Exhibit 10.15
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
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THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
made and entered into this 28th day of March, 2001, by and between CONCURRENT
COMPUTER CORPORATION, a Delaware corporation (hereinafter referred to as
"Borrower") with its chief executive office and principal place of business at
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000, and WACHOVIA BANK, N.A., a
national banking association (hereinafter referred to as "Lender") with an
office at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
RECITALS:
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Lender and Borrower are parties to a certain Loan and Security Agreement
dated November 3, 2000 (the "Loan Agreement"), pursuant to which Lender has made
certain loans and other financial accommodations to Borrower.
The parties desire to amend the Loan Agreement as hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment, unless
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otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby amended
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as follows:
(a) By adding a new subsection 10.22 to Section 10 of the Loan
Agreement that reads as follows:
10.22. DIVISION REPORTS. Borrower shall as soon as
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practicable, but in any event on or before fifteen (15) days
after the end of each calendar month, furnish or cause to be
furnished to Lender a written status report, certified by a
duly authorized officer of Borrower, showing the progress of
the Xstreme Division and Real-Time Division, including sales
during such period and current forecasted sales.
(b) By deleting Covenant (E) of Supplement A to the Loan Agreement
and by substituting in lieu thereof the following:
(E) CONSOLIDATED EBITDA (XSTREME DIVISION). Maintain
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Consolidated EBITDA of the Xstreme Division as of the last
day of each period set forth below of at least the amounts
set forth below for the periods applicable thereto:
Period Amount
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July 1, 2000 through ($ 8,100,000)
March 31, 2001
July 1, 2000 through ($ 8,500,000)
June 30, 2001
For the Four Fiscal Quarters ($ 3,750,000)
ending September 30, 2001
For the Four Fiscal Quarters $ 200,000
ending December 30, 2001
For the Four Fiscal Quarters $ 4,600,000
ending March 31, 2002
For the Four Fiscal Quarters $ 9,100,000
ending June 30, 2002
3. AMENDMENT FEE. To induce Lender to enter into this Amendment,
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Borrower covenants and agrees that, simultaneously with the execution and
delivery of this Amendment, Borrower shall pay to Lender an amendment fee in the
amount of $5,000, in immediately available funds.
4. LIMITED WAIVER OF DEFAULT. Events of Default have occurred and
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currently exist under the Loan Agreement as a result of Borrower's breach of
Section 12 of the Loan Agreement and Covenants (A) and (E) of Supplement A
attached thereto (the "Designated Defaults"). The Designated Defaults exist
because of Borrower's failure to maintain a Consolidated EBITDA of at least
($2,500,000) as of December 31, 2000 and a Consolidated EBITDA of the Xstreme
Division of at least ($5,000,000) as of December 31, 2000. Borrower represents
and warrants that the Designated Defaults are the only Default Conditions or
Events of Default that exists under the Loan Agreement and the other Loan
Documents as of the date hereof. Lender hereby waives the Designated Defaults
in existence on the date hereof. In no event shall such waiver be deemed to
constitute a waiver of (a) any Default Condition or Event of Default other than
the Designated Defaults in existence on the date of this Amendment or (b)
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Borrower's obligation to comply with all of the terms and conditions of the Loan
Agreement and the other Loan Documents from and after the date hereof.
Notwithstanding any prior, temporary mutual disregard of the terms of any
contracts between the parties, Borrower hereby agrees that it shall be required
strictly to comply with all of the terms of the Loan Documents on and after the
date hereof.
5. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies and
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reaffirms the Obligations, each of the Loan Documents and all of Borrower's
covenants, duties, indebtedness and liabilities under the Loan Documents.
6. ACKNOWLEDGMENTS AND STIPULATIONS. Borrower acknowledges and
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stipulates that the Loan Agreement and the other Loan Documents executed by
Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; all of the
Obligations are owing and payable without defense, offset or counterclaim (and
to the extent there exists any such defense, offset or counterclaim on the date
hereof, the same is hereby waived by Borrower); the security interests and liens
granted by Borrower in favor of Lender are duly perfected, first priority
security interests and liens; and the unpaid principal amount of the Advances on
and as of March 28, 2001, totaled $0.
7. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
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Lender, to induce Lender to enter into this Amendment, that no Default Condition
or Event of Default exists on the date hereof other than the Designated
Defaults; the execution, delivery and performance of this Amendment have been
duly authorized by all requisite corporate action on the part of Borrower and
this Amendment has been duly executed and delivered by Borrower; and all of the
representations and warranties made by Borrower in the Loan Agreement are true
and correct on and as of the date hereof.
8. REFERENCE TO LOAN AGREEMENT. Upon the effectiveness of this
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Amendment, each reference in the Loan Agreement to "this Agreement,"
"hereunder," or words of like import shall mean and be a reference to the Loan
Agreement, as amended by this Amendment.
9. BREACH OF AMENDMENT. This Amendment shall be part of the Loan
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Agreement and a breach of any of any representation, warranty or covenant herein
shall constitute an Event of Default.
