FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT
99.1
FIRST
AMENDMENT TO
AMENDED
AND RESTATED
THIS
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”)
is
entered into this 19 day of December, 2007, 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 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 (i) extend
the maturity date, and (ii) make certain other revisions to the Loan
Agreement as more fully set forth herein.
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
2.8 (Renewal
Fee). Section 2.8 is amended by deleting subsection (b)
thereof in its entirety and replacing it with a new subsection (b) to read
as
follows:
(b)
Renewal Fee. (i) A fully earned, non-refundable renewal fee of $50,000, payable
on the earlier of the termination of the Commitment or December 23, 2007 and
(ii) a further renewal fee of $25,000, payable on December 23, 2008 unless
the
Borrower terminates the Revolving Line of Credit and repays all Obligations
in
full in cash on or before December 23, 2008.
2.2 Section
2.8 (Termination
Fee). Section 2.8 is further amended by deleting subsection
(d) thereof in its entirety and replacing it with a new subsection (d) to read
as follows:
In
the
event Borrower prepays the Advances and terminates the Revolving Line of Credit,
a termination fee equal to the Minimum Monthly Interest that would have been
payable for each month (pro rated for any partial month) between the date of
such termination and (i) December 23, 2008, if such termination and prepayment
occurs on or before December 23, 2008 or (ii) the Revolving Line Maturity Date,
if such termination and prepayment occurs after December 23, 2008; provided, however,
that no such
termination fee shall be payable if the credit facility hereunder is replaced
with a new facility from Silicon Valley Bank.
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2.3 Section
6.8 (Deposit
Accounts). Section 6.8 is amended by deleting it in its
entirety and replacing it with a new Section 6.8 to read as
follows:
6.8
Operating Accounts.
Maintain its and its
Domestic Subsidiaries’ primary depository and
operating accounts and securities accounts with Bank and Bank’s affiliates which
accounts shall include all accounts in the United States and shall at all times
represent not less than 35% of the dollar value of Borrower’s and all
Subsidiaries’ accounts at all financial institutions. Additionally,
Borrower shall maintain a monthly average balance of not less than $1,000,000
in
its primary demand deposit operating accounts with the Bank.
2.4 Section
6.9 (Tangible Net
Worth). Section 6.9 is amended by deleting subsection (b)
thereof in its entirety and replacing with a new subsection (b) to read as
follows:
(b)
Tangible Net
Worth. Borrower shall maintain at all times, to be tested as
of the last day of each quarter, on a consolidated basis with respect to
Borrower and its Subsidiaries, a Tangible Net Worth of at least $10,000,000,
during the fiscal quarter ending December 31, 2007, and at all times thereafter,
increasing after December 31, 2007 by 50% of quarterly Net Income and 50% of
issuances of equity, net of issuance costs, after December 31, 2007 and the
principal amount of Subordinated Debt.
2.5 Section
13
(Definitions). Section 11 of the Loan Agreement is hereby
amended by deleting the definition of “Revolving Line Maturity Date” and by
substituting therefor a new definition of “Revolving Line Maturity Date” to read
as follows:
“Revolving
Line Maturity Date”
is the earlier of (a) July 1, 2009 or (b) the acceleration of the
Obligations pursuant to Section 9.1(a) hereof.
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;
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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) Borrower’s payment of a
restructuring fee in an amount equal to $1,500, (c) Bank’s receipt of the
Subsidiary Ratification Agreement substantially in the form attached hereto
as
Schedule 1, duly executed and delivered by each Guarantor, (d) 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 (e) payment of Bank’s legal fees and expenses in connection
with the negotiation and preparation of this Amendment.
[Signature
page follows.]
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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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Vice
President
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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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Chief
Financial Officer
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