FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit
10.1
FOURTH
AMENDMENT TO
AMENDED
AND RESTATED
THIS
FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into this 1ST day
of July, 2009, by and between SILICON VALLEY BANK (“Bank”) and CONCURRENT
COMPUTER CORPORATION, a Delaware corporation (“Borrower”) whose
address is 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx
00000.
Recitals
A. Bank
and Borrower have entered into that certain Amended and Restated Loan and
Security Agreement dated as of December 22, 2006, as heretofore amended (as the
same may from time to time be amended, modified, supplemented or restated, the
“Loan
Agreement”).
B. Bank
has extended credit to Borrower for the purposes permitted in the Loan
Agreement.
C. Borrower
has requested that Bank amend the Loan Agreement to increase the Permitted
Indebtedness.
D. Bank
has agreed to so amend certain provisions of the Loan Agreement, but only to the
extent, in accordance with the terms, subject to the conditions and in reliance
upon the representations and warranties set forth below.
Agreement
Now,
Therefore, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1.
Definitions. Capitalized
terms used but not defined in this Amendment shall have the meanings given to
them in the Loan Agreement.
2.
Amendments to Loan
Agreement.
2.1 Section 13 (Definition of Permitted
Indebtedness). Section 13 of the Loan Agreement is hereby
amended by deleting clause (g) of the definition of “Permitted Indebtedness” and
by substituting therefore a new clause (g), to read as follows:
(a) Indebtedness
in an aggregate principal amount not to exceed $2,000,000 secured by Permitted
Liens;
2.2 Section 13 (Definition of Permitted
Liens). Section 13 of the Loan Agreement is hereby further
amended by deleting clause (c) of the definition of “Permitted Liens” and by
substituting therefore a new clause (c), to read as follows:
(c) Purchase
money Liens (i) on Equipment acquired or held by Borrower or its Subsidiaries
incurred for financing the acquisition of the Equipment or incurred within one
hundred twenty (120) days after such acquisitions, provided that the aggregate
principal amount of Indebtedness secured by such Liens does not exceed
$2,000,000 at any one time outstanding, or (ii) existing on Equipment when
acquired, if
the Lien is confined to the property and improvements and the Proceeds of the
Equipment;
3.
Limitation of Amendments.
3.1 The
amendments set forth in Section
2, above, are effective for the purposes set forth herein and shall be
limited precisely as written and shall not be deemed to (a) be a consent to any
amendment, waiver or modification of any other term or condition of any Loan
Document, or (b) otherwise prejudice any right or remedy which Bank or Borrower
may now have or may have in the future under or in connection with any Loan
Document.
3.2 This
Amendment shall be construed in connection with and as part of the Loan
Documents and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Loan Documents, except as herein amended, are hereby
ratified and confirmed and shall remain in full force and effect.
4.
Representations and
Warranties. To induce Bank to enter into this Amendment,
Borrower hereby represents and warrants to Bank as follows:
4.1 Immediately
after giving effect to this Amendment (a) the representations and warranties
contained in the Loan Documents are true, accurate and complete in all material
respects as of the date hereof (except to the extent such representations and
warranties relate to an earlier date, in which case they are true and correct as
of such date), and (b) no Event of Default has occurred and is
continuing;
4.2 Borrower
has the power and authority to execute and deliver this Amendment and to perform
its obligations under the Loan Agreement, as amended by this
Amendment;
4.3 The
organizational documents of Borrower delivered to Bank on the Effective Date
remain true, accurate and complete and have not been amended, supplemented or
restated and are and continue to be in full force and effect;
4.4 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, have been duly authorized;
4.5 The
execution and delivery of this Amendment and the performance by Borrower of its
obligations under the Loan Agreement, as amended by this Amendment, do not
conflict with Borrower’s organizational documents, nor constitute an event of
default under any material agreement by which Borrower is
bound.
