EXHIBIT 10.54
LOAN AGREEMENT
THIS LOAN AGREEMENT, as amended, modified or otherwise supplemented from
time to time (this "AGREEMENT"), is made and entered into as of June 27, 2002 by
and between THE CANOPY GROUP, INC., a Utah corporation ("LENDER"), and MTI
TECHNOLOGY CORPORATION, a Delaware corporation ("BORROWER"), who, for good and
valuable consideration, the adequacy and receipt of which is acknowledged, agree
as follows.
RECITALS
A. Borrower desires to obtain from Lender a revolving line of credit
loan of up to Seven Million Dollars ($7,000,000) for its working capital and
other corporate purposes.
B. Lender desires to grant the credit and credit accommodations
requested by the Borrower on a revolving line of credit basis pursuant to the
terms and conditions of this Agreement.
ARTICLE 1
LOAN
1.1 Revolving Loan. Subject to the terms and conditions hereof, Lender
has established a Loan on a revolving credit basis from which Borrower may
obtain a "LOAN" or collectively, "LOANS" from time to time from Lender up to
Seven Million Dollars ($7,000,000) (the "CREDIT LIMIT"). All advances for a Loan
or Loans thereunder shall be evidenced by the Promissory Note in the form of
EXHIBIT A attached hereto (the "NOTE"). The closing of this Loan Agreement shall
occur on the date that all of the conditions of funding have been met pursuant
to Section 3.4 (the "CLOSING DATE"). Lender shall make an initial Loan of Two
Million Dollars ($2,000,000) on the Closing Date (the "INITIAL LOAN"). The
Borrower may borrow, pay and reborrow Loan funds until the Maturity Date.
Borrower agrees to repay all amounts borrowed on any Loan or Loans pursuant to
this Agreement and in accordance with the terms of the Note.
1.2 Loan Advances. Borrower may obtain advances after the Initial Loan
on the following basis until the Maturity Date or unless the Borrower is in
default under this Agreement which advances may be up to the Credit Limit, upon
the following conditions:
a. Borrower shall submit to Lender a written Loan request
executed solely the Authorized Agents whose names and specimen signatures are at
the end of this Agreement, or as hereafter provided by the Borrower. The
revocation of the authorization may be made only upon written notice to lender.
b. A request for a Loan advance shall be made to Lender at least
two (2) business days before the requested disbursement and providing Lender (i)
the date the Loan is
requested; (ii) the amount of the Loan; (iii) the proposed payment date; and
(iv) the purpose of the Loan.
1.3 Loan Fees. Borrower shall pay to Lender a fee of $5,000 for the
Loans and this Agreement which may be paid from a Loan.
1.4 Collateral. In addition to any other collateral described in any
other documents executed in connection with the Loans (which documents, together
with this Agreement, the Note and the other documents executed in connection
with this Agreement, constitute the "LOAN DOCUMENTS"), the Loans shall be
secured by a perfected security interest in "COLLATERAL" as that term is defined
in the form of Security Agreement attached hereto as EXHIBIT B.
1.5 Maturity Date. All Loans shall be due and payable in full on or
before June 30, 2003 (the "MATURITY DATE"). The Lender's obligation to grant
Loans or advance Loan proceeds to Borrower shall terminate on the Maturity Date.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Lender as
of the date hereof and as of the Closing Date:
2.1 Organization and Qualification. Borrower is a corporation duly
organized and existing in good standing under the laws of the State of Delaware.
Except as set forth on Exhibit C, Borrower is duly qualified to do business in
each jurisdiction where the conduct of its business requires qualification and
where the failure to be so qualified could reasonably be expected to have a
material adverse effect on the business, assets, operations, or financial
condition of Borrower ("MATERIAL ADVERSE EFFECT"). Borrower has the full power
and authority to own its properties and to conduct the business in which it
engages and to enter into and perform its obligations under the Loan Documents,
and all agreements, documents, obligations, and transactions contemplated by
this Agreement.
2.2 Authorization. The execution, delivery, and performance by Borrower
of the Loan Documents and all agreements, documents, obligations, and
transactions contemplated by this Agreement have been duly authorized by all
necessary action on the part of Borrower and are not inconsistent with
Borrower's organizational documents or any resolution of the Board of Directors
of Borrower, do not and will not contravene any provision of, or constitute a
default under, any material indenture, mortgage, contract, or other instrument
to which Borrower is a party or by which Borrower is bound. Upon their execution
and delivery, the Loan Documents will constitute legal, valid, and binding
agreements and obligations of Borrower and are enforceable in accordance with
their terms.
2.3 Pending Litigation. Except as disclosed in Exhibit C, there is no
action, suit or proceeding pending or to the best of Borrower's knowledge,
threatened, against or affecting Borrower or the Collateral, in any court of law
or equity or before any governmental or quasi-governmental instrumentality,
whether federal, state, county or municipal, which would have a Material Adverse
Effect on Borrower's ability to perform under the Loan Documents.
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2.4 Financial Statements and Other Information. Any and all financial
statements delivered to Lender by Borrower are accurate, complete, prepared in
good faith, and accurately present the financial condition of Borrower and
reflect accurately Borrower's assets, properties, and results of operation of
Borrower's business as of the dates thereof. No material adverse change has
occurred in the financial condition of Borrower reflected therein since June 1,
2002 and no additional borrowings have been made by Borrower since June 1, 2002
other than the borrowing contemplated hereby, or approved by Lender.
2.5 Collateral. Borrower has sole title to the Collateral. Borrower
neither owns nor possesses any interest of any kind in any assets which have not
been disclosed to Lender.
2.6 Commission Filings. Borrower has properly and timely filed with the
Securities and Exchange Commission (the "COMMISSION") all reports, proxy
statements, forms and other documents required to be filed with the Commission
(the "COMMISSION FILINGS"). As of their respective dates, (i) the Commission
Filings complied in all material respects with the requirements of the
Securities Act of 1933 (the "SECURITIES ACT") or the Securities and Exchange Act
of 1934, as the case may be, and the rules and regulations of the Commission
promulgated thereunder applicable to such Commission Filings, and (ii) none of
the Commission Filings contained at the time of its filing any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of Borrower included in the Commission Filings, as of the dates of
such documents, were true and complete in all material respects and complied
with applicable accounting requirements and the published rules and regulations
of the Commission with respect thereto, were prepared in accordance with
generally accepted accounting principles in the United States ("GAAP") (except
in the case of unaudited statements permitted by under the Exchange Act) applied
on a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly presented in all material respects the
consolidated financial position of Borrower and its subsidiaries as of the dates
thereof and the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments that in the aggregate are not material and to any
other adjustment described therein).
