AMENDMENT NUMBER FOUR TO LOAN AGREEMENT
This Amendment Number Four to Loan Agreement (the "Amendment") is made
as of the 31st day of October, 2000, by and between DATARAM CORPORATION, a
New Jersey corporation, having an address at Route 000, Xxxxxxxxx Xxxx,
Xxxx Xxxxxxx Xxxxxxxx, Xxx Xxxxxx (the "Borrower") and FIRST UNION NATIONAL
BANK, successor by merger to CoreStates Bank, N.A., successor by merger to
New Jersey National Bank, having an address at 000 Xxxxxx Xxxx, Xxxx
Xxxxxxx, Xxx Xxxxxx 00000 (the "Bank").
BACKGROUND
WHEREAS, the Borrower and the Bank entered into a certain Loan
Agreement dated October 27, 1994 (the "Loan Agreement"), as amended by
Amendment Number One to Loan Agreement dated November 1, 1996, by the
Letter Agreement dated October 22, 1997, by Amendment Number Two to Loan
Agreement dated October 26, 1998, and by Amendment Number Three to Loan
Agreement dated October 29, 1999 (the Loan Agreement, as amended through
the date hereof is referred to herein as the "Agreement");
WHEREAS, the Borrower and the Bank have agreed to further amend the
Agreement to maintain the amount of the Revolver Credit Advance Limit at
$12,000,000 until October 31, 2001, then decrease the amount of the
Revolver Credit Advance Limit to $6,000,000 from November 1, 2001, extend
the Revolving Credit Maturity Date to October 31, 2002, and amend and
modify the Agreement as hereinafter set forth.
WHEREAS, all capitalized terms used herein and not otherwise defined
herein shall have the meaning assigned to them in the Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. The Revolving Credit Maturity Date is hereby extended to October 31,
2002. To that end, the definition of Revolving Credit Maturity Date
contained in Section 1.02 of the Agreement is hereby amended to read in its
entirety as follows:
"Revolving Credit Maturity Date" means October 31, 2002.
2. The amount of the Revolver Credit Advance Limit is maintained at
$12,000,000 from November 1, 2000 until October 31, 2001, then decreased to
$6,000,000 on November 1, 2001 until the Revolver Credit Maturity Date. To
that end, the definition of Revolving Credit Advance Limit contained in
Section 1.02 of the Agreement is hereby amended to read in its entirety as
follows:
"Revolving Credit Advance Limit" means the sum of Twelve
Million Dollars ($12,000,000) through October 31, 2001
and the sum of Six Million Dollars ($6,000,000) from
November 1, 2001 until the Revolving Credit Maturity Date.
3. 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 "Fourth Replacement Revolver Note") to evidence the indebtedness
of the Borrower for the Revolving Credit Advances by the Bank. The Fourth
Replacement Revolver Note shall replace and supercede the Revolver Note of
the Borrower to the Bank dated October 27, 1994, the Replacement
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Revolver Note of the Borrower to the Bank dated November 1, 1996, the
Second Replacement Revolver Note of the Borrower to the Bank dated October
26, 1996 [which should have been dated 1998] and the Third Replacement
Revolver Note of the Borrower to the Bank dated October 29, 1999
(collectively, the "Original Notes"), but shall not extinguish the
Borrower's unconditional obligation to repay the indebtedness evidenced by
the Original Notes. All references in the Agreement to the Revolver Note
shall henceforth be deemed to refer to the Fourth Replacement Revolver
Note.
4. The effectiveness of this Amendment is conditioned upon the Bank's
receipt of the following documents:
(A) This Amendment Number Three to Loan Agreement; and
(B) Fourth Replacement Revolver Note.
