EXHIBIT 10.38
SILICON VALLEY BANK
AMENDMENT TO LOAN DOCUMENTS
Borrower: MTI Technology Corporation
Address: 0000 X. Xx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Date: October 29, 2001
THIS AMENDMENT TO LOAN DOCUMENTS is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"), with reference
to the various loan and security agreements and other documents, instruments
and agreements between them, including but not limited to that certain Loan and
Security Agreement dated July 22, 1998 (as amended, if at all, the "Existing
Loan Agreement"; the Existing Loan Agreement and all related documents,
instruments and agreements may be referred to collectively herein as the
"Existing Loan Documents").
Silicon and Borrower hereby acknowledges that (A) General Electric Capital
Corporation "GE Capital" used to be a "Lender" under Existing Loan Agreement
and other Existing Loan Documents, and that (B) as confirmed in that certain
letter agreement, dated as of October 23, 2001, among GE Capital, Silicon, and
Borrower, as of September 22, 2001: (i) GE Capital's commitments to extend
credit to Borrower under or in respect of the Existing Loan Agreement and other
Existing Loan Documents terminated irrevocably; (2) all of the "Obligations"
(as such term is defined in the Existing Loan Agreement) of Borrower owing to
GE Capital were paid or satisfied in full; and (3) GE Capital no longer is a
"Lender" under the Existing Loan Agreement and other Existing Loan Documents.
Silicon and Borrower agree to amend the Existing Loan Documents, as
follows:
1. PRESENT LOAN BALANCE. Borrower acknowledges that the present unpaid
principal balance of the Borrower's indebtedness, liabilities and obligations
to Silicon under the Existing Loan Documents, including interest accrued
through October 29, 2001 is $1,168,700.00 consisting of contingent obligations
under the Foreign Exchange Contract Sublimit and Cash Management Services and
Reserves (the "Present Loan Balance"), and that said sum is due and owing
without any defense, offset, or counterclaim of any kind.
2. AMENDMENT TO EXISTING LOAN DOCUMENTS. The Existing Loan Agreement is
hereby amended and restated in its entirety (and accordingly superceded) by,
and to read as set forth in, that certain Amended and Restated Loan and
Security Agreement dated as of even date herewith (the "New Loan Agreement").
The New Loan Agreement and all related documents, instruments, and agreements
are referred to collectively herein as the "New Loan Documents". The Borrower
acknowledges that the Present Loan Balance shall be the opening balance of the
Loans pursuant to the New Loan Documents as of the date hereof, and shall, for
all purposes, be deemed to be Loans made by Silicon to the Borrower pursuant to
the New Loan Agreement. Notwithstanding the execution of the New Loan
Documents, the following Existing Loan Documents (other than the Existing Loan
Agreement) shall continue in full force and effect
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Silicon Valley Bank Amendment to Loan Agreement
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(except to the extent that any provisions in such Existing Loan Documents are
in actual conflict with any provisions relative to the subject matter thereof
set forth in the New Loan Documents, in which case such New Loan Documents
provisions shall control and such conflicting Existing Loan Documents
provisions shall no loner be of any force or effect; it being expressly
acknowledged and agreed that the financial covenants set forth in Sections 6.9,
6.10, 6.11, 6.12, and 6.13 of the Existing Loan Agreement shall no longer be of
any force or effect and are expressly superceded by the financial covenant(s)
set forth in the New Loan Agreement) and shall continue to secure all present
and future indebtedness, liabilities, guarantees, and other Obligations (as
defined in the New Loan Documents); All standard documents of Silicon entered
into by the Borrower in connection with Letters of Credit and/or cash
management services and/or Foreign Exchange Contracts; all guaranties; all
security agreements, collateral assignments and mortgages, including but not
limited to those relating to patents, trademarks, copyrights and other
intellectual property; all lockbox agreements and/or blocked account
agreements; and all UCC-1 financing statements and other documents filed with
governmental offices which perfect liens or security interests in favor of
Silicon. In addition, solely in the event the Borrower has previously issued
any stock options, stock purchase warrants or securities to Silicon, the same
and all documents and agreements relating thereto shall also continue in full
force and effect.
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Silicon Valley Bank Amendment to Loan Agreement
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3. GENERAL PROVISIONS. This Amendment and the New Loan Documents 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.
BORROWER: SILICON:
MTI TECHNOLOGY CORPORATION SILICON VALLEY BANK
By /s/ [SIGNATURE ILLEGIBLE] By /s/ [SIGNATURE ILLEGIBLE]
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President or Vice President Title Vice President and
Regional Market Manager
By /s/ [SIGNATURE ILLEGIBLE]
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Secretary or Ass't Secretary
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