Exhibit 10.16
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
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THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment") is
made and entered into this 14th day of September, 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 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, and WACHOVIA BANK, N.A., a
national banking association (hereinafter referred to together with its
successors and assigns, as "Lender") with an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS:
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Lender and Borrower are parties to a certain Loan and Security Agreement
dated November 3, 2000, as amended by that certain First Amendment to Loan and
Security Agreement dated March 28, 2001 (as at any time amended, 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 the following new definitions to Section 1.1 of the
Loan Agreement, in proper alphabetical sequence:
"Commitment Suspension Event" shall mean any of the events or
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conditions described in Section 13.14 hereof.
"Commitment Suspension Period" shall mean the period commencing
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upon the occurrence of a Commitment Suspension Event and continuing
until: (i) Lender's receipt from Borrower of a statement executed by a
duly authorized officer of Borrower in the form of Exhibit "C"
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attached hereto, demonstrating to Lender's satisfaction Borrower's
compliance with the previously breached covenant or covenants
contained in Article 12 or Supplement A that created the Commitment
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Suspension Event for the immediately succeeding relevant fiscal
period, and (ii) Borrower's receipt of Lender's written waiver of the
relevant Commitment Suspension Event.
"Current Assets" shall mean, at any date, the cash of Borrower on
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such date plus the amount of all accounts receivable of Borrower on
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such date.
"Current Liabilities" shall mean, at any date, the outstanding
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principal balance of the Line of Credit on such date plus the amount
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of all accounts payable of Borrower on such date.
"Current Ratio" shall mean, for any given date, the ratio of (a)
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Current Assets to (b) Current Liabilities for such period.
(b) By deleting the definitions of "Line of Credit" and
"Termination Date" that are contained in Section 1.1 of the Loan Agreement
in their entirety and by substituting in lieu thereof the following:
"Line of Credit" shall refer to the line of credit in the
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principal amount of up to $5,000,000 opened by Lender in favor of
Borrower pursuant to the provisions of Section 2.1.1.
"Termination Date" shall mean the earliest to occur of the
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following dates: (i) that date on which, pursuant to Section 14,
Lender terminates the Line of Credit (or the Line of Credit is deemed
automatically terminated) subsequent to the occurrence of an Event of
Default; (ii) the date during any Commitment Suspension Period on
which the Line of Credit is terminated by either Borrower or Lender,
or (iii) December 31, 2002, or such later date as to which Lender may
agree in writing from time to time hereafter.
(c) By deleting Section 2.1(a) of the Loan Agreement in its
entirety and by substituting in lieu thereof the following:
(a) On the Closing Date, subject to fulfillment of all
conditions precedent set forth in Section 16, Lender agrees to open
the Line of Credit in favor of Borrower so that, during the period
from the Closing Date to, but not including, the Termination Date, so
long as there is not in existence any Default Condition, Event of
Default or Commitment Suspension Event and the borrowing will not
cause a Default Condition or Event of Default to exist, Borrower may
borrow and repay and reborrow Advances up to a maximum aggregate
principal amount outstanding at any one time equal to the original
principal amount of the Line of Credit; subject, however, to the
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requirement that at no time shall the aggregate principal amount of
(i) outstanding Advances plus (ii) the aggregate amount of Letter
----
of Credit Obligations exceed the Margin (such requirement being
referred to herein as the "Margin Requirement"); and subject,
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further, to the requirement that if, at any time hereafter, the Margin
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Requirement is not satisfied, Borrower will immediately repay the then
principal balance of the Master Note by that amount necessary to
satisfy the Margin Requirement. All proceeds so obtained under the
Line of Credit may be used by Borrower for working capital, capital
expenditures and other general corporate purposes in such manner as
Borrower may elect in the ordinary course of its business operations.
The Debts arising from Advances made to or on behalf of Borrower under
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the Line of Credit shall be evidenced by the Master Note, which shall
be executed by Borrower and delivered to Lender on the Closing Date.
