-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CW1FRoxnv1JoIH0O4y6ugYfLI4rVV7pgZJPNIlbMUNzg+JvvsBrQuUynTaj6+RCC 70huCSJVVqI/lCgF8TGl/g== 0001140361-06-012761.txt : 20060831 0001140361-06-012761.hdr.sgml : 20060831 20060831160857 ACCESSION NUMBER: 0001140361-06-012761 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 20060831 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060831 DATE AS OF CHANGE: 20060831 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONCURRENT COMPUTER CORP/DE CENTRAL INDEX KEY: 0000749038 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRONIC COMPUTERS [3571] IRS NUMBER: 042735766 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-13150 FILM NUMBER: 061068632 BUSINESS ADDRESS: STREET 1: 4375 RIVER GREEN PARKWAY CITY: DULUTH STATE: GA ZIP: 30097 BUSINESS PHONE: 6782584000 MAIL ADDRESS: STREET 1: 4375 RIVER GREEN PARKWAY CITY: DULUTH STATE: GA ZIP: 30097 FORMER COMPANY: FORMER CONFORMED NAME: MASSACHUSETTS COMPUTER CORP DATE OF NAME CHANGE: 19881018 8-K 1 form8k.txt CONCURRENT COMPUTER 8-K 8-31-2006 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------ FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): August 31, 2006 Concurrent Computer Corporation ------------------------------- (Exact Name of Registrant as Specified in its Charter) Delaware 0-13150 04-2735766 -------- ------- ---------- (State or Other (Commission (IRS Employer Jurisdiction File Number) Identification Number) of Incorporation) 4375 River Green Parkway, Suite 100, Duluth, Georgia 30096 ---------------------------------------------------- ----- (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (678) 258-4000 -------------- Not applicable -------------- (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. On August 31, 2006, we entered into a Waiver and Third Loan Modification Agreement ("Modification Agreement") with Silicon Valley Bank. The Modification Agreement provides for the waiver of our event of default on June 30, 2006, as previously reported in our Form 8-K on August 14, 2006, and revises the financial covenants to better reflect Concurrent's operations. ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS. (d) Exhibits. Exhibit Number Description 10.1 Waiver and Third Loan Modification Agreement, dated August 31, 2006, by and between Concurrent Computer Corporation and Silicon Valley Bank. Signatures ---------- Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. CONCURRENT COMPUTER CORPORATION Date: August 31, 2006 By: /s/ Gregory S. Wilson -------------------------------- Gregory S. Wilson Chief Financial Officer 3 EXHIBIT INDEX Exhibit Number Description - -------------- ----------- 10.1 Waiver and Third Loan Modification Agreement, dated August 31, 2006, by and between Concurrent Computer Corporation and Silicon Valley Bank. 4 EX-10.1 2 ex10_1.txt EXHIBIT 10.1 EXHIBIT 10.1 WAIVER AND THIRD LOAN MODIFICATION AGREEMENT This Waiver and Third Loan Modification Agreement (this "Modification Agreement") is entered into as of August 31, 2006, by and between CONCURRENT COMPUTER CORPORATION ("Borrower") whose address is 4375 River Green Parkway, Duluth, Georgia 30096, and SILICON VALLEY BANK ("Lender") whose address is 3003 Tasman Drive, Santa Clara, CA 95054 and with a loan production office at 3353 Peachtree Road, NE, North Tower, Suite M-10, Atlanta, Georgia 30326. 1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may --------------------------------------- be owing by Borrower to Lender, Borrower is indebted to Lender pursuant to, among other documents, a Loan and Security Agreement, dated December 23, 2004, as may be amended from time to time (the "Loan Agreement"), which provides for, among other things, a Committed Line in the original principal amount of Ten Million Dollars ($10,000,000) (the "Revolving Facility") and a term loan in the original principal amount of Three Million Dollars ($3,000,000) (the "Term Loan"). Hereinafter, all indebtedness owing by Borrower to Lender, including the Term Loan and all amounts outstanding under the Revolving Facility shall be referred to as the "Indebtedness." 2. DESCRIPTION OF COLLATERAL AND GUARANTIES. Repayment of the Indebtedness -------------------------------------------- is secured by (a) the Collateral as described in the Loan Agreement; (b) a Pledge Agreement dated as of December 23, 2004, as amended from time to time (the "Pledge Agreement") between Borrower and Lender; (c) a Guaranty dated as of April 6, 2006, executed by Everstream Holdings, Inc., Everstream, Inc. and EHI Patent Co. LLC; and (d) a Secured Agreement dated as of April 6, 2006 executed by Everstream Holdings, Inc., Everstream, Inc. and EHI Patent Co. LLC. Hereinafter, the above-described security documents and guaranties, together with all other documents securing repayment of the Indebtedness shall be referred to as the "Security Documents". Hereinafter, the Security Documents, together with all other documents evidencing or securing the Indebtedness shall be referred to as the "Existing Loan Documents". 3. DESCRIPTION OF CHANGE IN TERMS. The Loan Agreement is hereby amended by ---------------------------------- deleting Section 6.7 thereof in its entirety and by substituting therefore a new Section 6. 