EXHIBIT 10.49
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
BORROWER: MTI TECHNOLOGY CORPORATION
ADDRESS: ▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DATED AS OF NOVEMBER 8, 2001
THIS AMENDMENT TO LOAN DOCUMENTS (THIS "AMENDMENT") is entered into
between Silicon Valley Bank ("Silicon") and the borrower named above
("Borrower").
Borrower and Silicon hereby agree to amend the Loan and Security
Agreement between them, dated as of October 29, 2001 (as amended, restated,
supplemented, or otherwise modified from time to time, the "Loan Agreement"), as
set forth below, effective as of the date hereof. (Capitalized terms used but
not defined in this Amendment shall have the meanings set forth in the Loan
Agreement, as amended by this Amendment.)
1. AMENDMENTS TO LOAN AGREEMENT.
(a) The paragraph set forth in Section 1 of the Schedule to
Loan and Security Agreement that is captioned "Foreign Exchange Contract
Sublimit" and currently reads as follows:
"Foreign Exchange Contract Sublimit. If
there is availability hereunder, then
Borrower or its wholly-owned subsidiary,
MTI Technology Ireland, Ltd., may enter
in foreign exchange forward contracts
with Silicon under which Borrower (or,
if applicable, MTI Technology Ireland,
Ltd.) commits to purchase from or sell
to Silicon a set amount of foreign
currency more than 1 business day after
the contract date (the "Foreign Exchange
Contracts"). Silicon will subtract 10%
of each outstanding Foreign Exchange
Contract and apply it to the then extant
foreign exchange Reserve (subject to the
Overall Ancillary Sublimit set forth
below, the "FX Reserve"; which foreign
exchange Reserve shall not exceed
$2,000,000); it being understood and
agreed that, at such time as any such
Foreign Exchange Contract is no
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SILICON VALLEY BANK CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
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longer outstanding and Silicon does not
have any outstanding obligations
thereunder, the F/X Reserve shall be
reduced by the 10% of such Foreign
Exchange Contract previously so applied
to such F/X Reserve. The total Foreign
Exchange Contracts at any one time may
not exceed 10 times the amount of the FX
Reserve. Silicon may terminate the
Foreign Exchange Contracts if an Event
of Default occurs and is continuing.
Borrower (or, if applicable, MTI
Technology Ireland, Ltd.) will execute
and deliver all standard applications
and agreements of Silicon in connection
with Foreign Exchange Contracts and pay
all standard fees and charges of
Silicon."
, is hereby amended and restated in its entirety to read as follows:
"Foreign Exchange Contract Sublimit. If
there is availability hereunder, then
Borrower or its wholly-owned subsidiary,
MTI Technology B.V., a company organized
under the laws of The Netherlands and
successor-in-interest to all or
substantially all assets and liabilities
of MTI Technology Ireland, Ltd.
("MTITBV"), may enter in foreign
exchange forward contracts with Silicon
under which Borrower (or, if applicable,
MTITBV) commits to purchase from or sell
to Silicon a set amount of foreign
currency more than 1 business day after
the contract date (the "Foreign Exchange
Contracts"). Silicon will subtract 10%
of each outstanding Foreign Exchange
Contract and apply it to the then extant
foreign exchange Reserve (subject to the
Overall Ancillary Sublimit set forth
below, the "FX Reserve"; which foreign
exchange Reserve shall not exceed
$2,000,000); it being understood and
agreed that, at such time as any such
Foreign Exchange Contract is no longer
outstanding and Silicon does not have
any outstanding obligations thereunder,
the F/X Reserve shall be reduced by the
10% of such Foreign Exchange Contract
previously so applied to such F/X
Reserve. The total Foreign Exchange
Contracts at any one time may not exceed
10 times the amount of the FX Reserve.
Silicon may terminate the Foreign
Exchange Contracts if an Event of
Default occurs and is continuing.
Borrower (or, if applicable, MTITBV)
will execute and deliver all standard
applications and agreements of Silicon
in
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connection with Foreign Exchange
Contracts and pay all standard fees and
charges of Silicon."
(b) The representation and warranty set forth in Section 8 of
the Schedule to Loan and Security Agreement that currently reads as follows:
"Borrower hereby further represents and
warrants that its wholly-owned
subsidiary known as MTI Technology
Europe is a company organized under the
laws of England (rather than the laws of
Ireland, as incorrectly stated in
Exhibit 23 to Borrower's Annual Report
on Form 10-K for the Fiscal Year ended
April 7, 2001 filed with the Securities
and Exchange Commission as of June 12,
2001) and that the bulk of Borrower's
consolidated business activities and
assets located in Europe are conducted
and owned by "Irish Sub" (as defined in
Section 9 of this Schedule) and not by
MTI Technology Europe."
