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Exhibit 10.37
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PROMISSORY NOTE
$18,350,000 New York, New York
October 1, 2000
FOR VALUE RECEIVED, MICHAEL ANTHONY JEWELERS, INC. (THE "Debtor"), HEREBY
PROMISES TO PAY to the order of THE CHASE MANHATTAN BANK, formerly know as
Chemical Bank (the "Bank"), at its offices located at 10 111 West 40th Street,
New York, New York, or at such other place as the Bank or any holder hereof may
from time to time designate, the principal sum of EIGHTEEN MILLION THREE HUNDRED
AND FIFTY THOUSAND DOLLARS ($18,350,000), or such lesser amount as may
constitute the outstanding balance hereof, in lawful money of the United States,
on the Maturity Date (as hereinafter defined) set forth on the Grid Schedule
attached hereto (or earlier as hereinafter referred to), and to pay interest in
like money at such office or place from the date hereof on the unpaid principal
balance of each Loan (as hereinafter defined) made hereunder at a rate equal to
the Applicable Interest Rate (as hereinafter defined) for such Loan, which shall
be payable on the last day of the Interest Period relating to such Loan and, if
such Interest Period is greater than three (3) months, at three (3) month
intervals after such Loan is made, until such Loan shall be due and payable
(whether at maturity, by acceleration or otherwise) and thereafter, on demand.
Interest after maturity shall be payable at a rate two percent (2%) per annum
above the Bank's Prime Rate which rate shall be computed for actual number, of
days elapsed on the basis of a 360-day year and shall be adjusted as of the date
of each such change, but in no event higher than the maximum permitted under
applicable law." Prime Rate" shall mean the rate of interest as is publicly
announced at the Bank's principal office from time to time as its Prime Rate.
INTEREST/GRID SCHEDULE
The Bank is authorized to enter on the Grid Schedule attached hereto (i)
the amount of each Loan made from time to time hereunder, (ii) the date on which
each Loan is made, (iii) the date on which each Loan shall be due and payable to
the Bank which in no event shall be later than December 31, 2000 (the "MATURITY
DATE"), (iv) the interest rate agreed between the Debtor and the Bank as the
interest rate to be paid to the Bank on each Loan (each such rate, the
"APPLICABLE INTEREST RATE"), which rate, at the Debtor's option in accordance
herewith, shall be at (a) the Prime Rate (the "PRIME RATE LOAN(S)"), (b) a fixed
rate of interest determined by and available at the Bank in its sole discretion
(the "Fixed Rate") for the applicable Interest Period (the "FIXED RATE LOAN(S)")
or (c) the Adjusted Eurodollar Rate (as hereafter defined) plus 2.5% (the
"EURODOLLAR LOAN"), (v) the amount of each payment made hereunder, and (vi) the
outstanding principal balance of the Loans hereunder from time to time, all of
which entries, in the absence of manifest error, shall be reputably presumed
correct and binding on the Debtor; PROVIDED, HOWEVER, that the failure of the
Bank to make any such entries shall not relieve the Debtor from its obligation
to pay any amount due hereunder.
PREPAYMENT
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The Debtor shall not have the right to prepay any Loan, other than Loans
based on the Prime Rate, prior to the Maturity Date of such Loan. Except with
respect to Prime Rate Loans, in the event the Debtor does prepay a Loan prior to
the Maturity Date, the Debtor shall reimburse the Bank on demand for any loss
incurred or to be incurred by it in the reemployment of the funds released by
any prepayment.
DISCRETIONARY LOANS BY THE BANK
The Bank may lend, in its sole discretion in each instance, such amounts
(each a "LOAN" and collectively the "LOANS") as may be requested by the Debtor
hereunder, which Loans shall in no event exceed $5,000,000 in aggregate
principal amount outstanding at any time. Any Eurodollar Loan shall be in a
minimum principal amount of $500,000 and in increments of $100,000. Each such
request for a Loan shall be made by any officer of the Debtor or any person
designated in writing by any such officer, all of which are hereby designated
and authorized by the Debtor to request Loans and agree to the terms thereof
(including without limitation the Applicable Interest Rate and Maturity Date
with respect thereto). The Debtor shall give the Bank notice at least three (3)
Business Days prior to the date hereof and the end of each Interest Period (as
hereafter defined) specifying whether the Loan shall bear interest at the Prime
Rate, the Fixed Rate or the Eurodollar Rate and the Interest Period applicable
thereto. In the event the Debtor shall fail to provide such notice, the Loan
shall be deemed to bear interest at the applicable Prime Rate and shall have an
Interest Period of one month. The principal amount of each Loan shall be prepaid
on the earlier to occur of the Maturity Date applicable thereto, or the date
upon which the entire unpaid balance hereof shall otherwise become due and
payable.
