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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
November 30, 2010
TomoTherapy Incorporated
__________________________________________
(Exact name of registrant as specified in its charter)
Wisconsin
_____________________
(State or other jurisdiction
of incorporation)
001-33452
_____________
(Commission
File Number)
1240 Deming Way, Madison, Wisconsin
_________________________________
(Address of principal executive offices)
39-1914727
______________
(I.R.S. Employer
Identification No.)
53717
___________
(Zip Code)
Registrant’s telephone number, including area code:
608-824-2800
Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Top of the Form
Item 1.01 Entry into a Material Definitive Agreement.
On November 30, 2010, TomoTherapy Incorporated (the "Company") entered into a Second Amended and Restated Loan Agreement (the "Loan Agreement") with
M&I Marshall & Ilsley Bank (the "Bank") and executed an Amended and Restated Promissory Note (the "Note"), in favor of the Bank. The Note amends, restates and
replaces that certain promissory note in the principal amount of $40 million executed by the Company and payable to the Bank, dated December 1, 2009. The Loan
Agreement amends, restates and replaces that certain loan agreement by and between the Company and the Bank, dated as of December 1, 2009.
The principal amount of the revolving credit facility is $40 million based on the Company maintaining certain tangible net worth and EBITDA. In the event tangible net
worth and EBITDA values are not maintained at specified levels, at the end of each calendar quarter the Bank may make corresponding adjustments in the principal
amount of the credit facility to a minimum of $20 million. The Note bears interest at the one-month British Bankers Association LIBOR plus an interest margin of
2.25%, adjusted based on monthly changes to such index, and payable monthly. The credit facility expires on November 30, 2011 and is secured by the Company’s
deposit accounts. The facility requires the Company to maintain a minimum tangible net worth, a certain ratio of total liabilities to tangible net worth, and a certain
value of cash and short-term investments. The Company may be considered in default upon a material adverse change in the Company’s financial condition, upon a
change in ownership of 25% or more of the common stock of the Company, or if the Bank believes the prospect of payment or performance of the facility is impaired.
In the event substantially all of the assets of the Company are sold, the Note will be due and payable.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Number Description
10.1* Loan Agreement dated November 30, 2010 between the Company and M&I Marshall & Ilsley Bank
10.2* Promissory Note dated November 30, 2010 by the Company in favor of M&I Marshall & Ilsley Bank
* Confidential treatment has been requested for portions of this exhibit. These portions have been omitted from the exhibit to this current report on Form 8-K and
submitted separately to the SEC.
Top of the Form
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
TomoTherapy Incorporated
December 1, 2010
By:
Thomas E. Powell
Name: Thomas E. Powell
Title: Chief Financial Officer
Top of the Form
Exhibit Index
Exhibit No.
Description
10.1
Loan Agreement dated November 30, 2010 between the Company and
M&I Marshall & Ilsley Bank
Promissory Note dated November 30, 2010 by the Company in favor of
M&I Marshall & Ilsley Bank
10.2
Exhibit 10.1
Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions
are designated as [ * ]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
M&I Marshall & Ilsley Bank
AMENDED AND RESTATED LOAN AGREEMENT (this “Agreement”)
TomoTherapy Incorporated (“Borrower”) agrees with M&I Marshall & Ilsley Bank (“Bank”) agree as follows:
1. AMENDING AND RESTATING. This Agreement amends, restates and replaces that certain Loan Agreement by and
between Borrower and Bank, dated as of December 1, 2007.
2. CERTAIN DEFINITIONS. As used in this Agreement, the following terms have the meanings set forth below:
“Adjusted Credit Limit” means the amount set forth in the Adjusted Credit Limit Table, below, that corresponds at a given point in
time with the amount of TNW and the amount of EBITDA.
“EBITDA” means, with respect to Borrower, for the trailing twelve (12) month period, (i) net income during such period, plus
(ii) interest expense for such period to the extent deducted in the computation of net income, plus (iii) amortization expense for such
period to the extent deducted in the computation of net income, plus (iv) depreciation expense for such period to the extent deducted
in the computation of net income, all determined in accordance with generally accepted principles of accounting applied on a
consistent basis.
