EXHIBIT
10.2
PROMISSORY NOTE
$7,000,000
July 31,
2007
For value received, the
undersigned unconditionally promises to pay to the order of
JPMORGAN CHASE BANK, N.A. (hereinafter the "Bank") at its
offices at 277 Park Avenue, New York , New York
10172-0003, or to such other address as the Bank may notify
the undersigned in writing, the principal sum of Seven
Million Dollars ($7,000,000) (the "Note Amount") or, if less,
such unpaid principal amount of each loan (a "Loan") (as
recorded on the grid attached hereto or on any additional
pages thereof) made by the Bank to the undersigned and
outstanding under this note on July 31, 2008 (the "Maturity
Date").
The undersigned promises
to pay interest on the unpaid balance of the principal amount
of each such Loan from and including the date of such Loan to
the last day of the Interest Period thereof at either
(i) a floating rate per annum equal to the Prime Rate (a
"Prime Loan"); (ii) a fixed rate per annum equal to the
Adjusted LIBO Rate applicable to such Loan plus 0.625% (a
"Eurodollar Loan"); or (iii) a fixed rate per annum equal to
the Money Market Rate applicable to such Loan (a "Money
Market Loan"). Any principal not paid when due
shall bear interest from and including the date due until
paid in full at a rate per annum equal to the Default Rate.
Interest shall be payable on the relevant Interest Payment
Date and shall be calculated on the basis of a year of 360
days for the actual number of days elapsed. Any
extension of time for the payment of the principal of this
note resulting from the due date falling on a non-Banking Day
shall be included in the computation of
interest.
Anything in this note to
the contrary notwithstanding, no Loans shall be made
hereunder, no letters of credit shall be issued by the Bank
for the account of the undersigned (" Letters of
Credit ") and no drafts shall be drawn by the undersigned
and accepted by the Bank (" Acceptances ") if, as a
result thereof, the aggregate unpaid principal balance of all
Loans made by the Bank to the undersigned hereunder plus the
aggregate undrawn face amount of all Letters of Credit, the
aggregate unreimbursed amount of all drafts drawn under
Letters of Credit and the aggregate outstanding face amount
of Acceptances would exceed the Note Amount or Reduced Note
Amount as applicable for the relevant period.
The date, amount, rate of
interest and maturity date of each Loan and payment(s) (if
any) of principal, the Loan(s) to which such payment(s) will
be applied (which shall be at the discretion of the Bank) and
the outstanding principal balance of Loans shall be recorded
by the Bank on its books and records (which may be electronic
in nature) and at any time and from time to time may be, and
shall be prior to any transfer and delivery of this note,
entered by the Bank on the schedule attached or any
continuation of the schedule attached hereto by the Bank (at
the discretion of the Bank, any such entries may aggregate
Loans (and payments thereon) with the same interest rate and
tenor and, if made on a given date, may show only the Loans
outstanding on such date). Any such entries shall
be conclusive in the absence of manifest
error. The failure by the Bank to make any or all
such entries shall not relieve the undersigned from its
obligation to pay any and all amounts due
hereunder.
1. DEFINITIONS. The
terms listed below shall be defined as follows:
"Adjusted LIBO Rate" means
the LIBO Rate for such Loan divided by one minus the Reserve
Requirement.
"Banking Day" means any
day on which commercial banks are not authorized or required
to close in New York City and whenever such day relates to a
Eurodollar Loan or notice with respect to any Eurodollar
Loan, a day on which dealings in U.S. dollar deposits are
also carried out in the London interbank market.
"Code" means the Uniform
Commercial Code of the State of New York.
"Default Rate" means, in
respect of any amount not paid when demanded, a rate per
annum during the period commencing on the date of demand
until such amount is paid in full equal to: (a) if a Prime
Loan, a floating rate of 2% above the rate of interest
thereon; (b) if a Eurodollar Loan or Money Market Loan, a
fixed rate of 2% above the rate of interest in effect thereon
at the time of demand until the last day of the Interest
Period thereof and, thereafter, a floating rate of 2% above
the rate of interest for a Prime Loan.
"Event of Default" means
each of the events stated in Section 7.
"Facility Documents" means
this note or any document executed by the undersigned or by
any Third Party granting security or support for this note
and all other agreements, instruments or other documents
executed by the undersigned or a Third Party or otherwise
executed in connection with this note, whether by guaranty,
subordination, grant of a security interest or any other
credit support, or which is contained in any certificate,
document, opinion, financial or other statement furnished at
the time under or in connection with any Facility
Document.
