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EXHIBIT 10.15
AMENDED AND RESTATED
LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "AGREEMENT"), is entered
into as of October 30, 2000 (the "CLOSING DATE"), by and between OTG SOFTWARE,
INC., a Delaware corporation ("OTG" or the "BORROWER") as the borrower, and PNC
BANK, NATIONAL ASSOCIATION, (the "BANK");
WHEREAS, the Borrower and the Bank are parties to a Loan Agreement
dated as of July 22, 1999 (the "ORIGINAL LOAN AGREEMENT") pursuant to which the
Bank made available a revolving credit facility to the Borrower in an aggregate
principal amount not to exceed $5,000,000; and
WHEREAS, the Borrower and the Bank are parties to an Amendment No. 1 to
the Loan Agreement dated March 17, 2000 (the "AMENDMENT NO. 1") whereby the Bank
agreed to modify certain covenant compliance and reporting requirements set
forth in the Original Loan Agreement, subject to the terms and conditions of
Amendment No. 1 (the Original Loan Agreement as amended by Amendment No. 1
referred to herein as the "LOAN AGREEMENT"); and
WHEREAS, the Borrower has requested that the Bank further amend the
Loan Agreement to (i) increase the maximum availability under the Revolving
Credit to $10,000,000 with a $5,000,000 subline for letters of credit; (ii)
extend the maturity date for the Revolving Credit; (iii) modify the interest
rate for the Revolving Credit; and (iv) modify certain covenant compliance and
reporting requirements set forth in the Loan Agreement and the Bank has agreed
to make such modifications according to the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises herein and other good
and valuable consideration, the Borrower and the Bank, intending to be legally
bound hereby, agree as follows:
1. FACILITY. Subject to the terms and conditions hereof and relying on the
representations and warranties hereof, the Bank agrees to make Revolving
Credit Loans to the Borrower until the Expiration Date PROVIDED that the
sum at any time of (i) the aggregate principal amount of all Revolving
Credit Loans, (ii) the aggregate face amount of all Letters of Credit and
(iii) the aggregate amount of all unreimbursed draws on Letters of Credit
shall not exceed the lesser of $10,000,000 and the Borrowing Base; and
PROVIDED, FURTHER, that the sum at any time of (y) the aggregate face
amount of all Letters of Credit and (z) the aggregate amount of all
unreimbursed draws on Letters of Credit shall not exceed $5,000,000.
The proceeds of the Revolving Credit shall be used for general corporate
and working capital purposes.
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2. TERMS AND CONDITIONS. The Facility shall consist of the components set
forth in Section 1 hereof in accordance with the following terms:
2.1 EXPIRATION DATE. Three hundred sixty four (364) days from the date of
the closing of this Agreement ("CLOSING DATE"), or on such subsequent
anniversary of the Closing Date as the parties hereto may agree in
writing (the "REVOLVING CREDIT EXPIRATION DATE").
2.2. INTEREST RATE OPTIONS. The Borrower shall pay interest upon the
outstanding unpaid principal amount of the Advances as selected by it
from the Base Rate Option or LIBOR-Rate Option set forth below
applicable to the Advances, it being understood that, subject to the
provisions of this Agreement, the Borrower may select different
Interest Rate Options and different Interest Periods to apply
simultaneously to the Advances comprising different Borrowing Tranches
and may convert to or renew one or more Interest Rate Options with
respect to all or any portion of the Advances comprising any Borrowing
Tranche; PROVIDED, THAT, there shall not be at any one time
outstanding more than forty (40) Borrowing Tranches in the aggregate
among all of the Advances accruing interest at the LIBOR-Rate Options.
If at any time the designated rate applicable to any Advance made by
the Bank exceeds the highest lawful rate, the rate of interest on such
Advance shall be limited to the highest lawful rate.
(a) REVOLVING CREDIT INTEREST RATE OPTIONS. The Borrower shall have
the right to select from the following Interest Rate Options
applicable to the Revolving Credit Advances:
(i) BASE RATE OPTION: A fluctuating rate per annum (computed on
the basis of a year of 360-day year for the actual number of
days elapsed) equal to the Revolving Credit Base Rate. The
interest applicable to the Obligations (as hereinafter
defined) shall change on each date there is a change in the
Revolving Credit Base Rate. The Revolving Credit Base Rate
shall equal the Prime Rate. "PRIME RATE" means the rate
announced from time to time by the Bank as its "prime rate";
it is a base rate upon which other rates charged by the Bank
are based, and it is not necessarily the best rate offered
by the Bank.
and
(ii) LIBOR-RATE OPTION: A rate per annum (computed on the basis
of a year of 360 days and actual days elapsed) equal to the
LIBOR-Rate plus two and one-half percent (2.5%).
(b) RATE QUOTATIONS. The Borrower may call the Bank on or before the
date on which an Advance Request is to be delivered to receive an
indication of the rates then in effect, but it is acknowledged
that such projection shall
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not be binding on the Bank nor affect the rate of interest which
thereafter is actually in effect when the election is made.
(c) INTEREST PERIODS. At any time when the Borrower shall select,
convert to or renew a LIBOR-Rate Option, the Borrower shall
notify the Bank thereof at least three (3) Business Days prior to
the effective date of such LIBOR-Rate Option by delivering an
Advance Request. The notice shall specify an interest period (the
"INTEREST PERIOD") during which such Interest Rate Option shall
apply, such Interest Period to be one, two, three, six or twelve
Months. Notwithstanding the preceding sentence, the following
provisions shall apply to any selection of, renewal of, or
conversion to a LIBOR-Rate Option:
(i) ENDING DATE AND BUSINESS DAY. Any Interest Period which
would otherwise end on a date which is not a Business Day
shall be extended to the next succeeding Business Day unless
such Business Day falls in the next calendar month, in which
case such Interest Period shall end on the next preceding
Business Day.
(ii) AMOUNT OF BORROWING TRANCHE. Each Borrowing Tranche of
LIBOR-Rate Advances shall be in integral multiples of
$250,000.
(iii) TERMINATION BEFORE EXPIRATION DATE. The Borrower shall not
select, convert to or renew an Interest Period for any
portion of the Advances that would end after the Revolving
Credit Expiration Date.
(iv) RENEWALS. In the case of the renewal of a LIBOR-Rate Option
at the end of an Interest Period, the first day of the new
Interest Period shall be the last day of the preceding
Interest Period, without duplication in payment of interest
for such day.
(d) INTEREST AFTER DEFAULT. To the extent permitted by Law, upon the
occurrence of an Event of Default and until such time such Event
of Default shall have been cured or waived:
(i) DEFAULT INTEREST RATE. If any payment due hereunder or under
any of the Loan Documents is not made, whether of interest,
fees, principal, reimbursement obligations or otherwise,
interest shall accrue on the overdue amount at a rate of 2%
above the otherwise applicable rate (or, if no rate is
otherwise applicable 2% per annum) (the "DEFAULT INTEREST
RATE").
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(ii) ACKNOWLEDGMENT. The Borrowers acknowledge that the increase
in rates referred to in this Section 2.2(d) reflects, among
other things, the fact that such Advances or other amounts
have become a substantially greater risk given their default
status and that the Bank is entitled to additional
compensation for such risk; and all such interest shall be
payable by Borrower upon demand by Bank.
(e) LIBOR-RATE UNASCERTAINABLE.
(i) UNASCERTAINABLE. If on any date on which a LIBOR-Rate would
otherwise be determined, the Bank shall have determined
that:
(A) adequate and reasonable means do not exist for
ascertaining such LIBOR-Rate; or
(B) a contingency has occurred which materially and
adversely affects the secondary market for negotiable
certificates of deposit maintained by dealers of
recognized standing relating to the London interbank
eurodollar market relating to the LIBOR-Rate, the Bank
shall have the rights specified in Section 2.2(f).
(ii) ILLEGALITY; INCREASED COSTS; DEPOSITS NOT AVAILABLE. If at
any time any Bank shall have determined that:
(A) the making, maintenance or funding of any Loan to which
a LIBOR-Rate Option applies has been made impracticable
or unlawful by compliance by such Bank in good faith
with any Law or any interpretation or application
thereof by any Official Body or with any request or
directive of any such Official Body (whether or not
having the force of Law); or
(B) such LIBOR-Rate Option will not adequately and fairly
reflect the cost to the Bank of the establishment or
maintenance of any such Advance; or
(C) after making all reasonable efforts, deposits of the
relevant amount in U.S. Dollars for the relevant
Interest Period for an Advance to which a LIBOR-Rate
Option applies, respectively, are not available to such
Bank at the effective cost of funding a proposed Loan
in the London interbank market,
then such Bank shall have the rights specified in Section
2.2(f).
