Payment Protection Program Term Note, effective as of April 11, 2020, in favor of PNC Bank, National Association
EX-10.1 2 ppptermnote.htm Exhibit
Payment Protection Program Term Note
$10,000,000.00 April 11, 2020
FOR VALUE RECEIVED, QUANTUM CORPORATION (the “Borrower”), with an address at 110 110TH
AVENUE NORTHEAST, SUITE 200, BELLEVUE, WASHINGTON 98004, promises 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 at its offices located at 222 Delaware Avenue, Wilmington, Delaware 19801, Attn:
Business Banking, or at such other location as the Bank may designate from time to time, the principal sum of
$10,000,000.00 (the “Facility”), together with interest accruing on the outstanding principal balance from the date
hereof, all as provided below. This Note is being issued pursuant to the Coronavirus Aid, Relief, and Economic
Security (CARES) Act’s Paycheck Protection Program (the “Program”).
1. Rate of Interest. Amounts outstanding under this Note will bear interest at a rate per annum (“Fixed
Rate”) which is at all times equal to 1.00%. Interest will be calculated based on the actual number of days that
principal is outstanding over a year of 360 days. In no event will the rate of interest hereunder exceed the
maximum rate allowed by law.
2. Structure; Payment Terms. During the period (the “Deferral Period”) beginning on the date of this
Note and ending on the 6 month anniversary of the date of this Note (the “Deferral Expiration Date”), interest
on the outstanding principal balance will accrue at the Fixed Rate, but neither principal nor interest shall be due
and payable during the Deferral Period. On the Deferral Expiration Date, the outstanding principal of the Facility
that is not forgiven under the Program (the “Conversion Balance”) shall convert to an amortizing term loan
payable as set forth below.
On the 15th day of the 7th month following the date of this Note (the “First Payment Date”), all accrued interest
that is not forgiven under the Program shall be due and payable. Additionally, on the First Payment Date, and
continuing on the 15th day of each month thereafter until the 2nd anniversary of the date of this Note (the
“Maturity Date”), equal installments of principal shall be due and payable, each in an amount determined by
dividing the Conversion Balance by 18 (the “Monthly Principal Amount”). Interest shall be payable at the same
times as the Monthly Principal Amount. Any outstanding principal and accrued interest shall be due and payable
in full on the Maturity Date.
If any payment under this Note shall become due on a day other than a Business Day, 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. “Business Day” shall mean any day other than a Saturday or Sunday or a legal
holiday on which commercial banks are authorized or required by law to be closed for business in the State of
Delaware. The Borrower hereby authorizes the Bank to charge the Borrower’s deposit account at the Bank for
any payment when due. Payments received will be applied to charges, fees and expenses (including attorneys’
fees), accrued interest and principal in any order the Bank may choose, in its sole discretion.
3. Forgiveness of the Facility. The Borrower may apply to the Bank for forgiveness of the amount due on
this Facility in an amount equal to the sum of the following costs incurred by the Borrower during the 8-week
period beginning on the date of first disbursement of this Facility: (a) payroll costs; (b) any payment of interest on
a covered mortgage obligation (which shall not include any prepayment of or payment of principal on a covered
mortgage obligation); (c) any payment on a covered rent obligation; and (d) any covered utility payment.
The amount of forgiveness shall be calculated (and may be reduced) in accordance with the requirements of the
Program, including the provisions of Section 1106 of the Coronavirus Aid, Relief, and Economic Security Act
(CARES Act) (P.L. 116-136). Not more than 25% of the amount forgiven can be attributable to non-payroll
costs. If the Borrower has received an EIDL (as defined in the attached Certification), the amount of such loan
shall be subtracted from the loan forgiveness amount.
4. Late Payments; Default Rate. If the Borrower fails to make any payment of principal, interest or other
amount coming due pursuant to the provisions of this Note within fifteen (15) 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 $100.00 (the “Late Charge”). Such fifteen (15) day period shall not be construed in
any way to extend the due date of any such payment. Upon maturity, whether by acceleration, demand or
otherwise, and at the Bank’s option upon the occurrence of any Event of Default (as hereinafter defined) and
during the continuance thereof, each advance outstanding under this Note shall bear interest at a rate per annum
(based on the actual number of days that principal is outstanding over a year of 360 days) which shall be five
percentage points (5.00%) in excess of the interest rate in effect from time to time under this Note but not more
than the maximum rate allowed by law (the “Default Rate”). The Default Rate shall continue to apply whether or
not judgment shall be entered on this Note. Both the Late Charge and the Default Rate are imposed as liquidated
damages for the purpose of defraying the Bank’s expenses incident to the handling of delinquent payments, but
are in addition to, and not in lieu of, the Bank’s exercise of any rights and remedies hereunder, under the other
Loan Documents (as defined below) or under applicable law, and any fees and expenses of any agents or
attorneys which the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank
of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are reasonable
forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual harm
incurred by the Bank cannot be estimated with certainty and without difficulty. As used in this Note, “Loan
Documents” means, individually and collectively, this Note, together with all other agreements and documents
executed and/or delivered in connection with this Note or referred to in this Note, as amended, modified or
renewed from time to time.
