EXHIBIT 10.95
THIRD AMENDMENT
TO LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement (this "Amendment") is
entered into as of June 15, 2005, by and between COMERICA BANK, successor by
merger to COMERICA BANK-CALIFORNIA ("Bank") and MTI TECHNOLOGY CORPORATION
("Borrower").
RECITALS
Borrower and Bank are parties to that certain Loan and Security Agreement
dated as of November 13, 2002, as amended from time to time, including by that
certain First Amendment to Loan and Security Agreement dated June 30, 2003 and
that certain Second Amendment to Loan and Security Agreement dated June 18, 2004
(the "Agreement"). The parties desire to amend the Agreement in accordance with
the terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. The definition of Revolving Maturity Date in Section 1.1 of the
Agreement is amended in its entirety to read as follows:
"Revolving Maturity Date" means May 31, 2006.
2. No course of dealing on the part of Bank or its officers, nor any
failure or delay in the exercise of any right by Bank, shall operate as a
waiver thereof, and any single or partial exercise of any such right shall not
preclude any later exercise of any such right. Bank's failure at any time to
require strict performance by a Borrower of any provision shall not affect any
right of Bank thereafter to demand strict compliance and performance. Any
suspension or waiver of a right must be in writing signed by an officer of
Bank.
3. Unless otherwise defined, all initially capitalized terms in this
Amendment shall be as defined in the Agreement. The Agreement, as amended
hereby, shall be and remain in full force and effect in accordance with its
respective terms and hereby is ratified and confirmed in all respects. Except
as expressly set forth herein, the execution, delivery, and performance of this
Amendment shall not operate as a waiver of, or as an amendment of, any right,
power, or remedy of Bank under the Agreement, as in effect prior to the date
hereof.
4. Borrower represents and warrants that the Representations and
Warranties contained in the Agreement are true and correct as of the date of
this Amendment, and that no Event of Default has occurred and is continuing.
5. As a condition to the effectiveness of this Amendment, Bank shall
have received, in form and substance satisfactory to Bank, the following:
(a) this Amendment, duly executed by Borrower;
(b) the Standby Letter of Credit, issued by Bank of America
for the benefit of Bank, in the minimum amount of the Revolving Line, shall be
amended or reissued to bear an expiry date of no earlier than June 30, 2006;
(c) a Certificate of the Secretary of Borrower with respect
to incumbency and resolutions authorizing the execution and delivery of this
Amendment;
(d) all reasonable Bank Expenses incurred through the date
of this Amendment, which may be debited from any of Borrower's accounts; and
(e) such other documents, and completion of such other
matters, as Bank may reasonably deem necessary or appropriate.
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6. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
first date above written.
MTI TECHNOLOGY CORPORATION
By: Illegible
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Title: CFO
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COMERICA BANK, successor by merger to
COMERICA BANK - CALIFORNIA
By: Illegible
---------------------------------
Title: Senior Vice President
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[SIGNATURE PAGE TO THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT]
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CORPORATION RESOLUTIONS AND INCUMBENCY CERTIFICATION
AUTHORITY TO PROCURE LOANS
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I certify that I am the duly elected and qualified Secretary of MTI TECHNOLOGY
CORPORATION; that the following is a true and correct copy of resolutions duly
adopted by the Board of Directors of the Corporation in accordance with its
bylaws and applicable statutes.
COPY OF RESOLUTIONS:
Be it Resolved, That:
1. Any one (1) of the following CEO, CFO, VP Finance, Controller (insert
titles only) of the Corporation are/is authorized, for, on behalf of, and
in the name of the Corporation to:
(a) Negotiate and procure loans, letters of credit and other credit or
financial accommodations from Comerica Bank ("Bank"), a Michigan
banking corporation, including, without limitation, that certain
Loan and Security Agreement dated as of November 13, 2002, as
amended from time to time, including by that certain First Amendment
to Loan and Security Agreement dated June 30, 2003, that certain
Second Amendment to Loan and Security Agreement dated June 18, 2004,
and that certain Second Amendment to Loan and Security Agreement
dated June 15, 2005, as may subsequently be amended from time to
time.
(b) Discount with the Bank, commercial or other business paper belonging
to the Corporation made or drawn by or upon third parties, without
limit as to amount;
(c) Purchase, sell, exchange, assign, endorse for transfer and/or
deliver certificates and/or instruments representing stocks, bonds,
evidences of Indebtedness or other securities owned by the
Corporation, whether or not registered in the name of the
Corporation;
(d) Give security for any liabilities of the Corporation to the Bank by
grant, security interest, assignment, lien, deed of trust or
mortgage upon any real or personal property, tangible or intangible
of the Corporation;
(e) Issue a warrant or warrants to purchase the Corporation's capital
stock; and
(f) Execute and deliver in form and content as may be required by the
Bank any and all notes, evidences of Indebtedness, applications for
letters of credit, guaranties, subordination agreements, loan and
security agreements, financing statements, assignments, liens, deeds
of trust, mortgages, trust receipts and other agreements,
instruments or documents to carry out the purposes of these
Resolutions, any or all of which may relate to all or to
substantially all of the Corporation's property and assets.