ARTICLE 3
CONDITIONS PRECEDENT
3.1 Delivery of Loan Documents. All of the Loan Documents requested by
Lender have been fully executed and the original executed documents delivered to
Lender.
3.2 Opinion of Counsel. Lender shall have received an opinion from
Borrower's counsel as to all matters set forth above in Sections 2.1, 2.2 except
as to enforceability and 2.3, in a form satisfactory to Lender.
3.3 Recording and Filing of Loan Documents. All of the Loan Documents
that require filing or recording have been submitted for filing so that all of
the liens and security
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interests granted to Lender in connection with the Loan will be properly created
and perfected as described herein.
3.4 Conditions Precedent Not Met. Notwithstanding anything to the
contrary contained in the Loan Documents, Lender will not be obligated to
advance any funds, including the Initial Loan, to Borrower until the
requirements under Sections 3.1 through 3.3 have been satisfied.
3.5 Other Conditions. The Lender's obligation to make a Loan or Loans
under this Agreement as requested by Borrower is subject to the conditions
precedent that (i) no Event of Default, as set forth in this Agreement or in any
other Loan Document, has occurred, (ii) there is no event which, with notice or
lapse of time or both, would become such an Event of Default, shall have
occurred, (iii) the representations and warranties of Borrower herein expressed
shall be true on and as of the date of making of each Loan with the same force
and effect as if made on and as of such date and upon request of Lender,
Borrower shall so certify to Lender; and (iv) there are no actions, suits or
proceedings pending or to Borrower's knowledge and warranties threatened against
or affecting Borrower which if adversely determined would impair the ability of
Borrower to pay the Loan or other previously granted Loans or otherwise perform
obligations owing to Lender under this Agreement and for any of the Loans.
ARTICLE 4
COVENANTS OF BORROWER
Borrower agrees and covenants with Lender as follows:
4.1 Further Documentation. Upon Lender's written request and at
Borrower's sole expense, Borrower will promptly and duly execute and deliver
such further instruments and documents and take such further action as Lender
may reasonably request for the purpose of obtaining, giving notice of,
protecting, preserving and perfecting the security interests granted under this
Agreement, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code (the "CODE") in effect
in any jurisdiction with respect to the security interests created hereby, the
recording of the security interests granted hereunder in any intellectual
property with the appropriate governmental or other authorities in any
jurisdiction. Borrower hereby authorizes Lender to file for record each
financing statement it deems necessary in each jurisdiction in order to perfect
the security interest granted to Lender in the Loan Documents. Borrow agrees
that, upon request from Lender, Borrower will deliver to Lender such other
evidence of Borrower's good standing and authority and a copy of an original
certificate of resolutions of Borrower acceptable to Lender.
4.2 Maintenance of Records. Borrower will keep and maintain records of
the Collateral. For Lender's further security, Lender will have a security
interest in all of the books and records of Borrower pertaining to the
Collateral.
4.3 Limitation on Dispositions of Collateral. Borrower will use all
commercially reasonable efforts to preserve the Collateral without material
impairment while conducting its business in the ordinary course in a manner that
is consistent with Borrower's past business
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practices. Borrower will not, through any license, encumbrance, assignment,
transfer or disposition of any of the Collateral, any creation of obligations of
Borrower, or any other action, (i) avoid or seek to avoid the observation or
performance of any of the terms to be observed or performed by Borrower under
any Loan Document, (ii) materially impair the benefit of any Loan Document or
the Collateral to Lender, or (iii) materially and adversely affect Lender's
ability to operate, or obtain the financial or economic benefit of, the
Collateral in accordance with the terms of the Loan Documents. Borrower will at
all times in good faith take, and assist in taking, all such action as may be
necessary or appropriate to protect Lender's rights under the Loan Documents
from impairment and to preserve for Lender's benefit the value of the
Collateral.
4.4 Payment of Taxes and Assessments. Borrower will pay prior to
delinquency all taxes and assessments assessed against, levied upon or placed
against the Collateral.
4.5 Insurance. Borrower shall maintain insurance with respect to the
Collateral and its business in accordance with the insurance standards and
practices adhered to generally by owners of like collateral. All insurance
policies shall be with companies reasonably acceptable to Lender, shall contain
loss payable clauses in favor of Lender (or name Lender as the loss payee), and
shall provide that coverage cannot be canceled, modified, or diminished in any
manner without at least thirty (30) days' prior written notice to Lender.
Trustor shall provide evidence reasonably satisfactory to Lender that such
insurance has been obtained and remains in place.
4.6 Financial Statements. Borrower covenants that it shall provide
Lender all reports, proxy statements, forms and other documents filed with the
Commission within three (3) days of their filing with the Commission and with
such other financial statements and reports as Lender may reasonably request,
and that such statements and reports shall be prepared in good faith, and shall
fully and fairly represent Borrower's financial condition and the results of its
operations for the period or periods covered. As to all financial statements and
reports which Borrower has furnished or may in the future furnish to Lender,
Borrower acknowledges and agrees that such annual financial statements shall be
audited and that it has a contractual obligation to ensure that such statements
and reports are accurate and complete. If any financial statements and reports
are not timely provided to Lender, and Lender determines to notify Borrower, in
writing, that the same have not been timely provided, then Borrower shall have
thirty (30) days from the date of Lender's written notice to deliver the
delinquent financial statements or reports to Lender. Nothing in this Section
shall be construed to require that Lender give Borrower the written notice and
the additional thirty (30) day grace period to provide delinquent financial
reports as described above. Nothing in this Section shall be construed to alter,
impair or infringe upon Lender's right to declare an Event of Default as
provided in this Agreement or to alter or extend the time limits for cure of a
non-monetary default as provided in this Agreement.