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(f) BANK'S RIGHTS. In the case of any event specified in
Section 2.2(e) above, the Bank shall promptly notify the
Borrower. Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is
given), the obligation of the Bank to allow the Borrower to
select, convert to or renew a LIBOR-Rate Option shall be
suspended until the Bank shall have later notified the
Borrower of the Bank's determination that the circumstances
giving rise to such previous determination no longer exist. If
at any time the Bank makes a determination under Section
2.2(e)(i) and a Borrower has previously notified the Bank of
its selection of, conversion to or renewal of a LIBOR-Rate
Option and such Interest Rate Option has not yet gone into
effect, such notification shall be deemed to provide for
selection of, conversion to or renewal of the Base Rate Option
otherwise available with respect to such Advances. If the Bank
notifies the Borrower of a determination under Section
2.2(e)(ii), the Borrower shall, subject to the Borrower's
indemnification Obligations under Section 11, as to any
Advance of the Bank to which a LIBOR-Rate Option applies, on
the date specified in such notice either convert such Advance
to the Base Rate Option otherwise available with respect to
such Advance or prepay such Advance in accordance with the
Revolving Credit Note (as defined herein). Absent due notice
from the Borrower of conversion or prepayment, such Advance
shall automatically be converted to the Base Rate Option
otherwise available with respect to such Advance upon such
specified date.
(g) SELECTION OF INTEREST RATE OPTIONS. If the Borrower fails to
select a new Interest Period to apply to any Borrowing Tranche
under the LIBOR-Rate Option at the expiration of an existing
Interest Period applicable to such Borrowing Tranche in
accordance with the provisions of Section 2.2(c), the Borrower
shall be deemed to have converted such Borrowing Tranche to the
Base Rate Option commencing upon the last day of the existing
Interest Period.
(h) DEFINITIONS. For purposes of this Section 2.2:
(i) "BORROWING TRANCHE" shall mean specified portions of the
Facility outstanding as follows: (i) any Advances to which a
LIBOR-Rate Option applies which become subject to the same
Interest Rate Option under the same Advance Request by the
Borrower which have the same Interest Period shall
constitute one Borrowing Tranche; and (ii) all Advances to
which a Base Rate Option applies shall constitute one
Borrowing Tranche.
(ii) "BUSINESS DAYS" shall mean any day other than a Saturday or
Sunday or a legal holiday on which commercial banks are
authorized or required to be closed for business in Maryland
or Pennsylvania and, if the applicable Business Day related
to any
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Advance to which the LIBOR-Rate Option applies, such day
must also be a day on which dealings in dollar deposits are
carried on in the London interbank market.
(iii) "LAW" shall mean any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance,
opinion, release, ruling, order, injunction, writ, decree or
award of any Official Body.
(iv) "LIBOR RATE" shall mean with respect to the Advances
comprising any Borrowing Tranche to which the LIBOR-Rate
Option applies for any Interest Period, the interest rate
per annum determined by the Bank by dividing (the resulting
quotient rounded upward to the nearest 1/100th of 1% per
annum) (i) the rate of interest determined by the Bank in
accordance with its usual procedures (which determination
shall be conclusive and binding upon the Borrower, absent
manifest error on the part of the Bank) to be equal to the
offered rates for deposits in U.S. Dollars for the
applicable LIBOR-Rate Interest Period which appears on page
3750 of the Telerate rate reporting system or other similar
system as of approximately 11:00 a.m. London time, two (2)
Business Days prior to the first day of such LIBOR-Rate
Interest Period for an amount comparable to such Advance and
having a borrowing date and a maturity comparable to such
Interest Period by (ii) a number equal to 1.00 minus the
LIBOR-Rate Reserve Percentage. The LIBOR-Rate may also be
expressed by the following formula:
LIBOR-Rate = OFFERED RATE ON TELERATE PAGE 3750
-------------------------------------
1.00 - LIBOR-Rate Reserve Percentage
If more than one offered rate appears on page 3750 of the
Telerate reporting system or similar system, the rate will
be the arithmetic mean of such offered rates. The LIBOR-Rate
shall be adjusted with respect to any LIBOR-Rate Option
outstanding on the effective date of any change in the
LIBOR-Rate Reserve Percentage as of such effective date. The
Bank shall give prompt notice to the Borrower of the
LIBOR-Rate as determined or adjusted in accordance herewith,
which determination shall be conclusive absent manifest
error.
(v) "LIBOR-RATE OPTION" shall mean the option of the Borrower to
have Advances bear interest at the rate and under the terms
and conditions set forth in Section 2.2.
(vi) "LIBOR-RATE RESERVE PERCENTAGE" shall mean the maximum
percentage (expressed as a decimal rounded upward to the
nearest
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1/100 of 1%) as determined by the Bank which is in effect
during any relevant period, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor)
for determining the reserve requirements (including
supplemental, marginal and emergency reserve requirements)
with respect to eurocurrency funding (currently referred to
as "EUROCURRENCY LIABILITIES") of a member bank in such
System.
(vii) "MONTH", with respect to an Interest Period under the
LIBOR-Rate Option, shall mean the interval between the days
in consecutive calendar months numerically corresponding to
the first day of such Interest Period. If any LIBOR-Rate
Interest Period beings on a day of a calendar month for
which there is no numerically corresponding day in the month
in which such Interest Period is to end, the final month of
such Interest Period shall be deemed to end on the last
Business Day of such final month.
(viii) "OFFICIAL BODY" shall mean any national, federal, state,
local or other government or political subdivision or any
agency, authority, bureau, central bank, commission,
department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether
foreign or domestic.
2.3 FACILITY FEE. The Borrower shall pay to the Bank on the Closing Date a
facility fee of $12,500.
2.4 BORROWING BASE/AVAILABILITY. The Revolving Credit shall be available
in amounts determined in accordance with the Amended and Restated
Borrowing Base Rider in the form attached hereto as EXHIBIT A.
2.5 REQUESTS. Except as otherwise provided herein, the Borrower may from
time to time prior to the applicable Revolving Credit Expiration Date
request the Bank to make an advance under the Revolving Credit (each
an "ADVANCE") by delivering to the Bank a request by telephone
immediately confirmed in writing by letter, facsimile or telex in such
form (an "ADVANCE REQUEST"), it being understood that the Bank may
rely on the authority of any individual making such a telephonic
request without the necessity of receipt of such written confirmation.
Each Advance Request shall be irrevocable and shall specify (a) the
proposed borrowing date; (b) the aggregate amount of the proposed
borrowing hereunder; and (c) the Interest Rate Option. Each Advance
Request shall be accompanied by the most recent Borrowing Base
Certificate prepared by the Borrower. Advance Requests using a Base
Rate Option shall be delivered by 12:00 Noon, Eastern time, on the day
of the requested Advance. Advance Requests using a Libor-Rate Option
shall be delivered by 12:00 Noon Eastern time at least three (3)
Business Days before the requested Advance.
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2.6. PROMISSORY NOTES. The obligation of the Borrower to repay the
aggregate unpaid principal amount of the Revolving Credit, together
with interest thereon, shall be evidenced by an amended and restated
promissory note of the Borrower ("REVOLVING CREDIT NOTE") payable to
the order of the Bank in a face amount equal to the maximum amount of
the Revolving Credit.
2.7. INTENTIONALLY OMITTED.
2.8. LETTERS OF CREDIT. Standby Letters of Credit, in the aggregate face
amount of up to $5,000,000, may be issued on behalf of the Borrower
subject to the terms and conditions of this Agreement and the L/C
Agreements (as defined below) including:
(a) ISSUANCE OF LETTERS OF CREDIT. At any time prior to the Revolving
Credit Expiration Date, the Borrower may request the issuance of
letters of credit (each a "LETTER OF CREDIT") by delivering to
the Bank completed Irrevocable Standby Letter of Credit
Application and Reimbursement Form for Irrevocable Standby Letter
of Credit (the "L/C AGREEMENTS") or such other forms as the Bank
may specify from time to time by no later than 10:00 a.m. Eastern
time at least three (3) Business Days, or such shorter period as
may be agreed to by the Bank, in advance of the proposed date of
issuance. Subject to the terms and conditions hereof, and to the
terms of the L/C Agreements, the Bank will issue a Letter of
Credit having a maturity date no later than (i) the Revolving
Credit Expiration Date or (ii) some later date if approved by the
Bank and if the face amount of the Letter of Credit is fully cash
collateralized on terms acceptable to the Bank.
(b) LETTER OF CREDIT FEES. The Borrower shall pay to the Bank, with
respect to any Letter of Credit, a flat fee of 1.0% per annum on
the daily average undrawn face amount of such standby Letter of
Credit for the period from and including the date of issuance of
such Letter of Credit, payable quarterly in arrears commencing
with the first Business Day of each January, April, July and
October following issuance of each Letter of Credit and on the
Revolving Credit Expiration Date. The Borrower shall also pay to
the Bank customary fees and administrative expenses payable with
respect to the Letters of Credit as the Bank may generally charge
or incur from time to time in connection with the issuance,
maintenance, modification (if any), assignment or transfer (if
any), negotiation, and administration of Letters of Credit.
