EX-10.2






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
	 	Loan No
	 	Call / Coll
	 	Account
	 	Officer
	 	Initials
	$40,000,000.00

	 	11-30-2010
	 	11-30-2011
	 	  [ * ]  
	 	         
	 	[ * ]
	 		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