Exhibit 10.7(c)
AMENDMENT NO. 2
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 2, dated as of November 10, 1993, is
between Concurrent Computer Corporation (the "Company"), Fleet
Bank of Massachusetts, N.A. ("Fleet") and CIBC Inc. (the
"Lenders").
WHEREAS, the parties have decided to amend the Second
Amended and Restated Credit Agreement dated as of July 21, 1993,
as amended by Amendment No. 1 to Second Amended and Restated
Credit Agreement dated as of September 28, 1993 (the "Credit
Agreement") between the Company, the Lenders and Fleet, as Agent
for the Lenders by, among other things, providing for the
issuance by Fleet to the Company of three standby letters of
credit;
NOW, THEREFORE, the Company and, pursuant to Section 12.04
of the Credit Agreement, the Lenders hereby agree as follows:
1. Terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Credit Agreement.
2. The Credit Agreement is amended by adding the following
Section 3A at the end of Section 3:
"Section 3A. Standby L/C's.
(i) Issuance Procedures. The Company may
request, and Fleet will issue three standby
letters of credit in favor of The Industrial
Bank of Japan Limited, The Sumitomo Bank and
The Mitsubishi Bank Limited in the respective
amounts of $1,800,000, $800,000 and $400,000
with respective expiration dates of June 30,
1995 (the "Standby L/C's") provided that on or
before November 15, 1993, the Company shall
deliver to Fleet standby letter of credit
applications and agreements (which, together
with all schedules and exhibits thereto, shall
be in form and substance satisfactory to Fleet
and its counsel) and such other certificates,
documents and other papers and information as
Fleet may reasonably request. Provided the
Company delivers to Fleet the above-described
documents on or before the foregoing date and
no Event of Default exists, Fleet shall issue
the Standby L/C's on or before November 19,
1993.
(ii) Drawing and Reimbursement. The
payment by Fleet of a draft drawn under any
Standby L/C shall constitute an "L/C Advance."
Upon written demand by Fleet to CIBC, CIBC
shall purchase from Fleet, and Fleet shall sell
and assign to CIBC, a percentage of such L/C
Advance equal to the product of the Advance and
CIBC's pro rata interest in the outstanding
principal due under the Term Loans, by paying
Fleet an amount equal to such product. The
Company hereby agrees to any such sale and
assignment. CIBC agrees to purchase its pro
rata share of any L/C Advance on (a) the
Banking Day on which demand therefor is made by
Fleet, provided that notice of such demand is
given not later than 1:00 p.m. (Boston time) on
such Banking Day or (b) the first Banking Day
next succeeding such demand if notice of the
demand is given after such time and in each
case such obligation shall be absolute and
unconditional, notwithstanding the occurrence
or continuation of an Event of Default. In the
event CIBC shall not have so purchased its pro
rata share of an L/C Advance in a timely
fashion, CIBC agrees to pay Fleet interest at
the Federal Funds Rate on its pro rata share
thereof for each day from the date of demand by
Fleet until the date such amount is paid to
Fleet.
(iii) Fees. In connection with the
issuance of the Standby L/C's, the Company
shall pay to (a) Fleet its transactional fees
at Fleet's customary rate (not to exceed $150
per Standby L/C), and (b) the Agent (for the
account of Fleet and CIBC in accordance with
their respective pro rata interests in the Term
Loans), three percent per annum on the face
amount of the Standby L/C's, payable quarterly
in arrears.
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(iv) Repayment. On the date of an L/C
Advance, the Company shall repay Fleet (for its
account and for the account of CIBC to the
extent CIBC has purchased a pro rata share of
such Advance) the outstanding amount of such
Advance. In the event the Company fails to so
pay Fleet on such date, until repayment of the
subject L/C Advance, the Company shall pay to
Fleet (for its account and for the account of
CIBC to the extent CIBC has purchased a pro
rata share of such Advance) interest on such
amount at the Post-Default Rate.
(v) Obligations Absolute, etc. The
obligations of the Company under this
Agreement, any standby letter of credit
agreement and any other agreement or instrument
relating to any Standby L/C (a) shall be
unconditional and irrevocable, (b) constitute
"Secured Obligations" (as defined in the
Amended Security Agreement and the Pledge
Agreements), and (c) are secured by the
Mortgage."
