REVOLVING LINE OF CREDIT NOTE
REVOLVING
LINE OF CREDIT NOTE
1. DEFINED
TERMS.
As used
in this Revolving Line of Credit Note (this “Note”), the following terms shall
have the meanings there indicated:
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1.1
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Borrower:
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A
Florida corporation
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000
Xxxxx Xxxxx Xxxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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1.2
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Lender:
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RBS
Citizens, National Association
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00
Xxxxx Xxxxxx
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Xxxxxx,
XX 00000
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1.3
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Expiration
Date:
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July
31, 2010
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1.4
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Loan
Agreement:
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The
Revolving Line of Credit and Term Loan Agreement of even date herewith
by
and between Borrower and Lender, as may be amended, modified, or
extended
from time to time.
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1.5
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Maximum
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Revolving
Credit:
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$2,000,000.00.
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All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth in the Loan Agreement. The terms and conditions of the Loan
Agreement and the other Loan Documents are incorporated herein by
reference.
2. DEBT:
For
value
received, the Borrower hereby promises to pay to the order of Lender the Maximum
Revolving Credit, or so much of the Maximum Revolving Credit as has been
advanced by Lender from time to time pursuant to the Loan Agreement, together
with interest on all unpaid balances under this Note at the applicable interest
rate set forth in this Note and with all other amounts due hereunder or under
the Loan Documents. Loan proceeds under this Note shall be advanced as a
revolving line of credit loan, such that, prior to the Expiration Date and
provided that Borrower complies with the terms and conditions of the Loan
Documents, the Borrower may, from time to time, borrow, re-pay, and re-borrow
principal under the Note, so long as the Aggregate Revolving Advances do not
exceed the Maximum Revolving Credit.
3. INTEREST:
Each
Revolving Advance shall accrue interest at a variable per annum rate of interest
equal to either, at Borrower’s election in accordance with the terms and
conditions of the Loan Agreement, (i) the Prime Rate or (ii) the Adjusted LIBOR
Rate, plus
the
LIBOR Rate Margin (as such terms are defined in Rider
A
entitled
“RBS Citizens Standard Libor Provisions (Revolving Line of Credit)” attached
hereto and made a part hereof) (the “LIBOR Option”). Changes in the interest
rate applicable to any Revolving Advance occurring as a result of changes in
the
Prime Rate or the LIBOR Advantage Rate, as applicable, shall take place
immediately without notice to Borrower or demand of any kind. Interest on each
Revolving Advance shall at all times be calculated on a 360-day year of twelve
30-day months, but shall accrue and be payable on the actual number of days
elapsed.
1
4. PAYMENTS:
The
Borrower shall make monthly payments of accrued interest in arrears on the
outstanding principal balance of each Revolving Advance on (x) each Payment
Date, for Revolving Advances accruing interest at the Prime Rate and (y) each
LA
Interest Payment Date (as defined in Rider
A),
for
Revolving Advances accruing interest at the LIBOR Advantage Option. If interest
is due and accrued for a period of more or less than one (1) month on any
Payment Date or on any LA Interest Payment Date, as applicable, such payment
shall be increased or decreased to the extent that the amount of interest then
due under such payment exceeds or is less than one (1) month’s interest. The
Borrower shall also repay the Aggregate Revolving Advances in part from time
to
time in such principal amounts as may be necessary to ensure that the Aggregate
Revolving Advances at no time exceed the Maximum Revolving Credit. On the
Expiration Date or such earlier date as may be required by the terms of the
Loan
Documents, the Borrower shall pay to Lender the entire then unpaid balance
of
principal, interest, and other charges due under the Loan Documents. Any
payments on this Note, whether such payment is of a regular installment or
represents a prepayment, shall be made in coin and currency of the United States
of America which is legal tender for the payment of public and private debts,
in
immediately available funds, to Lender at Lender's address set forth herein
or
at such other address as Lender may from time to time designate in writing.
