Committed Line Of Credit Note
Exhibit 4.1
| $7,500,000.00 | May 5, 2010 |
FOR VALUE RECEIVED, BIOCLINICA, INC. and OXFORD BIO-IMAGING RESEARCH, INC. (jointly and
severally, individually and collectively, the “Borrower”), with an address at 000 Xxxxxxx-Xxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, promises to pay to the order of PNC BANK, NATIONAL ASSOCIATION
(the “Bank”), in lawful money of the United States of America in immediately available funds at its
offices located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such other location
as the Bank may designate from time to time, the principal sum of SEVEN MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($7,500,000.00) (the “Facility”) or such lesser amount as may be
advanced to or for the benefit of the Borrower hereunder, together with interest accruing on the
outstanding principal balance from the date hereof, all as provided below.
1. Advances. The Borrower may request advances, repay and request additional advances
hereunder and request the issuance of letters of credit for the account of the Borrower (the
“Letters of Credit”) until the Expiration Date, subject to the terms and conditions of this Note
and the Loan Documents (as hereinafter defined); provided, however, that the total
amount of outstanding Letters of Credit issued hereunder (in the Bank’s sole discretion and subject
to documentation reasonably satisfactory to the Bank) shall not exceed $2,000,000.00. Each payment
by the Bank under a Letter of Credit shall in the Bank’s discretion constitute an advance of
principal hereunder and shall be evidenced by this Note. (This is not a pre-advice for the
issuance of a letter of credit and is not irrevocable.) Unless approved by the Bank, no Letter of
Credit shall have an expiry date beyond eighteen (18) months after the Expiration Date. The
“Expiration Date” shall mean May 4, 2012, or such later date as may be designated by the Bank by
written notice from the Bank to the Borrower. The Borrower acknowledges and agrees that in no
event will the Bank be under any obligation to extend or renew the Facility or this Note beyond the
Expiration Date. The Borrower may request advances hereunder upon giving oral or written notice to
the Bank by 11:00 a.m. (Pittsburgh, Pennsylvania time) (a) on the day of the proposed advance, in
the case of advances to bear interest based upon the Base Rate or under the Daily LIBOR Option (as
hereinafter defined) and (b) three (3) Business Days prior to the proposed advance, in the case of
advances to bear interest under the LIBOR Option (as hereinafter defined), followed promptly
thereafter by the Borrower’s written confirmation to the Bank of any oral notice. The aggregate
unpaid principal amount of advances under this Note shall not exceed the face amount of this
Note.
2. Rate of Interest. Each advance outstanding under this Note will bear interest at a
rate or rates per annum as may be selected by the Borrower from the interest rate options set forth
below (each, an “Option”):
(i) LIBOR Option. A rate per annum equal to (A) LIBOR plus (B) ) the LIBOR
Rate Margin set forth on Annex A attached hereto, for the applicable LIBOR Interest Period.
(ii) Daily LIBOR Option. A rate per annum equal to (A) the Daily LIBOR Rate
plus (B) the LIBOR Rate Margin set forth on Annex A attached hereto. There are no required
minimum interest periods for advances bearing interest under the Daily Libor Option.
For purposes hereof, the following terms shall have the following meanings:
“Base Rate” shall mean the highest of (A) the Prime Rate, and (B) the sum of the Federal
Funds Open Rate plus fifty (50) basis points (0.50%).
“Business Day” shall mean any day other than a Saturday or Sunday or a legal holiday on
which commercial banks are authorized or required by law to be closed for business in
Philadelphia, Pennsylvania.
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“Daily LIBOR Rate” shall mean, for any day, the rate per annum determined by the Bank by
dividing (x) the Published Rate by (y) a number equal to 1.00 minus the LIBOR
Reserve Percentage.
“Federal Funds Open Rate” shall mean, for any day, the rate per annum (based on a year of
360 days and actual days elapsed) which is the daily federal funds open rate as quoted by
ICAP North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for
that day opposite the caption “OPEN” (or on such other substitute Bloomberg Screen that
displays such rate), or as set forth on such other recognized electronic source used for the
purpose of displaying such rate as selected by the Bank (an “Alternate Source”) (or if such
rate for such day does not appear on the Bloomberg Screen BTMM (or any substitute screen) or
on any Alternate Source, or if there shall at any time, for any reason, no longer exist a
Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a comparable
replacement rate determined by the Bank at such time (which determination shall be
conclusive absent manifest error); provided however, that if such day is not a Business Day,
the Federal Funds Open Rate for such day shall be the “open” rate on the immediately
preceding Business Day. The rate of interest charged shall be adjusted as of each Business
Day based on changes in the Federal Funds Open Rate without notice to the Borrower.