The outstanding principal amount of the Master Note may fluctuate from
time to time, but shall be due and payable in full on the Termination
Date, and each Advance thereunder shall bear interest from the date of
such Advance until paid in full at the Applicable Rate, calculated and
payable in the manner described in Section 2.2.1. Subject to any
contrary provisions of Section 2.2.1 in respect of LIBOR Borrowings,
Borrower shall have the option to request Advances under the Line of
Credit by telephone or in a writing delivered to Lender not later than
11:00 a.m. (Atlanta, Georgia time) on the date of the requested
Advance; provided, however, that any telephone requests shall be
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confirmed in a writing not later than the Business Day following the
disbursement of the requested Advance.
(d) By adding the following new subsection (c) to Section 2.1.1 of
the Loan Agreement immediately following Section 2.1.1(b):
(c) Borrower shall, at the time of making of any request for an
Advance under the Line of Credit, certify to Lender, in a statement
executed by a duly authorized officer of Borrower in the form of
Exhibit "C" attached hereto, that no Event of Default, Default
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Condition or Commitment Suspension Event exists or has occurred, or,
if an Event of Default, Default Condition or Commitment Suspension
Event exists or has occurred, specifying the nature and period of
existence thereof. Such certificate shall also set forth, in
reasonable detail, compliance with all financial covenants set forth
in Supplement A for the immediately preceding Fiscal Month or Fiscal
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Quarter, as applicable.
(e) By deleting Section 2.2.1(c) of the Loan Agreement in its
entirety and by substituting in lieu thereof the following:
(c) CONDITIONS AND LIMITATIONS ON LIBOR BORROWINGS. All
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Borrowings obtained on the Closing Date and for a period of two (2)
Business Days thereafter shall be Prime Borrowings. Thereafter
Borrower shall have the continuing right, provided that no Event of
Default, Default Condition or Commitment Suspension Event exists, to
obtain LIBOR Borrowings or to convert Prime Borrowings to LIBOR
Borrowings; subject, however, to the following conditions and
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limitations: (i) the Interest Period for LIBOR Borrowings in respect
of the Line of Credit shall not exceed the Termination Date; (ii) if
on or prior to the first day of any Interest Period, Lender determines
that deposits in United States Dollars (in the applicable amounts) are
not being offered in the relevant market for such Interest Period or
that the LIBOR Rate will not adequately and fairly reflect the cost to
Lender of funding any relevant borrowings for such Interest Period,
then, Lender shall forthwith give notice thereof to Borrower,
whereupon, until Lender notifies Borrower that the circumstances
giving rise to such suspension no longer exist, the obligation of
Lender to make LIBOR Borrowings available to Borrower shall be
suspended; and (iii) if, at any time, a change of law, or compliance
by Lender with any request or directive (whether or not having the
force of law) of any governmental authority shall make it unlawful or
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impracticable for Lender to make available, maintain or fund any LIBOR
Borrowings, Lender shall forthwith give notice to such effect to
Borrower, whereupon, until Lender notifies Borrower that the
circumstances giving rise to such suspension no longer exist, the
obligation of Lender to make such Borrowings available to Borrower
shall be suspended and if Lender shall determine that it may not
lawfully continue to maintain and fund any then outstanding Borrowings
to maturity and shall so specify in such notice, each Borrowing so
affected shall be converted to a Prime Borrowing effective
immediately.
(f) By deleting Section 2.2.2(d) of the Loan Agreement in its
entirety and by substituting a reference to "Reserved." in lieu thereof.
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(g) By deleting Section 2.4 of the Loan Agreement in its entirety
and by substituting in lieu thereof the following:
2.4. TERMINATION EVENT. If either of the Principals shall
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die, become incapacitated, cease to be the chief executive officer or
chief financial officer of Borrower or otherwise cease to be actively
involved in the day-to-day executive management of Borrower (a
"Termination Event"), Lender may, at its election, terminate the Line
of Credit and demand payment of all of the Obligations upon ninety
(90) days prior written notice to Borrower, unless Borrower replaces
such Principal with a person of similar experience, skill and
expertise reasonably satisfactory to Lender (which consent of Lender
shall not be unreasonably withheld) within such ninety (90) day
period. Nothing contained herein shall prohibit Lender from exercising
any of its rights and remedies under the Loan Documents or applicable
law if an Event of Default or Commitment Suspension Event exists at
such time.
