AMENDMENT NUMBER THREE TO LOAN AGREEMENT
This Amendment Number Three to Loan Agreement (the
"Amendment") is made as of the 29th day of October, 1999, by and
between DATARAM CORPORATION, a New Jersey corporation, having an
address at Route 000, Xxxxxxxxx Xxxx, Xxxx Xxxxxxx Xxxxxxxx, Xxx
Xxxxxx (the "Borrower") and FIRST UNION NATIONAL BANK, successor
by merger to CoreStates Bank, N.A., successor by merger to New
Jersey National Bank, having an address at 000 Xxxxxx Xxxx, Xxxx
Xxxxxxx, Xxx Xxxxxx 00000 (the "Bank").
BACKGROUND
WHEREAS, the Borrower and the Bank entered into a certain
Loan Agreement dated October 27, 1994 (the "Loan Agreement"), as
amended by Amendment Number One to Loan Agreement dated November
1, 1996, by the Letter Agreement dated October 22, 1997, and by
Amendment Number Two to Loan Agreement dated October 26, 1998
(the Loan Agreement, as amended through the date hereof is
referred to herein as the "Agreement");
WHEREAS, the Borrower and the Bank have agreed to further
amend the Agreement to maintain the amount of the Revolver Credit
Advance Limit at $12,000,000 until October 31, 2000, then
decrease the amount of the Revolver Credit Advance Limit to
$6,000,000 from November 1, 2000, extend the Revolving Credit
Maturity Date to October 31, 2001, and amend and modify the
Agreement as hereinafter set forth.
WHEREAS, all capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned to them in the
Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. The Revolving Credit Maturity Date is hereby extended to
October 31, 2001. To that end, the definition of Revolving
Credit Maturity Date contained in Section 1.02 of the Agreement
is hereby amended to read in its entirety as follows:
"Revolving Credit Maturity Date" means October 31, 2001.
2. The amount of the Revolver Credit Advance Limit is
maintained at $12,000,000 from November 1, 1999 until October 31,
2000, then decreased to $6,000,000 on November 1, 2000 until the
Revolver Credit Maturity Date. To that end, the definition of
Revolving Credit Advance Limit contained in Section 1.02 of the
Agreement is hereby amended to read in its entirety as follows:
"Revolving Credit Advance Limit" means the sum of Twelve
Million Dollars ($12,000,000) through October 31, 2000 and
the sum of Six Million Dollars ($6,000,000) from November 1,
2000 until the Revolving Credit Maturity Date.
3. Section 6.26 of the Agreement is hereby amended to read in
its entirety as follows:
6.26. Tangible Net Worth. The Borrower shall maintain at
all times Tangible Net Worth of not less than $16,000,000.
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4. The Borrower shall execute and deliver to the Bank a
replacement revolver note of the Borrower in substantially the
form attached as Exhibit A-1 (the "Third Replacement Revolver
Note") to evidence the indebtedness of the Borrower for the
Revolving Credit Advances by the Bank. The Third Replacement
Revolver Note shall replace and supercede the Revolver Note of
the Borrower to the Bank dated October 27, 1994, the Replacement
Revolver Note of the Borrower to the Bank dated November 1, 1996
and the Second Replacement Revolver Note of the Borrower to the
Bank dated October 26, 1996 [which should have been dated 1998]
(collectively, the "Original Notes"), but shall not extinguish
the Borrower's unconditional obligation to repay the indebtedness
evidenced by the Original Notes. All references in the Agreement
to the Revolver Note shall henceforth be deemed to refer to the
Third Replacement Revolver Note.
5. The effectiveness of this Amendment is conditioned upon
the Bank's receipt of the following documents:
(A) This Amendment Number Three to Loan Agreement;
(B) Third Replacement Revolver Note; and
(C) Certified Resolutions of the Board of Directors of
the Borrowers authorizing the execution of this
Amendment.
