REVOLVING NOTE
EXHIBIT
10.2
1. DEFINED
TERMS. As used in this Revolving Note (the “Note”), the following terms shall
have the following meanings:
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1.1
Borrower:
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iCAD,
INC.
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a
Delaware corporation
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00
Xxxx Xxxxx Xxxx
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Nashua,
New Hampshire 03062
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1.2
Lender:
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RBS
CITIZENS, N.A.
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00
Xxxxx Xxxxxx
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Boston,
MA 02109
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1.3
Maximum Credit:
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Not
to exceed $5,000,000.00
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1.4
Interest Rate:
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See
Section 3 below.
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1.5
Expiration Date:
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June
30, 2009.
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1.6 Loan
Agreement: a
certain
Loan and Security Agreement of even date herewith by and between Borrower and
Xxxxxx.
1.7 Loan,
Loan Documents and Event of Default shall have the same meanings as in the
Loan
Agreement. The Loan Documents are incorporated herein by reference. All
capitalized terms used herein and not otherwise defined herein shall have the
meanings as set forth in the Loan Agreement.
1.8 Prepayment
Period: At
any
time during the term of the Loan (as defined in Section 2 hereof).
2. DEBT:
For
value received, Borrower hereby promises to pay to the order of Lender all
amounts outstanding under this Note as advanced by Xxxxxx from time to time
pursuant to the Loan Agreement, together with interest on all unpaid balances
from the date of such advances made under this Note at the interest rate set
forth in this Note, together with all other amounts due hereunder or under
the
Loan Documents. This Note evidences a Revolving Loan (the “Loan”), such that,
prior to the Expiration Date, and provided no Defaults or Events of Default
exist under this Note or under the other Loan Documents, Borrower may from
time
to time, borrow, repay and re-borrow principal under this Note in accordance
with the provisions of the Loan Agreement.
3. INTEREST:
During the term of this Note and at Xxxxxxxx’s written election for each
requested advance, advances under this Note shall accrue interest at either:
(i)
a fluctuating per annum rate of interest equal to the sum of the Prime Rate
(as
defined in Rider
A
entitled
“Citizens Bank Standard LIBOR Provisions” attached hereto and made a part
hereof) plus
one half
of one percent (0.50%); or (ii) a fluctuating per annum rate of interest equal
to the Adjusted LIBOR Rate plus
the
LIBOR Rate Margin (as such terms are defined in Rider
A).
Interest
shall be calculated on the basis of the number of actual days elapsed and a
360-day year in the case of LIBOR Rate Loans and on the basis of the number
of
actual days elapsed and a 365/366-day year in the case of Prime Rate
Loans.
4. PAYMENTS:
Borrower shall make payments of interest only on the amounts advanced by Lender
under this Note (i) with respect to LIBOR Rate Loans, on each Interest Payment
Date as set forth in Rider
A; and
(ii)
with respect to Prime Rate Loans, monthly in arrears on first day of each
calendar month during the term of this Note. On the Expiration Date or on such
earlier date as may be required under the terms of the Loan Agreement, Borrower
shall pay to Lender the entire then unpaid balance of principal and interest
under this Note. 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 Xxxxxx's address
set
forth or at such other address as Lender may from time to time designate in
writing.
5. DEFAULT
INTEREST: During the continuance of an Event of Default, Lender may, at its
election, require Borrower to pay, in addition to any other payment due
hereunder, interest under this Note from and after the date on which such Event
of Default occurred at the Default Rate (as defined in the Loan Agreement).
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. COSTS
AND
EXPENSES UPON DEFAULT: After an Event of Default has occurred, in addition
to
principal and interest, 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 the
Collateral or in connection with any of Xxxxxx'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 any collateral held by Lender
as security for Borrower’s obligations to Lender.
7. APPLICATION
OF PAYMENTS: Unless there is a continuing Event of Default, all payments
hereunder shall be applied first to interest which is due and payable under
this
Note and then 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 other Loan Documents in any order and combination that Lender
may,
in its sole and absolute discretion, determine.
