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AMENDMENT NUMBER ONE TO LOAN AGREEMENT
This Amendment to Loan Agreement (the "Amendment") is made
this 1 day of November, 1996 by and between DATARAM CORPORATION,
a New Jersey corporation, having an address at Route 000,
Xxxxxxxxx Xxxx, Xxxx Xxxxxxx Xxxxxxxx, Xxx Xxxxxx (the
"Borrower") and NEW JERSEY NATIONAL BANK, having an address at
CN-1, Xxxxxxxxxx, XX 00000 (the "Bank").
BACKGROUND
WHEREAS, the Borrower and the Bank entered into a certain
Loan Agreement dated October 27, 1994 (the "Agreement");
WHEREAS, the Borrower and the Bank have agreed to amend the
Agreement to increase the amount of the Revolver Credit Advance
Limit and Revolver Note from $10,000,000 to $12,000,000 until
October 31, 1997, then decrease the Revolver Credit Advance Limit
to $6,000,000 on November 1, 1997, extend the Revolving Credit
Maturity Date to October 31, 1998 and correct the Agreement as
hereinafter set forth.
WHEREAS, all capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned to them in the
Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
1 The Revolving Credit Maturity Date is hereby extended
to October 31, 1998. To that end, the definition of Revolving
Credit Maturity Date contained in Section 1.01 of the Agreement
is hereby amended to read in its entirety as follows:
"Revolving Credit Maturity Date" means October 31,
1998.
2. The amount of the Revolver Credit Advance Limit is
increased from $10,000,000 to $12,000,000 until October 31, 1997,
then decreased to $6,000,000 on November 1, 1997 until the
Revolver Credit Maturity Date. To that end, the definition of
Revolving Credit Advance Limit contained in Section 1.01 of the
Agreement is hereby amended to read in its entirety as follows:
"Revolving Credit Advance Limit" means the sum of
Twelve Million Dollars ($12,000,000) through October 31, 1997 and
the sum of Six Million Dollars ($6,000,000) from November 1, 1997
until the Revolving Credit Maturity Date.
3. Section 6.26 of the Agreement is hereby amended to
read in its entirety as follows:
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"6.26. Tangible Net Worth. The Borrower shall
maintain as of April 30, 1996, and thereafter, Tangible Net Worth
of not less than $16,000,000."
4. The Borrower shall execute and deliver to the Bank a
replacement revolver note of the Borrower in substantially the
form attached as Exhibit A-1 (the "Replacement Revolver Note") to
evidence the indebtedness of the Borrower for the Revolving
Credit Advances by the Bank. The Replacement Revolver Note shall
replace and supersede the Revolver Note but shall not extinguish
the Borrower's unconditional obligation to repay the indebtedness
evidenced by the Revolver Note of the Borrower to the Bank dated
October 27, 1994. All references in the Agreement to the
Revolver Note shall henceforth be deemed to refer to the
Replacement Revolver Note.
5. The effectiveness of this Amendment is conditioned
upon the Bank's receipt of the following documents:
(A) This Amendment Number One to Loan Agreement;
(B) Replacement Revolver Note;
(C) Certified Resolutions of the Board of Directors of
the Borrowers authorizing the execution of this Amendment; and
(D) Favorable opinion of counsel to the Borrower dated
the date of this Amendment.
6. Representations and Warranties. The Borrower has
taken all corporate action necessary to authorize the execution,
delivery and performance of this Amendment and the Replacement
Revolver Note. This Amendment and the Replacement Revolver Note
is, or when executed by the Borrower and delivered to the Bank
will be, duly executed and constitute the valid and legally
binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms. The Borrower
hereby ratifies and confirms the representations and warranties
of the Borrower set forth in Article IV of the Agreement (as
updated to reflect Borrower's most recent financial statements)
as being true and correct on the date hereof.
