UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16
OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of July, 2015
Commission File Number: 001-36532
Sphere 3D Corp.
(Translation of registrant's name into English)
240 Matheson Blvd. East
Mississauga, Ontario L4Z 1X1
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
[ ] Form 20-F [ x ] Form 40-F
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): [ ]
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): [ ]
Indicate by check mark whether by furnishing the information
contained in this Form, the registrant is also thereby furnishing the
information to the Commission pursuant to Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Yes [ ] No [X]
If "Yes" is marked, indicate below the file number assigned
to the registrant in connection with Rule 12g3-2(b):
SUBMITTED HEREWITH
Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
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SPHERE 3D CORP. |
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Date: July 30, 2015 |
By: |
/s/ Kurt Kalbfleisch |
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Kurt Kalbfleisch |
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Title: |
Chief Financial Officer |
Exhibit 99.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
Amendment) is dated as of July 10, 2015 and entered into by and among
SPHERE 3D CORP., a corporation incorporated under the laws of the Province of
Ontario (the Borrower), OVERLAND STORAGE, INC., a California
corporation (Overland), and FBC HOLDINGS S.À R.L., a company
incorporated under the laws of Luxembourg (the Lender), and is made
with reference to that certain Revolving Credit Agreement dated as of December
31, 2014 (as amended, modified or otherwise supplemented prior to the date
hereof, the Credit Agreement), by and among the Borrower, Overland, and
the Lender. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, the Lenders Revolving Commitment under the
Credit Agreement is currently $5,000,000.00; and
WHEREAS, the Borrower has requested and the
Lender has agreed to increase the Revolving Commitments by an additional
$5,000,000.00 and make certain other amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Article 1:
Definitions
A. Section 1.1 of the Credit Agreement is hereby
amended by adding thereto the following definitions, which shall be inserted in
proper alphabetical order:
First Amendment Effective Date: July 10, 2015.
Incremental Revolving Commitment: The commitment of
the Lender arising on the First Amendment Effective Date to make Revolving Loans
to the Borrower pursuant to Section 2.1(a) in the aggregate amount of
$5,000,000.
Incremental Revolving Loans: Revolving Loans made
pursuant to the Incremental Revolving Commitment.
B. Section 1.1 of the Credit Agreement is hereby
further amended by deleting the definition
Maturity Date and Revolving Commitment
therefrom in their entirety and substituting the following therefor:
Maturity Date: May 31, 2016; provided that, in the event the Revolving
Line Maturity Date under and as defined in the SVB Credit Agreement is extended
past February 27, 2016, the Maturity Date shall be automatically extended to the
date that is ninety-one (91) days after the Revolving Line Maturity Date;
provided further that the Maturity Date shall in no event be later than November
30, 2016.
Revolving Commitment: The commitment of the Lender to
make Revolving Loans to the Borrower pursuant to Section 2.1(a) in the aggregate
amount of $10,000,000.
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1.2 Amendments to Section 2: The Loans,
Interest and Tax
A. Revolving Commitment. Section 2.1(a) of
the Credit Agreement is hereby amended by deleting the words the amount set
opposite the Lenders name on the signature pages hereof, as such amount may be
increased pursuant to Section 2.1(c) and substituting the Revolving
Commitment therefor.
B. Making the Revolving Loans. Section 2.1
of the Credit Agreement is hereby amended by deleting subsections (b), (c) and
(f) in their entireties and substituting the following therefor:
(b) Making the Revolving Loans. The Borrower may borrow
under the Revolving Commitment in minimum amounts of $1,000,000 on any Business
Day, by providing Standard Notice to the Lender, specifying (A) the amount of
the proposed Borrowing and (B) the requested date of the Borrowing. Upon
satisfaction of the applicable conditions set forth in Article V, the Lender
will make available the proceeds of all such Loans to the Borrower by crediting
the account of the Borrower on the books of the Lender. The Lenders failure to
receive Standard Notice of a particular Borrowing shall not relieve the Borrower
of its obligations to repay the Borrowing and to pay interest thereon.
(c) Incremental Commitment Warrants. For each $1,000,000
of Incremental Revolving Loans borrowed by the Borrower, the Borrower shall
issue the Lender a warrant to purchase 100,000 shares of the common stock of the
Borrower at a price per share equal to 110% of the closing price of the common
stock on the Business Day immediately prior to the date of such borrowing and
otherwise in substantially the form attached hereto as Exhibit B.
