FIRST AMENDMENT
TO
CREDIT AGREEMENT
BY AND BETWEEN
FIRST UNION NATIONAL BANK,
DATARAM CORPORATION
AND
DATARAM ACQUISITION SUBSIDIARY, INC.
This First Amendment ("First Amendment") to the Credit Agreement dated April
16, 2001 ("Credit Agreement") by and between First Union National Bank
("Bank"), Dataram Corporation (the "Borrower") and Dataram Acquisition
Subsidiary, Inc. (the "Guarantor") is made as of this 25th day of June, 2001
between the Bank, the Borrower and the Guarantor.
RECITALS
A. On April 16, 2001, the Bank and the Borrower entered into the
Credit Agreement.
B. The parties wish to enter into a Swap Agreement, and to amend the
Credit Agreement, on the terms and conditions set forth herein.
C. The Guarantor has approved this First Amendment and acknowledged
that the Guaranty is and, after the execution and delivery of this First
Amendment, will be in full force and effect.
NOW, THEREFORE, in consideration of the agreement of the parties
contained herein, and intending to be legally bound, the parties hereto
agree as follows:
1. Recitals and Definitions
The Borrower, the Guarantor and the Bank acknowledge and agree that the
foregoing recitals are true and correct as of the date of this First
Amendment. Capitalized terms used herein and not defined shall have the
meanings assigned to them in the Credit Agreement.
2. Amendments to Credit Agreement.
Effective as of the date hereof, the Credit Agreement is amended as
follows:
(a) Section 1.1 is amended by adding the defined term "Adjusted
Swap Rate", and by amending the definition of "Loan Documents", in each case
to read in its entirety as follows:
"Adjusted Swap Rate" means, at any time that a Swap Agreement between
the Borrower and the Bank is in effect, the rate of interest payable under
such Swap Agreement at such time by the Bank plus one and three quarters
percent (1.75%).
"Loan Documents" means this Agreement. the Revolving Credit Note. the
Term Note. the Mortgage. the Collateral Documents and other documents
executed and delivered by the Borrower hereunder (excluding any Swap
Agreement(s)). and any amendments. renewals. modifications or supplements
thereto. or substitutions therefor.
(b) Section 2.2(E) is hereby deleted.
(c) Section 2.3(A) is amended to read in its entirety to read
as follows:
(A) Notwithstanding any other provision of this Agreement. if the
introduction of or any change in or in the interpretation of any law or
regulation by any central bank or other governmental authority charged with
the administration or interpretation thereof shall make it unlawful, or any
central bank or other governmental authority shall assert that it is
unlawful. for the Bank to perform its obligations hereunder (i) to make
Eurodollar Revolving Credit Loans. (ii) to continue to fund or maintain
Eurodollar Revolving Credit Loans hereunder or (iii) to maintain the rate of
interest on the Term Loan based upon the Adjusted LIBO Rate. then. on notice
thereof and demand therefor by the Bank to the Borrower, the obligation of
the Bank to make any such Eurodollar Revolving Credit Loans or to continue
the Term Loan at an interest rate based upon the Adjusted LIBO Rate shall
terminate and, if the foregoing clauses (ii) and/or (iii) is applicable, the
Borrower shall, upon prior notice to the Bank, either
(1) forthwith repay in full any such Eurodollar Revolving Credit Loans
then outstanding and the outstanding principal balance of the Term Loan,
together with interest accrued thereon and the Repayment Indemnity(ies), or
(2) forthwith convert any such Eurodollar Revolving Credit Loans then
outstanding into Prime Rate Revolving Credit Loans and
(a) if on the date of such notice and demand no Swap Agreement is
in effect between the Borrower and the Bank, convert the interest rate
applicable to the outstanding principal balance of the Term Loan to the
Adjusted Prime Rate and pay to the Bank the Repayment Indemnity, or
(b) if on the date of such notice and demand a Swap Agreement is
in effect between the Borrower and the Bank. convert the interest rate
applicable to the outstanding principal balance of the Term Loan to the
Adjusted Swap Rate and pay to the Bank the Repayment Indemnity.
If no such notice is received by the Bank within three (3) Working Days of
the prior demand by the Bank, Borrower will be deemed to have made the
election to convert any such Eurodollar Revolving Credit Loans then
outstanding into Prime Rate Revolving Credit Loans and to convert the
interest rate applicable to the outstanding principal balance of the Term
Loan to the Adjusted Prime Rate as of the fourth day following such demand.
(d) Section 5.1 is amended to read in its entirety as follows:
5.1 LOANS, ADVANCES AND INVESTMENTS
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The Borrower will not. and will not permit any Subsidiary to. make any
loan or advance to. or investment in. any Person except for (A) loans.
advances or investments by any Subsidiary to or in the Borrower or any
Subsidiary. (B) loans. advances or investments by the Borrower to or in any
Subsidiary made in any fiscal year of the Borrower which do not exceed.
individually or in the aggregate. 50% of Excess Cash Flow for such fiscal
year. and (C) other loans. advances or investments which. in the aggregate
do not exceed $100.000 (measured on a consolidated basis as to the Borrower
and Subsidiaries) and provided further that at the time of any loan. advance
or investment permitted under clause (A), (B) or (C) above no Default or
Event of Default exists or would result from the making of such loan,
advancement or investment.