6. Representations and Warranties. In order to induce the
Bank to enter into this Amendment, the Borrower makes the
following representations and warranties to the Bank, which shall
survive the execution and delivery hereof:
(1) It is a corporation duly incorporated and validly
existing and in good standing under the laws of the jurisdiction
of its incorporation and has the corporate power to execute,
deliver and perform its obligations under the Agreement as
amended by this Amendment;
(2) The execution and delivery of this Amendment has
been authorized by all necessary corporate action on its part,
this Amendment has been duly executed and delivered by it; and
this Amendment and the Agreement, as amended hereby, constitutes
the legal, valid and binding obligations of it enforceable
against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization and other laws affecting
creditors' rights generally, moratorium laws from time to time
in effect and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law);
(3) Neither the execution and delivery of this
Amendment, nor the consummation by the Borrower of the
transactions herein contemplated, nor compliance with the terms,
conditions and provisions hereof will conflict with or result in
a breach of any of the terms, conditions or provisions of (i) its
Articles or Certificate of Incorporation or By-Laws; (ii) any
other agreement or instrument to which it is now a party or by
which it or its property is, or may be, bound, or constitute a
default thereunder, or result thereunder in the creation or
imposition of any security interest, mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of its properties
or assets; or (iii) any judgment or order, writ, injunction or
decree of any court to which it is subject;
(4) No action of, or filing with, any governmental or
public body or authority is required to authorize, or is
otherwise required in connection with the execution, delivery and
performance of this Amendment;
(5) No Event of Default has occurred and is continuing
under the Agreement, and no event has occurred which, with
notice, lapse of time or both, would constitute such an Event of
Default; and
(6) The representations and warranties set forth in the
Agreement and the other Loan Documents are true and correct as of
the date hereof in all material respects (as updated to reflect
Borrower's most recent financial statements).
7. Full Force and Effect. The parties hereto acknowledge and
agree that this Amendment is incorporated into and made a part of
the Agreement and the other Loan Documents, the terms and
provisions of which, unless expressly modified herein, or unless
no longer applicable by their terms, continue unchanged and in
full force and effect. To the extent that any term or provision
in the Amendment is or may be deemed expressly inconsistent with
any term or provision in the Agreement and the other Loan
Documents, the terms and provisions hereof shall control. This
Amendment is limited as written and shall not be deemed (i) to be
an amendment of or a consent under or waiver of any other term or
condition of the Agreement or (ii) to prejudice any right or
rights which the Bank now has or may have in the future under or
in connection with the Agreement or the other Loan Documents.
8. Security Interests. It is agreed and confirmed that after
giving effect to this Amendment, the security interests granted
by the Borrower pursuant to the Security Agreement and the other
Loan Documents secure, inter alia, the payment of the obligations
arising under the Agreement, as amended by this Amendment.
9. Indemnity. Borrower agrees to indemnify Bank from and
against any and all claims, losses and liabilities growing out
of or resulting from this Amendment.
10. Year 2000 Compatibility. Borrower shall take all action
necessary to assure that Borrower's computer based systems are
able to operate and effectively process date including dates on
and after January 1, 2000. At the request of Bank, Borrower
shall provide Bank assurance acceptable to Bank of Borrower's
Year 2000 Compatibility.
11. Miscellaneous.
(1) Headings. The section headings contained in this
Amendment are included for convenience of reference only and
shall not be used to interpret any provision of this Amendment.
(2) Governing Law. The laws of the State of New Jersey
shall govern the construction of this Amendment and the rights
and remedies of the parties thereto. The provisions hereof are
severable and the validity or unenforceability of any provision
shall not effect or impair the remaining provisions which shall
continue in full force and effect. This Amendment shall bind the
parties hereto and their respective successors and assigns.
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(3) Modifications. No modification hereof or any
agreement referred to herein shall be binding or enforceable
unless in writing and signed on behalf of the party against whom
enforcement is sought.
(4) Third Parties. No rights are intended to be created
hereunder for the benefit of any third party, creditor or
incidental beneficiary.
(5) Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be
deemed to be an original, and all which when taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused the Amendment to
be executed as of the date first above written.