5. Prepayment. The Borrower shall have the right to prepay any amounts outstanding under this Note at
any time and from time to time, in whole or in part, without penalty.
6. Increased Costs; Yield Protection. On written demand, together with written evidence of the
justification therefor, the Borrower agrees to pay the Bank all direct costs incurred, any losses suffered or
payments made by the Bank as a result of any Change in Law (hereinafter defined), 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
relative to the Facility. “Change in Law” means the occurrence, after the date of this Note, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation, implementation or application thereof by any
governmental authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not
having the force of law) by any governmental authority; provided that notwithstanding anything herein to the
contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines
or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any
successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to
Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
7. Representations, Warranties and Covenants.
(a) The Borrower hereby represents and warrants that, if not a natural person, 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. The Borrower further
hereby represents and warranties that it was duly organized, validly existing and in good standing as of February
15, 2020 and had employees for whom it paid salaries and payroll taxes or paid independent contractors, as
reported on a Form 1099-MISC.
(b) The Borrower certifies, acknowledges and agrees that the certifications contained in the Paycheck
Protection Program Certification and the Program application delivered to the Bank are true and correct, which
certifications are hereby incorporated herein by this reference as if set forth herein.
(c) The Borrower covenants and agrees that the Borrower will do all things necessary to (i) 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 as currently conducted; (ii) continue in operation in substantially the same
manner as at present, to the extent permitted by applicable law (including without limitation any statute,
ordinance, rule or regulation relating to employment practices, pension benefits or environmental, occupational
and health standards and controls); and (iii) comply with all laws applicable to the Borrower and to the operation
of its business (including without limitation any statute, ordinance, rule or regulation relating to employment
practices, pension benefits or environmental, occupational and health standards and controls).
(d) The Borrower covenants and agrees that, without the Bank’s prior written consent, the Borrower
shall not make or permit any change in (i) the composition of its current executive management; (ii) its
ownership or equity structure; or (iii) its form of organization, including a division into two or more entities. The
Borrower will not make any distribution of company assets that would adversely affect its financial condition, or
transfer (including pledging) or dispose of any assets, except in the ordinary course of business.
(e) The Borrower represents and warrants that (i) the Borrower has full power and authority to enter
into the transactions provided for in this Note and the other Loan Documents; (ii) all necessary action to authorize
the execution and delivery of this Note and the other Loan Documents has been properly taken; (iii) this Note and
the other Loan Documents, when executed and delivered by the Borrower, will constitute the legal, valid and
binding obligations of the Borrower enforceable in accordance with their terms; (iv) the Borrower is and will
continue to be duly authorized to perform all of the terms and provisions of this Note and the other Loan
Documents; (v) there does not exist, either before or after giving effect to the terms of this Note, any default or
violation by the Borrower of or under any of the terms, conditions or obligations of any of its governing
documents or under any indenture, mortgage, deed of trust, franchise, permit, contract, agreement or other
instrument to which it is a party or by which it is bound; and (vi) the Borrower does not require the consent of any
party with respect to this Note, the other Loan Documents or the Facility except for such consents that have been
(f) The Borrower covenants and agrees to take all such additional actions and promptly provide to
the Bank all additional documents, statements and information as the Bank may require from time to time, in its
discretion, in connection with the SBA’s requirements or requests under or in respect of the Program or the
general standard operating procedures of the SBA.
(g) The Borrower authorizes and directs the Bank to disburse the proceeds of the Facility and to
direct payments due under the Facility in accordance with the Disbursement and Payment Authorization
Instructions attached to this Note as Exhibit A.
8. Other Loan Documents. Notwithstanding any provision to the contrary in any Loan Document or any
other collateral security documents that may have been or may in the future be executed and delivered to the
Bank, or an agent acting on behalf of the Bank, to secure any obligations of the Borrower to the Bank, this Note is
not intended to be secured by real property, and the applicability of any lien on such real property to secure this
Note is expressly disclaimed by the Bank.
