SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
EXHIBIT
99.2
SECOND
AMENDMENT TO
AMENDED
AND RESTATED
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into this 23rd day of June, 2008, by and between SILICON VALLEY BANK
(“Bank”) and
CONCURRENT COMPUTER CORPORATION, a Delaware corporation (“Borrower”) whose
address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇.
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 permit the Borrower to
repurchase up to $2,500,000 of its capital stock.
D. Bank
has agreed to such request, 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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Amendment to Loan Agreement.
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7.7 Investments;
Distributions. (a) Directly or indirectly make any
Investment other than Permitted Investments and Investments in Subsidiaries, net
of returns on Investments received from Subsidiaries, not to exceed $1,000,000
during any fiscal year, or permit any of its Subsidiaries to do so; or (b) pay
any dividends or make any distribution or payment or redeem, retire or purchase
any capital stock provided that (i) Borrower may convert any of its
convertible securities into other securities pursuant to the terms of such
convertible securities or otherwise in exchange thereof, (ii) Borrower may
pay dividends solely in common stock; (iii) Borrower may repurchase the stock of
former employees or consultants pursuant to stock repurchase agreements so long
as an Event of Default does not exist at the time of such repurchase and would
not exist after giving effect to such repurchase, provided such repurchase does
not exceed in the aggregate of $500,000 per fiscal year; and (iv) Borrower may
repurchase shares of its common stock provided that (i) such purchase is made at
not more than the market price of such stock; (ii) at the time of such purchase,
and giving effect thereto, there shall be no Event of Default; and (iii) the
aggregate amount paid for such purchases does not exceed
$2,500,000.00.
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3.
Limitation of Amendments.
3.1
The amendment set forth in Section 2, above, is 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 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/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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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/
▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
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▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
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CFO
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