(c) REIMBURSEMENT. In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the
Bank will promptly notify the Borrower. Provided that it shall
have received such notice, the Borrower shall reimburse (such
obligation to reimburse the Bank shall
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sometimes be referred to as a "REIMBURSEMENT OBLIGATION") the
Bank prior to 12:00 Noon, Eastern time on each date that an
amount is paid by the Bank under any Letter of Credit (each such
date, a "DRAWING DATE") in an amount equal to the amount so paid
by the Bank. Any notice given by the Bank pursuant to this
Section 2.8 (c) may be oral if immediately confirmed in writing;
PROVIDED, THAT the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
With respect to any unreimbursed drawing, the Borrower shall be
deemed to have incurred from the Bank an Advance under the
Revolving Credit in the amount of such drawing. Such loan shall
be due and payable on demand (together with interest) and shall
bear interest before demand at the Revolving Credit Base Rate per
annum and after demand at the Default Interest Rate.
3. SECURITY. Subject to the partial release contained in the Affirmation and
Partial Release of Security Agreement of even date herewith, the security
for repayment of the Facility shall include but not be limited to the
collateral, guaranties and other documents heretofore, contemporaneously or
hereafter executed and delivered to the Bank (the "SECURITY DOCUMENTS"),
which shall secure repayment of the Facility, the Revolving Credit Note and
draws under Letter of Credits and any amendments, extensions, renewals or
increases and all costs and expenses of the Bank incurred in the
documentation, negotiation, modification, enforcement, collection or
otherwise in connection with any of the foregoing, including but not
limited to reasonable attorneys' fees and expenses (hereinafter referred to
collectively as the "OBLIGATIONS"). This Agreement (including the Addendum
and any Riders thereto), the Revolving Credit Note, the L/C Agreements and
the Security Documents are collectively referred to as the "LOAN
DOCUMENTS".
4. REPRESENTATIONS AND WARRANTIES. The Borrower makes the following
representations and warranties to the Bank which shall be true and correct
as of the date of this Agreement and the date of the making of any Advance,
and which shall be true and correct except as otherwise set forth on the
Addendum attached hereto and incorporated herein by reference (the
"ADDENDUM").
4.1 EXISTENCE, POWER AND AUTHORITY. The Borrower is duly organized,
validly existing and in good standing under the laws of the State of
its incorporation or organization and has the power and authority to
own and operate its assets and to conduct its business as now or
proposed to be carried on, and is duly qualified, licensed and in good
standing to do business in all jurisdictions where its ownership of
property or the nature of its business requires such qualification or
licensing, except where the failure to be so qualified or licensed
would not have a Material Adverse Effect (as defined herein). The
Borrower is duly authorized to execute and deliver the Loan Documents,
all necessary action to authorize the execution and delivery of the
Loan Documents has been properly taken, and the
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Borrower is and will continue to be duly authorized to borrow under
this Agreement and to perform all of the other terms and provisions of
the Loan Documents.
4.2. FINANCIAL STATEMENTS.
(a) The Borrower has delivered or caused to be delivered to the Bank
its consolidated balance sheet and income statement for the fiscal
year ended December 31, 1999, for the quarter ended March 31, 2000,
and for the quarter and six months ended June 30, 2000 (the
"HISTORICAL FINANCIAL STATEMENTS"). The Historical Financial
Statements are true, complete and accurate in all material respects
and fairly present the consolidated financial condition, assets and
liabilities, whether accrued, absolute, contingent or otherwise and
the result of Borrower's operations for the period specified therein.
The Historical Financial Statements have been prepared in accordance
with GAAP, subject in the case of interim statements to normal
year-end adjustments and to any comments and notes acceptable to the
Bank.
(b) The Borrower has delivered to the Bank projections of its
anticipated financial performance for the period beginning on January
1, 2000 and continuing through December 31, 2000 (the "FINANCIAL
PROJECTIONS").
4.3. NO MATERIAL ADVERSE CHANGE. Since the date of the Historical Financial
Statements, the Borrower has not suffered any material damage,
destruction or loss to its assets, and no event or condition has
occurred or exists, which has resulted or would reasonably be expected
to result in a material adverse change in its business, assets,
operations, financial condition or results of operation. Since the
preparation of the Financial Projections, there has been no material
adverse change as against such Financial Projections.
4.4. BINDING OBLIGATIONS. The Borrower has full power and authority to
enter into the transactions provided for in this Agreement and has
been duly authorized to do so by appropriate action of its Board of
Directors; and the Loan Documents, when executed and delivered by such
Borrower, will constitute the legal, valid and binding obligations of
such Borrower enforceable in accordance with their terms, except as
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting the rights of
creditors generally, general equitable principles and an implied
covenant or good faith and fair dealing.
4.5. NO DEFAULTS OR VIOLATIONS. There does not exist any Event of Default
under this Agreement or any material default or violation by the
Borrower of or under any of the terms, conditions or obligations of:
(i) its articles or certificate of incorporation, regulations or
bylaws; (ii) any material indenture, mortgage, deed of trust,
franchise, permit, contract, agreement, or other instrument to which
it is a
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party or by which it is bound; or (iii) any material law, regulation,
ruling, order, injunction, decree, condition or other requirement
applicable to or imposed upon it by any law, the action by any court
or any governmental authority or agency; and the consummation of this
Agreement and the transactions set forth herein will not result in any
such default or violation.
4.6. TITLE TO ASSETS. The Borrower has valid title to its assets reflected
on the Historical Financial Statements, free and clear of all liens
and encumbrances, except for (i) current taxes and assessments not yet
due and payable, (ii) liens and encumbrances, if any, reflected or
noted in the Historical Financial Statements, (iii) assets disposed of
by such Borrower in the ordinary course of business since the date of
the Historical Financial Statements, and (iv) those liens or
encumbrances specified on the Addendum.
4.7. LITIGATION. There are no actions, suits, proceedings or governmental
investigations pending or, to the Borrower's knowledge, threatened
against the Borrower, which could reasonably be expected to result in
a material adverse change in its business, assets, operations,
financial condition or results of operations ("MATERIAL ADVERSE
EFFECT") and there is no basis reasonably known to the Borrower for
any action, suit, proceedings or investigation which could reasonably
be expected to have a Material Adverse Effect. All pending or
threatened litigation against the Borrower of which the Borrower has
knowledge is listed on the Addendum.
4.8. TAX RETURNS. The Borrower has filed all returns and reports that are
required to be filed in connection with any federal, state or local
tax, duty or charge levied, assessed or imposed upon it or its
property or withheld by it, including unemployment, social security
and similar taxes and all of such taxes (including distributions to
stockholders in respect of taxes on the Borrower's earnings
attributable to such stockholders), have been either paid or adequate
reserves or other provisions have been made.
4.9. EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which the
Borrower may have any liability complies in all material respects with
all applicable provisions of the Employee Retirement Income Security
Act of 1974 ("ERISA"), including minimum funding requirements, and (i)
no Prohibited Transaction (as defined under ERISA) has occurred with
respect to any such plan, (ii) no Reportable Event (as defined under
Section 4043 of ERISA) has occurred with respect to any such plan
which would cause the Pension Benefit Guaranty Corporation to
institute proceedings under Section 4042 of ERISA, (iii) the Borrower
has not withdrawn from any such plan or initiated steps to do so, and
(iv) no steps have been taken to terminate any such plan.
4.10. ENVIRONMENTAL MATTERS. The Borrower is in compliance, in all material
respects, with all Environmental Laws, including, without limitation,
all Environmental
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Laws in jurisdictions in which the Borrower owns or operates, or has
owned or operated, a facility or site, stores Collateral, arranges or
has arranged for disposal or treatment of hazardous substances, solid
waste or other waste, accepts or has accepted for transport any
hazardous substances, solid waste or other wastes or holds or has held
any interest in real property or otherwise. Except as otherwise
disclosed on the Addendum, no litigation or proceeding arising under,
relating to or in connection with any Environmental Law is pending or,
to the best of the Borrower's knowledge, threatened against the
Borrower, any real property which the Borrower holds or has held an
interest or any past or present operation of the Borrower. To the
knowledge of the Borrower, no release, threatened release or disposal
of hazardous waste, solid waste or other wastes is occurring, or has
occurred, on, under or to any real property in which the Borrower
holds any interest or performs any of its operations, in material
violation of any Environmental Law. As used in this Section,
"LITIGATION OR PROCEEDING" means any demand, claim notice, suit, suit
in equity, action, administrative action, investigation or inquiry
whether brought by a governmental authority or other person, and
"ENVIRONMENTAL LAWS" means all provisions of laws, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by any
governmental authority concerning health, safety and protection of, or
regulation of the discharge of substances into, the environment.
4.11. INTELLECTUAL PROPERTY. The Borrower owns or, to the best of
Borrower's knowledge, has the right to use all patents, patent rights,
trademarks, trade names, service marks, copyrights, intellectual
property, technology, know-how and processes necessary for the conduct
of its business as currently conducted that are material to the
condition (financial or otherwise), business or operations of the
Borrower.
4.12. REGULATORY MATTERS. No part of the proceeds of the Facility will be
used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of
the Board of Governors of the Federal Reserve System as now and from
time to time in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors.