The
Borrower hereby authorizes Lender to charge any account maintained by Borrower
with Lender for any payment due from Borrower under this Note or under any
of
the other Loan Documents. In any of the foregoing cases, such authorization,
however, does not obligated Lender so to charge nor does it limit the Borrower’s
obligation to make any payment when due.
5. DEFAULT
INTEREST: Upon
an
Event of Default, at Lender’s option, Borrower shall, in addition to any other
payment due hereunder, pay interest under this Note from and after the date
on
which such Event of Default has occurred at a per annum interest rate equal
to
the lesser of (a) the Interest Rate, plus
five
percent (5%), or (b) the maximum rate permitted by law, and such interest shall
be due and payable, on demand, at such rate until such Event of Default has
been
waived in writing by Lender or the entire outstanding amount due under this
Note
is paid to Lender, whether or not any action shall have been taken or proceeding
commenced to recover the same or to foreclose upon the Collateral. Nothing
in
this Section 5 or in any other provision of this Note shall constitute an
extension of the time of payment of the indebtedness hereunder.
6. DELINQUENCY
CHARGES: If
Borrower fails to pay any amount due under this Note for ten (10) days after
such payment becomes due, whether by acceleration or otherwise, Lender may,
at
its option, whether immediately or at the time of final payment of the amounts
evidenced by this Note impose a delinquency or “late” charge equal to five
percent (5%) of the amount of such past due payment, notwithstanding the date
on
which such payment is actually paid in full, and the amount thereof shall be
secured by the Loan Documents and by any other collateral held by Lender to
secure the indebtedness evidenced by the Loan Documents. Borrower agrees that
any such delinquency charges shall not be deemed to be additional interest
or
penalty, but shall be deemed to be liquidated damages because of the difficulty
in computing the actual amount of damages in advance.
2
7. COSTS
AND EXPENSES UPON DEFAULT: After
a
Default Event or an Event of Default, in addition to principal, interest and
delinquency charges, Lender shall be entitled to collect all costs of
collection, including, but not limited to, reasonable attorneys fees and
expenses, incurred in connection with the protection or realization of
collateral or in connection with Lender’s exercise of any rights under the Loan
Documents or with any of Lender's collection efforts, whether or not suit on
this Note is filed, and all such costs and expenses shall be payable on demand
and until paid shall also be secured by the Loan Documents and by all other
collateral held by Lender as security for Borrower’s obligations to
Lender.
8. APPLICATION
OF PAYMENTS: Unless
an
Event of Default has occurred, all payments hereunder shall be applied first
to
delinquency charges, costs of collection and enforcement and other similar
amounts due, if any, under this Note and under the Loan Agreement, then to
interest which is due and payable under this Note, and the remainder, if any,
to
principal due and payable under this Note. If an Event of Default has occurred,
such payments may be applied to sums due under this Note or under the Loan
Agreement in any order and combination that Lender may, in its sole and absolute
discretion, determine.
9. PERMITTED
PREPAYMENT: The
Borrower shall have the right to prepay the outstanding Revolving Advances
in
whole or in part at any time without prepayment interest or penalty and to
re-borrow such amounts as permitted by the terms of the Loan Agreement; provided
that Borrower shall be liable at the time of any such prepayment for any LIBOR
Breakage Fee (as defined in Rider
A)
or any
fees in connection with any Hedging Obligations (as defined in Rider
A).
10. COSTS;
ILLEGALITY OF LOAN: The
Borrower shall pay to Lender on demand (i) all costs and expenses of Lender
in
connection with, and any stamp or other taxes or charges (including filing
fees)
payable with respect to, this Note and the enforcement hereof; and (ii) any
amount necessary to compensate it for (a) any losses or costs (including funding
costs) sustained by it as a consequence of any default by Borrower hereunder;
and (b) any increased costs Lender may sustain in maintaining the borrowing
evidenced hereby due to the introduction of, or any change in, law or applicable
regulations (including the interpretation thereof) or due to the compliance
by
Lender with any guideline or request from any central bank or governmental
authority. In addition, if it shall become unlawful, or any central bank or
other governmental authority shall assert it to be unlawful, for Lender (or
any
bank which is directly or indirectly funding Lender with respect to the
Revolving Loan) to maintain the borrowing evidenced hereby, Borrower agrees
to
prepay this Note in full together with accrued interest and other amounts
payable hereunder on demand.