9. Events of Default. The occurrence of any of the following events will be deemed to be an “Event of
Default” under this Note: (i) the nonpayment of any principal, interest or other indebtedness under this Note
when due; (ii) the occurrence of any event of default or any default and the lapse of any notice or cure period, or
the Borrower’s failure to observe or perform any covenant or other agreement, under or contained in any Loan
Document or any other document now or in the future evidencing or securing any debt, liability or obligation of
the Borrower to the Bank; (iii) the filing by or against the Borrower of any proceeding in bankruptcy,
receivership, insolvency, reorganization, liquidation, conservatorship or similar proceeding (and, in the case of
any such proceeding instituted against the Borrower, such proceeding is not dismissed or stayed within 30 days of
the commencement thereof, provided that the Bank shall not be obligated to advance additional funds hereunder
during such period); (iv) any assignment by the Borrower for the benefit of creditors, or any levy, garnishment,
attachment or similar proceeding is instituted against any property of the Borrower held by or deposited with the
Bank; (v) a default with respect to any other indebtedness of the Borrower for borrowed money, if the effect of
such default is to cause or permit the acceleration of such debt; (vi) the commencement of any foreclosure or
forfeiture proceeding, execution or attachment against any collateral securing the obligations of the Borrower to
the Bank; (vii) the entry of a final judgment against the Borrower and the failure of the Borrower to discharge the
judgment within ten (10) days of the entry thereof; (viii) any merger, consolidation, division or other
reorganization of, with or by the Borrower, or the sale or other transfer of all or any substantial part of the
Borrower’s property or assets; (ix) any change in the Borrower’s business, assets, operations, financial condition
or results of operations or equity ownership that has or could reasonably be expected to have any material adverse
effect on the Borrower; (x) the Borrower ceases doing business as a going concern; (xi) any representation or
warranty made by the Borrower to the Bank in any Loan Document or any other documents now or in the future
evidencing or securing the obligations of the Borrower to the Bank, is false, erroneous or misleading in any
material respect; (xii) the death, incarceration, indictment or legal incompetency of any individual Borrower or, if
the Borrower is a partnership or limited liability company, the death, incarceration, indictment or legal
incompetency of any individual general partner or member; or (xiii) failure of the Borrower to notify the Bank
within ten (10) days of any change of the Borrower’s address.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no further obligation to make advances
hereunder; (b) if an Event of Default specified in clause (iii) or (iv) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts payable hereunder shall be
immediately due and payable without demand or notice of any kind; (c) if any other Event of Default shall occur,
the outstanding principal balance and accrued interest hereunder together with any additional amounts payable
hereunder, at the Bank’s option and without demand or notice of any kind, may be accelerated and become
immediately due and payable; (d) at the Bank’s option, this Note will bear interest at the Default Rate from the
date of the occurrence of the Event of Default; and (e) the Bank may exercise from time to time any of the rights
and remedies available under the Loan Documents or under applicable law. The Borrower acknowledges that
upon the occurrence of an Event of Default, SBA, as defined below, may be required to pay the Lender under the
SBA guarantee, and SBA may then seek recovery on the Facility (to the extent any balance remains after loan
10. Right of Setoff. In addition to all liens upon and rights of setoff against the Borrower’s money, securities
or other property given to the Bank by law, the Bank shall have, with respect to the Borrower’s obligations to the
Bank under this Note and to the extent permitted by law, a contractual possessory security interest in and a
contractual right of setoff against, and the Borrower hereby grants the Bank a security interest in, and hereby
assigns, conveys, delivers, pledges and transfers to the Bank, all of the Borrower’s right, title and interest in and
to, all of the Borrower’s deposits, moneys, securities and other property now or hereafter in the possession of or
on deposit with, or in transit to, the Bank or any other direct or indirect subsidiary of The PNC Financial Services
Group, Inc., whether held in a general or special account or deposit, whether held jointly with someone else, or
whether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts. Every such
security interest and right of setoff may be exercised without demand upon or notice to the Borrower. Every such
right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default
hereunder without any action of the Bank, although the Bank may enter such setoff on its books and records at a
11. Financial and Other Information. Within forty five (45) days after the Bank’s request, the Borrower
agrees to deliver any financial and other business and ownership information concerning the Borrower that the
Bank may request from time to time, such as annual and interim financial statements (all of which shall be
prepared in accordance with generally accepted accounting principles), federal income tax returns. The Borrower
also agrees to deliver to the Bank, promptly upon the Bank’s request, certification(s) of beneficial owners in the
form requested by the Bank (as executed and delivered to the Bank on or prior to the date of this Note and
updated from time to time, the “Certification of Beneficial Owners”). If the Borrower was required to execute
and deliver to the Bank a Certification of Beneficial Owners, (a) the Borrower represents and warrants, as of the
date of this Note and as of the date each updated Certification of Beneficial Owners is provided to the Bank, that
the information in the Certification of Beneficial Owners is true, complete and correct, and (b) the Borrower
agrees to provide confirmation of the accuracy of the information set forth in the Certification of Beneficial
Owners, or deliver a new Certification of Beneficial Owners in form and substance acceptable to the Bank, as and
when requested by the Bank and/or when any individual identified on the most recent Certification of Beneficial
Owners provided to the Bank as a controlling party and/or a direct or indirect individual owner has changed. The
Borrower further agrees to provide such other information and documentation as may reasonably be requested by
the Bank from time to time for purposes of compliance by the Bank with applicable laws (including without
limitation the USA PATRIOT Act and other “know your customer” and anti-money laundering rules and
regulations), and any policy or procedure implemented by the Bank to comply therewith. Additionally, the
Borrower will keep books and records in a manner satisfactory to the Bank and allow the Bank and SBA to
inspect and audit books, records and papers relating to the Borrower’s financial or business condition.