7. Borrower Remains Liable. Nothing contained herein
shall release, satisfy or extinguish any existing obligations of
Borrower to Bank. Borrower hereby confirms that each of the
existing loan documents and all collateral, liens, mortgages,
security interests and pledges created by Borrower and described
therein continue unimpaired and in full force and effect.
8. Indemnity. Borrower agrees to indemnify Bank from
and against any and all claims, losses and liabilities growing
out of or resulting from this Amendment.
9. Waivers. The Bank waives any default or Event of
Default existing on or prior to
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the date hereof which is cured or which would not have occurred
or arisen if the amendments set forth herein had taken
retroactive effect on the date of the Agreement.
10. Incorporation of Amendment. The parties hereto
acknowledge and agree that this Amendment is incorporated into
and made a part of the Agreement and the other existing loan
documents, the terms and provisions of which, unless expressly
modified herein, or unless no longer applicable by their terms,
continue unchanged and in full force and effect. To the extent
that any term or provision of this Amendment is or may be deemed
expressly inconsistent with any term or provision in the
Agreement and the other existing loan documents, the terms and
provisions hereof shall control.
11. Miscellaneous.
(a) Headings. The section headings contained in this
Amendment are included for convenience of reference only and
shall not be used to interpret any provision of this Amendment.
(b) Governing Law. The laws of the State of New Jersey
shall govern the construction of this Amendment and the rights
and remedies of the parties thereto. The provisions hereof are
severable and the validity or unenforceability of any provision
shall not effect or impair the remaining provisions which shall
continue in full force and effect. This Amendment shall bind the
parties hereto and their respective successors and assigns.
(c) Modifications. No modification hereof or any
agreement referred to herein shall be binding or enforceable
unless in writing and signed on behalf of the party against whom
enforcement is sought.
(d) Third Parties. No rights are intended to be created
hereunder for the benefit of any third party, creditor or
incidental beneficiary.
IN WITNESS WHEREOF, the parties have caused the Amendment to
be executed as of the date first above written.
ATTEST: DATARAM CORPORATION,
a New Jersey corporation
By: XXXXXX XXXXXXXXX By: XXXX XXXXXXXX
_______________________ ____________________________
Print Name and Title Print Name and Title
Xxxxxx Xxxxxxxxx Xxxx Xxxxxxxx
Pres & CEO Vice President, Finance
[Signatures Continued on Next Page]
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ATTEST: NEW JERSEY NATIONAL BANK
By: XXXXXX X. XXXXXX By: XXXXXXX X. XXXXX
________________________ ____________________________
Print Name and Title Print Name and Title
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxx
Vice President Vice President
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EXHIBIT A-1
REPLACEMENT
REVOLVER NOTE
$12,000,000.00 Princeton, New Jersey
November __, 1996
FOR VALUE RECEIVED, DATARAM CORPORATION, a New Jersey
corporation, having an address at Xxxxx 000, Xxxxxxxxx Xxxx, Xxxx
Xxxxxxx Township, New Jersey 08543 ("Borrower") , promises to pay
to the order of NEW JERSEY NATIONAL BANK, a national banking
association, having its principal office at 000 Xxxxxx Xxxx,
Xxxxxxxxxx, XX 00000 ("Bank"), at its offices or at such other
address as may hereafter be specified by Bank, in lawful money of
the United States of America, the principal sum of TWELVE MILLION
DOLLARS ($12,000,000.00) (the "Loan"), together with interest
thereon at the rate or rates and in the installments and at the
times hereinafter provided.
1. Definitions. Whenever used in this Replacement Revolver
Note, the following words and phrases shall have the respective
meanings ascribed to them below.
(A) "Adjusted LIBO Rate" - means the LIBO Rate plus the
Applicable Margin.
(B) "Adjusted Prime Rate" - means the Prime Rate minus the
Applicable Margin.
(C) "Applicable Margin" - means, for Prime Rate Tranches
0.75% per annum and for LIBOR Tranches 1.00% per annum.
