EXHIBIT 10.30
SECOND WAIVER AND CONSENT
This Second Waiver and Consent is entered into as of this 28th day of
December, 2004, by and between The Canopy Group, Inc., a Utah corporation
("Canopy"), and MTI Technology Corporation, a Delaware corporation ("MTI")
(hereinafter collectively referred to as the "Parties"), with reference to the
following:
RECITALS
A. On June 27, 2002, the Parties entered into a Loan Agreement (the
"Canopy Loan Agreement") whereby Canopy granted credit and credit accommodations
for a revolving line of credit loan of up to Seven Million Dollars ($7,000,000)
for its working capital and other corporation purposes.
B. On June 27, 2002, MTI executed a promissory note (the "Note") in the
amount of Seven Million Dollars ($7,000,000) in favor of Canopy secured by the
collateral described in that certain Security Agreement between MTI and Canopy
dated as of the date thereof (the "Security Agreement"), perfected by the filing
of a UCC Financing Statement.
C. The collateral transferred, conveyed, assigned and granted to Canopy
pursuant to the terms of the Security Agreement includes a security interest in
MTI of all "general intangibles," as such term is defined in the UCC, including,
but not limited to, all patents and patent applications, and in all "accounts,"
as such term is defined in the UCC, including, but not limited to all of MTI's
accounts receivable.
D. On November 13, 2002, Comerica Bank-California and MTI entered into a
Loan and Security Agreement (the "Comerica Loan"). In connection with the
Comerica Loan, Canopy secured the line of credit for MTI by guaranteeing the
Comerica Loan and provided a Seven Million Dollar ($7,000,0000) letter of credit
from Canopy's bank, Bank of America, for the purpose of creating a security
interest under the Comerica Loan (the "Comerica Loan Security Interest").
E. On December 5, 2002, MTI paid off the outstanding balance of the Note;
the Security Agreement and the underlying security interest were continued for
the purpose of Canopy guaranteeing the Comerica Loan.
F. As of June 14, 2004, MTI and Canopy entered into that certain First
Amendment to Loan Agreement, which documented the arrangement described in
recital E above, terminating MTI's right to borrow cash under the Canopy Loan
Agreement.
G. Also as of June 14, 2004, Canopy and MTI entered into that certain
Waiver and Consent, pursuant to which Canopy consented to certain financing
activities of MTI and agreed to release its lien on certain of MTI's
intellectual property while retaining its lien on the remaining MTI assets as
collateral security for the obligations of MTI to Canopy described above.
H. MTI and Canopy now desire to agree that Canopy will release its lien on
the Released Collateral (defined below) in return for MTI's commitment to pay
down the Comerica Loan, with the understanding that the Comerica Loan Security
Interest will continue in place and that MTI shall be allowed to incur
indebtedness from third parties and pledge the Released Collateral as collateral
security therefor. The "Released Collateral" shall mean the property described
on Exhibit A hereto.
I. Canopy is MTI's major stockholder and beneficially holds approximately
42% of all outstanding common stock in MTI and agrees that it is in the best
interest of MTI and its stockholders that it waive and release any right, title
and interest it may have in and to the Released Collateral secured by the
Security Agreement.
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 the transactions described above and other good and valuable consideration,
the parties hereby agree as follows.
1. Canopy hereby waives and releases any rights, title and interest
that it may have in and to the Released Collateral (the "Security
Interest") and hereby authorizes MTI to cause partial UCC lien
releases for the Released Collateral in the forms attached hereto as
Exhibit B. Canopy will cooperate with MTI to provide to MTI any
other documents, instruments and agreements reasonably required to
confirm Canopy's release of the Released Collateral.
2. Canopy hereby approves and consents to MTI's incurrence of third
party indebtedness and the pledge of the Released Collateral as
collateral security therefor, and acknowledges that the consummation
of any such transaction or transactions will not constitute a breach
or default under any provision of the Canopy Loan Agreement or the
Security Agreement (the "Canopy Agreements").
3. MTI hereby represents, warrants, covenants and agrees that:
(a) MTI has $5,500,000.00 outstanding under the Comerica Loan as
of the date hereof;
(b) MTI shall not incur any additional indebtedness under the
Comerica Loan, and shall pay all accrued interest on the
outstanding balance as the same becomes due; and
(c) on each of February 15, 2005, May 15, 2005 and August 15,
2005, MTI shall make a principal repayment under the Comerica
Loan equal to $1,833,000.00.
4. Canopy hereby acknowledges that as of the date hereof, there has not
been any default by MTI under the Canopy Agreements, and that to the
extent that any action undertaken by MTI as of the date hereof may
be construed as a default under the Canopy Agreements because such
action was not evidenced by a formal waiver ("Past Actions"), Canopy
hereby waives any and all such Past Actions as a default under the
Canopy Agreements.