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11. WAIVERS:
BORROWER
AND EACH GUARANTOR OF THIS NOTE SEVERALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE
RIGHTS TO NOTICE AND HEARING TO THE EXTENT PERMITTED BY ANY STATE OR FEDERAL
LAW
WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH LENDER MAY DESIRE TO USE, and,
further, severally and irrevocably waive presentment for payment, demand, notice
of nonpayment, notice of intention to accelerate the maturity of this Note,
diligence in collection, commencement of suit against any obligor, notice of
protest, and protest of this Note and all other notices in connection with
the
delivery, acceptance, performance, default or enforcement of the payment of
this
Note, before or after the maturity of this Note, with or without notice to
Borrower and any Guarantor, and agree that their liability shall not be in
any
manner affected by any indulgence, extension of time, renewal, waiver or
modification granted or consented to by Lender. The Borrower and each Guarantor
consent to any and all extensions of time, renewals, waivers or modifications
that may be granted by Lender with respect to the payment or other provisions
of
this Note, and to any substitution, exchange or release of the collateral for
this Note, or any part thereof, with or without substitution of said collateral,
and agree to the addition or release of any Guarantor, all whether primarily
or
secondarily liable, before or after maturity of this Note, with or without
notice to Borrower or any Guarantor, and without affecting their liability
under
this Note. Any delay on the part of Lender in exercising any right under this
Note shall not operate as a waiver of any such right, and any waiver granted
or
consented to on one occasion shall not operate as a waiver in the event of
any
subsequent default.
BORROWER
AND EACH GUARANTOR OF THIS NOTE HEREBY SEVERALLY AND IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY PROCEEDINGS HEREAFTER INSTITUTED BY OR AGAINST
BORROWER OR GUARANTOR IN RESPECT OF THIS NOTE OR ARISING OUT OF ANY DOCUMENT,
INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THIS
NOTE.
12. NO
USURY: Lender
and Borrower intend to comply at all times with applicable usury laws. If at
any
time such laws would ever render usurious any amounts called for under this
Note
or the other Loan Documents, then it is Borrower’s and Lender’s express
intention that Borrower shall not be required to pay interest on this Note
at a
rate in excess of the maximum lawful rate, that the provisions of this Section
12 shall control over all other provisions of this Note which may be in apparent
conflict herewith, that such excess amount shall be credited to the principal
balance of this Note (or, if this Note has been fully paid, refunded by Lender
to Borrower), and the provisions hereof shall be reformed and the amounts
thereafter collectible under this Note reduced, without the necessity of the
execution of any further documents, so as to comply with the then applicable
law, but so as to permit the recovery by Lender of the fullest amount otherwise
called for under this Note. Any such crediting or refund shall not cure or
waive
any default by Borrower under this Note or the other Loan Documents. If at
any
time following any reduction in the interest rate payable by Borrower there
remains unpaid any principal amount under this Note and the maximum interest
rate allowed by applicable law is increased or eliminated, then the interest
rate payable under this Note shall be readjusted, to the extent not prohibited
by applicable law, so that the dollar amount of interest payable hereunder
shall
be equal to the dollar amount of interest which would have been paid by Borrower
without giving effect to the reduction in interest resulting from compliance
with applicable usury laws. Borrower agrees that in determining whether or
not
any interest payable under this Note exceeds the highest rate allowed by law,
any non-principal payment (except payments specifically stated in this Note
to
be "interest"), including, without limitation, prepayment fees and delinquency
charges, shall, to the maximum extent allowed by law, be an expense, fee or
premium rather than interest. The term "applicable law", as used in this Note
shall mean the laws of The Commonwealth of Massachusetts or the laws of the
United States, whichever laws allow the greater rate of interest, as such laws
now exist or may be changed or amended or come into effect in the
future.