, is hereby captioned "European Operations" and amended and restated in its
entirety to read as follows:
"EUROPEAN OPERATIONS: Borrower hereby further
represents and warrants
that: (a) its wholly-owned
subsidiary known as MTI
Technology Europe is a
company organized under the
laws of England (rather
than the laws of Ireland,
as incorrectly stated in
Exhibit 23 to Borrower's
Annual Report on Form 10-K
for the Fiscal Year ended
April 7, 2001 filed with
the Securities and Exchange
Commission as of June 12,
2001); (b) MTITBV has
acquired all or
substantially all of the
assets, liabilities, and
business activities of MTI
Technology Ireland, Ltd.
("Irish Sub"); and (c) the
bulk of Borrower's
consolidated business
activities and assets
located in Europe are
conducted and owned by
MTITBV and not by MTI
Technology Europe or Irish
Sub."
(c) Section 9(5) of the Schedule to Loan and Security
Agreement, which currently reads as follows:
"(5) WARRANTS. Borrower shall provide
Silicon with five-year warrants to
purchase the Designated Number (as
defined below) of shares of common
stock of the Borrower (the
"Shares"), at a price per share
equal to the Designated Price (as
defined below), on terms acceptable
to Silicon, all as set forth in the
Warrant to Purchase Stock (the
"Warrant") and related
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Registration Rights Agreement being
executed concurrently with this
Agreement. Said warrants shall be
deemed fully earned on the date
hereof, shall be in addition to all
interest and other fees, and shall
be non-refundable. As used herein,
the term "Designated Price" means
the closing price of the Shares
reported for the trading day
immediately before the date of this
Agreement. As used herein, the term
"Designated Number" means the
quotient obtained from dividing (a)
$450,000 by (b) the Designated
Price."
, is hereby amended and restated in its entirety to read as follows:
"(5) WARRANTS. Borrower shall provide
Silicon with five-year warrants to
purchase the Designated Number (as
defined below) of shares of common
stock of the Borrower (the
"Shares"), at a price per share
equal to the Designated Price (as
defined below), on terms acceptable
to Silicon, all as set forth in the
Warrant to Purchase Stock (the
"Warrant") and related Registration
Rights Agreement being executed and
delivered on or about November __,
2001. Said warrants shall be deemed
fully earned on the date of this
Agreement, shall be in addition to
all interest and other fees, and
shall be non-refundable. As used
herein, the term "Designated Price"
means the closing price of the
Shares reported for the trading day
immediately before the date of
execution and delivery of the
Warrant. As used herein, the term
"Designated Number" means the
quotient obtained from dividing (a)
$450,000 by (b) the Designated
Price."
(d) Section 9(6) of the Schedule to Loan and Security
Agreement, which currently reads as follows:
"(6) IRISH SUB GUARANTY. MTI Technology
Ireland, Ltd., a company organized
under the laws of Ireland and
wholly-owned subsidiary of Borrower
("Irish Sub"), shall execute and
deliver to Silicon a continuing
guaranty with respect to all of the
Obligations, in form and substance
satisfactory to Silicon, and
certified resolutions or other
evidence of authority with respect
to the execution and delivery of
such
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guaranty. Throughout the term of
this Agreement, Borrower shall not
cause, suffer, or permit such
guaranty to cease to be in full
force and effect."
, is hereby amended and restated in its entirety to read as follows:
"(6) MTITBV GUARANTY. MTITBV shall
execute and deliver to Silicon a
continuing guaranty with respect to
all of the Obligations, in form and
substance satisfactory to Silicon,
and certified resolutions or other
evidence of authority with respect
to the execution and delivery of
such guaranty. Throughout the term
of this Agreement, Borrower shall
not cause, suffer, or permit such
guaranty to cease to be in full
force and effect."
(e) Section 9(7) of the Schedule to Loan and Security
Agreement, which currently reads as follows:
"(7) CORPORATE GUARANTY. Borrower shall
execute and deliver to Silicon a
continuing guaranty with respect to
all of the obligations of Irish Sub
owing to Silicon, in form and
substance satisfactory to Silicon,
and certified resolutions or other
evidence of authority with respect
to the execution and delivery of
such guaranty. Throughout the term
of this Agreement, Borrower shall
not cause, suffer, or permit such
guaranty to cease to be in full
force and effect."