5. All other terms of the Canopy Agreements shall remain in full force
and effect except as to provisions expressly modified herein. This
Waiver and Consent (a) is not intended for and shall not be
construed for the benefit of any party not a signatory hereto; (b)
shall be binding upon, and inure to the benefit of the parties
hereto and their respective successors and assigns; and (c)
constitutes the entire agreement (including all representations and
promises made) among the parties with respect to the subject matter
hereof.
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6. This Waiver and Consent may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned has executed this Waiver and Consent
as of the date first set forth above.
THE CANOPY GROUP, INC., a Utah corporation
By: /s/ W. Mustard
----------------------------------------
Its: President and CEO
MTI TECHNOLOGY CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
----------------------------------------
Its: CFO
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Exhibit A
The term "Released Collateral" shall mean the following properties, assets and
rights of the MTI, wherever located, whether now owned or hereafter acquired or
arising:
(a) All of MTI's Accounts (defined below), and all of MTI's money,
contract rights, chattel paper, documents, deposit accounts, securities,
investment property and instruments with respect thereto, and all of MTI's
rights, remedies, security, liens and supporting obligations, in, to and in
respect of the foregoing, including, without limitation, rights of stoppage in
transit, replevin, repossession and reclamation and other rights and remedies of
an unpaid vendor, lienor or secured party, guaranties or other contracts of
suretyship with respect to the Accounts, deposits or other security for the
obligation of any account debtor, and credit and other insurance;
(b) To the extent not listed above, all of MTI's now owned or
hereafter acquired deposit accounts into which Accounts or the proceeds of
Accounts are deposited, including any lockbox account into which Accounts are
deposited;
(c) All of MTI's existing and future customer lists, claims, books,
records, ledger cards, contracts, licenses, formulae, and computer programs,
information, software, records, and data, as the same relate to the
documentation or enforcement of the Accounts;
(d) All of MTI's now owned and hereafter acquired inventory (as
defined in the UCC (defined below)) consisting of goods manufactured or provided
by Secured Party (defined below), including without limitation all finished
goods, goods in transit and all returned, reclaimed or repossessed goods, in
each case which consist of goods manufactured or provided by Secured Party, and
all warehouse receipts, documents of title and other documents representing any
of the foregoing (collectively, "Inventory"); and
(f) To the extent not listed above as original collateral, the
proceeds (including, without limitation, insurance proceeds) and products of all
of the foregoing, including all general intangibles relating to the Inventory
and the Accounts (including but not limited to payment intangibles,
letter-of-credit rights and commercial tort claims, and rights and claims under
insurance policies, in each case relating to the Inventory and the Accounts).
For purposes hereof:
(1) the term "Account" means any right to payment of a monetary
obligation, whether or not earned by performance, which relates to or arises
from goods and services manufactured or provided by the Secured Party, including
without limitation, goods sold or delivered to MTI, another MTI Company (defined
below), or customers of an MTI Company, or the installation by MTI or another
MTI Company of such goods. Without limiting the generality of the foregoing, the
term "Account" shall further include any "account" (as that term is defined in
the UCC now or hereafter in effect), any accounts receivable, any
"health-care-insurance receivables" (as that term is defined in the UCC now or
hereafter in effect), any "payment intangibles" (as that term is defined in the
UCC now or hereafter in effect) and all other rights to payment of every kind
and description, whether or not earned by performance, in each case which
relates to or arises from goods and services manufactured or provided by Secured
Party, including without limitation, goods sold or delivered to
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MTI another MTI Company, or customers of an MTI Company, or the installation by
an MTI Company of such goods.
(2) The term "Secured Party" means XXX Xxxxxxxxxxx, a Massachusetts
corporation having its principal place of business at 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000, as agent for itself, for VMWare, Inc. and for all of
XXX Xxxxxxxxxxx'x subsidiaries, divisions and affiliates.
(3) The term "MTI Company" means each of MTI and each subsidiary of
MTI, including without limitation the following MTI subsidiaries: MTI Technology
GMBH (Germany), MTI Technology Limited (Ireland), MTI France SA (France), MTI
Technology Ireland Ltd. (Ireland), MTI Technology BV (Holland), MTI Technology
Limited (Scotland), and MTI Technology BV - Irish Branch (Ireland).
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Exhibit B
UCC-3 Partial Releases
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SCHEDULE A TO UCC-3 PARTIAL RELEASE
Debtor: MTI Technology Corporation
00000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Secured Party: The Canopy Group, Inc.
