Filed by Sphere 3D Corporation.
Pursuant to Rule 425 under the Securities Act of 1933
and deemed filed pursuant to Rule 14a-12
of the Securities Exchange Act of 1934
Subject Company: Overland Storage, Inc.
Commission File No.: 000-22071
GUARANTEE AGREEMENT
THIS AGREEMENT made as of the 13th day of
October, 2014.
B E T W E E N:
FBC HOLDINGS S.á.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 located 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
(herein called the Lender)
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SPHERE 3D CORPORATION, a
corporation incorporated under the laws of the Province of Ontario
(herein
called the Guarantor)
WHEREAS the Guarantor has agreed to guarantee payment of
the Obligations of Overland Storage, Inc., a California corporation (the
Borrower) on the terms and subject to the conditions set forth herein;
AND WHEREAS, it is in the best interests of the Guarantor to execute and
deliver this agreement, inasmuch as the Guarantor will derive substantial direct
and indirect benefits from the provision of credit and other financial
accommodations by the Lender to the Borrower;
AND WHEREAS, in
consideration of the financial and other support that the Borrower has provided
and may in the future provide to the Guarantor, and in order to induce the
Lender to extend credit and make other financial accommodations to the Borrower,
the Guarantor is willing to guarantee payment of the Obligations of the Borrower
on the terms and subject to the conditions set forth herein;
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the Guarantor hereby covenants with the Lender as follows:
ARTICLE 1
INTERPRETATION
1.1 Defined Terms. All capitalized terms
used herein which are not otherwise defined herein shall have the respective
meaning ascribed thereto in the Loan Agreement; otherwise, in this agreement or any amendment to this
agreement, unless the context clearly indicates to the contrary:
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Designated Currency shall have the meaning ascribed
thereto in Section 2.1 herein.
Loan Agreement means the Loan and Security Agreement
made as of October 13, 2014 by and among the Borrower and the Lender, as the
same may be amended, modified, supplemented or replaced from time to time.
Material Adverse Effect means a material adverse
effect on (i) the assets, liabilities, results of operations, condition
(financial or otherwise), or business of the Guarantor and its Subsidiaries
taken as a whole, (ii) the legality, validity, enforceability or binding effect
of this agreement, or (iii) the ability of the Guarantor to perform its
obligations hereunder.
Obligations shall have the meaning ascribed thereto in
the Loan Agreement.
Other Taxes shall have the meaning ascribed thereto in
Section 2.11(b) herein.
Subordination Agreement means the subordination
agreement entered into as of October 13, 2014 by and between Silicon Valley
Bank, the Lender and the Borrower, as the same may be amended, modified,
supplemented or replaced from time to time.
Taxes shall have the meaning ascribed thereto in
Section 2.11(a) herein.
1.2 Other Usages. References to this
agreement, the agreement, hereof, herein,
hereto and like references refer to this Guarantee Agreement, as
amended, modified, supplemented or replaced from time to time, and not to any
particular Article, Section or other subdivision of this agreement. Any
references herein to any other agreements or documents shall mean such
agreements or documents as amended, modified, supplemented, restated or replaced
from time to time.
1.3 Plural and Singular. Where the context
so requires, words importing the singular number shall include the plural and
vice versa.
1.4 Headings. The division of this
agreement into Articles and Sections and the insertion of headings in this
agreement are for convenience of reference only and shall not affect the
construction or interpretation of this agreement.
1.5 Applicable Law. This agreement shall
be governed by and construed in accordance with the laws of the Province of
Ontario and the federal laws of Canada applicable therein. The parties hereby
attorn to the courts of the Province of Ontario and agree that those courts
shall have non-exclusive jurisdiction to determine all disputes relating to this
agreement. 1.6 Time of the Essence. Time shall in all
respects be of the essence of this agreement and no extension or variation of
this agreement or any obligation hereunder shall operate as a waiver of this
provision.
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1.7 Currency. Unless otherwise specified
herein, all statements of or references to dollar amounts in this agreement
shall mean lawful money of the United States of America.