3. Section 4.01 of the Credit Agreement is amended by
adding the following to the end of such Section:
"Notwithstanding the foregoing, for the
period November 30, 1993 through February 28,
1994, the Company may elect to defer a total
of four monthly principal installments,
provided on the last Banking Day of any such
month for which the Company elects to so
defer a monthly installment, the Company
certifies in writing to Fleet and CIBC that
as of the third Friday of such month, the
aggregate of the Company's cash and cash
equivalents is less than $11,687,500. The
Company covenants that on April 1, 1994, the
aggregate of the principal balance of the
Term Loans and the face amount of the
outstanding Standby L/C's shall not exceed
$25,312,500."
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4. Section 4.04(d) of the Credit Agreement is amended by
adding the following sentence at the end of such subsection:
"The Company shall pay to Fleet and CIBC such
amount or amounts as shall be sufficient (in
the reasonable opinion of the Lenders) to
compensate the Lenders for any loss, cost or
expense in connection with the payment or
prepayment of the Term Loans on a date prior
to the end of any Interest Period if the Term
Loans on the date of such payment or
prepayment are subject to a Eurodollar Rate."
5. Section 4.03 of the Credit Agreement is amended by
adding subsection (g) to such Section:
"(g) November 1993 Prepayment, etc. Within seven
Banking Days of the issuance of the Standby
L/C's, CNC shall pay to the Company
$3,000,000 of the intercompany obligations
due to the Company from CNC, and the Company
shall prepay the Term Loans by $3,000,000.
6. Other than with respect to Sections 8.04, 8.05, 8.12,
9.27, 9.28, 9.29 and 9.33 of the Credit Agreement, the Company
represents and warrants that (a) the representations and
warranties set forth in the Credit Agreement are true and
accurate as of the date hereof, and (b) no Specified Event
exists. Notwithstanding the foregoing, the Company represents
and warrants that except with regard to liens on account of
alleged outstanding New Jersey franchise taxes, the
representations and warranties contained in Section 8.05 of the
Credit Agreement are true and accurate as of the date hereof.
7. On or before December 31, 1993, the Company shall pay
in full (and provide the Agent with satisfactory evidence of such
payment) all outstanding New Jersey franchise taxes and related
interest and penalties determined to be outstanding, due and
payable.
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8. This Amendment No. 2 only shall be effective upon the
Agent's receipt of (a) an originally executed officer's
certificate from the Secretary of the Company in a form
acceptable to the Agent certifying, among other things,
incumbency and the resolutions adopted by the Board of Directors
of the Company authorizing the execution, delivery and
performance of this Amendment No. 2, and (b) an original
certificate from the Delaware Secretary of State dated on or
after November 1, 1993 certifying the Company's good standing and
legal existence.
9. Except as otherwise expressly provided above, all terms
and conditions of the Credit Agreement shall remain in full force
and effect. This Amendment No. 2 may be executed in any number
of counterparts, all of which taken together shall constitute one
and the same instrument and any of the other parties hereto may
execute this Amendment No. 2 by signing any such counterpart.
This Amendment No. 2 shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties have caused this Amendment
No. 2 to be duly executed as of the date first above written.
CONCURRENT COMPUTER CORPORATION
By:_____________________________________
FLEET BANK OF MASSACHUSETTS, N.A.
By:_____________________________________
CIBC Inc.
By:______________________________________
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SECTION 7.01(b) Certificate
----------------------------
I, James P. McCloskey, Vice President of Concurrent Computer
Corporation, pursuant to Section 7.01(b) of the Second Amended
and Restated Credit Agreement dated as of July 21, 1993 ("Credit
Agreement") between the Company and the Lenders and Agent named
therein, hereby certify that (i) no Default has occurred and is
continuing, and (ii) to my knowledge after reasonable inquiry,
the Company has operated through June 30, 1993 substantially in
accordance with the most recent projections delivered by the
Company to the Lenders. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to
them in the Credit Agreement.
--------------------------------
James P. McCloskey
Vice President
Dated: As of July 21, 1993