Exhibit 10.1
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT (THE "SUBORDINATION AGREEMENT") DATED AS OF OCTOBER 13,
2014 BETWEEN SILICON VALLEY BANK ("SENIOR LENDER") AND THE LENDER (AS DEFINED
HEREIN), AND ACKNOWLEDGED BY OVERLAND STORAGE, INC. ("BORROWER") TO THE
INDEBTEDNESS (INCLUDING INTEREST) OWED BY BORROWER PURSUANT TO THAT CERTAIN
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT DATED AS OF MARCH 19, 2014 BY
AND AMONG BORROWER AND SENIOR LENDER, AS SUCH LOAN AND SECURITY AGREEMENT HAS
BEEN AND HEREAFTER MAY BE AMENDED, SUPPLEMENTED, RESTATED OR OTHERWISE MODIFIED
FROM TIME TO TIME AND (SUBJECT TO THE TERMS OF THE SUBORDINATION AGREEMENT) TO
INDEBTEDNESS REFINANCING THE INDEBTEDNESS UNDER THAT AGREEMENT AS CONTEMPLATED
BY THE SUBORDINATION AGREEMENT; AND THE LENDER IRREVOCABLY AGREES TO BE BOUND BY
THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT ("Agreement") is made as of the 13th day of
October, 2014 by and among Overland Storage, Inc., a California corporation (the
"Company"), and FBC Holdings S.à r.l. (the "Lender").
Recitals
A. The Lender, at the request of the Company, has agreed to make a term loan to
the Company, upon the terms and conditions stated in this Agreement, in an
aggregate principal amount of $7,500,000 (the "Loan");
B. The Company desires to secure all of the Obligations hereunder by
(i) granting to the Lender, (a) a second priority Lien on substantially all of
its personal property (other than Disputed Intellectual Property and the capital
stock of its Foreign Subsidiaries), and (b) a first priority lien on 65% of the
stock of its direct Foreign Subsidiaries; and (ii) subject to the terms and
conditions hereof, causing Tandberg Data Holdings S.à r.l., an indirect Foreign
Subsidiary of the Company, to grant a first priority Lien on its Intellectual
Property.
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. In addition to those terms defined above and elsewhere in this
Agreement, for the purposes of this Agreement, the following terms shall have
the meanings set forth below:
"10-K" has the meaning set forth in Section 4.6.
"Account" is any "account" as defined in the UCC with such additions to such
term as may hereafter be made, and includes, without limitation, all accounts
receivable and other sums owing to the Company.
"Account Debtor" is any "account debtor" as defined in the UCC with such
additions to such term as may hereafter be made.
"Affiliate" means, with respect to any Person, any other Person which directly
or indirectly through one or more intermediaries Controls, is controlled by, or
is under common control with, such Person.
"Articles of Incorporation" has the meaning set forth in Section 4.3.
"Average Closing Price" means, as of a particular date (the "Valuation Date"),
(a) the volume weighted average