5. Representations and Warranties. In order to induce the Bank to
enter into this Amendment, the Borrower makes the following representations
and warranties to the Bank, which shall survive the execution and delivery
hereof:
(1) It is a corporation duly incorporated and validly existing
and in good standing under the laws of the jurisdiction of its
incorporation and has the corporate power to execute, deliver and perform
its obligations under the Agreement as amended by this Amendment;
(2) The execution and delivery of this Amendment has been
authorized by all necessary corporate action on its part, this Amendment
has been duly executed and delivered by it; and this Amendment and the
Agreement, as amended hereby, constitutes the legal, valid and binding
obligations of it enforceable against it in accordance with its terms
subject to applicable bankruptcy, insolvency, reorganization and other laws
affecting creditors' rights generally, moratorium laws from time to time
in effect and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(3) Neither the execution and delivery of this Amendment, nor
the consummation by the Borrower of the transactions herein contemplated,
nor compliance with the terms, conditions and provisions hereof will
conflict with or result in a breach of any of the terms, conditions or
provisions of (i) its Articles or Certificate of Incorporation or By-Laws;
(ii) any other agreement or instrument to which it is now a party or by
which it or its property is, or may be, bound, or constitute a default
thereunder, or result thereunder in the creation or imposition of any
security interest, mortgage, lien, charge or encumbrance of any nature
whatsoever upon any of its properties or assets; or (iii) any judgment or
order, writ, injunction or decree of any court to which it is subject;
(4) No action of, or filing with, any governmental or public
body or authority is required to authorize, or is otherwise required in
connection with the execution, delivery and performance of this Amendment;
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(5) No Event of Default has occurred and is continuing under the
Agreement, and no event has occurred which, with notice, lapse of time or
both, would constitute such an Event of Default; and
(6) The representations and warranties set forth in the
Agreement and the other Loan Documents are true and correct as of the date
hereof in all material respects (as updated to reflect Borrower's most
recent financial statements).
6. Full Force and Effect. The parties hereto acknowledge and agree
that this Amendment is incorporated into and made a part of the Agreement
and the other Loan Documents, the terms and provisions of which, unless
expressly modified herein, or unless no longer applicable by their terms,
continue unchanged and in full force and effect. To the extent that any
term or provision in the Amendment is or may be deemed expressly
inconsistent with any term or provision in the Agreement and the other Loan
Documents, the terms and provisions hereof shall control. This Amendment
is limited as written and shall not be deemed (i) to be an amendment of or
a consent under or waiver of any other term or condition of the Agreement
or (ii) to prejudice any right or rights which the Bank now has or may have
in the future under or in connection with the Agreement or the other Loan
Documents.
7. Security Interests. It is agreed and confirmed that after giving
effect to this Amendment, the security interests granted by the Borrower
pursuant to the Security Agreement and the other Loan Documents secure,
inter alia, the payment of the obligations arising under the Agreement, as
amended by this Amendment.
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. Miscellaneous.
(1) Headings. The section headings contained in this Amendment are
included for convenience of reference only and shall not be used to
interpret any provision of this Amendment.
(2) Governing Law. The laws of the State of New Jersey shall govern
the construction of this Amendment and the rights and remedies of the
parties thereto. The provisions hereof are severable and the validity or
unenforceability of any provision shall not effect or impair the remaining
provisions which shall continue in full force and effect. This Amendment
shall bind the parties hereto and their respective successors and assigns.
(3) Modifications. No modification hereof or any agreement referred
to herein shall be binding or enforceable unless in writing and signed on
behalf of the party against whom enforcement is sought.
(4) Third Parties. No rights are intended to be created hereunder
for the benefit of any third party, creditor or incidental beneficiary.
(5) Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, and all which when taken together shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the parties have caused the Amendment to be executed as
of the date first above written.
