EXHIBIT 10.35
CoreStates Bank
PO Box 7618
Philadelphia PA 19101-7618
September 5, 1996
MASTER SHORT TERM BORROWING AGREEMENT
Jones Apparel Group
250 Rittenhouse Circle
Bristol, PA 19007
Attention: Gary R. Klocek
Controller
Gentlemen:
You have indicated that you may wish to borrow from us from
time to time on a short term basis for working capital or other
short term purposes. We are interested in considering such loan
requests and may from time to time like to bid on your short term
borrowing needs. Short term borrowings or loans mean borrowings
or loans which are payable on demand or have a maturity of 180
days or less and are referred to in this letter Agreement
individually as a "Loan" and collectively as "Loans."
The purpose of this letter is to outline and specify, among
other things, how Loans may be requested and, if agreed to by us,
the terms under which they will be made. As used in this
Agreement, the terms we, us, our and the Bank mean CoreStates
Bank, N.A. and the terms you and your mean the addressee of this
Agreement. This letter does not constitute a commitment to lend
or to make advances. It shall be solely within our discretion to
make or refuse to make any Loan requested by you, and the making
of one or more Loans hereunder shall not be considered a
commitment by us to make any additional Loans. It is understood
and agreed that any and all Loans will be governed by the
following:
1. Requests for Loans. A duly authorized officer or other
duly authorized person under Paragraph 2 may request Loans by
telephone confirmed in writing or by letter. If we elect to make
a Loan, then we will credit the proceeds to your designated
account. Upon your request we will forward to you at your
address set forth in Paragraph 16 written advices or statements
of Loans, which will specify the rate or rates of interest
payable on the Loan, and such other terms as may have been agreed
to.
2. Resolutions Authorizing Loans. Any and all documents
required to be executed in connection with Loans may be signed by
any of the officers or other person duly authorized by your
borrowing resolutions as in effect from time to time, provided
that a copy of such resolutions is certified by the Secretary or
an Assistant Secretary of your corporation and delivered to us.
We shall incur no liability to you or any other person in acting
on any request for a Loan which we believe in good faith to have
been made by a person duly authorized to borrow on your behalf as
set forth in your borrowing resolutions.
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3. Bank Records Conclusive. The amount and terms of each
Loan including the rate of interest thereon and your payments of
principal and interest, as well as any special terms and details
of each such Loan, shall be established and evidenced by this
letter Agreement and by our records, which shall be conclusively
deemed to be correct in the absence of manifest error.
4. Payment of Loans. All Loans shall be payable on a
demand, time or other basis mutually agreed upon at the time the
Loan is made. Loans which are payable on a basis other than
demand may not be prepaid prior to their maturity date or dates.
If one or more Loans which are payable on a basis other than
demand are repaid prior to their maturity date or dates (whether
voluntarily by reason of acceleration or otherwise), you shall
pay to the Bank an amount equal to all loss, cost and expense of
the Bank resulting from such prepayment. Upon the payment in
whole or in part of any Loan as provided above, accrued and
unpaid interest on the amount repaid shall be simultaneously
paid.
5. Interest. (a) Interest on each Loan shall be computed
at the rate mutually agreed upon at the time the Loan is made and
shall be paid monthly, if the Loan is payable on demand, or on
the date or dates agreed to, if the Loan is payable on a time or
other basis. If the rate of interest agreed to is based upon our
"prime rate," such terms shall mean and refer to the rate of
interest for commercial loans established and publicly announced
by us from time to time as our prime rate and such rate of
interest shall change each time our prime rate changes, effective
on the date of change.
(b) Unless other agreed, interest on all Loans shall be
computed on the basis of a year of 360 days for each day of the
year actually elapsed.
6. Payments. You irrevocably authorize us to effect
payment of principal of and interest on and any fees in
connection with all Loans whenever such payment is due and to
debit your designated account for the amount of such payment.
Alternatively, you may effect all payments to us via wire
transfer on the date such payments are due. We shall furnish to
you a written confirmation of the amount of each principal and
interest payment charged against your designated account. You
will pay to us promptly such amounts as may be due if your
designated account balance is insufficient. All payments of
principal and interest on Loans shall be made in lawful money of
the United States in immediately available funds free and clear
of and without deduction for any taxes, fees or other charges of
any nature imposed by any governmental authority, or, if such
withholding is required, you shall pay to us the same net amount
as if no withholding was made.