7 to read as follows: 6.7 FINANCIAL COVENANTS. Borrower will maintain: (a) ADJUSTED QUICK RATIO. An Adjusted Quick Ratio of not less than 1.50 to 1.00 as of the last date of each month. (b) TANGIBLE NET WORTH. A Tangible Net Worth of at least equal to the sum of (i) $13,000,000 as of the last day of the fiscal quarter of Borrower ending September 30, 2006 and $10,000,000 as of the last day of each fiscal quarter thereafter plus (ii) an amount equal to fifty percent (50%) of (A) Borrower's positive net income for any quarter ending after the Closing Date; (B) the principal amount of Subordinated Debt incurred by Borrower after the Closing Date; and (C) the proceeds, net of commission and expenses, received by Borrower from the issuance of shares of its capital stock after the Closing Date. 4. WAIVER. Subject to the terms and conditions set forth herein, Lender ------ waives any Event of Default arising out of the failure of Borrower to maintain the Tangible Net Worth required by Section 6.7(b) of the Loan Agreement for the fiscal quarter ending June 30, 2006. 5. COVENANT. Borrower agrees that within fifteen (15) business days of the -------- date hereof, it shall cause Everstream Holdings, Inc. ("Everstream") to execute and deliver to Lender, in form and substance satisfactory to Lender and its counsel, a Pledge Agreement pledging to Lender as security for the Obligations all of the issued and outstanding equity interests of the Subsidiaries of Everstream, free and clear of all Liens, together with original stock certificates and stock powers, signed in blank, for all shares of corporate stock included in such equity interests. 6. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever ------------------ necessary to reflect the changes described above. 7. PAYMENT OF EXPENSES. Borrower shall reimburse Lender for all of its --------------------- reasonable out-of-pocket expenses, including fees and expenses of counsel, incurred in connection with the transactions contemplated by this Modification Agreement. 8. NO DEFENSES OF BORROWER. Borrower agrees that it has no defenses against -------------------------- the obligations to pay any amounts under the Indebtedness. 9. CONTINUING VALIDITY. Borrower understands and agrees that in modifying -------------------- the existing Indebtedness, Lender is relying upon Borrower's representations, warranties, and agreements, as set forth in the Existing Loan Documents. Except as expressly modified pursuant to this Modification Agreement, the terms of the Existing Loan Documents remain unchanged and in full force and effect. Lender's agreement to modifications to the existing Indebtedness pursuant to this Modification Agreement in no way shall obligate Lender to make any future modifications to the Indebtedness. Nothing in this Modification Agreement shall constitute a satisfaction of the Indebtedness. It is the intention of Lender and Borrower to retain as liable parties all makers and endorsers of Existing Loan Documents, unless the party is expressly released by Lender in writing. No maker, endorser, or guarantor will be released by virtue of this Modification Agreement. The terms of this paragraph apply not only to this Modification Agreement, but also to all subsequent loan modification agreements. 10. CONDITIONS. This Modification Agreement shall be deemed effective upon ---------- (a) the due execution and delivery to Bank of this Modification Agreement by each party hereto, (b) Borrower's payment of an amendment fee in an amount equal to $3,500, (c) Bank's receipt of the Acknowledgment of Amendment and Reaffirmation of Guaranty substantially in the form attached hereto as Schedule 1, duly executed and delivered by each Guarantor, and (d) Borrower's payment of all outstanding legal fees and expenses. This Modification Agreement is executed under seal as of the date first written above. BORROWER: LENDER: CONCURRENT COMPUTER CORPORATION SILICON VALLEY BANK By: By: -------------------------------- --------------------------------- Name: Name: Title: Title: [CORPORATE SEAL] SCHEDULE 1 GUARANTOR ACKNOWLEDGMENT AND REAFFIRMATION SECTION 1. Each Guarantor hereby acknowledges and confirms that it has reviewed and approved the terms and conditions of the Waiver and Third Loan Modification Agreement dated as of even date herewith (the "Modification Agreement"). SECTION 2. Each Guarantor hereby consents to the Modification Agreement and agrees that the Guaranty dated as of April 6, 2006 (the "Guaranty") relating to the Obligations of Borrower under the Loan Agreement shall continue in full force and effect, shall be valid and enforceable and shall not be impaired or otherwise affected by the execution of the Modification Agreement or any other document or instrument delivered in connection herewith. SECTION 3. Each Guarantor hereby agrees that the Security Agreement dated as of April 6, 2006 (the "Security Agreement") securing the Obligations of Borrower under the Loan Agreement and the obligations of the Guarantors under the Guaranty shall continue in full force and effect, shall be valid and enforceable and shall not be impaired or otherwise affected by the execution of the Modification Agreement or any other document or instrument delivered in connection herewith. SECTION 4. Each Guarantor represents and warrants that, after giving effect to the Modification Agreement, all representations and warranties contained in the Guaranty and the Security Agreement are true, accurate and complete as if made the date hereof. Dated as of August 31, 2006 GUARANTOR EVERSTREAM HOLDINGS, INC. By: ----------------------------------- Name: Title: [CORPORATE SEAL] EVERSTREAM, INC. By: ----------------------------------- Name: Title: [CORPORATE SEAL] EHI PATENT CO. LLC By: ----------------------------------- Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----