(f) Commitment Fee. The Borrower agrees to pay the to
the Lender a commitment fee on the monthly average daily unused portion of the
available Revolving Commitment less the Incremental Revolving Commitment from
the date hereof until the Maturity Date at the rate of 2.5 percent (2.5) per
annum, to accrue and be payable in full on the Maturity Date.
C. Consent to Borrowing. Section 5.2 of
the Credit Agreement is hereby amended by adding a new subsection (e) as
follows:
(e) Lender Consent. The Lender (acting in
its sole discretion) has consented to the proposed Borrowing in writing.
Section 2. REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Amendment and
to amend the Credit Agreement in the manner provided herein, each of the
Borrower and Overland represents and warrants to the Lender that the following
statements are true, correct and complete:
A. Corporate Power and Authority. Such
Loan Party has all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the Credit Agreement as amended by this Amendment (the
Amended Agreement).
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B. Authorization of Agreements. The
execution and delivery of this Amendment and the performance of the Amended
Agreement have been duly authorized by all necessary corporate action on the
part of such Loan Party.
C. No Conflict. The execution and delivery
by each Loan Party of this Amendment and the performance by the Loan Parties of
the Amended Agreement do not and will not (i) violate any provision of any law
or any governmental rule or regulation applicable to such Loan Parties, the
organizational documents of such Loan Party or any order, judgment or decree of
any court or other agency of government binding on such Loan Party, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any material agreement of such Loan Party, (iii)
result in or require the creation or imposition of any Lien upon any of the
properties or assets of such Loan Party (other than Liens created under any of
the Loan Documents in favor of the Lender), or (iv) require any approval of
stockholders or any approval or consent of any Person under any material
agreement of such Loan Party, except for such approvals or consents which have
been obtained.
D. Governmental Consents. The execution
and delivery by such Loan Party of this Amendment and the performance by such
Loan Party of the Amended Agreement do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment has
been duly executed and delivered by such Loan Party and this Amendment and the
Amended Agreement are the legally valid and binding obligations of such Loan
Party, enforceable against such Loan Party in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors rights generally
or by equitable principles relating to enforceability.
F. Incorporation of Representations and
Warranties From Credit Agreement. The Borrowers representations and
warranties contained in Article IV of the Credit Agreement are and will be true,
correct and complete in all material respects on and as of the date hereof to
the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
G. Absence of Default. No event has
occurred and is continuing or will result from the consummation of the
transactions contemplated by this Amendment that would constitute an Event of
Default or a Potential Event of Default.
Section 3. MISCELLANEOUS
A. Reference to and Effect on the Credit
Agreement and the Other Loan Documents.
(i) On and after the date hereof, each reference in the Credit
Agreement to this Agreement, hereunder, hereof, herein or words of like
import referring to the Credit Agreement, and each reference in the other Loan
Documents to the Credit Agreement, thereunder, thereof or words of like
import referring to the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
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(iii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of the Lender
under, the Credit Agreement or any of the other Loan Documents.
B. Headings. Section and subsection
headings in this Amendment are included herein for convenience of reference only
and shall not constitute a part of this Amendment for any other purpose or be
given any substantive effect.
C. Applicable Law. THIS AMENDMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
D. Counterparts; Effectiveness. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original, but all such counterparts together shall constitute
but one and the same instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by the Borrower, Overland,
and the Lender and receipt by the Borrower and the Lender of written or
telephonic notification of such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
SPHERE 3D CORP., as the
Borrower
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: SVP & CFO
OVERLAND STORAGE, INC.
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: SVP & CFO
FBC HOLDINGS S.À R.L., as
Lender
By: /s/ Shehzaad Atchia and Jacob
Mudde
Name: Manacor (Luxembourg) S.A
Title: Manager A and Director
By: /s/Jennifer M. Pulick
Name: Cyrus Capital Partners, LP
Title: Manager B
Exhibit 99.2
EXECUTION VERSION
AMENDMENT NO. 2 TO
AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT
This AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this
Amendment), is entered into as of July 29, 2015, 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 and together with US Borrower, the Existing
Borrowers), SPHERE 3D CORP., an Ontario corporation (formerly known as
Sphere 3D Corporation) (Canadian Borrower and together with the
Existing Borrowers, 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 desire that Bank amend the Loan
Agreement upon the terms and conditions fully set forth herein; and
C. 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 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:
1 DEFINED TERMS. All capitalized
terms not defined herein shall have the respective meanings ascribed to such
terms in the Loan Agreement.