(h) By adding the following Section 2.5 to the Loan Agreement
immediately following Section 2.4:
2.5 TERMINATION DURING COMMITMENT SUSPENSION PERIOD. During
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any Commitment Suspension Period, either party may terminate the Line
of Credit and this Agreement at its election, without penalty,
whereupon all Obligations shall become immediately due and payable in
full and Lender shall have no further obligation to make any loans or
otherwise extend any financial accommodations to Borrower.
(i) By deleting Section 10.11 of the Loan Agreement in its
entirety and by substituting in lieu thereof the following:
10.11. CERTIFICATE OF NO DEFAULT. Borrower shall, on a
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monthly basis not later than twenty-five (25) days after the close of
each of its first eleven Fiscal Months and not later than ninety (90)
days after the close of its Fiscal Year, certify to Lender, in a
statement executed by a duly authorized officer of Borrower in the
form of Exhibit "C" attached hereto, that no Event of Default, Default
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Condition or Commitment Suspension Event exists or has occurred, or,
if an Event of Default, Default Condition or Commitment Suspension
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Event exists or has occurred, specifying the nature and period of
existence thereof. Such certificate shall also set forth, in
reasonable detail, compliance with all financial covenants set forth
in Supplement A for the immediately preceding Fiscal Month or Fiscal
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Quarter, as applicable.
(j) By deleting Section 10.17 of the Loan Agreement in its
entirety and by substituting in lieu thereof the following:
10.17. CERTAIN REQUIRED NOTICES. Promptly, upon its receipt
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of notice or knowledge thereof, Borrower will report to Lender: (i)
any lawsuit or administrative proceeding in which Borrower is a
defendant in which the amount or amounts in controversy exceed
$100,000; or (ii) the existence and nature of any Default Condition,
Event of Default or Commitment Suspension Event.
(k) By deleting Section 11.15 of the Loan Agreement in its
entirety and by substituting in lieu thereof the following:
11.15. CAPITAL EXPENDITURES AND LEASES. Expend during any
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Fiscal Year of Borrower, in Capital Expenditures, for itself and its
Consolidated Subsidiaries, other than as contracted for as of the date
hereof, or contract for any future Capital Expenditures, which in
aggregate represent an amount exceeding (i) $6,500,000 in Fiscal Year
2001, and (ii) $5,000,000 in Fiscal Year 2002 without the Lender's
prior written consent thereto, all as determined on a Consolidated
basis for Borrower and its Consolidated Subsidiaries in accordance
with GAAP.
(l) By deleting Section 13.3 of the Loan Agreement in its entirety
and by substituting in lieu thereof the following:
13.3. CERTAIN COVENANTS. Borrower shall default in the
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observance or performance of any covenant or agreement contained in
Sections 10.3, 10.4, 10.5, 10.6, 10.7, 10.11, 10.14, or in Article 11.
(m) By adding the following new Section 13.14 to the Loan
Agreement immediately following Section 13.13:
13.14. FINANCIAL COVENANTS. Borrower shall default in the
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observance or performance of any covenant or agreement contained in
Article 12 or Supplement A hereof and at such time the sum of the
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principal amount of Advances then outstanding (including any amounts
that Lender may have paid for the account of Borrower pursuant to any
of the Loan Documents and that have not been reimbursed by Borrower
when due) exceeds $0; provided, that, if at such time the principal
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amount of Advances then outstanding is equal to $0, then such event
shall not constitute an Event of Default but rather shall constitute a
Commitment Suspension Event.