ATTEST: DATARAM CORPORATION,
A New Jersey corporation
By:_________________________ By:______________________________
_________________________ ______________________________
Print Name and Title Print Name and Title
FIRST UNION NATIONAL BANK
By:______________________________
______________________________
Print Name and Title
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EXHIBIT A-1
FOURTH
REPLACEMENT
REVOLVER NOTE
$12,000,000.00 West Windsor, New Jersey
as of October 31, 2000
FOR VALUE RECEIVED, DATARAM CORPORATION, a New Jersey corporation,
having an address at Xxxxx 000, Xxxxxxxxx Xxxx, Xxxx Xxxxxxx Township, New
Jersey 08543 ("Borrower"), promises to pay the order of FIRST UNION
NATIONAL BANK, successor by merger to CoreStates Bank, N.A., successor by
merger to New Jersey National Bank, a national banking association, having
its principal office at 000 Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000
("Bank"), at its offices or at such other address as may hereafter be
specified by Bank, in lawful money of the United States of America, the
principal sum of TWELVE MILLION DOLLARS ($12,000,000.00), or the aggregate
unpaid principal amount of all Revolving Credit Advances (as defined in the
Loan Agreement, hereinafter referred to) made to the Borrower by the Bank
(the "Loan") pursuant to the Loan Agreement, together with interest thereon
at the rate or rates and in the installments and at the times hereinafter
provided.
1. Definitions. Whenever used in this Fourth Replacement Revolver
Note, the following words and phrases shall have the respective meanings
ascribed to them below.
(1) "Adjusted LIBOR Rate" - means the LIBOR Rate plus the
Applicable Margin.
(2) "Adjusted Prime Rate" - means the Prime Rate minus the
Applicable Margin.
(3) "Applicable Margin" - means, for Prime Rate Tranches 0.75%
per annum and for LIBOR Tranches 1.00% per annum.
(4) "Bank" - as defined in the introductory paragraph hereof.
(5) "Borrower" - as defined in the introductory paragraph
hereof.
(6) "Business Day" - means any day other than a Saturday,
Sunday, or other day on which commercial banks in New Jersey are authorized
or required to close under the laws of the State of New Jersey.
(7) "Contract Right" - as defined in Section 7 hereof.
(8) "Default" - means and refers to any event, act or
occurrence, which with the passing of time or the giving of notice or both,
would constitute and Event of Default as defined in the Loan Agreement.
(9) "Default Rate" - means and refers to any event, act or
occurrence, which with the passing of time or the giving of notice or both,
would constitute an Event of Default as defined in the Loan Agreement.
(10) "Dollars" and "$" - mean lawful money of the United States
of America.
(11) "Effective Date" - means, for the Prime Rate Tranche, the
date on which a Prime Rate Interest Period commences, pursuant to Section 3
hereof, for the LIBOR Tranche, the date Borrower designates as the date on
which a LIBOR Interest Period is to commence pursuant to Section 3 hereof.
(12) "Event of Default" - shall mean and Event of Default as
defined in the Loan Agreement.
(13) "Indemnified Loss or Expense" - as defined in Section 4
hereof.
(14) "Interest Period" - means any period during which the
Interest Rate is the Adjusted Prime Rate, or any Adjusted LIBOR Rate, or
the Default Rate, as appropriate.
(15) "Interest Rate" - means the Adjusted LIBOR Rate and the
Adjusted Prime Rate, or the Default Rate, as appropriate.
(16) "LIBOR Interest Period" - for a LIBOR Tranche means,
initially, the period of time, beginning on an Effective Date and ending
one, two or three months thereafter, as selected by Borrower-by telephone
or in writing (and if by telephone, confirmed by Borrower the same day by
facsimile), during which the Interest Rate for such LIBOR Tranche is the
Adjusted LIBOR Rate and thereafter, each period commencing on the last day
of the immediately preceding LIBOR Interest Period and ending one, two or
three months thereafter, as selected by Borrower-by telephone or in writing
(and if by telephone, confirmed by Borrower the same day by facsimile), but
in no event after the Revolving Credit Maturity Date; subject, however, to
the following provisions: (i) if any LIBOR Interest Period would otherwise
end on a day which is not a Business Day, that LIBOR Interest Period shall
be extended to the next succeeding Business Day unless the result of such
extension would be to carry such LIBOR Interest Period into another
calendar month, in which event such LIBOR Interest Period shall end on the
immediately preceding Business Day; and (ii) any LIBOR Interest Period that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such LIBOR Interest Period) shall end on the last Business Day of a
calendar month.