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13. ACCELERATION AND OTHER REMEDIES: If:
(a) Borrower
fails to pay any sum due on this Note within ten (10) days of the due date;
or
(b) An
“Event
of Default,” as such term is defined in the Loan Agreement or any other Loan
Document, occurs;
then,
and
in any such event, Lender may, at its option, declare the entire unpaid balance
of this Note together with interest accrued thereon, to be immediately due
and
payable and Lender may proceed to exercise any rights or remedies that it may
have under this Note or the Loan Agreement or such other rights and remedies
which Lender may have at law, equity or otherwise.
14. JOINT
AND SEVERAL LIABILITY:
The
liabilities of Borrower and any Guarantor of this Note are joint and several;
provided, however, the release by Lender of Borrower or any one or more
Guarantor shall not release any other person obligated on account of this Note.
Each reference in the within Note to Borrower and any Guarantor is to such
person individually and also to all such persons jointly. No person obligated
on
account of this Note may seek contribution from any other person also obligated
unless and until all liabilities to Lender from the person from whom
contribution is sought have been satisfied in full.
15. SUCCESSORS
AND ASSIGNS: This
Note
shall be binding upon Borrower and upon its respective successors, assigns
and
representatives, and shall inure to the benefit of Lender and its successors,
endorsees, and assigns.
16. SECURITY:
This
Note
is secured by the other Loan Documents, and all amendments, modifications,
supplements, substitutions, additions, renewals, replacements and extensions
thereof. Borrower hereby grants to Lender a security interest in any and all
deposits or other sums at any time credited by or due from Lender to Borrower
and any cash, securities, instruments, or other property of Borrower which
now
or hereafter are at any time in the possession or control of Lender, and such
sums shall constitute additional security to Lender for the liabilities of
Borrower to Lender, including, without limitation, the liability evidenced
hereby, and may be applied or set off by Lender against such liabilities at
any
time from and after an Event of Default hereunder, whether or not other
collateral is available to Lender.
17. COLLECTION:
Any
check, draft, money order or other instrument given in payment of all or any
portion hereof may be accepted by Lender and handled by collection in the
customary manner, but the same shall not constitute payment hereunder or
diminish any rights of Lender except to the extent that actual cash proceeds
of
such instrument are unconditionally received by Lender and applied to this
indebtedness in the manner elsewhere herein provided.
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18. AMENDMENTS:
This
Note
may be changed or amended only by an agreement in writing signed by the party
against whom enforcement is sought.
19. GOVERNING
LAW; SUBMISSION TO JURISDICTION: This
Note
is given to evidence debt for business or commercial purposes, is being
delivered to Lender at one of its offices in The Commonwealth of Massachusetts
and shall be governed by and construed under the laws of said Commonwealth.
Borrower and each officer, director, and employee of Borrower hereby submit
to
personal jurisdiction in said Commonwealth for the enforcement of Borrower’s
obligations hereunder, under the Loan Agreement and under the other Loan
Documents, and waive any and all personal rights under the law of any other
state to object to jurisdiction within such Commonwealth for the purposes of
litigation to enforce such obligations of Borrower. In the event such litigation
is commenced, Borrower agrees that service of process may be made, and personal
jurisdiction over Borrower obtained, by service of a copy of the summons,
complaint and other pleadings required to commence such litigation upon Borrower
at the address set forth in the preamble to this Note.
20. CAPTIONS:
All
paragraph and subparagraph captions are for convenience of reference only and
shall not affect the construction of any provision herein.
IN
WITNESS WHEREOF, this Note has been executed and delivered under seal this
30th
day of November, 2007.
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BORROWER:
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By:/s/Xxxxxx
Xxxx
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Name:
Xxxxxx Xxxx
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Title:
CEO
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6
RBS
CITIZENS STANDARD LIBOR PROVISIONS
(REVOLVING
LINE OF CREDIT)
Borrower: National
Investment Managers Inc.
1. Certain
Definitions.
“Adjusted
LIBOR Rate”
means,
relative to any LIBOR Rate Loan to be made, continued or maintained as, or
converted into, a LIBOR Rate Loan for any LIBOR Interest Period, a rate per
annum determined by dividing (x) the LIBOR Rate for such LIBOR Interest Period
by (y) a percentage equal to one hundred percent (100%) minus the LIBOR Reserve
Percentage.