4.13. SOLVENCY. As of the date hereof and after giving effect to the
transactions contemplated by the Loan Documents, the Borrower will
have sufficient cash flow to enable it to pay its debts as they
mature.
4.14. DISCLOSURE. None of the Loan Documents contains any untrue statement
of material fact or omits to state a material fact necessary in order
to make the statements contained in this Agreement or the Loan
Documents not misleading.
4.15. YEAR 2000. The Borrower has reviewed the areas within its business
and operations which could be adversely affected by, and has developed
or is
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developing a program to address on a timely basis the risk that
certain computer applications used by the Borrower may be unable to
recognize and perform properly date-sensitive functions involving
dates prior to and after December 31, 1999 (the "YEAR 2000 PROBLEM").
The rollover to calendar year 2000 has not resulted in, and the Year
2000 Problem will not result in, any Material Adverse Effect.
5. AFFIRMATIVE COVENANTS. The Borrower agrees that from the date of execution
of this Agreement until all Obligations have been fully paid and any
commitments of the Bank to the Borrower have been terminated, the Borrower
will:
5.1. BOOKS AND RECORDS. Maintain books and records accurately and properly
such that the presentation of its financial statements is in
accordance with GAAP and give representatives of the Bank access
thereto at all reasonable times following notice from the Bank,
including permission to examine, copy and make abstracts from any of
such books and records and such other information as the Bank may from
time to time reasonably request, and the Borrower will make available
to the Bank for examination copies of any reports, statements or
returns which the Borrower may make to or file with any governmental
department, bureau or agency, federal or state. Borrower will notify
the Bank in writing of any material changes from the assumptions and
methodologies employed in the Borrower's preparation and presentation
of its Historical Financial Statements.
5.2. INTERIM FINANCIAL STATEMENTS; CERTIFICATE OF NO DEFAULT; ACCOUNTS
RECEIVABLE. Furnish the Bank within twenty (20) days after the end of
each month: (i) a detailed report on its accounts receivable in such
reasonable detail consistent with the form currently used by the
Borrower's management; and (ii) a certificate signed by such officer
which verifies compliance with applicable financial covenants for the
period then ended and whether any Event of Default exists, and, if so,
the nature thereof and the corrective measures the Borrower proposes
to take; PROVIDED, HOWEVER, that the Borrower is required to furnish
such reports only during the months the Borrower has outstanding
Obligations under this Agreement.
The Borrower shall also provide within forty-five (45) days of the end
of each fiscal quarter its Financial Statements (as defined
hereinafter) for such period, in reasonable detail, certified by the
president, chief executive officer or chief financial officer of the
Borrower and prepared in accordance with GAAP applied from period to
period. "FINANCIAL STATEMENTS" means the Borrower's consolidated and,
if required by the Bank in its reasonable discretion, consolidating
balance sheets, income statements and statements of cash flows for the
year, month or (excepting statements of cash flows) quarter together
with year-to-date figures and comparative figures for the
corresponding periods of the prior year.
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<PAGE>
5.3. ANNUAL FINANCIAL STATEMENTS. Furnish the Borrower's Financial
Statements to the Bank within 120 days after the end of each fiscal
year. Those Financial Statements will be prepared in accordance with
GAAP and audited by an independent certified public accountant
selected by the Borrower and reasonably satisfactory to the Bank.
Audited Financial Statements shall contain the unqualified opinion of
an independent certified public accountant and its examination shall
have been made in accordance with GAAP. The Borrower will also provide
filings made with any regulatory authority, to the extent requested by
the Bank, and such other information reasonably requested by the Bank,
from time to time.
5.4. PAYMENT OF TAXES AND OTHER CHARGES. Pay and discharge in accordance
with past practice all indebtedness and pay when due all taxes,
assessments, charges, levies and other liabilities imposed by
government authorities upon the Borrower, or upon the Borrower's
stockholders because of the Borrower, its income, profits, property or
business, except those which currently are being contested in good
faith by appropriate proceedings and for which the Borrower shall have
set aside adequate reserves in accordance with GAAP or made other
adequate provision with respect thereto acceptable to the Bank.
5.5. MAINTENANCE OF EXISTENCE, OPERATION AND ASSETS. Do all things
necessary to maintain, renew and keep in full force and effect its
organizational existence and all rights, permits and franchises
necessary to enable it to continue its business; continue in operation
in substantially the same manner as at present; keep its properties in
good operating condition and repair; and make all necessary and proper
repairs, renewals, replacements, additions and improvements thereto.
5.6. INSURANCE. Maintain with financially sound and reputable insurers,
insurance with respect to its property and business against such
casualties and contingencies, of such types and in such amounts as is
customary for established companies engaged in the same or similar
business and similarly situated. In the event of a conflict between
the provisions of this Section and the terms of any Security Documents
relating to insurance, the provisions in the Security Documents will
control.
5.7. COMPLIANCE WITH LAWS. Comply in all material respects with all laws
applicable to the Borrower and to the operation of its business
(including any statute, rule or regulation relating to employment
practices and pension benefits or to environmental, occupational and
health standards and controls).
5.8. BANK ACCOUNTS. Establish and maintain at the Bank or at an affiliate
of the Bank all of the Borrower's main depository accounts.
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5.9. FINANCIAL COVENANTS. Comply with all of the financial and other
covenants, if any, set forth on the Addendum, subject to all
applicable cure periods set forth herein.
5.10. ADDITIONAL REPORTS. Provide prompt written notice to the Bank of the
occurrence of any of the following of which the Borrower obtains
knowledge (together with a description of the action which the
Borrower proposes to take with respect thereto): (i) any Event of
Default, (ii) any litigation filed by or against the Borrower, (iii)
any Reportable Event or Prohibited Transaction with respect to any
Employee Benefit Plan(s) (as defined in ERISA), or (iv) any event
which might reasonably be expected to have a Material Adverse Effect.
6. NEGATIVE COVENANTS. The Borrower covenants and agrees that from the date of
execution of this Agreement until all Obligations have been fully paid and
any commitments of the Bank to the Borrower have been terminated, the
Borrower will not, except as set forth in the Addendum, without the prior
written consent of the Bank, which will not be unreasonably withheld or
delayed:
6.1. INDEBTEDNESS. Incur any indebtedness for borrowed money other than:
(i) the Facility and any subsequent indebtedness to the Bank; (ii)
existing indebtedness disclosed on the Borrower's Historical Financial
Statements; (iii) additional unsecured indebtedness (including capital
leases) in an amount not to exceed in the aggregate at any time Five
Million Dollars ($5,000,000); or (iv) payables incurred in the
ordinary course of business.
6.2. LIENS AND ENCUMBRANCES. Except as provided in Section 4.6, create,
assume or permit to exist any mortgage, pledge (excluding pledges by
the Borrower's stockholders of the capital stock of the Borrower),
encumbrance or other security interest or lien upon any assets now
owned or hereafter acquired or enter into any lease or any arrangement
for the acquisition of property subject to any conditional sales
agreement, other than liens securing indebtedness permitted under
Section 6.1 or statutory liens which do not materially affect the
Collateral, or in the aggregate, materially impair the ability of the
Borrower to perform its Obligations hereunder or under the other Loan
Documents.
6.3. ADVANCES OR INVESTMENTS. Purchase or hold beneficially any stock,
other securities or evidences of indebtedness of any loans, advances
to, or make any investment or acquire any interest whatsoever in, any
other person, firm or corporation except:
(i) trade credit extended on usual and customary items in the
ordinary course of business;
(ii) loans to employees to purchase the capital stock of the Borrower
as disclosed in the Addendum;
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<PAGE>
(iii) transfers to subsidiaries or affiliates;
(iv) investments in direct obligations of the United States of America
or any agency or instrumentality thereof or obligation backed by
the full faith and credit of the United States of America
maturing in twelve (12) months or less from the date of
investment;
(v) investments in commercial paper maturing in 180 days or less
rated not lower than A-1, by Standard & Poor's or P-1 by Moody's
Investors Service, Inc. on the date of the investment;
(vi) investments in demand deposits, time deposits or certificates of
deposit maturing within one year in commercial banks whose
obligations are rated A-1, A or the equivalent or better by
Standard & Poor's on the date of the investment (items (iv), (v),
and (vi) collectively referred to as the "PERMITTED
INVESTMENTS"); and
(vii) the Borrower may acquire the assets or securities of any other
Person provided that (i) at the time of such acquisition no Event
of Default shall have occurred and be continuing or be caused by
such acquisition, (ii) the assets become the property of the
Borrower, subject, in the case of Accounts, to the Bank's prior
perfected security interest and, in the case of an acquisition of
securities, the Person becomes jointly and severally obligated to
the Bank for the Obligations on terms satisfactorily to the Bank,
(iii) the board of directors or other equivalent governing body
of such acquired Person shall have approved such acquisition, (v)
the acquired Person is engaged in a business related to that of
the Borrower, and (vi) the Borrower shall have provided the Bank
at least three (3) Business Days prior to such acquisition, with
a certificate stating that (A) such acquisition shall not violate
any covenants of this Agreement and (B) establishing that, on a
twelve month pro forma basis after taking into account the
acquisition, the Borrower is in compliance with the financial
covenants set forth in this Agreement ("PERMITTED ACQUISITIONS").