4.6 The
execution and delivery by Borrower of this Amendment and the performance by
Borrower of its obligations under the Loan Agreement, as amended by this
Amendment, do not require any order, consent, approval, license, authorization
or validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
Borrower or any of its Subsidiaries, except as already has been obtained or
made; and
4.7 This
Amendment has been duly executed and delivered by Borrower and is the binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium or other similar laws of general
application and equitable principles relating to or affecting creditors’
rights.
5.
Counterparts. This
Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
6.
Effectiveness. This
Amendment shall be deemed effective upon (a) the due execution and delivery to
Bank of this Amendment by each party hereto, (b) Bank’s receipt of the
Subsidiary Ratification Agreement substantially in the form attached hereto as
Schedule 1, duly executed and delivered by each Guarantor, (c) Bank’s receipt of
the Subordination Agreement Ratification substantially in the form attached
hereto as Schedule 2, duly executed and delivered by each signatory thereto, and
(d) payment of Bank’s reasonable legal fees and expenses in connection with the
negotiation and preparation of this Amendment.
[Signature
page follows.]
In Witness
Whereof, the parties
hereto have caused this Amendment to be duly executed and delivered under seal
as of the date first written above.
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BANK
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SILICON
VALLEY BANK
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx Xxxxxxx
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Title:
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VP
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BORROWER
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CONCURRENT
COMPUTER CORPORATION
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
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Xxxxx X. Xxxxx
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Title:
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CFO and EVP of Operations
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SUBSIDIARY
REAFFIRMATION AGREEMENT
THIS SUBSIDIARY REAFFIRMATION
AGREEMENT (this “Agreement”) is
entered into as of July 1, 2009, by EVERSTREAM HOLDINGS, INC., a
Delaware corporation, EVERSTREAM, INC., a Delaware
corporation, and EHI PATENT CO.
LLC, a New York limited liability company (each an “Obligor” and
collectively, the “Obligors”) in favor
of SILICON VALLEY BANK
(“Bank”).
W I T N E S S E T H :
WHEREAS,
Concurrent Computer Corporation (“Borrower”) and Bank
entered into a certain Loan and Security Agreement dated as of December 23, 2004
between Borrower and Bank (as amended from time to time, the “Original Loan
Agreement”) pursuant to which Bank made certain loans and extensions of
credit to Borrower; and
WHEREAS,
in connection with the Original Loan Agreement, Obligors have executed and
delivered to Bank (a) that certain Unconditional Guaranty dated April 6, 2006
(as amended from time to time, the “Guaranty”), pursuant
to which Obligors, among other things, have unconditionally guaranteed repayment
of all Obligations under the Original Loan Agreement; (b) that certain Security
Agreement dated as of April 6, 2006 (as amended from time to time, the “Security Agreement”)
pursuant to which the Obligors granted to the Bank a security interest in
substantially all of their assets as security for their obligations under the
Guaranty and for the obligations of the Borrower under the Original Loan
Agreement and (c) that certain Intellectual Property Security Agreement dated
April 6, 2006 (as amended from time to time, the “IP Security
Agreement”) pursuant to which the Obligors granted to the Bank a security
interest in substantially all of their Intellectual Property as security for
their obligations under the Guaranty and for the obligations of the Borrower
under the Original Loan Agreement; and
WHEREAS,
Borrower and Bank amended and restated the Original Loan Agreement pursuant to
that certain Amended and Restated Loan and Security Agreement dated as of
December 22, 2006 (the “Loan Agreement”) and,
in connection therewith, the Obligors reaffirmed their obligations under the
Guaranty, the Security Agreement and the IP Security Agreement as security for
the obligations arising under the Loan Agreement; and
WHEREAS,
Borrower and Bank propose to amend the Loan Agreement pursuant to that certain
Fourth Amendment to Amended and Restated Loan and Security Agreement dated of
even date herewith (the “Fourth Amendment”) to
permit the Borrower to incur an increased amount of secured indebtedness and to
make certain other amendments set forth therein;
WHEREAS,
it is a condition precedent to the effectiveness of the Fourth Amendment that
the Obligors execute and deliver this Agreement;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Obligors agree as follows:
1. All
capitalized terms used herein and not otherwise defined shall have the meanings
given to such terms in the Loan Agreement, as amended through and including the
Fourth Amendment (the “Amended Loan
Agreement”).
