JP MORGAN CHASE PROMISSORY NOTEPromissory Note |
|
|
You are currently viewing: This Promissory Note involves
MOVADO GROUP INC | JPMORGAN CHASE BANK, NA. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Promissory Note by:
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 York City time three (3) Banking Days
prior
to each requested borrowing of a Eurodollar Loan and by 12:00 noon New York
City
time on the date of each requested borrowing of a Prime Loan or a Money Market
Loan; provided that no Eurodollar Loan shall be in a minimum amount equal to
less than $100,000. The undersigned shall have the right to make
prepayments of principal at any time or from time to time; provided
that: (a) the undersigned shall give the Bank irrevocable notice of
each prepayment by 12:00 noon New York City time three (3) Banking Days prior
to
prepayment of a Eurodollar Loan, one (1) Banking Day prior to prepayment of
a
Money Market Loan and by 12:00 noon New York City time on the date of prepayment
of a Prime Loan; (b) Eurodollar Loans and Money Market Loans may be prepaid
prior to the last day of the Interest Period thereof only if accompanied by
payment of the additional payments calculated in accordance with paragraph
5
below; and (c) all prepayments shall be in a minimum
amount equal to the lesser of $100,000 or the unpaid
principal amount of this note. If the undersigned fails to notify the Bank,
in
accordance with the terms hereof, prior to the maturity date of any Eurodollar
Loan or Money Market Loan to continue such Loan as a Eurodollar Loan or Money
Market Loan, such Loan shall be converted to a Prime Loan on its maturity
date.
3. ADDITIONAL
COSTS. (a) If as a result of any Regulatory Change which (i) changes
the basis of taxation of any amounts payable to the Bank under this note (other
than taxes imposed on the overall net income of the Bank or the lending office
by the jurisdictions in which the principal office of the Bank or the lending
office are located) or (ii) imposes or modifies any reserve, special deposit,
deposit insurance or assessments, minimum capital, capital ratios or similar
requirements relating to any extension of credit or other assets of, or any
deposits with or other liabilities of the Bank, or (iii) imposes any other
condition affecting this note, the Bank determines (which determination shall
be
conclusive absent manifest error) that the cost to it of making or maintaining
a
Eurodollar Loan or a Money Market Loan is increased or any amount received
or
receivable by the Bank under this note is reduced, then the undersigned will
pay
to the Bank on demand an additional amount that the Bank determines will
compensate it for the increased cost or reduction in amount.
(b) Without
limiting the effect of the foregoing provisions of this Section 3 (but without
duplication), the undersigned shall pay to the Bank from time to time on request
such amounts as the Bank may determine to be necessary to compensate the Bank
for any costs which it determines are attributable to the maintenance by it
or
any of its affiliates pursuant to any law or regulation of any jurisdiction
or
any interpretation, directive or request (whether or not having the force of
law
and whether in effect on the date of this note or thereafter) of any court
or
governmental or monetary authority of capital in respect of the Loans hereunder
(such compensation to include, without limitation, an amount equal to any
reduction in return on assets or equity of the Bank to a level below that which
it could have achieved but for such law, regulation, interpretation, directive
or request).
4. UNAVAILABILITY,
INADEQUACY OR ILLEGALITY OF LIBO RATE. Anything herein to the
contrary notwithstanding, if the Bank reasonably determines (which determination
shall be conclusive) that:
(a) quotations
of interest rates for the relevant deposits referred to in the definition of
LIBO Rate are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining the rate of interest for a Eurodollar
Loan; or
(b) the
definition of LIBO Rate does not adequately cover the cost to the Bank of making
or maintaining a Eurodollar Loan; or
(c) as
a result of any Regulatory Change (or any change in the interpretation thereof)
adopted after the date hereof, the principal office of the Bank or the lending
office is subject to any taxes, reserves, limitations, or other charges,
requirements or restrictions on any claims of such office on non-United States
residents (including, without limitation, claims on non-United States offices
or
affiliates of the Bank) or in respect of the excess above a specified level
of
such claims; or
(d) it
is unlawful for the Bank or the lending office to maintain any Eurodollar Loan
at the LIBO Rate;
THEN,
the
Bank shall give the undersigned prompt notice thereof, and so long as such
condition remains in effect, any existing Eurodollar Loan shall bear interest
as
a Prime Loan and the Bank shall make no Eurodollar Loans.