“Tangible Net Worth” means the excess of the total of all assets of the Borrower and all consolidated subsidiaries and affiliates, of
every kind and character, other than goodwill, corporate franchises and other intangibles, less the aggregate of all liabilities
(excluding tax asset value) and reserves of every kind and character of the Borrower and all consolidated subsidiaries and affiliates,
all determined in accordance with generally accepted principles of accounting.
“TNW” means Tangible Net Worth.
“<” means the item to the right of this symbol is greater than the item to the left of this symbol.
“=” means the item to the right of this symbol is greater than or equal to the item to the left of this symbol.
ADJUSTED CREDIT LIMIT TABLE
$[ * ] = TNW < $[ * ]
Adjusted Credit
Limit
$[ * ] = TNW < $[ * ]
$[ * ] = TNW
$20,000,000
$25,000,000
$30,000,000
EBITDA < $[ * ]
$25,000,000
$30,000,000
$35,000,000
$[ * ] = EBITDA <
$[ * ]
$30,000,000
$35,000,000
$40,000,000
$[ * ] = EBITDA
3. REVOLVING LOANS. Borrower requests that Bank lend to Borrower from time to time such amounts as Borrower may
request in accordance with this Agreement (the “Revolving Loans”), and, subject to the terms of this Agreement, Bank agrees to lend
such amounts up to the aggregate principal amount of forty million and no/100 Dollars ($40,000,000.00) at any time outstanding (the
“Credit Limit”). Upon the first calendar quarter end to occur during the term of this Agreement, Bank will adjust the Credit Limit to
the Adjusted Credit Limit, and the Adjusted Credit Limit will be further adjusted quarterly, as follows:
(a) Following the end of each calendar quarter, Bank will determine the Adjusted Credit Limit as set forth in the Adjusted
Credit Limit Table, above, based on Borrower’s Tangible Net Worth and EBITDA as of such calendar quarter end,
which Adjusted Credit Limit shall become effective sixty (60) days after the end of such calendar quarter end.
(b) The Adjusted Credit Limit shall become effective without notice to Borrower, but Bank will give Borrower notice of
the Adjusted Credit Limit.
The Credit Limit and the Adjusted Credit Limit, as applicable, are evidenced by an Amended and Restated Promissory Note dated
November 30, 2010, and any renewals, extensions or modifications (the “Promissory Note”). Within the Credit Limit or the Adjusted
Credit Limit, as applicable, Borrower may borrow, repay and reborrow under this Agreement. Bank is not obligated to, but may make
Revolving Loans in excess of the Credit Limit or the Adjusted Credit Limit, as applicable, and in any event, Borrower is liable for and
agrees to pay all Revolving Loans.
4. LETTERS OF CREDIT. Borrower may request that Bank issue letters of credit from time to time during the term of this
Agreement in amounts, in aggregate, up to the unused portion of the Credit Limit or the Adjusted Credit Limit, as applicable, and
Bank agrees to issue such letters of credit. Bank shall charge an issuance fee for each such letter of credit equal to a rate of 1.60% per
annum multiplied by the amount of each letter of credit, which shall be payable upon issuance. The availability to Borrower of the
Credit Limit, or the Adjusted Credit Limit, as applicable, for cash borrowing hereunder shall be reduced by the amounts, in aggregate,
of such letters of credit from time to time outstanding.
5. CONDITIONS FOR LOANS. Bank’s obligation to make the initial Revolving Loan is subject to satisfaction of the
following conditions:
(a) Bank shall have received copies, certified by the Secretary of Borrower, of the Articles of Incorporation and Bylaws of
Borrower, resolutions of the Board of Directors of Borrower, authorizing the issuance, execution and delivery of this
Agreement, the Promissory Note, and a certification of the names and titles of the representatives of Borrower
authorized to sign this Agreement and the Promissory Note and to request Revolving Loans under this Agreement,
together with true signatures of such representatives. Borrower shall also provide Bank with evidence that Borrower is
current in regard to all annual report filing with the Secretary of State of the state of its incorporation and any other
state in which it does business.
(b) Borrower shall not be in default under this Agreement or any other obligation to Bank or to any other creditor of
Borrower.
(c) Borrower shall provide Bank with current financial statements, balance sheets, profit and loss statements of Borrower
in a form and content satisfactory to Bank, and Borrower’s financial condition, as reflected on said financial
statements, shall be satisfactory to Bank.