ARTICLE 2
GUARANTEE
2.1 Guarantee. Subject to Section 2.12,
the Guarantor hereby unconditionally, absolutely, irrevocably and guarantees the
full and punctual payment by the Borrower to the Lender as and when due, whether
at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all of the Obligations in the same currency (the Designated
Currency) as the currency of the Obligations, whether for principal,
interest, fees, expenses, indemnities or otherwise. For greater certainty, the
Guarantor shall be required to pay the Obligations, subject to Section 2.12, if
the Sphere 3D Merger Closing does not occur within 90 days after the Funding
Date.
2.2 Nature of Guarantee. Subject to
Section 2.12, this agreement shall in all respects be a continuing, absolute,
unconditional and irrevocable guarantee of payment when due and not of
collection, and shall remain in full force and effect until the Obligations have
been fully satisfied. Subject to Section 2.12, the Guarantor guarantees that the
Obligations will be paid by the Borrower strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Lender with respect thereto (provided the Guarantor shall not be in breach of
any such law, regulation or order by doing so).
2.3 Liability Not Lessened or Limited.
Subject to the provisions hereof and Section 2.12 in particular, the
liability of the Guarantor under this agreement shall be absolute, unconditional
and irrevocable irrespective of, and without being lessened or limited by:
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(a) |
any lack of validity, effectiveness or enforceability of
any of the agreements or instruments evidencing any of the
Obligations; |
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(b) |
the failure of the Lender: |
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(i) |
to assert any claim or demand or to enforce any right or
remedy against the Borrower or any other Person (including any other
guarantor) under the provisions of any of the agreements or instruments
evidencing any of the Obligations, or otherwise, or |
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(ii) |
to exercise any right or remedy against any other
guarantor of, or collateral securing, any of the Obligations; |
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(c) |
any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
extension, compromise, indulgence or renewal of any Obligations; |
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(d) |
any reduction, limitation, variation, impairment,
discontinuance or termination of the Obligations for any reason (other
than by reason of any payment which is not required to be rescinded),
including any claim of waiver, release,
discharge, surrender, alteration or compromise, and shall not be
subject to (and the Guarantor hereby waives any right to or claim of) any
defence or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, the Obligations or otherwise (other than by reason of any
payment which is not required to be rescinded); |
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(e) |
any amendment to, rescission, waiver or other
modification of, or any consent to any departure from, any of the terms of
any of the agreements or instruments evidencing any of the Obligations or
any other guarantees or security; |
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(f) |
any addition, exchange, release, discharge, renewal,
realization or non-perfection of any collateral security for the
Obligations or any amendment to, or waiver or release or addition of, or
consent to departure from, any other guarantee held by the Lender as
security for any of the Obligations; |
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(g) |
the loss of or in respect of or the unenforceability of
any other guarantee or other security which the Lender may now or
hereafter hold in respect of the Obligations, whether occasioned by the
fault of the Lender or otherwise; |
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(h) |
any change in the name of the Borrower, constating
documents, capital structure, capacity or constitution of the Borrower,
the bankruptcy or insolvency of the Borrower, the sale of any or all of
the business or assets of the Borrower or the Borrower being consolidated,
merged or amalgamated with any other Person; |
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(i) |
any payment received on account of the Obligations by the
Lender that it is obliged to repay pursuant to any applicable law or for
any other reason; or |
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(j) |
any other circumstance which might otherwise constitute a
defence available to, or a legal or equitable discharge of, the Borrower,
any surety or any guarantor. |
2.4 Lender not Bound to Exhaust Recourse.
The Lender shall not be bound to pursue or exhaust its recourse against the
Borrower or others or any security or other guarantees it may at any time hold
before being entitled to payment hereunder from the Guarantor or to enforce its
rights against the Guarantor hereunder.