8. PERMITTED
PREPAYMENT: Borrower shall have the right to prepay the Loan in whole, or in
part, together with any other amounts which may be due hereunder or under any
of
the Loan Documents at any time, provided that, for any portion of the Note
accruing interest as a LIBOR Rate Loan, Borrower shall be liable for any LIBOR
Breakage Fee which may be due as set forth in Rider
A
to this
Note. Borrower agrees to indemnify and hold Lender harmless from and against
all
loss, cost or expense which Lender may sustain or incur as a consequence of
default by Borrower in prepayment of any portion of the Loan and accrued
interest thereon, (i) after having given notice that prepayment will occur,
and
(ii) on prepayment following accelerations during the continuance of an Event
of
Default, including, but not limited to, any such loss or expense arising from
interest or fees payable by Lender to lenders of funds obtained by Xxxxxx in
order to make or maintain the Loan. This indemnification shall survive the
payment of the outstanding Loan Amount. The certificate of Lender as to any
additional amounts payable pursuant to this grammatical paragraph shall, absent
manifest error, be final, conclusive and binding upon Borrower. Lender shall
provide evidence of any costs incurred by Xxxxxx.
9. ILLEGALITY
OF LOAN: Borrower hereby agrees to 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 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 as provided in Section 10 of the
Loan
Agreement.
10. WAIVERS:
Borrower irrevocably waives 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 agrees that Xxxxxxxx’s liability shall not be in any manner
affected by any indulgence, extension of time, renewal, waiver or modification
granted or consented to by Lender. Borrower consents 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. 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
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY PROCEEDINGS
HEREAFTER INSTITUTED BY OR AGAINST BORROWER IN RESPECT OF THIS NOTE OR ARISING
OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING
THIS NOTE, INCLUDING ALL LOAN DOCUMENTS.
11. NO
USURY:
Xxxxxx 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 and the Loan
Documents 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.
Xxxxxxxx agrees that in determining whether or not any interest payable under
this Note or the other Loan Documents exceeds the highest rate allowed by law,
any non-principal payment (except payments specifically stated in this Note
or
in the other Loan Documents to be “interest”), 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, the state in which the Collateral is located (if other than
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.
12. ACCELERATION
AND OTHER REMEDIES: If: an “Event of Default”, as said term is defined in the
Loan Agreement, occurs after the expiration of any applicable grace period;
then,
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, the Loan Agreement, the other Loan Documents or such other rights
and
remedies which Lender may have at law, equity or otherwise.
13. JOINT
AND
SEVERAL LIABILITY: The liabilities Borrower and any guarantors of this Note
are
joint and several; provided, however, the release by Lender of any one or more
guarantors shall not release any other person obligated on account of this
Note.
No party obligated on account of this Note may seek contribution from any other
party also obligated unless and until all liabilities to Xxxxxx from the party
from whom contribution is sought have been satisfied in full.
14. SUCCESSORS
AND ASSIGNS: This Note shall be binding upon Borrower and upon its successors
and assigns, and shall inure to the benefit of Xxxxxx and its successors and
assigns. Lender may assign this Note and its rights and duties hereunder: (i)
with the consent of Borrower which shall not be unreasonably withheld, and
(ii)
without the consent of the Borrower during the continuance of a Default of
Event
of Default.
15. SECURITY:
This Note is secured by and is entitled to the benefits of the other Loan
Documents, and all amendments, modifications, supplements, substitutions,
additions, renewals, replacements and extensions thereof.
16. COLLECTION:
Any check, draft, money order or other instrument given in payment of all or
any
portion hereof may be accepted by Xxxxxx 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 Xxxxxx and applied to this
indebtedness in the manner elsewhere herein provided.
17. AMENDMENTS:
This Note may be changed or amended only by an agreement in writing signed
by
the party against whom enforcement is sought.
18. GOVERNING
LAW: 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.
