Exhibit 10.58
SECOND REPLACEMENT SHORT TERM REVOLVING NOTE
Boston, Massachusetts
$17,000,000.00 December 31, 1998
On or before March 31, 1999, the undersigned, DM Management Company,
for value received, promises to pay to the order of Citizens Bank of
Massachusetts (hereinafter called the "Bank"), at its principal office at 28
State Street, Boston, Massachusetts 02109, or such other location that the
holder may specify
Seventeen Million DOLLARS ($17,000,000.00)
with interest payable as hereafter set forth. This is the "Second Replacement
Short Term Revolving Note" issued pursuant to the terms of a certain Fourth
Amendment to Second Amended and Restated Loan Agreement dated as of the date
hereof by and between Bank and the undersigned, as the same may further
hereafter be amended or restated (the "Loan Agreement"), payment of which is
secured by an Assignment of Certificate of Deposit as amended by First Amendment
to Assignment of Certificate of Deposit dated September 4, 1998 and a certain
Second Amendment to Assignment of Certificate of Deposit of even date and
otherwise as provided in the Loan Agreement.
Interest shall accrue at the rate provided in the Loan Agreement for
the Short Term Revolving Loan as defined therein and shall be paid monthly, in
arrears, during the term hereof commencing one (1) month from the date hereof
and on the like day of each month thereafter except all accrued but unpaid
interest shall be due and payable at maturity.
Overdue principal and overdue interest from time to time outstanding
shall bear interest in accordance with the terms of the Loan Agreement. If
payment is not made when due hereunder then, without limitation on any other
right of the Holder, there shall be a late charge as provided in the Loan
Agreement.
If an "Event of Default" (as defined in the Loan Agreement) shall
occur, the entire unpaid principal balance of this note and all accrued and
unpaid interest may become or be declared due and payable without notice or
demand, in the manner and with the effect provided in the Loan Agreement.
Every maker, endorser and guarantor of this note, or the obligation
represented by this note, waives presentment, demand, notice, protest, and all
other demands or notices in connection with the delivery, acceptance,
endorsement, performance, default, or enforcement of this note, assents to any
and all extensions or postponements of the time of payment or any other
indulgence, to any substitution, exchange, or release of collateral, and/or to
the addition or release of any other party or person primarily or secondarily
liable, and generally waives all suretyship defenses and defenses in the nature
thereof.
The undersigned will pay all reasonable out-of-pocket costs and
expenses of collection, including reasonable attorneys' fees, incurred or paid
by the holder in enforcing this note or the obligations hereby evidenced, to the
extent permitted by law.
No delay or omission of the holder in exercising any right of remedy
hereunder shall constitute a waiver of any such right or remedy.
The holder need not enter payments of principal or interest upon this
note, but may maintain a record thereof on a separate ledger maintained by the
holder.
The word "holder" as used in this note shall mean the payee or indorsee
of this note who is in possession of it or the bearer if this note is at the
time payable to bearer.
This note shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts and shall take effect as an instrument
under seal.
WITNESS: DM MANAGEMENT COMPANY
/s/ Lori B. Leeth By: /s/ Olga L. Conley
- ----------------------------- ---------------------------------
Olga L. Conley
- ----------------------------- Chief Financial Officer