THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT
99.1
THIRD
AMENDMENT TO
AMENDED
AND RESTATED
THIS
THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into this 24th day of December, 2008, 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 extend the maturity
date.
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:
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1.
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Definitions. Capitalized
terms used but not defined in this Amendment shall have the meanings given
to them in the Loan Agreement.
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2.
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Amendments
to Loan Agreement.
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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 $25,000,
payable on December 23, 2008 and (ii) a further renewal fee of $75,000, payable
on July 2, 2009 unless the Borrower terminates the Revolving Line of Credit and
repays all Obligations in full in cash on or before July 2,
2009.
2.2 Section 13
(Definitions). Section 11 of the Loan Agreement is hereby
amended by deleting the definitions of “Prime Rate” and “Revolving Line Maturity
Date” and by substituting therefore new definitions of “Prime Rate” and
“Revolving Line Maturity Date” to read as follows:
“Prime Rate” is the greater of
(a) Bank’s most recently announced “prime rate,” (even if it is not Bank’s
lowest rate) and (b) 4.00%.
“Revolving Line Maturity Date”
is the earlier of (a) December 31, 2010 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;
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, (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.]
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: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx
Xxxxxxx
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Title: VP
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BORROWER
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CONCURRENT
COMPUTER CORPORATION
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By:
/s/ Xxxxx X.
Xxxxx
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Name: Xxxxx X.
Xxxxx
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Title: CFO and EVP
Operations
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