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FLEET NATIONAL BANK COMMERCIAL PROMISSORY TERM NOTE AND LOAN AGREEMENT
$3,600,000.00 Date: November 4, 1996
FOR VALUE RECEIVED, on the Termination Date (as defined below) the
undersigned, DM Management Company, a Delaware corporation (the "Borrower),
hereby promises to pay to the order of FLEET NATIONAL BANK (the "Bank") at the
office of the Bank at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at
such other address as the holder hereof may designate, the principal sum of
Three Million Six Hundred Thousand DOLLARS ($3,600,000.00), or the aggregate
unpaid principal amount of all advances made by the Bank to the Borrower
hereunder, whichever is less, in lawful money of the United States. During the
period from the date hereof until December 31, 2001 (as such date may be
extended, in writing from time to time, in the Bank's sole and absolute
discretion, the "Termination Date"), unless an Event of Default (as defined
below) occurs, the Borrower (SELECT ONE AND COMPLETE):
/ / may borrow, repay and reborrow;
/ / may reborrow; provided, however, that for any period of twelve
(12) consecutive months there shall be no borrowings or
reborrowings and no outstanding principal under this Note for
at least thirty (30) days;
/X/ may borrow and repay; provided, however, that once any amount
is repaid, such amount may NOT thereafter be reborrowed.
The Borrower also promises to pay interest on each advance at the
interest rate set forth on Exhibit A annexed thereto and to pay all reasonable
out-of-pocket costs, including attorneys' fees, costs relating to the appraisal
and/or valuation of assets and all costs incurred in the collection, defense,
preservation, administration, enforcement or protection of this Note or in any
guaranty or endorsement of this Note. All payments shall be applied first to the
payment of interest on the unpaid principal of all advances due under this Note
and the balance on account of the principal due under this Note.
This Note shall be deemed to incorporate Rider A attached hereto by
this reference and has been executed and delivered subject to he following terms
and conditions:
(1) ADVANCES. All advances shall be due and payable on the
Termination Date. The Bank is authorized (but not required) to charge principal
and interest and all other amounts due under this Note to any account of the
Borrower with the Bank when and as it becomes due. If any advance is made, the
Bank may, at its option, record on the books and records of the Bank or endorse
on Schedule I hereto, an appropriate notation evidencing any advance, each
repayment on account of the principal thereof, and the amount of interest paid;
and the Borrower authorizes the Bank to maintain such records or make such
notations and agrees that the amount shown on the books and records or on said
Schedule 1, as applicable, as outstanding from time to time shall constitute the
amount owing to the Bank pursuant to this Note, absent manifest error. In the
event the
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amount shown on Schedule 1 conflicts with the amount noted as due pursuant to
the books and records of the Bank, the books and records of the Bank shall
control the disposition of the conflict.
(2) PAYMENTS. Interest shall be payable monthly beginning November
__, 1996, and continuing thereafter on the same day of each succeeding month and
on the Termination Date. To the extent that interest is accruing at the Prime
Rate, changes in the rate of interest resulting from changes in the Prime Rate
shall take place immediately without notice or demand any kind. Interest on this
Note shall be computed on the basis of a year of three hundred sixty (360) days
and actual days elapsed. Upon default or after maturity or after judgment has
been rendered on this Note, the unpaid principal balance of all advances shall,
at the option of the Bank, bear interest at a rate which is four (4) percentage
points per annum greater than the Prime Rate. If, at any time, the rate of
interest, together with all amounts which constitute interest and which are
reserved, charged or taken by Bank as compensation for fees, services or
expenses incidental to the making, negotiating or collection of any advance
evidenced hereby, shall be deemed by any competent court of law, governmental
agency or tribunal to exceed the maximum rate of interest permitted to be
charged by the Bank to the Borrower, then, during such time as such rate of
interest would be deemed excessive, that portion of each sum paid attributable
to that portion of such interest rate that exceeds the maximum rate of interest
so permitted shall be deemed a voluntary prepayment of principal. Principal
shall be payable in quarterly installments of $200,000.00 each, commencing June
30, 1997, with the full unpaid principal balance plus all accrued and unpaid
interest due and payable in full on the Termination Date.
(3) INTENTIONALLY OMITTED.
(4) LATE CHARGE. The Bank may collect a late charge not to exceed
five (5) percent of any installment of interest or principal, or of any other
amount due to the Bank which is not paid or reimbursed by the Borrower within
ten (10) days of the due date thereof to defray the extra cost and expense
involved in handling such delinquent payment and the increased risk of
noncollection. The minimum late charge shall be $25.00.
(5) INTENTIONALLY OMITTED.
(6) PREPAYMENT. The Borrower has the right to pay before due the
unpaid balance of this Note or any part thereof without penalty or premium but
subject to the payment of all costs described in Paragraph 5 of Exhibit A. If,
at any time, the aggregate principal amount of all advances outstanding under
this Note shall exceed the maximum amount permitted by this Note, the Borrower
shall immediately prepay so much of the outstanding principal balance, together
with accrued interest on the portion of principal so prepaid, as shall be
necessary in order that the unpaid principal balance, after giving effect to
such prepayments, shall not be in excess of the maximum amount permitted by this
Note. All such prepayments will be applied first to the payment of all accrued
interest accrued to the date of the prepayment and the remainder to the
principal balances of this Note.
(7) FINANCIAL STATEMENTS; NOTICE OF DEFAULT. The Borrower shall
deliver to the Bank (a) promptly upon the Bank's written request, such
information (not
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otherwise required to be delivered by this paragraph 7) about the financial
condition, business and operations of (SELECT ONE OR MORE) /X/ the Borrower, any
guarantor, endorser or surety of Borrower's obligations hereunder to the Bank
(the "Guarantor"), / / ________, as the Bank may, from time to time, reasonably
request;
(SELECT ONE OR MORE AND INSERT AN "X" IN THOSE BOXES WHICH ARE TO BE
APPLICABLE;)
(a) /X/ monthly reports; within 15 days after the close of
each month the Borrower will furnish the Bank with a monthly borrowing base
certificate, accompanied by supporting inventory reports.
