TERM PROMISSORY NOTE
TERM
PROMISSORY
NOTE
1. DEFINED
TERMS.
As used
in this Term Promissory Note (this “Note”), the following terms shall have the
meanings there indicated:
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Borrower:
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A
Florida corporation
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000
Xxxxx Xxxxx Xxxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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1.2
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Lender:
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RBS
Citizens, National Association
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00
Xxxxx Xxxxxx
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Xxxxxx,
XX 00000
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1.3
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Loan Agreement:
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The
Revolving Line of Credit and Term Loan Agreement of even date herewith
by
and between Borrower and Lender, as may be amended, modified, or
extended
from time to time.
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1.4
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Term Loan
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Amount:
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$13,000,000.00
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Term
Loan
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Maturity
Date:
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July
31, 2010
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All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth in the Loan Agreement. The terms and conditions of the Loan
Agreement and the other Loan Documents are incorporated herein by
reference.
2. DEBT.
For
value received, the Borrower hereby promises to pay to the order of Lender
the
Term Loan Amount, or so much of the Term Loan Amount as has been advanced by
Lender from time to time pursuant to the Loan Agreement, together with interest
on all unpaid balances from the date hereof at the interest rate set forth
in
this Note, and together with all other amounts due hereunder or under the Loan
Documents. Loan proceeds evidenced by this Note shall be advanced in accordance
with the terms and conditions of the Loan Agreement.
3. INTEREST.
Each
Term Loan Advance shall accrue interest at a variable per annum rate of interest
equal to either, at Borrowers’ election in accordance with the terms and
conditions of the Loan Agreement, (i) the Prime Rate or (ii) the Adjusted LIBOR
Rate, plus
the
LIBOR Rate Margin (as such terms are defined in Rider
A
attached
hereto and made a part hereof entitled “RBS Citizens Standard LIBOR Provisions”)
(the “LIBOR Option”). Changes in the interest rate applicable to any Term Loan
Advance occurring as a result of changes in the Prime Rate or the Adjusted
LIBOR
Rate, as applicable, shall take place immediately without notice to Borrower
or
demand of any kind. At any time prior to the Term Loan Maturity Date and
provided that no Event of Default has occurred under the Loan Documents, the
Borrower shall have the option, upon written notice to Lender in each instance
and upon Lender’s approval, to enter into one or more Hedging Contracts (as
defined in Rider
A)
with
respect to all or a portion of the then outstanding principal balance under
this
Note, which Hedging Contracts shall commence on the date of such Hedging
Contract and shall continue for a period not to exceed the Term Loan Maturity
Date. Any principal amount subject to a Hedging Contract shall accrue interest
at the LIBOR Option. Interest shall at all times be calculated on a 360-day
year
of twelve 30-day months, but shall accrue and be payable on the actual number
of
days elapsed.
1
4. PAYMENTS.
During
the Availability Period, the Borrower shall make monthly payments of accrued
interest only in arrears on the outstanding principal balance of each Term
Loan
Advance on (x) each Payment Date, for Term Loan Advances accruing interest
at
the Prime Rate and (y) each Interest Payment Date (as defined in Rider
A),
for
Term Loan Advances accruing interest at the LIBOR Option. If interest is due
and
accrued for a period of more or less than one (1) month on the first Interest
Payment Date, the first payment shall be increased or decreased to the extent
that the amount of interest then due exceeds or is less than one (1) month's
interest. During the Amortization Period, the Borrower shall make, on each
Interest Payment Date, monthly payments of accrued interest on the outstanding
principal balance of this Note, along with monthly payments of principal based
upon a five (5) year straight-line amortization schedule (to be determined
as of
the commencement of the Amortization Period based upon the then outstanding
principal balance) as set forth in Schedule
A
to be
attached hereto. On the Term Loan Maturity Date or such earlier date as may
be
required under the terms of this Note or any of the Loan Documents, the Borrower
shall pay to Lender the entire then unpaid balance of principal, interest,
and
other charges due under this Note and the other Loan Documents. Any payments
on
this Note, whether such payment is of a regular installment or represents a
prepayment (if permitted hereunder), 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 the address set
forth in Section 1.2 above or at such other address as Lender may from time
to
time designate in writing. The Borrower hereby authorizes Lender to charge
any
account maintained by Borrower with Lender for any payment due from Borrower
under this Note or under any of the other Loan Documents. In any of the
foregoing cases, such authorization, however, does not obligated Lender so
to
charge nor does it limit the Borrower’s obligation to make any payment when
due.