000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxxxx, XX 00000
The Secured Party releases its security interest in the following
properties, assets and rights of the Debtor, whenever located, whether now owned
or hereafter acquired or arising:
(a) All of Debtor's Accounts (defined below), and all of Debtor's
money, contract rights, chattel paper, documents, deposit accounts, securities,
investment property and instruments with respect thereto, and all of Debtor's
rights, remedies, security, liens and supporting obligations, in, to and in
respect of the foregoing, including, without limitation, rights of stoppage in
transit, replevin, repossession and reclamation and other rights and remedies of
an unpaid vendor, lienor or secured party, guaranties or other contracts of
suretyship with respect to the Accounts, deposits or other security for the
obligation of any account debtor, and credit and other insurance;
(b) To the extent not listed above, all of Debtor's now owned or
hereafter acquired deposit accounts into which Accounts or the proceeds of
Accounts are deposited, including any lockbox account into which Accounts are
deposited;
(c) All of Debtor's existing and future customer lists, claims,
books, records, ledger cards, contracts, licenses, formulae, and computer
programs, information, software, records, and data, as the same relate to the
documentation or enforcement of the Accounts;
(d) All of Debtor's now owned and hereafter acquired inventory (as
defined in the UCC (defined below)) consisting of goods manufactured or provided
by EMC (defined below), including without limitation all finished goods, goods
in transit and all returned, reclaimed or repossessed goods, in each case which
consist of goods manufactured or provided by EMC, and all warehouse receipts,
documents of title and other documents representing any of the foregoing
(collectively, "Inventory"); and
(f) To the extent not listed above as original collateral, the
proceeds (including, without limitation, insurance proceeds) and products of all
of the foregoing, including all general intangibles relating to the Inventory
and the Accounts (including but not limited to payment intangibles,
letter-of-credit rights and commercial tort claims, and rights and claims under
insurance policies, in each case relating to the Inventory and the Accounts).
For purposes hereof:
(1) the term "Account" means any right to payment of a monetary
obligation, whether or not earned by performance, which relates to or arises
from goods and services manufactured or provided by EMC, including without
limitation, goods sold or delivered to the
Debtor, another MTI Company (defined below), or customers of an MTI Company, or
the installation by Debtor or another MTI Company of such goods. Without
limiting the generality of the foregoing, the term "Account" shall further
include any "account" (as that term is defined in the UCC now or hereafter in
effect), any accounts receivable, any "health-care-insurance receivables" (as
that term is defined in the UCC now or hereafter in effect), any "payment
intangibles" (as that term is defined in the UCC now or hereafter in effect),
and all other rights to payment of every kind and description, whether or not
earned by performance, in each case which relates to or arises from goods and
services manufactured or provided by EMC, including without limitation, goods
sold or delivered to the Debtor, another MTI Company, or customers of an MTI
Company, or the installation by an MTI Company of such goods.
The term "EMC" means XXX Xxxxxxxxxxx, a Massachusetts corporation having
its principal place of business at 000 Xxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000, as
agent for itself, for VMWare, Inc. and for all of XXX Xxxxxxxxxxx'x
subsidiaries, divisions and affiliates.
The term "MTI Company" means each of MTI Technology Corporation and each
subsidiary of MTI Technology Corporation, including without limitation the
following MTI subsidiaries: MTI Technology GMBH (Germany), MTI Technology
Limited (Ireland), MTI France SA (France), MTI Technology Ireland Ltd.
(Ireland), MTI Technology BV (Holland), MTI Technology Limited (Scotland), and
MTI Technology BV - Irish Branch (Ireland).
UCC FINANCING STATEMENT AMENDMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
A. NAME & PHONE OF CONTACT AT FILER [optional]
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
Xxxxxx X. Xxxxxx, Paralegal
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
1a. INITIAL FINANCING STATEMENT FILE # 1b. This FINANCING STATEMENT
21593866 6/28/02 AMENDMENT is to be filed [for
record] (or recorded) in the
[ ] REAL ESTATE RECORDS.
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2.[ ] TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to security interest(s) of
the Secured Party authorizing this Termination Statement.
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3.[ ] CONTINUATION: Effectiveness of the Financing Statement identified above with respect to security interest(s) of the Secured
Party authorizing this Continuation Statement is continued for the additional period provided by applicable law.
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4.[ ] ASSIGNMENT (full or partial): Give name of assignee in item 7a or 7b and address of assignee in item 7c; and also give name
of assignor in item 9.
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5.[ ] AMENDMENT (PARTY INFORMATION): This Amendment affects [ ] Debtor or [ ] Secured Party of record. Check only one of these two
boxes.
Also check one of the following three boxes and provide appropriate information in items 6 and/or 7.