“LIBOR” shall mean, with respect to any advance to which the LIBOR Option applies for the
applicable LIBOR Interest Period, the interest rate per annum determined by the Bank by
dividing (the resulting quotient rounded upwards, at the Bank’s discretion, to the nearest
1/100th of 1%) (i) the rate of interest determined by the Bank in accordance with its usual
procedures (which determination shall be conclusive absent manifest error) to be the
eurodollar rate two (2) Business Days prior to the first day of such LIBOR Interest Period
for an amount comparable to such advance and having a borrowing date and a maturity
comparable to such LIBOR Interest Period by (ii) a number equal to 1.00 minus the LIBOR
Reserve Percentage.
“LIBOR Interest Period” shall mean, as to any advance to which the LIBOR Option applies, the
period of one (1), two (2), three (3) or six (6) months as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may be, commencing on the date of
disbursement of an advance (or the date of conversion of an advance to the LIBOR Option, as
the case may be) and each successive period selected by the Borrower thereafter;
provided that, (i) if a LIBOR Interest Period would end on a day which is
not a Business Day, it shall end on the next succeeding Business Day unless such day falls
in the next succeeding calendar month in which case the LIBOR Interest Period shall end on
the next preceding Business Day, (ii) the Borrower may not select a LIBOR Interest Period
that would end on a day after the Expiration Date, and (iii) any LIBOR Interest Period that
begins on the last Business Day of a calendar month (or a day for which there is no
numerically corresponding day in the last calendar month of such LIBOR Interest Period)
shall end on the last Business Day of the last calendar month of such LIBOR Interest Period.
“LIBOR Reserve Percentage” shall mean the maximum effective percentage in effect on such day
as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without limitation, supplemental, marginal
and emergency reserve requirements) with respect to eurocurrency funding (currently referred
to as “Eurocurrency liabilities”).
“Prime Rate” shall mean the rate publicly announced by the Bank from time to time as its
prime rate. The Prime Rate is determined from time to time by the Bank as a means of
pricing some loans to its borrowers. The Prime Rate is not tied to any external rate of
interest or index, and does not necessarily reflect the lowest rate of interest actually
charged by the Bank to any particular class or category of customers.
“Published Rate” shall mean the rate of interest published each Business Day in the Wall
Street Journal “Money Rates” listing under the caption “London Interbank Offered Rates” for
a one month period (or, if
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no such rate is published therein for any reason, then the Published Rate shall be the
eurodollar rate for a one month period as published in another publication selected by the
Bank).
LIBOR and the Daily LIBOR Rate shall be adjusted with respect to any advance on and as of the
effective date of any change in the LIBOR Reserve Percentage. The Bank shall give prompt notice to
the Borrower of LIBOR or the Daily LIBOR Rate as determined or adjusted in accordance herewith,
which determination shall be conclusive absent manifest error.
If the Bank determines (which determination shall be final and conclusive) that, by reason of
circumstances affecting the eurodollar market generally, deposits in dollars (in the applicable
amounts) are not being offered to banks in the eurodollar market for the selected term, or adequate
means do not exist for ascertaining the Daily LIBOR Rate or LIBOR, then the Bank shall give notice
thereof to the Borrower. Thereafter, until the Bank notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, (a) the availability of the Daily LIBOR Option and
the LIBOR Option shall be suspended, (b) the interest rate for all advances then bearing interest
under the Daily LIBOR Option shall be converted on the next Business Day to a rate of interest per
annum which is at all times equal to the Applicable Base Rate; and (c) the interest rate for all
advances bearing interest under the LIBOR Option shall be converted at the expiration of the then
current LIBOR Interest Period(s) to the Applicable Base Rate. As used herein, the term “Applicable
Base Rate” shall mean the Base Rate plus the Base Rate Margin set forth on Annex A attached
hereto. If and when the Base Rate (or any component thereof) changes, the Applicable Base Rate
will change automatically without notice to the Borrower, effective on the date of any such change.