5. DEFAULT
INTEREST. Upon
the
occurrence of an Event of Default, at Lender’s option, the Borrower shall, in
addition to any other payment due hereunder, pay interest under this Note from
and after the date on which such Event of Default has occurred at a per annum
rate of interest equal to the lesser of (a) the interest rate set forth in
Section 3, plus
five
percent (5%), or (b) the maximum rate permitted by law, and such interest shall
be due and payable, on demand, at such rate until the Event of Default has
been
waived in writing by Lender or the entire amount due is paid to Lender, whether
or not any action shall have been taken or proceeding commenced to recover
the
same or to foreclose upon the Collateral. Nothing in this Section 5 or in any
other provision of this Note shall constitute an extension of the time of
payment of the indebtedness hereunder.
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6. DELINQUENCY
CHARGES. If
Borrower fails to pay any payment due under this Note for ten (10) days after
such payment has become due, whether by acceleration or otherwise, Lender may,
at its option, whether immediately or at the time of final payment of the
amounts evidenced by this Note (or secured by the Security Agreements), impose
a
delinquency or "late" charge equal to five percent (5%) of the amount of such
past due payment, notwithstanding the date on which such payment is actually
paid in full, and the amount thereof shall be secured by the Loan Documents
and
by any other collateral held by Lender to secure the indebtedness evidenced
by
the Loan Documents. The Borrower agrees that any such delinquency charges shall
not be deemed to be additional interest or penalty, but shall be deemed to
be
liquidated damages because of the difficulty in computing the actual amount
of
damages in advance.
7. COSTS
AND EXPENSES UPON DEFAULT. After
the
occurrence of a Default Event or an Event of Default, in addition to principal,
interest and delinquency charges, Lender shall be entitled to collect all costs
of collection, including, but not limited to, reasonable attorneys fees and
expenses, incurred in connection with the protection or realization of
collateral or in connection with any of Lender's enforcement of rights under
the
Loan Documents or collection efforts, whether or not suit on this Note or any
foreclosure proceeding is filed, and all such costs and expenses shall be
payable on demand and, until paid, shall also be secured by the Loan Documents
and by all other collateral held by Lender as security for Borrower’s
obligations to Lender under the Loan Documents.
8. APPLICATION
OF PAYMENTS. Unless
an
Event of Default has occurred, all payments hereunder shall be applied first
to
delinquency charges, costs of collection and enforcement and other similar
amounts due, if any, under this Note and under the other Loan Documents, then
to
interest which is due and payable under this Note, and the remainder, if any,
to
principal due and payable under this Note. If an Event of Default has occurred,
such payments may be applied to sums due under this Note or under the other
Loan
Documents in any order and combination that Lender may, in its sole and absolute
discretion, determine.
9. PERMITTED
PREPAYMENT.
The
Borrower shall have the right to prepay this Note in whole or in part, at any
time, together with all delinquency charges and any other amounts which may
be
due hereunder or under any of the Loan Documents, provided that Borrower shall
be liable at the time of any such prepayment for any LIBOR Breakage Fee (as
defined in Rider
A)
or any
fees in connection with any Hedging Obligations (as defined in Rider
A).
10. ILLEGALITY
OF LOAN. The
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 (a) any losses or costs
(including funding costs) sustained by it as a consequence of any default by
Borrower hereunder; and (b) any increased costs Lender may sustain in
maintaining the borrowing evidenced hereby due to the introduction of, or any
change in, law or applicable regulations (including the interpretation thereof)
or due to the compliance by Lender with any guideline or request from any
central bank or governmental authority. In addition, if it shall become
unlawful, or any central bank or other governmental authority shall assert
it to
be unlawful, for Lender (or any bank which is directly or indirectly funding
Lender with respect to the Loan) to maintain the borrowing evidenced hereby,
Borrower agrees to prepay this Note in full together with accrued interest
and
other amounts payable hereunder on demand.
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11. WAIVERS.