ATTEST: DATARAM CORPORATION,
A New Jersey corporation
By:_________________________ By:______________________________
_________________________ ______________________________
Print Name and Title Print Name and Title
FIRST UNION NATIONAL BANK
By:______________________________
______________________________
Print Name and Title
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EXHIBIT A-1
THIRD
REPLACEMENT
REVOLVER NOTE
$12,000,000.00 West Windsor, New Jersey
October 29, 1999
FOR VALUE RECEIVED, DATARAM CORPORATION, a New Jersey
corporation, having an address at Xxxxx 000, Xxxxxxxxx Xxxx, Xxxx
Xxxxxxx Township, New Jersey 08543 ("Borrower"), promises to pay
the order of FIRST UNION NATIONAL BANK, successor by merger to
CoreStates Bank, N.A., successor by merger to New Jersey National
Bank, a national banking association, having its principal office
at 000 Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000 ("Bank"), at
its offices or at such other address as may hereafter be
specified by Bank, in lawful money of the United States of
America, the principal sum of TWELVE MILLION DOLLARS
($12,000,000.00), or the aggregate unpaid principal amount of all
Revolving Credit Advances (as defined in the Loan Agreement,
hereinafter referred to) made to the Borrower by the Bank (the
"Loan") pursuant to the Loan Agreement, together with interest
thereon at the rate or rates and in the installments and at the
times hereinafter provided.
1. Definitions. Whenever used in this Third Replacement
Revolver Note, the following words and phrases shall have the
respective meanings ascribed to them below.
(1) "Adjusted LIBOR Rate" - means the LIBOR Rate plus the
Applicable Margin.
(2) "Adjusted Prime Rate" - means the Prime Rate minus the
Applicable Margin.
(3) "Applicable Margin" - means, for Prime Rate Tranches
0.75% per annum and for LIBOR Tranches 1.00% per annum.
(4) "Bank" - as defined in the introductory paragraph
hereof.
(5) "Borrower" - as defined in the introductory paragraph
hereof.
(6) "Business Day" - means any day other than a Saturday,
Sunday, or other day on which commercial banks in New Jersey are
authorized or required to close under the laws of the State of
New Jersey.
(7) "Contract Right" - as defined in Section 7 hereof.
(8) "Default" - means and refers to any event, act or
occurrence, which with the passing of time or the giving of
notice or both, would constitute and Event of Default as defined
in the Loan Agreement.
(9) "Default Rate" - means and refers to any event, act or
occurrence, which with the passing of time or the giving of
notice or both, would constitute an Event of Default as defined
in the Loan Agreement.
(10) "Dollars" and "$" - mean lawful money of the United
States of America.
(11) "Effective Date" - means, for the Prime Rate Tranche,
the date on which a Prime Rate Interest Period commences,
pursuant to Section 3 hereof, for the LIBOR Tranche, the date
Borrower designates as the date on which a LIBOR Interest Period
is to commence pursuant to Section 3 hereof.
(12) "Event of Default" - shall mean and Event of Default
as defined in the Loan Agreement.
(13) "Indemnified Loss or Expense" - as defined in Section
4 hereof.
(14) "Interest Period" - means any period during which the
Interest Rate is the Adjusted Prime Rate, or any Adjusted LIBOR
Rate, or the Default Rate, as appropriate.
(15) "Interest Rate" - means the Adjusted LIBOR Rate and
the Adjusted Prime Rate, or the Default Rate, as appropriate.
(16) "LIBOR Interest Period" - for a LIBOR Tranche means,
initially, the period of time, beginning on an Effective Date and
ending one, two or three months thereafter, as selected by
Borrower-by telephone or in writing (and if by telephone,
confirmed by Borrower the same day by facsimile), during which
the Interest Rate for such LIBOR Tranche is the Adjusted LIBOR
Rate and thereafter, each period commencing on the last day of
the immediately preceding LIBOR Interest Period and ending one,
two or three months thereafter, as selected by Borrower-by
telephone or in writing (and if by telephone, confirmed by
Borrower the same day by facsimile), but in no event after the
Revolving Credit Maturity Date; subject, however, to the
following provisions: (i) if any LIBOR Interest Period would
otherwise end on a day which is not a Business Day, that LIBOR
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
LIBOR Interest Period into another calendar month, in which event
such LIBOR Interest Period shall end on the immediately preceding
Business Day; and (ii) any LIBOR Interest Period that begins on
the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month
at the end of such LIBOR Interest Period) shall end on the last
Business Day of a calendar month.
