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EXHIBIT 10.4.28
ADDENDUM
THIS ADDENDUM is executed with respect to the Promissory Note in the original
principal amount of $ 1,000,000.00 dated September 25, 1998 [and maturing on
August 31, 1999] (the "Note"), made by Neoprobe Corporation (referred to in this
Addendum as "Borrower") payable to the order of Bank One, NA ("Lender"), and is
hereby incorporated into and made a part of the Note. Terms used in this
Addendum with their initial letters capitalized are used as defined in the Note,
unless they are otherwise expressly defined herein.
1. The paragraph in the Note having the caption "VARIABLE INTEREST RATE" is
hereby deleted in its entirety and the following is hereby substituted in
lieu thereof:
VARIABLE INTEREST RATE. Subject to designation of a different interest rate
index by Borrower as provided below, the interest rate on this Note is
subject to fluctuation based upon the Prime Rate of interest in effect from
time to time (the "Index") (which rate may not be the lowest, best or most
favorable rate of interest which Lender may charge on loans to its
customers). "Prime Rate" shall mean the rate announced from time to time by
Lender as its prime rate. Each change in the variable interest rate to be
charged on this Note will become effective without notice on the same day
as the Index changes. Except as otherwise provided herein, the unpaid
principal balance of this Note will accrue interest at a rate per annum
which will from time to time be equal to the sum of the Index, plus 0.00%.
INTEREST RATE OPTIONS. The following interest rate options are available
under this Note:
(a) Default Option. The interest rate margin and index described in the
"VARIABLE INTEREST RATE" paragraph above (the "Default Option").
(b) ONE MONTH LONDON INTERBANK OFFERED RATE. A margin of 2.25 percentage
points over the one month LONDON INTERBANK OFFERED RATE ("LIBOR"). For
purposes of this Note, the one month LIBOR rate shall mean the one month
offered rate for U.S. Dollar deposits of not less than $1,000,000.00 as of
11:00 A.M. City of London, England time two London Business Days prior to
the first date of each one month Interest Period (as defined below) of this
Note as shown on the display designated as "British Bankers Assoc. Interest
Settlement Rates" on the Dow Jones Telerate Service ("Telerate"), Page 3750
(or such other page as may replace that page on that service for the
purpose of displaying such rate). Provided, however, that if such LIBOR
rate is not available on Telerate then such offered rate shall be otherwise
independently determined by Lender from an alternate, substantially similar
independent source or service available to Lender or shall be calculated by
Lender by a substantially similar methodology as that theretofore used to
determine such offered rate in Telerate.
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(c) TWO MONTH LONDON INTERBANK OFFERED RATE. A margin of 2.25 percentage
points over the two month LONDON INTERBANK OFFERED RATE ("LIBOR"). For
purposes of this Note, the two month LIBOR rate shall mean the two month
offered rate for U.S. Dollar deposits of not less than $1,000,000.00 as of
11:00 A.M. City of London, England time two London Business Days prior to
the first date of each two month Interest Period (as defined below) of this
Note as shown on the display designated as "British Bankers Assoc. Interest
Settlement Rates" on the Dow Jones Telerate Service ("Telerate"), Page 3750
(or such other page as may replace that page on that service for the
purpose of displaying such rate). Provided, however, that if such LIBOR
rate is not available on Telerate then such offered rate shall be otherwise
independently determined by Lender from an alternate, substantially similar
independent source or service available to Lender or shall be calculated by
Lender by a substantially similar methodology as that theretofore used to
determine such offered rate in Telerate
(d) THREE MONTH LONDON INTERBANK OFFERED RATE. A margin of 2.25 percentage
points over the three month LONDON INTERBANK OFFERED RATE ("LIBOR"). For
purposes of this Note, the three month LIBOR rate shall mean the three
month offered rate for U.S. Dollar deposits of not less than $1,000,000.00
as of 11:00 A.M. City of London, England time two London Business Days
prior to the first date of each three month Interest Period (as defined
below) of this Note as shown on the display designated as "British Bankers
Assoc. Interest Settlement Rates" on the Dow Jones Telerate Service
("Telerate"), Page 3750 (or such other page as may replace that page on
that service for the purpose of displaying such rate). Provided, however,
that if such LIBOR rate is not available on Telerate then such offered rate
shall be otherwise independently determined by Lender from an alternate,
substantially similar independent source or service available to Lender or
shall be calculated by Lender by a substantially similar methodology as
that theretofore used to determine such offered rate in Telerate.