UPON AN
EVENT OF DEFAULT AFTER THE EXPIRATION OF ANY APPLICABLE GRACE OR CURE PERIODS,
THE BORROWER AND GUARANTORS SEVERALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE
RIGHTS TO NOTICE AND HEARING TO THE EXTENT PERMITTED BY ANY STATE OR FEDERAL
LAW
WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH LENDER MAY DESIRE TO USE, and,
further, severally and irrevocably waive presentment for payment, demand, notice
of nonpayment, notice of intention to accelerate the maturity of this Note,
diligence in collection, commencement of suit against any obligor, notice of
protest, and protest of this Note and all other notices in connection with
the
delivery, acceptance, performance, default or enforcement of the payment of
this
Note, before or after the maturity of this Note, with or without notice to
Borrower and Guarantors, and agree that their liability shall not be in any
manner affected by any indulgence, extension of time, renewal, waiver or
modification granted or consented to by Lender. The Borrower and Guarantors
consent to any and all extensions of time, renewals, waivers or modifications
that may be granted by Lender with respect to the payment or other provisions
of
this Note, and to any substitution, exchange or release of the collateral for
this Note, or any part thereof, with or without substitution of said collateral,
and agree to the addition or release of Guarantors, all whether primarily or
secondarily liable, before or after maturity of this Note, with or without
notice to Borrower or Guarantors, and without affecting their liability under
this Note. Any delay on the part of Lender in exercising any right under this
Note shall not operate as a waiver of any such right, and any waiver granted
or
consented to on one occasion shall not operate as a waiver in the event of
any
subsequent default.
THE
BORROWER AND GUARANTORS HEREBY SEVERALLY AND IRREVOCABLY WAIVE ALL RIGHT TO
A
TRIAL BY JURY IN ANY PROCEEDINGS HEREAFTER INSTITUTED BY OR AGAINST BORROWER
OR
GUARANTORS IN RESPECT OF THIS NOTE OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT
OR
AGREEMENT EVIDENCING, GOVERNING OR SECURING THIS NOTE, INCLUDING ALL LOAN
DOCUMENTS.
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12. NO
USURY. Lender
and Borrower intend to comply at all times with applicable usury laws. If at
any
time such laws would ever render usurious any amounts called for under this
Note
or the other Loan Documents, then it is Borrower’s and Lender’s express
intention that neither Borrower nor Guarantors shall 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.
The
Borrower 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"), including, without limitation,
prepayment fees and delinquency charges, shall, to the maximum extent allowed
by
law, be an expense, fee or premium rather than interest. The term "applicable
law,” as used in this Note shall mean the laws of the Commonwealth of
Massachusetts or the laws of the United States, whichever laws allow the greater
rate of interest, as such laws now exist or may be changed or amended or come
into effect in the future.
13. ACCELERATION
AND OTHER REMEDIES. If:
(a) Borrower
fails to pay any amount due on this Note within ten (10) days of the due date;
or
(b) an
“Event
of Default,” as said term is defined in the Loan Agreement or any other Loan
Document, occurs;
then,
and
in any such event, Lender may, at its option, declare the entire unpaid balance
of this Note together with interest accrued thereon, to be immediately due
and
payable and Lender may proceed to exercise any rights or remedies that it may
have under this Note, the Loan Agreement, the other Loan Documents or such
other
rights and remedies which Lender may have at law, equity or
otherwise.
14. JOINT
AND SEVERAL LIABILITY. The
liabilities of Borrower and Guarantors of are joint and several; provided,
however, the release by Lender of the Borrower or any of the Guarantors shall
not release any other person obligated on account of this Note. Each reference
herein to Borrower and any Guarantor is to such person individually and also
to
all such persons jointly. No person obligated on account of this Note may seek
contribution from any other person also obligated unless and until all
liabilities to Lender from the person from whom contribution is sought have
been
satisfied in full.
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15. SUCCESSORS
AND ASSIGNS. This
Note
shall be binding upon Borrower and Guarantors and upon their respective
successors, assigns and representatives, and shall inure to the benefit of
Lender and its successors, endorsees, and assigns.
16. SECURITY.
This
Note
is secured by the other Loan Documents, and all amendments, modifications,
supplements, substitutions, additions, renewals, replacements and extensions
thereof. The Borrower hereby grants to Lender a security interest in any and
all
deposits or other sums at any time credited by or due from Lender to Borrower
and any cash, securities, instruments, or other property of Borrower which
now
or hereafter are at any time in the possession or control of Lender, and such
sums shall constitute additional security to Lender for the liabilities of
Borrower to Lender, including, without limitation, the liability evidenced
hereby, and may be applied or set off by Lender against such liabilities at
any
time from and after an Event of Default hereunder, whether or not other
collateral is available to Lender.