PROVIDED, HOWEVER, that (A) the Permitted Investments are made in
connection with a treasury management and investment program
approved by the Borrower's Board of Directors; and (B) Permitted
Acquisitions do not exceed $10,000,000 in the aggregate
consideration (including consideration paid and debt assumed).
6.4. MERGER OR TRANSFER OF ASSETS. Merge or consolidate with or into any
person, firm or corporation, except a merger of OTG and a wholly-owned
subsidiary of OTG, or, during any fiscal year, lease, sell, transfer
or otherwise dispose of its
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property or assets (excluding the sale of inventory and obsolete
or unused equipment in the ordinary course of business), whether
now owned or hereafter acquired.
6.5. CHANGE IN BUSINESS, MANAGEMENT OR OWNERSHIP. Make or permit any
material change in any of its lines of business as carried on as of
the date hereof.
6.6. DIVIDENDS. Declare or pay any dividends on or make any distribution
with respect to any class of its equity or ownership interest, or
purchase, redeem, retire or otherwise acquire any of its equity;
PROVIDED, HOWEVER, that such restriction shall not apply once the
Borrower is profitable. For purposes of this Section 6.6, the term
"PROFITABLE" shall mean positive Net Income after Taxes, measured in
accordance with generally accepted accounting principles consistently
applied.
7. EVENTS OF DEFAULT. The occurrence of any of the following will be deemed to
be an "EVENT OF DEFAULT":
7.1. PAYMENT DEFAULT. The Borrower shall fail to pay any payment of
principal when due or any payment of interest within five (5) business
days following the date when due, in respect of the Obligations.
7.2. MATERIAL ADVERSE CHANGE. There shall be a material adverse change in
the business, operations, assets, financial condition or results of
operations of the Borrower.
7.3. COVENANT DEFAULT. The Borrower shall default in the performance of, or
violate any of, the covenants or agreements contained in this
Agreement, which default shall not have been cured within thirty (30)
business days after the occurrence thereof.
7.4. BREACH OF WARRANTY. Any Financial Statement, representation, warranty
or certificate made or furnished by the Borrower to the Bank in
connection with this Agreement shall be false, incorrect or incomplete
in any material respect when made.
7.5. BANKRUPTCY OR INSOLVENCY. A proceeding shall have been instituted in a
court having jurisdiction over the Borrower seeking a decree or order
for relief in respect of the Borrower in an involuntary case under any
applicable bankruptcy, insolvency reorganization or other similar law
and such involuntary case shall remain undismissed or unstayed and in
effect for a period of sixty (60) consecutive days, or the Borrower
shall commence a voluntary case under any such law or consent to the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or other similar official).
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<PAGE>
7.6 OTHER DEFAULT. The occurrence of an Event of Default as defined in the
Revolving Credit Note or any of the Security Documents, or a violation
of any of the requirements set forth in the Borrowing Base Rider.
Upon the occurrence of an Event of Default, and at any time
thereafter, the Bank may declare all Obligations hereunder immediately
due and payable will have all rights and remedies (which are
cumulative and not exclusive) specified in the Revolving Credit Note
and the Security Documents and available under applicable law or in
equity upon the delivery of prior written notice to the Borrower.
8.1 CONDITIONS. The Bank's obligation to enter into this Agreement is
subject to the Borrower's satisfaction of the following conditions:
(a) NO EVENT OF DEFAULT. No Event of Default or event which with the
passage of time, provision of notice or both would constitute an Event
of Default shall have occurred and be continuing.
(b) AUTHORIZATION DOCUMENTS. The Borrower shall have furnished to the
Bank certified copies of resolutions of the board of directors
authorizing the execution of this Agreement, the Revolving Credit Note
or any of the Security Documents; or other proof of authorization
satisfactory to the Bank.
(c) RECEIPT OF LOAN DOCUMENTS. The Borrower shall have executed and
delivered to the Bank the Loan Documents and such other instruments
and documents which the Bank may reasonably request in connection with
the transactions provided for in this Agreement.
(d) COLLATERAL/SECURITY. The Bank shall have received first priority
security interests and liens on all assets of the Borrower and shall
have received all such instruments and documents necessary to perfect
such security interests and liens.
(e) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Borrower to the Bank shall be true and correct in all respects.
8.2. ADDITIONAL ADVANCES. At the time of making each Advance under the
Revolving Credit or the issuance of any Letter of Credit, and after
giving effect to any such proposed extensions of credit: (i) the
representations and warranties of the Borrower contained in the Loan
Documents shall be true on and as of the date of such funding or
Advance with the same effect as though such representations and
warranties had been made on and as of such date (except
representations and warranties which expressly relate solely to an
earlier date or time, which representations and warranties shall be
true and correct on and as of the specific dates or times referred to
therein) and the Borrower shall have performed and complied with all
covenants and conditions hereof; (ii) no Event of Default or any event
specified in Section 7, which, with the giving of notice, lapse of
time or both, would become an Event of Default, shall have occurred
and be continuing or shall exist; (iii) the advancement of funds under
the Revolving Credit or the issuance of a
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<PAGE>
Letter of Credit shall not contravene any law applicable to the
Borrower or the Bank, as applicable; and (iv) the Borrower shall have
delivered to the Bank a duly executed and completed Advance Request or
L/C Agreement.
9. EXPENSES. The Borrower agrees to pay the Bank, upon the closing of this
Agreement, and otherwise on demand, all reasonable and necessary costs and
expenses incurred by the Bank in connection with the (i) preparation,
negotiation and delivery of this Agreement and the other Loan Documents,
and any modifications thereto (including reasonable attorney's fees, and
(ii) collection of the loan or instituting, maintaining, preserving,
enforcing and foreclosing the security interest in any of the collateral
securing the Facility, whether through judicial proceedings or otherwise,
or in defending or prosecuting any actions or proceedings arising out of or
relating to this Agreement, including reasonable fees and expenses of
counsel, expenses for auditors, appraisers and environmental consultants,
lien searches, recording and filing fees and taxes.
10. INCREASED COSTS. Within twenty (20) days following written demand, together
with the written evidence of the justification therefor, the Borrower
agrees to pay the Bank all direct costs incurred and any losses suffered or
payments made by the Bank as a consequence of making the Facility by reason
of any change in law or regulation or its interpretation imposing any
reserve, deposit, allocation of capital or similar requirement (including
without limitation, Regulation D of the Board of Governors of the Federal
Reserve System) on the Bank, its holding company or any of their respective
assets; PROVIDED, HOWEVER, that the Bank shall make no such written demand
on the Borrower unless similar demands have been made against all other
similarly situated customers of the Bank.
11. INDEMNITY. In addition to the compensation required by Section 10, the
Borrower shall jointly and severally indemnify the Bank against all
liabilities, losses or expenses (including loss of margin, any loss or
expense incurred in liquidating or employing deposits from third parties
and any loss or expense incurred in connection with funds acquired by a
Bank to fund or maintain Advances subject to a LIBOR-Rate Option) which the
Bank sustains or incurs as a consequence of any:
(i) payment, prepayment, conversion or renewal of any Advance to which a
LIBOR-Rate Option applies on a day other than the last day of the
corresponding Interest Period (whether or not such payment or
prepayment is mandatory, voluntary or automatic and whether or not
such payment or prepayment is then due);
(ii) attempt by the Borrower to revoke (expressly, by later inconsistent
notices or otherwise) in whole or part any Advance Request under
Section 2.5 or Section 2.2(c) or notice relating to prepayments as
set forth in the Revolving Credit Note of even date herewith; or
(iii) default by the Borrower in the performance or observance of any
covenant or condition contained in this Agreement or any other Loan
Document,
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<PAGE>
including any failure of the Borrower to pay when due (by
acceleration or otherwise) any principal, interest or any other
amount due hereunder.
If any Bank sustains or incurs any such loss or expense, it shall from
time to time notify the Borrower of the amount determined in good faith
by the Bank (which determination may include such reasonable
assumptions, allocations of costs and expenses and averaging or
attribution methods) to be necessary to indemnify the Bank for such
loss or expense. Such notice shall set forth in reasonable detail the
basis for such determination. Such amount shall be due and payable by
the Borrower to the Bank ten (10) Business Days after such notice is
given.
12. MISCELLANEOUS.
12.1. NOTICES. All notices, demands, requests, consents, approvals and
other communications required or permitted hereunder must be in
writing and will be effective upon receipt if delivered personally to
such party, or if sent by facsimile transmission with confirmation of
delivery, or by nationally recognized overnight courier service, to
the address set forth below or to such other address as any party may
give to the other in writing for such purpose:
To the Bank: To the Borrower:
PNC Bank, National Association OTG Software, Inc.
