and Certification of Title forms need to be completed as
well.
If either you or your counsel has any questions concerning these forms,
or any of the assumptions contained therein, please do not hesitate to call me
at 617-434-5310. Upon receipt of the executed documents, Bank of Boston is
prepared to quote rates and fund on a same day basis.
We look forward to expanding our good business relationship with Jones
Apparel Group, Inc. with this new $20,000,000 lending facility.
Regards,
/s/ Nancy Fuller
Nancy E. Fuller, Director
cc: T. A. McLaughlin, Large Corporate
G. R. Long, Department Executive
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MONEY MARKET LINE
COMMERCIAL PROMISSORY NOTE
Boston, Massachusetts
July 19, 1996
FOR VALUE RECEIVED, the undersigned (jointly and severally if more than
one) promise(s) to pay to the order of THE FIRST NATIONAL BANK OF BOSTON
(together with any successors or assigns, the "Bank"), a national banking
association with its Head Office at 100 Federal Street, Boston, Massachusetts
02110, the aggregate principal amount of all loans made by the Bank to the
undersigned pursuant to the letter agreement between the Bank and the
undersigned dated July 19, 1996 as shown in the schedule attached hereto (the
"Note Schedule"), together with interest on each loan from the date such loan
is made until the maturity thereof at the applicable rate set forth in the Note
Schedule. The principal amount of each loan shall be payable on the maturity
date of such loan as indicated in the Note Schedule. Interest on the principal
amount of each loan shall be payable in arrears on the same day as the principal
amount is due. Interest shall be calculated on the basis of a 360-day year
for the actual number of days elapsed including holidays and days on which
the Bank is not open for the conduct of banking business.
SECTION 1. PAYMENT TERMS.
1.1 PAYMENTS; PREPAYMENTS. All payments hereunder shall be made by the
undersigned to the Bank in United States currency at the Bank's address
specified above (or at such other address as the Bank may specify), in
immediately available funds, on or before 2:00 p.m. (Boston, Massachusetts
time) on the due date thereof Payments received by the Bank prior to the
occurrence of an Event of Default (as defined in Section 2) will be applied
first to fees, expenses and other amounts due hereunder (excluding principal
and interest); second, to accrued interest; and third to outstanding principal;
after the occurrence of an Event of Default, payments will be applied to the
Obligations under this Note as the Bank determines in its sole discretion.
No prepayment of any loan shall be permitted.
1.2 PREPAYMENT CHARGE. If any payment of principal is made for any reason
on any day other than the date scheduled therefor, whether as a result of
acceleration or otherwise, the undersigned shall reimburse the Bank for the
loss, if any, including any lost profits, resulting from such prepayment, as
reasonably determined by the Bank. The undersigned shall pay such loss
upon presentation by the Bank of a statement of the amount of such loss,
setting forth the Bank's calculation thereof, which notice and calculation
(including the method of calculation) shall be deemed true and correct absent
manifest error.
1.3 DEFAULT RATE. To the extent permitted by applicable law, upon and
after the occurrence of an Event of Default (whether or not the Bank has
accelerated payment of this Note), interest on principal and overdue interest
shall, at the option of the Bank, be payable on demand at a rate per annum equal
to 2% above the greater of the rate of interest otherwise payable hereunder
or the rate announced by the Bank from time to time as its Base Rate.
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SECTION 2. DEFAULTS AND REMEDIES.
2.1 DEFAULT. The occurrence of any of the following events or conditions
shall constitute an "Event of Default" hereunder-
(a) (i) default in the payment when due of the principal of or
interest on this Note or
(ii) any other default in the payment or performance of this
Note or of any other Obligation or
(iii) default in the payment or performance of any obligation of
any Obligor to others for borrowed money or in respect of
any extension of credit or accommodation or under any
lease;
(b) failure of any representation or warranty herein or in any
agreement, instrument, document or financial statement
delivered to the Bank in connection herewith to be true and
correct in any material respect;
(c) failure to furnish the Bank promptly on request with financial
information about, or to permit inspection by the Bank of any
books, records and properties of, any Obligor;
(d) merger, consolidation, sale of all or substantially all of
the assets or change in control of any Obligor; or
(e) any Obligor generally not paying its debts as they become due;
the death, dissolution, termination of existence or insolvency
of any Obligor; the appointment of a trustee, receiver,
custodian, liquidator or other similar official for such
Obligor or any substantial part of its property or the
assignment for the benefit of creditors by any Obligor; or
the commencement of any proceedings under any bankruptcy or
insolvency laws by or against any Obligor.
As used herein, "Obligation" means any obligation hereunder or otherwise
of any Obligor to the Bank or to any of its affiliates, whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising; and "Obligor" means the undersigned, any guarantor or any
other person primarily or secondarily liable hereunder or in respect hereof,
2.2 REMEDIES. Upon an Event of Default described in Section 2.1(e)
immediately and automatically, and upon or after the occurrence of any other
Event of Default at the option of the Bank, all Obligations of the undersigned
shall become immediately due and payable without notice or demand. All rights
and remedies of the Bank are cumulative and are exclusive of any rights or
remedies provided by law or in equity or any other agreement, and may be
exercised separately or concurrently.