2. Each
Obligor acknowledges receipt of a copy of the Fourth Amendment and consent to,
and agree to be bound by, to the extent applicable the terms and conditions
thereof.
3. Each
Obligor hereby agrees that all references in the Guaranty, the Security
Agreement and the IP Security Agreement to the “Loan Agreement” shall henceforth
be deemed to refer to the Amended Loan Agreement.
4. Each
Obligor acknowledges and agrees that all obligations of the Borrower under the
Amended Loan Agreement are included in the “Obligations,” as such term is
defined in the Guaranty, and are guaranteed by the Guaranty.
5. Each
Obligor acknowledges and agrees that all Obligations of the Borrower under the
Amended Loan Agreement are included in the “Obligations,” as such term is used
in the Security Agreement, and are secured by the security interests in the
Collateral granted by the Security Agreement.
6. Each
Obligor acknowledges and agrees that all Obligations under the Amended Loan
Agreement are secured by the security interests in the Intellectual Property
granted by the IP Security Agreement.
7. Each
Obligor reaffirms all the terms and conditions of the Guaranty, the Security
Agreement and the IP Security Agreement and agrees that the Guaranty, the
Security Agreement and the IP Security Agreement, and their obligations
thereunder, remain in full force and effect, without release, diminution or
impairment, notwithstanding the execution and delivery of the Fourth Amendment
or any other agreement, document or instrument.
8. This
Agreement may be executed in any number of counterparts and by different parties
on separate counterparts, each of which, when executed and delivered, are an
original, and all taken together, are one Agreement. This Agreement
shall constitute a Loan Document.
9. This
Agreement shall be governed by the laws of the State of Georgia.
[signatures
appear on following page]
2
IN
WITNESS WHEREOF, the Obligors have executed this Reaffirmation and Agreement
under seal as of the date first written above.
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EVERSTREAM
HOLDINGS, INC.
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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EVERSTREAM,
INC.
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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EHI
PATENT CO. LLC
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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reaffirmation
of subsidiaries
signature
page
3
REAFFIRMATION
OF
SUBORDINATION
AGREEMENT
THIS
REAFFIRMATION OF SUBORDINATION AGREEMENT (this “Reaffirmation”) is
entered into as of July 1, 2009, in favor of SILICON VALLEY BANK (“Bank”) by each of the
undersigned entities (individually a “Subordinated
Creditor” and collectively, the “Subordinated
Creditors”).
W I T N E S S E T H :
WHEREAS,
Concurrent Computer Corporation (“Borrower”) and Bank
entered into that certain Loan and Security Agreement dated as of December 23,
2004, as amended (referred to herein as the "Original Loan
Agreement"), pursuant to which Bank extended credit accommodations to
Borrower secured by the Collateral (as defined in the Loan Agreement);
and
WHEREAS,
in connection with the Loan Agreement, the Subordinated Creditors Agent executed
and delivered to Bank that certain Subordination Agreement dated February 4,
2005 (as amended from time to time, the “Subordination
Agreement”), subordinating in right of payment all amounts owed to
Borrower by the Subordinated Creditors; and
WHEREAS,
Borrower and Bank amended and restated the Original Loan Agreement pursuant to
that certain Amended and Restated Loan and Security Agreement dated as of
December 22, 2006 (the “Loan Agreement”) and,
in connection therewith, the Subordinating Creditors reaffirmed their
obligations under the Subordination Agreement; and
WHEREAS,
Borrower and Bank propose to amend the Loan Agreement pursuant to that certain
Fourth Amendment to Amended and Restated Loan and Security Agreement dated of
even date herewith (the “Fourth Amendment”) to
permit the Borrower to incur an increased amount of secured indebtedness and to
make certain other amendments set forth therein;
WHEREAS,
it is a condition precedent to the effectiveness of the Fourth Amendment that
the Subordinating Creditors execute and deliver this Agreement;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Subordinated Creditors agree as
follows:
1. All
capitalized terms used herein and not otherwise defined shall have the meanings
given to such terms in the Subordination Agreement.