12. Anti-Money Laundering/International Trade Law Compliance. The Borrower represents and
warrants to the Bank, as of the date of this Note, the date of each advance of proceeds under the Facility, the date
of any renewal, extension or modification of the Facility, and at all times until the Facility has been terminated
and all amounts thereunder have been indefeasibly paid in full, that: (a) no Covered Entity (i) is a Sanctioned
Person; (ii) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned
Person; or (iii) does business in or with, or derives any of its operating income from investments in or transactions
with, any Sanctioned Country or Sanctioned Person in violation of any law, regulation, order or directive enforced
by any Compliance Authority; (b) the proceeds of the Facility will not be used to fund any operations in, finance
any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in
violation of any law, regulation, order or directive enforced by any Compliance Authority; (c) the funds used to
repay the Facility are not derived from any unlawful activity; and (d) each Covered Entity is in compliance with,
and no Covered Entity engages in any dealings or transactions prohibited by, any laws of the United States,
including but not limited to any Anti-Terrorism Laws. Borrower covenants and agrees that it shall immediately
notify the Bank in writing upon the occurrence of a Reportable Compliance Event.
As used herein: “Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and
embargoes, import/export licensing, money laundering, or bribery, all as amended, supplemented or replaced
from time to time; “Compliance Authority” means each and all of the (a) U.S. Treasury Department/Office of
Foreign Assets Control, (b) U.S. Treasury Department/Financial Crimes Enforcement Network, (c) U.S. State
Department/Directorate of Defense Trade Controls, (d) U.S. Commerce Department/Bureau of Industry and
Security, (e) U.S. Internal Revenue Service, (f) U.S. Justice Department, and (g) U.S. Securities and Exchange
Commission; “Covered Entity” means the Borrower, its affiliates and subsidiaries, all guarantors, pledgors of
collateral, all owners of the foregoing, and all brokers or other agents of the Borrower acting in any capacity in
connection with the Facility; “Reportable Compliance Event” means that any Covered Entity becomes a
Sanctioned Person, or is indicted, arraigned, investigated or custodially detained, or receives an inquiry from
regulatory or law enforcement officials, in connection with any Anti-Terrorism Law or any predicate crime to any
Anti-Terrorism Law, or self-discovers facts or circumstances implicating any aspect of its operations with the
actual or possible violation of any Anti-Terrorism Law; “Sanctioned Country” means a country subject to a
sanctions program maintained by any Compliance Authority; and “Sanctioned Person” means any individual
person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited,
sanctioned or debarred person or entity, or subject to any limitations or prohibitions (including but not limited to
the blocking of property or rejection of transactions), under any order or directive of any Compliance Authority or
otherwise subject to, or specially designated under, any sanctions program maintained by any Compliance
13. Indemnity. The Borrower agrees to indemnify each of the Bank, each legal entity, if any, who controls,
is controlled by or is under common control with the Bank, and each of their respective directors, officers and
employees (the “Indemnified Parties”), and to defend and hold each Indemnified Party harmless from and
against any and all claims, damages, losses, liabilities and expenses (including all fees and charges of internal or
external counsel with whom any Indemnified Party may consult and all expenses of litigation and preparation
therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party by any
person, entity or governmental authority (including any person or entity claiming derivatively on behalf of the
Borrower), in connection with or arising out of or relating to the matters referred to in this Note or in the other
Loan Documents or the use of any advance hereunder, whether (a) arising from or incurred in connection with
any breach of a representation, warranty or covenant by the Borrower, or (b) arising out of or resulting from any
suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute,
regulation or order, or tort, or contract or otherwise, before any court or governmental authority; provided,
however, that the foregoing indemnity agreement shall not apply to any claims, damages, losses, liabilities and
expenses solely attributable to an Indemnified Party's gross negligence or willful misconduct. The indemnity
agreement contained in this Paragraph shall survive the termination of this Note, payment of any advance
hereunder and the assignment of any rights hereunder. The Borrower may participate at its expense in the defense
of any such action or claim.