(d) Borrower shall provide Bank with such other documents as Bank or its counsel may reasonably require for the proper
closing and documentation of this Agreement and the Revolving Loans contemplated hereunder.
6. LOAN PROCEDURES. Borrower may only obtain Revolving Loans under this Agreement as follows:
Borrower shall give Bank notice of any Revolving Loan requested under this Agreement, specifying the date of the Revolving
Loan request and the amount of the Revolving Loan request. All such requests shall be in writing unless Bank agrees to accept
telephonic requests as provided in the Promissory Note. Written requests shall be on forms approved by Bank. If notice of a
Revolving Loan request is made telephonically and accepted in such form by Bank, such request shall be confirmed in writing by
Borrower within five (5) banking business days of such request on the same forms as are required to be used by Borrower when
making the request in writing. If Borrower’s then-outstanding Revolving Loans balances, plus the amount of the request, are within
the Adjusted Credit Limit then applicable and Borrower is not in default under this Loan Agreement, the Promissory Note delivered
pursuant hereto, or any other loan agreement with Bank or promissory note held by Bank, then within two banking business days of
receipt of the request, Bank will make the Revolving Loan available to Borrower by crediting the amount of the Revolving Loans to
Borrower’s account (Account No. [ * ]) with Bank. Each Revolving Loan which does not utilize the full amount available to
Borrower under this Agreement shall be in an amount not less than two thousand dollars ($2,000.00).
7. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Bank that on the date of each
Revolving Loan:
(a) Neither the making of this Agreement nor the execution of the Promissory Note or other documents provided for
hereunder will violate any provision of any other agreement, indenture, note, Article of Incorporation or Bylaw or
other instrument which is binding upon the Borrower, nor give cause for acceleration of any indebtedness of the
Borrower.
(b) All Revolving Loans are and will be used solely for business purposes and are not and will not be used for personal,
family, household or agricultural purposes.
(c) No portion of the proceeds of the Revolving Loans shall be used directly or indirectly in violation of any provision of
any statute, regulation, order or restriction applicable to the Bank or the Borrower, including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System.
(d) The execution and delivery of this Agreement, and the performance by Borrower of its obligations under this
Agreement, are within its power, have been duly authorized by proper action on the part of Borrower, are not in
violation of any existing law, rule or regulation, any order or decision of any court, the Articles of Incorporation,
Bylaws, or other governing documents of Borrower, as applicable, or the terms of any agreement or restriction to
which Borrower is a party or by which it is bound and do not require the approval or consent of any person or entity.
This Agreement and the Promissory Note, when executed and delivered, will constitute the valid and binding
obligations of Borrower enforceable in accordance with their terms.
(e) Borrower is a corporation validly existing under the laws of the State of Wisconsin and is duly qualified to do business
and is current with its annual report filing in every jurisdiction in which the nature of its business or the ownership of
its properties requires such qualification.
(f) All financial statements, balance sheets and profit and loss statements of Borrower furnished to Bank were prepared in
accordance with generally accepted accounting principles consistently applied throughout the periods involved and are
correct and complete as of their dates.
(g) There is no litigation or administrative proceeding pending or, to the knowledge of Borrower, threatened against
Borrower, which might result in any material adverse change in the business or financial condition of Borrower.
(h) Borrower has no notice or knowledge of any substance which has been, is, or will be present, used, stored, deposited,
treated, or disposed of on, under or about any real estate now or at any time owned or occupied by the Borrower which
would require clean up, removal or some other remedial action under any federal, state or local laws, regulations,
ordinances, codes or rules. In the event any such substance is present on such real estate, Borrower shall indemnify and
• hold harmless Bank, its directors, officers, employees and agents from all loss, costs (including reasonable attorneys
fees and expenses), and liability of every kind and nature resulting from or arising out of or based upon such substance.
Borrower shall immediately notify bank in writing of any governmental or regulatory action or third party claim
instituted or threatened in connection with any such substance.
(i) Borrower has paid all federal and state income taxes or other taxes of any kind or material owed by it for all past years
and no claim is being asserted against it with respect to any federal or state income taxes for any past years or with
respect to any other federal, state, or other taxes of any kind or nature for any past years.
8. INTEREST RATE. Borrower agrees to pay interest to Bank on the unpaid principal balance outstanding from time to time
under this Agreement in accordance with the Promissory Note.
