Amendment to Loan Documents PNCBANK
THIS AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is made as of
June 20, 2006, by and between DATARAM CORPORATION (the "Borrower"), and
PNC BANK, NATIONAL ASSOCIATION (the "Bank").
BACKGROUND
A. The Borrower has executed and delivered to the Bank (or a
predecessor which is now known by the Bank's name as set forth above), one
or more promissory notes, letter agreements, loan agreements, security
agreements, mortgages, pledge agreements, collateral assignments, and other
agreements, instruments, certificates and documents, some or all of which
are more fully described on attached Exhibit A, which is made a part of
this Amendment (collectively as amended from time to time, the "Loan
Documents") which evidence or secure some or all of the Borrower's
obligations to the Bank for one or more loans or other extensions of credit
(the "Obligations").
B. The Borrower and the Bank desire to amend the Loan
Documents as provided for in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and intending to be legally bound hereby, the parties hereto agree
as follows:
1. Certain of the Loan Documents are amended as set forth in
Exhibit A. Any and all references to any Loan Document in any other Loan
Document shall be deemed to refer to such Loan Document as amended by this
Amendment. This Amendment is deemed incorporated into each of the Loan
Documents. Any initially capitalized terms used in this Amendment without
definition shall have the meanings assigned to those terms in the Loan
Documents. To the extent that any term or provision of this Amendment is or
may be inconsistent with any term or provision in any Loan Document, the
terms and provisions of this Amendment shall control.
2. The Borrower hereby certifies that: (a) all of its
representations and warranties in the Loan Documents, as amended by this
Amendment, are, except as may otherwise be stated in this Amendment: (i) true
and correct as of the date of this Amendment, (ii) ratified and confirmed
without condition as if made anew, and (iii) incorporated into this Amendment
by reference, (b) no Event of Default or event which, with the passage of
time or the giving of notice or both, would constitute an Event of Default,
exists under any Loan Document which will not be cured by the execution and
effectiveness of this Amendment, (c) no consent, approval, order or
authorization of, or registration or filing with, any third party is required
in connection with the execution, delivery and carrying out of this Amendment
or, if required, has been obtained, and (d) this Amendment has been duly
authorized, executed and delivered so that it constitutes the legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms. The Borrower confirms that the Obligations remain outstanding without
defense, set off, counterclaim, discount or charge of any kind as of the date
of this Amendment.
3. The Borrower hereby confirms that any collateral for the
Obligations, including liens, security interests, mortgages, and pledges
granted by the Borrower or third parties (if applicable), shall continue
unimpaired and in full force and effect, and shall cover and secure all of
the Borrower's existing and future Obligations to the Bank, as modified by
this Amendment.
4. As a condition precedent to the effectiveness of this Amendment,
the Borrower shall comply with the terms and conditions (if any) specified in
Exhibit A.
5. To induce the Bank to enter into this Amendment, the Borrower
waives and releases and forever discharges the Bank and its officers,
directors, attorneys, agents, and employees from any liability, damage,
claim, loss or expense of any kind that it may have against the Bank or any
of them arising out of or relating to the Obligations. The Borrower further
agrees to indemnify and hold the Bank and its officers, directors, attorneys,
agents and employees harmless from any loss, damage, judgment, liability or
expense (including attorneys' fees) suffered by or rendered against the Bank
or any of them on account of any claims arising out of or relating to the
Obligations. The Borrower further states that it has carefully read the
foregoing release and indemnity, knows the contents thereof and grants the
same as its own free act and deed.
6. This Amendment may be signed in any number of counterpart copies
and by the parties to this Amendment on separate counterparts, but all such
copies shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page to this Amendment by facsimile
transmission shall be effective as delivery of a manually executed
counterpart. Any party so executing this Amendment by facsimile transmission
shall promptly deliver a manually executed counterpart, provided that any
failure to do so shall not affect the validity of the counterpart executed by
facsimile transmission.
7. This Amendment will be binding upon and inure to the benefit of
the Borrower and the Bank and their respective heirs, executors,
administrators, successors and assigns.
8. This Amendment has been delivered to and accepted by the Bank and
will be deemed to be made in the State where the Bank's office indicated in
the Loan Documents is located. This Amendment will be interpreted and the
rights and liabilities of the parties hereto determined in accordance with
the laws of the State where the Bank's office indicated in the Loan Documents
is located, excluding its conflict of laws rules.