4.7 Tax Returns. Borrower shall (1) file all applicable federal, state,
and local tax returns or other statements required to be filed in connection
with its business, including those for income taxes, sales taxes, property
taxes, payroll taxes, payroll withholding amounts, FICA contributions, and
similar items; (2) maintain appropriate reserves for the accrual of the same;
and (3) pay when due all such taxes, or sums or assessments made in connection
therewith. Provided, however, that (until distraint, foreclosure, sale, or
similar proceedings have been
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commenced) nothing herein will require Borrower to pay any sum or assessment,
the validity of which is being contested in good faith by proceedings diligently
pursued and as to which adequate reserves have been made.
4.8 Negative Covenants. Notwithstanding anything herein to the contrary,
and as long as amounts under the Note, or the obligation of Lender to advance
amounts under this Agreement remain outstanding, Borrower agrees not to do any
of the following without Lender's prior written consent:
a. Repurchase Capital Stock. Repurchase any shares of capital
stock of Borrower other than from former employees of Borrower or a subsidiary
of Borrower under terms approved by the Board.
b. Dividends and Distributions. Pay any distributions to
Borrower's stockholders.
c. Purchase or Sale of Assets. Purchase or sell any assets
outside the ordinary course of business that, in the aggregate, exceed a value
of $500,000.
d. Sale and Leaseback. Sell, transfer or otherwise dispose of any
real or personal property to any person and thereafter directly or indirectly
lease back the same or similar property, outside the ordinary course of business
that, in the aggregate, exceed a value of $100,000.
e. No Liens on Collateral. Create, incur or permit to exist or to
continue to exist, any lien, claim, security interest or encumbrance on or to
any of the Collateral, other than the interests granted to Lender under the Loan
Documents and liens, claims, security interests and encumbrances granted prior
to the Closing Date.
f. Additional Encumbrances. Create or incur or suffer to be
created or incurred any encumbrance, mortgage, pledge, or charge of any kind
upon any Collateral that, in the aggregate, exceed a value of $100,000.
g. Additional Debt or Guarantees. Create or incur or suffer to be
created or incurred any debt of any kind in an amount that exceeds an aggregate
amount of $100,000, except that Borrower may incur debt to acquire inventory in
the ordinary course of business.
h. No Change in Location, Name, etc. Move any Collateral (other
than as otherwise permitted in the Loan Documents) from their current location
or change Borrower's name, identity, structure or state of incorporation to such
an extent that any financing statement or other Loan Document filed by Lender
would become misleading or inaccurate.
i. Mergers. Merge or consolidate with or into any other
corporation, or other entity, or sell, lease, transfer or otherwise dispose of
all or substantially all of its assets, except in the ordinary course of
business.
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j. Investments. Make any loan or advance to any person, entity or
organization or purchase or otherwise acquire any capital stock, assets,
obligations or other securities or, make any capital contributions to, or
otherwise invest in or acquire any interest in any person, or participate as a
partner or joint venture with any other person entity or organization, except:
(1) direct obligations of the United States or any agency thereof with
maturities of one year or less form the date of acquisition; (2) commercial
paper of a domestic issuer rated at least "A- I" by Standard & Poor's
Corporation or "P- I" by Xxxxx'x Investors Service, Inc.: (3) certificates of
deposit with maturities of one year or less from the date of acquisition issued
by any commercial bank having capital and surplus in excess of Fifty Million
Dollars ($50,000,000); (4) stock, obligations, or securities received in
settlement of debts (created in the ordinary course of business) owing to the
Borrower.
k. Transactions with Affiliates. Enter into any transactions,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any Affiliate, or exchange of property or the
rendering of any service, with Affiliate, except in the ordinary course of and
pursuant to the reasonable requirements of the Borrower's business and upon fair
and reasonable requirements of the Borrower's business and upon fair and
reasonable terms no less favorable to the Borrower than would obtain in a
comparable arms length transaction with a Person which is not an Affiliate. For
purposes of this Agreement, "Affiliate" shall mean means any person or entity
directly or indirectly controlling, controlled by or under common control with
the Company.
l. Amendment to Organizational Documents. Amend or alter
Borrower's Articles of Incorporation or Bylaws.
m. Issuance of Stock. Issue or agree to issue any capital stock
of Borrower or instruments convertible into capital stock of Borrower, except
that Borrower may grant options and issue stock pursuant to Borrower's stock
option plan, and fulfill any debt obligations, warrants or convertible
instruments that are outstanding as of the date of this Agreement.
4.9 Required Notices. Borrower shall give Lender prompt written notice
of the following:
a. Any litigation or claims of any kind which might subject
Borrower to any liability in an aggregate amount in excess of $50,000, whether
covered by insurance or not, and any litigation involving any Collateral which
could reasonably be expected to have a Material Adverse Effect.
b. All complaints made and demand letters sent by any
governmental agency that could reasonably be expected to have a Material Adverse
Effect on the Borrower or the Collateral.
c. Any material default under any material contract to which
Borrower is a party or acceleration of any other material indebtedness of
Borrower.
d. Any event or conditions which constitute an Event of Default
or, with the passage of time or the giving of notice, or both, would constitute
an Event of Default.
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e. Any change that constitutes a Material Adverse Effect.
4.10 Reports. Borrower shall keep Lender fully informed as to the status
of Borrower's business by delivering to Lender, upon the written request of
Lender, copies of quarterly operating statements (disbursements, receipts,
inventory, sales, etc.), and any other reports regarding the Borrower's business
that Borrower has prepared or that Lender reasonably requests.
4.11 Expenses. All outside counsel legal fees and out of pocket expenses
of Lender incurred in connection with negotiating, documenting, processing,
consummating or servicing the Loan and the Loan Documents, not to exceed $5,000,
shall be paid by Borrower out of Loan proceeds and may be deducted therefrom by
Lender. Borrower agrees to pay all reasonable expenses, including reasonable
attorneys fees and other legal expenses, incurred by Lender in any bankruptcy
proceedings of any type involving Borrower, any Collateral or the Loan
Documents, including, without limitation, reasonable expenses incurred in
modifying or lifting the automatic stay, determining adequate protection, use of
cash collateral or relating to any plan of reorganization.