3. General.
The parties hereto acknowledge that all provisions of the Credit
Agreement and the other Loan Documents, except as otherwise modified by this
First Amendment, shall remain in full force and effect.
4. Representations and Warranties.
A. The Borrower hereby represents and warrants to the Bank that. on
and as of the date of this First Amendment: (a) each of the representations
and warranties contained in the Credit Agreement are accurate, (b) the
execution, delivery and performance by the Borrower of this First Amendment
has been duly authorized by all necessary action taken by the duly
authorized officers of the Borrower and is the legal, valid, and enforceable
obligation of the Borrower, (c) no Event of Default has occurred and is
continuing or will result from the execution by the Borrower of this First
Amendment, and (d) that the Loan Documents as amended herein are enforceable
in accordance with their terms without any setoffs, counterclaims or
defenses.
B. The Guarantor hereby represents and warrants to the Bank that, on
and as of the date of this First Amendment: (a) each of the representations
and warranties contained in the Guaranty are accurate, (b) the execution,
delivery and performance by the Guarantor of this First Amendment has been
duly authorized by all necessary action taken by the duly authorized
officers of the Guarantor, (c) no Event of Default has occurred and is
continuing or will result from the execution by the Guarantor of this First
Amendment, and (d) that the Loan Documents as amended herein are enforceable
in accordance with their terms without any setoff. counterclaims or
defenses.
5. Conditions to Effectiveness.
It shall be a condition to the effectiveness of this First Amendment
that the Bank have received the following:
A. This First Amendment, duly executed on behalf of the Borrower, the
Guarantor and the Bank;
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B. A Swap Agreement between the Borrower and the Bank. duly executed
on behalf of the Borrower and the Bank (it being understood that any
termination or modification of such Swap Agreement after it shall have been
so executed and delivered shall not disturb the effectiveness of this First
Amendment); and
C. Certificates of Resolution evidencing a resolution of the Board of
Directors of the Borrower and the Guarantor authorizing the execution.
delivery and performance of this First Amendment, and otherwise satisfactory
to the Bank.
6. Integration.
This First Amendment, together with the Loan Documents, constitutes the
entire agreement and understanding among the parties relating to the subject
matter hereof and thereof and supersedes all prior proposals, negotiations,
agreements and understandings relating to such subject matter. This First
Amendment shall constitute a Loan Document.
7. Severability.
If any provision of this First Amendment shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall,
as to such jurisdiction, be ineffective to the extent of such invalidity or
enforceability without in any manner affecting the validity or
enforceability of such provision in any other jurisdiction or the remaining
provisions of this First Amendment in any other jurisdiction.
8. No Defenses, Setoffs or Counterclaims.
By executing this First Amendment, the Borrower and the Guarantor each
confirms and acknowledges that as of the date of execution hereof, neither
has any defenses, setoffs or counterclaims against any of their respective
obligations to the Bank under the Loan Documents, including the Credit
Agreement (as amended by this First Amendment) and the Guaranty. Borrower
hereby acknowledges and agrees that the actual amounts outstanding on the
date of execution hereof are owing the Bank without defense. setoff or
counterclaim.
9. Incorporation by Reference.
This First Amendment is incorporated by reference into the Credit
Agreement and the other Loan Documents. Except as otherwise provided herein,
all of the other provisions of the Credit Agreement and the other Loan
Documents are hereby confirmed and ratified and shall remain in full force
and effect as of the date of this First Amendment.
10. Governing Law.
This First Amendment is governed by the laws of the State of New Jersey
and is binding upon the Borrower, the Guarantor and the Bank and their
respective successors and assigns.
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11. Counterparts.
This First Amendment may be executed by one or more of the parties on
any number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
BANK:
FIRST UNION NATIONAL BANK
XXXXXXX X. XXXXXXX
By:____________________________
Xxxxxxx X. Xxxxxxx, Officer
BORROWER:
DATARAM CORPORATION
XXXX XXXXXXXX
By:____________________________
Xxxx Xxxxxxxx, Vice President
GUARANTOR:
DATARAM ACQUISITION SUBSIDIARY, INC.
XXXX XXXXXXXX
By:____________________________
Xxxx Xxxxxxxx, Vice President
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Reaffirmation and Consent under Subsidiary Guaranty:
Capitalized terms set forth in following reaffirmation and consents have the
meaning assigned in the Credit Agreement.
The undersigned reaffirms its obligation under the Subsidiary Guaranty under
which it, among other things, unconditionally guarantees payment in full of
all obligations of the Borrower under the Credit Agreement as amended
hereby. and confirms and acknowledges that the security interests granted to
the Bank over the Collateral (as defined in the Subsidiary Pledge Agreement)
shall continue to secure the undersigned's obligations under the Subsidiary
Guaranty. There are no claims, setoffs or defenses of any kind or nature to
payment and satisfaction in full thereof.
DATARAM ACQUISITION SUBSIDIARY, INC.
XXXX XXXXXXXX
By:_________________________________
Xxxx Xxxxxxxx
Vice President
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