9. PAYMENT SCHEDULE. Borrower agrees to pay Bank the unpaid principal balance and interest in accordance with the
Promissory Note. In addition, Borrower shall immediately pay Bank any amount by which the Revolving Loans exceed the Credit
Limit or the Adjusted Credit Limit, as applicable, and any prior unpaid payments. Payments must be made to the Bank at its address
indicated on the signature page hereto and are not credited until received in Bank’s office and funds are deemed by Bank to be
collected. Bank is authorized to make book entries evidencing Revolving Loans and payments under this Agreement and the aggregate
unpaid amount of all Revolving Loans as evidenced by those entries is presumptive evidence that those amounts are outstanding and
unpaid to Bank.
10. COVENANTS. Borrower shall, so long as any amounts remain unpaid, or Bank has any commitment to make Revolving
Loans under this Agreement:
(a) Furnish to Bank, as soon as available, such financial information respecting Borrower as Bank from time to time
requests, and without request furnish to Bank:
(i) Within one hundred twenty (120) days after the end of each fiscal year of Borrower, a consolidated financial
report of Borrower and its subsidiaries, including a consolidated statement of financial position, balance sheet,
statement of income and retaining earnings, and the related consolidated statements of operations, for the fiscal
year then ended, all in reasonable detail and satisfactory in scope to Bank, audited by a certified public accounting
firm acceptable to Bank in accordance with generally accepted accounting principles applied on a consistent basis,
certified by the chief financial representative of Borrower, and
(ii) Within forty-five (45) days after the end of each fiscal quarter of the Borrower, the Borrower’s statement of
financial position, balance sheet, statement of income and retaining earnings, and the related statement of
operations as of the end of each such fiscal quarter; for the period from the beginning of the fiscal year to the end
of such quarter, prepared in accordance with generally accepted accounting principles applied on a consistent
basis, certified, subject to normal year-end adjustments, by the chief financial representative of Borrower.
(b) Keep complete and accurate business books and records. Permit any representative of the Bank to visit and inspect any
of the Borrower’s tangible or intangible properties as often as desired by Bank.
(c) Pay and discharge all lawful taxes, assessments and governmental charges upon Borrower or against its properties
prior to the date on which penalties attach, unless and to the extent only that such taxes, assessments or charges are
contested in good faith and by appropriate process by Borrower.
(d) Do all things necessary to maintain its existence, to preserve and keep in full force and effect its agreements, rights and
franchises necessary to continue its business and comply with all applicable laws, regulations and ordinances.
(e) Borrower shall keep all of its financial records located at its principal place of business as indicated on the signature
page of this Agreement or at such other place as agreed to in writing with Bank.
(f) Comply with all the terms and provisions of all other loan agreements and promissory notes relating to loans by Bank
to Borrower.
(g) Permit Bank, at any reasonable time during business hours, access to all of the financial records of Borrower to enable
Bank to copy and/or audit Borrower’s financial records using persons designated by Bank. Borrower shall pay Bank,
upon demand, for the reasonable cost of such audits.
(h) Not take any action or permit any event to occur which materially impairs Borrower’s ability to make payments under
this Agreement when due. Such events include, without limitation, the fact that Borrower, or any surety or Guarantor
for Borrower’s obligations under this Agreement ceases to exist, dies, or becomes insolvent or the subject of
bankruptcy or insolvency proceedings.
(i) Maintain, preserve and keep its machinery, equipment and all other property in good repair and condition and duly pay
and discharge all taxes and other charges imposed upon said properties.
(j) Timely perform and observe all of the following financial covenants, all calculated in accordance with generally
accepted principles of accounting applied on a consistent basis:
(i) Maintain at all times a Tangible Net Worth (as defined below) of equal to or greater than [ * ] dollars ($) [ * ];
(ii) Maintain at all times a ratio of Total Liabilities to Tangible Net Worth equal to or less than [ * ] to [ * ].
Calculated as: total liabilities / Tangible Net Worth; and
(iii) Maintain at all times cash and short-term investments in value, in aggregate, of equal to or greater than [ * ]
dollars ($) [ * ].
