Amendment to Loan Documents PNCBANK
THIS AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is made as of April
4, 2005, 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
XXXXXX XXXXXXXXX By: XXXX XXXXXXXX
__________________________ ________________________
(SEAL)
Print Name: Xxxxxx Xxxxxxxxx Xxxx X. Xxxxxxxx
Title: Chairman & CEO Vice President, Finance
(Include title only if an officer of entity signing to the right)
-2-
PNC BANK, NATIONAL ASSOCIATION
By: XXXX X. XXXXX
__________________________
(SEAL)
Xxxx X. Xxxxx
Vice President
-3-
EXHIBIT A TO
AMENDMENT TO LOAN DOCUMENTS
DATED AS OF April 4, 2005
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. 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:
Sub-paragraph 5.7 Dividends, is hereby deleted in its entirety and
replaced, therefor, with the following:
5.7. Dividends. Declare or pay any dividends on or make any
distribution with respect to any class of its equity, or purchase,
redeem, retire or otherwise acquire any of its equity; provided,
however, that Borrower shall be permitted to declare or pay dividends on
or make distributions or purchase, redeem or retire or otherwise acquire
any of its equity in an aggregate amount not to exceed Two Million Five
Hundred Thousand Dollars ($2,500,000.00) per annum, so long as no Event
of Default has occurred and is continuing or would result.
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.