(D) "Applicable Treasury Bond Obligation(s)" - means the
debt obligation(s) of the United States Treasury having a
maturity date(s) nearest in time to the maturity date(s) of the
principal being prepaid and the maturity date(s) and yield(s) to
maturity of such Applicable Treasury Bond Obligation(s) shall be
determined by Bank in its sole discretion on the basis of
quotations published in the Wall Street Journal (or comparable
source) on the date of prepayment.
(E) "Assessment Rate" - means, for any elected LIBOR
Interest Period for any LIBOR Tranche, the actual rate (rounded
upwards, if necessary, to the nearest 1/100 of 1%) at which
premiums for Federal deposit insurance (if any) are then charged
during such LIBOR Interest Period to CoreStates Bank, N.A. for
Dollar time deposits with CoreStates Bank, N.A. at its foreign
branch.
(F) "Bank" as defined in the introductory paragraph hereof.
(G) "Borrower" - as defined in the introductory paragraph
hereof.
(H) "Business Day" - means any day other than a Saturday,
Sunday, or other day on which commercial banks in New Jersey are
authorized or required to close under the laws of the
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State of New Jersey.
(I) "Contract Right" - as defined in Section 7 hereof.
(J) "Default" - means and refers to any event, act or
occurrence, which with the passing of time or the giving of
notice or both, would constitute an Event of Default as defined
in the Loan Agreement.
(K) "Default Rate" - as defined in Section 7 hereof.
(L) "Dollars" and "$" - mean lawful money of the United
States of America.
(M) "Effective Date" - means, for the Prime Rate Tranche,
the date on which a Prime Rate Interest Period commences,
pursuant to Section 3 hereof, for the LIBOR Tranche, the date
Borrower designates as the date on which a LIBOR Interest Period
is to commence pursuant to Section 3 hereof.
(N) "Eurocurrency Reserve Requirement" - means, for any
LIBOR Tranche for any LIBOR Interest Period relating thereto, the
daily average of the stated maximum rate (expressed as a decimal)
at which reserves (including any marginal, supplemental, or
emergency reserves) are required to be maintained during such
LIBOR Interest Period under Regulation D by a member bank of the
Federal Reserve System against "Eurocurrency liabilities" (as
such term is used in Regulation D) but without benefit of or
credit for proration, exemptions, or offsets that might otherwise
be available to such member bank from time to time under
Regulation D. Without limiting the effect of the foregoing, the
Eurocurrency Reserve Requirement shall reflect any other reserves
required to be maintained by such member bank against (1) any
category of liabilities which includes deposits by reference to
which the LIBOR Interest Rate for LIBOR Tranches is to be
determined or (2) any category of extension of credit or other
assets that include LIBOR Tranches.
(O) "Event of Default" - shall mean an Event of Default as
defined in the Loan Agreement.
(P) "Interest Period" - means any period during which the
Interest Rate is the Adjusted Prime Rate, or any Adjusted LIBO
Rate, as appropriate.
(Q) "Interest Rate" - means the Adjusted LIBO Rate and the
Adjusted Prime Rate, or the Default Rate, as appropriate.
(R) "LIBOR Interest Period" - for a LIBOR Tranche means a
period of time, beginning on an Effective Date, of 30, 60 or 90
days in length, selected by Borrower - by telephone or in writing
(and if by telephone, confirmed by Borrower the same day by
facsimile), during which the Interest Rate for such LIBOR Tranche
is the Adjusted LIBO Rate. If a LIBOR Interest Period would
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otherwise end on a day that is not a Business Day, such LIBOR
Interest Period shall be extended to the next Business Day,
unless such Business Day would fall in the next calendar month,
in which event such LIBOR Interest Period shall end on the
immediately preceding Business Day.
