EXHIBIT 10.90
SECOND AMENDMENT
TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement (this "Amendment") is
entered into as of June 18, 2004, by and between COMERICA BANK, successor by
merger to COMERICA BANK-CALIFORNIA ("Bank") and MTI TECHNOLOGY CORPORATION
("Borrower").
RECITALS
Borrower and Bank are parties to that certain Loan and Security Agreement
dated as of November 13, 2002, as amended from time to time, including by that
certain First Amendment to Loan and Security Agreement dated June 30, 2003 (the
"Agreement"). The parties desire to amend the Agreement in accordance with the
terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. The definition of Revolving Maturity Date in Section 1.1 of the
Agreement is amended in its entirety to read as follows:
"Revolving Maturity Date" means May 31, 2005.
2. All references in the Loan Documents to Bank's address at 0000 X. Xx
Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxxxxx, XX 00000, shall mean and refer to 0000
Xxxxxxxxx Xxx., Xxxxx 0000, Xx Xxxxxxx, XX 00000.
3. Section 12 of the Agreement as in effect prior to the date of this
Amendment hereby is renumbered to read "Section 13," and references to Section
12 throughout the Agreement as in effect prior to the date of this Amendment
shall mean and refer to "Section 13." New Section 12 hereby is added to the
Agreement to read as follows:
"12. JUDICIAL REFERENCE.
If and only if the jury trial waiver set forth in Section 11
of this Agreement is invalidated for any reason by a court of law, statute
or otherwise, the reference provisions set forth below shall be
substituted in place of the jury trial waiver. So long as the jury trial
waiver remains valid, the reference provisions set forth in this Section
shall be inapplicable.
12.1 Each controversy, dispute or claim (each, a "Claim")
between the parties arising out of or relating to this Agreement, any
security agreement executed by Borrower in favor of Bank, any note
executed by Borrower in favor of Bank or any other document, instrument or
agreement executed by Borrower with or in favor of Bank (collectively in
this Section, the "Loan Documents"), other than (i) all matters in
connection with nonjudicial foreclosure of security interests in real or
personal property; or (ii) the appointment of a receiver or the exercise
of other provisional remedies (any of which may be initiated pursuant to
applicable law) that are not settled in writing within fifteen (15) days
after the date on which a party subject to the Loan Documents gives
written notice to all other parties that a Claim exists (the "Claim Date")
shall be resolved by a reference proceeding in California in accordance
with the provisions of Section 638 et seq. of the California Code of Civil
Procedure, or their successor sections ("CCP"), which shall constitute the
exclusive remedy for the resolution of any Claim concerning the Loan
Documents, including whether such Claim is subject to the reference
proceeding. Except as set forth in this section, the parties waive the
right to initiate legal proceedings against each other concerning each
such Claim. Venue for these proceedings shall be in the Superior Court in
the County where the real property, if any, is located or in a County
where venue is otherwise appropriate under state law (the "Court"). By
mutual agreement, the parties shall select a retired Judge of the Court to
serve as referee, and if they cannot so agree within fifteen (15) days
after the Claim Date, the Presiding Judge of the Court (or his or her
representative) shall promptly select the referee. A request for
appointment of a referee may be heard on an ex parte or expedited basis.
The referee shall be appointed to sit as a temporary judge, with all the
powers for a
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temporary judge, as authorized by law, and upon selection should take and
subscribe to the oath of office as provided for in Rule 244 of the
California Rules of Court (or any subsequently enacted Rule). Each party
shall have one peremptory challenge pursuant to CCP Section 170.6. Upon
being selected, the referee shall (a) be requested to set the matter for a
status and trial-setting conference within fifteen (15) days after the
date of selection and (b) if practicable, try any and all issues of law or
fact and report a statement of decision upon them within ninety (90) days
of the date of selection. The referee will have power to expand or limit
the amount of discovery a party may employ. Any decision rendered by the
referee will be final, binding and conclusive, and judgment shall be
entered pursuant to CCP Section 644 in any court in the State of
California having jurisdiction. The parties shall complete all discovery
no later than fifteen (15) days before the first trial date established by
the referee. The referee may extend such period in the event of a party's
refusal to provide requested discovery for any reason whatsoever,
including, without limitation, legal objections raised to such discovery
or unavailability of a witness due to absence or illness. No party shall
be entitled to "priority" in conducting discovery. Either party may take
depositions upon seven (7) days written notice, and shall respond to
requests for production or inspection of documents within ten (10) days
after service. All disputes relating to discovery which cannot be resolved
by the parties shall be submitted to the referee whose decision shall be
final and binding upon the parties. Pending appointment of the referee as
provided herein, the Superior Court is empowered to issue temporary and/or
provisional remedies, as appropriate.