INCREASED COST
If at any time after the date hereof, the Board of Governors of the Federal
Reserve System or any political subdivision of the United States of America or
any other government, governmental agency or central bank shall impose or modify
any reserve or capital requirement on or in respect of loans made by or deposits
with the Bank or shall impose on the Bank or the Eurodollar market any other
conditions affecting Fixed Rate Loans or Eurodollar Loans, and the result of the
foregoing is to increase the cost to (or, in the case of Regulation D, to impose
a cost on) the Bank of making or maintaining any Fixed Rate Loans or Eurodollar
Loans or to reduce the amount of any sum receivable by the Bank in respect
thereof, by an amount deemed by the Bank to be material, then, within 30 days
after notice and demand by the Bank, the Debtor shall pay to the Bank such
additional amounts as will compensate the Bank for such increased cost or
reduction; PROVIDED, that the Debtor shall not be obligated to compensate the
Bank for any increased cost resulting from the application of Regulation D as
required by the definition of Adjusted Eurodollar Rate. Any such obligation by
the Debtor to the Bank shall not be due and owing until the Bank has delivered
written notice to the Debtor. Failure by the Bank to provide such notice shall
not be deemed a waiver of any of its rights hereunder. A certificate of the Bank
claiming compensation hereunder and setting forth the additional amounts to be
paid to it hereunder and the method by which such amounts were calculated shall
be conclusive in the absence of manifest error.
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INDEMNITY
The Debtor shall indemnify the Bank against any loss or expense which the
Bank may sustain or incur as a consequence of the occurrence of any Event of
Default or any loss or reasonable expense sustained or incurred in liquidating
or employing deposits from third parties acquired to effect or maintain any
Fixed Rate Loan or Eurodollar Loan or any part thereof which the Bank may
sustain or incur as a consequence of any default in payment of the principal
amount of the Loan or any part thereof or interest accrued thereon. The Bank
shall provide to the Debtor a statement, supported where applicable by
documentary evidence, explaining the amount of any such loss or expense, which
statement shall be conclusive absent manifest error.
CHANGE IN LEGALITY
(a) Notwithstanding anything to the contrary contained elsewhere in this
Note, if any change after the date hereof in any law or regulation or in the
interpretation thereof by any governmental, authority charged with the
administration thereof shall make it unlawful (based on the opinion of any
counsel, whether in-house, special or general, for the Bank) for the Bank to
make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Debtor by the Bank, the Bank may require that all outstanding Eurodollar
Loans made hereunder be converted to Prime Loans, whereupon all such Eurodollar
Loans shall be automatically converted to Prime Loans as of the effective date
of such notice as provided in paragraph (b) below.
(b) For purposes of this Section, a notice to the Debtor by the Bank
pursuant to paragraph (a) above shall be effective, if lawful and if any
Eurodollar Loans shall then be outstanding, on the last day of the then current
Interest Period; otherwise, such notice shall be effective on the date of
receipt by the Debtor.
EVENTS OF DEFAULT
If the Debtor shall default in the punctual payment of any sum payable with
respect to, or in the observance or performance of any of the terms and
conditions of this Note, or any other agreement with or in favor of the Bank, or
if a default or event of default that is accelerated shall occur for any reason
under any such agreement, or in the event of default in any other indebtedness
of the Debtor in excess of $100,000, or if the Bank shall, in its sole
discretion, consider any of the obligations of the Debtor hereunder insecure, or
if any warranty, representation or statement of fact made in writing to the Bank
at any time by an officer, agent or employee of the Debtor is false or
misleading in any material respect when made, or if the Debtor refuses upon the
request of the Bank to furnish any information or to permit inspection of any of
its books or records within a reasonable amount of time, or if the Debtor shall
be dissolved or shall fail to maintain its existence in good standing, or if the
usual business of the Debtor shall be suspended or terminated, or if any levy,
execution, seizure, attachment or garnishment shall be issued, made or filed on
or against any material portion of the property of the Debtor, or if the Debtor
shall become insolvent (however defined or evidenced), make an
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assignment for the benefit of creditors or make or send a notice of intended
bulk transfer, or if a committee of creditors is appointed for, or any petition
or proceeding for any relief under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, receivership, liquidation or dissolution law
or statute now or hereafter in affect (whether at law or in equity) is filed or
commenced by or against the Debtor or any material portion of its property
which, if such petition or proceeding for relief is involuntarily commenced,
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof, or if any trustee or receiver is
appointed for the Debtor or any such property, then and in any such event, in
addition to all rights and remedies of the Bank under applicable law and
otherwise, all such rights and remedies cumulative, not exclusive and
enforceable alternatively, successively and concurrently, the Bank may, at its
option, declare any and all of the amounts owing under this Note to be due and
payable, whereupon the maturity of the then unpaid balance hereof shall be
accelerated and the same, together with all interest accrued hereon, shall
forthwith become due and payable.