2.5 Enforcement. Upon any of the
Obligations becoming due and payable by the Borrower (and, for greater
certainty, if the Sphere 3D Merger Closing does not occur within 90 days after
the Funding Date), the Guarantor shall forthwith pay to the Lender in
immediately available funds at the address of the Lender set forth in Section
4.1 the total amount of such Obligations as provided for in Section 2.12 and the
Lender may forthwith enforce its rights against the Guarantor hereunder. A
written statement of the Lender as to the amount of the Obligations remaining
unpaid to the Lender at any time shall be prima facie evidence against
the Guarantor, absent manifest error, as to the amount of the Obligations
remaining unpaid to the Lender at such time.
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2.6 Guarantee in Addition to Other Security.
The guarantee contained herein shall be in addition to and not in
substitution for any other guarantee or other security which the Lender may now
or hereafter hold in respect of the Obligations, and the Lender shall be under
no obligation to marshal in favour of the Guarantor any other guarantee or other
security or any moneys or other assets which the Lender may be entitled to
receive or may have a claim upon. 2.7 Reinstatement. The
guarantee contained herein and all other terms of this agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
payment (in whole or in part) of any of the Obligations is rescinded or must
otherwise be returned or restored by the Lender by reason of the insolvency,
bankruptcy or reorganization of the Borrower or for any other reason not
involving the wilful misconduct of the Lender, all as though such payment had
not been made.
2.8 Waiver of Notice, etc. The Guarantor
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations and this agreement.
2.9 Subrogation Rights. Until all of the
Obligations have been fully satisfied, all dividends, compositions, proceeds of
security or payments received by the Lender from the Borrower or others in
respect of the Obligations shall be regarded for all purposes as payments in
gross without any right on the part of the Guarantor to claim the benefit
thereof in reduction of their liability under this agreement. Except to the
extent necessary to preserve its rights, the Guarantor will not exercise any
rights which it may acquire by way of subrogation under this agreement, by any
payment made hereunder or otherwise, until the prior satisfaction in full of all
of the Obligations. Any amount paid to the Guarantor on account of any such
subrogation rights prior to the satisfaction in full of all Obligations shall be
held in trust for the benefit of the Lender and shall immediately be paid to the
Lender and credited and applied against the Obligations, whether matured or
unmatured; provided, however, that if
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the Guarantor has made payment to the Lender of all or
any part of the Obligations, and |
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all Obligations have been paid in full and all
commitments of the Lender to the Borrower have been permanently
terminated, |
the Lender agrees that, at the Guarantors request, the Lender
will execute and deliver to the Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Obligations
resulting from such payment by the Guarantor. Additionally, without limiting the
foregoing, the Guarantor hereby acknowledges and agrees that any and all
subrogation rights the Guarantor may acquire under this agreement constitute
Junior Debt as such term is defined in the Subordination Agreement. In the
event that the Guarantor acquires any such subrogation rights, it will execute a
joinder to the Subordination Agreement or other agreement requested by Silicon
Valley Bank to give effect to the foregoing.
2.10 Advances After Certain Events. All
advances, renewals and credits made or granted by the Lender to or for the
Borrower under the Loan Agreement after the bankruptcy or insolvency of the Borrower, but before the Lender has received
notice thereof, shall be deemed to form part of the Obligations, and all
advances, renewals and credits obtained from the Lender by or on behalf of the
Borrower under the Loan Agreement shall be deemed to form part of the
Obligations, notwithstanding any lack or limitation of power, incapacity or
disability of the Borrower or of the directors or agents thereof and
notwithstanding that the Borrower may not be a legal entity and notwithstanding
any irregularity, defect or informality in the obtaining of such advances,
renewals or credits, whether or not the Lender has knowledge thereof. The
Guarantor will indemnify the Lender for any such advance, renewal or credit that
is not repaid to the Lender.
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2.11 Payments Free and Clear of Taxes, etc.