ARTICLE 5
EVENTS OF DEFAULT
5.1 Event of Default. The occurrence of any of the following events or
the existence of any of the following conditions shall constitute an event of
default ("EVENT OF DEFAULT") under this Agreement:
a. Default in Payment. If Borrower fails to make any payment due
and payable within ten (10) days of the due date thereof under the terms of the
Note, this Agreement or any other Loan Document.
b. Representations and Warranties. If any of the representations
and warranties made by Borrower shall be false or misleading in any material
respect when made.
c. Covenants. If Borrower shall be in material default under any
of the material terms, covenants, conditions, or obligations under any Loan
Document or any other agreement with the Lender for a non-monetary default and
such default is not cured within thirty (30) days written notice to Borrower.
d. Dissolution. If Borrower's business is suspended or terminated
or Borrower fails to continue to operate its business in the ordinary course.
e. Receiver. If a receiver, trustee, or custodian is appointed
for any part of the Collateral, or any part of the Collateral (as that term is
defined in the Security Agreement) is assigned for the benefit of creditors.
f. Impairment to Lien. If at any time any Loan Document creating
a lien on any of the Collateral may be impaired by any material lien,
encumbrance or other defect granted or created after the date of this Agreement.
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g. Bankruptcy. If a petition in bankruptcy is filed against
Borrower, and such petition is not dismissed within ninety (90) days of filing,
a petition in bankruptcy is filed by Borrower or a receiver, trustee or
custodian of any part of the Collateral is appointed; or if Borrower files a
petition for reorganization under any of the provisions of the Bankruptcy Act or
any law, State or Federal, or makes an assignment for the benefit of creditors
or is adjudged insolvent by any State or Federal Court of competent
jurisdiction.
h. Judgment or Attachment. If a final judgment is entered against
Borrower or any attachment be made for an amount in excess of $100,000 and such
judgment or attachment is not paid or otherwise fully satisfied within thirty
(30) days of the date it is entered.
i. Other Default. Lender otherwise in good xxxxx xxxxx itself to
be insecure, or the value of the Collateral to have significantly declined from
the date hereof, or the prospect of timely payment or performance to be
impaired, provided, however, Lender shall have given Borrower written notice of
the grounds thereof, and Borrower shall have failed to correct such matter or
given Lender other assurance satisfactory to Lender within thirty (30) days
thereof.
ARTICLE 6
REMEDIES
6.1 Termination and Acceleration; Remedies. Upon the occurrence of an
Event of Default, all obligations of Lender under this Agreement, and under the
other Loan Documents at the election of Lender, shall cease and terminate and
Lender may declare all amounts outstanding under the Note and other Loan
Documents immediately due and payable and may seek recovery for the Loan and
realize upon the Collateral and may take any action to which it is entitled
under the Loan Documents, at law or in equity. Upon the occurrence of an Event
of Default, Lender may declare the entire unpaid principal balance of the Note
thereon to be immediately due and payable without presentment, demand, protest,
or other notice of any kind. Lender may, in its sole discretion, suspend or
terminate any obligation it may have hereunder to make additional Loans.
Borrower agrees to indemnify, defend and hold harmless Lender from and against
any and all claims, expenses, losses, and liabilities incurred by Lender with
respect to the exercise of any of its rights or remedies, except such matters
arising from Lender's gross negligence or willful misconduct. To the extent
permitted by law, Borrower waives any rights to presentment, demand, protest, or
notice of any kind in connection with this Agreement and the Note. No failure or
delay on the part of Lender in exercising any right, power, or privilege
hereunder will preclude any other or further exercise thereof or the exercise of
any other right, power, or privilege.
6.2 Rights and Remedies Cumulative. All rights, remedies, and powers
conferred in this Agreement and the other Loan Documents are cumulative and not
exclusive of any other rights or remedies, and shall be in addition to every
other right, power, and remedy that Lender may have, whether specifically
granted in the Loan Documents, or existing at law, in equity, or by statute; and
any and all such rights and remedies may be exercised from time to time and as
often and in such order as Lender may deem expedient. Any waiver, forbearance or
delay by Lender in exercising any of its rights, remedies, and powers shall not
be deemed to be a waiver of such rights, remedies and powers and the exercise or
partial exercise of any right, remedy, or
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power, and shall not preclude the further exercise of such right, remedy, and
power and the same shall continue in full force and effect until specifically
waived by an instrument in writing executed by Lender.
6.3 Attorney-in-Fact. Upon the occurrence of an Event of Default,
Borrower hereby irrevocably constitutes and appoints Lender as Borrower's true
and lawful attorney-in-fact to execute, acknowledge and deliver any instruments
and to do and perform any act such as referred to herein in the name and on
behalf of Borrower. This power of attorney is irrevocable and is coupled with an
interest.
ARTICLE 7
MISCELLANEOUS
7.1 Non-Waiver. No advance of Loan proceeds under this Agreement shall
constitute a waiver of any of the conditions to be performed by Borrower and in
the event Borrower is unable to satisfy any such conditions Lender shall not be
precluded from declaring such failure to be an Event of Default.
7.2 Survival. All representations, warranties and covenants of Borrower
shall survive the making of a Loan and all Loans and the provisions of this
Agreement shall be binding upon Borrower, Borrower's successors and assigns and
inure to the benefit of Lender, Lender's successors and assigns.
7.3 Derivative Rights. Any obligation of Lender to make disbursements
under this Agreement is imposed solely and exclusively for the benefit of
Borrower and no other person, firm or corporation shall, under any
circumstances, be deemed to be a beneficiary of such condition, nor shall it
have any derivative claim or action against Lender.
7.4 Conflict. The Loan Documents shall be subject to all the terms,
covenants, conditions, obligations, stipulations and agreements contained in
this Agreement. In the event there is any conflict between the terms and
conditions of this Agreement and any other Loan Document, this Agreement shall
prevail.
7.5 Assignment. Lender may assign the Loan Documents, in whole or in
part, to any other person, firm or corporation provided that all provisions of
this Agreement shall continue to apply in conjunction with the other Loan
Documents. In the event of such assignment, it shall be deemed to have been made
in pursuance of this Agreement and not to be a modification of this Agreement,
and the disbursements and advances subsequently made shall be governed by the
Loan Documents. Borrower shall not assign this Agreement, or any interest of
Borrower in or to this Agreement, the Loan proceeds, or any of the Loan
Documents without the prior written consent of Lender. Any dissolution of
Borrower, whether by operation of law or otherwise, without the prior written
consent of Lender shall be assumed to be an assignment in violation of this
Section.
