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EXHIBIT 10.21
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SILICON VALLEY BANK
AMENDMENT TO LOAN AGREEMENT
BORROWERS: EMULEX CORPORATION
0000 XXXXXX XXXXXXXXX
XXXXX XXXX, XXXXXXXXXX 00000
INTERCONNECTIONS, INC.
00000 XXXXXXX XXX, X.X.
XXXXXXX, XXXXXXXXXX 00000-0000
EMULEX EUROPE LIMITED
MULBERRY BUSINESS PARK, XXXXXXXXX XXXX
XXXXXXXXX, XXXXXXXXX
XXXXXX XXXXXXX XX00 0XX
DATED: SEPTEMBER 18, 1998
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrowers named above (jointly and severally referred
to as the "Borrower").
The Parties hereby agree to amend the Amended and Restated Loan and
Security Agreement between them, dated September 18, 1996 (as amended or
modified from time to time, the "Loan Agreement"), as follows, effective as of
the date hereof.
1. REVISED FINANCIAL COVENANTS. The section of the Schedule to Loan
Agreement entitled "Financial Covenants (Section 4.1)" is hereby amended to read
as follows:
"FINANCIAL COVENANTS
(Section 4.1): Borrower shall cause Parent to comply with all of the
following covenants on a consolidated basis. Compliance
shall be determined as of the end of each quarter, except as
otherwise specifically provided below:
QUICK ASSET RATIO: Parent shall maintain a ratio of "Quick Assets" to current
liabilities of not less than 1.00 to 1.
TANGIBLE NET WORTH: Parent shall maintain a tangible net worth of not less than
$13,000,000 prior to the December 27, 1998 quarter end. With
respect to the period beginning with the December 27, 1998
quarter end and ending with the March 28, 1999
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
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"FINANCIAL COVENANTS
quarter end, Parent shall maintain a tangible net worth of
not less than $14,300,000. With respect to the June 27, 1999
quarter end and for all periods thereafter, Parent shall
maintain a tangible net worth of not less than $17,000,000.
DEBT TO TANGIBLE Parent shall maintain a ratio of total liabilities to
NET WORTH RATIO: tangible net worth of not more than 1.50 to 1 prior to the
quarter ending December 27, 1998. With respect to the
quarter ending December 27, 1998 and thereafter, Parent
shall maintain a ratio of total liabilities to tangible net
worth of not more than 1.00 to 1.
PROFITABILITY Parent shall not incur a loss (after taxes) in any fiscal
quarter, with the understanding that any gain that the
Parent achieves arising from the sale of assets located in
Puerto Rico shall not be included in determining compliance
with the foregoing covenant.
DEFINITIONS: "Current assets," and "current liabilities" shall have the
meanings ascribed to them in accordance with generally
accepted accounting principles. "Tangible net worth" means
the excess of total assets over total liabilities,
determined in accordance with generally accepted accounting
principles, excluding however all assets which would be
classified as intangible assets under generally accepted
accounting principles, including without limitation
goodwill, licenses, patents, trademarks, trade names,
copyrights, capitalized software and organizational costs,
licenses and franchises. "Quick Assets" means cash on hand
or on deposit in banks, readily marketable securities issued
by the United States, readily marketable commercial paper
rated "A-1" by Standard & Poor's Corporation (or a similar
rating by a similar rating organization), cash equivalents,
certificates of deposit and banker's acceptances, and
accounts receivable (net of allowance for doubtful
accounts).
DEFERRED REVENUES: For purposes of the above quick asset ratio, deferred
revenues shall not be counted as current liabilities. For
purposes of the above debt to tangible net worth ratio,
deferred revenues shall not be counted in determining total
liabilities but shall be counted in determining tangible net
worth for purposes of such ratio. For all other purposes
deferred revenues shall be counted as liabilities in
accordance with generally accepted accounting principles.
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
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"FINANCIAL COVENANTS
SUBORDINATED DEBT: "Liabilities" for purposes of the foregoing covenants do not
include indebtedness which is subordinated to the
indebtedness to Silicon under a subordination agreement in
form specified by Silicon or by language in the instrument
evidencing the indebtedness which is acceptable to Silicon."
2. REVISED MATURITY DATE. The Maturity Date as set forth in section 5.1
of the Schedule to Loan Agreement is hereby amended to be "SEPTEMBER 17, 1999".
3. FEE. Borrower shall pay to Silicon a fee in the amount of $50,000 in
connection with this Amendment, which shall be in addition to all interest and
all other amounts payable hereunder and which shall not be refundable.
4. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the 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 the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
BORROWER: SILICON:
EMULEX CORPORATION SILICON VALLEY BANK
BY /s/ XXXX X. XXXXXX BY /s/ XXXXX XXXXXXX
PRESIDENT OR VICE PRESIDENT TITLE: VICE PRESIDENT
BY /s/ XXXXXXX X. XXXXXXXXXX
SECRETARY OR ASS'T SECRETARY
BORROWER: BORROWER:
INTERCONNECTIONS, INC. EMULEX EUROPE LIMITED
BY /s/ XXXX X. XXXXXX BY /s/ XXXX X. XXXXXX
PRESIDENT OR VICE PRESIDENT PRESIDENT OR VICE PRESIDENT
BY /s/ XXXXXXX X. XXXXXXXXXX BY /s/ XXXXXXX X. XXXXXXXXXX
SECRETARY OR ASS'T SECRETARY SECRETARY OR ASS'T SECRETARY
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
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GUARANTORS' CONSENT
The undersigned, guarantors, acknowledge that their consent to the foregoing
Amendment is not required, but the undersigned nevertheless do hereby consent to
the foregoing Amendment and to the documents and agreements referred to therein
and to all future modifications and amendments thereto, and to any and all other
present and future documents and agreements between or among the foregoing
parties. Nothing herein shall in any way limit any of the terms or provisions of
the Continuing Guaranty executed by the undersigned in favor of Silicon, which
are hereby ratified and affirmed and shall continue in full force and effect.