SECTION 3. MISCELLANEOUS.
3.1 WAIVER; AMENDMENT. No delay or omission on the part of the Bank in
exercising any right hereunder shall operate as a waiver of such right or of any
other right under this Note. No waiver of any right or any amendment hereto
shall be effective unless in writing and signed by the Bank, nor shall a waiver
on one occasion bar or waive the exercise of any such right on any future
occasion. Without limiting the generality of the foregoing, the acceptance by
the Bank of any late payment shall not be deemed to be a waiver of the Event of
Default arising as a consequence thereof. Each Obligor waives presentment,
demand, notice, protest, and all other demands and notices in connection with
the delivery, acceptance, performance, default or enforcement of this Note and
assents to any extensions or postponements of the time of payment and to any
other indulgences under this Note, and to any additions or releases of any
other parties or persons primarily or secondarily liable hereunder, that from
time to time may be granted by the Bank in connection herewith.
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3.2 SET-OFF. Regardless of the adequacy of any collateral or other means of
obtaining repayment of the Obligations, the Bank is hereby authorized at any
time and from time to time, without notice to the undersigned (any such notice
being expressly waived by the undersigned) and to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) and other sums credited by or due from the Bank
to the undersigned or subject to withdrawal by the undersigned against the
Obligations of the undersigned, although such Obligations may be contingent
or unmatured.
3.3 TAXES. The undersigned agrees to indemnify the Bank and hold it
harmless from and against any transfer taxes, documentary taxes, assessments
or charges made by any governmental authority by reason of the execution,
delivery, and performance of this Note.
3.4 EXPENSES. The undersigned will pay on demand all expenses of the Bank
in connection with the preparation, administration, default, collection, waiver
or amendment of the Obligations or in connection with the Bank's exercise,
preservation or enforcement of any of its rights, remedies or options
thereunder, including, without limitation, fees of outside legal counsel or
the allocation costs of in-house legal counsel, accounting, consulting,
brokerage or other similar professional fees or expenses, and any fees or
expenses associated with any travel or other costs relating to any appraisals
or examinations conducted in connection with the Obligations or any
collateral therefor, and the amount of all such expenses shall, until paid, bear
interest at the rate applicable to principal hereunder (including any default
rate) and be an Obligation secured by any such collateral.
3.5 BANK RECORDS. The entries on the records of the Bank (including any
appearing on this Note) shall be prima facie evidence of the aggregate principal
amount outstanding under this Note and interest accrued thereon.
3.6 INFORMATION. The undersigned shall furnish the Bank from time to time
with such financial statements and other information relating to any Obligor or
any collateral securing this Note as the Bank may require. All such information
shall be true and correct and fairly represent the financial condition and the
operating results of such Obligor as of the date and for the periods for which
the same are furnished. The undersigned shall permit representatives of the
Bank to inspect its properties and its books and records, and to make copies
or abstracts thereof. Each Obligor authorizes the Bank to release and
disclose to its affiliates, agents and contractors any financial statements
and other information relating to said Obligor provided to or prepared by or for
the Bank in connection with any Obligation. The undersigned will notify the
Bank promptly of the existence or upon the occurrence of any Event of Default or
event which, with the giving of notice or the passage of time or both, would
become an Event of Default.
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3.7 GOVERNING LAW; CONSENT TO JURISDICTION. This Note is intended to take
effect as a sealed instrument and shall be governed by, and construed in
accordance with, the laws of The Commonwealth of Massachusetts, without regard
to its conflicts of law rules. The undersigned agrees that any suit for the
enforcement of this Note may be brought in the courts of such state or any
Federal Court sitting in such state and consents to the non-exclusive
jurisdiction of each such court and to service of process in any such suit being
made upon the undersigned by mail at the address specified below. The
undersigned hereby waives any objection that it may now or hereafter have to
the venue of any such suit or any such court or that such suit was brought in
an inconvenient court.
3.8 SEVERABILITY, AUTHORIZATION TO COMPLETE, PARAGRAPH HEADINGS. If any
provision of this Note shall be invalid, illegal or unenforceable, such
provisions shall be severable from the remainder of this Note and the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. The Bank is hereby authorized, without further
notice, to fill in any blank spaces on this Note, and to date this Note as
of the date funds are first advanced hereunder. Paragraph headings are for the
convenience of reference only and are not a part of this Note and shall not
affect its interpretation.
3.9 JURY WAIVER. THE BANK (BY ITS ACCEPTANCE OF THIS NOTE) AND THE
UNDERSIGNED AGREE THAT NEITHER OF THEM NOR ANY ASSIGNEE OR SUCCESSOR SHALL
(A) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
ACTION BASED UPON, OR ARISING OUT OF, THIS NOTE, ANY RELATED INSTRUMENTS, ANY
COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ANY OF THEM
OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH SHALL
BE SUBJECT TO NO EXCEPTIONS. NEITHER THE BANK NOR THE UNDERSIGNED HAS AGREED
WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT
BE FULLY ENFORCED IN ALL INSTANCES.
By: /s/ Gary R. Klocek
Gary R. Klocek, Controller
Jones Apparel Group, Inc.
250 Rittenhouse Circle
Bristol, PA 19007
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