VentureBank@PNC 6701 Democracy Boulevard
11600 Sunrise Valley Drive Suite 805
Reston, VA 20191 Bethesda, MD 20817
Attention: Katharine S. Kappler Attention: Ronald W. Kaiser
Facsimile No.: 703-391-9734 Facsimile No.: 301-897-4794
12.2 PRESERVATION OF RIGHTS. No delay or omission on the part of the Bank
to exercise any right or power arising hereunder will impair any such
right or power or be considered a waiver of any such right or power or
any acquiescence therein, nor will the action or inaction of the Bank
impair any right or power arising hereunder. The rights and remedies
hereunder of the Bank are cumulative and not exclusive of any other
rights or remedies which the Bank may have under other agreements, at
law or in equity.
12.3. ILLEGALITY. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby.
12.4. CHANGES IN WRITING. No modification, amendment or waiver of any
provision of this Agreement will in any event be effective unless the
same is in writing and signed by the Bank and then such waiver or
consent shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on
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<PAGE>
the Borrower in any case will entitle the Borrower to any other or
further notice or demand in the same, similar or other circumstance.
12.5. ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter
hereof.
12.6. COUNTERPARTS. This Agreement may be signed in any number of
counterpart copies and by the parties hereto on separate counterparts,
but all such copies shall constitute one and the same instrument.
12.7. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and inure
to the benefit of the Borrower and the Bank and their respective,
successors and assigns; PROVIDED, HOWEVER, that the Borrower may not
assign this Agreement in whole or in part without the prior written
consent of the Bank and the Bank at any time may assign this Agreement
to a recognized institutional lender who agrees in writing to be bound
to all confidentiality obligations of the Bank in connection with any
Loan Documents, in whole or in part, upon prior written notice to the
Borrower.
12.8. INTERPRETATION. In this Agreement, unless the Bank and the Borrower
otherwise agree in writing, the singular includes the plural and the
plural the singular; words importing any gender include the other
genders; references to statutes are to be construed as including all
statutory provisions consolidating, amending or replacing the statute
referred to; the word "or" shall be deemed to include "and/or", the
words "including", "includes" and "include" shall be deemed to be
followed by the words "without limitation"; references to articles,
sections (or subdivisions of sections) or exhibits are to those of
this Agreement unless otherwise indicated; and references to
agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications to such
instruments, but only to the extent such amendments and other
modifications are not prohibited by the terms of this Agreement.
Section headings in this Agreement are included for convenience of
reference only and shall not constitute a part of this Agreement for
any other purpose. Unless otherwise specified in this Agreement, all
accounting terms shall be interpreted and all accounting
determinations shall be made in accordance with GAAP. If this
Agreement is executed by more than one party as Borrower, the
obligations of such persons or entities will be joint and several.
12.9. ASSIGNMENTS AND PARTICIPATION. Notwithstanding any other provisions
of this Agreement, the Bank may, at any time in its sole discretion,
without any notice to the Borrower, sell, assign, transfer, negotiate,
grant participation in, or otherwise dispose of all or any part of the
Bank's interest in the Facility to a recognized institutional lender
who agrees in writing to be bound to all confidentiality obligations
of the Bank in connection with any Loan Documents. The Borrower
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hereby authorizes the Bank to provide, upon notice to the Borrower,
any information concerning the Borrower to recognize institutional
lenders, including information pertaining to the Borrower's financial
condition, business operations or general creditworthiness, to any
person or entity which may succeed to or participate in all or any
part of the Bank's interest in the Facility, provided that such person
or entity agrees to maintain the confidentiality of such information
and be bound by all the Bank's confidentiality obligations to the
Borrower.
12.10. GOVERNING LAW AND JURISDICTION. This Agreement has been delivered to
and accepted by the Bank and will be deemed to be made in the
Commonwealth of Pennsylvania. THIS AGREEMENT WILL BE INTERPRETED AND
THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA,
EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court
seated in Allegheny County, Pennsylvania, and consents that all
service of process be sent by nationally recognized overnight courier
service directed to the Borrower at the Borrower's address set forth
herein and service so made will be deemed to be completed on the
Business Day after deposit with such courier; provided that nothing
contained in this Agreement will prevent the Bank from bringing any
action, enforcing any award or judgment or exercising any rights
against the Borrower, against any security or against any property of
the Borrower within any other county, state or other foreign or
domestic jurisdiction. The Bank and the Borrower agree that the venue
provided above is the most convenient forum for both the Bank and the
Borrower. The Borrower waives any objection to venue and any objection
based on a more convenient forum in any action instituted under this
Agreement.
12.11. CONFIDENTIALITY. The Bank agrees to keep confidential all non-public
information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower in writing as confidential;
PROVIDED that nothing herein shall prevent the Bank from disclosing
any such information (i) to any recipient which receives such
information having been made aware of the confidential nature thereof,
(ii) to its employees, directors, agents, attorneys, accountants and
other professional advisors, (iii) upon the request or demand of any
examiner or other governmental authority or agency having jurisdiction
over the Bank, (iv) in response to any order of any court or other
governmental authority or agency or as may otherwise be required
pursuant to any applicable law, (v) which has been publicly disclosed
other than in breach of this Agreement, or (vi) in connection with the
exercise of any remedy hereunder.
12.12. WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK IRREVOCABLY WAIVE
ANY AND ALL RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY
DOCUMENTS
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EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER AND THE BANK
ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Agreement, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
WITNESS the due execution of this Loan Agreement as a document under
seal, as of the date first written above.
WITNESS: OTG SOFTWARE, INC.
By: /s/ Andrea Cleary By: /s/ Ronald W. Kaiser (SEAL)
----------------- ---------------------------
Print Name: Andrea Cleary Print Name: Ronald W. Kaiser
------------- ----------------
Title: Executive Assistant Title: Chief Financial Officer
------------------- -----------------------
PNC BANK,
NATIONAL ASSOCIATION
By: /s/ Katharine S. Kappler
------------------------
Print Name: Katharine S. Kappler
--------------------
Title: Managing Director
-----------------
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ADDENDUM to that certain Loan Agreement dated October 30, 2000 between OTG
SOFTWARE, INC. (the "BORROWER") and PNC BANK, NATIONAL ASSOCIATION.
I. FINANCIAL COVENANTS
1. The Borrower shall maintain a ratio of Current Assets to Current
Liabilities (measured each month at month end) of at least 2.0:1.0.
2. The Borrower shall maintain a ratio of Total Liabilities to Tangible Net
Worth (measured each month end at month end) of no more than 0.5:1.0.
3. The Borrower will not permit its Tangible Net Worth to be less than
$20,000,000 for the quarter ending September 30, 2000 and all fiscal
quarters thereafter. The foregoing minimum Tangible Net Worth level will be
increased by the amounts of any new equity or subordinated debt investments
after the date of this Agreement.
DEFINITIONS:
"CURRENT ASSETS" means the sum of cash, accounts receivable and marketable
securities.
"CURRENT LIABILITIES" means the sum of all current liabilities other than
deferred revenue, plus amounts outstanding under the Revolving Credit not
classified as current liabilities.
"GAAP" means generally accepted accounting principles, consistently
applied.
"LOSSES" means net operating income less cash interest expense less than
zero, calculated in accordance with GAAP.
"TANGIBLE NET WORTH" means shareholders' equity less intangible assets
(calculated in accordance with GAAP), plus all equity or subordinated
and/or convertible debt investments created after the date of this
Agreement.
"TOTAL LIABILITIES" means all current and long term liabilities, including,
but not limited to, the net present value of capital leases, guarantees and
contingent obligations, less deferred revenues.
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<PAGE>
II. PERMITTED ENCUMBRANCES
As disclosed in the Borrower's financial statements.
III. LITIGATION
NONE
SECTION 4.8 TAX RETURNS
In 1999, the Company discovered that it owed sales and use tax in 12
states in which it had not filed sales and use tax returns. The aggregate
liability for these taxes is approximately $110,000. The Company believes that
it has established an adequate reserve for the settlement of this obligation.
The Company has now filed sales and use tax returns in 11 of the states in which
it has a reporting obligation and paid the required taxes in such states. The
Company is currently in discussions with the State of Maryland regarding sales
and use taxes for October 1996 through September 2000 and will file its tax
return and pay the required taxes upon conclusion of these discussions. The
Company has established procedures to ensure it files all of its tax returns
accurately and on a timely basis.
SECTION 4.6 TITLE TO ASSETS
LIENS AND ENCUMBRANCES
LEASE COMMITMENT
In June 2000, the Company entered into a lease commitment for a portion
of an office building currently being constructed in Rockville, Maryland. The
payments due under the ten-year arrangement total approximately $39 million,
based on current cost estimates and excluding renewal options. The lease
provides for payments of approximately $271,000 per month during the first year
of the agreement escalating to approximately $362,000 per month in the last year
of the agreement. The Company expects to occupy the space, which will serve as
the Company's new headquarters, in 2001.
SECTION 6.1 INDEBTEDNESS
In August 2000, the Company established a standby line of credit at PNC
Bank naming the lessor of the Company's new headquarters building as
beneficiary. The line of credit was issued in lieu of making a cash payment to
the lessor for the security deposit. The line of credit is for $2.8 million and
is collateralized by U.S. Treasury Bills. The line of credit expires on August
4, 2001.