The Guarantor hereby agrees that:
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(a) |
Any and all payments made by the Guarantor hereunder
shall be made free and clear of, and without deduction for, any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
case of the Lender, taxes imposed on its net income (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities
being hereinafter referred to as Taxes). If the Guarantor shall
be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to the Lender: |
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the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable
to additional sums payable under this Section 2.11) the Lender receives an
amount equal to the sum it would have received had no such deductions been
made, |
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(ii) |
the Guarantor shall make such deductions, and |
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(iii) |
the Guarantor shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law. |
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The Guarantor shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
agreement (hereinafter referred to as Other Taxes). |
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The Guarantor hereby indemnifies and holds harmless the
Lender for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.11) paid by the Lender and any
liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally assessed. |
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Within 30 days after the date of any payment of Taxes or
Other Taxes, the Guarantor will furnish to the Lender the original or a
certified copy of a receipt evidencing payment thereof. If no Taxes or Other Taxes
are payable in respect of any payment hereunder to the Lender, the
Guarantor will furnish to the Lender a certificate from each appropriate
taxing authority, or an opinion of counsel acceptable to the Lender, in
either case stating that such payment is exempt from or not subject to
Taxes or Other Taxes. |
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Without prejudice to the survival of any other agreement
of the Guarantor hereunder, the agreements and obligations of the
Guarantor contained in this Section 2.11 shall survive the payment in full
of the Obligations. |
2.12 Limited Liability; Method of Payment.
Notwithstanding any other provision hereof, (a) the liability of the Guarantor
hereunder shall be limited in amount to the lesser of (i) $2,500,000 plus all
accrued and unpaid interest thereon and all cost and expenses incurred by the
Lender in enforcing this agreement and (ii) the amount of the Obligations, (b)
such liability shall only arise if (i) the Sphere 3D Merger Closing does not
occur within 90 days after the Funding Date or (ii) Guarantor shall fail to
comply with or other breach shall occur under any covenant or term hereof or any
representation made by Guarantor hereunder shall be untrue when made or deemed
made and (c) the Guarantor shall have the option of satisfying its liability
pursuant to clause (b)(i) of this Section 2.12 by cash or by the issuance of
Sphere Stock or by a combination thereof. The number of shares of Sphere Stock
issued pursuant to this Section 2.12 to the Lender in satisfaction of the
Guarantors obligations hereunder shall be determined on the basis set forth in
section 2.3(iii) of the Loan Agreement. For the avoidance of doubt, in the event
that Guarantor shall fail to comply with or any breach shall occur under any
covenant or term hereof or any representation made by Guarantor hereunder shall
be untrue when made or deemed made, the full amount of the obligations of the
Guarantor hereunder (subject to the limitation set forth in clause (a) of the
first sentence of this Section 2.12) shall immediately be due and payable in
cash by Guarantor whether or not the Obligations are then due and payable by
Borrower.
ARTICLE 3
COVENANTS, REPRESENTATIONS, WARRANTIES
AND INDEMNITIES
3.1 Affirmative Covenants. The Guarantor
hereby covenants and agrees that, until the Obligations have been paid in full,
or unless the Lender otherwise expressly consents in writing to amend or waive
any covenant, it will comply with, perform, fulfil and satisfy the covenants in
this Section 3.1.