There are no required minimum interest periods for advances bearing interest under the Applicable
Base Rate.
In addition, if, after the date of this Note, the Bank shall determine (which determination shall
be final and conclusive) that any enactment, promulgation or adoption of or any change in any
applicable law, rule or regulation, or any change in the interpretation or administration thereof
by a governmental authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any guideline, request or directive (whether
or not having the force of law) of any such authority, central bank or comparable agency shall make
it unlawful or impossible for the Bank to make or maintain or fund loans based on the Daily LIBOR
Rate or LIBOR, the Bank shall notify the Borrower. Upon receipt of such notice, until the Bank
notifies the Borrower that the circumstances giving rise to such determination no longer apply, (a)
the availability of the Daily LIBOR Option and the LIBOR Option shall be suspended, (b) the
interest rate on all advances then bearing interest under the Daily LIBOR Option shall be converted
on the next Business Day to the Applicable Base Rate, and (c) the interest rate on all advances
bearing interest under the LIBOR Option shall be converted to the Applicable Base Rate either (i)
on the last day of the then current LIBOR Interest Period(s) if the Bank may lawfully continue to
maintain advances based on LIBOR to such day, or (ii) immediately if the Bank may not lawfully
continue to maintain advances based on LIBOR.
The foregoing notwithstanding, it is understood that the Borrower may select different Options to
apply simultaneously to different portions of the advances and may select up to three (3) different
interest periods to apply simultaneously to different portions of the advances bearing interest
under the LIBOR Option. Interest hereunder will be calculated based on the actual number of days
that principal is outstanding over a year of 360 days. In no event will the rate of interest
hereunder exceed the maximum rate allowed by law.
3. Interest Rate Election. Subject to the terms and conditions of this Note, at the end of
each interest period applicable to any advance, the Borrower may renew the Option applicable to
such advance or convert such advance to a different Option; provided that, during
any period in which any Event of Default (as hereinafter defined) has occurred and is continuing,
(i) any advances bearing interest under the Daily LIBOR Option shall, at the Bank’s sole
discretion, be converted on the next Business Day to the Applicable Base Rate, (ii) any advances
bearing interest under the LIBOR Option shall, at the Bank’s sole discretion, be converted at the
end of the applicable LIBOR Interest Period to the Applicable Base Rate, and (iii) the Daily LIBOR
Option and the LIBOR Option will not be available to Borrower with respect to any new advances (or
with respect to the conversion or renewal of any existing advances) until such Event of Default has
been cured by the Borrower or waived by the Bank. The Borrower shall notify the Bank of each
election of an Option, each conversion from one Option to
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another, the amount of the advances then outstanding to be allocated to each Option and where
relevant the interest periods therefor. In the case of converting to the LIBOR Option, such notice
shall be given at least three (3) Business Days prior to the commencement of any LIBOR Interest
Period. If no interest period is specified in any such notice for which the resulting advance is
to bear interest under the LIBOR Option, the Borrower shall be deemed to have selected a LIBOR
Interest Period of one month’s duration. If no notice of election, conversion or renewal is timely
received by the Bank with respect to any advance, the Borrower shall be deemed to have elected the
Daily LIBOR Option. Any such election shall be promptly confirmed in writing by such method as the
Bank may require.
4. Advance Procedures. A request for advance made by telephone must be promptly confirmed
in writing by such method as the Bank may require. The Borrower authorizes the Bank to accept
telephonic requests for advances, and the Bank shall be entitled to rely upon the authority of any
person providing such instructions who the Bank reasonably believes is so authorized. Borrower
hereby indemnifies and holds the Bank harmless from and against any and all damages, losses,
liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) which may arise
or be created by the acceptance of such telephone requests or making such advances. The Bank will
enter on its books and records, which entry when made will be presumed correct, the date and amount
of each advance, the interest rate and interest period applicable thereto, as well as the date and
amount of each payment.