7.6 Notices. All notices shall be in writing and shall be deemed to have
been sufficiently given or served when personally delivered, deposited in the
United States mail, by
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registered or certified mail, or deposited with a reputable overnight mail
carrier which provides delivery of such mail to be traced, addressed as follows:
Lender: The Canopy Group, Inc.
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: President and CEO
With copies (that shall
not constitute notice)
to: The Canopy Group, Inc.
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Borrower: MTI Technologies Corporation
0000 X. Xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
With copies (that shall
not constitute notice)
to: Xxxxxxxx & Xxxxxxxx LLP
00000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxx
Such addresses may be changed by notice to the other party given in the same
manner provided in this Section.
7.7 Terms. Whenever used in this Agreement, the singular shall include
the plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
7.8 Invalidity. The invalidity of any one or more or any part of the
conditions, covenants, articles, sections, phrases or sentences of this
Agreement shall not affect the remaining portions of this Agreement.
7.9 Governing Law; Consent to Jurisdiction. This Agreement and all
matters relating to this Agreement shall be governed by and construed in
accordance with the internal laws (and not the law of conflicts) of the State of
Utah. Each of the parties submits to the jurisdiction of any state or federal
court sitting in Salt Lake County, Utah, in any action or proceeding arising out
of or relating in any way to this Agreement or any other matter arising between
the parties and agrees that all claims in respect of the action or proceeding
shall be heard and determined in any such court. Each party also agrees not to
bring any action or proceeding arising out of or relating to this Agreement or
any other matter arising between the parties in any other court. Each of the
parties waives any defense, including without limitation any defense of
inconvenient forum, to the maintenance of any action or proceeding so brought.
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7.10 No Partnership. Nothing contained in this Agreement or in any of
the other Loan Documents shall be construed as creating a joint venture or
partnership between Borrower and Lender. There shall be no sharing of losses,
costs and expenses between Borrower and Lender, and Lender shall have no right
of control or supervision except as it may exercise its rights and remedies
provided in the Loan Documents.
7.11 Attorneys' Fees. Upon the occurrence of an Event of Default, Lender
may employ an attorney or attorneys to protect Lender's rights under this
Agreement, and Borrower shall pay Lender reasonable attorneys' fees and costs
actually incurred by Lender, whether or not action is actually commenced against
Borrower by reason of such breach. Borrower shall also pay to Lender any
reasonable attorneys fees and costs incurred by Lender with respect to any
insolvency or bankruptcy proceeding or other action involving Borrower. If
Lender exercises the power of sale contained in any Loan Document or initiates
foreclosure proceedings, Borrower shall pay all costs reasonably incurred and
reasonable attorney fees and costs as provided in the Loan Documents.
7.12 Waiver of Claims. Borrower represents as of the Closing Date that
Borrower has no defenses to or setoffs against any indebtedness or other
obligations owing to Lender for any reason whatsoever.
7.13 Severability of Invalid Provisions. With respect to this Agreement
and all other Loan Documents, any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction
only, be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of this Agreement, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7.14 Integrated Agreement and Subsequent Amendment. The Loan Documents,
and the other agreements, documents, obligations, and transactions contemplated
by this Agreement constitute the entire agreement between Lender and Borrower
with respect to the subject matter of these agreements, and may not be altered
or amended except by written agreement signed by Lender and Borrower. All prior
and contemporaneous agreements, arrangements and understandings between the
parties to this Agreement as to the subject matter of this Agreement, are,
except as otherwise expressly provided in this Agreement, rescinded.
7.15 Confidentiality. The Lender acknowledges and understands, and will
advise its directors, employees, agents or other representatives who are
informed of the matters that are the subject of this Agreement, of the
restrictions imposed by the United States securities laws on the purchase or
sale of securities by any person who has received material, non-public
information from the issuer of such securities and on the communication of such
information to any other person when it is reasonably foreseeable that such
other person is likely to purchase or sell such securities in reliance upon such
information. In addition, the Lender agrees to hold in confidence, and will not
use or disclose to others, any confidential information received by the Lender
from the Borrower, including but not limited to nonpublic financial or other
information, for the purposes of buying or selling any securities of the
Borrower in violation of the restrictions imposed by the United States
securities laws on the purchase or sale of securities.
12
7.16 Authorized Agents. The following are the names, titles and specimen
signatures of those persons entitled to request Loan advances under this
Agreement:
Name Title Signature
---- ----- ---------
Xxxxxx Xxxxxxxx Chief Executive Officer /s/ Xxxxxx Xxxxxxxx
----------------------
Xxxx X. Xxxxxxx Chief Financial Officer /s/ Xxxx X. Xxxxxxx
----------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
BORROWER: LENDER:
MTI TECHNOLOGY CORPORATION THE CANOPY GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxx
----------------------------- ----------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxx Xxxxx
--------------------------- --------------------------------
Title: Chief Financial Officer Title: President
-------------------------- -------------------------------
[SIGNATURE PAGE TO LOAN AGREEMENT BETWEEN
MTI TECHNOLOGY CORPORATION AND THE CANOPY GROUP, INC.]
13
EXHIBIT A
FORM OF NOTE
PROMISSORY NOTE
$7,000,000 June 27, 0000
XXXXXXX, XXXXXXXXXX
FOR VALUE RECEIVED, MTI TECHNOLOGY CORPORATION, a Delaware corporation
("COMPANY"), hereby promises to pay to the order of THE CANOPY GROUP, INC.
("LENDER") the principal sum of Seven Million and no/100 Dollars
($7,000,000.00), or such other greater or lesser amount as may be outstanding,
together with accrued interest thereon as provided below, on or before the
Maturity Date (as that term is defined in Section 1 below) at the offices of
Lender, or at such other address as Lender may specify in writing. This Note is
issued in connection with that certain Loan Agreement by and between Company and
Lender dated as of an even date herewith (the "Loan Agreement")
1. "Maturity Date" shall mean June 30, 2003 for all advances on this
Note.