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(a) |
Corporate Existence. The Guarantor shall maintain
its corporate existence in good standing and shall, qualify and remain
duly qualified to carry on business and own property in each jurisdiction
in which such qualification is necessary to the extent that a failure to
so qualify could reasonably be expected to have a Material Adverse
Effect. |
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Conduct of Business. The Guarantor shall conduct
its business in such a manner so as to comply in all respects with all
applicable laws, so as to observe and perform all its obligations under
leases, licences and agreements necessary for the proper conduct of its
business and so as to preserve and protect its property and assets and the
earnings, income and profits therefrom to the extent that such
non-compliance, non-observance or non-performance would
reasonably be expected to have a Material Adverse Effect. The Guarantor
shall obtain and maintain all material licenses, certificates of approval,
consents, registrations, permits, government approvals, franchises,
authorizations and other rights necessary for the operation of its
business to the extent that a failure to do so would reasonably be
expected to have a Material Adverse Effect. The Guarantor shall perform
all obligations incidental to any trust imposed upon it by statute and
shall ensure that any breaches of the said obligations and the
consequences of any such breach shall be promptly remedied except where
failure to do so would not reasonably be expected to have a Material
Adverse Effect. |
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Taxes. The Guarantor shall file all tax returns
and tax reports required by law to be filed by them and pay all material
taxes, rates, government fees and dues levied, assessed or imposed upon
them and upon their property or assets or any part thereof, as and when
the same become due and payable (except any such taxes or charges which
are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with generally accepted
accounting principles shall have been set aside on its books), and the
Guarantor shall deliver to the Lender, when requested, written evidence of
such payments. |
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Adequate Allotment of Sphere Stock. The Guarantor
shall at all times ensure that a sufficient number of shares of Sphere
Stock have been duly allotted for issuance to the Lender so that the
Guarantor may fully satisfy its obligations hereunder by the issuance of
shares of Sphere Stock, free and clear of all encumbrances and
restrictions, as provided herein. Any such shares of Sphere Stock used to
pay the Guarantors obligations hereunder shall be validly issued, fully
paid and non-assessable and will be free and clear of all encumbrances and
restrictions. |
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Regulatory Compliance. The Guarantor shall, within
30 days following the date hereof, obtain all necessary consents and
approvals from all relevant stock exchanges and securities regulatory
authorities in order to fully satisfy its obligations hereunder by the
issuance of shares of Sphere Stock as provided herein. Nothing herein
shall require the Guarantor to register any securities of the Guarantor,
whether on a demand basis or in connection with the registration of
securities of the Guarantor for its own account under the United States
Securities and Exchange Act. |
3.2 Representations and Warranties. The
Guarantor hereby represents and warrants that each of the representations and
warranties contained in this Section 3.2 are true and correct each time they are
made.
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(a) |
Status and Power. The Guarantor is a corporation
duly incorporated and validly existing under the laws of the Province of
Ontario. The Guarantor is duly qualified, registered or licensed in all
jurisdictions where such qualification, registration or licensing is
required for the Guarantor to carry on its business.
The Guarantor has all requisite capacity, power and authority
to own, hold under licence or lease its properties, to carry on its
business and to otherwise enter into, and carry out the transactions
contemplated hereby except to the extent the lack thereof would not
reasonably be expected to have a Material Adverse Effect. |
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Authorization and Enforcement. All necessary
action, corporate or otherwise, has been taken to authorize the execution,
delivery and performance by the Guarantor of this agreement. The Guarantor
has duly executed and delivered this agreement. This agreement constitutes
legal, valid and binding obligations of the Guarantor enforceable against
the Guarantor by the Lender in accordance with its terms, except to the
extent that the enforceability thereof may be limited by (i) applicable
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application limiting the enforcement of creditors rights
generally and (ii) the fact that the courts may deny the granting or
enforcement of equitable rights. |
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Compliance with Other Instruments. The execution,
delivery and performance by the Guarantor of this agreement, and the
consummation of the transactions contemplated hereby, do not and will not
conflict with, result in any breach or violation of, or constitute a
default under the terms, conditions or provisions of the articles of
incorporation or by-laws of the Guarantor, any applicable law or any
agreement, lease, licence, permit or other instrument to which the
Guarantor is a party or is otherwise bound or by which the Guarantor
benefits or to which its property is subject and do not require the
consent or approval of any stock exchange, securities regulatory or any
other person or governmental authority. |
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Compliance with Laws. The Guarantor has complied
with all applicable laws in respect of this agreement and the transactions
contemplated hereby except to the extent the failure to do so would not
reasonably be expected to have a Material Adverse Effect. The Guarantor is
not in violation of any agreement, employee benefit plan, pension plan,