2. Each
Subordinated Creditor hereby agrees that all references in the Subordination
Agreement to the “Loan Agreement” shall henceforth be deemed to refer to the
Loan Agreement, as amended through and including the Fourth Amendment (as so
amended, the “Amended
Loan Agreement”).
3. Each
Subordinated Creditor acknowledges and agrees that (a) all “Obligations” under,
and as such term is defined in, the Amended Loan Agreement constitute Senior
Debt under the Subordination Agreement and are entitled to all the benefits
afforded to the Senior Debt under the Subordination Agreement and (b) the
Subordination Debt is subordinated to the prior payment of the Obligations under
the Amended Loan Agreement on the terms set for in the Subordination
Agreement.
4. Each
Subordinated Creditor (a) reaffirms and ratifies all the terms and conditions of
the Subordination Agreement and agrees to be bound by the terms and conditions
thereof, as modified hereby and (b) agrees that the Subordination Agreement, and
its obligations thereunder, remain in full force and effect, without release,
diminution or impairment, notwithstanding the execution and delivery of the
Amended Loan Agreement or any other agreement, document or
instrument.
5. This
Reaffirmation may be executed in counterpart and all such counterparts shall
constitute one and the same original.
6. This
Reaffirmation shall be governed by the laws of the State of
Georgia. This Reaffirmation shall constitute a Loan
Document.
2
IN
WITNESS WHEREOF, the undersigned has executed this Reaffirmation of
Subordination Agreement under seal as of the date first written
above.
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Subordinated
Creditors:
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CONCURRENT
COMPUTER ASIA CORPORATION
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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CONCURRENT
COMPUTER CANADA, INC.
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By:
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N/A
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Name:
N/A
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Title:
N/A
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CONCURRENT
COMPUTER CORPORATION (FRANCE)
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By:
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/s/ Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Director
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CONCURRENT
REALISATIONS LTD.
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By:
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N/A
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Name:
N/A
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Title:
N/A
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CONCURRENT
COMPUTER CORPORATION PTY LTD
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By:
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/s/ Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Director
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3
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CONCURRENT
COMPUTER FRANCE, S.A.
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By:
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/s/ Xxxxxx Xxxxxxxxx
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Name:
Xxxxxx Xxxxxxxxx
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Title:
President, Director, General/Managing Director
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CONCURRENT
COMPUTER GMBH
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By:
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/s/ Xxxxxx Xxxxxxxxx
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Name:
Xxxxxx Xxxxxxxxx
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Title:
President, Director, General/Managing Director
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CONCURRENT
COMPUTER HISPANIA, S.A.
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By:
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/s/ Xxxxxx Xxxxxxxxx
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Name:
Xxxxxx Xxxxxxxxx
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Title:
Director
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CONCURRENT
UK LIMITED
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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CONCURRENT
COMPUTER HONG KONG LIMITED
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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4
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CONCURRENT
COMPUTER NEW ZEALAND LIMITED
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By:
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N/A
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Name:
N/A
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Title:
N/A
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CONCURRENT
FEDERAL SYSTEMS, INC.
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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CONCURRENT
HOLDING CORPORATION
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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CONCURRENT
NIPPON CORPORATION
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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CONCURRENT
SECURITIES CORPORATION
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By:
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/s/ Xxxxx X. Xxxxx
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Name:
Xxxxx X. Xxxxx
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Title:
Director
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5