2. Interest shall accrue on the unpaid principal amount of this Note
at the rate of nine percent (9%) per annum, computed on the basis
of the actual number of days elapsed and a year of 365 days and
shall be payable to Lender within three days of the end of each
calendar quarter; provided, however, that in the event of an
Event of Default pursuant to Section 8, below, interest shall
accrue at a rate of twelve percent (12%) per annum or, if such
rate is prohibited by applicable law, the highest interest rate
permitted by applicable law.
3. Company's obligations under this Note are secured by the
collateral described in that certain Security Agreement between
Company and Lender dated as of the date hereof (the "Security
Agreement" and, together with this Note and the Loan Agreement
the "Loan Documents"). A UCC Financing Statement will be filed to
perfect the security interest granted therein.
4. Company may prepay this Note at any time, in whole or in part.
Acceptance by Lender of any partial payment shall not be deemed
to constitute a waiver by Lender to require prompt payment of the
Note on the Maturity Date, or as otherwise provided herein. Any
partial payment will be applied (a) first, to the payment of
accrued interest, and (b) second, to the extent that the amount
of such prepayment exceeds the amount of all such accrued
interest, to the payment of principal.
5. This Note evidences a revolving line of credit. Advances on the
revolving line of credit may be requested by the authorized
agents as provided in the Loan Agreement. Lender may, but need
not, require that all oral requests be confirmed in writing. Upon
the Company's request for an advance pursuant to the conditions
set forth in the Loan Agreement, Lender shall deliver such
requested amount to Borrower. The Company agrees to be liable for
all sums advanced in accordance with the instructions of its
officers or authorized persons. The unpaid principal balance
owing on this Note at any time may be evidenced by Lender's
records for
the Loans, endorsements on this Note, or by a Schedule attached
to this Note. Notwithstanding anything to contrary contained in
this Note, in no event shall Lender be obligated to advance and
have outstanding at any one time more than a total amount of
principal exceeding $7,000,000. Notwithstanding anything to the
contrary contained in this Note or the Loan Agreement, Lender has
no obligation to make advances under this Note if the Company is
in default under any of the Loan Documents.
6. In the event of any action to enforce payment of this Note, in
addition to all other relief, the prevailing party in such action
shall be entitled to reasonable attorneys' fees and expenses.
7. Company hereby waives presentment, protest and demand, notice of
protest, demand, nonpayment or dishonor.
8. The occurrence of any of the following conditions shall
constitute an event of default ("Event of Default") under this
Note:
a. Default in Payment. If Company fails to make any
payment due and payable within ten (10) days of the due date
under the terms of the Loan Documents.
b. Loan Documents. If Company shall be in material default
as provided in the Loan Agreement.
c. Bankruptcy. If a petition in bankruptcy is filed
against Company, and such petition is not dismissed within sixty
(60) days of filing, a petition in bankruptcy is filed by Company
or a receiver, trustee or custodian of any part of the Collateral
is appointed; or if Company files a petition for reorganization
under any of the provisions of the Bankruptcy Act or any law,
State or Federal, or makes an assignment for the benefit of
creditors or is adjudged insolvent by any State or Federal Court
of competent jurisdiction.
In the event of an Event of Default under this Section 8, Lender
shall, in addition to any other remedies allowed by law, by
written notice to Company, be entitled to accelerate all unpaid
principal and interest under this Note and to exercise all
remedies provided in the Loan Agreement and/or available at law
and in equity. Waiver of any Event of Default will not constitute
a waiver of any other or subsequent Event of Default.
9. This Note is to be governed by and construed in accordance with
the laws of the State of Utah.
10. As of the date of this Note, Company hereby represents and
warrants to Lender that Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate
16
power and authority to carry on its business and to issue this
Note and the Security Agreement.
11. Company shall pay to Lender the reasonably attorneys' fees and
costs incurred by Lender in connection to the issuance of this
Note and the Security Agreement and the advancement of funds
hereunder.
IN WITNESS WHEREOF, this Note is hereby executed as of the date first
set forth above:
MTI TECHNOLOGY CORPORATION
By:_____________________________
Name:
Title:
17
EXHIBIT B
FORM OF MTI SECURITY AGREEMENT
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Security Agreement") is entered into as of
June 27, 2002, by and between MTI Technologies Corporation, a Delaware
corporation ("Company"), and The Canopy Group, Inc., a Utah corporation
("Secured Party")
RECITALS
A. Company has borrowed funds from Secured Party pursuant to the terms
of a Loan Agreement (the "Loan Agreement") and evidenced by a Promissory Note
(as amended, modified or otherwise supplemented from time to time, the "Note"),
both as of even date herewith.
B. As security for its repayment obligations under the Note, Company has
agreed to grant Secured Party a security interest in the Collateral described
below.
NOW, THEREFORE, to that end and in consideration of the premises,
covenants and agreements set forth below, and the mutual benefits to be derived
from this Security Agreement, and other good and valuable consideration, the
parties hereto agree as follows:
1. SECURITY INTEREST. To secure the "Obligations" (as defined below),
Company hereby transfers, conveys, assigns, and grants to Secured Party a
security interest in all right, title and interest of Company in and to all of
Company's assets now owned or hereafter acquired and all proceeds, and products
therefrom and improvements and accessions thereto, including without limiting
the generality of the foregoing, the following items (hereinafter, collectively,
the "Collateral"):
(a) GENERAL INTANGIBLES. All of Company's General Intangibles,
now existing or hereafter arising or acquired, together with the proceeds
therefrom. As used herein, the term "General Intangibles" means any "general
intangibles," as such term is defined in the UCC, including all personal
property (including things in action) other than goods, accounts, chattel paper,
documents, instruments, and money, and includes, but is not limited to, business
records, deposit accounts, inventions, intellectual property, designs, patents,
patent applications, trademarks, trademark applications, trademark
registrations, service marks, service xxxx applications, service xxxx
registrations, trade names, goodwill, technology, know-how, confidential
information, trade secrets, customer lists, supplier lists, copyrights,
copyright applications, copyright registrations, licenses, permits, franchises,
tax refund claims, and any letters of credit, guarantee claims, security
interests, or other security held by Company to secure any "Accounts" (as
hereinafter defined).