(e) SIX MONTH LONDON INTERBANK OFFERED RATE. A margin of 2.25 percentage
points over the six month LONDON INTERBANK OFFERED RATE ("LIBOR"). For
purposes of this Note, the six month LIBOR rate shall mean the six month
offered rate for U.S. Dollar deposits of not less than $1,000,000.00 as of
11:00 A.M. City of London, England time two London Business Days prior to
the first date of each six month Interest Period (as defined below) of this
Note as shown on the display designated as "British Bankers Assoc. Interest
Settlement Rates" on the Dow Jones Telerate Service ("Telerate"), Page 3750
(or such other page as may replace that page on that service for the
purpose of displaying such rate). Provided, however, that if such LIBOR
rate is not available on Telerate then such offered rate shall be otherwise
independently determined by Lender from an alternate, substantially similar
independent source or service available to Lender or shall be calculated by
Lender by a substantially similar methodology as that theretofore used to
determine such offered rate in Telerate.
If used in this Note, "London Business Day" means any day other than a
Saturday, Sunday or a day on which banking institutions are generally
authorized or obligated by law or executive order to close in the City of
London, England.
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When the interest rate is based on a LIBOR rate, a Treasury Securities Rate
or a Fixed Rate (an "Option Rate"), the rate shall be in effect for a
period of the number of months as indicated in the rate option description
(the "Interest Period"), in any case extended to the next succeeding
business day when necessary, beginning on a borrowing date, conversion date
or expiration date of the then current Interest Period. Adjustments in the
interest rate due to changes in the maximum nonusurious interest rate
allowed (the "Highest Lawful Rate") shall be made on the effective day of
any change in the Highest Lawful Rate.
Provided Borrower is not in default under this Note, Borrower may designate
in advance which of the above interest rate indexes shall be applicable to
any loan advance under this Note. In the absence of any such designation
the interest rate option shall be the Default Option. Thereafter unpaid
principal balances under this Note may be converted (at the end of an
Interest Period if the index used to determine the interest rate therefore
is an Option Rate) to another of the above interest rate options, or
continued for an additional interest period, when applicable, as designated
by Borrower in advance; and in the absence of sufficient advance
designation as determined by the Lender as to conversion to or continuation
of an Option Rate index, the rate shall be converted to the Default Option.
Notwithstanding the foregoing, an Option Rate index may not be elected for
a loan or advance under this Note, nor any conversion to or continuation of
an Option Rate index be elected, if the Interest Period thereof would
extend beyond the maturity of this Note.
Each loan or advance under this Note at conversion into or continuation of
an Option Rate shall be in a minimum amount of $250,000.00. Unless
otherwise provided herein, accrued interest on amounts for which the
interest rate is based on a LIBOR rate or a Treasury Securities Rate shall
be due and payable at the end of the respective Interest Period therefor.
Borrower shall pay to Lender from time to time such amounts as Lender may
determine to be necessary to compensate Lender for any costs incurred by
Lender which Lender determines are attributable to its making or
maintaining any LIBOR rates hereunder or its obligation to make any such
LIBOR rates hereunder, or any reduction in ant amount receivable by Lender
under this Note in respect of any such rates or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any change after the date of this Note
in U.S. federal, state, municipal, or foreign laws or regulations
(including Regulation D), or the adoption or making after such date of ant
interpretations, directives, or requirements applying to a class of banks
including Lender of or under any U.S. federal, state, municipal, or any
foreign laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation
or administration thereof ("Regulatory Change"), which: (1) changes the
basis of taxation of any amounts payable to Lender under this Note in
respect of any such LIBOR rates (other than taxes imposed on the overall
net income of the Lender); or (2) imopses or modifies any reserve, special
deposit, compulsory loan, or similar requirements relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities of. Lender (including any of such
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LIBOR rates or any deposits referred to in the definition of any LIBOR
rate); or (3) imposes any other condition affecting this Note (or any of
such extensions of credit or liabilities). Lender will notify the Borrower
of any event occurring after the date of this Note which will entitle
Lender to compensation pursuant to this paragraph as promptly as
practicable after it obtains knowledge thereof and determines to request
such compensation. Determinations by Lender for purposes of this paragraph
of the effect of any Regulatory change in its costs of making or
maintaining LIBOR rates or on amounts receivable by it in respect of LIBOR
rates, and of the additional amounts required to compensate Lender in
respect of any Additional Costs, shall be presumes prima facie correct.
In respect of any LIBOR Loans, in the event that Lender shall have
determined that dollar deposits of the relevant amount for the relevant
Interest Period for such LIBOR Loans are not available or that, by reason
of circumstances affecting such market, adequate and reasonable means do
not exist for ascertaining the LIBOR rate applicable to such Interest
Period, as the case may be, Lender shall promptly give notice of such
determination to the Borrower and (i) any notice of new LIBOR Loans (or
conversion of existing loans to LIBOR Loans) previously given by the
Borrower and not yet borrowed (or converted, as the case may be) shall be
deemed a notice to make loans bearing interest at the Default Option, and
(ii) the Borrower shall be obligated either to prepay or to convert any
outstanding LIBOR Loans on the last day of the then current Interest Period
or Periods with respect thereto, as Borrower shall elect.