10. EXPENSES OF LENDER. Borrower agrees to pay, ON DEMAND, all costs
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and expenses incurred by Lender in connection with the preparation, negotiation
and execution of this Amendment and any other Loan Documents executed pursuant
hereto and any and all amendments, modifications, and supplements thereto,
including, without limitation, the costs and fees of Lender's legal counsel and
any taxes or expenses associated with or incurred in connection with any
instrument or agreement referred to herein or contemplated hereby.
11. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be effective
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upon acceptance by Lender in Atlanta, Georgia, notice of which acceptance is
hereby waived, whereupon the same shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
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12. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns.
13. NO NOVATION, ETC. Except as otherwise expressly provided in this
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Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor
shall it be construed to create, a novation or accord and satisfaction, and the
Loan Agreement as herein modified shall continue in full force and effect.
14. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be
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executed in any number of counterparts and by different parties to this
Amendment on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall
be deemed to be an original signature hereto.
15. FURTHER ASSURANCES. Borrower agrees to take such further actions
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as Lender shall reasonably request from time to time in connection herewith to
evidence or give effect to the amendments set forth herein or any of the
transactions contemplated hereby.
16. SECTION TITLES. Section titles and references used in this
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Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
17. RELEASE OF CLAIMS. TO INDUCE LENDER TO ENTER INTO THIS AMENDMENT,
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BORROWER HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES LENDER, AND ALL
OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF LENDER, FROM
ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION OF ANY
KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR CONTINGENT, DISPUTED OR
UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN, THAT BORROWER NOW HAS OR
EVER HAD AGAINST LENDER ARISING UNDER OR IN CONNECTION WITH ANY OF THE LOAN
DOCUMENTS OR OTHERWISE. BORROWER REPRESENTS AND WARRANTS TO LENDER THAT
BORROWER HAS NOT TRANSFERRED OR ASSIGNED TO ANY PERSON ANY CLAIM THAT BORROWER
EVER HAD OR CLAIMED TO HAVE AGAINST LENDER.
18. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
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APPLICABLE LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO
THIS AMENDMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
CONCURRENT COMPUTER CORPORATION
("Borrower")
By: /s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX, Executive Vice President,
Chief Financial Officer, Secretary and Treasurer
[CORPORATE SEAL]
Accepted in Atlanta, Georgia:
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WACHOVIA BANK, N.A.
("Lender")
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
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CONCURRENT COMPUTER CORPORATION
SECRETARY'S CERTIFICATE
OF
BOARD OF DIRECTORS RESOLUTIONS
I, Xxxxxx X. Xxxxxx, DO HEREBY CERTIFY, that I am the Secretary of
CONCURRENT COMPUTER CORPORATION (the "Corporation"), a corporation duly
organized and existing under and by virtue of the laws of the State of Delaware
and am keeper of the records and seal thereof; that the following is a true,
correct and compared copy of the resolutions duly adopted by the unanimous
consent of all members of the Board of Directors of said Corporation effective
as of March 28, 2001; and that said resolutions are still in full force and
effect:
RESOLVED, that the President and Chief Executive Officer, and the Treasurer
and Chief Financial Officer, or any other officer or board member of this
Corporation (or the designee of any of them), each be, and each hereby is,
authorized and empowered (either alone or in conjunction with any one or more of
the other officers of the Corporation) to take, from time to time, all or any
part of the following actions on or in behalf of the Corporation: (i) to make,
execute and deliver to WACHOVIA BANK, N.A. ("Lender") (1) a First Amendment to
Loan and Security Agreement (the "Amendment") providing for the amendment of
certain terms of that certain Loan and Security Agreement dated November 3, 2000
between the Corporation and Lender (as at any time amended, the "Loan
Agreement"), and (2) all other agreements, documents and instruments
contemplated by or referred to in the Amendment or executed by the Corporation
in connection therewith; said Amendment and other agreements, documents and
instruments to be substantially in the form presented by Lender with such
additional, modified or revised terms as may be acceptable to any officer or
director of the Corporation, as conclusively evidenced by his or her execution
thereof; and (ii) to carry out, modify, amend or terminate any arrangements or
agreements at any time existing between the Corporation and Lender.
RESOLVED, that any arrangements, agreements, security agreements, or other
instruments or documents referred to or executed pursuant to the Amendment by
Xxxxxx X. Xxxxxx any other officer or director of the Corporation, or by an
employee of the Corporation acting pursuant to delegation of authority, may be
attested by such person and may contain such terms and provisions as such person
shall, in his or her sole discretion, determine.
RESOLVED, that the Loan Agreement and each amendment to the Loan Agreement
heretofore executed by any officer or director of the Corporation and any
actions taken under the Loan Agreement as thereby amended are hereby ratified
and approved.
I DO FURTHER CERTIFY that I am the Executive Vice President, Chief
Financial Officer, Secretary and Treasurer of the Corporation am duly elected,
qualified and acting as such.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the
Corporation, this 28th day of March, 2001.
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX, Secretary
[CORPORATE SEAL]
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