(S) "LIBO Rate" - means, for each LIBOR Tranche, the rate
per annum (rounded upwards, if necessary, to the nearest 1/16th
of 1%) determined by Bank according to the following formula:
R = X + Z
_____
1-Y
where R = LIBO Rate
X = London Interbank Offered Rate for such LIBOR
Tranche for the applicable LIBOR Interest Period
Y = Eurocurrency Reserve Requirement for such LIBOR
Tranche for the applicable LIBOR Interest Period
Z - the Assessment Rate (if applicable).
(AA) "LIBOR Tranche" - means each portion of the Loan to
which an Adjusted LIBO Rate applies.
(AB) "Loan" - as defined in the introductory paragraph
hereof.
(AC) "Loan Documents" - means that certain term note or
notes executed by Borrower to Bank which, in the aggregate does
not exceed Three Million Five Hundred Thousand Dollars
($3,500,000.00), this Replacement Revolver Note in the principal
amount of Twelve Million Dollars ($12,000,000.00), that certain
Loan Agreement dated of even date herewith between Borrower and
Bank and any and all other documents executed by Borrower in
connection with the Loan.
(AD) "London Business Day" - means any Business Day on
which commercial banks, are open for international business
(including dealing in Dollar deposits) in London, England and New
Jersey.
(AE) "London Interbank Offered Rate" - applicable to any
elected LIBOR Interest Period for a LIBOR Tranche means the rate
per annum (rounded upwards, if necessary, to the nearest 1/16th
of 1%) quoted by the principal London branch of CoreStates Bank,
N.A. two London Business Days prior to the first day of such
LIBOR Interest Period for the offering to leading banks in the
London interbank market of Dollar deposits in immediately
available funds for a period, and in an amount, comparable to the
LIBOR Interest Period and principal amount of the LIBOR Tranche
which shall be made by Bank and/or be outstanding during such
LIBOR Interest Period.
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(AF) "Material Adverse Effect" - has the meaning given such
term in the Loan Agreement.
(AG) "Maturity Date" - as defined in Section 3 hereof.
(AH) "Operating Account" - has the meaning given to such
term in Section 3 hereof.
(AI) "Person" - has the meaning given such term in the Loan
Agreement.
(AJ) "Prime Rate" - means for each day, the lending rate
set and announced by Bank from time to time for purposes of
fixing interest rates on various categories of loans which Bank
determines are to be tied to such Prime Rate. The Prime Rate is
not necessarily the lowest rate of interest which Bank charges
any of its customers.
(AK) "Prime Rate Interest Period" - for a Prime Rate
Tranche, means a period of time beginning with an Effective Date,
of 365 days in length, selected by Borrower by telephone or in
writing (and if by telephone, confirmed by Borrower the same day
by facsimile) during which the Interest Rate for such Prime Rate
Tranche is the Adjusted Prime Rate. If the Prime Rate Interest
Period would otherwise end on a day that is not a Business Day,
such Prime Rate Interest Period shall be extended to the next
Business Day, unless such Business Day would fall into the next
calendar month, in which event such Prime Rate Interest Period
shall end on the immediately preceding day.
(AL) "Prime Rate Tranche" - means each portion of the Loan
to which the Adjusted Prime Rate applies.
(AM) "Regulation D" - means Regulation D of the Board of
Governors of the Federal Reserve System as amended or
supplemented from time to time.
2. Interest Rate.
(A) The principal sum outstanding f rom time to time
hereunder shall bear interest from the date or dates advanced
until the date repaid at a rate equal to the Adjusted Prime Rate.
The Adjusted Prime Rate shall change simultaneously with each
change in the Prime Rate.
(B) Notwithstanding the foregoing, at any time up to that
date which is 90 days prior to the Maturity Date, provided no
Event of Default or Default has occurred, Borrower shall have the
option to fix the interest rate on portions of the Loan of TWO
HUNDRED THOUSAND DOLLARS ($200,000.00) or more, in a minimum of
TWO HUNDRED THOUSAND DOLLARS ($200,000.00) at the Adjusted LIBO
Rate, subject to Bank's ability to secure such funds for such
periods.