(17) "LIBOR Rate" - means, for each LIBOR Tranche, with
respect to each day during each LIBOR Interest Period, the rate
(rounded to the next higher 1/100 of 1%) for U.S. dollar deposits
for the relevant LIBOR Interest Period, as reported on Telerate
page 3750 as of 11:00 a.m., London time, on the second London
Business Day before the relevant LIBOR Interest Period begins (or
if not so reported, then as determined by the Bank from another
recognized source or interbank quotation), adjusted for reserves
by dividing that rate by 1.00 minus the LIBOR Reserve.
(18) "LIBOR Reserve" means the maximum percentage reserve
requirement (rounded to the next higher 1/100 of 1% and expressed
as a decimal) in effect for any day during the LIBOR Interest
Period under the Federal Reserve Board's Regulation D for
Eurocurrency liabilities as defined therein. Notwithstanding the
foregoing, if the Borrower has hedged the interest expense
incidental to any Loan accruing interest based upon the LIBOR
Rate by entering into an interest rate swap transaction pursuant
to a swap agreement, LIBOR Rate shall be rounded five decimal
places in accordance with the 1991 ISDA Definitions published by
the International Swaps and Derivatives Association, Inc.
(19) "LIBOR Tranche" - means each portion of the Loan to
which an Adjusted LIBOR Rate applies.
(20) "Loan" - as defined in the introductory paragraph
hereof.
(21) "Loan Agreement" - means the Loan Agreement dated
October 27, 1994, as amended by Amendment Number One to Loan
Agreement dated November 1, 1996, by the Letter Agreement dated
October 22, 1997, by Amendment Number Two to Loan Agreement dated
October 26, 1998, and as may be further amended, supplemented,
modified or extended from time to time.
(22) "Loan Documents" - means this Third Replacement
Revolver Note in the Principal amount of up to Twelve Million
Dollars ($12,000,000.00), the Loan Agreement and any and all
other documents executed by Borrower in connection with the Loan.
(23) "London Business Day" - means any Business Day on
which commercial banks, are open for international business
(including dealing in Dollar deposits) in London, England and New
Jersey.
(24) "Material Adverse Effect" - has the meaning given such
term in the Loan Agreement.
(25) "Maturity Date" - as defined in Section 3 hereof.
(26) "Operating Account" - has the meaning given to such
term in Section 3 hereof.
(27) "Person" - has the meaning given such term in the Loan
Agreement.
(28) "Prime Rate" - means for each day, the lending rate
set and announced by Bank from time to time for purposes of
fixing interest rates on various categories of loans which Bank
determines are to be tied to such Prime Rate. The Prime Rate is
not necessarily the lowest rate of interest which Bank charges
any of its customers.
(29) "Prime Rate Interest Period" - for a Prime Rate
Tranche, means a period of time beginning with an Effective Date,
of 365 days in length, selected by Borrower by telephone or in
writing (and if by telephone, confirmed by Borrower the same day
be facsimile) during which the Interest Rate for such
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Prime Rate Tranche is the Adjusted Prime Rate. If the Prime Rate
Interest Period would otherwise end on a day that is not a
Business Day, such Prime Rate Interest Period shall be extended
to the next business Day, unless such Business Day would fall
into the next calender month, in which event such Prime Rate
Interest Period shall end on the immediately preceding day.
(30) "Prime Rate Tranche" - means each proportion of the
Loan to which the Adjusted Prime Rate applies.
(31) "Regulation D" - means Regulation D of the Board of
Governors of the Federal Reserve System as amended or
supplemented from time to time.
2. Interest Rate
(1) The principal sum outstanding from time to time
hereunder shall bear interest from the date or dates advanced
until the date repaid at a rate equal to the Adjusted Prime Rate.
The Adjusted Prime Rate shall change simultaneously with each
change in the Prime Rate.