2. Said Bank be and it is authorized and directed to pay the proceeds of any
such loans or discounts as directed by the persons so authorized to sign,
whether so payable to the order of any said persons in their individual
capacities or not, and whether such proceeds are deposited to the
individual credit of any of said persons or not;
3. Any and all agreements, instruments and documents previously executed
and acts and things previously done to carry out the purposes of these
Resolutions are ratified, confirmed and approved as the act or acts of
the Corporation.
4. These Resolutions shall continue in force, and the Bank may consider the
holder of said offices and their signatures to be and continue to be as
set forth in a certified copy of these Resolutions delivered to the Bank,
until notice to the contrary in writing is duly served on the Bank (such
notice to have no effect on any action previously taken by the Bank in
reliance on these Resolutions).
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5. Any person, corporation or other legal entity dealing with the Bank may
rely upon a certificate signed by an officer of the Bank to effect that
these Resolutions and any agreement, instrument or document executed
pursuant to them are still in full force and effect and binding upon the
Corporation.
6. The Bank may consider the holders of the offices of the Corporation and
their signatures, respectively, to be and continue to be as set forth in
the Certificate of the Secretary of the Corporation until notice to the
contrary in writing is duly served on the Bank.
I further certify that the above Resolutions are in full force and effect as of
the date of this Certificate; that these Resolutions and any borrowings or
financial accommodations under these Resolutions have been properly noted in
the corporate books and records, and have not been rescinded, annulled, revoked
or modified; that neither the foregoing Resolutions nor any actions to be taken
pursuant to them are or will be in contravention of any provision of the
articles of incorporation or bylaws of the Corporation or of any agreement,
indenture or other instrument to which the Corporation is a party or by which
it is bound; and that neither the articles of incorporation nor bylaws of the
Corporation nor any agreement, indenture or other instrument to which the
Corporation is a party or by which it is bound require the vote or consent of
shareholders of the Corporation to authorize any act, matter or thing described
in the foregoing Resolutions.
I further certify that the following named persons have been duly elected to
the offices set opposite their respective names, that they continue to hold
these offices at the present time, and that the signatures which appear below
are the genuine, original signatures of each respectively:
(PLEASE SUPPLY GENUINE SIGNATURES OF AUTHORIZED SIGNERS BELOW)
NAME(TYPE OR PRINT) TITLE SIGNATURE
------------------- ----- ---------
Xxxxxx Xxxxxxxx CEO /s/ Xxxxxx Xxxxxxxx
Xxxxx Xxxxxxxxx CFO /s/ Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx VP Finance /s/ Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxxx VP & Controller /s/ Xxxx Xxxxxxxx
In Witness Whereof, I have affixed my name as Secretary and have caused the
corporate seal (where available) of said Corporation to be affixed on June 15,
2005.
/s/ Xxxxx Xxxxxxxxx
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Secretary
The Above Statements are Correct. --------------------------------------------
SIGNATURE OF OFFICER OR DIRECTOR OR, IF
NONE, A SHAREHOLDER OTHER THAN SECRETARY
WHEN SECRETARY IS AUTHORIZED TO SIGN ALONE.
FAILURE TO COMPLETE THE ABOVE WHEN THE SECRETARY IS AUTHORIZED TO SIGN ALONE
SHALL CONSTITUTE A CERTIFICATION BY THE SECRETARY THAT THE SECRETARY IS THE
SOLE SHAREHOLDER, DIRECTOR AND OFFICER OF THE CORPORATION.
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[BANK OF AMERICA LOGO]
JUNE 13, 2005
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3051683
BENEFICIARY APPLICANT
COMERICA BANK MTI TECHNOLOGY CORPORATION
0000 XXXXXXXXX XXXXXX, 5TH FLOOR 0000 X. XX XXXXX XXX.
XX XXXXXXX, XX 00000 XXXXXXX, XX 00000
ATTN: INTERNATIONAL TRADE SERVICES
THE NOTICE OF NON-RENEWAL DATED APRIL 27, 2005 IS HEREBY RESCINDED.
THE AUTOMATIC EXTENSION TERMS ARE HEREBY REINSTATED.
ALL TERMS AND CONDITIONS REMAIN UNCHANGED.
IF YOU HAVE ANY INQUIRIES REGARDING THIS NOTICE, PLEASE CALL 000-000-0000 AND
QUOTE OUR REFERENCE NUMBER LISTED ABOVE.
SINCERELY,
BANK OF AMERICA N.A.
/s/ XXXXXXXXX XXXX
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AUTHORIZED SIGNATURE
CC. XXXX X. XXXXXX
NV1-119-02-01
Bank of America, N.A. Trade Operations
Mail Code: CA9-703-19-09
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX 00000
00-35-0201NSH 9-1999_CA9 19