(b) ACCOUNTS (INCLUDING ACCOUNTS RECEIVABLE). All of Company's
Accounts, whether now existing or hereafter arising or acquired, together with
the proceeds therefrom. As used herein, the term "Accounts" means any "account"
and any "right to payment" as such terms are defined in the UCC, and any right
of Company to receive payment from another person or entity, including payment
for goods sold or leased, or for services rendered, no matter how evidenced or
arising, and regardless of whether yet earned by performance. It includes, but
is not limited to, accounts, accounts receivable, contract rights, contracts
receivable, purchase orders, notes, drafts, acceptances, all rights to payment
earned or
unearned under any contract and all rights incident to the contract, and other
forms of obligations and receivables.
(c) INVENTORY. All of Company's Inventory, whether now owned or
hereafter acquired, together with the products and proceeds therefrom and all
packaging, manuals, and instructions related thereto. As used herein, the term
"Inventory" means any "inventory," as such term is defined in the UCC, including
all goods, merchandise, and personal property held for sale or leased or
furnished or to be furnished under contracts of service, and all raw materials,
work in process, or materials used or consumed in Company's business, wherever
located and whether in the possession of Company, Company a warehouseman, a
bailee, or any other person.
(d) EQUIPMENT. All of Company's Equipment, now owned or hereafter
acquired, together with the products and proceeds therefrom, and all substitutes
and replacements therefor. As used herein, the term "Equipment" means any
"equipment" as such term is defined in the UCC, and includes all equipment,
machinery, tools, office equipment, supplies, furnishings, furniture, or other
items used or useful, directly or indirectly, in Company's business, all
accessions, attachments, and other additions thereto, all parts used in
connection therewith, all packaging, manuals, and instructions related thereto,
and all leasehold or equitable interests therein.
(e) GOODS. All of Company's Goods (other than Inventory and
Equipment), now owned or hereafter acquired, together with the products and
proceeds therefrom, and all substitutes and replacements therefor. "Goods" means
any "goods," as such term is defined in the UCC.
(f) FIXTURES. All of Company's interest in and to all fixtures
and furnishings, now owned or hereafter acquired, together with the products and
proceeds therefrom, all substitutes and replacements therefor, all accessories,
attachments, and other additions thereto, all tools, parts, and supplies used in
connection therewith, and all packaging, manuals, and instructions related
thereto, located on or attached to Company's business premises.
(g) CHATTEL PAPER, DOCUMENTS AND INSTRUMENTS. All of Company's
right, title, and interest in any chattel paper, deposit accounts, investment
property, documents, or instruments, as such terms are defined in the UCC, now
owned or hereafter acquired or arising, or now or hereafter coming into the
possession, control, or custody of either Trinity, Company or Secured Party,
together with all proceeds therefrom.
(h) RECORDS. All of Company's computer programs, software,
hardware, source codes and data processing information, all written documents,
books, invoices, ledger sheets, financial information and statements, and all
other writings concerning the Collateral.
2. OBLIGATION. The security interest granted hereunder is given as
security for the payment and performance of all indebtedness and obligations
owed by Company and Company to Secured Party, whether now existing or hereafter
incurred, under or in connection with or evidenced by the Notes, the Loan
Agreement, and/or this Security Agreement, together with all extensions,
modifications, or renewals of any of the foregoing, including, without
limitation, all
20
unpaid principal of the Notes, all interest accrued thereon, all fees and all
other amounts payable by Company to Secured Party thereunder or in connection
therewith (hereinafter referred to, collectively, as the "Obligations").
3. PROCEEDS; UCC TERMS. As used in this Security Agreement, the term
"proceeds" means all products of the Collateral and all additions and accessions
to, replacements of, insurance or condemnation proceeds of, and documents
covering any of the Collateral, all property received wholly or partly in trade
or exchange for any of the Collateral, all leases of any of the Collateral, and
all rents, revenues, issues, profits, and proceeds arising from the sale, lease,
license, encumbrance, collection, or any other temporary or permanent
disposition, of any of the Collateral or any interest therein. As used in this
Agreement, "UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of Utah; provided, that in the event that, by
reason of mandatory provisions of law, any or all of the attachment, perfection
or priority of, or remedies with respect to, the security interests of Secured
Party on any Collateral is governed by the Uniform Commercial Code as enacted
and in effect in a jurisdiction other than the State of Utah, the term "UCC"
shall mean the Uniform Commercial Code as enacted and in effect in such other
jurisdiction solely for purposes of the provisions thereof relating to such
attachment, perfection, priority or remedies and for purposes of definitions
related to such provisions. Unless otherwise defined herein, terms that are
defined in the UCC and used herein shall have the meanings given to them in the
UCC.
4. TITLE; FILING. Company warrants that, (i) Company is the owner of the
Collateral free and clear of all liens, claims, and encumbrances except for
Permitted Liens ("Permitted Liens") set forth on Exhibit A or, (ii) in the case
of after-acquired Collateral, at the time Company acquires rights in the
Collateral, will be the owner thereof, free and clear of all liens, claims and
encumbrances except for Permitted Liens. Company covenants that so long as any
portion of the Obligation remains unpaid, Company will not permit to be filed or
file a financing statement or security agreement covering the Collateral to
anyone other than Secured Party, except with respect to Permitted Liens or as
unanimously approved by Company's board of directors. Company authorizes Secured
Party to file one or more financing statements or supplements thereto or other
instruments as Secured Party may from time to time require to comply with the
Uniform Commercial Code or other applicable law to preserve, protect and enforce
the security interest of Secured Party and to pay all costs of filing such
statements or instruments. Company will cooperate with Secured Party in
obtaining control (as defined in the UCC) of Collateral consisting of deposit
accounts, investment property, letter of credit rights and electronic chatter
paper, and will join with Secured Party in notifying any third party who has
possession of any Collateral of Secured Party's security interest therein and
obtaining an acknowledgment from the third party that it is holding the
Collateral for the benefit of Secured Party. Company will not create any chattel
paper without placing a legend on the chattel paper acceptable to Secured Party
indicating that Secured Party has a security interest in the chattel paper.