2 AMENDMENTS TO LOAN AGREEMENT
2.1 Section 6.7 (Operating Accounts).
Section 6.7 of the Loan Agreement is hereby amended by deleting the phrase
within one hundred and eighty (180) days of the Effective Date with the phrase
within ninety (90) days of the Second Amendment Effective Date.
2.2 Section 6.8 (Financial Covenants).
Section 6.8 of the Loan Agreement is hereby amended by adding new clause (b) as
follows:
(b) Performance to Plan As of the last date of each
quarter, beginning with the quarter ending June 30 2015, 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 June
5, 2015.
2.3 Section 13.1 (Definitions).
(a) Each of the following definitions is hereby (i) to the
extent already defined in Section 13.1 of the Loan Agreement, amended and
restated in its entirety as follows and (ii) 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:
Adjusted EBITDA shall mean (a) Net Income,
plus (b) Interest Expense, plus (c) to the extent deducted in the
calculation of Net Income, (i) depreciation expense and amortization expense and
(ii) non-cash expense related to stock-based compensation, plus (d) income tax
expense, plus (e) restructuring expenses and integration costs,
including, without limitation, costs relating to severance, retention, relocation, contract termination and consolidation of
facilities, plus (f) any identifiable and factually supportable
extraordinary, unusual or nonrecurring losses or charges; provided, that
in the case of the items described in clauses (e) and (f), Borrower shall have
obtained the prior written approval from Bank to include such items in its
calculation of Adjusted EBITDA.
Cyrus 2014 Indenture means that certain 8% Senior
Secured Convertible Debenture dated as of December 1, 2014, by and among North
American Borrowers, certain Subsidiaries of Canadian Borrower and Cyrus
Luxembourg, as the same may be amended, modified, restated, replaced or
supplemented from time to time in accordance with the Cyrus Subordination
Agreement.
Cyrus 2014 Notes means the notes issued pursuant to
the Cyrus 2014 Indenture.
Cyrus Credit Agreement means that certain Revolving
Credit Agreement, dated as of December 31, 2014, by and between Canadian
Borrower, US Borrower and Cyrus Luxembourg, as the same may be amended,
modified, restated, replaced or supplemented from time to time in accordance
with the Cyrus Subordination Agreement.
Cyrus Luxembourg means FBC Holdings S.à r.l., a
private limited liability company (société à responsabilité limitée),
incorporated under the laws of the Grand Duchy of Luxembourg, with its
registered office at 46 A, Avenue John F. Kennedy, L-1855 Luxembourg, having a
share capital of 12,500 shares with a nominal value of EUR 1, and registered
with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under
number B 142.133.
Cyrus Subordination Agreement means that certain
Subordination Agreement, dated as of December 31, 2014, by and among Bank, Cyrus
Luxembourg and the North American Borrowers, as the same may be amended,
modified, restated, replaced or supplemented from time to time in accordance
with the terms and conditions contained therein, in respect of the Indebtedness
of Borrowers pursuant to the Cyrus Credit Agreement and the Cyrus 2014 Notes.
German Receivables Dominion is Banks dominion over
the proceeds of all Receivables (as defined in the German Receivables Assignment
Agreement) of German Borrower either through (a) deposit of such proceeds in
accounts held at Bank or Banks Affiliates or (b) via an alternative manner
reasonably satisfactory to Bank in its sole discretion.
German Sublimit is (a) if Bank has German Receivables
Dominion, Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000) and
(b) if Bank does not have German Receivables Dominion, Three Million Two Hundred
Fifty Thousand Dollars ($3,250,000).
Interest Expense means for any fiscal period, interest
expense (whether cash or non-cash) determined in accordance with GAAP for the
relevant period ending on such date, including, in any event, interest expense
with respect to any Credit Extension and other Indebtedness of Borrowers and
their Subsidiaries, including, without limitation or duplication, all
commissions, discounts, or related amortization and other fees and charges with
respect to letters of credit and bankers acceptance financing and the net costs
associated with interest rate swap, cap, and similar arrangements, and the
interest portion of any deferred payment obligation (including leases of all
types).
Prime Rate Margin is the basis points set forth below
applicable to each Borrower as determined by Borrowers Liquidity Coverage
Ratio:
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Net Cash |
North American Borrowers |
German Borrower Loan Margin
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Loan
Margin |
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Greater than $500,000.00 |
150 basis points |
250 basis points |
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Less than or equal to $500,000.00 |
175 basis points |
275 basis points |
Revolving Line Maturity Date is February 27, 2016.
