BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
July 7, 1997
Mr. Gary R. Klocek
Controller
Jones Apparel Group, Inc.
250 Rittenhouse Circle
Bristol, PA 19007
Dear Gary;
We are pleased to inform you that the necessary internal approval has been
obtained for the establishment of an informal "money market" lending arrangement
with Jones Apparel Group. Loans under this arrangement will be at fixed rates
quoted by BankBoston, N.A. with maturities of up to ninety days. Prepayment of
loans will not be permitted and if any loans are paid on a date other than the
maturity date thereof (whether by acceleration or otherwise), you shall
compensate us for any funding losses and other costs (including lost profits)
incurred as a result of such payment. Each loan must be at least $750,000 and
aggregate loans under this arrangement may not exceed $20,000,000. This
arrangement is not a commitment to lend, and from time to time the Bank may not
quote rates on some or all maturities.
We agree that upon your advice by telephone from time to time to our Money
Market Desk at (617) 434-7725 that you wish to borrow money under this facility
and our agreement to lend, we will forthwith lend you such amount at the quoted
rate of interest by crediting such an amount to your demand deposit account with
us, or, upon your instructions, by wiring such amount to such other account as
you may direct. Borrowings shall be evidenced by a Promissory Note in the
form attached hereto. Each borrowing and the corresponding information (see
attached note schedule) will be recorded the day of the telephone call. Our
corresponding advices of credit and debit will be additional evidence of
borrowings. You authorize us to keep the official record of all borrowings
under this "money market" lending arrangement in the format described above,
and you agree that this record shall be prima facie evidence of the amount of
the borrowings under this facility.
This letter and the Promissory Note evidence your promise to pay all such
borrowings with interest on their respective maturity dates.
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This "money market" lending arrangement remains in force until July 7, 1998.
If the foregoing satisfactorily sets forth the terms and conditions of this
lending arrangement, please indicate your acceptance thereof by executing and
returning the attached copy of this letter and the attached Promissory Note.
Sincerely,
/s/ Linda H. Thomas
Linda H. Thomas, Managing Director
Accepted: Jones Apparel Group, Inc.
BY: /s/ Gary R. Klocek
TITLE Controller
DATE: 7-14-97
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MONEY MARKET LINE
COMMERCIAL PROMISSORY NOTE
Boston, Massachusetts
July 7, 1997
FOR VALUE RECEIVED, the undersigned (jointly and severally if more than
one) promise(s) to pay to the order of BANKBOSTON, N.A. (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 7, 1997,
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 an 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
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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.
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,
reservation 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.
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
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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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