(C) Borrower may exercise the option to have portions of
the Loan from time to time bear interest at the Adjusted LIBO
Rate by giving Bank written notice (which shall be irrevocable),
by
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telephone or in writing, by 10:00 A.M. at least two London
Business Days before each proposed LIBOR Tranche, specifying the
date and the amount of the proposed LIBOR Tranche and the length
of the proposed LIBOR Interest Period. Borrower will confirm any
telephonic notice of a proposed LIBOR Tranche the same day by
facsimile copy.
(D) The interest due on the Loan shall be payable as
provided in Section 3 below.
3. Interest and Principal Payments; Maturity Date.
(A) Prime Rate Loans. Borrower shall pay interest in
arrears on the unpaid principal amount of the Prime Rate Tranche,
from the date on which the Prime Rate Tranche is created until
such principal amount has been repaid in full, or converted to a
LIBOR Tranche, as the case may be, (1) every thirty (30) days
after the Effective Date of such Prime Rate Tranche and (2) on
the Maturity Date, at the Adjusted Prime Rate.
(B) Conversions to LIBOR Tranches. By notifying Bank at
least two (2) London Business Days prior to an Effective Date,
Borrower may convert into a LIBOR Tranche all or any part of any
Prime Rate Tranche at any time in a minimum principal amount of
$200, 000. 00. At the end of the applicable LIBOR Interest
Period, the LIBOR Tranche will convert to a Prime Rate Tranche
unless Borrower notifies Bank at least two (2) London Business
Days before the end of the existing LIBOR Interest Period that
Borrower is electing to continue all or any part of the tranche
as a LIBOR Tranche and is selecting a new LIBOR Interest Period.
(C) Libor Tranches. Borrower shall pay interest in arrears
on the unpaid principal amount of each LIBOR Tranche at the
Adjusted LIBO Rate for such LIBOR Tranche from the date on which
such LIBOR Tranche is created until such principal amount has
been paid in full, or converted to a Prime Rate Tranche, as the
case may be, (1) every 30 days after the Effective Date of such
LIBOR Tranche, and (2) on the Maturity Date at the adjusted LIBO
Rate.
(D) Principal Repayment. Borrower shall repay the
outstanding principal balance of the Loan, all accrued and unpaid
interest thereon and any other sums then outstanding hereunder or
under the Loan Documents on October 31, 1998 (the "Maturity
Date"). Notwithstanding the foregoing, any principal amount
outstanding hereunder in excess of $6,000,000 on October 31, 1997
shall be repaid on that date.
(E) Operating Account. Borrower covenants and agrees to
maintain an operating account with Bank at all times during which
any portion of the Loan remains outstanding (the "Operating
Account"). Borrower hereby authorizes Bank to charge the
Operating Account for all payments hereunder as they become due.
Borrower agrees to keep in the Operating Account sufficient
amount to make such payments as and when they come due. Bank's
failure to so charge the Operating Account in order to satisfy
Borrower's payment obligations hereunder shall not relieve
Borrower's obligations to make all such payments. In the event
that Borrower shall fail to maintain a sufficient balance in the
Operating Account to satisfy a payment obligation on the date
such payment becomes
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due, Borrower shall continue to be obligated to make such payment
and, if such payment is not made by Borrower in some other manner
on or before the date such payment becomes due, such failure
shall constitute an Event of Default hereunder. All payments
received by Bank from Borrower shall be applied in the following
order: (a) to the payment of fees and other costs and expenses
then due and owing from Borrower, (b) to the payment of accrued
and unpaid interest then due, (c) to the payment of any
outstanding principal hereunder.
(F) Interest Calculation. Both before and after any
default, interest shall be calculated on the basis of a 360 day
year but charged on the basis of the actual number of days
elapsed in any calendar year or part thereof.