DEFINITIONS
A. ADJUSTED EURODOLLAR RATE
"Adjusted Eurodollar Rate" shall mean, with respect to any Eurodollar
Loan for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/8 of 1%) equal to the product of (i) the Eurodollar
Rate in effect for such Interest Period and (ii) Statutory Reserves.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan for
any Interest Period, the rate (rounded upwards, if necessary, to the next 1/8 of
1% at which dollar deposits approximately equal in principal amount to the
Bank's Eurodollar Loan and for the maturity equal to the applicable Interest
Period are offered by the Bank in immediately available funds in an Interbank
Market for Eurodollars at approximately 11:00 a.m., New York City time, two
Business Days prior to the commencement of such Interest Period.
B. BUSINESS DAY
A "Business Day" shall mean any day other than a Saturday, Sunday or
other day on which the Bank is authorized or required by law or regulation to
close, and which is a day on which transactions in dollar deposits are being
carried out in London, England for Eurodollar Loans and New York City for Fixed
Rate Loans and Prime Loans.
C. INTEREST PERIOD
(i) For Eurodollar Loans, "Interest Period" shall mean the period
commencing on the date of such Loan and ending 1, 2, 3 or 6 months (as selected
by the Debtor and recorded on the grid attached hereto) after the date of such
Loan, however, the Interest Period shall not extend past the Maturity Date.
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(ii) For Fixed Rate Loans, "interest Period" shall mean the period
requested by the Debtor and agreed to by the Bank, as available, however, the
Interest Period shall not extend past the Maturity Date.
(iii) For Prime Loans, "Interest Period" shall mean the period agreed
to by the parties hereto, however, the Interest Period shall not extend past the
Maturity Date.
If any Interest Period would end on a day which shall not be a Business
Day, such Interest Period shall be extended to the next succeeding Business Day.
D. STATUTORY RESERVES
"Statutory Reserves" shall, mean a fraction (expressed as a decimal)
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including,
without limitation, any marginal, special emergency or supplemental reserves)
expressed as a decimal established by the Board of Governors of the Federal
Reserve System and any other banking authority to which the Bank is subject, (a)
with respect to the Adjusted Certificate of Deposit Rate, for new negotiable
time deposits in dollars of over $100,000 with maturities approximately equal to
the applicable Interest Period, and (b) with respect to the Adjusted Eurodollar
Rate, for Eurocurrency Liabilities as defined in Regulation D. Eurodollar Loans
shall be deemed to constitute Eurocurrency Liabilities and as such shall be
deemed to be subject to such reserve requirements without benefit of or credit
for proration, exceptions or offsets which may be available from time to time to
the Bank under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
MISCELLANEOUS
The Debtor hereby waives diligence, demand, presentment, protest and notice
of any kind, and assents to extensions of the time of payment, release,
surrender or substitution of security, or forbearance or other indulgence,
without notice.
This Note may not be changed, modified or terminated orally, but only by an
agreement in writing signed by the party to be charged and consented to in
writing by the party hereof.
In the event the Bank or any holder hereof shall refer this Note to an
attorney for collection, the Debtor agrees to pay, in addition to unpaid
principal and interest, all the costs and expenses incurred in attempting or
effecting collection hereunder, including reasonable attorney's fees, whether or
not suit is instituted.
In the event of any litigation with respect to this Note, THE BORROWER
WAIVES THE RIGHT TO A TRIAL BY JURY and all rights of setoff and rights to
interpose counter-claims and cross-claims. The Debtor hereby irrevocably
consents to the jurisdiction of the courts of the State of New York and of any
Federal court located in such State in connection with any action or proceeding
arising out of or relating to this Note. The execution and delivery of this
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Note has been authorized by the Board of Directors and by any necessary vote or
consent of the stockholders of the Debtor. The Debtor hereby authorizes the Bank
to complete this Note in any particulars according to the terms of the loan
evidenced hereby. This Note shall be governed by and construed in accordance
with the laws of the State of New York applicable to contract made and to be
performed in such State, and shall be binding upon the successors and assigns of
the Debtor and inure to the benefit of the Bank, its successors, endorsees and
assigns. If any term or provision of this Note shall be held invalid, illegal or
unenforceable the validity of all other terms and provisions hereof shall in no
way be affected thereby.
MICHAEL ANTHONY JEWELERS, INC.
By: /s/ MICHAEL A. PAOLERCIO
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Title: SVP, & Treasurer
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GRID SCHEDULE
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AMOUNT
TYPE OF AMOUNT PRINCIPAL INTEREST INTEREST
DATE LOAN OF LOAN PREPAID RATE PERIOD
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