19. CONSENT
TO JURISDICTION Borrower and Lender agree that any action or proceeding to
enforce or arising out of this Note may be commenced in any court of the
Commonwealth of Massachusetts sitting in the counties of Suffolk or Middlesex,
or in the District Court of the United States for the District of Massachusetts,
and Borrower waives personal service of process and agrees that a summons and
complaint commencing an action or proceeding in any such court shall be properly
served and confer personal jurisdiction if served by registered or certified
mail to Borrower, or as otherwise provided by the laws of the Commonwealth
of
Massachusetts or the United States of America.
20. WAIVER
OF
JURY TRIAL. XXXXXXXX AND XXXXXX EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE OR HEREAFTER HAVE TO A TRIAL BY
JURY
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS
NOTE. Borrower hereby certifies that neither Xxxxxx nor any of its
representatives, agents or counsel has represented, expressly or otherwise,
that
Xxxxxx would not, in the event of any such suit, action or proceeding, seek
to
enforce this waiver of right to trial by jury. Borrower acknowledges that Lender
has been induced to enter into this Note and the Loan Agreement by, among other
things, this waiver. Borrower acknowledges that it has read the provisions
of
this Note and in particular, this section; has consulted legal counsel;
understands the right it is granting in this Note and is waiving in this section
in particular; and makes the above waiver knowingly, voluntarily and
intentionally.
21. CAPTIONS:
All paragraph and subparagraph captions are for convenience of reference only
and shall not affect the construction of any provision herein.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, this Note has been executed and delivered under seal this
30th
day of June, 2008.
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WITNESS
AS TO ALL SIGNATURES:
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BORROWER:
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iCAD,
INC.
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/s/Xxxxxxx
Xxxxxx
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By:
/s/Xxxxxxx
Xxxxxxx-Xxxxx
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Name:
Xxxxxxx Xxxxxxx-Xxxxx
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Title: Chief
Financial Officer
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RIDER
A
PROVISIONS
FOR RBS CITIZENS LIBOR RATE LOANS
BORROWER:
iCAD, INC.
1.
Certain
Definitions.
“Adjusted
LIBOR Rate”
means,
relative to a LIBOR Rate Loan, a rate per annum determined by dividing (x)
the
LIBOR Rate for such Interest Period by (y) a percentage equal to one hundred
percent (100.0%) minus the LIBOR Reserve Percentage.
“Business
Day”
means:
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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 New York,
New
York;
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| (b) |
when
such term is used to describe a day on which a borrowing, payment,
prepayment or repayment is to be made in respect of a 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) |
when
such term is used to describe a day on which an interest rate
determination is to be made in respect of a LIBOR Rate Loan, any
day which
is a London Banking Day.
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“Funding
Date”
means
the 30th day of June, 2008.
“Interest
Payment Date”
means,
in the case of LIBOR Loans, the last Business Day of each LIBOR Interest Period
or, in the case of Prime Rate Loans, the first Business Day of each
month.
“LIBOR
Interest Period”
means,
in the case of a LIBOR Rate Loan:
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initially,
the period beginning on (and including) the borrowing or conversion
date
(as the case may be) and ending on (but excluding) the day which
numerically corresponds to such date one, two, three or six months
thereafter, as selected by Borrower (or, if such month has no numerically
corresponding day, on the last Business Day of such month);
and
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| (ii) |
thereafter,
each period commencing on the last day of the next preceding LIBOR
Interest Period and ending one, two, three or six months thereafter,
as
selected by Xxxxxxxx;
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provided,
however,
that
| (a) |
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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| (b) |
no
LIBOR Interest Period may end later than the termination of this
Agreement.
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“LIBOR
Rate”
means,
relative to any LIBOR Interest Period for a LIBOR Rate Loan, the offered rate
for deposits of U.S. Dollars in an amount approximately equal to the amount
of
the LIBOR Rate Loan for such 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 Lender cannot determine such offered rate by the British Bankers’
Association, 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
Rate Loan”
means
the Loan for the period(s) when the rate of interest applicable to the Loan
is
calculated by reference to the Adjusted LIBOR Rate in the manner set forth
herein.
“LIBOR
Rate Margin”
means
two and three quarters 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 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 Interest
Period.
“Loan”
means
all amounts outstanding under the Note and/or advanced pursuant to the Loan
Agreement.
