Exhibit 10.9
THIRD REPLACEMENT REVOLVING NOTE
Boston, Massachusetts
$30,000,000.00 May 4, 1999
On or before the "Termination Date" as defined in the Loan Agreement
hereinafter defined, or earlier upon the occurance of an "Event of Default", as
defined in the Loan Agreement, 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 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, or such other location that the holder may specify
Thirty Million DOLLARS ($30,000,000.00)
or such lesser amount which shall have been advanced hereunder, with interest
thereon, as herein provided, until paid in full. This note replaces the "Second
Replacement Revolving Note" dated September 4, 1998 issued by the undersigned to
the order of the Bank pursuant to the terms of a certain Loan Agreement dated
June 5, 1997, by and between Bank and the undersigned, as previously amended and
as amended and restated as of the date hereof by a certain Third Amended and
Restated Loan Agreement (the "Loan Agreement").
Interest shall accrue at the rates provided in the Loan Agreement for
the Revolving Loan as defined therein and shall be paid at maturity hereof.
Overdue principal and overdue interest from time to time outstanding shall bear
interest in accordance with the terms of the Loan Agreement. If any 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/ Xxxxxx X. Xxxxx By:/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Corporate Controller