17. COLLECTION.
Any
check, draft, money order or other instrument given in payment of all or any
portion hereof may be accepted by Lender and handled by collection in the
customary manner, but the same shall not constitute payment hereunder or
diminish any rights of Lender except to the extent that actual cash proceeds
of
such instrument are unconditionally received by Lender and applied to this
indebtedness in the manner elsewhere herein provided.
18. AMENDMENTS.
This
Note
may be changed or amended only by an agreement in writing signed by the party
against whom enforcement is sought.
19. GOVERNING
LAW; SUBMISSION TO JURISDICTION. This
Note
is given to evidence debt for business or commercial purposes, is being
delivered to Lender at one of its offices in the Commonwealth of Massachusetts,
and shall be governed by and construed under the laws of said Commonwealth.
The
Borrower, each shareholder, officer, and employee of Borrower, and Guarantors
hereby submit to personal jurisdiction in said Commonwealth for the enforcement
of Borrower’s obligations hereunder, under the Security Agreements and under the
other Loan Documents, and waive any and all personal rights under the law of
any
other state to object to jurisdiction within such Commonwealth for the purposes
of litigation to enforce such obligations of Borrower. In the event such
litigation is commenced, Borrower agrees that service of process may be made,
and personal jurisdiction over Borrower obtained, by service of a copy of the
summons, complaint and other pleadings required to commence such litigation
upon
Borrower at the addresses set forth in the preamble to this Note.
20. CAPTIONS.
All
paragraph and subparagraph captions are for convenience of reference only and
shall not affect the construction of any provision herein.
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IN
WITNESS WHEREOF, this Note has been executed and delivered under seal this
___
day of November, 2007.
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BORROWER:
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By:/s/Xxxxxx
Xxxx
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Witness
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Name:
Xxxxxx Xxxx
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Title:
CEO
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7
RIDER
A
RBS
CITIZENS STANDARD LIBOR PROVISIONS
BORROWER:
National
Investment Managers Inc.
1.
Certain
Definitions.
“Account”
means
account # TBA maintained by the Lender in the name of Borrower.
“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%) minus the LIBOR Reserve Percentage.
“Business
Day”
means:
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(a)
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any
day which is neither a Saturday or Sunday nor a legal holiday on
which
commercial banks are authorized or required to be closed in Boston,
MA;
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| (b) |
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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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 3rd day of December, 2007.
“Hedging
Contracts”
means,
interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements, or any other agreements or arrangements entered into between
the Borrower and the Lender and designed to protect the Borrower against
fluctuations in interest rates or currency exchange rates.
“Hedging
Obligations”
means,
with respect to the Borrower, all liabilities of the Borrower to the Lender
under Hedging Contracts.
“Interest
Payment Date”
means
the last Business Day of each LIBOR Interest Period or, in the case of
Prime
Rate Loans, any day on which a payment of principal is due
hereunder.
“LIBOR
Interest Period”
means,
in the case of a LIBOR Rate Loans:
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(i)
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initially,
the period beginning on (and including) the Funding Date and ending
on
(but excluding) the day which numerically corresponds to such date
one
month
thereafter (or, if such month has no numerically corresponding day,
on the
last Business Day of such month);
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8
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(ii)
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thereafter,
each period commencing on the last day of the next preceding LIBOR
Interest Period applicable to such LIBOR Rate Loan and ending one
month thereafter;
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provided,
however,
that
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(a)
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if
the Borrower has or may incur Hedging Obligations with the Lender
in
connection with the Loan, the LIBOR Interest Period shall be of the
same
duration as the relevant period set under the applicable Hedging
Contract;
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(b)
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if
such LIBOR Interest Period would otherwise end on a day which is
not a
Business Day, such LIBOR Interest Period shall end on the next following
Business Day unless such day falls in the next calendar month, in
which
case such LIBOR Interest Period shall end on the first preceding
Business
Day; and
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| (c) |
no
LIBOR Interest Period may end later than the termination of this
Note.
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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 a one month 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 Interest Period.
If the Lender cannot determine such offered rate by the British Bankers’
Association, the Lender may, in its discretion, select a replacement index
based
on the arithmetic mean of the quotations, if any, of the interbank offered
rate
by first class banks in London or New York for deposits in comparable amounts
and maturities.