(2) Notwithstanding the foregoing, at any time up to that
date which is 90 days prior to the Maturity Date, provided no
Event of Default or Default has occurred, Borrower shall have the
option to fix the interest rate on portions of the Loan of TWO
HUNDRED THOUSAND DOLLARS ($200,000.00) or more, in a minimum of
TWO HUNDRED THOUSAND DOLLARS ($200,000.00) at the Adjusted LIBOR
Rate, subject to Bank's ability to secure such funds for such
periods.
(3) Borrower may exercise the option to have portions of
the Loan from time to time bear interest at the Adjusted LIBOR
Rate by giving bank written notice (which shall be irrevocable),
by telephone or in writing, by 10:00 A.M. at least two London
Business Days before each proposed LIBOR Tranche, specifying the
date and the amount of the proposed LIBOR Tranche and the length
of the proposed LIBOR Interest Period. Borrower will confirm any
telephonic notice of a proposed LIBOR Tranche the same day by
facsimile copy.
(4) The interest due on the Loan shall be payable as
provided in Section 3 below.
3. Interest and Principal Payments; Maturity Date.
(1) Prime Rate Loans. Borrower shall pay interest in
arrears on the unpaid principal amount of the Prime Rate Tranche,
from the date on which the Prime Rate Tranche is created until
such principal amount has been repaid in full, or converted to a
LIBOR Tranche, as the case may be, (1) every thirty (30) days
after the Effective Date of such Prime Rate Tranche and (2) on
the Maturity Date, at the Adjusted Prime Rate.
(2) Conversions to LIBOR Tranches. By notifying Bank at
least two (2) London Business Days prior to an Effective Date,
Borrower may convert into a LIBOR Tranche all or any all or any
part of any Prime Rate Tranche at any time in a minimum principal
amount of $200,000.00. At the end of the applicable LIBOR
Interest Period, the LIBOR Tranche will convert to a Prime Rate
Tranche unless Borrower notifies Bank at least (2) London
Business Bays before the end of the existing LIBOR Interest
Period that Borrower is electing to continue all or any part of
the Tranche as a LIBOR Tranche and is selecting a new LIBOR
Interest Period.
(3) LIBOR Tranches. Borrower shall pay interest in
arrears on the unpaid principal amount of each LIBOR Tranche at
the Adjusted LIBOR Rate for such LIBOR Tranche from the date on
which such LIBOR Tranche is created until such principal amount
has been paid in full, or converted to a Prime Rate Tranche, as
the case may be, (1) every 30 days after the Effective Date of
such LIBOR Tranche, and (2) on the Maturity Date at the Adjusted
LIBOR Rate.
(4) Principal Repayment. Borrower shall repay the
outstanding principal balance of the Loan, all accrued and unpaid
interest thereon and any other sums then outstanding hereunder or
under the Loan Documents on October 31, 2001 (the "Maturity
Date").
(5) Operating Account. Borrower covenants and agrees to
maintain an operating account with Bank at all times during which
any portion of the Loan remains outstanding (the "Operating
Account"). Borrower hereby authorizes Bank to charge the
Operating Account for all payments hereunder as they become due.
Borrower agrees to keep in the Operating Account sufficient
amount to make such payments as and when they come due. Bank's
failure to so charge the Operating Account in order to satisfy
Borrower's payment obligations hereunder shall not relieve
Borrower's obligations to make all such payments. In the event
that Borrower shall fail to maintain a sufficient balance in the
Operating Account to satisfy a payment obligation on the date
such payment becomes due, Borrower shall continue to be obligated
to make such payment and, if such payment is not made by Borrower
in some other manner on or before the date such payment becomes
due, such failure shall constitute an Event of Default hereunder.
All payments received by Bank from Borrower shall be applied in
the following order: (i) to the payment of fees and other costs
and expenses then due and owing from Borrower, (ii) to the
payment of accrued and unpaid interest then due, (iii) to the
payment of any outstanding principal hereunder.
(6) Interest Calculation. Both before and after any
default, interest shall be calculated on the basis of a 360 day
year but charged on the basis of the actual number of days
elapsed in any calender year or part thereof.