mortgage, franchise, licence, judgment, decree, order, statute, treaty,
rule or regulation relating in any way to itself, to the operation of its
business or to its property or assets and which would reasonably be
expected to have a Material Adverse Effect. |
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Solvency Proceedings. The Guarantor has
not: |
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admitted its inability to pay its debts generally as they
become due or failed to pay its debts generally as they become
due; |
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in respect of itself, filed an assignment or petition in
bankruptcy or a petition to take advantage of any insolvency
statute; |
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made an assignment for the benefit of its
creditors; |
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consented to the appointment of a receiver of the whole
or any substantial part of its assets; |
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filed a petition or answer seeking a reorganization,
arrangement, adjustment or composition in respect of itself under
applicable bankruptcy laws or any other applicable law or statute of
Canada or any subdivision thereof; or |
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been adjudged by a court having jurisdiction a bankrupt
or insolvent, nor has a decree or order of a court having jurisdiction
been entered for the appointment of a receiver, liquidator, trustee or
assignee in bankruptcy of the Guarantor with such decree or order having
remained in force and undischarged or unstayed for a period of thirty
days. |
3.3 Survival of Representations and
Warranties. All of the representations and warranties of the Guarantor
contained in Section 3.2 shall survive the execution and delivery of this
agreement notwithstanding any investigation made at any time by or on behalf of
the Lender. 3.4 Indemnities. The Guarantor hereby agrees to
indemnify and save the Lender harmless from and against all loss, cost, damage,
expense, claims and liability which it may at any time suffer or incur in
connection with:
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any failure by the Borrower to duly and punctually pay or
perform the Obligations; and |
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any loss for any reason whatsoever, including by
operation of law or otherwise, of any right of the Lender against the
Borrower, other than losses that are caused by the Lenders gross
negligence or wilful misconduct. |
ARTICLE 4
GENERAL CONTRACT PROVISIONS
4.1 Notices. All notices, requests,
demands, directions and other communications provided for herein shall be in
writing and shall be personally delivered or sent by telefacsimile, charges
prepaid, at or to the address or telefacsimile number of the party set opposite
its name below:
In the case of the Guarantor: |
Sphere 3D Corporation |
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240 Matheson Blvd. East |
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Mississauga, Ontario |
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L4L 1X1 |
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Attention: T. Scott Worthington, CFO |
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Telefax: (905) 282-9966 |
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In the case of the Lender: |
FBC Holdings S.á.r.l. |
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c/o Cyrus Capital Partners, L.P. |
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399 Park Avenue, 39th Floor |
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New York, New York, 10022
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Attention: |
Daniel Bordessa |
Telefax: |
(212) 380-5801 |
or to such other address or addresses or telefacsimile number
or numbers as any party hereto may from time to time designate to the other
parties in such manner. Any communication which is personally delivered as
aforesaid shall be deemed to have been validly and effectively given on the date
of such delivery if such date is a Business Day and such delivery was made
during normal business hours of the recipient; otherwise, it shall be deemed to
have been validly and effectively given on the Business Day next following such
date of delivery. Any communication which is transmitted by telefacsimile as
aforesaid shall be deemed to have been validly and effectively given on the date
of transmission if such date is a Business Day and such transmission was made
during normal business hours of the recipient; otherwise, it shall be deemed to
have been validly and effectively given on the Business Day next following such
date of transmission.
4.2 Further Assurances. The Guarantor
shall do, execute and deliver or shall cause to be done, executed and delivered
all such further acts, documents and things as the Lender may reasonably request
for the purpose of giving effect to this agreement.
4.3 Severability. Wherever possible, each
provision of this agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
agreement.
4.4 Assignment. The Lender may only assign
or transfer this agreement, any of its rights hereunder or any part thereof to
any persons to whom any of the Obligations may be assigned in compliance with
the Loan Agreement. Neither this agreement nor the benefit hereof may be
assigned by the Guarantor.
4.5 Successors and Assigns. This agreement
shall enure to the benefit of and shall be binding upon the parties hereto and
their respective successors and permitted assigns.
4.6 Amendments and Waivers. No amendment
to or waiver of any provision of this agreement, nor consent to any departure by
the Guarantor herefrom, shall in any event be effective unless the same shall be
in writing and signed by the Lender, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
4.7 Entire Agreement. This agreement and
the agreements referred to herein constitute the entire agreement between the
parties hereto and supersede any prior agreements, undertakings, declarations,
representations and understandings, both written and verbal, in respect of the
subject matter hereof.
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4.8 Judgment Currency.
