AMENDMENT NO. 4 AND LIMITED WAIVER TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT 10.2
AMENDMENT NO. 4 AND LIMITED WAIVER TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 4 AND LIMITED WAIVER TO LOAN AND SECURITY AGREEMENT (this “Amendment”), is entered into as of February 26, 2016, by and among OVERLAND STORAGE, INC., a California corporation (“US Borrower”), TANDBERG DATA GMBH, a limited liability company organized under the laws of Germany (“German Borrower”), SPHERE 3D CORP., an Ontario corporation (formerly known as Sphere 3D Corporation) (“Canadian Borrower” and together with US Borrower and German Borrower, collectively, the “Borrowers”), the Guarantors signatory hereto and SILICON VALLEY BANK, a California corporation (“Bank”).
RECITALS
A.Bank and Borrowers have entered into to that certain Amended and Restated Loan and Security Agreement, dated as of March 19, 2014 (as amended, amended and restated, supplemented, restructured or otherwise modified, renewed or replaced from time to time, the “Loan Agreement”), pursuant to which Bank has extended and will make available to Borrowers certain advances of money;
B.Borrowers acknowledge that Borrowers are currently in default of the Loan Agreement for failing to comply with certain provisions of the Loan Agreement as set forth in Section 1 as of the time periods identified in Section 1 and such failure to comply constitutes an Event of Default (the “Existing Default”);
C.Borrowers desire that Bank (i) waive the Existing Default and (ii) amend the Loan Agreement upon the terms and conditions fully set forth herein; and
D.Subject to the representations and warranties of the Borrowers herein and upon the terms and conditions set forth in this Amendment, Bank is willing to provide the limited waiver contained herein and so amend the Loan Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be legally bound, the parties hereto agree as follows:
1LIMITED WAIVER. The Existing Default has occurred as a result of Borrowers’ failure to maintain Adjusted EBITDA as required by Section 6.8(b) of the Loan Agreement of at least fifty percent (50%) of Borrowers’ projected performance for the fiscal quarter ended December 31, 2015, as outlined in Borrowers’ business plan dated June 5, 2015. Subject to the representations and warranties of the Borrowers and the terms and conditions set forth in this Amendment, Bank hereby waives the Existing Default.
2 DEFINED TERMS. All capitalized terms not defined herein shall have the respective meanings ascribed to such terms in the Loan Agreement.
3 AMENDMENTS TO LOAN AGREEMENT
3.1 Section 6.8(b) (Performance to Plan). Section 6.8(b) of the Loan Agreement is hereby amended and restated in its entirety as follows:
(b) Performance to Plan. As of the last date of each quarter, beginning with the quarter ending March 31, 2016, Borrowers shall maintain Adjusted EBITDA of at least fifty percent (50%) of Borrowers’ projected performance for such quarter as outlined in Borrowers’ business plan dated January 19, 2016.
3.2 Section 13.1 (Definitions). Each of the following definitions is hereby (a) to the extent already defined in Section 13.1 of the Loan Agreement, amended and restated in its entirety as follows and (b) to the extent not already defined in Section 13.1 of the Loan Agreement, added to Section 13.1 of the Loan Agreement in its appropriate alphabetical order as follows:
“Fee Letter” is that certain letter agreement dated as of March 10, 2016, between the Borrowers and Bank.
“Prime Rate Margin” is the spread set forth below applicable to each Borrower as determined by Borrowers’ Net Cash:
Net Cash | North American Borrowers Loan Margin | German Borrower Loan Margin |
Greater than $500,000.00 | 150 basis points | 250 basis points |
Less than or equal to $500,000.00 | 175 basis points | 275 basis points |
“Revolving Line Maturity Date” is August 27, 2016.
3.3 Schedule A (List of Eligible Foreign Accounts). Schedule A to the Loan Agreement is hereby deleted in its entirety and replaced with Schedule A hereto.