14. Miscellaneous. All notices, demands, requests, consents, approvals and other communications required
or permitted hereunder (“Notices”) must be in writing (except as may be agreed otherwise above with respect to
borrowing requests or as otherwise provided in this Note) and will be effective upon receipt. Notices may be
given in any manner to which the parties may agree. Without limiting the foregoing, first-class mail, postage
prepaid, facsimile transmission and commercial courier service are hereby agreed to as acceptable methods for
giving Notices. In addition, the parties agree that Notices may be sent electronically to any electronic address
provided by a party from time to time. Notices may be sent to a party’s address as set forth above or to such other
address as any party may give to the other for such purpose in accordance with this paragraph. No delay or
omission on the Bank’s part 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, nor will the Bank’s action or inaction impair any such right
or power. The Bank’s rights and remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Bank may have under other agreements, at law or in equity. No modification, amendment or
waiver of, or consent to any departure by the Borrower from, any provision of this Note will be effective unless
made in a writing 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. Notwithstanding the foregoing, the Bank may modify this Note for
the purposes of completing missing content or correcting erroneous content, without the need for a written
amendment, provided that the Bank shall send a copy of any such modification to the Borrower (which notice
may be given by electronic mail). 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, illegal or unenforceable in any respect 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. If this Note is executed by more than one Borrower, the
obligations of such persons or entities hereunder will be joint and several. 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; provided, however, that the Borrower may not assign this Note in whole or
in part without the Bank’s written consent and the Bank at any time may assign this Note in whole or in part.
This Note has been delivered to and accepted by the Bank and will be deemed to be made in the State of
Delaware. THIS NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE
BORROWER DETERMINED IN ACCORDANCE WITH (I) FEDERAL REGULATIONS, AND (II) TO THE EXTENT NOT
PREEMPTED BY FEDERAL LAWS OR REGULATIONS, THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ITS
CONFLICT OF LAWS RULES, INCLUDING WITHOUT LIMITATION THE ELECTRONIC TRANSACTIONS ACT (OR
EQUIVALENT) IN EFFECT IN THE STATE OF DELAWARE (OR, TO THE EXTENT CONTROLLING, THE LAWS OF
THE UNITED STATES OF AMERICA, INCLUDING WITHOUT LIMITATION THE ELECTRONIC SIGNATURES IN
GLOBAL AND NATIONAL COMMERCE ACT). The Borrower hereby irrevocably consents to the exclusive
jurisdiction of any state or federal court in the State of Delaware; 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.
15. Commercial Purpose. The Borrower represents that the indebtedness evidenced by this Note is being
incurred by the Borrower solely for the purpose of acquiring or carrying on a business, professional or
commercial activity, and not for personal, family or household purposes.
16. USA PATRIOT Act Notice. To help the government fight the funding of terrorism and money
laundering activities, Federal law requires all financial institutions to obtain, verify and record information that
identifies each Borrower that opens an account. What this means: when the Borrower opens an account, the Bank
will ask for the business name, business address, taxpayer identifying number and other information that will
allow the Bank to identify the Borrower, such as organizational documents. For some businesses and
organizations, the Bank may also need to ask for identifying information and documentation relating to certain
individuals associated with the business or organization.
17. Authorization to Obtain Credit Reports. By signing below, each person, who is signing in his or her
individual capacity, requests and provides written authorization to the Bank or its designee (and any assignee or
potential assignee hereof) to obtain such individual’s personal credit profile from one or more national credit
bureaus. This authorization extends to obtaining a credit profile in (i) considering an application for credit that is
evidenced, guaranteed or secured by this document, (ii) assessing creditworthiness and (iii) considering
extensions of credit, including on an ongoing basis, as necessary for the purposes of (a) update, renewal or
extension of such credit or additional credit, (b) reviewing, administering or collecting the resulting account and
(c) reporting on the repayment and satisfaction of such credit obligations. By signing below, such individual
further ratifies and confirms his or her prior requests and authorizations with respect to the matters set forth
herein. For the avoidance of doubt, this provision does not apply to persons signing below in their capacities as
officers or other authorized representatives of entities, organizations or governmental bodies.
