EXHIBIT 10.31
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF LAWRENCEBURG
TAXABLE REVENUE NOTE, SERIES 1996
(JONES APPAREL GROUP, INC. PROJECT)
$5,000,000 May 1, 1996
FOR VALUE RECEIVED, the undersigned. THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF LAWRENCEBURG. a Tennessee public nonprofit corporation (the
"Maker"), promises to pay to the registered owner hereof (the "holder"), at
the main office of NationsBank of Tennessee, National Association, Lawrenceburg,
Tennessee, or at such other place as the holder may from time to time designate
in writing, the principal sum of FIVE MILLION DOLLARS ($5,000,000), plus
interest at the rate of seven and thirty five one hundredth percent (7.35%)
on the outstanding principal balance hereof from the date hereof,
Principal and interest hereunder shall be payable monthly on the fifth
day of each month, commencing on June 5, 1996. Unless the principal shall be
declared due earlier and except as hereinafter provided, the principal hereof
shall be payable in one hundred and twenty (120) equal monthly installments
commencing on June 5, 1996. Notwithstanding the above, the entire outstanding
principal balance, if any, together with all accrued and unpaid interest shall
be immediately due and payable in full on May 1, 2001.
Overdue installments of principal and, to the extent legally enforceable,
interest and other amounts payable under this Note shall bear interest from
their due date at the Default Rate (as hereinafter defined).
All calculations of interest hereunder shall be on the basis of actual days
elapsed in a 360-day year.
Anything herein to the contrary notwithstanding, at no time shall the
interest rate hereunder exceed the highest rate permitted from time to time by
applicable law.
As used herein, (a) "Prime Rate" means the rate of interest set by
NationsBank of Tennessee, National Association, as such bank's Prime Rate
from time to time, and (b) "Default Rate" means the lesser of the Prime Rate
plus 4%, or the maximum rate from time to time permitted under applicable law.
This Note is the Note referred to in, and is entitled to the benefits of,
the Note Agreement (the "Note Purchase Agreement") dated as of the date hereof
among the Maker, NationsBank of Tennessee, National Association and Jones
Apparel Group, Inc., a Pennsylvania corporation (the "Lessee"), and is secured
by (i) an Assignment Agreement of even date from the Maker to NationsBank of
Tennessee, National Association assigning to NationsBank of Tennessee, National
Association Maker's interest in that certain Lease from Maker to Lessee dated as
of May 1, 1996 herewith and of record in the Register's Office for Lawrence
County, Tennessee (the "Lease"), (ii) a Deed of Trust from Maker for the
benefit of NationsBank of Tennessee, National Association, of even date
herewith and of record in the Register's Office for Lawrence County,
Tennessee and (iii) an Escrow and Security Agreement dated as of May 1, 1996
by and among Maker, Lessee and NationsBank of Tennessee, N.A. as escrow agent
and trustee.
This Note shall be prepayable at the option of the Maker at any time with
the prepayment penalties set forth in the following schedule if this Note is
prepaid through refinancing of the indebtedness by any outside lender, other
than NationsBank of Tennessee, National Association or its affiliates, including
any financial institution, credit union, trust fund or like source of funds.
Prepayment Date Prepayment Penalty
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Before May 1, 1999 2%
and thereafter 0%
Notwithstanding the foregoing paragraph, this Note shall be prepayable by
the Maker without penalty in the event the Note is prepaid through funds
of the Lessee generated solely from its operations.
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All payments hereunder shall be payable in lawful money of the United
States of America representing legal tender in payment of all debts and dues,
public and private, at the time of payment.
Payment of each monthly installment as herein above provided, when received
by the holder shall be first applied to accrued interest at the rate aforesaid
on the then outstanding balance of principal and the remainder of said
installment shall be applied to reduction of principal.
Demand, notice, presentment and protest are waived.
This Note is issued in accordance with Sections 7-53-101 to 7-53-311 of
Tennessee Code Annotated and constitutes a special obligation of the Maker, the
principal of, premium, if any, and interest on this Note, and all other amounts
payable by the Maker pursuant to the Note Purchase Agreement and this Note, are
payable solely (i) pursuant to the Assignment referred to in the Note Purchase
Agreement, and (ii) from revenues of the Maker derived and to be derived
pursuant to the Lease of even date herewith (the "Lease") between the Maker and
the Lessee. All payments made as provided above shall, to the extent of the sum
or sums so paid, satisfy and discharge the liability of the Maker under the
Note or the Note Purchase Agreement, as the case may be. Neither the faith
and credit nor any taxing power of the Maker, the State of Tennessee nor the
City of Lawrenceburg, Tennessee, is pledged to the payment of the principal or
premium, if any, or interest on this Note.