7. Payment of Costs. In addition to the principal and
interest payments specified in paragraphs 4 and 5, you agree to
pay upon demand all costs and expenses (including reasonable
attorneys' fees and legal expenses) we incur in enforcing the
Loans and this Agreement.
8. Further Evidence of Loans. Upon our request, you
hereby agree to execute and deliver to us a promissory note or
notes payable to our order to evidence all or any part of any
Loans. If any Loan is or shall be evidenced by one or more
promissory notes, such note or notes shall be deemed to
incorporate by reference, and to be supplemented and modified by,
the terms of this Agreement.
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9. Your Representations. You represent and warrant that
you are validly existing and in good standing in the jurisdiction
under whose laws you were organized, that the execution, delivery
and performance of this Agreement are within your powers, have
been duly authorized by all necessary action and are not in
contravention of the terms of your charter documents. You
further represent and warrant that this Agreement has been
validly executed and is enforceable in accordance with its terms,
that the execution, delivery and performance by you of this
Agreement are not in contravention of law and do not conflict
with any indenture, agreement or undertaking to which you are a
party or are otherwise bound, and that no consent or approval of
any governmental authority or any third party is required in
connection with the execution, delivery and performance of this
Agreement.
10. Security. Loans may be secured by security interests,
mortgages and other liens given especially for such purposes or
given to secure other indebtedness. Whether such security
interests and other liens were given to secure other indebtedness
that you have to us or are given to secure Loans, you agree that
such security interests and liens shall secure all of your
existing and future indebtedness. As security for the payment of
all sums owed by you to us, we shall have a lien upon, and
security interest in, any balance belonging to you in any of your
deposit or other accounts with us and any other amounts or
property which from time to time may be owing by us to you or
held by us for you.
11. Defaults. The occurrence of any of the following
events shall cause you to be in default on any and all
outstanding Loans that are payable on a basis other than demand:
(a) the nonpayment when due of any amount payable on any of
the Liabilities (the term "Liabilities" shall mean all loans and
advances made under this Agreement and any renewals, extensions
and modifications thereof and all of your other existing and
future liabilities, whether absolute or contingent, to the Bank
regardless of their source or nature and out of whatever
transactions arising);
(b) the failure of any Obligor to pay, observe or perform
any indebtedness, obligation or agreement of any nature with the
Bank (the term "Obligor" includes you and all persons otherwise
liable for the payment of all Loans, and all renewals, extensions
or modifications thereof, such as endorsers or guarantors);
(c) if any representation, warranty, certificate, financial
statement or other information made or given by any Obligor to
the Bank is materially incorrect or misleading;
(d) if any Obligor shall become insolvent or make an
assignment for the benefit of creditors or if any petition shall
be filed by or against any Obligor under any bankruptcy or
insolvency law;
(e) the entry of judgment against any Obligor which remains
unsatisfied and unstayed for 15 days or the issuance of any
attachment, tax lien, levy or garnishment against any property of
material value in which any Obligor has an interest;
(f) if any attachment, levy, garnishment or similar legal
process is served upon the Bank as a result of any claim against
any Obligor or against any property of any Obligor;
(g) the dissolution, merger, consolidation, or the sale or
change in control (as control is defined in Rule 12b-2 under the
Securities Exchange Act of 1934) of any Obligor which is a
corporation or partnership, or transfer of any substantial
portion of any Obligor's assets, or if any agreement for such
dissolution, merger, consolidation, change in control, sale or
transfer is entered into by any Obligor, without the written
consent of the Bank;
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(h) if the Bank determines reasonably and in good faith
that an event has occurred or a condition exists which has had,
or is likely to have, a material adverse effect on the financial
condition or creditworthiness of any Obligor, or on the ability
of any Obligor to perform the Liabilities;
(i) if any Obligor shall fail to remit promptly when due to
the appropriate government agency or authority depository, any
amount collected or withheld from any employee of said Obligor
for payroll taxes, Social Security payments or similar payroll
deductions;
(j) if any Obligor shall attempt to terminate or disclaim
such Obligor's liability for the Liabilities;
(k) if the Bank shall reasonably and in good faith
determine and notify you that any collateral for the Liabilities
is insufficient as to quality or quantity;
(1) if any Obligor shall fail to pay when due any material
indebtedness for borrowed money other than to the Bank;
(m) if you shall be notified of the failure of any Obligor
to provide such financial and other information promptly when
reasonably requested by the Bank; or
(n) the death of any Obligor who is a natural person.