(b) /X/ Interim Reports; within 45 days after the close of
all but the last quarter of each fiscal year of (SELECT ONE OR MORE) /X/ the
Borrower, balance sheet of such person(s) as of the close of each period and a
statement of income for that portion of the period then ended, and including
expense schedules breaking out such expenses as interest and depreciation
(SELECT ONE) (i) / / reviewed in conformity with GAAP by a firm of independent
certified public acceptable to the Bank; (ii) / / compiled by a firm of
independent certified public accountants acceptable to the Bank and certified by
an officer of such person(s) as true, accurate and complete; or (iii) /X/
internally prepared by such person(s) and certified by an officer of such
person(s) as true, accurate, and complete;
(c) /X/ ANNUAL REPORT; within 120 days after the close of
each fiscal year of (SELECT ONE OR MORE) /X/ the Borrower, / / Guarantor, / /
, financial statements including a balance sheet as of the close of
such year and statements of income and changes in stockholders' equity and cash
flows for the year then ended, and (SELECT ONE) (i) /X/ accompanied by a report
thereon, prepared in conformity with GAAP and containing an opinion, unqualified
as to scope, of a firm of independent certified public accountants acceptable to
the Bank; (ii) / / reviewed in conformity with GAAP by a firm of independent
certified public accountants acceptable to the Bank; (iii) / / compiled by a
firm of independent certified public accountants acceptable to the Bank and
certified by an officer of such person(s) as true, accurate and complete; or
(iv) / / internally prepared by such person(s) and certified by an officer of
such person(s) as true, accurate and complete;
(d) / / PERSONAL FINANCIAL STATEMENTS; within days after the
close of each calendar year of (SELECT ONE OR MORE) / / the Borrower, / /
Guarantor, / / , personal financial statements signed and dated by such
person(s) in form and detail satisfactory to the Bank;
(e) / / FEDERAL TAX RETURN; within days after the close of
each (SELECT ONE) / / fiscal / / calendar year of (SELECT ONE OR MORE) / / the
Borrower, / / Guarantor, / / ____________________, such person's federal income
tax return and all schedules thereto, signed and dated and filed with the
Internal Revenue Service;
(f) /X/ CERTIFICATE OF COMPLIANCE; simultaneously with the
delivery of the financial statements required in (b) and (c) above, a
Certificate of Compliance certifying that, as at the end of the applicable
period, (SELECT ONE OR MORE) /X/ the Borrower / / Guarantor, / / ,
is in
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full compliance with all affirmative, negative and financial covenants set forth
in this Note applicable to such person and certified by an officer of such
person(s), as accurate, true and complete;
All financial statements delivered to the Bank shall be consolidated,
consolidating and/or individual statements, as the Bank shall require. Upon
becoming aware of any Event of Default or of any occurrence which but for the
giving of notice or the passage of time would become an Event of Default, the
Borrower and each Guarantor will promptly deliver written notice thereof to the
Bank.
(8) COVENANTS. Except as otherwise set forth in Section 8(a) of
Rider A, unless the Bank otherwise consents in writing:
(a) ENCUMBRANCES AND AGREEMENTS NOT TO PLEDGE. (i) The
Borrower shall not incur or permit to exist any lien, mortgage,
security interest, pledge, charge or other encumbrance, against any of
its property or assets, whether now owned or hereafter acquired
(including, without limitation, any lien or encumbrance relating to any
response, removal or clean-up of any toxic substances or hazardous
wastes), except: (A) liens, mortgages, security interests, charges or
other encumbrances in favor of the Bank or specifically permitted, in
writing, by the Bank; (B) pledges or deposits in connection with or to
secure worker's compensation or unemployment insurance; and (C) liens
for taxes not yet due and liens for taxes which are being contested in
good faith and by appropriate proceedings with the prior written
consent of the Bank which consent will not be unreasonably withheld and
against which, if requested by the Bank, the Borrower shall maintain
reserves in amounts and in form (book, cash, bond or otherwise)
satisfactory to the Bank. The Borrower shall not enter into any
agreements with any other party which would prohibit the Borrower from
granting any encumbrances, as otherwise prohibited hereunder.
(ii) The Borrower shall not enter into or permit to
exist any agreement, arrangement or understanding, either oral or in
writing, with any person or entity other than the Bank which restricts
or prohibits the Borrower from incurring or permitting to exist any
lien, mortgage, security interest, pledge, charge or other encumbrance
against any of its property or assets.
(b) LIMITATION ON INDEBTEDNESS. The Borrower shall not
create or incur any Indebtedness (as defined below) for borrowed money,
become liable, either actually or contingently in respect of letters of
credit or banker's acceptances or issue or sell any obligations of the
Borrower, excluding, however, from the operation of this covenant: (i)
advances made hereunder and all other Indebtedness of the Borrower to
the Bank; and (ii) Indebtedness subordinated in payment and priority to
all Indebtedness of the Borrower to the Bank in writing and in form and
substance satisfactory to the Bank.
(c) CONTINGENT LIABILITIES. The Borrower shall not
assume, guarantee, endorse or otherwise become liable upon the
obligations of any person, entity or corporation except by the
endorsement of negotiable
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instruments for deposit or collection or similar transactions in the
ordinary course of business.
(d) CONSOLIDATION, MERGER OR CONVERSION. The Borrower
shall not merge, consolidate or convert with or into any other
corporation or entity; and, for the purposes of this paragraph 8(d),
the acquisition of all or substantially all of the assets, together
with the assumption of all or substantially all of the obligations and
liabilities, of any corporation or entity shall be deemed to be a
consolidation with such corporation or entity, unless upon closing of
such purchase or acquisition, Borrower is in compliance with all
financial covenants in Section 9.