“Business
Day”
means:
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(a)
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any
day which is neither a Saturday or Sunday nor a legal holiday on
which
commercial banks are authorized or required to be closed in Boston,
MA;
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(b)
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when
such term is used to describe a day on which a borrowing, payment,
prepaying, or repaying is to be made in respect of any LIBOR Rate
Loan,
any day which is: (i) neither a Saturday or Sunday nor a legal holiday
on
which commercial banks are authorized or required to be closed in
New York
City; and (ii) a London Banking Day;
and
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(c)
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when
such term is used to describe a day on which an interest rate
determination is to be made in respect of any LIBOR Rate Loan, any
day
which is a London Banking Day.
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“Expiration
Date”
means
July 31, 2010, unless accelerated sooner pursuant to the terms
hereof.
“Hedging
Contracts”
means,
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements, or any other agreements or arrangements entered into between
the Borrower and the Lender and designed to protect the Borrower against
fluctuations in interest rates or currency exchange rates.
“Hedging
Obligations”
means,
with respect to the Borrower, all liabilities of the Borrower to the Lender
under Hedging Contracts.
“Interest
Payment Date”
means,
relative to any LIBOR Rate Loan having an LIBOR Interest Period of three months
or less, the last Business Day of such LIBOR Interest Period, and as to any
LIBOR Rate Loan having an LIBOR Interest Period longer than three months, each
Business Day which is three months, or a whole multiple thereof, after the
first
day of such LIBOR Interest Period and the last day of such LIBOR Interest
Period.
“LIBOR
Rate”
means,
relative to any LIBOR Interest Period, the offered rate for deposits of U.S.
Dollars in an amount approximately equal to the amount of the requested LIBOR
Rate Loan for a term coextensive with the designated LIBOR Interest Period
which
the British Bankers’ Association fixes as its LIBOR rate as of 11:00 a.m. London
time on the day which is two London Banking Days prior to the beginning of
such
LIBOR Interest Period. If such day is not a London Banking Day, the LIBOR Rate
shall be determined on the next preceding day which is a London Banking Day.
If
for any reason the Lender cannot determine such offered rate by the British
Bankers’ Association, the Lender may, in its discretion, select a replacement
index based on the arithmetic mean of the quotations, if any, of the interbank
offered rate by first class banks in London or New York for deposits in
comparable amounts and maturities.
“LIBOR
Interest Period”
means,
relative to any LIBOR Rate Loan:
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(i)
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initially,
the period beginning on (and including) the date on which such LIBOR
Rate
Loan is made or continued as, or converted into, a LIBOR Rate Loan
and
ending on (but excluding) the day which numerically corresponds to
such
date one,
three or six months
thereafter (or, if such month has no numerically corresponding day,
on the
last Business Day of such month), in each case as the Borrower may
select
in its notice pursuant to the Loan Agreement;
and
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(ii)
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thereafter,
each period commencing on the last day of the next preceding LIBOR
Interest Period applicable to such LIBOR Rate Loan and ending one,
three or six months
thereafter, as selected by the Borrower by irrevocable notice to
the
Lender;
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provided,
however,
that:
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(a)
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at
no time may there be more than three
(3) LIBOR
Interest Periods in effect with respect to the LIBOR Rate
Loans;
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(b)
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LIBOR
Interest Periods commencing on the same date for LIBOR Rate Loans
comprising part of the same advance under this agreement shall be
of the
same duration;
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(c)
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LIBOR
Interest Periods for LIBOR Rate Loans in connection with which the
Borrower has or may incur Hedging Obligations with the Lender shall
be of
the same duration as the relevant periods set under the applicable
Hedging
Contracts;
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(d)
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if
such LIBOR Interest Period would otherwise end on a day which is
not a
Business Day, such LIBOR Interest Period shall end on the next following
Business Day unless such day falls in the next calendar month, in
which
case such LIBOR Interest Period shall end on the first preceding
Business
Day; and
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(e)
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no
LIBOR Interest Period may end later than the termination of this
agreement.