“London
Banking Day”
means
a
day on which dealings in US dollar deposits are transacted in the London
interbank market.
“Maturity
Date”
means
June 30, 2009, unless accelerated sooner pursuant to the terms
hereof.
“Note”
means
that certain Revolving Note of even date herewith in the principal amount of
$5,000,000.00 made payable by Borrower to the order, and for the benefit, of
Lender.
“Prime
Rate”
shall
mean a rate per annum equal to the rate of interest announced by Xxxxxx 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 365/366-day year. Borrower acknowledges
that
Lender may make loans to its customers above, at or below the Prime
Rate.
Revolving
Note
“Prime
Rate Loan”
means
any Loan for the period(s) when the rate of interest applicable to such Loan
is
calculated by reference to the Prime Rate.
“Prime
Rate Margin”
means
one half of one percent (0.50%) per annum.
2.
Borrowing
Procedures.
2.1
Funding
of the Loan.
On the
Funding Date, subject to the terms and conditions of this Agreement, the Loan
shall be made available to Borrower no later than 11:00 a.m. New York time
by a
deposit to the Account (or as otherwise instructed by Xxxxxxxx in writing)
in
the full principal amount of the Loan. Unless otherwise prohibited by this
Agreement, the Loan shall initially be classified as a LIBOR Rate
Loan.
3.
Interest
Provisions.
3.1
Interest
Provisions.
Interest
on the outstanding principal amount of the Loan, 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 shall be due and payable on each Interest Payment
Date
with respect to LIBOR Rate Loans and on the Maturity 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 shall be due and payable on each Interest Payment
Date with respect to Prime Rate Loans and on the Maturity Date.
3.2
Automatic
Rollover of LIBOR Rate Loan.
Unless
Borrower submits a Notice of Borrowing, upon the expiration of a LIBOR Interest
Period, the LIBOR Rate Loan shall automatically be continued as a LIBOR Rate
Loan at the then applicable Adjusted LIBOR Rate and in an amount equal to the
principal amount of the expiring LIBOR Rate Loan less
any
Principal Repayment Amount made by Borrower; provided, however,
that no
portion of the outstanding principal amount of a LIBOR Rate Loan may be
continued as a LIBOR Rate Loan when any Event of Default has occurred and is
continuing. If any Event of Default has occurred and is continuing (if Lender
does not otherwise elect to exercise any right to accelerate the Loan
hereunder), the LIBOR Rate Loan shall automatically be continued as a Prime
Rate
Loan on the first day of the next Interest Period.
4.
Miscellaneous
LIBOR Rate Loan Terms.
4.1
Voluntary
Prepayment of the LIBOR Rate Loan.
When
classified as a LIBOR Rate Loan, the Loan may be prepaid upon the terms and
conditions set forth herein. Borrower shall give Xxxxxx, no later than 10:00
a.m., New York City time, at least four (4) Business Days notice of any proposed
prepayment of the LIBOR Rate Loan, specifying the proposed date of payment
and
the principal amount to be paid. Each partial prepayment of the principal amount
of the LIBOR Rate Loan shall be in an integral multiple of $100,000.00 and
accompanied by the payment of all charges outstanding on the LIBOR Rate Loan
(including the LIBOR Breakage Fee) and of all accrued interest on the principal
repaid to the date of payment.
Revolving
Note
4.2
LIBOR
Breakage Fee.
Upon
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), Borrower shall pay an amount
(“LIBOR Breakage Fee”), as calculated by Xxxxxx, equal to the interest which
would have been paid on the prepaid amount for the period from such prepayment
until the last day of the applicable LIBOR Interest Period, at the applicable
rate of interest for such LIBOR Rate Loan over the amount of interest reasonably
determined by Lender on such amount if such amount were invested for a
comparable period of time in obligations of the US Treasury. Borrower
understands, agrees and acknowledges that: (i) 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) Borrower has accepted the LIBOR Rate as a reasonable and
fair
basis for calculating the LIBOR Breakage Fee. Xxxxxxxx further agrees to
pay the
LIBOR Breakage Fee, whether or not Lender elects to purchase, sell and/or
match
funds.