5. CARE OF COLLATERAL. Company will keep in effect all material
licenses, permits and franchises required by law or contract relating to
Company's business (if applicable), property, or the Collateral; maintain
insurance on the Collateral; keep the Collateral in good
21
repair and be responsible for any loss or damage to it; at all times warrant and
defend Company's ownership and possession of the Collateral; keep the Collateral
free from all liens, claims, encumbrances and security interests, other than
Permitted Liens; pay when due all taxes, license fees, and other charges upon
the Collateral or upon Company's business, property or the income therefrom; not
enter into any agreement (including any license or royalty agreement) pertaining
to any of its intellectual property, including patents, copyrights, trademarks,
service marks and trade names, except for non-exclusive licenses in the ordinary
course of business; immediately notify Secured Party if Company holds or
acquires (i) any commercial tort claims, (ii) any chattel paper, including any
interest in any electronic chattel paper, or (iii) any letter-of-credit rights;
and not misuse, conceal or in any way use or dispose of the Collateral
unlawfully or contrary to the provisions of this Security Agreement or of any
insurance coverage in any material respect. Loss of, damage to, or
uncollectability of the Collateral or any part thereof will not release Company
from any of their obligations hereunder.
6. DEFAULT. Each of the following shall constitute an event of default
("Event of Default") under this Security Agreement:
(a) DEFAULT IN LOAN AGREEMENT. An Event of Default occurs under
the Loan Agreement;
(b) REPRESENTATIONS AND WARRANTIES. If any of the representations
and warranties made by Company herein or by Company in the Notes shall be false
or misleading in any material respect when made;
(c) COVENANTS. If Company shall be in material default under any
of the terms, covenants, conditions, or obligations of this Security Agreement
and such default shall not have been cured within thirty (30) days of Company's
receipt of Secured Party's written notice of default;
(d) IMPAIRMENT TO LIEN. If at any time the Collateral may be
impaired by any lien, encumbrance or other defect other than the Permitted
Liens, and such lien, encumbrance or defect shall not have been removed within
thirty (30) days of Company's receipt of Secured Party's written notice thereof;
or
(e) INCONSISTENT TRANSFER. If at any time Company transfers an
interest in any of the Collateral contrary to the provisions hereof without the
prior written consent of Secured Party other than in the ordinary course of
business, and such interest in the Collateral shall not have been retransferred
or restored within thirty (30) days of Company's receipt of Secured Party's
written notice thereof.
Waiver of any Event of Default will not constitute a waiver of any other
or subsequent Event of Default.
7. REMEDIES. Upon the occurrence of an Event of Default and during the
continuance of any such default at any time thereafter, Secured Party shall, by
written notice to Company, be entitled to all rights and rights as provided in
the Loan Agreement, including but
22
not limited to, the remedies of a secured party under the UCC or other
applicable law. Secured Party shall give Debtor such notice of any private or
public sales as may be required by the UCC or other applicable law. Secured
Party shall have the right upon any such public sale, and, to the extent
permitted by law, upon any such private sale, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption, which
right or equity of redemption Debtor hereby releases, to the extent permitted by
law. For the purpose of enabling Secured Party to exercise its rights and
remedies under this Section 7 or otherwise in connection with this Agreement,
Company hereby grants to Secured Party an irrevocable, non-exclusive and
assignable license (exercisable without payment or royalty or other compensation
to Company) to use, license or sublicense any intellectual property Collateral
after an Event of Default.
8. COSTS AND EXPENSES. Company agrees to pay on demand all reasonable
costs and expenses of Secured Party, and the reasonable fees and disbursements
of counsel, in connection with the enforcement of any rights or interests under
this Agreement, including in any out-of-court workout or other refinancing or
restructuring or in any bankruptcy case, and the protection, sale or collection
of, or other realization upon, any of the Collateral, including all expenses of
taking, collecting, holding, sorting, handling, preparing for sale, selling, or
the like, and other such expenses of sales and collections of Collateral. Any
amounts payable to Secured Party under this Section 8 or otherwise under this
Agreement if not paid upon demand shall bear interest from the date of such
demand until paid in full, at the default rate of interest set forth in the
Notes.
9. GENERAL. The waiver by Secured Party of any breach of any provision
of this Security Agreement or warranty or representation herein set forth will
not be construed as a waiver of any subsequent breach. The failure to exercise
any right hereunder by Secured Party will not operate as a waiver of such right.
All rights and remedies herein provided are cumulative. Company may not assign
its rights or delegate its duties hereunder without Secured Party's written
consent. This Security Agreement may not be altered or amended except by a
writing signed by all the parties hereto. This Security Agreement shall be
governed by, and construed in accordance with, the law of the State of Utah,
except as required by mandatory provisions of law and to the extent the validity
or perfection of the security interests hereunder, or the remedies hereunder, in
respect of any Collateral are governed by the law of a jurisdiction other than
Utah. Any provision hereof found to be invalid will not invalidate the
remainder. All words used herein will be construed to be of such gender and
number as the circumstances require. This Security Agreement binds Company,
Company, its successors and assigns, and inures to the benefit of Secured Party
and their successors and assigns. This Security Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement.
10. NOTICES. All notices or other communications hereunder shall be in
writing (including by facsimile transmission or by email) and mailed, sent or
delivered to the respective parties hereto at or to their respective addresses,
facsimile numbers or email addresses set forth below their names on the
signature pages hereof, or at or to such other address, facsimile number or
email address as shall be designated by any party in a written notice to the
other parties hereto.
23
All such notices and other communications shall be deemed to be delivered when a
record (within the meaning of the UCC) has been (i) delivered by hand; (ii) sent
by mail upon the earlier of the date of receipt or five business days after
deposit in the mail, first class (or air mail as to communications sent to or
from the United States); (iii) sent by facsimile transmission; or (iv) sent by
email.
24
IN WITNESS WHEREOF, the parties have executed this Security Agreement as
of the date first written above.
COMPANY: MTI TECHNOLOGIES CORPORATION,
a Delaware corporation
By:_______________________________
Name:_____________________________
Its:______________________________
SECURED PARTY: THE CANOPY GROUP, INC.
a Utah corporation
By:_______________________________
Name:_____________________________
Its:______________________________
25