4. Prepayments.
(A) Borrower may prepay the Prime Rate Tranches in whole or
in part at any time and from time to time in a minimum amount of
Two Hundred Thousand Dollars ($200,000.00).
(B) Borrower may, at any time, prepay the principal balance
of a LIBO Rate Tranche in whole or in part, provided that
Borrower simultaneously therewith pays to Bank a prepayment
premium equal to the amount, if any, by which (a) the principal
being prepaid plus the installments of interest which would have
been payable thereon when discounted to a present value at a rate
per annum equal to the yield to maturity of the Applicable
Treasury Bond Obligation(s) exceed(s) (b) the principal amount
being prepaid. Borrower agrees to pay prepayment premium as
calculated in the foregoing sentence upon any prepayment of the
LIBOR Tranche, whether voluntary, required by Bank in connection
with any acceleration of the indebtedness hereunder upon the
occurrence of an Event of Default, or as otherwise required under
this Replacement Revolver Note. A determination of Bank as to
the amounts payable pursuant to this Section 4(B) shall be
conclusive absent manifest error.
5. Late Charges. If any installment of principal or interest
or both hereunder or other payment required to be made by
Borrower under the other Loan Documents is not paid within ten
(10) days after becoming due, Borrower shall pay to Bank on
demand a late charge of five percent (5%) of such overdue amount
to reimburse Bank for the additional expenses to be incurred as a
result of such delinquency, but such late payment fee shall not
obligate Bank to accept any overdue payment hereunder nor limit
the rights and remedies available to Bank as a result of
Borrower's default, as hereinafter provided. The amount of any
such late charge not paid promptly following demand shall be
deemed outstanding and payable pursuant to this Replacement
Revolver Note.
6. Event of Default. An Event of Default shall mean an Event
of Default as defined in the Loan Agreement .
7. Default Rate. Upon the occurrence of an Event of Default
hereunder, the interest rate otherwise payable hereunder (the
"Contract Rate") shall increase immediately and without notice
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and thereafter shall be payable at a rate of three percent (3%)
per annum in excess of the Contract Rate (said higher rate is
hereinafter called the "Default Rate"), until the Event of
Default has been cured, or in the event the principal of this
Replacement Revolver Note has been accelerated, until this
Replacement Revolver Note is paid in full, including the period
following entry of any judgment on or relating to this
Replacement Revolver Note or the other Loan Documents. Interest
on any such judgment shall accrue and be payable at the Default
Rate, and not at the statutory rate of interest, after judgment,
any execution thereon, and until actual receipt by the holder of
payment in full of this Replacement Revolver Note and said
judgment. Interest at the Default Rate shall be collectible as
part of any judgment hereunder and shall be secured by the other
Loan Documents.
8. Remedies. Upon the occurrence of an Event of Default, the
Bank shall be entitled to exercise all remedies available to it
under the terms of the Loan Agreement.
9. Accounts. Borrower hereby covenants and agrees that while
the Loan is outstanding it will maintain all of its bank accounts
with Bank.
10. Waivers by Borrower, Cumulative Remedies.
(A) Borrower hereby waives presentment for payment, demand,
notice of non-payment, notice of protest and protest of this
Replacement Revolver Note. The Borrower hereby consents to any
and all extensions of time, renewals, waivers or modifications
that may be granted by the Bank with respect to the payment or
other provisions of this Replacement Revolver Note, and agrees
that additional obligors may become parties hereto without notice
to the Borrower without affecting the Borrower's liability
hereunder.
(B) Borrower hereby waives-the benefit of any laws which
now or hereinafter might otherwise authorize the stay of any
execution to be issued on any judgment covered on this
Replacement Revolver Note. Borrower hereby waives its right to
trial by jury in connection with a portion of this Replacement
Revolver Note or under the loan agreement or any other document
executed in connection with this Loan and any legal proceeding
arising hereunder or thereunder.