5. Payment Terms. The Borrower shall pay accrued interest on the unpaid principal balance
of this Note in arrears: (a) for the portion of advances bearing interest at the Base Rate or under
the Daily LIBOR Option, on the first day of each month during the term hereof, (b) for the portion
of advances bearing interest under the LIBOR Option, on the last day of the respective LIBOR
Interest Period for such advance, (c) if any LIBOR Interest Period is longer than three (3) months,
then also on the three (3) month anniversary of such interest period and every three (3) months
thereafter, and (d) for all advances, at maturity, whether by acceleration of this Note or
otherwise, and after maturity, on demand until paid in full. All outstanding principal and accrued
interest hereunder shall be due and payable in full on the Expiration Date.
If any payment under this Note shall become due on a Saturday, Sunday or public holiday under the
laws of the State where the Bank’s office indicated above is located, such payment shall be made on
the next succeeding Business Day and such extension of time shall be included in computing interest
in connection with such payment. The Borrower hereby authorizes the Bank to charge the Borrower’s
deposit account at the Bank for any payment when due hereunder. Payments received will be applied
to charges, fees and expenses (including attorneys’ fees), accrued interest and principal [in any
order the Bank may choose, in its sole discretion].
6. Late Payments; Default Rate. If the Borrower fails to make any payment of principal,
interest or other amount coming due pursuant to the provisions of this Note within fifteen (15)
calendar days of the date due and payable, the Borrower also shall pay to the Bank a late charge
equal to the lesser of five percent (5%) of the amount of such payment or $100.00 (the “Late
Charge”). Such fifteen (15) day period shall not be construed in any way to extend the due date of
any such payment. Upon maturity, whether by acceleration, demand or otherwise, and at the Bank’s
option upon the occurrence of any Event of Default (as hereinafter defined) and during the
continuance thereof, each advance outstanding under this Note shall bear interest at a rate per
annum (based on the actual number of days that principal is outstanding over a year of 360 days)
which shall be three percentage points (3%) in excess of the interest rate in effect from time to
time under this Note but not more than the maximum rate allowed by law (the “Default Rate”). The
Default Rate shall continue to apply whether or not judgment shall be entered on this Note. Both
the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying
the Bank’s expenses incident to the handling of delinquent payments, but are in addition to, and
not in lieu of, the Bank’s exercise of any rights and remedies hereunder, under the other Loan
Documents or under applicable law, and any fees and expenses of any agents or attorneys which the
Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of
carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are
reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and
that the actual harm incurred by the Bank cannot be estimated with certainty and without
difficulty.
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7. Prepayment. The Borrower shall have the right to prepay any advance hereunder at any
time and from time to time, in whole or in part; subject, however, to payment of any break funding
indemnification amounts owing pursuant to paragraph 8 below.
8. Yield Protection; Break Funding Indemnification. The Borrower shall pay to the Bank on
written demand therefor, together with the written evidence of the justification therefor, all
direct costs incurred, losses suffered or payments made by Bank by reason of any change in law or
regulation or its interpretation imposing any reserve, deposit, allocation of capital, or similar
requirement (including without limitation, Regulation D of the Board of Governors of the Federal
Reserve System) on the Bank, its holding company or any of their respective assets. In addition,
the Borrower agrees to indemnify the Bank against any liabilities, losses or expenses (including,
without limitation, loss of margin, any loss or expense sustained or incurred in liquidating or
employing deposits from third parties, and any loss or expense incurred in connection with funds
acquired to effect, fund or maintain any advance (or any part thereof) bearing interest under the
LIBOR Option) which the Bank sustains or incurs as a consequence of either (i) the Borrower’s
failure to make a payment on the due date thereof, (ii) the Borrower’s revocation (expressly, by
later inconsistent notices or otherwise) in whole or in part of any notice given to Bank to
request, convert, renew or prepay any advance bearing interest under the LIBOR Option, or (iii) the
Borrower’s payment or prepayment (whether voluntary, after acceleration of the maturity of this
Note or otherwise) or conversion of any advance bearing interest under the LIBOR Option on a day
other than the last day of the applicable LIBOR Interest Period. A notice as to any amounts payable
pursuant to this paragraph given to the Borrower by the Bank shall, in the absence of manifest
error, be conclusive and shall be payable upon demand. The Borrower’s indemnification obligations
hereunder shall survive the payment in full of the advances and all other amounts payable
hereunder.