(e) STRUCTURE, TAX CLASSIFICATION. The Borrower shall not
make or consent to a material change in the structure of the Borrower,
or, if a general partnership not classified as a limited liability
partnership as of the date of this Note, register or otherwise become
classified as a limited liability partnership, or, if a corporation,
change its election to be taxed under Subchapter C or Subchapter S, as
applicable, of the Internal Revenue Code, or make or consent to the
making of any action that causes or could cause any federal or state
authority, for any reason, to classify, alter or reclassify the tax
treatment applicable to the Borrower or any Guarantor or their
respective operations from the tax treatment attributed or deemed
attributed to the Borrower or such Guarantor as of the date of
execution and delivery of this Note.
(g) ADDITIONAL COVENANTS. Borrower makes the additional
covenants set forth in Section 8(d) of Rider A attached hereto.
(9) FINANCIAL COVENANTS. Unless the Bank otherwise consents in
writing:
(a) DEFINITIONS. As used in this Note, the following
terms shall have the following meanings:
CAPITAL ASSETS means assets that in accordance with
GAAP are required or permitted to be depreciated or amortized
on a balance sheet.
CAPITAL EXPENDITURES ("Cap X") means, for any period,
the aggregate amount of all expenditures for the acquisition,
construction, improvement, replacement or purchase of Capital
Assets and Intangible Assets, including, but not limited to,
expenditures under Capital Leases.
CAPITAL LEASES means capital leases, conditional
sales contracts and other title retention agreements relating
to the purchase or acquisition of Capital Assets.
CURRENT MATURITY OF LONG-TERM DEBT ("CMLTD") means
the current maturity of long term Indebtedness paid during the
applicable period, including, but not limited to, amounts
required to be paid during such period under Capital Leases.
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CURRENT RATIO means the ratio of Total Current Assets
to Total Current Liabilities.
DEBT SERVICE AND CAPITAL EXPENDITURES COVERAGE RATIO
means, during the applicable period, that quotient equal to
(A) the aggregate of (i) Earnings Before Interest, Taxes,
Depreciation and Amortization plus or minus (ii) change in
Working Capital, with increases in Working Capital to be
subtracted from Earnings Before Interest, Taxes, Depreciation
and Amortization and decreases in Working Capital to be added
to Earnings Before Interest, Taxes, Depreciation and
Amortization, minus (iii) Capital Expenditures and minus (iv)
Dividends, divided by (B) the sum of (i) Interest and (ii)
Current Maturity of Long-Term Debt; that is,
EBITDA +/- change in Working Capital - Cap X - Dividends
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Interest + CMLTD
DEBT SERVICE AND UNFINANCED CAPITAL EXPENDITURES
COVERAGE RATIO means, during the applicable period, that
quotient equal to (A) the aggregate of (i) Earnings Before
Interest, Taxes, Depreciation and Amortization plus or minus
(ii) change in Working Capital, with increases in Working
Capital to be subtracted from Earnings Before Interest, Taxes,
Depreciation and Amortization and decreases in Working Capital
to be added to Earnings Before Interest, Taxes, Depreciation
and Amortization, minus (iii) Unfinanced Capital Expenditures
and minus (iv) Dividends, divided by (B) the sum of (i)
Interest and (ii) Current Maturity of Long-Term Debt; that is,
EBITDA +/- change in Working Capital -Unfinanced Cap X -Dividends
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Interest + CMLTD
EARNINGS BEFORE INTEREST AND TAXES means, for the
applicable period, income from continuing operations before
the payment of Interest and taxes determined in accordance
with GAAP.
EARNINGS BEFORE INTEREST, TAXES, DEPRECIATION AND
AMORTIZATION ("EBITDA") means, for the applicable period,
income from continuing operations before the payment of
Interest and taxes plus depreciation and amortization
determined in accordance with GAAP.
GAAP means generally accepted accounting principles
in the United States of America, as in effect on the date of
the preparation and delivery of the financial statements
described in paragraph 7 of this Note and consistently
followed, without giving effect to any subsequent changes
other than changes consented to in writing by the Bank.
INDEBTEDNESS means all obligations that in accordance
with GAAP should be classified as liabilities upon a balance
sheet.
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INTANGIBLE ASSETS means assets that in accordance
with GAAP are properly classifiable as intangible assets,
including, but not limited to, goodwill, franchises, licenses,
patents, trademarks, trade names and copyrights.
INTEREST means, for the applicable period, all
interest paid or payable, including, but not limited to,
interest paid or payable on Indebtedness and on Capital
Leases, determined in accordance with GAAP.
INTEREST COVERAGE RATIO means the ratio of Earnings
Before Interest and Taxes to Interest.
QUICK RATIO means the quotient equal to (A) the
aggregate of (i) cash and currency on hand and on deposit,
demand deposits and checks held, plus (ii) short term, highly
liquid investments that are readily convertible to known
amounts of cash, plus (iii) marketable securities plus (iv)
accounts receivable less allowances for doubtful accounts
receivable, divided by (B) Total Current Liabilities.
TANGIBLE NET WORTH means Total Assets minus the sum
of (i) Intangible Assets and (ii) Total Liabilities.
TOTAL ASSETS means total assets determined in
accordance with GAAP.
TOTAL CURRENT ASSETS means total current assets
determined in accordance with GAAP.
TOTAL CURRENT LIABILITIES means total current
Indebtedness determined in accordance with GAAP.
TOTAL LIABILITIES means total Indebtedness determined
in accordance with GAAP.
UNFINANCED CAPITAL EXPENDITURES ("Unfinanced Cap X")
means Capital Expenditures minus new long term Indebtedness
issued during the applicable period plus the aggregate amount
of all long term Indebtedness prepaid during such period.
WORKING CAPITAL means Total Current Assets less Total
Current Liabilities.
(b) ACCOUNTING TERMS. Unless otherwise defined or
specified in this paragraph 9, all accounting terms shall be construed
and all accounting determinations shall be made in accordance with
GAAP.
(c) CALCULATION OF FINANCIAL COVENANTS. The calculation
of the financial covenants set forth below shall be measured against
the financial statements required to be delivered to the Bank pursuant
to paragraph 7 of this Note as follows (SELECT ONE OR MORE):
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/X/ On a Consolidated basis. / / On an Consolidating basis. / / On an
individual basis.