4 LIMITATION. The limited waiver and amendments set forth in this Amendment shall be limited precisely as written and shall not be deemed (a) to be a forbearance, waiver or modification of any other term or condition of the loan agreement, the consent and waiver or of any other instrument or agreement referred to therein or to prejudice any right or remedy which Bank may now have or may have in the future under or in connection with the Loan Agreement or any instrument or agreement referred to therein other than with respect to the Existing Default; (b) to be a consent to any future amendment or modification, forbearance or waiver to any instrument or agreement the execution and delivery of which is consented to hereby, or to any waiver of any of the provisions thereof; or (c) to limit or impair Bank’s right to demand strict performance of all terms and covenants as of any date. Except as expressly amended hereby, the Loan Agreement and the limited waiver shall continue in full force and effect.
5 REPRESENTATIONS AND WARRANTIES. To induce Bank to enter into this Amendment, each Borrower hereby represents and warrants to Bank as follows:
5.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true, accurate and complete in all material respects as of such date), and (b) no Event of Default has occurred and is continuing;
5.2 The Borrowers have the power and authority to execute and deliver this Amendment and to perform their obligations under the Loan Agreement, as amended by this Amendment;
5.3 The organizational documents of the Borrowers delivered to Bank remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect;
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5.4 The execution and delivery by the Borrowers of this Amendment and the performance by the Borrowers of their obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized;
5.5 The execution and delivery by the Borrowers of this Amendment and the performance by the Borrowers of their obligations under the Loan Agreement, as amended by this Amendment, do not and will not contravene (a) any law or regulation binding on or affecting any Borrower, (b) any contractual restriction with a Person binding on any Borrower, (c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on any Borrower, or (d) the organizational documents of any Borrower;
5.6 The execution and delivery by the Borrowers of this Amendment and the performance by the Borrowers of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on the Borrowers, except as already has been obtained or made or except for any filing, recording, or registration required by the Securities Exchange Act of 1934; and
5.7 This Amendment has been duly executed and delivered by the Borrowers and is the binding obligation of each Borrower, enforceable against each Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights.
6 EFFECTIVENESS.
6.1 Conditions to Effectiveness. This Amendment shall become effective upon the satisfaction of the following conditions precedent in this Section 6.1 (the “Fourth Amendment Effective Date”):
(a) Amendment. The Borrowers shall have duly executed and delivered this Amendment to Bank; and
(b) Payment of Bank Expenses. The Borrowers shall have paid all Bank Expenses (including all reasonable attorneys’ fees and reasonable expenses) incurred through the date of this Amendment.
6.2 Post-Effectiveness Conditions. Unless otherwise provided in a writing executed by Bank, Bank shall have received no later than March 10, 2016 (“Fourth Amendment Fee Date”):
(a) Fee Letter. The Borrowers and Bank shall have duly executed and delivered the Fee Letter to Bank; and
(b) Payment of Amendment Fee. The Borrowers shall have paid a fully, earned, non-refundable amendment fee as described in the Fee Letter on the Fourth Amendment Fee Date; provided that German Borrower shall only be obligated to pay Bank such fee (jointly and severally with the North American Borrowers) to the extent such payment does not infringe on Section 30 of the German Act on Limited Liability Companies (GmbHG).
7 COUNTERPARTS. This Amendment may be signed in any number of counterparts, and by different parties hereto in separate counterparts, with the same effect as if the signatures to each such counterpart were upon a single instrument. All counterparts shall be deemed an original of this amendment.
8 LOAN DOCUMENT. This Amendment is a Loan Document.
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9 INTEGRATION. This Amendment and any documents executed in connection herewith or pursuant hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, understandings, offers and negotiations, oral or written, with respect thereto and no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Amendment; except that any financing statements or other agreements or instruments filed by Bank with respect to the Borrowers shall remain in full force and effect.
10 GOVERNING LAW; VENUE. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. Each Borrower and Bank each submit to the exclusive jurisdiction of the state and federal courts in Santa Xxxxx County, California
11 RATIFICATION. EFFECTIVE. As of the Effective Date, each Borrower and each Guarantor hereby restates, ratifies and reaffirms each and every term and condition set forth in the Loan Agreement and the other Loan Documents to which it is a party, in each case, as amended hereby.
12 REAFFIRMATION. Each of the undersigned Guarantors consent to the amendments to the Loan Agreement. Although the undersigned Guarantors have been informed of the matters set forth herein with respect to the Loan Agreement and have consented to the same, each Guarantor understands that Bank has no obligation to inform it of such matters in the future or seek its acknowledgement or agreement to future consents or amendments of the Loan Agreement and nothing herein shall create such a duty.