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Second Amendment is that certain Amendment No. 2 to
Amended and Restated Loan and Security Agreement, dated as of July 29, 2015, by
and among the Borrowers, the Guarantors and Bank.
Second Amendment Effective Date is defined in the
Second Amendment.
Subordinated Debt is Indebtedness incurred by any
Borrower subordinated to all of such Borrowers now or hereafter Indebtedness to
Bank (pursuant to a subordination, intercreditor, or other similar agreement in
form and substance satisfactory to Bank entered into between Bank and the other
creditor), on terms acceptable to Bank, which, for the avoidance of doubt,
includes the Cyrus 2014 Notes and Cyrus Credit Agreement, in each case subject
to the Cyrus Subordination Agreement.
(b) Clause (c) of the definition of Permitted Indebtedness
appearing in Section 13.1 is hereby amended and restated in its entirety as
follows:
(c) Subordinated Debt;
(c) Clause (s) of the definition of Permitted Liens appearing
in Section 13.1 is hereby amended and restated in its entirety as follows:
(s) Liens (i) on equity interests issued by Overland Storage
(Europe) Ltd., Overland Storage S.À R.L. and Overland Storage GmbH and (ii) on
collateral subject to the Cyrus Subordination Agreement, in each case securing
the Indebtedness permitted pursuant to clause (c) of the definition of Permitted
Indebtedness;
(d) All references in the Loan Documents to Sphere 3D
Corporation shall be deemed to be references to Sphere 3D Corp..
2.4 Exhibit B (Form of Compliance
Certificate). Exhibit B to the Loan Agreement is hereby deleted in its
entirety and replaced with Exhibit B hereto.
2.5 Exhibit D (Form of Advance Request
Form). Exhibit D to the Loan Agreement is hereby deleted in its entirety and
replaced with Exhibit D hereto.
3 LIMITATION. The 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, the consent and waiver or any instrument or agreement
referred to therein; (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 Banks right to demand strict
performance of all terms and covenants as of any date. Except as expressly
amended hereby, the Loan Agreement and the consent and waiver shall continue in
full force and effect.
4 REPRESENTATIONS AND
WARRANTIES. To induce Bank to enter into this Amendment, each
Borrower hereby represents and warrants to Bank as follows:
4.1 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;
4.2 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;
4.3 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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4.4 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;
4.5 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;
4.6 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
4.7 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.
5 EFFECTIVENESS. This Amendment
shall become effective upon the satisfaction of all the following conditions
precedent (the Second Amendment Effective Date):
5.1 Amendment. The Borrowers and Bank
shall have duly executed and delivered this Amendment to Bank;
5.2 Amendment to Cyrus Credit Agreement.
Bank shall have received a fully executed copy of an amendment to the Cyrus
Credit Agreement and the same shall be in (a) form and substance reasonably
satisfactory to Bank, which includes, without limitation, an (i) increase in the
commitment by Cyrus Luxembourg of the available revolving line of credit to
$10,000,000 and (ii) extension of the maturity to at least May 28, 2016, and (b)
full force and effect;
5.3 Perfection Information. Bank shall
have received, each of each Borrowers and each Guarantors Operating Documents
and each Borrowers good standing certificates certified, as applicable, by the
appropriate officers of its jurisdiction of organization as of a date no earlier
than thirty (30) days prior to the Second Amendment Effective Date, duly
executed signatures to the completed Borrowing Resolutions for each Borrower and
each Guarantor, together with the duly executed signatures thereto;
5.4 Payment of Amendment Fee. The
Borrowers shall have paid a fully earned, non-refundable amendment fee of Eleven
Thousand Two Hundred Fifty Dollars ($11,250) on the Second Amendment Effective
Date; provided that German Borrower shall only be obligated to pay Bank
(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); and
5.5 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 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.
7 LOAN DOCUMENT. This
Amendment is a Loan Document.
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8 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.
9 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 Clara
County, California
10 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.
11 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.
[Signature page follows.]
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IN WITNESS WHEREOF, the undersigned has caused this
Amendment to be duly executed and delivered as of the date first above written.