5. BREAK
FUNDING PAYMENTS. In the event of (a) the payment of any principal of
any Eurodollar Loan or Money Market Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan or Money Market Loan other
than on the last day of the Interest Period applicable thereto, or (c) the
failure to borrow, convert, continue on the date specified in any notice
delivered pursuant hereto, then, in any such event, the undersigned shall
compensate the Bank for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan or Money Market Loan, such
loss, cost or expense to the Bank shall be deemed to include an amount
determined by the Bank to be the excess, if any, of (i) the amount of interest
which would have accrued on the principal amount of such Eurodollar Loan or
Money Market Loan had such event not occurred, at the Adjusted LIBO Rate that
would have been applicable to such Eurodollar Loan or the Money Market Rate
that
would have been applicable to such Money Market Loan, as the case may be, for
the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan or Money Market Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which
the Bank would bid were it to bid, at the commencement of such period, for
dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of the Bank setting forth any amount
or amounts that the Bank is entitled to receive pursuant to this Section shall
be delivered to the Bank and shall be conclusive absent manifest
error. The undersigned shall pay the Bank the amount shown as due on
any such certificate within 10 days after receipt thereof.
6. BANK’S
RIGHT OF SETOFF. The Bank retains all rights of setoff that it may
have under applicable law or contract, including, without limitation, at its
option, to setoff balances (general or special, time or demand,
provisional or final) held by it for the account of the undersigned at any
of
Bank’s offices, in dollars or in any other currency, against any amount payable
under this Note which is not paid when due (regardless of whether such balances
are then due to the undersigned).
7. EVENTS
OF DEFAULT. If any of the following events of default shall occur
with respect to any of the undersigned or any Third Party:
(a) the
undersigned shall fail to pay any principal, interest or any other amount
payable under this note, or any other Liability, as and when due and payable;
or
(b) the
undersigned or any Third Party shall fail to perform or observe any covenant
or
agreement contained in any Facility Document, and such failure shall continue
for 30 consecutive days; or
(c) the
undersigned or any Third Party shall fail to pay when due any indebtedness
in
excess of $5,000,000 or more (including but not limited to indebtedness for
borrowed money) or if any such indebtedness shall become due and payable, or
be
capable of being due and payable at the option of the holder thereof, prior
to
the scheduled maturity thereof; or
(d) the
undersigned or any Third Party: (i) shall generally not, or be unable
to, or shall admit in writing its inability to, pay its debts as such debts
become due; (ii) shall make an assignment for the benefit of creditors; (iii)
shall commence any proceeding or file a petition seeking relief under any
bankruptcy, insolvency, reorganization, receivership, dissolution, liquidation
or other similar Federal, state or foreign law or seeking the appointment of
a
receiver, trustee, custodian, conservator or similar official for all or a
substantial part of its property or (iv) shall have any such proceeding
commenced or petition filed against it and the same shall remain undismissed
for
a period of 30 days or shall consent or acquiesce thereto; or
(e) the
undersigned or any Third Party shall merge or consolidate with or into, or
convert into, any other legal entity; or
(f) any
Facility Document shall at any time and for any reason cease to be in full
force
and effect or shall be declared null and void, or the undersigned or any
relevant Third Party shall deny or contest any further liability or obligation
thereunder or the validity or enforceability thereof or of any lien or security
interest created thereby; or
(g) any
lien, mortgage, pledge, security interest or other encumbrance of any kind
shall
be created or imposed upon any property or asset of the undersigned or any
Third
Party without the Bank's written consent thereto, except as permitted pursuant
to Section 8.3 of the Credit Agreement dated as of December 15, 2005 among
the
undersigned (as Borrower), the Lenders signatory thereto and the Bank (as
Administrative Agent, Swingline Bank and Issuing Agent); or
(h) any
action or proceeding before any court or governmental agency or authority which
involves forfeiture of any property or assets of the undersigned or a Third
Party shall have been commenced or if any such forfeiture or other seizure
or
assumption of custody or control over such assets by any court or governmental
agency or authority shall occur; or