9. Other Loan Documents. This Note is issued in connection with a letter agreement or loan
agreement between the Borrower and the Bank, dated on or before the date hereof, and the other
agreements and documents executed and/or delivered in connection therewith or referred to therein,
the terms of which are incorporated herein by reference (as amended, modified or renewed from time
to time, collectively the “Loan Documents”), and is secured by the property (if any) described in
the Loan Documents and by such other collateral as previously may have been or may in the future be
granted to the Bank to secure this Note.
10. Events of Default. The occurrence of any of the following events will be deemed to be
an “Event of Default” under this Note: (i) the nonpayment of any principal, interest or other
indebtedness under this Note within five (5) days after the date due; (ii) the occurrence of any
event of default or any default and the lapse of any notice or cure period, or any Obligor’s
failure to observe or perform any covenant or other agreement, under or contained in any Loan
Document or any other document now or in the future evidencing or securing any debt, liability or
obligation of any Obligor to the Bank and such failure continues for a period of fifteen (15) days;
(iii) the filing by or against any Obligor of any proceeding in bankruptcy, receivership,
insolvency, reorganization, liquidation, conservatorship or similar proceeding (and, in the case of
any such proceeding instituted against any Obligor, such proceeding is not dismissed or stayed
within 60 days of the commencement thereof, provided that the Bank shall not be obligated to
advance additional funds hereunder during such period); (iv) any assignment by any Obligor for the
benefit of creditors, or any levy, garnishment, attachment or similar proceeding is instituted
against any property of any Obligor held by or deposited with the Bank; (v) a default with respect
to any other indebtedness of any Obligor for borrowed money in an amount of at least $500,000, if
the effect of such default is to cause or permit the acceleration of such debt; (vi) the
commencement of any foreclosure or forfeiture proceeding, execution or attachment against any
collateral securing the obligations of any Obligor to the Bank; (vii) the entry of one or more
final nonappealable judgments, with all remedies exhausted, against any Obligor in excess of
$100,000 individually or in the aggregate, and the failure of such Obligor to discharge the
judgments within thirty (30) days of the entry thereof; (viii) any material adverse change in
Borrower’s business, assets, operations, financial condition or results of operations; (ix)
Borrower ceases doing business as a going concern; (x) any representation or warranty made by any
Obligor to the Bank in any Loan Document or any other documents now or in the future evidencing or
securing the obligations of any Obligor to the Bank is false, erroneous or misleading in any
material respect; or (xi) the revocation or attempted revocation, in whole or in part, of any
guarantee by any Obligor. As used herein, the term “Obligor” means any Borrower and any
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guarantor of, or any pledgor, mortgagor or other person or entity providing collateral support for,
the Borrower’s obligations to the Bank existing on the date of this Note or arising in the future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no further obligation to
make advances hereunder; (b) if an Event of Default specified in clause (iii) or (iv) above shall
occur, the outstanding principal balance and accrued interest hereunder together with any
additional amounts payable hereunder shall be immediately due and payable without demand or notice
of any kind; (c) if any other Event of Default shall occur, the outstanding principal balance and
accrued interest hereunder together with any additional amounts payable hereunder, at the Bank’s
option and without demand or notice of any kind, may be accelerated and become immediately due and
payable; (d) at the Bank’s option, this Note will bear interest at the Default Rate from the date
of the occurrence of the Event of Default; and (e) the Bank may exercise from time to time any of
the rights and remedies available under the Loan Documents or under applicable law.
11. Power to Confess Judgment. The Borrower hereby empowers any attorney of any court of
record, after the occurrence of any Event of Default hereunder, to appear for the Borrower and,
with or without complaint filed, confess judgment, or a series of judgments, against the Borrower
in favor of the Bank or any holder hereof for the entire principal balance of this Note, all
accrued interest and all other amounts due hereunder, together with costs of suit and an attorney’s
commission of the greater of 10% of such principal and interest or $1,000 added as a reasonable
attorney’s fee, and for doing so, this Note or a copy verified by affidavit shall be a sufficient
warrant. The Borrower hereby forever waives and releases all errors in said proceedings and all
rights of appeal and all relief from any and all appraisement, stay or exemption laws of any state
now in force or hereafter enacted. Interest on any such judgment shall accrue at the Default Rate.
