EXHIBIT 10.2
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, 2009 (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
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