(n) By deleting the initial paragraph of Article 14 of the Loan
Agreement in its entirety and by substituting in lieu thereof the
following:
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14. REMEDIES. Upon the occurrence of any Default Condition,
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Event of Default or Commitment Suspension Event, Lender's obligation
to extend financing under the Line of Credit shall immediately cease;
provided, however, that if such obligation has ceased due to the
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occurrence of a Default Condition, and such Default Condition does not
become an Event of Default due to its having been cured or waived
before it has matured into an Event of Default, then such obligation
shall be reinstated as of the date such Default Condition is cured or
waived, and provided, further, that if such obligation has ceased due
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to the occurrence of a Commitment Suspension Event, then such
obligation shall be reinstated upon the termination of the Commitment
Suspension Period. Upon the occurrence or existence of any Event of
Default, or any time thereafter, without prejudice to the rights of
Lender to enforce its claims against Borrower for damages for failure
by Borrower to fulfill any of its obligations hereunder, subject only
to prior receipt by Lender of payment in full of all Obligations then
outstanding in a form acceptable to Lender, Lender shall have all of
the rights and remedies set forth below, and it may exercise any one,
more, or all of such remedies, in its sole discretion, without thereby
waiving any of the others.
(o) By deleting Section 15.1 of the Loan Agreement in its entirety
and by substituting in lieu thereof the following:
15.1. WAIVER. Each and every right granted to Lender under this
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Agreement, or any of the other Loan Documents, or any other document
delivered hereunder or in connection herewith or allowed it by law or
in equity, shall be cumulative and may be exercised from time to time.
No failure on the part of Lender to exercise, and no delay in
exercising, any right shall operate as a waiver thereof, nor shall any
single or partial exercise by Lender of any right preclude any other
or future exercise thereof or the exercise of any other right. No
waiver by Lender of any Default Condition Event of Default or
Commitment Suspension Event shall constitute a waiver of any
subsequent Default Condition, Event of Default or Commitment
Suspension Event.
(p) By deleting Section 16.9 of the Loan Agreement in its entirety
and by substituting in lieu thereof the following:
16.9. NO DEFAULT. No Default Condition, Event of Default or
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Commitment Suspension Event shall exist and Borrower shall in all
respects be in compliance with all of the terms of the Loan Documents,
as evidenced by its delivery of a certificate of no default to such
effect, to be substantially in the form of Exhibit "C" attached
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hereto.
(q) By deleting Supplement A to the Loan Agreement in its entirety
and by substituting the new Supplement A attached to this Amendment in lieu
thereof.
(r) By deleting Exhibit "C" to the Loan Agreement in its entirety
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and by substituting the new Exhibit "C" attached to this Amendment in lieu
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thereof.
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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 $40,000, in immediately available funds.
4. LIMITED WAIVER OF DEFAULT. An Event of Default has occurred and
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currently exists under the Loan Agreement as a result of Borrower's breach of
Section 12 of the Loan Agreement and Covenant (E) of Supplement A attached
thereto (the "Designated Default"). The Designated Default exists because of
Borrower's failure to maintain a Consolidated EBITDA of the Xstreme Division of
at least ($8,500,000) for the four quarters ended June 30, 2001. Borrower
represents and warrants that the Designated Default is the only Default
Condition or Event of Default that exists under the Loan Agreement and the other
Loan Documents as of the date hereof. Lender hereby waives the Designated
Default 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) 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 September 14, 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 Default;
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 except as
disclosed to Lender in writing, 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 representation, warranty or covenant herein shall
constitute an Event of Default.
10. EXPENSES OF LENDER. Borrower agrees to pay, ON DEMAND, all
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out-of-pocket costs and expenses incurred by Lender in connection with the
preparation, negotiation and execution of this Amendment and any other Loan
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Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including, without limitation, the reasonable 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.
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.
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.
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CONCURRENT COMPUTER CORPORATION
("Borrower")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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SUPPLEMENT A
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Financial Covenants
(A) CONSOLIDATED EBITDA. Maintain Consolidated EBITDA as of the last
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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, 2001 through ($ 2,100,000)
September 30, 2001
July 1, 2001 through ($ 2,000,000)
December 31, 2001
July 1, 2001 through $ 0
March 31, 2002
For the Four Fiscal Quarters $ 3,000,000
ending June 30, 2002
For the Four Fiscal Quarters $ 5,000,000
ending September 30, 2002
For the Four Fiscal Quarters $ 6,000,000
ending December 31, 2002
and at all times thereafter
(B) LEVERAGE RATIO. Maintain a ratio of Consolidated Total
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Liabilities to Consolidated Tangible Net Worth of not more than 2.0 to 1.0 at
all times.