Without prejudice to any other provisions of this Note, the Borrower agrees
to indemnify Lender against any loss or expense which Lender may sustain or
incur as a consequence of any default by the Borrower in payment when due
of any amount due hereunder in respect of any LIBOR Loan, including, but
not limited to, any loss of profit, premium or penalty incurred by Lender
in respect of funds borrowed by it for the purpose of making or maintaining
such LIBOR Loan, as determined by Lender in the exercise of its sole but
reasonable discretion. A certificate as to any such loss or expense shall
be promptly submitted by Lender to the Borrower and shall, in the absence
of manifest error, be conclusive and binding as to the amount thereof.
If at any time any new law, treaty or regulation enacted after the date
hereof, or any change after the date hereof in any existing law, treaty or
regulation, or any interpretation thereof after the date hereof by any
governmental or other regulatory authority charged with the administration
thereof, shall make it unlawful for Lender to fund any LIBOR Loans which it
is committed to make hereunder with moneys obtained in the Eurodollar
market, the commitment of Lender to fund LIBOR Loans shall, upon the
happening of such event forthwith be suspended for the duration of such
illegality, and Lender shall by written notice to the Borrower declare that
the commitment with respect to such loans has been so suspended and, if and
when such illegality ceases to exist, such suspension shall cease and
Lender shall similarly notify the Borrower. If any such change shall make
it unlawful for Lender to continue in effect the funding in the applicable
Eurodollar market of any LIBOR Loan previously made by it hereunder, Lender
shall, upon the happening of such event, notify the Borrower in writing
stating the reasons therefor, and the Borrower shall, on the earlier of (i)
the last day of the then current Interest Period or (ii) if required by
such law, regulation or
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interpretation, on such date as shall be specified in such notice, either
convert all LIBOR Loans to loans bearing interest at the Default Option or
prepay all LIBOR Loans to Lender in full, as Borrower shall elect.
Lender may, but shall not be required to, make LIBOR Loans hereunder with
funds obtained outside the United States.
2. The paragraph of the Note having the caption "PREPAYMENT" is hereby deleted
in its entirety and the following paragraph is hereby substituted in lieu
thereof:
PREPAYMENT. Borrower may prepay all or any portion of the principal balance
outstanding on this Note which is accruing at the Default Option at any
time without payment of premium or penalty. Borrower may not prepay all or
any portion of the principal balance outstanding on this Note which is
accruing interest based on a LIBOR rate without obtaining Lender's prior
written consent, which Lender can grant or refuse to grant in its sole
discretion. All permitted prepayments shall be applied to the indebtedness
owing hereunder in such order and manner as Lender may from time to time
determine.
3. The paragraph of the Note having the caption "LENDER'S RIGHTS" is hereby
deleted in its entirety and the following paragraph is hereby substituted
in lieu thereof:
LENDER'S RIGHTS. Upon default, Lender may, at its option, without further
notice or demand (i) declare the entire unpaid principal balance on this
Note, all accrued unpaid interest and all other coats and expenses for
which Borrower is responsible under this Note and any other Related
Document immediately due, (ii) refuse to advance any additional amounts
under this Note, (iii) foreclose all liens securing payment hereof, (iv)
pursue any other rights, remedies and recourses available to Lender,
including without limitation, any such rights, remedies or recourses under
the Related Documents, at law or in equity, or (v) pursue any combination
of the foregoing. Upon default, including failure to pay upon final
maturity, Lender, at its option, may also, if permitted by applicable law,
do one or both of the following: (a) accrue interest on this Note at the
Default Option and increase the variable interest rate on this Note to 3.00
percentage points over the Default Option, and (b) add any unpaid accrued
interest to principal and such sum will bear interest therefrom until paid
at the rate provided in this Note (including any increased rate). The
interest rate will not exceed the maximum rate permitted by applicable law.
This Note has been delivered to Lender and is performable in Ohio. Courts
within the State of Ohio have jurisdiction over any dispute arising under
or pertaining to this Note and venue for such dispute shall be in Franklin
County, Ohio. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF OHIO AND APPLICABLE FEDERAL LAWS.
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4. Except as expressly modified by this Addendum, all of the terms and
conditions of the Note continue unchanged and in full force and effect.
5. The paragraph of the Note having the caption "CONFESSION OF JUDGMENT" is
hereby ratified and confirmed.
Dated with effect as of the date of the Note.
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
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Neoprobe Corporation
By: /s/ Brent L. Larson
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Its: Vice President, Finance