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SIGNATURE PAGE TO
AMENDMENT NO. 4 AND LIMITED WAIVER TO
AMENDMENT NO. 4 AND LIMITED WAIVER TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be duly executed and delivered as of the date first above written.
BORROWERS:
Name: Xxxx Xxxxxxxxxxx
Title: Chief Financial Officer
TANDBERG DATA GMBH,
a limited liability company organized under the laws of Germany
By: /s/ Xxxx Xxxxxxxxxxx
a limited liability company organized under the laws of Germany
By: /s/ Xxxx Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxx
Title: Geschaftsfuhrer
Title: Geschaftsfuhrer
Name: Xxxx Xxxxxxxxxxx
Title: Chief Financial Officer
Title: Chief Financial Officer
GUARANTORS:
TANDBERG DATA HOLDINGS S.À X.X., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg
By: /s/ Xxxx Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxx
Title: Director
Title: Director
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By:
Name:
Title:
Title:
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SPHERE 3D INC.,
a corporation organized under the laws of Canada
By: /s/ Xxxx Xxxxxxxxxxx
a corporation organized under the laws of Canada
By: /s/ Xxxx Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxx
Title: Chief Financial Officer
Title: Chief Financial Officer
V3 SYSTEMS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxxxx
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxx
Title: Chief Financial Officer
Title: Chief Financial Officer
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SILICON VALLEY BANK
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx Title: Vice President
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SCHEDULE A
List of Eligible Foreign Accounts
With respect to North American Borrowers
1. | ADN Distribution GmbH ($200,000 credit limit) |
2. | ArrowECS |
3. | Avnet |
4. | BE-IP France |
5. | Bull SA Establissement D’Angers |
6. | Bull SA Global Logistics |
7. | CMS Peripherals LTD |
8. | Datastore AG |
9. | Dell Global Business Center SDN BHD |
10. | Dell Global BV |
11. | Dell Xiamen Co Ltd |
12. | Drive Control Corporation |
13. | Eld Datentechnik GmbH |
14. | Fujitsu |
15. | Hammer PLC |
16. | HP |
17. | Infodip |
18. | Xxxxxx Micro, S.L. Spain |
19. | Memodis |
20. | XX Xxxxxxxxx Europe SP Zoo |
21. | Stordata |
22. | Systex Corporation |
23. | Tech Data |
24. | TimAG |
25. | Westcon Group |
26. | Zycko UK ($200,000 credit limit) |
With respect to German Borrower
1. | Xxxxxx Micro, Dornach |
2. | Imation Corporation, Saint Pau |
3. | Xxxxxx Micro- US & Canada, Mis |
4. | Tech Data Corporation, Clearwa |
5. | Tech Data Service XxxX, Xxxx |
0. | Xxxx Xxxx XXXXXX SAS, Bussy St |
7. | Hewlett Packard, Meyrin/geneva |
8. | ALSO Deutschland GmbH, Soest |
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9. | Xxxxxxxxxx xxx, Xxxxxx XX0 0XX |
10. | Xxxxx XX, Xxxxx |
00. | api Computerhandels GmbH, Aach |
12. | Micro P Ltd., Altham,Accringto |
13. | X/X Xxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxx Xxxxxx |
00. | eld datentechnik GmbH, Fellbac |
15. | NEC Corporation of America, Sa |
16. | Pram Consulting Inc., Xxxxxxxx |
00. | Xxxxxxx-Xxxxxxx, Xxxxxxxxx |
00. | Hammer PLC, Basingstoke/Hampsh |
19. | Products Distribution Limited |
20. | Gemm Informatica S.r.l., Calde |
21. | EET Europarts AS, Oslo |
22. | Computer Gross Italia S.P.A., |