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“LIBOR
Rate Loan”
means
any Revolving Advance the rate of interest applicable to which is based upon
the
LIBOR Rate.
“LIBOR
Rate Margin”
means
two and three quarters of one percent
(2.75%) per annum.
“LIBOR
Reserve Percentage”
means,
relative to any day of any LIBOR Interest Period, the maximum aggregate (without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements (including all basic, emergency, supplemental, marginal and other
reserves and taking into account any transitional adjustments or other scheduled
changes in reserve requirements) under any regulations of the Board of Governors
of the Federal Reserve System (the “Board”) or other governmental authority
having jurisdiction with respect thereto as issued from time to time and then
applicable to assets or liabilities consisting of “Eurocurrency Liabilities”, as
currently defined in Regulation D of the Board, having a term approximately
equal or comparable to such LIBOR Interest Period.
“London
Banking Day”
means
a
day on which dealings in US dollars deposits are transacted in the London
interbank market.
“Prime
Rate”
shall
mean a rate per annum equal to the rate of interest announced by Lender in
Boston, MA from time to time as its “Prime Rate.” Any change in the Prime Rate
shall be effective immediately from and after such change in the Prime Rate.
Interest accruing by reference to the Prime Rate shall be calculated on the
basis of actual days elapsed and a 360-day year. The Borrower acknowledges
that
the Lender may make loans to its customers above, at or below the Prime
Rate.
“Prime
Rate Loan”
means
any Revolving Advance for the period(s) when the rate of interest applicable
to
such Revolving Advance is calculated by reference to the Prime
Rate.
8
“Prime
Rate Margin” means 0% (zero basis points) per annum.
2. Borrowing
Procedures.
2.1 LIBOR
Loan Request.
By
delivering a borrowing request to the Lender on or before 10:00 a.m., New York
time, on a Business Day, the Borrower may from time to time irrevocably request,
on not less than two nor more than five Business Days’ notice, that a LIBOR Rate
Loan be made in a minimum amount of $100,000 and integral multiples of $10,000,
with a LIBOR Interest Period as set forth above. On the terms and subject to
the
conditions of this agreement, each LIBOR Rate Loan shall be made available
to
the Borrower no later than 11:00 a.m. New York time on the first day of the
applicable LIBOR Interest Period by deposit to the account of the Borrower
as
shall have been specified in its borrowing request.
2.2 Continuation
and Conversion Elections.
By
delivering a conversion notice to the Lender on or before 10:00 a.m., New York
time, on a Business Day, the Borrower may from time to time irrevocably elect,
on not less than two nor more than five Business Days’ notice, that all or any
portion of any LIBOR Rate Loan, in an aggregate minimum amount of $100,000
and
integral multiples of $10,000, be converted on the last day of a LIBOR Interest
Period into a LIBOR Rate Loan with a different LIBOR Interest Period;
provided, however,
that no
portion of the outstanding principal amount of any LIBOR Rate Loan may be
converted to, or be continued as, a LIBOR Rate Loan when any Event of Default
has occurred and is continuing, and no portion of the outstanding principal
amount of any LIBOR Rate Loan may be converted to LIBOR Rate Loan of a different
duration if such LIBOR Rate Loan relates to any Hedging Obligation. In the
absence of delivery of a conversion notice with respect to any LIBOR Rate Loan
at least two Business Days before the last day of the then current LIBOR
Interest Period with respect thereto, such LIBOR Rate Loan shall, on such last
day, automatically continue as a LIBOR Rate Loan with the same LIBOR Interest
Period.
3. Repayments,
Prepayments and Interest.
3.1 Repayments
Continuations and Conversions.
LIBOR
Rate Loans shall mature and become payable in full on the last day of the LIBOR
Interest Period relating to such LIBOR Rate Loan. Upon maturity, a LIBOR Rate
Loan may be continued for an additional LIBOR Interest Period or may be
converted to a Prime Rate Loan.