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(a) |
If, for the purpose of obtaining or enforcing judgment
against the Guarantor in any court in any jurisdiction, it becomes
necessary to convert into any other currency (such other currency being
hereinafter in this Section 4.8 referred to as the Judgment
Currency) an amount due in a Designated Currency under this
agreement, the conversion shall be made at the rate of exchange prevailing
on the Business Day immediately preceding: |
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(i) |
the date of actual payment of the amount due, in the case
of any proceeding in the courts of the Province of Ontario or in the
courts of any other jurisdiction that will give effect to such conversion
being made on such date; or |
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(ii) |
the date on which the judgment is given, in the case of
any proceeding in the courts of any other jurisdiction (the date as of
which such conversion is made pursuant to this Section 4.8(a)(ii) being
hereinafter in this Section 4.8 referred to as the Judgment Conversion
Date). |
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(b) |
If, in the case of any proceeding in the court of any
jurisdiction referred to in Section 4.8(a)(ii), there is a change in the
rate of exchange prevailing between the Judgment Conversion Date and the
date of actual payment of the amount due, the Guarantor shall pay such
additional amount (if any, but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Designated Currency which could have been
purchased with the amount of Judgment Currency stipulated in the judgment
or judicial order at the rate of exchange prevailing on the Judgment
Conversion Date. |
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(c) |
Any amount due from the Guarantor under the provisions of
Section 4.8(b) shall be due as a separate debt and shall not be affected
by judgment being obtained for any other amounts due under or in respect
of this agreement. |
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(d) |
The term rate of exchange in this Section 4.8
means the noon rate of exchange of the Judgment Currency into the
Designated Currency published by the Bank of Canada for the day in
question for Canadian interbank transactions. |
4.9 Set-Off.
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(a) |
In addition to any rights now or hereafter granted under
applicable law, and not by way of limitation of any such rights, the
Lender is authorized upon any amounts being payable by the Guarantor to
the Lender hereunder, without notice to the Guarantor or to any other
person, any such notice being expressly waived by the Guarantor, to
setoff, appropriate and apply any indebtedness at any time held by or
owing by the Lender to or for the credit of or the account of
the Guarantor against and on account of the obligations and
liabilities of the Guarantor which are due and payable to the Lender under
this agreement. |
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(b) |
The right of set-off set out in clause (a) above may be
exercised by the Lender even if the offsetting obligations are in
different currencies, in which case obligations which are denominated in a
currency other than United States dollars shall be expressed as the United
States dollar equivalent thereof (using the noon rate of exchange
published by the Bank of Canada for the day in question for Canadian
interbank transactions) and set off against obligations denominated in
United States dollars. |
4.10 No Waiver; Remedies; No Duty. In
addition to, and not in limitation of, Section 2.3 and Section 2.8, no failure
on the part of the Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. The Lender has no duty or
responsibility to provide the Guarantor with any credit or other information
concerning the Borrowers affairs, financial condition or business which may
come into the possession of the Lender.
4.11 Paramountcy. In the event of any
conflict or inconsistency between the provisions of this agreement and the
provisions of the Loan Agreement, the provisions of the Loan Agreement shall
prevail and be paramount to the extent of such conflict or inconsistency.
4.12 Counterparts. This agreement may be
executed in any number of counterparts, all of which shall be deemed to be an
original and such counterparts taken together shall constitute one agreement,
and any of the parties hereto may execute this agreement by signing any such
counterpart.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the
parties hereto have executed this agreement as of the date first above written.
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FBC HOLDINGS S.á.r.l. |
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Natalie S.E. Chevalier,
Proxyholder |
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By: |
Fabrice Stephane Rota, Director |
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Name: |
Manacor (Luxembourg) S.A. |
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Title: |
Manager A |
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By: |
Thomas Stamatelos |
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Name: |
Cyrus Capital Partners, L.P. |
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Title: |
Manager B |
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SPHERE 3D CORPORATION |
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By: |
T. Scott Worthington |
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Name: |
T. Scott Worthington |
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Title: |
Chief Financial Officer |
[Signature page to Guaranty]
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