(17) "LIBOR Rate" - means, for each LIBOR Tranche, with respect
to each day during each LIBOR Interest Period, the rate (rounded to the
next higher 1/100 of 1%) for U.S. dollar deposits for the relevant LIBOR
Interest Period, as reported on Telerate page 3750 as of 11:00 a.m., London
time, on the second London Business Day before the relevant LIBOR Interest
Period begins (or if not so reported, then as determined by the Bank from
another recognized source or interbank quotation), adjusted for reserves by
dividing that rate by 1.00 minus the LIBOR Reserve.
(18) "LIBOR Reserve" means the maximum percentage reserve
requirement (rounded to the next higher 1/100 of 1% and expressed as a
decimal) in effect for any day during the LIBOR Interest Period under the
Federal Reserve
Board's Regulation D for Eurocurrency liabilities as defined therein.
Notwithstanding the foregoing, if the Borrower has hedged the interest
expense incidental to any Loan accruing interest based upon the LIBOR Rate
by entering into an interest rate swap transaction pursuant to a swap
agreement, LIBOR Rate shall be rounded five decimal places in accordance
with the 1991 ISDA Definitions published by the International Swaps and
Derivatives Association, Inc.
(19) "LIBOR Tranche" - means each portion of the Loan to which
an Adjusted LIBOR Rate applies.
(20) "Loan" - as defined in the introductory paragraph hereof.
(21) "Loan Agreement" - means the Loan Agreement dated October
27, 1994, as amended by Amendment Number One to Loan Agreement dated
November 1, 1996, by the Letter Agreement dated October 22, 1997, by
Amendment Number Two to Loan Agreement dated October 26, 1998, by Amendment
Number Three to Loan Agreement dated October 26, 1999, by Amendment Number
Four to Loan Agreement dated October 31, 2000 and as may be further
amended, supplemented, modified or extended from time to time.
(22) "Loan Documents" - means this Fourth Replacement Revolver
Note in the Principal amount of up to Twelve Million Dollars
($12,000,000.00), the Loan Agreement and any and all other documents
executed by Borrower in connection with the Loan.
(23) "London Business Day" - means any Business Day on which
commercial banks, are open for international business (including dealing in
Dollar deposits) in London, England and New Jersey.
(24) "Material Adverse Effect" - has the meaning given such term
in the Loan Agreement.
(25) "Maturity Date" - as defined in Section 3 hereof.
(26) "Operating Account" - has the meaning given to such term in
Section 3 hereof.
(27) "Person" - has the meaning given such term in the Loan
Agreement.
(28) "Prime Rate" - means for each day, the lending rate set and
announced by Bank from time to time for purposes of fixing interest rates
on various categories of loans which Bank determines are to be tied to such
Prime Rate. The Prime Rate is not necessarily the lowest rate of interest
which Bank charges any of its customers.
(29) "Prime Rate Interest Period" - for a Prime Rate Tranche,
means a period of time beginning with an Effective Date, of 365 days in
length, selected by Borrower by telephone or in writing (and if by
telephone, confirmed by Borrower the same day be facsimile) during which
the Interest Rate for such Prime Rate Tranche is the Adjusted Prime Rate.
If the Prime Rate Interest Period would otherwise end on a day that is not
a Business Day, such Prime
Rate Interest Period shall be extended to the next business Day, unless
such Business Day would fall into the next calender month, in which event
such Prime Rate Interest Period shall end on the immediately preceding day.
(30) "Prime Rate Tranche" - means each proportion of the Loan to
which the Adjusted Prime Rate applies.
(31) "Regulation D" - means Regulation D of the Board of
Governors of the Federal Reserve System as amended or supplemented from
time to time.