3.2 Voluntary
Prepayment of LIBOR Rate Loans.
LIBOR
Rate Loans may be prepaid upon the terms and conditions set forth herein. For
LIBOR Rate Loans in connection with which the Borrower has or may incur Hedging
Obligations, additional obligations may be associated with prepayment, in
accordance with the terms and conditions of the applicable Hedging Contracts.
The Borrower shall give the Lender, no later than 10:00 a.m., New York City
time, at least four (4) Business Days notice of any proposed prepayment of
any
LIBOR Rate Loans, specifying the proposed date of payment of such LIBOR Rate
Loans, and the principal amount to be paid. Each partial prepayment of the
principal amount of LIBOR Rate Loans shall be in an integral multiple of
$100,000 and accompanied by the payment of all charges outstanding on such
LIBOR
Rate Loans (including the LIBOR Breakage Fee) and of all accrued interest on
the
principal repaid to the date of payment.
3.3 LIBOR
Breakage Fee.
Upon:
(i) any default by Borrower in making any borrowing of, conversion into or
continuation of any LIBOR Rate Loan following Borrower’s delivery of a borrowing
request or continuation/conversion notice hereunder or (ii) any prepayment
of a
LIBOR Rate Loan on any day that is not the last day of the relevant LIBOR
Interest Period (regardless of the source of such prepayment and whether
voluntary, by acceleration or otherwise), the Borrower shall pay an amount
(“LIBOR Breakage Fee”), as calculated by the Lender, equal to the amount of any
losses, expenses and liabilities (including without limitation any loss of
margin and anticipated profits) that Lender may sustain as a result of such
default or payment. The Borrower understands, agrees and acknowledges that:
(i)
the Lender does not have any obligation to purchase, sell and/or match funds
in
connection with the use of the LIBOR Rate as a basis for calculating the rate
of
interest on a LIBOR Rate Loan, (ii) the LIBOR Rate may be used merely as a
reference in determining such rate, and (iii) the Borrower has accepted the
LIBOR Rate as a reasonable and fair basis for calculating the LIBOR Breakage
Fee
and other funding losses incurred by the Lender. Borrower further agrees to
pay
the LIBOR Breakage Fee and other funding losses, if any, whether or not the
Lender elects to purchase, sell and/or match funds.
9
3.4 Interest
Provisions.
Interest on the outstanding principal amount of each Revolving Advance, when
classified as a: (i) LIBOR Rate Loan, shall accrue during each LIBOR Interest
Period at a rate per annum equal to the sum of the Adjusted LIBOR Rate for
such
LIBOR Interest Period plus the LIBOR Rate Margin, and be due and payable on
each
Interest Payment Date and on the Expiration Date, and (ii) Prime Rate Loan,
shall accrue at a rate per annum equal to the sum of the Prime Rate plus the
Prime Rate Margin, and be due and payable on each Interest Payment Date and
on
the Expiration Date.
4. Miscellaneous
LIBOR Rate Loan Terms.
4.1 LIBOR
Rate Lending Unlawful.
If the
Lender shall determine (which determination shall, upon notice thereof to the
Borrower be conclusive and binding on the Borrower) that the introduction of
or
any change in or in the interpretation of any law, rule, regulation or
guideline, (whether or not having the force of law) makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
the Lender to make, continue or maintain any LIBOR Rate Loan as, or to convert
any Revolving Advance into, a LIBOR Rate Loan of a certain duration, the
obligations of the Lender to make, continue, maintain or convert into any such
LIBOR Rate Loans shall, upon such determination, forthwith be suspended until
the Lender shall notify the Borrower that the circumstances causing such
suspension no longer exist, and all LIBOR Rate Loans of such type shall
automatically convert into Prime Rate Loans at the end of the then current
LIBOR
Interest Periods with respect thereto or sooner, if required by such law or
assertion.
4.2 Unavailability
of LIBOR Rate.