"Interest Payment Date"
means (a) with respect to any Prime Loan, the last day of
each month, or (b) with respect to any Eurodollar Loan
or Money Market Loan, the last day of the Interest Period
applicable to which such Loan is a part and, in the case of a
Eurodollar Loan or a Money Market Loan with an Interest
Period of more than three months' duration, each day prior to
the last day of such Interest Period that occurs at intervals
of three months' duration after the first day of such
Interest Period.
"Interest Period" means
(a) with respect to any Eurodollar Loan, the period
commencing on the date of such Loan and ending on the
numerically corresponding day in the calendar month that is
one, two, three or six months thereafter, as the undersigned
may elect or (b) with respect to any Money Market Loan, the
period commencing on the date of such Loan and ending on the
last day of the period for which such Loan is offered, as
recorded by the Bank on the grid hereto; provided ,
that (i) if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of a
Eurodollar Loan only, such next succeeding Business Day would
fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii)
any Interest Period pertaining to a Eurodollar Loan that
commences on the last Business Day of a calendar month (or on
a day for which there is no numerically corresponding day in
the last calendar month of such Interest Period) shall end on
the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of
a Loan initially shall be the date on which such Loan is made
and, in the case of the continuation of a Loan, thereafter
shall be the effective date of the most recent conversion or
continuation of such Loan.
"Liabilities" means all
obligations and liabilities of the undersigned to the Bank or
its affiliates of whatever nature, including payment of this
note, whether now existing or hereafter incurred or acquired,
whether matured or unmatured, liquidated or unliquidated,
direct or indirect, absolute or contingent, primary or
secondary, sole, joint, several or joint and several, secured
or unsecured.
"LIBO Rate" means, with
respect to any Eurodollar Loan for any Interest Period, the
rate quoted by the principal London branch of the Bank at
approximately 11:00 a.m. London time two (2) Business Days'
prior to the first day of such Interest Period for the
offering to leading banks in the London interbank market of
dollar deposits in immediately available funds, for a period
and in an amount, comparable to such Interest Period and the
principal amount of such Eurodollar Loan, as it appears on
Page 3756 of the Moneyline Telerate Markets.
"Money Market Rate" means,
if offered, a rate of interest per year as offered by the
Bank from time to time on any single commercial borrowing
during the period offered on such Loan. The Money
Market Rate of interest available for any subsequent
borrowings may differ since Money Market Rates may fluctuate
on a daily basis.
"Prime Rate" means that
floating rate of interest from time to time announced
publicly by the Bank in New York, New York as its prime
rate. The Prime Rate shall be automatically
adjusted on the date of any change thereto.
"Regulation D" means
Regulation D of the Board of Governors of the Federal Reserve
System.
"Regulatory Change" means
any change after the date of this note in United States
federal, state or municipal laws or any foreign laws or
regulations (including Regulation D) or the adoption or
making after such date of any interpretations, directives or
requests applying to a class of banks, including the Bank, of
or under any United States federal, state or municipal laws
or any foreign laws or regulations (whether or not having the
force of law) by any court or governmental or monetary
authority charged with the interpretation or administration
thereof.
"Reserve Requirement"
means, for any Eurodollar Loan, the average maximum rate at
which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during the
term of such Loan under Regulation D by member banks of the
Federal Reserve System in New York City with deposits
exceeding one billion U.S. dollars, or as otherwise
established by the Board of Governors of the Federal Reserve
System and any other banking authority to which the Bank is
subject, against "Eurocurrency liabilities" (as such term is
used in Regulation D). Without limiting the effect
of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks
by reason of any Regulatory Change against (x) any category
of liabilities which includes deposits by reference to which
the LIBO Rate is to be determined or (y) any category of
extensions of credit or other assets which include Eurodollar
Loans. The Reserve Requirement shall be adjusted
automatically on and as of the effective date of any change
in any reserve percentage.
"Third Party" means any
third party who supports or is liable with respect to this
note due to the execution of any document granting support or
security for this note, whether by guaranty, subordination,
grant of security or any other credit support.
2. BORROWINGS
AND PREPAYMENTS. The undersigned shall give the
Bank notice of each borrowing request by 12:00 noon, New
Yo
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