2. Interest Rate
(1) The principal sum outstanding from time to time hereunder
shall bear interest from the date or dates advanced until the date repaid
at a rate equal to the Adjusted Prime Rate. The Adjusted Prime Rate shall
change simultaneously with each change in the Prime Rate.
(2) Notwithstanding the foregoing, at any time up to that date
which is 90 days prior to the Maturity Date, provided no Event of Default
or Default has occurred, Borrower shall have the option to fix the interest
rate on portions of the Loan of TWO HUNDRED THOUSAND DOLLARS ($200,000.00)
or more, in a minimum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) at the
Adjusted LIBOR Rate, subject to Bank's ability to secure such funds for
such periods.
(3) Borrower may exercise the option to have portions of the
Loan from time to time bear interest at the Adjusted LIBOR Rate by giving
bank written notice (which shall be irrevocable), by telephone or in
writing, by 10:00 A.M. at least two London Business Days before each
proposed LIBOR Tranche, specifying the date and the amount of the proposed
LIBOR Tranche and the length of the proposed LIBOR Interest Period.
Borrower will confirm any telephonic notice of a proposed LIBOR Tranche the
same day by facsimile copy.
(4) The interest due on the Loan shall be payable as provided in
Section 3 below.
3. Interest and Principal Payments; Maturity Date.
(1) Prime Rate Loans. Borrower shall pay interest in arrears on
the unpaid principal amount of the Prime Rate Tranche, from the date on
which the Prime Rate Tranche is created until such principal amount has
been repaid in full, or converted to a LIBOR Tranche, as the case may be,
(1) every thirty (30) days after the Effective Date of such Prime Rate
Tranche and (2) on the Maturity Date, at the Adjusted Prime Rate.
(2) Conversions to LIBOR Tranches. By notifying Bank at least
two (2) London Business Days prior to an Effective Date, Borrower may
convert into a LIBOR Tranche all or any all or any part of any Prime Rate
Tranche at any time in a minimum principal amount of $200,000.00. At the
end of the applicable LIBOR Interest Period, the LIBOR Tranche will convert
to a Prime Rate Tranche unless Borrower notifies Bank at least (2) London
Business Bays before the end of the existing LIBOR Interest Period that
Borrower is electing to continue all or any part of the Tranche as a LIBOR
Tranche and is selecting a new LIBOR Interest Period.
(3) LIBOR Tranches. Borrower shall pay interest in arrears on
the unpaid principal amount of each LIBOR Tranche at the Adjusted LIBOR
Rate for such LIBOR Tranche from the date on which such LIBOR Tranche is
created until such principal amount has been paid in full, or converted to
a Prime Rate Tranche, as the case may be, (1) every 30 days after the
Effective Date of such LIBOR Tranche, and (2) on the Maturity Date at the
Adjusted LIBOR Rate.
(4) Principal Repayment. Borrower shall repay the outstanding
principal balance of the Loan, all accrued and unpaid interest thereon and
any other sums then outstanding hereunder or under the Loan Documents on
October 31, 2001 (the "Maturity Date").
(5) Operating Account. Borrower covenants and agrees to
maintain an operating account with Bank at all times during which any
portion of the Loan remains outstanding (the "Operating Account").
Borrower hereby authorizes Bank to charge the Operating Account for all
payments hereunder as they become due. Borrower agrees to keep in the
Operating Account sufficient amount to make such payments as and when they
come due. Bank's failure to so charge the Operating Account in order to
satisfy Borrower's payment obligations hereunder shall not relieve
Borrower's obligations to make all such payments. In the event that
Borrower shall fail to maintain a sufficient balance in the Operating
Account to satisfy a payment obligation on the date such payment becomes
due, Borrower shall continue to be obligated to make such payment and, if
such payment is not made by Borrower in some other manner on or before the
date such payment becomes due, such failure shall constitute an Event of
Default hereunder. All payments received by Bank from Borrower shall be
applied in the following order: (i) to the payment of fees and other costs
and expenses then due and owing from Borrower, (ii) to the payment of
accrued and unpaid interest then due, (iii) to the payment of any
outstanding principal hereunder.