In the
event that Borrower shall have requested a LIBOR Rate Loan in accordance with
this Rider
A
and the
Lender, in its sole discretion, shall have determined that U.S. dollar deposits
in the relevant amount and for the relevant LIBOR Interest Period are not
available to the Lender in the London inter-bank market; or by reason of
circumstances affecting the Lender in the London inter-bank market, adequate
and
reasonable means do not exist for ascertaining the LIBOR Rate applicable to
the
relevant LIBOR Interest Period; or the LIBOR Rate no longer adequately and
fairly reflects the Lender’s cost of funding Revolving Advances; upon notice
from the Lender to the Borrower, the obligations of the Lender under the Note
or
the Loan Agreement (as defined in the Note) to make or continue any Revolving
Advance as, or to convert any Revolving Advance into, LIBOR Rate Loans of such
duration shall forthwith be suspended until the Lender shall notify the Borrower
that the circumstances causing such suspension no longer exist.
4.3 Increased
Costs.
If, on
or after the date hereof, the adoption of any applicable law, rule or regulation
or guideline (whether or not having the force of law), or any change therein,
or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation
or
administration thereof, or compliance by the Lender with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency: (a) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System of the United States) against assets of, deposits with
or
for the account of, or credit extended by, the Lender or shall impose on the
Lender or on the London interbank market any other condition affecting its
LIBOR
Rate Loans or its obligation to make LIBOR Rate Loans; or (b) shall impose
on
the Lender any other condition affecting its LIBOR Rate Loans or its obligation
to make LIBOR Rate Loans, and the result of any of the foregoing is to increase
the cost to the Lender of making or maintaining any LIBOR Rate Loan, or to
reduce the amount of any sum received or receivable by the Lender under this
agreement with respect thereto, by an amount deemed by the Lender to be
material, then, within 15 days after demand by the Lender, the Borrower shall
pay to the Lender such additional amount or amounts as will compensate the
Lender for such increased cost or reduction.
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4.4 Increased
Capital Costs.
If any
change in, or the introduction, adoption, effectiveness, interpretation,
reinterpretation or phase-in of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any court,
central bank, regulator or other governmental authority affects or would affect
the amount of capital required or expected to be maintained by the Lender,
or
person controlling the Lender, and the Lender determines (in its sole and
absolute discretion) that the rate of return on its or such controlling person’s
capital as a consequence of its commitments or the loans made by the Lender
is
reduced to a level below that which the Lender or such controlling person could
have achieved but for the occurrence of any such circumstance, then, in any
such
case upon notice from time to time by the Lender to the Borrower, the Borrower
shall immediately pay directly to the Lender additional amounts sufficient
to
compensate the Lender or such controlling person for such reduction in rate
of
return. A statement of the Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence
of
manifest error, be conclusive and binding on the Borrower. In determining such
amount, the Lender may use any method of averaging and attribution that it
(in
its sole and absolute discretion) shall deem applicable.
4.5 Taxes.
All
payments by the Borrower of principal of, and interest on, LIBOR Rate Loans
and
all other amounts payable hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes
and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise taxes and
taxes imposed on or measured by the Lender’s net income or receipts (such
non-excluded items being called “Taxes”). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required
in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will:
|
(a)
|
pay
directly to the relevant authority the full amount required to be
so
withheld or deducted;
|
|
(b)
|
promptly
forward to the Lender an official receipt or other documentation
satisfactory to the Lender evidencing such payment to such authority;
and
|
|
(c)
|
pay
to the Lender such additional amount or amounts as is necessary to
ensure
that the net amount actually received by the Lender will equal the
full
amount the Lender would have received had no such withholding or
deduction
been required.
|
Moreover,
if any Taxes are directly asserted against the Lender with respect to any
payment received by the Lender hereunder, the Lender may pay such Taxes and
the
Borrower will promptly pay such additional amount (including any penalties,
interest or expenses) as is necessary in order that the net amount received
by
the Lender after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount the Lender would have received had
not
such Taxes been asserted. If the Borrower fails to pay any Taxes when due to
the
appropriate taxing authority or fails to remit to the Lender the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Lender for any incremental Taxes, interest or penalties that may become
payable by the Lender as a result of any such failure.
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