18. Electronic Signatures and Records. Notwithstanding any other provision herein, the Borrower agrees
that this Note, the Loan Documents, any amendments thereto, and any other information, notice, signature card,
agreement or authorization related thereto (each, a “Communication”) may, at the Bank’s option, be in the form
of an electronic record. Any Communication may, at the Bank’s option, be signed or executed using electronic
signatures. For the avoidance of doubt, the authorization under this paragraph may include, without limitation,
use or acceptance by the Bank of a manually signed paper Communication which has been converted into
electronic form (such as scanned into PDF format) for transmission, delivery and/or retention.
19. Depository. Unless the Bank otherwise agrees, the Borrower will establish and maintain with the Bank
the Borrower’s primary depository accounts.
20. Federal Law. When the U.S. Small Business Administration (“SBA”) is the holder, this Note will be
interpreted and enforced under federal law, including SBA regulations. The Bank or SBA may use state or local
procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using
such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability.
As to this Note, the Borrower may not claim or assert against SBA any local or state law to deny any obligation,
defeat any claim of SBA, or preempt federal law.
21. Non-Recourse. The Borrower and SBA shall have no recourse against any individual shareholder,
member or partner of the Borrower for non-payment of the Facility, except to the extent that such shareholder,
member or partner uses the loan proceeds for an unauthorized purpose.
22. DISPUTE RESOLUTIONS.
(a) WAIVER OF JURY TRIAL. FOR ANY DISPUTE THAT IS NOT ARBITRATED, AND TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER AND THE BANK IRREVOCABLY WAIVES ANY AND
ALL RIGHTS THE BORROWER OR THE BANK 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. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
(b) ARBITRATION OF DISPUTES. The Borrower or the Bank may elect to submit any and all
disputes arising out of or relating to the Loan Documents or any breach thereof (a “Dispute”) to binding
(i) Arbitration. Any arbitration shall be conducted pursuant to and in accordance with the
AAA Commercial Arbitration Rules and, where applicable, the Supplementary Rules for Large, Complex
Commercial Disputes, and judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. Such arbitration shall be conducted in a mutually acceptable location.
Except as expressly set forth below, the procedures specified herein shall be the sole and exclusive
procedures for the resolution of Disputes; provided, however, that the Borrower or the Bank may seek
provisional or ancillary remedies, such as preliminary injunctive relief, from a court having jurisdiction,
before, during or after the pendency of any arbitration proceeding. The institution and maintenance of
any action for such judicial relief, or pursuit of provisional or ancillary remedies, shall not constitute a
waiver of the right or obligation of any party to submit any claim or dispute to arbitration. Nothing herein
shall in any way limit or modify any remedies available to the Bank under the Loan Documents or
otherwise at law or in equity.
(ii) Motion Practice. In any arbitration hereunder, the arbitrator(s) shall decide any prehearing
motions which are substantially similar to pre-hearing motions to dismiss for failure to state a
claim or motions for summary adjudication.
(iii) Discovery. Discovery shall be limited to the pre-hearing exchange of all documents
which the Borrower and the Bank intend to introduce at the hearing and any expert reports prepared by
any expert who will testify at the hearing.
(iv) Sequential Hearing Days. At the administrative conference conducted by the AAA, the
Borrower and the Bank and the AAA shall determine how to ensure that the hearing is started and
completed on sequential hearing days. Potential arbitrators shall be informed of the anticipated length of
the hearing and they shall not be subject to appointment unless they agree to abide by the parties’ intent
that, absent exigent circumstances, the hearing shall be conducted on sequential days.
(v) Award. The award of the arbitrator(s) shall be accompanied by a statement of the reasons
upon which such award is based.
(vi) Fees and Expenses. The Borrower and the Bank shall each bear equally all fees and costs
and expenses of the arbitration, and each shall bear its own legal fees and expenses and the costs of its
experts and witnesses; provided, however, that if the arbitration panel shall award to a party substantially
all relief sought by such party, then, notwithstanding any applicable governing law provisions, the other
party shall pay all costs, fees and expenses incurred by the prevailing party and such costs, fees and
expenses shall be included in such award.