(k) Not create or permit to exist any lien or encumbrance with respect to Borrower’s property, except liens in favor of
Bank, liens associated with existing loans provided to Borrower by Wisconsin Department of Commerce and Madison
Development Corporation, liens for taxes if they are being contested in good faith by appropriate proceedings and for
which appropriate reserves are maintained and liens or encumbrances permitted under any of the Security Documents.
(l) Borrower shall have a sixty (60) day right to cure period if any of the covenants are not complied with.
11. ADDITIONAL SECURITY. Except as hereinafter provided, this Agreement is unsecured. This Agreement shall be secured
by any and all future security agreements, collateral pledge agreements, assignments and mortgages from Borrower to Bank, from any
guarantor of this Agreement to Bank, and from any other person to Bank, providing collateral security for Borrower’s obligations and
payment of the amounts due under this Agreement and the Promissory Note. Unless a lien would be prohibited by law or would render
a nontaxable account taxable, Borrower also grants to Bank a security interest and lien in any deposit account Borrower may at any
time have with Bank to secure all debts, obligations and liabilities of Borrower under this Agreement. Bank may at any time after the
occurrence of an event of default set-off any amount under this Agreement against any deposit balances or other money now or
hereafter owed to Borrower by Bank.
12. DEFAULT AND ACCELERATION. Any one or more of the following events shall constitute a default hereunder and
under the Promissory Note:
(a) Borrower fails to pay any amount when due under this Agreement or the Promissory Note delivered by Borrower
pursuant to this Agreement;
(b) Any representation or warranty made under this Agreement or information provided by Borrower in connection with
this Agreement is or was false or fraudulent in any material respect;
(c) A material adverse change occurs in Borrower’s financial condition;
(d) Borrower fails to timely observe or perform any of the covenants or duties contained in this Agreement;
(e) Any guaranty of Borrower’s obligation under this Agreement is revoked or becomes unenforceable for any reason;
(f) Any event of default occurs under any security agreement;
(g) A default by Borrower with respect to any terms or provisions of documents evidencing any other indebtedness of
Borrower to Bank;
(h) The Borrower shall admit in writing the inability to pay any of its debts or shall have made a general assignment for
the benefit of creditors, or shall have applied for or otherwise have a receiver, trustee, or custodian appointed for any
of its property or assets; or
(i) The occurrence of any other event which causes the Bank, in good faith, to deem itself insecure.
Then, at Bank’s option, and upon verbal or written notice to Borrower, given at any time including after receipt from Borrower
of a request for a Revolving Loan, Bank’s obligation to make Revolving Loans under this Agreement shall terminate and the total
unpaid balance shall become immediately due and payable without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by Borrower.
Bank’s obligation to make Revolving Loans under this Agreement shall automatically terminate and the total unpaid balance of
the Promissory Note shall automatically become due and payable in the event Borrower becomes the subject of bankruptcy or other
insolvency proceedings. Bank may waive any default without waiving any other subsequent or prior default. Borrower agrees to pay
Bank’s cost of administration of this Agreement, including reasonable attorneys’ fees. Borrower also agrees to pay all of Bank’s
costs of collection, before and after judgment, including reasonable attorneys’ fees (including those incurred in successful defense or
settlement of any counterclaim brought by Borrower or incident to any action or proceeding involving Borrower brought pursuant to
the Federal Bankruptcy Code).
13. CROSS DEFAULT OF ALL OTHER OBLIGATIONS OF BORROWER WITH BANK. As an inducement to Bank to
extend the credit referenced herein, Borrower agrees that in the event it is in default with respect to this Agreement or the Promissory
Note delivered pursuant hereto, it shall also be in default with respect to all other agreements, notes, or other documents evidencing
Borrower’s other indebtedness to Bank. Conversely, if any payment is not made when due under any other note, agreement,
assignment or mortgage in favor of the Bank, or if any event of default should occur as defined in any such note, agreement,
assignment or mortgage, the unpaid balance of the Promissory Note shall at the option of the holder and without notice, mature and
become immediately due and payable.
14. INDEMNIFICATION. Borrower agrees to defend, indemnify and hold harmless Bank, its directors, officers, employees
and agents, from and against any and all loss, cost, expense, damage or liability (including reasonable attorneys’ fees) incurred in
connection with any claim, counterclaim or proceeding brought as a result of, arising out of or relating to any transaction financed or
to be financed, in whole or in part, directly or indirectly, with the proceeds of any Revolving Loan or the entering into and
performance of this Agreement or any document or instrument relating to the Agreement by Bank. This indemnity will survive
termination of this Agreement and the repayment of all Revolving Loans.