4. Prepayments.
(1) Borrower may repay the Prime Rate Tranches in whole or
in part at any time and from time to time in a minimum amount of
Two Hundred Thousand Dollars ($200,000.00).
(2) Borrower may, at any time, prepay the principal
balance of a LIBOR Rate Tranche in whole or in part; provided,
however, that Borrower shall indemnify Bank against Bank's loss
or expense in employing deposits as a consequence of any
prepayment of any LIBOR Rate Tranche on a date other than the
last day of the LIBOR Interest Period ("Indemnified Loss or
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Expense"). The amount of such Indemnified Loss or Expense shall
be determined by Bank based upon the assumption that Bank funded
100% of such LIBOR Rate Tranche in the London interbank market.
Any prepayment shall include accrued and unpaid interest to the
date of prepayment on the principal amount prepaid and all other
sums due and payable hereunder. Nothing herein shall be deemed
to alter or affect any obligations that Borrower may have to Bank
under any interest rate swap agreements. Borrower agrees to pay
the Indemnified Loss or Expense upon any prepayment of the LIBOR
Tranche, whether voluntary, required by Bank in connection with
any acceleration of the indebtedness hereunder upon the
occurrence of an Event of Default, or as otherwise required under
this Third Replacement Revolver Note. A determination of Bank as
to the amounts payable pursuant to this Section 4(B) shall be
conclusive absent manifest error.
5. Late Charges. If any installment of principal or interest
or both hereunder or other payment required to made by Borrower
under the other Loan Documents is not paid within ten (10) days
after becoming due, Borrower shall pay to Bank on demand a late
charge of five percent (5%) of such overdue amount to reimburse
Bank for the additional expenses to be incurred as a result of
such delinquency, but such late payment fee shall not obligate
Bank to accept any overdue payment hereunder nor limit the rights
and remedies available to Bank as a result of Borrower's default,
as hereinafter provided. The amount of any such late charge not
paid promptly following demand shall be deemed outstanding and
payable pursuant to this Third Replacement Revolver Note.
6. Event of Default. An Event of Default shall mean and Event
of Default as defined in the Loan Agreement.
7. Default Rate. Upon the occurrence of an Event of Default
hereunder, the interest rate otherwise payable hereunder (the
"Contract Rate") shall increase immediately and without notice
and thereafter shall be payable at a rate of three (3%) per annum
in excess of the Contract Rate (said higher rate is hereinafter
called the "Default Rate"), until the Event of Default has been
cured, or in the event the principal of this Third Replacement
Revolver Note has been accelerated, until this Third Replacement
Revolver Note is paid in full, including the period following
entry of any judgment on or relating to this Third Replacement
Revolver Note or the other Loan Documents. Interest on any such
judgment shall accrue and be payable at the Default Rate, and not
at the statutory rate of interest, after judgment, any execution
thereon, and until actual receipt by the holder of payment in
full of this Third Replacement Revolver Note and said judgment.
Interest at the Default Rate shall be collectible as part of any
judgment hereunder and shall be secured by the other Loan
Documents.
8. Remedies. Upon the occurrence of an Event of Default, the
Bank shall be entitled to exercise all remedies available to it
under the terms of the Loan Agreement.
9. Accounts. Borrower hereby covenants and agrees that while
the Loan is outstanding it will maintain all of its primary
operating accounts with the Bank.
10. Waivers by Borrower, Cumulative Remedies.
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(1) Borrower hereby waives presentment for payment,
demand, notice of non-payment, notice of protest and protest of
this Third Replacement Revolver Note. The Borrower hereby
consents to any and all extensions of time, renewals, waivers or
modifications that may be granted by the Bank with respect to the
payment or other provisions of this Third Replacement Revolver
Note, and agrees that additional obligors may become parties
hereto without notice to the Borrower without affecting the
Borrower's liability hereunder.
(2) Borrower hereby waives-the benefit of any laws which
now or hereinafter might otherwise authorize the stay of any
execution to be issued on any judgment covered on this Third
Replacement Revolver Note. Borrower hereby waives its right to
trial by jury in connection with a portion of this Third
Replacement Note, the Loan Agreement or any other Loan Document
and any legal proceeding arising hereunder or thereunder.