(6) Interest Calculation. Both before and after any default,
interest shall be calculated on the basis of a 360 day year but charged on
the basis of the actual number of days elapsed in any calender year or part
thereof.
4. Prepayments.
(1) Borrower may repay the Prime Rate Tranches in whole or in
part at any time and from time to time in a minimum amount of Two Hundred
Thousand Dollars ($200,000.00).
(2) Borrower may, at any time, prepay the principal balance of a
LIBOR Rate Tranche in whole or in part; provided, however, that Borrower
shall indemnify Bank against Bank's loss or expense in employing deposits
as a consequence of any prepayment of any LIBOR Rate Tranche on a date
other than the last day of the LIBOR Interest Period ("Indemnified Loss or
Expense"). The amount of such Indemnified Loss or Expense shall be
determined by Bank based upon the assumption that Bank funded 100% of
such LIBOR Rate Tranche in the London interbank market. Any prepayment
shall include accrued and unpaid interest to the date of prepayment on the
principal amount prepaid and all other sums due and payable hereunder.
Nothing herein shall be deemed to alter or affect any obligations that
Borrower may have to Bank under any interest rate swap agreements.
Borrower agrees to pay the Indemnified Loss or Expense upon any prepayment
of the LIBOR Tranche, whether voluntary, required by Bank in connection
with any acceleration of the indebtedness hereunder upon the occurrence of
an Event of Default, or as otherwise required under this Fourth Replacement
Revolver Note. A determination of Bank as to the amounts payable pursuant
to this Section 4(B) shall be conclusive absent manifest error.
5. Late Charges. If any installment of principal or interest or both
hereunder or other payment required to made by Borrower under the other
Loan Documents is not paid within ten (10) days after becoming due,
Borrower shall pay to Bank on demand a late charge of five percent (5%) of
such overdue amount to reimburse Bank for the additional expenses to be
incurred as a result of such delinquency, but such late payment fee shall
not obligate Bank to accept any overdue payment hereunder nor limit the
rights and remedies available to Bank as a result of Borrower's default, as
hereinafter provided. The amount of any such late charge not paid promptly
following demand shall be deemed outstanding and payable pursuant to this
Fourth Replacement Revolver Note.
6. Event of Default. An Event of Default shall mean and Event of
Default as defined in the Loan Agreement.
7. Default Rate. Upon the occurrence of an Event of Default
hereunder, the interest rate otherwise payable hereunder (the "Contract
Rate") shall increase immediately and without notice and thereafter shall
be payable at a rate of three (3%) per annum in excess of the Contract Rate
(said higher rate is hereinafter called the "Default Rate"), until the
Event of Default has been cured, or in the event the principal of this
Fourth Replacement Revolver Note has been accelerated, until this Fourth
Replacement Revolver Note is paid in full, including the period following
entry of any judgment on or relating to this Fourth 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 Fourth Replacement Revolver Note
and said judgment. Interest at the Default Rate shall be collectible as
part of any judgment hereunder and shall be secured by the other Loan
Documents.
8. Remedies. Upon the occurrence of an Event of Default, the Bank
shall be entitled to exercise all remedies available to it under the terms
of the Loan Agreement.
9. Accounts. Borrower hereby covenants and agrees that while the
Loan is outstanding it will maintain all of its primary operating accounts
with the Bank.
10. Waivers by Borrower, Cumulative Remedies.
(1) Borrower hereby waives presentment for payment, demand ,
notice of non-payment, notice of protest and protest of this Fourth
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 Fourth Replacement
Revolver Note, and agrees that additional obligors may become parties
hereto without notice to the Borrower without affecting the Borrower's
liability hereunder.