15. VENUE. To the extent not prohibited by law, venue for any legal proceeding relating to enforcement of this Agreement shall
be, at Bank’s option, the county in which Bank has its principal office in this state, the county in which Borrower resides, or the
county in which this Agreement was executed by Borrower.
16. TERMINATION. Unless sooner terminated by Borrower’s default, Borrower’s right to obtain loans and Bank’s obligation
to extend the credit under this Agreement shall terminate on the date the Promissory Note is due by maturity or default (the
“Termination Date”). The Borrower may terminate Borrower’s right to obtain loans under this Agreement at any time and for any
reason by written notice to Bank. Such notice of termination signed by Borrower shall be binding on each Borrower who signs this
Agreement. Termination, for whatever reason, does not affect Bank’s rights, powers and privileges, nor Borrower’s duties and
liabilities, with regard to the then-existing balance under this Agreement.
17. AMENDMENT. No amendment, modification, termination or waiver of any provision of this Agreement, nor consent to
any departure by Borrower from any provision of this Agreement shall in any event be effective unless it is in writing and signed by
Bank. Any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
18. ENTIRE AGREEMENT. This Agreement is intended by Borrower and Bank as a final expression of this Agreement and
as a complete and exclusive statement of its terms, there being no conditions to the full effectiveness of this Agreement except as set
forth in this Agreement.
19. NO WAIVER; REMEDIES. No failure on the part of Bank to exercise, and no delay in exercising, any right, power or
remedy under this Agreement shall operate as a waiver of such right, power or remedy; nor shall any single or partial exercise of any
right under this Agreement preclude any other or further exercise of the right or the exercise of any other right. The remedies provided
in this Agreement are cumulative and not exclusive of any remedies provided by law.
20. HEDGING INSTRUMENTS. Borrower’s obligations and Indebtedness hereunder includes, without limitation all
obligations, indebtedness and liabilities arising pursuant to or in connection with any interest rate swap transaction, basis swap,
forward rate transaction, interest rate option, price risk hedging transaction or any similar transaction between the Borrower and Bank.
21. UNUSED COMMITMENT FEE. Borrower shall pay a commitment fee in an amount equal to a rate of .05% per annum
multiplied by the average daily unused portion of the Credit Limit or Adjusted Credit Limit, as applicable, from the date of the
Promissory Note until the Maturity Date (as defined in the Promissory Note), which shall be payable on the last day of each calendar
quarter.
22. NOTICE. Except as otherwise provided in this Agreement, all notices required or provided for under this Agreement shall
be in writing and mailed, sent or delivered, if to Borrower, at Borrower’s address indicated on the signature page hereto, and if to
Bank, at its address indicated on the signature page hereto, or, as to each party, at such other address as shall be designated by such
party in a written notice to the other party. All such notices shall be deemed duly given when delivered by hand, three (3) business
days after being deposited in the mail, sent by certified mail, postage paid, or upon confirmation of delivery by overnight courier if
sent by a nationally-recognized overnight courier; provided that notice to Bank pursuant to Section 16 (Termination) hereof shall not
be effective until received by Bank.
23. WAIVER OF JURY TRIAL. The Borrower and the Bank hereby jointly and severally waive any and all right to trial by
jury in any action or proceeding relating to this Agreement, any note, or any other document delivered hereunder or in connection
herewith, or any transaction arising from or connected to any of the foregoing. The Borrower and the Bank each represent that this
waiver is knowingly, willingly and voluntarily given.
24. DUE ON SALE. In the event that Borrower or substantially all its assets are sold, the Note shall be considered due payable.
25. BORROWER’S ADDRESS. Borrower shall immediately notify Bank in writing of any change of address.
26. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of Bank and Borrower and
their respective heirs, personal representatives, successors and assigns, except that Borrower may not assign or transfer any of
Borrower’s rights under this Agreement without the prior written consent of Bank.
27. INTERPRETATION. The validity, construction and enforcement of this Agreement are governed by the internal laws of
Wisconsin. Invalidity of any provision of this Agreement shall not effect the validity of any other provisions of this Agreement.