(3) No failure or delay on the part of the Bank in
exercising any right, power or privilege under this Third
Replacement Revolver Note and no course of dealing between the
Borrower and the Bank shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise of any
right, power or privilege that the Bank would otherwise have. No
notice to, or demand on, the Borrower in any case shall entitle
the Borrower to any other or further notice or demand in similar
or other circumstances would constitute a waiver of the right of
the Bank to any other or further action and any circumstances
without notice or demand.
11. Costs and Expenses. The Borrower agrees, in accordance
with the terms of the Loan Agreement, to pay all costs and
expenses of the Bank incurred in order to enforce any remedy
available to the Bank under this Third Replacement Revolver Note,
the Loan Agreement or any Loan Document.
12. Reimbursement to Bank for Increased Costs Due to Capital
Adequacy Requirements. If after the date hereof any change in
law or regulation or the interpretation thereof by any court of
administrative or governmental authority charged with the
administration thereof, or compliance by Bank with any request or
directive (whether or not having the force of law) of any such
authority, applicable from time to time now or after the date
hereof to Banks in general, shall (A) impose, modify, deem
applicable or result in the application of any capital
maintenance, capital ratio or similar requirements against loan
commitments or other facilities made by Bank and the result
thereof shall be to impose upon Bank a fee or a requirement to
increase any capital requirements applicable as a result of the
making or maintenance of the Loan (which imposition of or
increase in capital requirements may be determined by Bank's
reasonable allocation of the aggregate of such capital
impositions or increases), or (B) subject Bank to any tax, duty
or other charge with respect to the Loan, the Third Replacement
Revolver Note, or change the basis of taxation of payments to
Bank of the principal of or interest on the Loan or any other
amounts due under this Third Replacement Revolver Note, in
respect to of the Loan (except for changes in the rate of tax on
the overall net income of Bank imposed by any jurisdiction in
which Bank is obligated to pay taxes), then, upon demand by Bank,
Borrower shall immediately pay to Bank from time to time as
specified by Bank, such additional amounts or fees which shall be
sufficient to compensate Bank for
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such impositions of or increases in capital requirements or taxes
from the date of such change, together with interest on each such
amount from the date demanded until payment in full thereof at
the Default Rate with respect to amounts or fees not paid when
due. Upon the occurrence of any event referred to above, a
certificate setting forth in reasonable detail the amounts
necessary to compensate Bank as a result of an imposition of or
increase in capital requirements or taxes submitted by Bank to
Borrower shall be conclusive, absent manifest error or bad faith,
as to the amount thereof.
13. Special Provisions of LIBOR Tranches.
(1) Unavailability of Funds and Indeterminate Interest
Rates. If on or before the date Bank is to make any LIBOR
Tranche or on or before any Effective Date (1) Bank determines in
good faith that it is unable to obtain funds at the LIBOR Rate
for the elected Interest Period for any reason, including, but
not limited to the unavailability of funds at such rate, any
change in existing law, any new law, the length of such Interest
Period, or otherwise or (2) Bank determines in good faith that no
adequate means exists to determine the LIBOR Rate for such
Interest Period, then, at Bank's option, Borrower shall be deemed
to have requested a Prime Rate Tranche or shall be required to
elect an Interest Period of a length for which Bank may obtain
funds at the LIBOR Rate.
(2) Changes Affecting Ability to Maintain Funds. If,
during any Interest Period, any change in existing law, any new
law, or any other factor beyond the control of Bank prevents Bank
in its good faith determination from maintaining funds at the
rate of adjustment of which determines the LIBOR Rate for such
Interest Period and requires Bank to cease so maintaining funds
actually so maintained prior to termination of such Interest
Period, then on the date of such required cessation, Borrower
shall be required to specify a different Interest Rate for such
Interest Period or, in the alternative, to elect an Interest
Period of a length for which Bank may maintain funds at the rate
the adjustment of which determines the LIBOR Rate. In addition,
within five (5) days after Bank notifies Borrower of such
required conversion, Borrower shall reimburse Bank for any loss
or expense Bank has certified in writing to Borrower that Bank
has incurred as a result of any such required cessation.