(C) No failure or delay on the part of the Bank in
exercising any right, power or privilege under this Replacement
Revolver Note and no course of dealing between the Borrower and
the Bank shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall
preclude any other or further exercise of any right, power or
privilege that the Bank would otherwise have. No notice to, or
demand on, the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other
circumstances would constitute a waiver of the right of the Bank
to any other or further action and any circumstances without
notice or demand.
11. Costs and Expenses. The Borrower agrees, in accordance with
the terms of the Loan Agreement, to pay all costs and expenses of
the Bank incurred in order to enforce any remedy available to the
Bank under this Replacement Revolver Note, the Loan Agreement or
any Loan
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Document.
12. Reimbursement to Bank for Increased Costs Due to Capital
Adequacy Requirements. If after the date hereof any change in
law or regulation or the interpretation thereof by any court or
administrative or governmental authority charged with the
administration thereof, or compliance by Bank with any request or
directive (whether or not having the force of law) of any such
authority, applicable from time to time now or after the date
hereof to banks in general, shall (A) impose, modify, deem
applicable or result in the application of any capital
maintenance, capital ratio or similar requirements against loan
commitments or other facilities made by Bank and the result
thereof shall be to impose upon Bank a fee or a requirement to
increase any capital requirement applicable as a result of the
making or maintenance of the Loan (which imposition of or
increase in capital requirements may be determined by Bank's
reasonable allocation of the aggregate of such capital
impositions or increases), or (B) subject Bank to any tax, duty
or other charge with respect to the Loan, the Replacement
Revolver Note, or change the basis of taxation of payments to
Bank of the .principal of or interest on the Loan or any other
amounts due under this Agreement, in respect of the Loan (except
for changes in the rate of tax on the overall net income of Bank
imposed by any jurisdiction in which Bank is obligated to pay
taxes), then, upon demand by Bank, Borrower shall immediately pay
to Bank from time to time as specified by Bank, such additional
amounts or fees which shall be sufficient to compensate Bank for
such impositions of or increases in capital requirements or taxes
from the date of such change, together with interest on each such
amount from the date demanded until payment in full -thereof at
the Default Rate with respect to amounts or fees not paid when
due. Upon the occurrence of any event referred to above, a
certificate setting forth- in reasonable detail the amounts
necessary to compensate Bank as a result of an imposition of or
increase in capital requirements or taxes submitted by Bank to
Borrower shall be conclusive, absent manifest error or bad faith,
as to the amount thereof.
13. Special Provisions of LIBOR Tranches.
(A) Unavailability of Funds and Indeterminate Interest
Rates. If on or before the date Bank is to make any LIBOR
Tranche or on or before any Effective Date (1) Bank determines in
good faith that it is unable to obtain funds at the LIBO Rate for
the elected Interest Period for any reason, including, but not
limited to the unavailability of funds at such rate, any change
in existing law, any new law, the length of such Interest Period,
or otherwise or (2) Bank determines in good faith that no
adequate means exists to determine the LIBO Rate for such
Interest Period, then, at Bank's option, Borrower shall be deemed
to have requested a Prime Rate Tranche or shall be required to
elect an Interest Period of a length for which Bank may obtain
funds at the rate the adjustment of which determines the LIBO
Rate.
(B) Changes Affecting Ability to Maintain Funds. If,
during any Interest Period, any change in existing law, any new
law, or any other factor beyond the control of Bank prevents Bank
in its good faith determination from maintaining funds at the
rate the adjustment of which determines the LIBO Rate for such
Interest Period and requires Bank to cease so maintaining funds
actually so
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maintained prior to termination of such Interest Period, then on
the date of such required cessation, Borrower shall be required
to specify a different Interest Rate for such Interest Period or,
in the alternative, to elect an Interest Period of a length for
which Bank may maintain funds at the rate the adjustment of which
determines the LIBO Rate. In addition, within five days after
Bank notifies Borrower of such required conversion, Borrower
shall reimburse Bank for any loss or expense Bank has certified
in writing to Borrower that Bank has incurred as a result of any
such required cessation.