[ ] CHANGE name and/or address: Give current [ ] DELETE name: Give record name [ ] ADD name: Complete item 7a or 7b, and also
record name in item 6a or 6b; also give to be deleted in item 6a or 6b. item 7c; also complete items 7d-7g
new name (if name change) in item 7a or (if applicable).
7b and/or new address (if address change)
in item 7c.
6. CURRENT RECORD INFORMATION:
6a. ORGANIZATION'S NAME
MTI TECHNOLOGY CORPORATION
OR
6b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
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7. CHANGED (NEW) OR ADDED INFORMATION:
7a. ORGANIZATION'S NAME
OR
7b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
7c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
7d. TAX ID #: SSN OR EIN ADD'L INFO RE 7e. TYPE OF ORGANIZATION 7f. JURISDICTION OF ORGANIZATION 7g. ORGANIZATIONAL ID #, if any
ORGANIZATION
DEBTOR [ ] NONE
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8. AMENDMENT (COLLATERAL CHANGE): check only one box.
Describe collateral [X] deleted or [ ] added, or give entire [ ] restated collateral description, or describe collateral
[ ] assigned.
See attached Schedule A of deleted collateral, which collateral Secured Party releases.
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9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT (name of assignor, if this is an Assignment). If this is an Amendment
authorized by a Debtor which adds collateral or adds the authorizing Debtor, or if this is a Termination authorized by a Debtor,
check here [] and enter name of DEBTOR authorizing this Amendment.
9a. ORGANIZATION'S NAME
THE CANOPY GROUP, INC.
OR
9b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
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10. OPTIONAL FILER REFERENCE DATA
DE-SOS #4869154
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FILING OFFICE COPY--NATIONAL UCC FINANCING STATEMENT AMENDMENT (FORM UCC3)(REV. 07/29/98)
UCC FINANCING STATEMENT AMENDMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
A. NAME & PHONE OF CONTACT AT FILER (optional)
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
Xxxxxx X. Xxxxxx, Parelegal
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
1a. INITIAL FINANCING STATEMENT FILE # 1b. This FINANCING STATEMENT
0000000000 3/18/02 AMENDMENT is to be filed (for
record) (or recorded) in the
[ ] REAL ESTATE RECORDS.
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2.[ ] TERMINATION: Effectiveness of the Financing Statement identified above is terminated with respect to security interest(s) of
the Secured Party authorizing this Termination Statement.
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3.[ ] CONTINUATION: Effectiveness of the Financing Statement identified above with respect to security interest(s) of the Secured
Party authorizing this Continuation Statement is continued for the additional period provided by applicable law.
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4.[ ] ASSIGNMENT (full or partial): Give name of assignee in item 7a or 7b and address of assignee in item 7c; and also give name
of assignor in item 9.
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5. AMENDMENT (PARTY INFORMATION): This Amendment affects [ ] Debtor or [ ] Secured Party of record. Check only one of these two
boxes.
Also check one of the following three boxes and provide appropriate information in items 6 and/or 7.
[ ] CHANGE name and/or address: Give current [ ] DELETE name: Give record name [ ] ADD name: Complete item 7a or 7b, and also
record name in item 6a or 6b; also give to be deleted in item 6a or 6b. item 7c; also complete items 7d-7g
new name (if name change) in item 7a or (if applicable).
7b and/or new address (if address change)
in item 7c.
6. CURRENT RECORD INFORMATION:
6a. ORGANIZATION'S NAME
MTI TECHNOLOGY CORPORATION
OR
6b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
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7. CHANGED (NEW) OR ADDED INFORMATION:
7a. ORGANIZATION'S NAME
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OR
7b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
7c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
7d. TAX ID #: SSN OR EIN ADD'L INFO RE 7e. TYPE OF ORGANIZATION 7f. JURISDICTION OF ORGANIZATION 7g. ORGANIZATIONAL ID #, if any
ORGANIZATION
DEBTOR [ ] NONE
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8. AMENDMENT (COLLATERAL CHANGE): check only one box.
Describe collateral [X] deleted or [ ] added, or give entire [ ] restated collateral description, or describe collateral
[ ] assigned.
See attached Schedule A of deleted collateral, which collateral Secured Party releases.
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9. NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT (name of assignor, if this is an Assignment). If this is an Amendment
authorized by a Debtor which adds collateral or adds the authorizing Debtor, or if this is a Termination authorized by a Debtor,
check here [ ] and enter name of DEBTOR authorizing this Amendment.
9a. ORGANIZATION'S NAME
THE CANOPY GROUP, INC.
OR
9b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
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10. OPTIONAL FILER REFERENCE DATA
CA-SOS #4889170
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FILING OFFICE COPY--NATIONAL UCC FINANCING STATEMENT AMENDMENT (FORM UCC3)(REV. 07/29/98)