, is hereby amended and restated in its entirety to read as follows:
"(7) CORPORATE GUARANTY. Borrower shall
execute and deliver to Silicon a
continuing guaranty with respect to
all of the obligations of MTITBV
owing to Silicon, in form and
substance satisfactory to Silicon,
and certified resolutions or other
evidence of authority with respect
to the execution and delivery of
such guaranty. Throughout the term
of this Agreement, Borrower shall
not cause, suffer, or permit such
guaranty to cease to be in full
force and effect."
(f) Section 9(8) of the Schedule to Loan and Security
Agreement, which currently reads as follows:
"(8) INTERCOMPANY SUBORDINATION
AGREEMENT. Borrower and Irish Sub
(each, an "Obligor") shall execute
and
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deliver to Silicon a subordination
agreement with respect to all of the
Inside Debt of each Obligor owing to
any other Obligor, on Silicon's
standard form, and certified
resolutions or other evidence of
authority with respect to the
execution and delivery of such
subordination agreement, Throughout
the term of this Agreement, Borrower
shall not cause, suffer, or permit
such subordination agreement to
cease to be in full force and
effect."
, is hereby amended and restated in its entirety to read as follows:
"(8) INTERCOMPANY SUBORDINATION
AGREEMENT. Borrower and MTITBV
(each, an "Obligor") shall execute
and deliver to Silicon a
subordination agreement with respect
to all of the Inside Debt of each
Obligor owing to any other Obligor,
on Silicon's standard form, and
certified resolutions or other
evidence of authority with respect
to the execution and delivery of
such subordination agreement,
Throughout the term of this
Agreement, Borrower shall not cause,
suffer, or permit such subordination
agreement to cease to be in full
force and effect."
(g) The Schedule to Loan and Security Agreement hereby is
amended by adding thereto, in proper numerical order, the following as a new
Section 9(9) of the Schedule to Loan and Security Agreement:
"(9) ASSIGNMENT AND ASSUMPTION. Borrower
shall cause each of MTITBV and Irish
Sub to execute and deliver to
Silicon (and Borrower shall consent
to) an assignment and assumption of
Foreign Exchange Contract
obligations, in form and substance
satisfactory to Silicon."
2. REPRESENTATIONS TRUE. Borrower represents and warrants to Silicon
that all representations and warranties set forth in the Loan Agreement, as
amended hereby, are true and correct.
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3. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and Borrower, and the
other written documents and agreements between Silicon and Borrower set forth in
full all of the representations and agreements of the parties with respect to
the subject matter hereof and supersede all prior discussions, representations,
agreements and understandings between the parties with respect to the subject
hereof. Except as herein expressly amended, all of the terms and provisions of
the Loan Agreement, and all other documents and agreements between Silicon and
Borrower shall continue in full force and effect and the same are hereby
ratified and confirmed.
BORROWER: SILICON:
MTI TECHNOLOGY CORPORATION SILICON VALLEY BANK
BY /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ BY /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
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PRESIDENT OR VICE PRESIDENT TITLE Vice President and Regional
Market Manager
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BY /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
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SECRETARY OR ASS'T SECRETARY
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SILICON VALLEY BANK
CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
BORROWER: MTI TECHNOLOGY CORPORATION,
A CORPORATION ORGANIZED UNDER THE LAWS OF THE
STATE OF DELAWARE
DATE: NOVEMBER 8, 2001
I, the undersigned, Secretary or Assistant Secretary of the above-named
borrower, a corporation organized under the laws of the state set forth above,
do hereby certify that the following is a full, true and correct copy of
resolutions duly and regularly adopted by the Board of Directors of said
corporation as required by law, and by the by-laws of said corporation, and that
said resolutions are still in full force and effect and have not been in any way
modified, repealed, rescinded, amended or revoked.
RESOLVED, that this corporation borrow from Silicon Valley Bank
("Silicon"), from time to time, such sum or sums of money as, in the
judgment of the officer or officers hereinafter authorized hereby, this
corporation may require.