(vii) Confidentiality of Disputes. The entire procedure shall be confidential and none of the
parties nor arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without
the written consent of all parties to the Dispute, except (i) to the extent disclosure is required to enforce
any applicable arbitration award or may otherwise be required by law and (ii) that either party may make
such disclosures to its regulators, auditors, accountants, attorneys and insurance representatives. No
conduct, statements, promises, offers, views, or opinions of any party involved in an arbitration hereunder
shall be discoverable or admissible for any purposes in litigation or other proceedings involving the
parties to the Dispute and shall not be disclosed to anyone not an agent, employee, expert, witness, or
representative for any of such parties.
(viii) CLASS ACTION WAIVER. THE BORROWER HEREBY WAIVES, WITH
RESPECT TO ANY DISPUTE: (I) THE RIGHT TO PARTICIPATE IN A CLASS ACTION,
PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION IN
COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS
MEMBER; AND (II) THE RIGHT TO JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF
ANY OTHER PERSON. The foregoing waiver is referred to herein as the “class action waiver”. The
Bank and the Borrower agree that no arbitrator shall have authority to conduct any arbitration in violation
of the class action waiver or to issue any relief that applies to any person or entity other than the Borrower
and/or the Bank individually. The parties acknowledge that this class action waiver is material and
essential to the arbitration of any claims and is non-severable from this Dispute Resolution section. If the
class action waiver is voided, found unenforceable, or limited with respect to any claim for which the
Borrower seeks class-wide relief, then this Dispute Resolution section (except for this sentence) shall be
null and void with respect to such claim, subject to the right to appeal the limitation or invalidation of the
class action waiver. However, this Dispute Resolution section shall remain valid with respect to all other
claims and Disputes. The parties acknowledge and agree that under no circumstances will a class action
(ix) Applicability of Federal Arbitration Act. This Note evidences transaction(s) in interstate
commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this
Dispute Resolution section.
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If the Borrower is a legal entity, the undersigned certifies to the Bank that the undersigned (individually
and collectively if more than one, the “Authorized Representative”) is and was authorized and directed to
(i) execute and deliver, including to electronically execute and deliver, in the name of and on behalf of the
Borrower, this Note and any other documents executed in connection with this Note or the Facility, all in
such form as may be requested by the Bank or required under the Program and any of which may contain
a provision waiving the right to trial by jury; (ii) execute and deliver to or in favor of, including to
electronically execute and deliver to or in favor of, the Bank any amendments, modifications, renewals or
supplements of or to any of the foregoing agreements, documents or instruments; (iii) take any other action
requested, required or deemed advisable by the Bank in order to effectuate the foregoing; and (iv) delegate
the foregoing duties to other representatives of the Borrower. The undersigned further certifies that the
Authorized Representative holds the office, title or status with the Borrower specified below the Authorized
The Borrower acknowledges that it has read and understands all the provisions of this Note, including the
waiver of jury trial, arbitration and class action waiver, and has been advised by counsel as necessary or
appropriate, or has elected not to seek the advice of counsel.
WITNESS the due execution hereof as a document under seal, as of the date first written above, with the intent to
be legally bound hereby.
TO PAYMENT PROTECTION PROGRAM TERM NOTE
DISBURSEMENT AND PAYMENT AUTHORIZATION INSTRUCTIONS
Loan Disbursement Authorization:
Borrower authorizes and directs the Bank to disburse the proceeds of the Facility as directed below. Each
authorized representative of the Borrower is authorized to make this request, the Bank is entitled to rely
conclusively on the below instructions to make disbursements in the amount and manner specified.
Disburse the proceeds of the Facility into the Borrower’s demand deposit account with PNC Bank, Account No.
Automatic Payment Authorization Under Facility:
The Borrower irrevocably authorizes and directs the Bank to charge any deposit account identified above and
maintained at the Bank (or such other account at the Bank as the undersigned may designate to the Bank in
writing from time to time) for all payments of principal and interest due or fees on the Facility, and to debit such
account for the amount of such payments on the date each payment is due. The Borrower acknowledges and
agrees that, to the extent there are insufficient funds in any such account to pay the required amounts when due,
the Borrower shall immediately pay to the Bank all sums remaining unpaid. This authorization supplements, and
does not limit, the Bank’s rights under the promissory note(s) and other documents evidencing or securing the
Facility. The Bank is entitled to rely conclusively on this authorization until this authorization is terminated by
the Bank or the Borrower, and the Bank has had a reasonable time to act thereon.
Paycheck Protection Program Certification
April 11, 2020
QUANTUM CORPORATION (the “Borrower”) has applied to PNC Bank, National Association (the “Bank”)
for a Small Business Association (“SBA”) 7(a) Paycheck Protection Program loan (the “PPP Loan”).