(d) TOTAL LIABILITIES TO TANGIBLE NET WORTH RATIO. As
applied to (SELECT ONE OR MORE) /X/ Borrower, / / Guarantor, / / ,
Borrower shall not permit or Borrower shall cause the person indicated
above not to permit the ratio of Total Liabilities to Tangible Net
Worth to be greater than the ratio set forth for such period:
For the fiscal quarters ending September 30 and March 31, 3.75 to 1.0;
For the fiscal quarter ending December 31, 4.0 to 1.0; For the fiscal
quarter ending June 30, 3.5 to 1.0;
(e) OTHER. (i) The Borrower shall maintain minimum
Liquidity (defined below) of $3,500,000.00. Liquidity is defined as all
cash and currency on hand and on deposit, demand deposit and checks
held, plus short term, highly liquid investments that are readily
convertible to known amounts of cash, plus marketable securities, such
covenant to be tested quarterly.
(ii) The Borrower shall maintain Debt Service
Coverage (defined below) 1.25:1 commencing December 31, 1996 and on a
four quarter rolling average basis thereafter. Debt Service Coverage
means, during the applicable period, that quotient equal to (A) the
aggregate of (I) EBITDA plus (II) interest income (including dividends
received on marketable securities) minus (III) Unfinanced Cap X and
minus (IV) dividends and distributions paid with respect to the
Borrower's capital stock, divided by (B) the sum of (I) Current
Maturities of Long Term Debt and (II) Interest.
(10) EVENTS OF DEFAULT; REMEDIES. If any one or more of the
following "Events of Default" shall occur:
(a) Failure to make payment of principal or interest on
the Note or in the payment of any other liability owing by the Borrower
to the Bank, now existing or hereinafter incurred, whether direct or
contingent, when due; or
(b) Failure by the Borrower to observe or perform any
covenant contained in this Note, or failure by the Borrower to perform
any of its obligations under any document, instrument or agreement
governing, evidencing or securing this Note, and continuance of such
failure unremedied for a period of thirty (30) days after notice of
such failure has been received by the Borrower from the Bank, provided
that no notice or grace period shall be required with respect to the
breach of any provision of Paragraph 9, above; or
(c) Any representation or warranty made by the Borrower
or any Guarantor to the Bank herein or in any document, instrument or
agreement governing, evidencing or securing this Note or any statement,
certificate or other data furnished by any of them in connection
herewith or therewith proves at any time to be incorrect in any
material respect; or
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(d) A judgment or judgments, singly or in the aggregate
excess of $100,000.00 for the payment of money shall be rendered
against the Borrower or any Guarantor, and any such judgment shall
remain unsatisfied and in effect for any period of thirty (30)
consecutive days without a stay of execution; or
(e) Any levy, seizure, attachment, garnishment, execution
or similar process shall be issued or levied on any of the Borrower's
or any Guarantor's property; or
(f) The Borrower or any Guarantor shall (i) apply for or
consent to the appointment of a receiver, conservator, trustee or
liquidator of all or a substantial part of any of its assets; (ii) be
unable, or admit in writing its inability, to pay its debts as they
mature; (iii) file or permit the filing of any petition, case,
arrangement, reorganization, or the like under any insolvency or
bankruptcy law, or the adjudication of it as a bankrupt, or the making
of an assignment for the benefit of creditors or the consenting to any
form of arrangement for the satisfaction, settlement or delay of debt
or the appointment of a receiver for all or any part of its properties:
or (iv) take any action for the purpose of effecting any of the
foregoing; or
(g) An order, judgment or decree shall be entered, or a
case shall be commenced, against the Borrower or any Guarantor, without
the application, approval or consent of the Borrower or such Guarantor
by or in any court of competent jurisdiction, approving a petition or
permitting the commencement of a case seeking reorganization or
liquidation of the Borrower or any Guarantor or appointing a receiver,
trustee, conservator or liquidator of the Borrower or any Guarantor, or
of all or a substantial part of its assets and Borrower or any
Guarantor, indicates its approval thereof, consent thereto, or
acquiescence therein, or such order, judgment, decree or case shall
continue unstayed and in effect for any period of ninety (90)
consecutive days; or
(h) The Borrower or any Guarantor shall dissolve or
liquidate, or be dissolved or liquidated, or cease to legally exist, or
if the Borrower is not a natural person, merge, consolidate or convert,
or be merged. consolidated or converted with or into any other
corporation or entity; or
(i) A Borrower or Guarantor who is a natural person shall
die; or
(j) Failure by the Borrower or any Guarantor to pay any
other Indebtedness for borrowed money, or if any such other
Indebtedness shall be accelerated, or if there exists any event of
default under any instrument, document or agreement governing,
evidencing or securing such other Indebtedness beyond any period of
grace provided with respect thereto; or
(k) Any guaranty, document, instrument or agreement now
or hereafter guaranteeing, governing, evidencing or securing this Note
ceases to be in full force and effect or any party thereto notifies the
Bank that such party has no continuing obligation to pay or perform in
accordance with the terms thereof).
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(l) The occurrence of any Event of Default under the
Borrower's Notes of even date in the respective principal amounts
$8,000,000.00 and $400,000.00 or any documents executed therewith.
then, and in such event (other than an Event of Default described in paragraphs
10 (f) and (g) above), the Bank may declare all advances outstanding hereunder,
together with accrued interest thereon and all applicable late charges and
surcharges and all other liabilities and obligations of the Borrower to the Bank
to be forthwith due and payable, whereupon the same shall become forthwith due
and payable and the availability of advances hereunder shall be deemed
automatically terminated; all of the foregoing without presentment or demand for
payment, notice of non-payment, protest or any other notice or demand of any
kind, all of which are expressly waived by the Borrower. Notwithstanding the
foregoing, upon the occurrence of an Event of Default described in paragraphs 10
(f) or (g) above, (i) the availability of advances hereunder shall automatically
terminate and (ii) all advances outstanding hereunder, together with accrued
interest thereon and all applicable late charges and surcharges and all other
liabilities and obligations of the Borrower to the Bank shall become
automatically due and payable without presentment or demand for payment, notice
of non-payment, protest or any other notice or demand of any kind; all of which
are expressly waived by the Borrower.