28. PREPARATION FEES. Borrower shall reimburse Bank for all costs and expenses incurred in connection herewith
including the following: Uniform Commercial Code searches, recording fees, express mail charges, appraisals, credit reports, real
estate searches, title insurance, attorneys’ fees, and similar costs and expenses.
29. CONFLICT BETWEEN THIS AGREEMENT AND THE PROMISSORY NOTE. In the case of any ambiguity or
conflict between this Agreement and the Promissory Note, this Agreement will govern.
30. PREVIOUS LOAN AGREEMENTS. This Agreement supersedes and replaces all previous loan agreements between Bank
and Borrower with respect to the Revolving Loans.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date below.
Dated as of November 30, 2010.
BORROWER:
TomoTherapy Incorporated
By: /s/ Thomas E. Powell
Thomas E. Powell, Chief Financial Officer
Borrower’s Address:
1240 Deming Way
Madison, WI 53717
BANK:
M&I Marshall & Ilsley Bank
By: /s/ Jason D. Lavicky
Jason D. Lavicky, Vice President
By: /s/ Jeffrey T. Ticknor
Jeffrey T. Ticknor, Senior Vice President
Bank’s Address:
One West Main Street
Madison, WI 53705
Exhibit 10.2
Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions
are designated as [ * ]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.
*[ * ] 095512012008*
M&I BANK
AMENDED AND RESTATED PROMISSORY NOTE
Principal
loan Date
Maturity
$40,000,000.00
11-30-2010
11-30-2011
Loan No
Call / Coll
[*]
Account
Officer
[*]
Initials
11485
References in the boxes above are for Lender’s use only and do not limit the applicability of
this document to any particular loan or item. Any item above containing “***” has been omitted due
to text length limitations.
Borrower:
Lender:
Tomotherapy Incorporated
M&I Marshall & Ilsley Bank
1240 Deming Way
Capital Square – Commercial
Madison, WI 53717-1954
One W Main Street
Madison, WI 53703
Principal Amount: $40,000,000.00 Date of Note: November 30, 2010
PROMISE TO PAY. Tomotherapy Incorporated (“Borrower”) promises to pay to M&I Marshall & Ilsley Bank (“Lender”), or order, in lawful money of the United
States of America, the principal amount of up to Forty Million & 00/100 Dollars ($40,000,000.00) or the Adjusted Credit Limit (as defined in that certain Second
Amended and Restated Loan Agreement by and between Borrower and Lender, dated as of November 30, 2010), or so much as may be outstanding, together with
interest on the unpaid outstanding principal balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal plus all accrued unpaid interest on November 30, 2011 (the “Maturity Date”). In
addition, Borrower will pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning December 31, 2010, with all subsequent
interest payments to be due on the last day of each month after that. Unless otherwise agreed or required by applicable law, payments will be applied to accrued interest,
principal, late charges. Borrower will pay Lender at lender’s address shown above or at such other place as Lender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the one month
British Bankers Association (BBA) LIBOR and reported by a major news service selected by Lender (such as Reuters, Bloomberg or Moneyline Telerate). If BBA
LIBOR for the one month period is not provided or reported on the first day of a month because, for example, it is a weekend or holiday or for another reason, the One
Month LIBOR Rate shall be established as of the preceding day on which a BBA LIBOR rate is provided for the one month period and reported by the selected news
service (the “Index”). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender
may designate a substitute index after notifying Borrower. Lender will tell Borrower the current Index rate upon Borrower’s request. The interest rate change will not
occur more often than each first day of each calendar month and will become effective without notice to the Borrower. Borrower understands that Lender may make
loans based on other rates as well. The Index currently is 0.254% per annum. The interest rate to be applied to the unpaid principal balance of this Note will be
calculated as described in the “INTEREST CALCULATION METHOD” paragraph using a rate of 2.250 percentage points over the Index, resulting in an initial rate of
4.00% per annum based on a year of 360 days. NOTICE: Under no circumstances will the interest rate on this Note be less than 4.000% per annum or be more than the
maximum rate allowed by applicable law.