14. Interest Limitation; Severability.
(A) Nothing herein contained nor any transaction related
hereto shall be construed or shall operate either presently or
prospectively to require Borrower to pay interest at a rate
greater than is now lawful in such case to contract for, but
shall require payment of interest only to the extent of such
lawful rate. Any interest paid in excess of the lawful rate
shall be refunded to Borrower. Such refund shall be made by
application of the excessive amount of interest paid against any
sums outstanding hereunder, in which event any applicable
prepayment premium shall be waived with respect to the amount so
prepaid, and shall be applied in such order as Bank may
determine. If the excessive amount of interest paid exceeds the
sums outstanding hereunder, the portion exceeding the said sums
outstanding hereunder shall be refunded in cash by Bank. Any
such crediting or refund shall not cure or waive any default by
Borrower hereunder or under the other Loan Documents. Borrower
agrees, however, that in determining whether or not any interest
payable hereunder exceeds the highest rate permitted by law, any
non-principal amount (except payments specifically stated herein
to be "interest"), including, without limitation, late charges,
shall be deemed, to the extent permitted by law, to be an
expense, fee, premium or penalty rather than interest.
(B) In the event that for any reason one or more of the
provisions of this Replacement Revolver Note or their application
to any person or circumstance shall be held to be invalid,
illegal or unenforceable in any respect or to any extent, such
provisions shall, to such extent, be held for naught as though
not herein contained but shall nevertheless remain valid, legal
and enforceable in all such other respects and to such extent as
may be permissible. In addition, any such invalidity, illegality
or unenforceability shall not affect any other provisions of this
Replacement Revolver Note, but this Replacement Revolver Note
shall be construed as if such invalid, illegal or unenforceable
provisions had never been contained herein.
15. Notices. All notices, requests, demands or other
communications to or upon the Borrower or the Bank shall be
deemed to have been given or made when hand delivered or
deposited in the mail by certified mail, return receipt
requested, postage prepaid, addressed to the Borrower or the
Bank, as the case may be, at their respective addresses indicated
herein or at such other addresses as the Borrower or the Bank may
hereafter specify in writing to the other, except that any
communication with respect to a change of address shall be deemed
to be given or made when received by the Borrower or the Bank to
whom such communication was sent.
16. Successors and Assigns. This Replacement Revolver Note
is binding upon the
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Borrower and its successors and assigns except that Borrower
shall not have the right to assign its rights or obligations
hereunder or any interest herein.
17. Amendment. This Replacement Revolver Note may not be
changed orally, but only by an agreement in writing signed by the
party against whom enforcement of any waiver, change,
modification or discharge is sought.
18. Governing Law. This Replacement Revolver Note has been
executed and delivered in the State of New Jersey and shall be
construed and enforced in accordance with the laws of the State
of New Jersey.
19. Captions. The captions or headings of the sections in this
Replacement Revolver Note are for convenience only and shall not
control or effect the meaning or construction of any term or
provision of this Replacement Revolver Note.
IN WITNESS WHEREOF, the Borrower has executed this
Replacement Revolver Note as of the date and year first above
written.
ATTEST: DATARAM CORPORATION,
a New Jersey corporation
By: XXXXXX XXXXXXXXX By: XXXX XXXXXXXX
________________________ _______________________
Print Name and Title Print Name and Title
Xxxxxx Xxxxxxxxx Xxxx Xxxxxxxx
President & CEO Vice President, Finance
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SCHEDULE TO REVOLVER NOTE
Unpaid
Principal
Amount of Balance of Name of
Amount of Principal Revolving Person Making
Date Loan Prepaid Credit Note Notation
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