(11) LIEN AND SETOFF. The Borrower and each Guarantor hereby give
the Bank a lien and right of set off for all of Borrower's and each Guarantor's
liabilities and obligations hereunder upon and against all the deposits,
credits, collateral and property of the Borrower and each Guarantor, now or
hereafter in the possession, custody, safekeeping or control of the Bank or any
entity under the control of Fleet Financial Group, Inc. or in transit to any of
them but not including any funds managed by or invested with or through Fleet
Investment Advisors, the Fleet Funds, or any other investment advisor or mutual
fund affiliated with the Bank. At any time, after the occurrence and during the
continuance of an Event of Default without demand or notice, Bank may set off
the same or any part thereof and apply the same to any such liability or
obligation of the Borrower or any Guarantor.
(12) INDEMNIFICATION. The Borrower and each Guarantor, jointly and
severally, agree to defend, indemnify and hold harmless the Bank and any
participants, successors or assigns of the Bank and the officers, directors,
employees and agents of each of them from and against any and all losses,
claims, liabilities, asserted liabilities, costs and expenses, including,
without limitation, out-of-pocket costs of litigation and attorneys' fees,
incurred in connection with any and all claims or proceedings for bodily injury,
property damage, abatement or remediation, environmental damage or impairment or
any other injury or damage (including all foreseeable and unforeseeable
consequential damage) or any diminution in value of any real property resulting
from or relating, directly or indirectly, to (a) any release, spilling, leaking,
migrating, discharging, escaping, leaching, dumping or disposing (a "Release")
into the environment of any toxic substances or hazardous wastes, a threatened
Release, the existence or removal of any toxic substances or hazardous wastes
on, into, from, through or under any real property owned or operated by the
Borrower or any Guarantor (whether or not such Release was caused by Borrower,
any Guarantor, a tenant, subtenant, prior owner or tenant or any other person
and whether or not the alleged liability is attributable to the handling,
storage,
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generation, transportation or disposal of toxic substances or hazardous wastes
or the mere presence of such toxic substances or hazardous wastes) or (b) the
breach or alleged breach by Borrower or any Guarantor of any federal, state or
local law or regulation concerning public health, safety or the environment with
respect to any real property owned or operated by the Borrower or any Guarantor
and/or any business conducted thereon; provided, however, that the
indemnification provided for in this paragraph shall not apply to any losses,
claims, liabilities, asserted liabilities, costs or expenses arising out of the
negligence, willful misconduct or bad faith of the Bank or any other party
otherwise entitled to indemnification hereunder.
(13) PREJUDGMENT REMEDY WAIVER. BORROWER AND EACH GUARANTOR (a)
ACKNOWLEDGE THAT THE ADVANCES EVIDENCED BY THIS NOTE ARE PART OF A COMMERCIAL
TRANSACTION AND (b) TO THE EXTENT PERMITTED BY ANY STATE OR FEDERAL LAW, WAIVE
THE RIGHT ANY OF THEM MAY HAVE TO PRIOR NOTICE OF AND A HEARING ON THE RIGHT OF
ANY HOLDER OF THIS NOTE TO ANY REMEDY OR COMBINATION OF REMEDIES THAT ENABLES
SAID HOLDER, BY WAY OF ATTACHMENT, FOREIGN ATTACHMENT, GARNISHMENT OR REPLEVIN,
TO DEPRIVE BORROWER OR ANY GUARANTOR OF ANY OF THEIR PROPERTY, AT ANY TIME,
PRIOR TO FINAL JUDGMENT IN ANY LITIGATION INSTITUTED IN CONNECTION WITH THIS
NOTE.
(14) JURY TRIAL WAIVER. THE BANK, BORROWER AND EACH GUARANTOR
IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
INSTITUTED BY OR AGAINST THE BANK, THE BORROWER OR ANY GUARANTOR IN RESPECT OF
THIS NOTE OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING,
GOVERNING OR SECURING THIS NOTE.
(15) JOINT AND SEVERAL OBLIGATIONS; MISCELLANEOUS. This Note shall be
the joint and several obligation of Borrower and each Guarantor and each
provision of this Note shall apply to each and all jointly and severally and to
the property and liabilities of each and all, who hereby waive diligence,
demand, presentment for payment, notice of nonpayment, protest and notice of
dishonor, and who hereby agree to any extension or delay in the time for payment
or enforcement, to renewal of this Note and to any substitution or release of
any collateral, all without notice and without any effect on their liabilities.
Any delay on the part of the holder hereof in exercising any right hereunder or
under any mortgage or security agreement which may secure this Note shall not
operate as a waiver of any such right, and any waiver granted for one occasion
shall not operate as a waiver in the event of a subsequent default. The rights
and remedies of the holder hereof shall be cumulative and not in the
alternative, and shall include all rights and remedies granted herein, in any
document, instrument or agreement governing, evidencing or securing this Note
and under all applicable laws. This Note is the final, complete and exclusive
statement of the terms governing this Note. If any provision of this Note shall
to any extent be held invalid or unenforceable, then only such provision shall
be deemed ineffective and the remainder of this Note shall not be effected. The
provisions of this Note shall bind the heirs, executors, administrators, assigns
and successors of each and every Borrower and each Guarantor and shall inure to
the benefit of Bank, its successors and assigns. This Note shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
(16) ACKNOWLEDGMENT OF BORROWER. Borrower acknowledges receipt of a
copy of this Note, and attests that each advance is to be used for general
commercial purposes and that no part of such proceeds will be used, in whole or
in part, for
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12
the purpose of purchasing or carrying any "margin stock" as such term is defined
in Regulation U of the Board of Governors of the Federal Reserve System.
IN WITNESS WHEREOF, the Borrower has executed or caused this Note to be
duly executed, as a sealed instrument.