No single exercise of the foregoing power to confess judgment, or a series of judgments, shall be
deemed to exhaust the power, whether or not any such exercise shall be held by any court to be
invalid, voidable, or void, but the power shall continue undiminished and it may be exercised from
time to time as often as the Bank shall elect until such time as the Bank shall have received
payment in full of the debt, interest and costs. Notwithstanding the attorney’s commission
provided for in the preceding paragraph (which is included in the warrant for purposes of
establishing a sum certain), the amount of attorneys’ fees that the Bank may recover from the
Borrower shall not exceed the actual attorneys’ fees incurred by the Bank.
12. Right of Setoff. In addition to all liens upon and rights of setoff against the
Borrower’s money, securities or other property given to the Bank by law, the Bank shall have, with
respect to the Borrower’s obligations to the Bank under this Note and to the extent permitted by
law, a contractual possessory security interest in and a contractual right of setoff against, and
the Borrower hereby grants the Bank a security interest in, and hereby assigns, conveys, delivers,
pledges and transfers to the Bank, all of the Borrower’s right, title and interest in and to, all
of the Borrower’s deposits, moneys, securities and other property now or hereafter in the
possession of or on deposit with, or in transit to, the Bank or any other direct or indirect
subsidiary of The PNC Financial Services Group, Inc., whether held in a general or special account
or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise,
excluding, however, all IRA, Xxxxx, and trust accounts. Every such security interest and right of
setoff may be exercised without demand upon or notice to the Borrower. Every such right of setoff
shall be deemed to have been exercised immediately upon the occurrence of an Event of Default
hereunder without any action of the Bank, although the Bank may enter such setoff on its books and
records at a later time.
13. Indemnity. The Borrower agrees to indemnify each of the Bank, each legal entity, if
any, who controls, is controlled by or is under common control with the Bank, and each of their
respective directors, officers and employees (the “Indemnified Parties”), and to defend and hold
each Indemnified Party harmless from and against any and all claims, damages, losses, liabilities
and expenses (including all reasonable fees and charges of internal or external counsel with whom
any Indemnified Party may consult and all reasonable expenses of litigation and preparation
therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified
Party by any person, entity or governmental authority (including any person or entity claiming
derivatively on behalf of the Borrower), in connection with or arising out of or relating to the
matters referred to
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in this Note or in the other Loan Documents or the use of any advance hereunder, whether (a)
arising from or incurred in connection with any breach of a representation, warranty or covenant by
the Borrower, or (b) arising out of or resulting from any suit, action, claim, proceeding or
governmental investigation, pending or threatened, whether based on statute, regulation or order,
or tort, or contract or otherwise, before any court or governmental authority; provided,
however, that the foregoing indemnity agreement shall not apply to any claims, damages,
losses, liabilities and expenses solely attributable to an Indemnified Party’s gross negligence or
willful misconduct. The indemnity agreement contained in this Section shall survive the
termination of this Note, payment of any advance hereunder and the assignment of any rights
hereunder. The Borrower may participate at its expense in the defense of any such action or claim.
14. Miscellaneous. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder (“Notices”) must be in writing (except as may be
agreed otherwise above with respect to borrowing requests) and will be effective upon receipt.
Notices may be given in any manner to which the parties may separately agree, including electronic
mail. Without limiting the foregoing, first-class mail, facsimile transmission and commercial
courier service are hereby agreed to as acceptable methods for giving Notices. Regardless of the
manner in which provided, Notices may be sent to a party’s address as set forth above or to such
other address as any party may give to the other for such purpose in accordance with this
paragraph. No delay or omission on the Bank’s part to exercise any right or power arising
hereunder will impair any such right or power or be considered a waiver of any such right or power,
nor will the Bank’s action or inaction impair any such right or power. The Bank’s rights and
remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Bank
may have under other agreements, at law or in equity. No modification, amendment or waiver of, or
consent to any departure by the Borrower from, any provision of this Note will be effective unless
made in a writing signed by the Bank, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. The Borrower agrees to pay on demand,
to the extent permitted by law, all costs and expenses incurred by the Bank in the enforcement of
its rights in this Note and in any security therefor, including without limitation reasonable fees
and expenses of the Bank’s counsel. If any provision of this Note is found to be invalid, illegal
or unenforceable in any respect by a court, all the other provisions of this Note will remain in
full force and effect. The Borrower and all other makers and indorsers of this Note hereby forever
waive presentment, protest, notice of dishonor and notice of non-payment. The Borrower also waives
all defenses based on suretyship or impairment of collateral. If this Note is executed by more
than one Borrower, the obligations of such persons or entities hereunder will be joint and several.