RESOLVED FURTHER, that any officer of this corporation be, and he or she is
hereby authorized, directed and empowered, in the name of this corporation,
to execute and deliver to Silicon, and Silicon is requested to accept, the
loan agreements, security agreements, notes, financing statements, and
other documents and instruments providing for such loans and evidencing
and/or securing such loans, with interest thereon, and said authorized
officers are authorized from time to time to execute renewals, extensions
and/or amendments of said loan agreements, security agreements, and other
documents and instruments.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all
indebtedness of this corporation to Silicon, whether arising pursuant to
this resolution or otherwise, to grant, transfer, pledge, mortgage, assign,
or otherwise hypothecate to Silicon, or deed in trust for its benefit, any
property of any and every kind, belonging to this corporation, including,
but not limited to, any and all real property, accounts, inventory,
equipment, general intangibles, instruments, documents, chattel paper,
notes, money, deposit accounts, furniture, fixtures, goods, and other
property of every kind, and to execute and deliver to Silicon any and all
grants, transfers, trust receipts, loan or credit agreements, pledge
agreements, mortgages, deeds of trust, financing statements, security
agreements and other hypothecation agreements, which said instruments and
the note or notes and other instruments referred to in the preceding
paragraph may contain such provisions, covenants, recitals and agreements
as Silicon may require and said authorized officers may approve, and the
execution thereof by said authorized officers shall be conclusive evidence
of such approval.
RESOLVED FURTHER, that, in connection with the foregoing loans, this
corporation shall issue to Silicon five-year warrants to purchase the
Designated Number of shares of common stock of this corporation (the
Shares"), at a price per share equal to the Designated Price, on the terms
and provisions set forth in a Warrant to Purchase Stock and related
documents, on terms and conditions as Silicon and this corporation shall
agree; any officer of this corporation is hereby
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authorized to execute and deliver such Warrant to Purchase Stock and
related documents, and all documents and instruments relating thereto, in
such form and containing such additional provisions as said authorized
officers may approve, and the execution thereof by said authorized officers
shall be conclusive evidence of such approval. As used herein, the term
"Designated Price" means the closing price of the Shares reported for the
trading day immediately before the issuance date of such Warrant to
Purchase Stock. As used herein, the term "Designated Number" means the
quotient obtained from dividing (a) $450,000 by (b) the Designated Price.
RESOLVED FURTHER, that (WHEREAS, it is in the direct interest of this
corporation to assist MTI Technology B.V., a company organized under the
laws of The Netherlands and successor-in-interest to all or substantially
all assets and liabilities of MTI Technology Ireland, Ltd. (the "Obligor")
in procuring credit from Silicon, because Obligor is an affiliate of this
corporation, furnishes goods or services to this corporation, purchases or
acquires goods or services from this corporation, and/or otherwise has a
direct or indirect corporate or business relationship with this
corporation), any officer of this corporation is hereby authorized and
directed to: execute and deliver on behalf of this corporation a guarantee
with respect to all indebtedness, liabilities and obligations of Obligor to
Lender, whether now existing or hereafter arising or acquired; to pledge or
assign to Lender, and to grant to Lender a security interest and lien in,
any and all assets and property, real and personal, of this corporation as
security for all indebtedness, liabilities and obligations of this
corporation to Lender, now existing or hereafter arising, including without
limitation the obligations of this corporation under said guarantee, and to
execute and deliver in connection therewith, one or more pledge agreements,
assignments, security agreements Uniform Commercial Code financing
statements, deeds of trust and mortgages, in form and substance
satisfactory to Lender; to execute and deliver any and all amendments,
modifications, extensions, renewals, replacements and agreements,
documents, instruments relating to the foregoing or requested by Lender;
and to execute and deliver any and all instruments, papers and documents
and to do all other acts that said officers may deem convenient or proper
to effectuate the purpose and intent of these resolutions.
RESOLVED FURTHER, that Silicon may conclusively rely upon a certified copy
of these resolutions and a certificate of the Secretary or Ass't Secretary
of this corporation as to the officers of this corporation and their
offices and signatures, and continue to conclusively rely on such certified
copy of these resolutions and said certificate for all past, present and
future transactions until written notice of any change hereto or thereto is
given to Silicon by this corporation by certified mail, return receipt
requested.
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The undersigned further hereby certifies that the following
persons are the duly elected and acting officers of the corporation named above
as borrower and that the following are their actual signatures:
NAMES OFFICE(S) ACTUAL SIGNATURES
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Vice Chairman, President and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chief Executive Officer X /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ Chief Operating Officer X /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
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Senior Vice President
Manufacturing and Customer
V.S. ▇▇▇▇▇▇▇▇▇▇▇▇ Service X /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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X
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IN WITNESS WHEREOF, I have hereunto set my hand as such
Secretary or Assistant Secretary on the date set forth above.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇
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Secretary or Assistant Secretary
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