(C) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Maintain a
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Consolidated Fixed Charge Coverage Ratio greater than or equal to the ratio set
forth below for the period applicable thereto, as of the last day of each Fiscal
Quarter for the four (4) Fiscal Quarters then ending:
Date Ratio
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September 30, 2001 N/A
December 31, 2001 N/A
March 31, 2002 N/A
June 30, 2002 N/A
September 30, 2002 1.0 to 1.0
December 31, 2002 1.25 to 1.0
and at all times thereafter
(D) DEBT COVERAGE RATIO. Maintain a Consolidated Funded
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Debt/EBITDA Ratio as of the last day of each Fiscal Quarter for the four (4)
Fiscal Quarters then ending of not more than the ratio set forth below for the
period corresponding thereto:
Period Ratio
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September 30, 2001 N/A
December 31, 2001 N/A
March 31, 2002 N/A
June 30, 2002 2.5 to 1.0
September 30, 2002 2.5 to 1.0
December 31, 2002 2.5 to 1.0
and at all times thereafter
(E) CONSOLIDATED EBITDA (XSTREME DIVISION). Maintain Consolidated
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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, 2001 through ($3,000,000)
September 30, 2001
July 1, 2001 through ($4,000,000)
December 31, 2001
July 1, 2001 through ($3,000,000)
March 31, 2002
For the Four Fiscal Quarters ($1,500,000)
ending June 30, 2002
For the Four Fiscal Quarters $ 1,000,000
ending September 30, 2002
For the Four Fiscal Quarters $ 2,000,000
ending December 31, 2002
and at all times thereafter
(F) CONSOLIDATED EBITDA (REAL-TIME DIVISION). Maintain
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Consolidated EBITDA of Real-Time Division as of the last day of each Fiscal
Quarter for the four (4) Fiscal Quarters then ending of at least the amounts set
forth below for the periods applicable thereto:
Period Amount
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July 1, 2001 through $700,000
September 30, 2001
July 1, 2001 through $1,750,000
December 31, 2001
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July 1, 2001 through $3,000,000
March 31, 2002
For the Four Fiscal Quarters $4,000,000
ending June 30, 2002
For the Four Fiscal Quarters N/A
ending September 30, 2002
For the Four Fiscal Quarters N/A
ending December 31, 2002
and at all times thereafter
(G) CURRENT RATIO. Maintain a Current Ratio as of the last day
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of each Fiscal Month during the period specified below of not less than the
ratio set forth below for the period corresponding thereto:
Period Ratio
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September 14, 2001 through 3.50 to 1.0
December 30, 2001
December 31, 2001 through 3.00 to 1.0
March 29, 2002
March 31, 2002 through 2.25 to 1.0
June 29, 2002
June 30, 2002 through 2.25 to 1.0
September 29, 2002
September 30, 2002 2.00 to 1.0
and at all times thereafter
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EXHIBIT C
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Certificate of No Default[/Request for Advance]
The undersigned, being the __________________ of CONCURRENT COMPUTER
CORPORATION ("Borrower"), and, in such capacity, being familiar with the matters
set forth herein and duly authorized and empowered to issue this Certificate for
and on behalf of Borrower, does hereby certify to WACHOVIA BANK, N.A.
("Lender"), in connection with and pursuant to that certain Loan and Security
Agreement, dated November 3, 2000, between Borrower and Lender (herein, as it
may be amended to date, called the "Loan Agreement"; capitalized terms used
herein, without definition, having the meaning given to such terms in the Loan
Agreement) that, as of the date of this Certificate, there exists no Event of
Default or Default Condition.
Without limiting the generality of the foregoing, Borrower is in
compliance with all financial covenants referenced in Section 12 of the Loan
Agreement and specified in Supplement A thereto, as demonstrated by the
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computations attached hereto.
The undersigned requests an Advance on this date in the amount of
$_____________, which Advance shall constitute a [Prime Borrowing][LIBOR
Borrowing].
WITNESS my hand as of ____________, 20__.
By:_______________________________________
Name:_____________________________________
Title:____________________________________