(2) Borrower hereby waives-the benefit of any laws which now or
hereinafter might otherwise authorize the stay of any execution to be
issued on any judgment covered on this Fourth Replacement Revolver Note.
BORROWER HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN CONNECTION WITH THIS
FOURTH REPLACEMENT NOTE, THE LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
ANY LEGAL PROCEEDING ARISING HEREUNDER OR THEREUNDER.
(3) No failure or delay on the part of the Bank in exercising
any right, power or privilege under this Fourth 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
Fourth Replacement Revolver Note, the Loan Agreement or any Loan Document.
12. Reimbursement to Bank for Increased Costs Due to Capital Adequacy
Requirements. If after the date hereof any change in law or regulation or
the interpretation thereof by any court of administrative or governmental
authority charged with the administration thereof, or compliance by Bank
with any request or directive (whether or not having the force of law) of
any such authority, applicable from time to time now or after the date
hereof to Banks in general, shall (A) impose, modify, deem applicable or
result in the application of any capital maintenance, capital ratio or
similar requirements against loan commitments or other facilities made by
Bank and the result thereof shall be to impose upon Bank a fee or a
requirement to increase any capital requirements applicable as a result of
the making or maintenance of the Loan (which imposition of or increase in
capital requirements may be determined by Bank's reasonable allocation of
the aggregate of such capital impositions or increases), or (B) subject
Bank to any tax, duty or other charge with respect to the Loan, the Fourth
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 Fourth Replacement Revolver Note, in respect to of the Loan
(except for changes in the rate of tax on the overall net income of Bank
imposed by any jurisdiction in which Bank is obligated to pay taxes), then,
upon demand by Bank, Borrower shall immediately pay to Bank from time to
time as specified by Bank, such additional amounts or fees which shall be
sufficient to compensate Bank for such impositions of or increases in
capital requirements or taxes from the date of such change, together with
interest on each such amount from the date demanded
until payment in full thereof at the Default Rate with respect to amounts
or fees not paid when due. Upon the occurrence of any event referred to
above, a certificate setting forth in reasonable detail the amounts
necessary to compensate Bank as a result of an imposition of or increase in
capital requirements or taxes submitted by Bank to Borrower shall be
conclusive, absent manifest error or bad faith, as to the amount thereof.
13. Special Provisions of LIBOR Tranches.
(1) Unavailability of Funds and Indeterminate Interest Rates.
If on or before the date Bank is to make any LIBOR Tranche or on or before
any Effective Date (1) Bank determines in good faith that it is unable to
obtain funds at the LIBOR Rate for the elected Interest Period for any
reason, including, but not limited to the unavailability of funds at such
rate, any change in existing law, any new law, the length of such Interest
Period, or otherwise or (2) Bank determines in good faith that no adequate
means exists to determine the LIBOR Rate for such Interest Period, then, at
Bank's option, Borrower shall be deemed to have requested a Prime Rate
Tranche or shall be required to elect an Interest Period of a length for
which Bank may obtain funds at the LIBOR Rate.
(2) Changes Affecting Ability to Maintain Funds. If, during any
Interest Period, any change in existing law, any new law, or any other
factor beyond the control of Bank prevents Bank in its good faith
determination from maintaining funds at the rate of adjustment of which
determines the LIBOR Rate for such Interest Period and requires Bank to
cease so maintaining funds actually so maintained prior to termination of
such Interest Period, then on the date of such required cessation, Borrower
shall be required to specify a different Interest Rate for such Interest
Period or, in the alternative, to elect an Interest Period of a length for
which Bank may maintain funds at the rate the adjustment of which
determines the LIBOR Rate. In addition, within five (5) days after Bank
notifies Borrower of such required conversion, Borrower shall reimburse
Bank for any loss or expense Bank has certified in writing to Borrower that
Bank has incurred as a result of any such required cessation.