“LIBOR
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 the
number of Basis Points in the table set forth below corresponding to the then
applicable ratio of Total Funded Debt to Adjusted EBITDA to be used under the
Term Loan.
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Level:
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Ratio
of Total Funded Debt to Adjusted EBITDA:
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LIBOR
Rate Margin:
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I
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when
less than 2.0 to 1.0
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275
Basis Points
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II
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when
greater than or equal to 2.0 to 1.0, but less than 3.0 to
1.0
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300
Basis Points
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III
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when
greater than or equal to 3.0 to 1.0
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325
Basis Points
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As
of the
date hereof, the LIBOR Rate Margin shall be set at Level III in the table above.
Changes in the LIBOR Rate Margin, if applicable, shall occur on the first
Business Day following the day on which the quarterly financial statements
and
quarterly Covenant Compliance Certificate have been received by Lender in
accordance with Section 5(c)(2) of the Loan Agreement. Any capitalized terms
used, but not otherwise defined, in this definition shall have the meanings
set
forth in the Loan Agreement.
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“LIBOR
Reserve Percentage”
means,
relative to any day of any LIBOR Interest Period, the maximum aggregate (without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements (including all basic, emergency, supplemental, marginal and other
reserves and taking into account any transitional adjustments or other scheduled
changes in reserve requirements) under any regulations of the Board of Governors
of the Federal Reserve System (the “Board”) or other governmental authority
having jurisdiction with respect thereto as issued from time to time and then
applicable to assets or liabilities consisting of “Eurocurrency Liabilities”, as
currently defined in Regulation D of the Board, having a term approximately
equal or comparable to such LIBOR Interest Period.
“Loan”
means
all amounts outstanding under the Term 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.
“Note”
means
that certain Term Promissory Note of even date herewith in the principal amount
of $13,000,000.00 made payable by the Borrower to the order, and for the
benefit, of the Lender, to which this Rider
A
is
attached.
“Prime
Rate”
shall
mean a rate per annum equal to the rate of interest announced by Lender in
Boston, MA from time to time as its “Prime Rate”. Any change in the Prime Rate
shall be effective immediately from and after such change in the Prime Rate.
Interest accruing by reference to the Prime Rate shall be calculated on the
basis of actual days elapsed and a 360-day year. The Borrower acknowledges
that
the Lender may make loans to its customers above, at or below the Prime
Rate.
“Prime
Rate Loan”
means
the Loan for the period(s) when the rate of interest applicable to the Loan
is
calculated by reference to the Prime Rate.
“Prime
Rate Margin”
means
0% per annum.
“Principal
Repayment Amount”
means
the regularly scheduled reductions in the outstanding principal of the Loan
to
be made on each Interest Payment Date, as set forth in the attached Schedule
A
entitled
“Principal Repayment Schedule.”
“Term
Loan Maturity
Date”
means
July 31, 2010, unless accelerated sooner pursuant to the terms
hereof.
2. Borrowing
Procedures.
2.1 Funding
of the Loan.
On the
Funding Date, subject to the terms and conditions of this Rider and the Loan
Agreement, the Loan shall be made available to the Borrower no later than 11:00
a.m. New York time by a deposit to the Account (or as otherwise instructed
by
the Borrower in writing) in the full principal amount of the Loan. Unless
otherwise prohibited by this Note, 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
and on the Term Loan 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 and on the Term
Loan
Maturity Date. Interest shall be calculated for the actual number of days
elapsed on the basis of a 360-day year, including the first date of the
applicable period to, but not including, the date of repayment.
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3.2 Automatic Rollover of LIBOR Rate Loan. 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 the 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. The Borrower acknowledges that additional
obligations may be associated with any such prepayment under the terms and
conditions of any applicable Hedging Contracts. The Borrower shall give the
Lender, no later than 10:00 a.m., New York City time, at least four (4) Business
Days notice of any proposed prepayment of 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 and accompanied by the payment of all charges
outstanding on the LIBOR Rate Loan (including the LIBOR Breakage Fee (as defined
below)) and of all accrued interest on the principal repaid to the date of
payment.