Witness: DM MANAGEMENT COMPANY
/s/ Xxxxx X. Xxxxxxx
By: /s/ Xxxx X. Xxxxxx
-----------------------
VP of Finance
AGREED:
FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Vice President
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13
RIDER A
TO
PROMISSORY NOTE DATED AS OF NOVEMBER 4, 1996 MADE BY
DM MANAGEMENT COMPANY
PAYABLE TO ORDER OF FLEET NATIONAL BANK
This Rider A is incorporated by reference in the Promissory Note dated
as of November 4, 1996 (the "Note"), made by DM Management Company, a Delaware
corporation (the "Borrower"), payable to the order of Fleet National Bank (the
"Bank") in the original principal amount of $3,600,000, and amends and
supplements the provisions of the Note referenced below. Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed
thereto in the Note. The section and paragraph references used in this Rider
correspond to the section and paragraph designations used in the Note.
(1). PURPOSES OF CREDIT. Advances under this Note shall be
used to repay existing indebtedness to the Bank.
(7)(g). Additional Financial Information.
--------------------------------
(i) SEC REPORTS. The Borrower shall also deliver to the Bank,
promptly as they become available, copies of all financial statements, reports,
notices and proxy statements sent or made available by the Borrower to its
stockholders and copies of all reports and other materials filed by the Borrower
with the Securities and Exchange Commission; and
(8)(a). ENCUMBRANCES. In addition to the encumbrances permitted by
clauses (A), (B) and (C) of Section (8)(a), the Borrower shall also be permitted
(x) to have the presentlyexisting security interests and capitalized leases
listed on the schedule annexed hereto as Exhibit 8(a) showing the nature and
amount of indebtedness secured in each case, (y) to grant or create Purchase
Money Security Interests to the extent permitted by clause (D) of paragraph (i)
of Section 8(d) below, and (z) to have other liens and encumbrances incidental
to the conduct of the Borrower's business or the ownership of its assets which
were not incurred in connection with the borrowing of money or the obtaining of
advances or credit and which do not in the aggregate materially detract from the
value of its assets or materially impair the use thereof in the operation of its
business.
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14
(8)(d). ADDITIONAL NEGATIVE COVENANTS. Borrower hereby covenants that
without the prior written consent of the Bank in each case:
(i) INDEBTEDNESS. Neither the Borrower nor any Subsidiary
shall incur, assume or permit to exist indebtedness for borrowed money, or
indebtedness arising out of the ownership, purchase or acquisition of real or
personal property subject or subjected to a Purchase Money Security Interest
(including capitalized leases), to any person, firm or entity other than the
Bank except:
(A) indebtedness subordinated to obligations and
liabilities of the Borrower to the Bank, the amount and terms of which have
received the prior written approval of the Bank;
(B) indebtedness of wholly-owned subsidiaries to
the Borrower or other wholly-owned subsidiaries of the Borrower;
(C) other presently existing indebtedness shown
on either Exhibit 8(a) or in the balance sheet of the Borrower as of September
30, 1996; and
(D) indebtedness of the Borrower and its
subsidiaries which is secured by Purchase Money Security Interests (including
capitalized lease obligations) so long as the purchase price, or aggregate
rents, for the equipment involved in the case of telecommunications equipment
does not exceed $100,000, and in the case of any other transaction (or in a
related series of transactions) does not exceed $200,000, and provided that
after the incurrence of any such indebtedness the Borrower remains in compliance
with all financial covenants. For purposes of this section "Purchase Money
Security Interest" includes security agreements, chattel mortgages, conditional
sales, leases which are or should be capitalized under GAAP on the Borrower's
books, and other security or title retention devices undertaken or assumed in
connection with the acquisition of tangible personal property or existing or
created in such property at the time of acquisition thereof or otherwise given
as security for borrowed money, provided the amount of the debt secured thereby
does not exceed the cost of fair value of the property involved, whichever is
less.
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15
(ii) EQUITY DISTRIBUTIONS. Neither the Borrower nor any of its
subsidiaries (other than a wholly-owned subsidiary) shall make any Equity
Distribution in excess of twenty five (25%) of Net Income in any fiscal year. As
used herein, "Equity Distribution" means (a) the declaration or payment of any
dividend on or in respect of any shares of any class of capital stock of the
Borrower; (b) the redemption, purchase or other retirement of any shares, or of
any option or warrant or right to purchase any shares, of any class of capital
stock of the Borrower, directly or indirectly through a subsidiary, for
consideration paid or to be paid in money or property; and (c) any other
distribution on or in respect of any shares of any class of capital stock of the
Borrower; PROVIDED, however, that no payment for the redemption, purchase or
other retirement of shares, options, warrants or rights to acquire any of the
same, arising out of the termination of employment of any employee of the
Borrower or any subsidiary shall constitute an Equity Distribution so long as
(a) no Event of Default exists at the time of or would result from such payment,
and (b) the aggregate amount of all such payments after the date of this
Agreement shall not exceed $100,000.
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16
$3,600,000.00 Note
EXHIBIT A
1. INTEREST RATES. (a) Loan Amounts shall bear interest
at the Floating Rate, the Libor Rate or the Cost of Funds (respectively
defined below), as specified from time to time by the Borrower in the
Conversion Notice with respect to the subject Loan amount.
(b) The Borrower shall pay interest on the principal
balance of the Note outstanding in arrears on the last day of the month
and on the last day of any Interest Period applicable to a Libor Rate
Loan or the Cost of Funds Rate Loan.
2. NOTICE AND MANNER OF CONVERTING INTEREST RATES. (a)
Whenever the Borrower desires to convert an interest rate, the
Borrower shall notify the Bank (which notice shall be irrevocable) no
later than (i) Noon on the day on which any Floating Rate Loan is being
requested to be made and (ii) Noon, Two (2) Business days prior to (and
not counting) the day on which any Libor Rate Loan or Cost of Funds
Rate Loan is being requested to be made. Such notice shall specify the
amount and the interest rate for the proposed advance chosen by the
Borrower. Each such notification (a "RENEWAL/CONVERSION NOTICE") shall
be immediately followed by a written confirmation thereof by the
Borrower in substantially the form of EXHIBIT B, annexed hereto,
PROVIDED that if such written confirmation differs in any material
respect from the action taken by the Bank, the records of the Bank
shall control.