This Note shall bind the Borrower and its heirs, executors, administrators, successors and
assigns, and the benefits hereof shall inure to the benefit of the Bank and its successors and
assigns; provided, however, that the Borrower may not assign this Note in whole or
in part without the Bank’s written consent and the Bank at any time may assign this Note in whole
or in part.
This Note has been delivered to and accepted by the Bank and will be deemed to be made in the State
where the Bank’s office indicated above is located. This Note will be interpreted and the
rights and liabilities of the Bank and the Borrower determined in accordance with the laws of the
State where the Bank’s office indicated above is located, excluding its conflict of laws
rules. The Borrower hereby irrevocably consents to the exclusive jurisdiction of any state or
federal court in the county or judicial district where the Bank’s office indicated above is
located; provided that nothing contained in this Note will prevent the Bank from bringing any
action, enforcing any award or judgment or exercising any rights against the Borrower individually,
against any security or against any property of the Borrower within any other county, state or
other foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the venue
provided above is the most convenient forum for both the Bank and the Borrower. The Borrower
waives any objection to venue and any objection based on a more convenient forum in any action
instituted under this Note.
15. WAIVER OF JURY TRIAL. The Borrower irrevocably waives any and all rights the
Borrower may have to a trial by jury in any action, proceeding or claim of any nature relating to
this Note, any documents executed in connection with this Note or any transaction contemplated in
any of such documents. The Borrower acknowledges that the foregoing waiver is knowing and
voluntary.
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The Borrower acknowledges that it has read and understood all the provisions of this Note,
including the confession of judgment and the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first written above,
with the intent to be legally bound hereby.
| WITNESS / ATTEST: | BIOCLINICA, INC. | |||||||
/s/ Xxxxxxxxx X. Later
Title: Executive Assistant |
By: | /s/ Xxxx X. Xxxxxxxxx
Title: President & CEO |
||||||
| OXFORD BIO-IMAGING RESEARCH, INC. | ||||||||
/s/ Xxx X. Xxxxxxx
|
By: | /s/ Xxxxx Xxxxx
|
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8
ANNEX 1
PRICING GRID
| LIBOR Rate Margin | ||||||||
| Ratio of Total Debt | and Letter of | Unused Fee on Line | ||||||
| Level | to EBITDA | Credit Fee | Base Rate Margin | of Credit | ||||
I
|
Less than or equal to 1.0 to 1 |
175 basis points (1.75%) |
75 basis points (0.75%) |
25 basis points | ||||
II
|
Greater than 1.0 to 1 but less than or equal to 2.0 to 1 |
200 basis points (2.0%) |
100 basis points (1.0%) |
35 basis points |
Ratio of Total Debt to EBITDA shall be defined as set forth in the Letter Agreement dated the
date of this Note between Bank and Borrower, as amended.
Adjustments, if any, to the interest rate resulting from a change in the Ratio of Total Debt to
EBITDA shall be effective within five (5) Business Days after the Bank has received a compliance
certificate (the “Compliance Certificate”). In the event that no Compliance Certificate has been
delivered for a fiscal quarter prior to the last date on which it can be delivered without
violation of Section A(1)(c) of Exhibit A to the Letter Agreement, the interest rate from such date
until such Compliance Certificate is actually delivered shall be that applicable under Level II.
In the event that the actual Ratio of Total Debt to EBITDA for any fiscal quarter is subsequently
determined to be greater than or less than that set forth in the Compliance Certificate for such
fiscal quarter, the interest rate shall be recalculated for the applicable period based upon such
actual Ratio of Total Debt to EBITDA. Any additional interest on the advances under the Line of
Credit resulting from the operation of the preceding sentence shall be payable by the Borrower to
the Bank within five (5) business days after receipt of a written demand therefor from the Bank.