A-2
<PAGE>
AMENDED AND RESTATED
BORROWING BASE RIDER
THIS BORROWING BASE RIDER ("RIDER") is executed this 30th day of
October, 2000, by and between OTG SOFTWARE, INC., a Delaware corporation (the
"BORROWER"), and PNC BANK, NATIONAL ASSOCIATION (the "BANK"). This Rider is
incorporated into and made part of that certain Amended and Restated Loan
Agreement of even date herewith by and between the Borrower and the Bank, which
amends and restates that certain Loan Agreement dated July 22, 1999 between the
Borrower and the Bank, as amended by Amendment No. 1 to the Loan Agreement dated
March 17, 2000 (as amended, the "LOAN AGREEMENT"), and also into such other
financing documents and security agreements as may be executed and delivered
pursuant to said Loan Agreement (all such documents including this Rider are
collectively referred to as the "LOAN DOCUMENTS"). All initially capitalized
terms not otherwise defined in this Rider shall have the same meanings ascribed
to such terms in the other Loan Documents.
Pursuant to the Loan Documents, the Bank has extended a "LOAN" to the
Borrower which includes a Revolving Credit Facility with a sublimit for letters
of credit under which the Borrower may borrow, repay and reborrow funds at any
time prior to the Revolving Credit Expiration Date (the "FACILITY"). As a
condition to the Bank's willingness to extend the Facility to the Borrower, the
Bank and the Borrower are entering into this Rider in order to set forth their
agreement regarding the maximum amount which may be outstanding under the
Facility at any time, and for the other purposes set forth below:
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound, the parties hereto covenant and agree as follows:
1. LIMITATIONS ON BORROWINGS UNDER FACILITY. Notwithstanding any
provisions to the contrary in any of the other Loan Documents, at no time shall
the aggregate principal amounts of indebtedness outstanding at any one time
under the Facility (including the aggregate face amount of all Letters of Credit
and the aggregate unreimbursed amounts for all drawings under Letters of Credit)
exceed the Borrowing Base (as defined hereinafter) at such time. If at any time
the aggregate principal amount of indebtedness outstanding under the Facility
exceeds the limitation set forth in this Section 1 for any reason, then the
Borrower shall repay the amount of such excess to the Bank in immediately
available funds within five (5) business days after such limitation has been
exceeded.
2. BORROWING BASE CERTIFICATES. The Borrower shall deliver an updated
Borrowing Base Certificate upon the Bank's request at the times required by the
Loan Agreement.
3. CERTAIN DEFINED TERMS. In addition to the words and terms defined
elsewhere in this Rider or in the other Loan Documents, as used in this Rider,
the following words and terms shall have the following meanings:
<PAGE>
"ACCOUNT" shall mean an "account" or a "general intangible" as defined
in the Uniform Commercial Code as in effect in the jurisdiction whose Law
governs the perfection of the Bank's security interest therein, whether now
owned or hereafter acquired or arising.
"ACCOUNT DEBTOR" shall mean, with respect to any Account, each Person
who is obligated to make payments to either of the Borrower on such Account.
"AFFILIATE" of the Borrower or any Account Debtor shall mean (a) any
Person who (either alone or with a group of Persons, and either directly or
indirectly through one or more intermediaries) is in control of, is controlled
by or is under common control with the Borrower or such Account Debtor, (b) any
director, officer, partner, employee or agent of the Borrower or such Account
Debtor, and (c) any member of the immediate family of any natural person
described in the preceding clauses (a) and (b). A Person or group of Persons
shall be deemed to be in control of the Borrower or an Account Debtor when such
Person or group of Persons possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of the Borrower or
such Account Debtor, whether through the ownership of voting securities, by
contract or otherwise.
"BORROWING BASE" shall mean, for the Revolving Credit, at any time
through the Revolving Credit Expiration Date, the lesser of (a) $10,000,000 and
(b) 80% of all Qualified Accounts.
The value at any time of the collateral described in this definition shall be
determined by reference to the most recent Borrowing Base Certificate delivered
by the Borrower to the Bank.
"BORROWING BASE CERTIFICATE" shall mean each Borrowing Base Certificate
to be delivered by the Borrower to the Bank pursuant to Section 2 of this Rider,
in substantially the form attached as EXHIBIT A to this Rider, with blanks
appropriately completed, as amended, supplemented or otherwise modified from
time to time.
"LAW" shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of
any Official Body.
"LIEN" shall mean any mortgage, pledge, security interest, bailment,
encumbrance, claim, lien or charge of any kind, including any agreement to give
any of the foregoing, any conditional sale or other title retention agreement
and any lease in the nature thereof, and the filing of or agreement to give any
financing statement under the Uniform Commercial Code.
"OFFICIAL BODY" shall mean any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of any government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"PERSON" shall mean an individual, sole proprietorship, corporation,
partnership (general or limited), trust, business trust, limited liability
company, unincorporated organization
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<PAGE>
or association, joint venture, joint-stock company, Official Body, or any other
entity of whatever nature.
"QUALIFIED ACCOUNTS" shall mean Accounts which are and at all times
continue to meet the following conditions:
(a) The Account duly complies with all applicable Laws, whether
Federal, state or local, including but not limited to usury Laws,
the Federal Truth in Lending Act, the Federal Consumer Credit
Protection Act, the Fair Credit Billing Act, and Regulation Z of
the Board of Governors of the Federal Reserve Systems;
(b) The Account was not originated in or subject to the Laws of a
jurisdiction whose Laws would make the account or the grant of
the security interest in the Account to the Bank unlawful,
invalid or unenforceable;
(c) The Account was originated by the Borrower in connection with the
rendering of services or the provision of products or licenses by
the Borrower in the ordinary course of business under an
enforceable contract;
(d) The Account is evidenced by a written invoice or other
documentation and arises from a contract, all of which are in
form and substance satisfactory to the Bank;
(e) The Account does not arise out of a contract with, or order from,
an Account Debtor that, by its terms, forbids or makes void or
unenforceable the grant of the security interest by the Borrower
to the Bank in and to the Account arising with respect thereto;
(f) The title of the Borrower to the Account and, except as to the
Account Debtor, to any related goods is absolute and is not
subject to any Lien except Liens in favor of the Bank;
(g) The Account provides for payment in United States Dollars by the
Account Debtor;
(h) The Account shall have amounts owing that are not less than the
amounts represented by the Borrower;
(i) The portion of the Account for which income has not yet been
earned or which constitutes unearned discount, services charges
or deferred interest shall be ineligible;
(j) The Account shall be eligible only to the extent that it is not
subject to any defense, claim of reduction, counterclaim,
set-off, recoupment, or any dispute or claim for credits,
allowances or adjustments by the Account
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<PAGE>
Debtor because of returned, inferior, damaged goods or
unsatisfactory service, or for any other reason;
(k) No default exists under the Account by any party thereto, and all
rights and remedies of the Borrower under the Account are freely
assignable by the Borrower;
(l) The Account has not been outstanding for more than ninety (90)
days past the invoice date and is not subject to "dating" terms;
(m) All Accounts of any particular Account Debtor shall be ineligible
if more than fifty percent (50%) of the Accounts of such Account
Debtor are outstanding for more than ninety (90) days;
(n) The Account shall be ineligible to the extent that the aggregate
amount of all the Accounts of the Account Debtor and its
Affiliates exceed fifteen percent (15) % of all of the Borrower's
Accounts.
(o) The Borrower has not received any note, trade acceptance, draft,
chattel paper or other instrument with respect to, or in payment
of, the Account, unless, if any such instrument has been
received, the Borrower immediately notifies the Bank and, at the
Bank's request, endorses or assigns and delivers such instrument
to the Bank;
(p) The Borrower has not received any notice of (i) the filing by or
against the Account Debtor of any proceeding in bankruptcy,
receivership, insolvency, reorganization, liquidation,
conservatorship or any similar proceeding, or (ii) any assignment
by the Account Debtor for the benefit of creditors. Upon receipt
by the Borrower of any such notice, it will give the Bank prompt
written notice thereof;
(q) The Account Debtor is not an Affiliate of the Borrower;
(r) Accounts for which the related Account Debtor is domiciled in any
country other than the United States of America shall be
ineligible to the extent that such Accounts exceed twenty-five
percent (25%) of the Borrower's Accounts.
(s) The Account shall be ineligible if the Account Debtor is an
Official Body, unless the Borrower shall have taken all actions
deemed necessary by the Bank in order to perfect the Bank's
security interest therein, including but not limited to any
notices or filings required under the Assignment of Claims Act of
1940, as amended, or other applicable Laws; and
(t) The Bank has not reasonably deemed such Account ineligible
because of uncertainty about the creditworthiness of the Account
Debtor (including,
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<PAGE>
without limitation, unsatisfactory past experiences of the
Borrower or the Bank with the Account Debtor) or because the Bank
otherwise makes a reasonable determination that the collateral
value of the Account to the Bank is impaired or that the Bank's
ability to realize such value is insecure.