(b) Libor Rate Loans and Cost of Funds shall each be
in an amount of not less than $1,000,000.00 and in $100,000.00
increments in excess of such minimum.
(c) The Bank may rely on any request for a loan or
advance or financial accommodation which the Bank, in good faith,
believes to have been made by a person duly authorized to act on behalf
of the Borrower and may decline to make any such requested loan or
advance or to provide any such financial accommodation pending the
Bank's being furnished with such documentation concerning that person's
authority to act as may be satisfactory to the Bank.
3. DURATION OF INTEREST PERIODS. (a) Subject to the
definition of the term "Interest Period", the Borrower shall have the
option to elect a subsequent Interest Period to be applicable to an
advance by giving notice of such election in the form of EXHIBIT B,
annexed hereto received no later than 10:00 Boston time One (1)
Business Day before the end of the then applicable Interest Period, if
such Loan is to be continued as or converted to a Floating Rate Loan,
and Two (2) Business Days before (and not counting) the end of the then
applicable Interest Period if such Loan is to be continued as, or
converted to, a Libor Rate Loan or a Cost of Funds Loan.
(b) If the Bank does not receive a notice of election
of, or conversion to, an Interest Period for a Libor Rate Loan or a
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17
Cost of Funds Rate Loan pursuant to subsection (a) within the
applicable time limits specified therein, or if, when such notice must
be given, an Event of Default exists, the Borrower shall be deemed to
have elected to convert such Loan in whole into a Floating Rate Loan on
the last day of the then current Interest Period with respect thereto.
4. Changed Circumstances. In the event that:
---------------------
(a) on any day on which the rate for a Libor
Rate Loan or a Cost of Funds Rate Loan would otherwise be set,
the Bank shall have determined in good faith (which
determination shall be final and conclusive) that adequate and
fair means do not exist for ascertaining either such rate; or
(b) at any time the Bank shall have determined
in good faith (which determination shall be final and
conclusive) that:
(i) the making or continuation of or
conversion of any loan to a Libor Rate Loan or a Cost
of Funds Rate Loan has been made impracticable or
unlawful by (A) the occurrence of a contingency that
materially and adversely affects the applicable
market or (B) compliance by the Bank in good faith
with any applicable law or governmental regulation,
guideline or order or interpretation or change
thereof by any governmental authority charged with
the interpretation or administration thereof or with
any request or directive of any such governmental
authority (whether or not having the force of law);
or
(ii) the indices on which the interest rates
for Libor Rate Loans shall no longer represent the
effective cost to the Bank for U.S. dollar deposits
in the interbank market for deposits in which it
regularly participates;
then, and in any such event, the Bank shall forthwith so
notify the Borrower thereof. Until the Bank notifies the
Borrower that the circumstances giving rise to such notice no
longer apply, the obligation of the Bank to make Libor Rate
Loans or Cost of Funds Rate Loans of the type affected by such
changed circumstances or to permit the Borrower to select
Libor Rate or Cost of Funds Rate Loans for any advances shall
be suspended. If at the time the Bank so notifies the
Borrower, the Borrower has previously given the Bank a Notice
of Borrowing or a Renewal/Conversion Notice with respect to
one or more Libor Rate Loans or Cost of Funds Rate Loans, but
such advances have not yet gone into effect, such notification
shall be deemed to be void and the Borrower may borrow under
interest rate options otherwise available hereunder, by giving
a substitute Notice of Borrowing or a Renewal/Conversion
Notice. Upon the expiration of the Interest Period for any
Libor Rate Loan or a Cost of Funds Rate Loan which is
outstanding on the date of such notification, the amount of
such Libor Rate Loan or Cost of
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Funds Rate Loan shall thereafter constitute a Floating Rate
Loan.
5. PAYMENTS AND PREPAYMENTS. (a) Floating Rate Loans
may be prepaid at any time and from time to time without premium or
penalty.
(b) In the event of any prepayment of any Libor Rate
Loan or Cost of Funds Rate Loan, other than at the end of the Interest
Rate Period applicable to the subject loan, the Borrower shall repay
the Bank's costs in respect of such repayment, which costs shall be
determined as follows:
(Applicable Rate - Tbillrate) X PP X D
-------------------------------------------
360
Where:
-----
Applicable
Rate = The Libor Rate or Cost of Funds Rate
for the Loan then being prepaid.
Cost of
Funds Rate = The Cost of Funds Rate of interest on
that Cost of Funds Rate Loan being
prepaid.
Libor
Rate = The Libor Rate of interest on that
Libor Rate Loan being prepaid.
TBillRate = The effective per annum rate at which
a readily marketable bond or other
obligation of, or entitled to the full
faith and credit of, the United States
(selected by the Bank in the Bank's
reasonable discretion) maturing on or
near the maturity date of the subject
Libor Rate Loan or Cost of Funds Rate
Loan and in approximately the amount
of the Libor Rate Loan or Cost of
Funds Rate Loan being prepaid could be
purchased on or about the date of the
subject prepayment.
PP = The amount of principal being prepaid.
D = The number of days from the date on
which the subject prepayment is made
until the expiry of the Interest
Period for the Libor Rate Loan or Cost
of Funds Rate Loan being prepaid.
x Indicates multiplication.
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19
6. DEFINITIONS. The following terms as used herein
shall have the meanings assigned to them below:
"BUSINESS DAY" shall mean a day on which the Bank is open for
the transaction of banking business in Boston, Massachusetts, and, if
the applicable Business Day relates to a Libor Rate Loan, a day on
which dealings are carried on in the applicable Eurodollar interbank
market and banks are open for business in the applicable Eurodollar
interbank market and in the place where payment is to be made for such
Libor Rate Advance.
"CONVERT, CONVERSION AND CONVERTED" shall refer to the
conversion of Floating Rate Loan, or Libor Rate Loan to advances of
another Type.
"COST OF FUNDS": shall mean with respect to any Interest
Period for each Cost of Funds Rate Loan the rate of interest paid by
the Bank on such date to procure funds in the principal amount selected
during such Interest Period, as adjusted to reflect the Bank's costs,
expenses and reserve requirements in connection with procurement of
such funds.