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), the Borrower shall pay an
amount (“LIBOR Breakage Fee”), as calculated by the Lender, equal to the amount
of any losses, expenses and liabilities (including without limitation any loss
of margin and anticipated profits) that Lender may sustain as a result of such
default or payment. The Borrower understands, agrees and acknowledges that:
(i)
the Lender does not have any obligation to purchase, sell and/or match funds
in
connection with the use of the LIBOR Rate as a basis for calculating the rate
of
interest on a LIBOR Rate Loan, (ii) the LIBOR Rate may be used merely as a
reference in determining such rate, and (iii) the Borrower has accepted the
LIBOR Rate as a reasonable and fair basis for calculating the LIBOR Breakage
Fee
and other funding losses incurred by the Lender. Borrower further agrees to
pay
the LIBOR Breakage Fee and other funding losses, if any, whether or not the
Lender elects to purchase, sell and/or match funds.
4.3 LIBOR
Rate Lending Unlawful.
If the
Lender shall determine (which determination shall, upon notice thereof to the
Borrower be conclusive and binding on the Borrower) that the introduction of
or
any change in or in the interpretation of any law, rule, regulation or
guideline, (whether or not having the force of law) makes it unlawful, or any
central bank or other governmental authority asserts that it is unlawful, for
the Lender to make, continue or maintain 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 the Lender shall notify the Borrower
that the circumstances causing such suspension no longer exist, and all LIBOR
Rate Loans of such type shall automatically convert into Prime Rate Loans at
the
end of the then current LIBOR Interest Periods with respect thereto or sooner,
if required by such law and assertion.
11
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 the 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, the Lender or shall impose on the 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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(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 the Lender of making or maintaining
the Loan as a LIBOR Rate Loan, or to reduce the amount of any sum
received
or receivable by the Lender under this Note with respect thereto,
by an
amount deemed by the Lender to be material, then, within 15 days
after
demand by the Lender, the Borrower shall pay to the Lender such additional
amount or amounts as will compensate the Lender for such increased
cost or
reduction.
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4.5 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 or would affect
the amount of capital required or expected to be maintained by the Lender,
or
person controlling the Lender, and the Lender determines (in its sole and
absolute discretion) that the rate of return on its or such controlling person’s
capital as a consequence of its commitments or the Loan made by the Lender
is
reduced to a level below that which the Lender or such controlling person could
have achieved but for the occurrence of any such circumstance, then, in any
such
case upon notice from time to time by the Lender to the Borrower, the Borrower
shall immediately pay directly to the Lender additional amounts sufficient
to
compensate the Lender or such controlling person for such reduction in rate
of
return. A statement of the Lender as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence
of
manifest error, be conclusive and binding on the Borrower. In determining such
amount, the Lender may use any method of averaging and attribution that it
(in
its sole and absolute discretion) shall deem applicable.
4.6 Taxes.
All
payments by the 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 the Lender’s net income or receipts (such
non-excluded items being called “Taxes”). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required
in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will:
12
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(a)
|
pay
directly to the relevant authority the full amount required to be
so
withheld or deducted;
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(b)
|
promptly
forward to the Lender an official receipt or other documentation
satisfactory to the Lender evidencing such payment to such authority;
and
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|
(c)
|
pay
to the Lender such additional amount or amounts as is necessary to
ensure
that the net amount actually received by the Lender will equal the
full
amount the Lender would have received had no such withholding or
deduction
been required.
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Moreover,
if any Taxes are directly asserted against the Lender with respect to any
payment received by the Lender hereunder, the Lender may pay such Taxes and
the
Borrower will promptly pay such additional amount (including any penalties,
interest or expenses) as is necessary in order that the net amount received
by
the Lender after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount the Lender would have received had
not
such Taxes been asserted. If
the
Borrower fails to pay any Taxes when due to the appropriate taxing authority
or
fail to remit to the Lender the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lender for any incremental Taxes,
interest or penalties that may become payable by the Lender as a result of
any
such failure.
4.7 Unavailability
of LIBOR Rate.
In the
event that Borrower shall have requested a LIBOR Rate Loan in accordance with
the Note or Loan Agreement to which this Rider A is attached (as applicable)
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 the Lender in the London interbank market; or by reason of
circumstances affecting the 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 the Lender’s cost of funding loans; upon notice from the Lender
to the Borrower, the obligations of the Lender under the Note or 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 the Lender shall notify
the
Borrower that the circumstances causing such suspension no longer
exist.
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SCHEDULE
A
PRINCIPAL
REPAYMENT SCHEDULE
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Year
of Term of Loan:
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Monthly
Principal Payment:
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|
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1
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||
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2
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||
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3
|
||
|
4
|
||
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5
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14