4.3
LIBOR
Rate Lending Unlawful.
If
Lender shall determine (which determination shall, upon notice thereof to
Borrower be conclusive and binding on 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 Lender to
make,
continue or maintain the Loan as, or to convert the Loan into, a LIBOR Rate
Loan, then any such LIBOR Rate Loans shall, upon such determination, forthwith
be suspended until Lender shall notify 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
Interest Periods with respect thereto or sooner, if required by such law and
assertion.
4.4
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 Lender with any request or directive
(whether or not having the force of law) of any such authority, central bank
or
comparable agency:
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(a)
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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, Lender or shall impose on Lender or on the London interbank
market any other condition affecting the LIBOR Rate Loan or its obligation
to make the LIBOR Rate Loan; or
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Revolving
Note
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(b)
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shall
impose on Lender any other condition affecting the LIBOR Rate Loan
or its
obligation to make the LIBOR Rate Loan, and the result of any of
the
foregoing is to increase the cost to Lender of making or maintaining
the
Loan as a LIBOR Rate Loan, or to reduce the amount of any sum received
or
receivable by Lender under this Agreement with respect thereto, by
an
amount deemed by Lender to be material,
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then,
within 30 days after demand by Xxxxxx, Borrower shall pay to Lender such
additional amount or amounts as will compensate Lender for such increased cost
or reduction; provided, however, that Borrower shall not be obligated to pay
such additional amount or amounts to the extent that the Adjusted LIBOR Rate
is
increased by application of the LIBOR Reserve Percentage with respect to any
of
the events described in paragraphs (a) and (b) above.
4.5
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 the amount
of
capital required or expected to be maintained by Lender, or person controlling
Lender, and 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 Loan made by Lender is reduced to a level below that
which 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 Lender to Borrower, Borrower shall, within 30 days of Lender’s
demand therefor, pay directly to Lender additional amounts sufficient to
compensate Lender or such controlling person for such reduction in rate of
return. A statement of 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 Borrower. In determining such
amount, Lender may use any method of averaging and attribution that it uses
with
respect to other similarly situated customers of Lender.
4.6
Taxes.
All
payments by Borrower of principal of, and interest on, the LIBOR Rate Loan
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 Xxxxxx’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 Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
Borrower will:
|
(a)
|
pay
directly to the relevant authority the full amount required to be
so
withheld or deducted;
|
|
(b)
|
promptly
forward to Lender an official receipt or other documentation satisfactory
to Lender evidencing such payment to such authority;
and
|
Revolving
Note
|
(c)
|
pay
to Lender such additional amount or amounts as is necessary to ensure
that
the net amount actually received by Lender will equal the full amount
Lender would have received had no such withholding or deduction been
required.
|
Moreover,
if any Taxes are directly asserted against Lender with respect to any payment
received by Lender hereunder, Lender may pay such Taxes and Borrower will
promptly pay such additional amount (including any penalties, interest or
expenses) as is necessary in order that the net amount received by Lender after
the payment of such Taxes (including any Taxes on such additional amount) shall
equal the amount Lender would have received had not such Taxes been
asserted.
If
Xxxxxxxx fails to pay any Taxes when due to the appropriate taxing authority
or
fails to remit to Lender the required receipts or other required documentary
evidence, Borrower shall indemnify Lender for any incremental Taxes, interest
or
penalties that may become payable by Xxxxxx as a result of any such
failure.
4.7
Unavailability
of LIBOR Rate.
In the
event that Borrower shall have requested a LIBOR Rate Loan in accordance with
the Loan Agreement and 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 Lender in the London interbank market;
or
by reason of circumstances affecting Lender in the London interbank 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 Lender’s cost of funding loans; upon notice from
Lender to Borrower, the obligations of Lender under the Loan Agreement to make
or continue any loans as, or to convert any loans into, LIBOR Rate Loans of
such
duration shall forthwith be suspended until Lender shall notify Borrower that
the circumstances causing such suspension no longer exist.
Revolving
Note