14. Interest Limitation; Severability
(1) Nothing herein contained nor any transaction related hereto
shall be construed or shall operate either presently or prospectively to
require Borrower to pay interest at a rate greater than is now lawful in
such case to contract for, but shall require payment of interest only to
the extent of such lawful rate. Any interest paid in excess of the lawful
rate shall be refunded to Borrower. Such refund shall be made by
application of the excessive amount of interest paid against any sums
outstanding hereunder, in which event any applicable prepayment premium
shall be waived with respect to the amount so prepaid, and shall be applied
in such order as Bank may determine. If the excessive amount of interest
paid exceeds the sums outstanding hereunder, the portion exceeding the said
sums outstanding hereunder shall be refunded in cash by Bank. Any such
crediting or refund shall not cure or waive any default by Borrower
hereunder or under the other Loan Documents. Borrower agrees, however,
that in determining whether or not any interest payable hereunder exceeds
the highest rate permitted by law, any non-principal amount (except
payments specifically stated herein to be "interest"), including, without
limitation, late charges, shall be deemed, to the extent permitted by law,
to be an expense, fee or indemnity rather than interest.
(2) In the event that for any reason one or more of the
provisions of this Fourth 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 Fourth Replacement Revolver Note, but this Fourth
Replacement Revolver Note shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained herein.
15. Notices. All notices, requests, demands or other communications
to or upon the Borrower or the Bank shall be deemed to have been given or
made when hand delivered or deposited in the mail by certified mail, return
receipt requested, postage prepaid, addressed to the Borrower or the Bank,
as the case may be, at their respective addresses as the Borrower or the
Bank may hereafter specify in writing to the other, except that any
communication with respect to a change of address shall be deemed to be
given or made when received by the Borrower or the Bank to whom such
communication was sent.
16. Successors and Assigns. This Fourth Replacement Revolver Note is
binding upon the Borrower and its successors and assigns except that
Borrower shall not have the right to assign its rights or obligations
hereunder or any interest herein.
17. Amendment. This Fourth Replacement Revolver Note may not be
charged orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change modification or discharge is
sought.
18. Governing Law. This Fourth Replacement Revolver Note has been
executed and delivered in the State of New Jersey and shall be construed
and enforced in accordance with the laws of the Stat of New Jersey.
19. Captions. The captions or headings of the sections in this Fourth
Replacement Revolver Note are for convenience only and shall not control or
effect the meaning or construction of any term or provision of this Fourth
Replacement Revolver Note.
20. Replacement Note. This Fourth Replacement Revolver Note is a
modification and replacement of a certain Revolver Note of the Borrower to
the Bank dated October 27, 1994, the Replacement Revolver Note of the
Borrower to the Bank dated November 1, 1996, the Second Replacement
Revolver Note of the Borrower to the Bank dated October 26, 1996 [which
should have been dated 1998] and the Third Replacement Revolver Note of the
Borrower to the Bank dated October 29, 1999 (collectively, the "Original
Notes"). The indebtedness that is evidenced by this Fourth Replacement
Revolver Note represents in part the same indebtedness as that evidenced by
the Original Notes, and this Fourth Replacement Revolver Note shall not in
any way whatsoever constitute a cancellation or novation with respect to
the indebtedness evidenced by the Original Notes.
IN WITNESS WHEREOF, the Borrower has executed this Fourth Replacement
Revolver Note as of the date and year first above written.
ATTEST: DATARAM CORPORATION,
a New Jersey corporation
By: XXXXXXX XXXXXX By: XXXX XXXXXXXX
_____________________ ______________________
Xxxxxxx Xxxxxx Xxxx Xxxxxxxx
Print Name and Title Print Name and Title
Controller Vice-President, Finance
FIRST UNION NATIONAL BANK
By: XXXXX XXXXX
______________________
Xxxxx Xxxxx, Vice President
Print Name and Title
SCHEDULE TO FOURTH REPLACEMENT REVOLVER NOTE
Unpaid
Principal
Amount of Balance of Name of
Amount of Principal Revolving Person Making
Date Loan Prepaid Credit Note Notation
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