BORROWERS:
OVERLAND STORAGE, INC.,
a
California corporation
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: SVP and CFO
TANDBERG DATA GMBH,
a
limited liability company organized under the laws of Germany
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: Manager
SPHERE 3D CORP.,
an Ontario
corporation
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: SVP and CFO
GUARANTORS:
TANDBERG DATA HOLDINGS S.À
R.L., a private limited liability company (société à responsabilité limitée)
incorporated under the laws of the Grand Duchy of Luxembourg
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: Manager A
By: /s/ Eric Kelly
Name:
Eric Kelly
Title: Manager A
SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
SPHERE 3D INC.,
a
corporation organized under the laws of Canada
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: SVP and CFO
FROSTCAT TECHNOLOGIES INC.,
a corporation organized under the laws of Canada
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: SVP and CFO
V3 SYSTEMS HOLDINGS, INC.,
a Delaware corporation
By: /s/ Kurt L. Kalbfleisch
Name: Kurt L. Kalbfleisch
Title: CFO
SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
SILICON VALLEY BANK
By: /s/ Matthew Wright
Name: Matthew Wright
Title: Director
SIGNATURE PAGE TO
AMENDMENT NO. 2 TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
EXHIBIT B
Form of Compliance Certificate
TO: SILICON VALLEY BANK |
Date: |
FROM: SPHERE 3D CORP. |
|
The undersigned authorized officer of Sphere 3D Corp.
(Canadian Borrower) certifies that under the terms and conditions of
the Amended and Restated Loan and Security Agreement dated as of March 19, 2014
by and among Silicon Valley Bank, a California corporation (Bank),
Canadian Borrower, Overland Storage, Inc. (US Borrower), and Tandberg
Data GmbH, a corporation organized under the laws of Germany (German
Borrower, and together with Canadian Borrower and US Borrower, the
Borrowers) (as amended from time to time, the Agreement), (1)
each Borrower is in complete compliance for the period ending _______________
with all required covenants except as noted below, (2) there are no Events of
Default, (3) all representations and warranties in the Agreement are true and
correct in all material respects on this date except as noted below;
provided, however, that such materiality qualifier shall not be
applicable to any representations and warranties that already are qualified or
modified by materiality in the text thereof; and provided,
further, that those representations and warranties expressly referring to
a specific date shall be true, accurate and complete in all material respects as
of such date, (4) each Borrower, and each of its Subsidiaries, has timely filed
all required tax returns and reports, and each Borrower has timely paid all
foreign, federal, state and local taxes, assessments, deposits and contributions
owed by Borrower except as otherwise permitted pursuant to the terms of Section
Error! Reference source not found. of the Agreement, and (5) no Liens
have been levied or claims made against any Borrower or any of its Subsidiaries
relating to unpaid employee payroll or benefits of which such Borrower has not
previously provided written notification to Bank. Attached are the required
documents supporting the certification. The undersigned certifies that these are
prepared in accordance with GAAP consistently applied from one period to the
next except as explained in an accompanying letter or footnotes. The undersigned
acknowledges that no borrowings may be requested at any time or date of
determination that any Borrower is not in compliance with any of the terms of
the Agreement, and that compliance is determined not just at the date this
certificate is delivered. Capitalized terms used but not otherwise defined
herein shall have the meanings given them in the Agreement.
[Remainder of Page Left Intentionally Blank]
Please indicate compliance status by circling Yes/No under
Complies column.
Reporting Covenant |
Required |
Complies |
|
|
|
Transaction Report |
Monthly (Weekly after a Net Cash
Event) |
Yes No |
A/R and A/P Agings |
Monthly within 15 days (Weekly
within 5 days after a Net Cash Event) |
Yes No |
Monthly Financial Statements |
Monthly within 30 days |
Yes No |
Compliance Certificate |
Monthly within 30 days, Quarterly
with Form 10-Q, but not later than 50 days after each fiscal quarter end,
as applicable, Annually with Form 10-K, but not later than 90 days after
each fiscal year end, as applicable, |
Yes No |
Quarterly cash holding report |
Quarterly within 30 days after
the end of each fiscal quarter |
Yes No |
Quarterly Financial Statements |
Quarterly within 50 days after
the end of each fiscal quarter |
Yes No |
Annual Financial Statements |
FYE within 90 days |
Yes No |
Forms 10-Q, 10-K and 8-K |
Within 5 days after filing with
SEC, but in the case of the 10-K report, not later than 90 days after FYE
|
Yes No |
Annual operating budgets and projections
approved by board of directors or other managers |
Within 50 days after FYE |
Yes No |
Field Exams |
Semi-Annually or as conditions
warrant |
Yes No |
Material change in composition of
Intellectual Property, registration of new Intellectual Property, or event
that materially or adversely affect value of Intellectual Property |
|
Yes No |
Pending or threatened legal action that could
result in damages, individually or in the aggregate, of $100,000.00 |
|
Yes No |
[Remainder of Page Left Intentionally Blank]
EXHIBIT D
Form of Advance Request Form
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