The below signer understands that the statements made in this certification are part of the agreement with the
Bank and that the Bank will rely on these statements when deciding whether or not to make the PPP Loan.
I certify, acknowledge and agree that I am an authorized officer of the Borrower and am authorized on behalf of
the Borrower to certify to the statements provided in this application, and that the following are true and correct
1. The Borrower was in operation on February 15, 2020 and, if Borrower is not a self-employed worker or
independent contractor, had employees for whom it paid salaries and payroll taxes or paid independent
contractors, as reported on a Form 1099-MISC.
2. The uncertainty of current economic conditions makes necessary the PPP Loan request to support the
ongoing operations of the Borrower.
3. The proceeds of the PPP Loan will (a) solely be used to retain workers and maintain payroll or make
mortgage interest payments, lease payments, and utility payments (the “Permitted Loan Purpose”), and
(b) be allocated as set forth in the Borrower’s application for the PPP Loan. At least 75 percent of the
proceeds of the PPP Loan will be used for payroll expenses. If the funds are knowingly used for
unauthorized purposes, the federal government may hold the undersigned and the Borrower legally liable
such as for charges of fraud.
4. Documentation verifying the number of full-time equivalent employees on the Borrower's payroll as well
as the dollar amounts of payroll costs, covered mortgage interest payments, covered rent payments, and
covered utilities for the eight week period following the disbursement of the PPP Loan has been provided
to the Bank.
5. The Borrower understands and agrees that loan forgiveness may be provided if the Borrower uses all of
the loan proceeds for the Permitted Loan Purpose. The actual amount forgiven will depend on the actual
use of the PPP Loan proceeds, and in no event may more than 25 percent of the forgiven amount be
attributable to non-payroll costs.
6. The Borrower does not have any other PPP Loan applications pending and will not apply for another PPP
Loan. During the period beginning on February 15, 2020 and ending on December 31, 2020 Borrower
has not received and will not receive another PPP Loan.
7. The Borrower did not receive an SBA Economic Injury Disaster Loan (an “EIDL”) prior to January 31,
2020 and will not apply for an EIDL unless their PPP application is declined by the Bank. The Borrower
shall notify the Bank if the Borrower received an EIDL between January 31, 2020 and April 3, 2020 and
the proceeds of such EIDL were or are used to retain workers and maintain payroll; the proceeds of the
PPP Loan must be used to refinance any such EIDL.
8. The information provided in the PPP Loan application and the information provided in all supporting
documents and forms is true and accurate in all material respects. The Borrower and the undersigned
understand that knowingly making a false statement to obtain a guaranteed loan from SBA is punishable
under the law, including under 18 USC 1001 and 3571 by imprisonment of not more than five years
and/or a fine of up to $250,000; under 15 USC 645 by imprisonment of not more than two years and/or a
fine of not more than $5,000; and, if submitted to a federally insured institution, under 18 USC 1014 by
imprisonment of not more than thirty years and/or a fine of not more than $1,000,000.
9. The Borrower acknowledges that the Bank will confirm the eligible PPP Loan amount using the
Borrower’s tax information that it has submitted, including without limitation, tax returns and tax
transcripts (collectively, the “Tax Information”). The Borrower affirms that the Tax Information is
identical to that submitted to the Internal Revenue Service. The Borrower also understands,
acknowledges, and agrees that the Bank can share the Borrower’s Tax Information with (i) the SBA’s
authorized representatives, including authorized representatives of the SBA Office of Inspector General,
(ii) the Bank’s affiliates, and its and their respective directors, officers, employees, agents and advisors
(the “Representatives”), and (iii) any actual or potential owners of a credit facility extended by the Bank
or its Representatives to the Borrower, any acquirers of any beneficial or other interest in such credit
facility, guarantor, servicers or service providers for such parties, and their successors and/or assigns (the
“Other Loan Participants”) for the purpose of (w) compliance with SBA Loan Program Requirements
and all SBA reviews, (x) originating, maintaining, managing, monitoring, servicing, selling, insuring, and
securitizing a credit facility; (y) enforcing any of its rights or remedies under the loan documents
applicable to such credit facility (including, without limitation, in connection with any collection action
related thereto) or (z) as otherwise permitted by applicable laws, including state and federal privacy and
data security laws, or if required to do so by legal process, regulation or law, or in defense of any claims
or causes of action against the Bank or any of its Representatives.
10. The Borrower has received a copy of the U.S. Small Business Administration Authorization (the
“Authorization”) for the PPP Loan, if required by the SBA.