Guarantor Signature: Emulex Corporation, a Delaware corporation
By /s/ Xxxx X. Xxxxxx
Title: President
Guarantor Signature: Emulex Caribe, Inc.
By /s/ Xxxx X. Xxxxxx
Title: President
Guarantor Signature: InterConnections, Inc., a California corporation
(formerly known as Digital House, Ltd.)
By /s/ Xxxx X. Xxxxxx
Title: President
Guarantor Signature: Emulex Foreign Sales Corporation
By /s/ Xxxx X. Xxxxxx
Title: President
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SILICON VALLEY BANK
CERTIFIED RESOLUTION
BORROWER: EMULEX CORPORATION, A CORPORATION ORGANIZED UNDER
THE LAWS OF THE STATE OF CALIFORNIA
ADDRESS: 0000 XXXXXX XXXXXXXXX
XXXXX XXXX, XXXXXXXXXX 00000
DATE: SEPTEMBER 18, 1998
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.
FOREIGN EXCHANGE CONTRACTS
RESOLVED, that this corporation enter into contracts for the purchase and/or
sale of foreign exchange, on either a spot or forward basis, with Silicon,
from time to time, and in such amounts 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
documents and instruments evidencing the contracts of this corporation with
Silicon for the purchase or sale of foreign exchange, and said authorized
officers are authorized from time to time to execute renewals, extensions
and/or amendments of said documents and instruments and all other related
agreements.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all of such
obligations regarding the foreign exchange contracts 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, margin, securities, 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,
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SILICON VALLEY BANK CERTIFIED RESOLUTION
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security agreements and other hypothecation agreements, which said
instruments and the other documents and 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 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.
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
----- --------- -----------------
Xxxx X. Xxxxxx President x /s/ Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxx Secretary x /s/ Xxxxxxx X. Xxxxxxxxxx
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or Assistant
Secretary on the date set forth above.
/s/ Xxxxxxx X. Xxxxxxxxxx
Secretary or Assistant Secretary
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SILICON VALLEY BANK
CERTIFIED RESOLUTION
BORROWER: INTERCONNECTIONS, INC., A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF WASHINGTON
ADDRESS: 00000 XXXXXXX XXX, X.X.
XXXXXXX, XXXXXXXXXX 00000-0000
DATE: SEPTEMBER 18, 1998
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.
FOREIGN EXCHANGE CONTRACTS
RESOLVED, that this corporation enter into contracts for the purchase and/or
sale of foreign exchange, on either a spot or forward basis, with Silicon,
from time to time, and in such amounts 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
documents and instruments evidencing the contracts of this corporation with
Silicon for the purchase or sale of foreign exchange, and said authorized
officers are authorized from time to time to execute renewals, extensions
and/or amendments of said documents and instruments and all other related
agreements.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all of such
obligations regarding the foreign exchange contracts 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, margin, securities, any
and all real property, accounts, inventory, equipment, general intangibles,
instruments, documents, chattel paper, notes, money,
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SILICON VALLEY BANK CERTIFIED RESOLUTION
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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 other documents and
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 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.
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
----- --------- -----------------
Xxxx X. Xxxxxx President x /s/ Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxx Secretary x /s/ Xxxxxxx X. Xxxxxxxxxx
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or
Assistant Secretary on the date set forth above.
/s/ Xxxxxxx X. Xxxxxxxxxx
Secretary or Assistant Secretary
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SILICON VALLEY BANK CERTIFIED RESOLUTION
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SILICON VALLEY BANK
CERTIFIED RESOLUTION
BORROWER: EMULEX EUROPE LIMITED, A CORPORATION ORGANIZED
UNDER THE LAWS OF THE UNITED KINGDOM
ADDRESS: MULBERRY BUSINESS PARK, XXXXXXXXX XXXX
XXXXXXXXX, XXXXXXXXX
XXXXXX XXXXXXX XX00 0XX
DATE: SEPTEMBER 18, 1998
I, the undersigned, an authorized representative 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.
FOREIGN EXCHANGE CONTRACTS
RESOLVED, that this corporation enter into contracts for the purchase and/or
sale of foreign exchange, on either a spot or forward basis, with Silicon,
from time to time, and in such amounts 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
documents and instruments evidencing the contracts of this corporation with
Silicon for the purchase or sale of foreign exchange, and said authorized
officers are authorized from time to time to execute renewals, extensions
and/or amendments of said documents and instruments and all other related
agreements.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all of such
obligations regarding the foreign exchange contracts 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
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SILICON VALLEY BANK AMENDMENT TO LOAN AGREEMENT
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its benefit, any property of any and every kind, belonging to this
corporation, including, but not limited to, margin, securities, 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 other documents and 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 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.
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
----- --------- -----------------
Xxxx X. Xxxxxx Xxxxxxxx x /s/ Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxx Secretary x /s/ Xxxxxxx X. Xxxxxxxxxx
IN WITNESS WHEREOF, I have hereunto set my hand as such authorized
representative on the date set forth above.
/s/ Xxxxxxx X. Xxxxxxxxxx
Secretary or Assistant Secretary