12.2 Except as expressly set forth herein, the referee shall
determine the manner in which the reference proceeding is conducted
including the time and place of all hearings, the order of presentation of
evidence, and all other questions that arise with respect to the course of
the reference proceeding. Except for trial, all proceedings and hearings
conducted before the referee shall be conducted without a court reporter
unless a party requests a court reporter. The party making such a request
shall have the obligation to arrange for and pay for the court reporter.
Subject to the referee's power to award costs to the prevailing party, the
parties shall equally bear the costs of the court reporter at the trial
and the referee's expenses.
12.3 The referee shall determine all issues in accordance
with existing California case and statutory law. California rules of
evidence applicable to proceedings at law will apply to the reference
proceeding. The referee shall be empowered to enter equitable as well as
legal relief, to provide all temporary and/or provisional remedies and to
enter equitable orders that shall be binding upon the parties. At the
close of the reference proceeding, the referee shall issue a single
judgment at disposing of all the claims of the parties that are the
subject of the reference. The parties reserve the right (i) to contest or
appeal from the final judgment or any appealable order or appealable
judgment entered by the referee and (ii) to obtain findings of fact,
conclusions of laws, a written statement of decision, and (iii) to move
for a new trial or a different judgment, which new trial, if granted,
shall be a reference proceeding under this provision.
12.4 If the enabling legislation which provides for
appointment of a referee is repealed (and no successor statute is
enacted), any dispute between the parties that would otherwise be
determined by the reference procedure herein described will be resolved
and determined by arbitration conducted by a retired judge of the Court,
in accordance with the California Arbitration Act Section 1280 through
Section 1294.2 of the CCP as amended from time to time. The limitations
with respect to discovery as set forth in this Section shall apply to any
such arbitration proceeding."
4. No course of dealing on the part of Bank or its officers, nor any
failure or delay in the exercise of any right by Bank, shall operate as a waiver
thereof, and any single or partial exercise of any such right shall not preclude
any later exercise of any such right. Bank's failure at any time to require
strict performance by a Borrower of any provision shall not affect any right of
Bank thereafter to demand strict compliance and performance. Any suspension or
waiver of a right must be in writing signed by an officer of Bank.
5. Unless otherwise defined, all initially capitalized terms in this
Amendment shall be as defined in the Agreement. The Agreement, as amended
hereby, shall be and remain in full force and effect in accordance with its
respective terms and hereby is ratified and confirmed in all respects. Except as
expressly set forth herein, the
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execution, delivery, and performance of this Amendment shall not operate as a
waiver of, or as an amendment of, any right, power, or remedy of Bank under the
Agreement, as in effect prior to the date hereof.
6. Borrower represents and warrants that the Representations and
Warranties contained in the Agreement are true and correct as of the date of
this Amendment, and that no Event of Default has occurred and is continuing.
7. As a condition to the effectiveness of this Amendment, Bank shall
have received, in form and substance satisfactory to Bank, the following:
(a) this Amendment, duly executed by Borrower;
(b) the Standby Letter of Credit, issued by Bank of America
for the benefit of Bank, in the minimum amount of the Revolving Line, shall be
amended or reissued to bear an expiry date of no earlier than June 30, 2005;
(c) a Certificate of the Secretary of Borrower with respect
to incumbency and resolutions authorizing the execution and delivery of this
Amendment;
(d) all reasonable Bank Expenses incurred through the date
of this Amendment; and
(e) such other documents, and completion of such other
matters; as Bank may reasonably deem necessary or appropriate,
8. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
first date above written.
MTI TECHNOLOGY CORPORATION
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Xxxx Xxxxxxxxx
Title: CFO
COMERICA BANK, successor by merger to
COMERICA BANK-CALIFORNIA
By: /s/ Xxxxx Xxxxxx
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Title: AVP
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CORPORATE RESOLUTIONS TO BORROW
BORROWER: MTI TECHNOLOGY CORPORATION
I, the undersigned Secretary or Assistant Secretary of MTI TECHNOLOGY
CORPORATION (the "Corporation"), HEREBY CERTIFY that the Corporation is
organized and existing under and by virtue of the laws of the State of Delaware.
I FURTHER CERTIFY that attached hereto as Attachments 1 and 2 are true and
complete copies of the Certificate of Incorporation, as amended, and the Bylaws
of the Corporation, each of which is in full force and effect on the date
hereof.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation
duly called and held, at which a quorum was present and voting, (or by other
duly authorized corporate action in lieu of a meeting), the following
resolutions were adopted.