9. Except as amended hereby, the terms and provisions of the Loan
Documents remain unchanged, are and shall remain in full force and effect
unless and until modified or amended in writing in accordance with their
terms, and are hereby ratified and confirmed. Except as expressly provided
herein, this Amendment shall not constitute an amendment, waiver, consent or
release with respect to any provision of any Loan Document, a waiver of any
default or Event of Default under any Loan Document, or a waiver or release
of any of the Bank's rights and remedies (all of which are hereby reserved).
The Borrower expressly ratifies and confirms the waiver of jury trial
provisions contained in the Loan Documents.
WITNESS the due execution of this Amendment as a document under seal
as of the date first written above.
WITNESS / ATTEST: DATARAM CORPORATION
XXXXXXX XXXXXX By: XXXX X. XXXXXXXX
(SEAL)
Print Name: Xxxxxxx Xxxxxx Xxxx X. Xxxxxxxx
Title: Controller Vice President, Finance
(Include title only if an officer of entity signing to the right)
PNC BANK, NATIONAL ASSOCIATION
By: XXXXX X. XXXXXXXXX
(SEAL)
Xxxxx X. Xxxxxxxxx
Vice President
EXHIBIT A TO
AMENDMENT TO LOAN DOCUMENTS
DATED AS OF June 20, 2006
A. The "Loan Documents" that are the subject of this Amendment include
the following (as any of the foregoing have previously been amended,
modified or otherwise supplemented):
1. Loan Agreement dated as of June 21, 2004 (the "Agreement")
2. Committed Line of Credit Note dated June 21, 2004 (the "Note")
3. All other documents, instruments, agreements, and certificates
executed and delivered in connection with the Loan Documents
listed in this Section A.
B. The Loan Documents are amended as follows:
Modifications to the Agreement
Elimination of Borrowing Base: Advances under the Loan will no longer
be subject to a borrowing base formula. Paragraph I. Loan is deleted
in its entirety and replaced, therefor, with the following
1. Loan. The Bank has made or may make one or more loans
(collectively, the "Loan") to the Borrower subject to the terms
and conditions and in reliance upon the representations and
warranties of the Borrower set forth in this Agreement. The Loan
is or will be evidenced by a promissory note or notes of the
Borrower and all renewals, extensions, amendments and
restatements thereof (if one or more, collectively, the "Note")
acceptable to the Bank, which shall set forth the interest rate,
repayment and other provisions, the terms of which are
incorporated into this Agreement by reference.
Amend Financial Covenant: Section 2. of the FINANCIAL COVENANTS section of
the ADDENDUM is hereby amended by deleting the ratio 1.0 to 1.0 and replacing
it with the ratio .75 to 1.0, so that going forward, the Borrower shall be
required to maintain at all times a ratio of Total Liabilities to Tangible
Net Worth of not more than .75 to 1.0.
Amend Requirement for Interim Financial Statements: Section 4.2 Interim
Financial Statements; Certificate of No Default is hereby deleted in its
entirety and replaced therefor, with the following:
Furnish the Bank within forty-five (45) days after the end
of each 1st, 2nd, and 3rd quarter the Borrower's Financial
Statements for such period, in reasonable detail, certified by an
authorized officer of the Borrower and prepared in accordance with
GAAP consistently applied from period to period. Upon the first
request for an advance under the Line of Credit, Borrower shall
supply a certificate as to its compliance with applicable
financial covenants(containing detailed calculations of all
financial covenants) for the most recent quarter end prior to the
advance request (it being agreed that if the most recent quarter
ended within 45 days of the first advance request, the applicable
quarter period to be certified to shall be the immediately
preceding quarter); in addition, so long as any advances are
outstanding under the Line of Credit, Borrower shall continue to
submit such certificates for all completed quarterly periods
within 45 days of each quarter end.
Modification to the Note
Extension of Expiration Date: The "Expiration Date" set forth in
paragraph 1. Advances is hereby amended to mean August 15, 2008, or
such later date as may be designated by the Bank by written notice
from the Bank to the Borrower.
C. Conditions to Effectiveness of Amendment: The Bank's willingness to
agree to the amendments set forth in this Amendment are subject to
the prior satisfaction of the following conditions:
1. Execution by all parties and delivery to the Bank of this
Amendment.
2. Reimbursement of the fees and expenses of the Bank's in-house
counsel in connection with this Amendment, which fees and
expenses as of the date of this Amendment are $750.00.