14. Interest Limitation; Severability
(1) Nothing herein contained nor any transaction related
hereto shall be construed or shall operate either presently or
prospectively to require Borrower to pay interest at a rate
greater than is now lawful in such case to contract for, but
shall require payment of interest only to the extent of such
lawful rate. Any interest paid in excess of the lawful rate
shall be refunded to Borrower. Such refund shall be made by
application of the excessive amount of interest paid against any
sums outstanding hereunder, in which event any applicable
prepayment premium shall be waived with respect to the amount so
prepaid, and shall be applied in such order as Bank may
determine. If the excessive amount of interest paid exceeds the
sums outstanding hereunder, the portion exceeding the said sums
outstanding hereunder shall be refunded in cash by Bank. Any
such crediting or refund shall not cure or waive any default by
Borrower hereunder or under the other Loan Documents. Borrower
agrees,
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however, that in determining whether or not any interest payable
hereunder exceeds the highest rate permitted by law, any non-
principal amount (except payments specifically stated herein to
be "interest"), including, without limitation, late charges,
shall be deemed, to the extent permitted by law, to be an
expense, fee or indemnity rather than interest.
(2) In the event that for any reason one or more of the
provisions of this Third Replacement Revolver Note or their
application to any person or circumstance shall be held to be
invalid, illegal or unenforceable in any respect or to any
extent, such provisions shall, to such extent, be held for naught
as though not herein contained but shall nevertheless remain
valid, legal and enforceable in all such other respects and to
such extent as may be permissible. In addition, any such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Third Replacement Revolver Note, but
this Third Replacement Revolver Note shall be construed as if
such invalid, illegal or unenforceable provisions had never been
contained herein.
15. Notices. All notices, requests, demands or other
communications to or upon the Borrower or the Bank shall be
deemed to have been given or made when hand delivered or
deposited in the mail by certified mail, return receipt
requested, postage prepaid, addressed to the Borrower or the
Bank, as the case may be, at their respective addresses as the
Borrower or the Bank may hereafter specify in writing to the
other, except that any communication with respect to a change of
address shall be deemed to be given or made when received by the
Borrower or the Bank to whom such communication was sent.
16. Successors and Assigns. This Third Replacement Revolver
Note is binding upon the Borrower and its successors and assigns
except that Borrower shall not have the right to assign its
rights or obligations hereunder or any interest herein.
17. Amendment. This Third Replacement Revolver Note may not be
charged orally, but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change modification
or discharge is sought.
18. Governing Law. This Third Replacement Revolver Note has
been executed and delivered in the State of New Jersey and shall
be construed and enforced in accordance with the laws of the Stat
of New Jersey.
19. Captions. The captions or headings of the sections in this
Third Replacement Revolver Note are for convenience only and
shall not control or effect the meaning or construction of any
term or provision of this Third Replacement Revolver Note.
20. Replacement Note. This Third Replacement Revolver Note is a
modification and replacement of a certain Revolver Note of the
Borrower to the Bank dated October 27, 1994, the Replacement
Revolver Note of the Borrower to the Bank dated November 1, 1996
and the Second Replacement Revolver Note of the Borrower to the
Bank dated October 26, 1996 [which should have been dated 1998]
(collectively, the "Original Notes"). The indebtedness that is
evidenced by this Third Replacement Revolver Note represents in
part the same indebtedness as that evidenced by the Original
Notes, and this Third Replacement Revolver Note shall not in any
way whatsoever constitute a cancellation or novation with respect
to the indebtedness evidenced by the Original Notes.
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IN WITNESS WHEREOF, the Borrower has executed this Third
Replacement Revolver Note as of the date and year first above
written.
ATTEST: DATARAM CORPORATION,
a New Jersey corporation
By:___________________________ By:___________________________
___________________________ ___________________________
Print Name and Title Print Name and Title
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SCHEDULE TO THIRD REPLACEMENT REVOLVER NOTE
Unpaid
Principal
Amount of Balance of Name of
Amount of Principal Revolving Person Making
Date Loan Prepaid Credit Note Notation
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
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