BE IT RESOLVED, that any one (1) of the following named officers,
employees, or agents of this Corporation, whose actual signatures are shown
below:
NAMES POSITIONS ACTUAL SIGNATURES
------------- ----------- ----------------------------------
XXXX XXXXXXXX CFO /s/ Xxxx Xxxxxxxxx
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XXXX XXXXXXXX CONTROLLER /s/ Xxxx Xxxxxxxx
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XXXX XXXXXXX FINANCE MANAGER /s/ Xxxx Xxxxxxx
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XXXXXX X. XXXXXXXX, XX. CEO /s/ Xxxxxx X. Xxxxxxxx, Xx.
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acting for an on behalf of this Corporation and as its act and deed be, and they
hereby are, authorized and empowered:
BORROW MONEY. To borrow from time to time from Comerica Bank, successor by
merger to Comerica Bank-California ("Bank"), on such terms as may be agreed upon
between the officers, employees, or agents and Bank, such sum or sums of money
as in their judgment should be borrowed, without limitation, including such sums
as are specified in that certain Loan and Security Agreement dated as of
November 13, 2002, as amended from time to time, including by that certain First
Amendment to Loan and Security Agreement dated as of June 30, 2003 and that
certain Second Amendment to Loan and Security Agreement dated as of June 18,
2004 (the "Amendment").
EXECUTE AMENDMENTS. To execute and deliver to Bank the Amendment, and also
to execute and deliver to Bank one or more renewals, extensions, modifications,
consolidations, or substitutions therefore.
GRANT SECURITY. To grant a security interest to Bank in the Collateral
described in the Amendment, which security interest shall secure all of the
Corporation's Obligations, as described in the Amendment.
LETTERS OF CREDIT. To execute letters of credit applications and other
related documents pertaining to Bank's issuance of letters of credit..
NEGOTIATE ITEMS. To draw, endorse, and discount with Bank all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness payable
to or belonging to the Corporation or in which the Corporation
may have an interest, and either to receive cash for the same or to cause such
proceeds to be credited to the account of the Corporation with Bank, or to cause
such other disposition of the proceeds derived therefrom as they may deem
advisable.
FURTHER ACTS. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances thereunder, and in
all cases, to do and perform such other acts and things, to pay any and all fees
and costs, and to execute and deliver such other documents and agreements as
they may in their discretion deem reasonably necessary or proper in order to
carry into effect the provisions of these resolutions.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
resolutions and performed prior to the passage of these resolutions are hereby
ratified and approved, that these resolutions shall remain in full force and
effect and Bank may rely on these resolutions until written notice of their
revocation shall have been delivered to and received by Bank. Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
I FURTHER CERTIFY that the officers, employees, and agents named above are
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupy the positions set forth opposite their respective names; that the
foregoing resolutions now stand of record on the books of the Corporation; and
that the Resolutions are in full force and effect and have not been modified or
revoked in any manner whatsoever.
IN WITNESS WHEREOF, I have hereunto set my hand on June 18, 2004 and
attest that the signatures set opposite the names listed above are their
genuine signatures.
CERTIFIED TO AND ATTESTED BY:
X /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
THE ABOVE STATEMENTS ARE CORRECT.
BY: XXXX XXXXXXXXX
PRINTED NAME: XXXX XXXXXXXXX
TITLE: CEO
SIGNATURE OF OFFICER OR DIRECTOR
OR, IF NONE, A SHAREHOLDER OTHER
THAN SECRETARY WHEN SECRETARY IS
AUTHORIZED TO SIGN ALONE.
FAILURE TO COMPLETE THE ABOVE WHEN THE SECRETARY IS AUTHORIZED TO SIGN
ALONE SHALL CONSTITUTE A CERTIFICATION BY THE SECRETARY THAT THE SECRETARY IS
THE SOLE SHAREHOLDER, DIRECTOR AND OFFICER OF THE CORPORATION.
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3051683
BENEFICIARY APPLICANT
COMERICA BANK CALIFORNIA MTI TECHNOLOGY CORPORATION
INTERNATIONAL DIVISION 0000 X. XX XXXXX XXX.
0000 XXXXX XX XXXXXXX XXXX 00XX XXX XXXXXXX, XX 00000
XXXXXXXXX, XX 00000-0000
THE NOTICE OF NON-RENEWAL DATED APRIL 19, 2004 IS HEREBY RESCINDED.
THE AUTOMATIC EXTENSION TERMS ARE HEREBY REINSTATED.
ALL TERMS AND CONDITIONS REMAIN UNCHANGED.
IF YOU HAVE ANY INQUIRIES REGARDING THIS NOTICE, PLEASE CALL 000-000-0000 AND
QUOTE OUR REFERENCE NUMBER LISTED ABOVE.
SINCERELY,
BANK OF AMERICA N.A.
/s/ Xxxxxx X. Xxxx /s/ Xxxxx Xxxxxx
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AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
XXXXXX X. XXXX XXXXX XXXXXX
EXTENDED TO 6/30/05
CC: XXXXX CALL
NV1-119-02-01
ORIGINAL