12. Acceleration, Demand, Interest After Default. (a) If
you are in default as described in Paragraph 11(a) through (n),
including a default for failure to pay any Loans payable on
demand upon demand for payment by us, at our election evidenced
by notice in writing to you, all Loans, whether or not evidenced
by a note, shall thereupon become due and payable without
presentment, demand or protest, all of which are hereby waived.
If you are in default as described in Paragraph 11(d), then
forthwith and without any election or notice, all Loans, whether
or not evidenced by a note, shall thereupon become due and
payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived. You waive all right to
stay of execution and exemption of property in any action to
enforce your obligations to us hereunder. With respect to all
Loans payable on demand, the Bank's right to demand payment shall
not be restricted or impaired by the absence, non-occurrence or
waiver of a default, and it is understood that for all Loans
payable on demand, the Bank may demand payment at any time.
(b) Upon the occurrence of any such default or at any time
thereafter, the Bank may, at its option, and upon five days'
written notice to you, begin accruing interest on the outstanding
Loans, at a rate not to exceed five percent (5%) per annum in
excess of the greater of: (i) the Prime Rate in effect from time
to time and (ii) the rate of interest applicable to such Loan;
provided, however, that no interest shall accrue in excess of the
maximum rate permitted by law. All such additional interest
shall be payable on demand.
13. Continuing Effect. This Agreement shall remain in full
force and effect until all Loans outstanding, together will
interest thereon, and all other sums required to be paid under
the terms of this Agreement have been paid in full.
14. Governing Law. This Agreement and any note or notes
evidencing Loans made shall be construed in accordance with and
governed by the laws of the Pennsylvania.
15. Bank's Assignees. The Bank may at any time or from
time to time grant to others assignments of or participations in
the Loans.
16. Notices. Any notice given under this Agreement shall
be effective on the date when it is delivered to a party at its
address set forth as follows (or at such other address as the
party to which notice may be given may specify to the other in
writing):
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if to you at Jones Apparel Group
250 Rittenhouse Circle
Bristol, PA 19007
Attention: Gary R. Klocek
Controller
and if to us at
CORESTATES BANK, N.A.
Broad and Chestnut Streets
Philadelphia, PA 19107
Attention: James P. Richards
F.C. 1-8-8-14
17. Miscellaneous. Any failure by us to exercise any right
under this Agreement shall not be construed as a waiver of the
right to exercise the same or any other right at any other time.
If more than one person, including any form of legal entity,
shall sign this Agreement as borrower, such persons shall be
jointly and severally liable hereunder and the terms "you" and
"your" shall be deemed to mean any and all such persons. The
parties hereto intend this Agreement to be a sealed instrument
and to be legally bound hereby.
18. JURISDICTION AND VENUE. IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER, YOU HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY
IN THE COMMONWEALTH OF PENNSYLVANIA WHERE THE BANK MAINTAINS AN
OFFICE AND AGREE NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION
OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH
PROCEEDING IN SUCH COUNTY. YOU AGREE THAT SERVICE OF PROCESS IN
ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON YOU BY MAILING A
COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO YOU.
19. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE RELATIONSHIP ESTABLISHED HEREUNDER. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE BANK TO ENTER INTO THIS AGREEMENT.
20. Termination. This Agreement shall remain in full force
and effect until either of us gives notice of termination to the
other, which must be given or confirmed in writing, but no such
termination shall affect your obligation to repay with interest
to the date of repayment all sums due and owing with respect to
Loans outstanding under the terms of this Agreement at the time
of such termination.
Please indicate your acceptance of this Agreement by signing
and dating the enclosed copy in the place provided and returning
such copy to us.
Very truly yours,
CORESTATES BANK, N.A.
/s/ James P. Richards
James P. Richards
Vice President
Acceptance Of And Agreement To
Master Short Term Borrowing Agreement
We, the addressee of the above Master Short Term Borrowing
Agreement, intending to be legally bound, accept and agree to the
terms and conditions of said Agreement and promise to pay the
principal of and interest on all Loans made to us by CoreStates
Bank, N.A., and all other sums required to be paid by us to said
Bank, under and in accordance with the terms of said Master Short
Term Borrowing Agreement. Signed this 12th day of September 1996.
By /s/ Gary R. Klocek (SEAL)
---------------------------
Corporate Controller
Name and Title
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