INTEREST CALCULATION METHOD. Interest on this Note is computed on a 365/360 basis; that is, by applying the ratio of the interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. All interest payable under this Note is
computed using this method. This calculation method results in a higher effective interest rate than the numeric interest rate stated in this Note.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in
writing, relieve Borrower of Borrower’s obligation to continue to make payments of accrued unpaid interest. Rather, early payments will reduce the principal balance
due. Borrower agrees not to send Lender payments marked “paid in full”, “without recourse”, or similar language. If Borrower sends such a payment, Lender may
accept it without losing any of Lender’s rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written
communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes “payment in full” of the
amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: M&I Marshall & Ilsley
Bank, P.O. 3114 Milwaukee, WI 53201-3114.
LATE CHARGE. If a payment is not made on or before the 10th day after its due date, Borrower will be charged 5.000% of the unpaid portion of the regularly
scheduled payment.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased by adding a
3.000 percentage point margin (“Default Rate Margin”). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had
there been no default. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law.
DEFAULT. Each of the following shall constitute an event of default (“Event of Default”) under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents
or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other
agreement, in favor of any other creditor or person that may materially affect any of Borrower’s property or Borrower’s ability to repay this Note or perform
Borrower’s obligations under this Note or any of the related documents.
False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower’s behalf under this Note or the related
documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter.
Insolvency. The dissolution or termination of Borrower’s existence as a going business, the insolvency of Borrower, the appointment of a receiver for any part of
Borrower’s property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other
method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower’s
accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as
being an adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the indebtedness or
any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the
indebtedness evidenced by this Note.
Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower’s financial condition, or Lender believes the prospect of payment or performance of this Note is
impaired.
Insecurity. Lender in good faith believes itself insecure.
LENDER’S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
ATTORNEYS’ FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount.
This includes, subject to any limits under applicable law, Lender’s attorneys’ fees and Lender’s legal expenses, whether or not there is a lawsuit, including attorneys’
fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law,
Borrower also will pay any court costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrower against
the other.
GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of
Wisconsin without regard to its conflicts of law provisions. This Note has been accepted by Lender in the State of Wisconsin.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender’s request to submit to the jurisdiction of the courts of Dane County, State of Wisconsin.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $15.00 if Borrower makes a payment on Borrower’s loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower’s accounts with Lender (whether checking, savings, or
some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However, this does not
include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on the debt against any and all such accounts, and, at Lender’s option, to administratively freeze all such accounts to
allow Lender to protect Lender’s charge and setoff rights provided in this paragraph.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note, as well as directions for payment from Borrower’s accounts, may be
requested orally or in writing by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. Borrower agrees
to be liable for all sums either: (A) advanced in accordance with the instructions of an authorized person or (B) credited to any of Borrower’s accounts with Lender. The
unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender’s internal records, including daily computer
print-outs. Lender will have no obligation to advance funds under this Note if: (A) Borrower or any guarantor is in default under the terms of this Note or any agreement
that Borrower or any guarantor has with Lender, including any agreement made in connection with the signing of this Note; (B) Borrower or any guarantor ceases doing
business or is insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit, modify or revoke such guarantor’s guarantee of this Note or any other loan with
Lender; (D) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized by Lender; or (E) Lender in good faith believes itself
insecure.
HEDGING INSTRUMENTS. Obligations and Indebtedness includes, without limitation all obligations, indebtedness and liabilities arising pursuant to or in connection
with any interest rate swap transaction, basis swap, forward rate transaction, interest rate option, price risk hedging transaction or any similar transaction between the
Borrower and Lender.
UNUSED COMMITMENT FEE. Borrower shall pay a commitment fee in an amount equal to a rate of .05% per annum multiplied by the average daily unused portion
of the principal amount or Adjusted Credit Limit, as applicable, from the date of this Promissory Note until the Maturity Date, which shall be payable on the last day of
each calendar quarter.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower’s heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
AMENDED AND RESTATED. This Note amends, restates and replaces that certain Amended and Restated Promissory Note in the principal amount of
$40,000,000.00 executed by Borrower and payable to Bank, dated December 1, 2009.
GENERAL PROVISIONS. This Note benefits Lender and its successors and assigns, and binds Borrower and Borrower’s heirs, successors, assigns, and
representatives. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who
signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fail to realize upon or perfect Lender’s security interest
in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify
this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE
INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
TOMOTHERAPY INCORPORATED
By: /s/ Thomas E. Powell
Thomas E. Powell, Chief Financial Officer