Standards of acceptability shall be fixed and may be revised from time to time
solely by the Bank in its exclusive judgment. In the case of any dispute about
whether an Account is or has ceased to be a Qualified Account, the decision of
the Bank shall be final.
4. GOVERNING LAW. THIS RIDER WILL BE INTERPRETED AND THE RIGHTS AND
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICTS OF LAW RULES.
5. COUNTERPARTS. This Rider may be signed in any number of counterpart
copies and by the parties hereto on separate counterparts, but all such copies
shall constitute one and the same instrument.
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<PAGE>
WITNESS the due execution of this Amended and Restated Borrowing Base
Rider as a document under seal, as of the date first written above.
WITNESS: OTG SOFTWARE, INC.
By: /s/ Andrea Cleary By: /s/ Ronald W. Kaiser (SEAL)
------------------------- ---------------------------------
Print Name: Andrea Cleary Print Name: Ronald W. Kaiser
----------------- ------------------------
Title: Executive Assistant Title: Chief Financial Officer
--------------------- ------------------------------
PNC BANK,
NATIONAL ASSOCIATION
By: /s/ Katharine S. Kappler
-------------------------------
Print Name: Katharine S. Kappler
-----------------------
Title: Managing Director
-----------------------------
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<PAGE>
AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$10,000,000 OCTOBER 30, 2000
FOR VALUE RECEIVED, OTG SOFTWARE, INC., a Delaware
corporation, (the "BORROWER"), as the borrower promise to pay to the order of
PNC BANK, NATIONAL ASSOCIATION (the "BANK"), in lawful money of the United
States of America in immediately available funds, the principal sum of the
lesser of TEN MILLION DOLLARS ($10,000,000) (the "FACILITY") or the aggregate
unpaid principal amount outstanding as of the Revolving Credit Expiration
Date, together with interest accruing on the outstanding principal balance
from the date hereof and other amounts owing under the Loan Documents, as
provided below:
1. LOAN AGREEMENT. This Note is issued in connection with
the Amended and Restated Loan Agreement of even date herewith by and between
the Borrower and the Bank, which amends and restates that certain Loan
Agreement dated July 22, 1999 between the Borrower and the Bank, as amended
by Amendment No. 1 to the Loan Agreement dated March 17, 2000 (as amended,
the "LOAN AGREEMENT"), and is secured by the property described in the
Security Agreement by and between the Borrower and the Bank and other loan
documents entered into in connection with the Loan Agreement (the "LOAN
DOCUMENTS") and by such other collateral as previously may have been or may
in the future be granted to the Bank to secure this Note.
2. RATE OF INTEREST. Amount outstanding under this Note
will bear interest at rates per annum determined in accordance with the Loan
Agreement. Interest will be calculated on the basis of a year of 360 days for
the actual number of days in each interest period.
3. ADVANCES. The Borrower may borrow, repay and reborrow
hereunder until the Revolving Credit Expiration Date, subject to the terms
and conditions of this Note and the Loan Documents. The "REVOLVING CREDIT
EXPIRATION DATE" shall mean the date 364 days from the date of this Note, or
such later date as may be designated by the Bank by written notice from the
Bank to the Borrower. The Borrower acknowledges and agrees that in no event
will the Bank be under any obligation to extend or renew the Facility or this
Note beyond the initial Revolving Credit Expiration Date.
4. PAYMENT TERMS. Accrued interest will be due and payable
as provided in the Loan Agreement. The outstanding principal balance, any
accrued but unpaid interest and all other amounts owing under the Loan
Documents shall be due and payable on the Revolving Credit Expiration Date.
If any payment under this Note shall become due on a Saturday, Sunday or
public holiday under the laws of the Commonwealth of Pennsylvania, such
payment shall be made on the next succeeding business day and such extension
of time shall be included in computing interest in connection with such
payment. The Borrower hereby authorizes the Bank to charge the Borrower's
deposit account at the Bank for any payment when due hereunder. Payments
received will be applied to charges, fees and expenses (including attorney's
fees), accrued interest and principal in any order the Bank may choose, in
its sole discretion.
<PAGE>
5. LATE PAYMENTS; DEFAULT RATE. If the Borrower fails to
make any payment of principal when due or any payment of interest or other
amount coming due pursuant to the provisions of this Note within five (5)
calendar days of the date due and payable, the Borrower also shall pay to the
Bank a late charge equal to the lesser of five percent (5%) of the amount of
such payment or $500. Such five (5) day period shall not be construed in any
way to extend the due date of any such payment. The late charge is imposed
for the purpose of defraying the Bank's expenses incident to the handling of
delinquent payments and is in addition to, and not in lieu of, the exercise
by the Bank of any rights and remedies hereunder, under the other Loan
Documents or under applicable law, and any fees and expenses of any agents or
attorneys which the Bank may employ. Upon maturity, whether by acceleration,
demand or otherwise, and at the option of the Bank upon the occurrence of any
Event of Default (as defined in the Loan Agreement) and during the
continuance thereof, this Note shall bear interest at a rate per annum equal
to the Default Interest Rate (as defined in the Loan Agreement). The Default
Interest Rate shall continue to apply whether or not judgment shall be
entered on this Note.
6. PREPAYMENT. The indebtedness evidenced by this Note may
be prepaid in whole or in part at any time without penalty, except as
provided in the Loan Agreement.
7. MISCELLANEOUS. No delay or omission of the Bank to
exercise any right or power arising hereunder shall impair any such right or
power or be considered to be a waiver of any such right or power, nor shall
the Bank's action or inaction impair any such right or power. The Borrower
agrees to pay on demand, to the extent permitted by law, all costs and
expenses incurred by the Bank in the enforcement of its rights in this Note
and in any security therefor, including without limitation reasonable fees
and expenses of the Bank's counsel. If any provision of this Note is found to
be invalid by a court, all the other provisions of this Note will remain in
full force and effect. The Borrower and all other makers and indorsers of
this Note hereby forever waive presentment, protest, notice of dishonor and
notice of non-payment. The Borrower also waives all defenses based on
suretyship or impairment of collateral, except for such impairment which
results from the gross negligence or willful misconduct of the Bank. This
Note shall bind the Borrower and its heirs, executors, administrators,
successors and assigns, and the benefits hereof shall inure to the benefit of
the Bank and its successors and assigns.
This Amended and Restated Revolving Credit Note is issued
in replacement for the Revolving Credit Note dated July 22, 1999 made by the
Borrower, under the terms of the Loan Agreement (the "ORIGINAL NOTE"). THE
INDEBTEDNESS EVIDENCED BY THE ORIGINAL NOTE IS CONTINUING INDEBTEDNESS AND
NOTHING HEREIN SHALL BE DEEMED TO CONSTITUTE A PAYMENT, SETTLEMENT OR
NOVATION OF THE ORIGINAL NOTE, OR RELEASE OR OTHERWISE ADVERSELY AFFECT ANY
RIGHTS OF THE BANK AGAINST THE BORROWER. ALL AMOUNTS OUTSTANDING UNDER THE
ORIGINAL NOTE SHALL BE TRANSFERRED TO, AND BE DEEMED TO BE OUTSTANDING UNDER
THIS AMENDED AND RESTATED REVOLVING CREDIT NOTE.
THIS NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES
OF THE BANK AND THE BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
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<PAGE>
COMMONWEALTH OF PENNSYLVANIA. The Borrower hereby irrevocably consents to the
exclusive jurisdiction of any state or federal court for the county or
judicial district where the Bank's office is located, and consents that all
service of process be sent by nationally recognized overnight courier service
directed to the Borrower at the Borrower's address set forth in the Loan
Agreement and service so made will be deemed to be completed when received by
the Borrower; provided that nothing contained in this Note will prevent the
Bank from bringing any action, enforcing any award or judgment or exercising
any rights against the Borrower individually, against any security or against
any property of the Borrower within any other county, state or other foreign
or domestic jurisdiction. The Borrower acknowledges and agrees that the venue
provided above is the most convenient forum for both the Bank and the
Borrower. The Borrower waives any objection to venue and any objection based
on a more convenient forum in any action instituted under this Note.
8. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE BANK
IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY
DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR ANY TRANSACTION
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. EACH OF THE BORROWER AND THE BANK
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood
all of the provisions of this Note, including waiver of jury trial, and has
been advised by counsel as necessary or appropriate.
[Signature Page to Follow]
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<PAGE>
WITNESS the due execution of this Amended and Restated
Revolving Credit Note as a document under seal, as of the date first written
above, with the intent to be legally bound hereby.
WITNESS: OTG SOFTWARE, INC.
By: /s/ Andrea Cleary By: /s/ Ronald W. Kaiser (SEAL)
------------------------ ----------------------------
Print Name: Andrea Cleary Print Name: Ronald W. Kaiser
---------------- ---------------------
Title: Executive Assistant Title: Chief Financial Officer
------------------- ------------------------
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