23. | Synnex Canada Limited, X0X 0X0 |
24. | XxxxxxXxxxx.xxx.XXX, Lake Fore |
25. | Xxxxxxx XX, Xxxxxxxx |
00. | Fujitsu Technology Solutions, |
27. | Bluechip Computer AG, Xxxxxxxx |
00. | M C S S.A.S, Strambino To |
29. | Starline Computer GmbH, Kirchh |
30. | Active Solution &, San Xxxxx |
31. | CiS Electronica Industria e, 0 |
32. | Synnex Corporation, Fremont, C |
33. | Axel s.r.l., Scarmagno (To) |
34. | CDW LLC, Vernon Hills, Il |
35. | Vitera Healthcare, Tampa, FL |
36. | ABC Data S.A., Xxxxxxxx |
00. | Hewlett-Packard Company, 00605 |
38. | STORESYS Vertriebsges. für, Ha |
39. | IBM Corporation, Endicott, NY |
40. | Dexxon-Digital Storage Inc., L |
41. | ARROW ECS Nederland, HZ Emmen |
42. | Alias srl, Xxxxx |
00. | Xxxxxxxx XX, Xxxxxxxxx |
00. | Arrow Central Europe XxxX, Xxx |
00. | Xxxxxxxxx Xxxxxxxxxx XX, Xxxxx |
00. | Dakel Informatica, S.A., Xxxxx |
47. | XXX.XXX Ltd., Agualva-Cacem |
48. | SweDeltaco AB, Tullinge |
49. | div. Kunden Service, xxxx |
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50. | PCE Paragon Solutions Ltd., Ko |
51. | Eksaip Srl, Xxxxxxx |
00. | Products Distribution Limited |
53. | EET Group A/S, Birkerod |
54. | Veracomp S.A., Kraków |
55. | Synerway SAS, Nanterre |
56. | SM Data S.A., Montcada i Reixe |
57. | Products Distribution Limited |
58. | Alliance Software SAS, Niort C |
59. | Alstor X.Xxxxxxx, Xxxxxxxx |
00. | Maxtec Peripherals Pty Ltd., B |
61. | Fujitsu Technology Solutions, |
62. | PCM Sales, Inc., El Segundo, C |
63. | Seneca Data Distributors, Inc. |
64. | div. Leih ENGLAND, xxxx |
65. | Tech Data Service XxxX, Xxxx |
00. | Lasting System S.R.L., Timisoa |
67. | SWS A.S., Slusovice |
68. | Action S.A., Xxxxxxxx |
00. | Xxxxxxx x.x.x., Xxxxxxxxx |
00. | IBM Corporation, Carlisle |
71. | Avnet Technology Solutions, Ri |
72. | TV Tools Oy, Helsinki |
73. | IBM Corporation, Camp Hill |
74. | Dansk Computer Center A/S, Hin |
75. | div. Kunden Norwegen, xxxx |
76. | SIA ATEA, Riga |
77. | ETM professional control GmbH |
78. | IT Distribution GmbH, Büren |
79. | Performance Technologies S.A. |
80. | Asbisc Enterprises PLC., Lemes |
81. | M.G.T. Educational SRL, Bukare |
82. | div. Kd.Frankreich o.VAT, xxxx |
83. | IBM PDL Singapore Branch, Sing |
84. | Viglen Limited, Herfordshire A |
85. | IT Option ApS, Farum |
86. | MSB Mikrocomputer Software, Wi |
87. | Olprint Sp. z o.o., Wroclaw |
88. | Platech Brasil Suprimentos, 23 |
89. | Open G I Limited, Warndon, Wor |
90. | Sistemi Gestionali S.r.l., Xxx |
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00. | div. Kunden USA, xxxx |
92. | Converge- Societa per Azioni, |
93. | Tcplus (Switzerland) GmbH, Gla |
94. | Hewlett-Packard International |
95. | Datastor TM, Longmont, CO 8050 |
96. | Soubabere informatique S.A., C |
97. | Vali Computers Ltd., Veliko Ta |
98. | Xxxxxxx XXX, Xxxxx XX0 0XX |
99. | Toshiba Electronics Europe, Dü |
100. | Media Storage Systems AB, Xxxx |
101. | div. Kunden, xxxx |
102. | Finstor Oy, Espoo |
103. | Xpert-IT bvba, Nijlen |
104. | Xxxx Xxxxx Ltd., London NW10 6 |
105. | EXTRA Computer GmbH, Giengen-S |
106. | Network Innovation NI AB, Nack |
107. | Promark Technology,Inc., Annap |
108. | Hewlett-Packard Company, CA 90 |
109. | Netconnect S.A., Ilioupolis-At |
110. | SDP N.V., Sint-Niklaas |
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