No recourse under or upon any obligation, covenant or agreement contained
in this Note, or under any judgment obtained against the Maker, or by the
enforcement of any assessment or by any legal or equitable proceeding by
virtue of any constitution or statute or otherwise or under any circumstances,
under or independent of this Note, shall be had against any incorporator,
member, director or officer, as such, past, present or future, of the Maker,
either directly or through the Maker, or otherwise, for the payment for or to
the Maker or any receiver thereof, or for or to the holder of the Note or
otherwise, of any sum that may be due and unpaid by the Maker upon the Note.
Any and all personal liability of every nature, whether at common law or in
equity, or by statute or by constitution or otherwise, of any such incorporator,
member, director or officer, as such, to respond by reason of an act or omission
on his part or otherwise, for the payment for or to the Maker or any receiver
thereof, or for or to the holder of the Note or otherwise, of any sum that
may remain due and unpaid upon the Note, is hereby expressly waived and released
as a condition of and consideration for the issue of the Note.
Upon the occurrence of an Event of Default under the Note Purchase
Agreement, the Lease or the Deed of Trust, the balance of the principal sum of
the indebtedness evidenced hereby, with all arrearages of interest thereon,
and any other sums advanced hereunder or under any other document evidencing or
securing the indebtedness evidenced hereby, shall, at the option of the holder,
become and be due and payable immediately, without notice, anything contained
herein to the contrary notwithstanding, time being of the essence of this
contract. From and after the date of acceleration in accordance with this
paragraph, interest will accrue at the Default Rate.
In the event this Note is placed in the hands of an attorney for collection
or for enforcement or protection of the security, the Maker shall pay reasonable
attorney's fees and all court and other costs upon demand.
The failure of the holder to exercise any option to accelerate the
indebtedness hereunder in the event of any default as above provided, or any
forbearance, indulgence, or other delay by such holder in the exercise of any
such option, shall not constitute a waiver of the right to exercise such option
prior to the curing of any such default or in the event of any subsequent
default, whether similar or dissimilar to any prior default.
The Maker consents to any extension of time of payment hereof release of
all or any part of the security for the payment hereof, or release of any party
liable for this obligation. Any such extension or release may be made without
notice to said Maker and without discharging any of its liability hereunder.
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No provision in this Note shall require the payment or permit the
collection of interest in excess of the maximum permitted by law. If any excess
of interest in such respect is herein provided for, or shall be adjudicated to
be so provided for herein, the provisions of this paragraph shall govern, and
the Maker shall not be obligated to pay the amount of such interest to the
extent that it is in excess of the amount permitted by law. In the event the
holder shall collect monies which are deemed to constitute interest which
would otherwise increase the effective interest rate on this Note to a rate
in excess of that permitted to be charged by applicable law, all such sums
deemed to constitute interest in excess of the legal rate shall be immediately
returned to the payor thereof upon such determination.
This Note shall be construed according to the laws of the State of
Tennessee except to the extent that applicable federal law may permit any higher
rate of interest.
Any notice to the Maker of this Note shall be effective when delivered by
personal service or when placed in the first-class United States mails, postage
prepaid, addressed to Maker, c/o Alan C. Betz, Esq., White & Betz, 22 Public
Square, Lawrenceburg, Tennessee 38464-0488, or at such other address as may be
designated in writing to holder by Maker.
This Note may be transferred or assigned by the holder by giving notice to
the Lessee as note registrar at its main office, currently at 250 Rittenhouse
Circle, Bristol, Pennsylvania 19007. The principal hereof, premium, if any, and
interest hereon will be paid by check of the note registrar at the times
provided herein to the holder by mail to the address shown on the registration
books or at such other place as may be directed by the holder.
The law pursuant to which this Note is issued requires that the following
statement appear on the face hereof:
Neither the principal of or interest on this Note is taxable by
the State of Tennessee or by any county or municipality thereof.
However, such interest is subject to the Tennessee corporate
excise tax and the Tennessee privilege tax imposed on savings
and loan associations and the principal hereof may be subject
to Tennessee inheritance tax.
IN WITNESS WHEREOF, THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF
LAWRENCEBURG, has caused this Note to be duly executed by its Chairman and
its seal to be impressed hereon and attested by its Secretary as of the
date first above written.
THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF
LAWRENCEBURG
By /s/ Jerry Putman
Chairman
(SEAL)
ATTEST:
/s/ Carolyn Thompson
Secretary
Date of Name and Address
Registration Registered Owner
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May 1, 1996 NationsBank of Tennessee,
National Association
255 N. Military Avenue
Lawrenceburg, TN 38464
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