"COST OF FUNDS RATE": shall mean with respect to any interest
Period for each Cost of Funds Rate Loan, an interest rate per annum
equal at all times during such Interest Period to the sum of (i) the
Cost of Funds plus (ii) two percent (2%).
"COST OF FUNDS RATE LOAN": any loan bearing interest at the
Cost of Funds Rate.
"FLOATING RATE": shall mean with respect to any Interest
Period the interest rate generally announced by the Bank from time to
time as its Prime Rate.
"FLOATING RATE LOAN": any loan bearing interest at the
Floating Rate.
"INTEREST PERIOD": (a) With respect to each Libor Rate Loan,
the period commencing on the date of the making or continuation of or
conversion to such Libor Rate Loan and ending one, two, three or six
months thereafter, and with respect to each Cost of Funds Rate Loan the
period commencing on the date of the making or continuation of or
conversation to such Cost of Funds Rate Loan and ending a minimum of
one year thereafter, as the Borrower may elect in the applicable Notice
of Borrowing or Conversion.
(b) With respect to each Floating Rate Loan, the
period commencing on the date of the making or continuation of or
conversion to such Floating Rate Loan and ending on that date as of
which the subject Floating Rate Loan is converted to a Libor Rate Loan
or Cost of Funds Rate Loan.
Provided that:
--------
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(i) Any Interest Period applicable to a
Libor Rate Loan or Cost of Funds Rate Loan that
begins on a day for which there is no numerically
corresponding day in the calendar month at the end of
such Interest Period shall end, subject to clause
(ii) below, on the last Business Day of a calendar
month.
(ii) any Interest Period which would
otherwise end after the Termination Date shall end on
the Termination Date except that no Libor Rate Loan
shall have an Interest Period of less than One (1)
month.
"LIBOR RATE LOAN": any loan bearing interest at the Libor
Rate.
"LIBOR RATE": That per annum rate determined by application
of the following formula:
[ LIBOR OFFER RATE]
------------------------
[ 1.00 - Reserve Rate, (if applicable) ]
plus two percent (2%).
"LIBOR OFFER RATE": that rate of interest (rounded upwards, if
necessary, to the next 1/100 of 1%) determined by the Bank to be the
prevailing rate per annum at which deposits on U.S. Dollars are offered
to the Bank by first-class banks in the London interbank market in
which the Bank regularly participates at a time reasonably
contemporaneous to the giving of a Notice of Borrowing at the Libor
Rate, not less Two (2) Business Days before the first day of the
Interest Period of the loan referenced in such Notice of Borrowing, for
a deposit approximately in the amount of the subject loan for a period
of time approximately equal to such Interest Period.
"PRIME RATE" shall mean the interest rate announced by the
Bank from time to time as its Prime Rate. If interest hereunder is
computed in relation to the Bank's Prime Rate, then as said Bank's
Prime Rate changes from time to time, the interest rate, hereunder will
change correspondingly at the time of each Bank's Prime Rate change,
without notice or demand of any kind. If, at any time, the rate of
interest together with all amounts which constitute interest and which
are reserved, charged or taken by Bank as compensation for fees,
services or expenses incidental to the making, negotiating or
collection of the loan evidenced hereby, shall be deemed by any
competent court of law, governmental agency or tribunal to exceed the
maximum rate of interest permitted to be charged by the Bank to the
Borrower under the laws of any applicable jurisdiction or the rules or
regulations of any appropriate regulatory authority or agency, then,
during such time as such rate of interest would be deemed excessive,
that portion of each sum paid attributable to that portion of such
interest rate that exceeds the maximum rate of interest so permitted
shall be deemed a voluntary prepayment of principal.
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21
"RESERVE PERCENTAGE" shall mean as of any date, that
percentage (expressed as a decimal) which is in effect on such date as
specified in Regulation D of the Board of Governors of the Federal
Reserve System (or any successor or similar regulations relating to
reserve requirements for nonpersonal time deposits) for determining the
reserve requirements (including without limitation any basic,
supplemental or emergency reserve requirements) for the Bank in respect
of new U.S. dollar nonpersonal time deposits in Boston, Massachusetts,
having a maturity comparable to the relevant Interest Period and in an
amount of $100,000 or more. The Reserve Percentage shall be adjusted
automatically on and as of the effective date of any change in the
Reserve Percentage.
"RESERVE RATE" shall mean for any day with respect to a Libor
Rate Loan, the maximum rate (expressed as a decimal) at which any Bank
subject thereto would be required to maintain reserves under Regulation
D of the Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve requirements)
against "Eurocurrency Liabilities" (as that term is used in Regulation
D) if such liabilities were outstanding. The Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in
the Reserve Rate.
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22
EXHIBIT B
---------
RENEWAL/CONVERSION NOTICE
-------------------------
To: Fleet National Bank (the "Lender")
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: $3,600,000.00 Commercial Promissory Term Note (the "Note")
Between the Lender and DM Management Company (the "Borrower"), a
Delaware Corporation. Terms used herein which are defined in the Note
are used as so defined.
This Notice confirms the renewal/conversion of a loan at the Libor Rate
as follows:
1. Amount to be renewed at Libor Rate: $______________
Minimum of $1,000,000.00
Increments of $100,000.00
Start Date of Interest Period: $______________
Date of Expiry of Interest Period: $______________
Applicable Interest Period: $______________
2. Amount to be renewed at Cost of Funds Rate: $______________
Minimum of $1,000,000.00
Increments of $100,000.00
Start Date of Interest Period: $______________
Date of Expiry of Interest Period: $______________
Applicable Interest Period: $______________
--------------------------------------------------------------------------------
The Borrower, hereby certifies that all representations and
warranties contained in the Note are true and accurate in all
23
material respects on the date of this Renewal Notice and on the effective date
of the subject loan as though such representations and warranties had been made
on those dates (except to the extent that such representations or warranties
expressly relates to an earlier date).
DM MANAGEMENT COMPANY
("Borrower")
By:___________________________
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