Fourth Amendment to Amended And Restated Loan and Security Agreement

THIS SUBSIDIARY REAFFIRMATION AGREEMENT (this “Agreement”) is entered into as of July 1, 2009, by EVERSTREAM HOLDINGS, INC., a Delaware corporation, EVERSTREAM, INC., a Delaware corporation, and EHI PATENT CO. LLC, a New York limited liability company (each an “Obligor” and collectively, the “Obligors”) in favor of SILICON VALLEY BANK (“Bank”).

W I T N E S S E T H :

WHEREAS, Concurrent Computer Corporation (“Borrower”) and Bank entered into a certain Loan and Security Agreement dated as of December 23, 2004 between Borrower and Bank (as amended from time to time, the “Original Loan Agreement”) pursuant to which Bank made certain loans and extensions of credit to Borrower; and

WHEREAS, in connection with the Original Loan Agreement, Obligors have executed and delivered to Bank (a) that certain Unconditional Guaranty dated April 6, 2006 (as amended from time to time, the “Guaranty”), pursuant to which Obligors, among other things, have unconditionally guaranteed repayment of all Obligations under the Original Loan Agreement; (b) that certain Security Agreement dated as of April 6, 2006 (as amended from time to time, the “Security Agreement”) pursuant to which the Obligors granted to the Bank a security interest in substantially all of their assets as security for their obligations under the Guaranty and for the obligations of the Borrower under the Original Loan Agreement and (c) that certain Intellectual Property Security Agreement dated April 6, 2006 (as amended from time to time, the “IP Security Agreement”) pursuant to which the Obligors granted to the Bank a security interest in substantially all of their Intellectual Property as security for their obligations under the Guaranty and for the obligations of the Borrower under the Original Loan Agreement; and

WHEREAS, Borrower and Bank amended and restated the Original Loan Agreement pursuant to that certain Amended and Restated Loan and Security Agreement dated as of December 22, 2006 (the “Loan Agreement”) and, in connection therewith, the Obligors reaffirmed their obligations under the Guaranty, the Security Agreement and the IP Security Agreement as security for the obligations arising under the Loan Agreement; and

WHEREAS, Borrower and Bank propose to amend the Loan Agreement pursuant to that certain Fourth Amendment to Amended and Restated Loan and Security Agreement dated of even date herewith (the “Fourth Amendment”) to permit the Borrower to incur an increased amount of secured indebtedness and to make certain other amendments set forth therein;

WHEREAS, it is a condition precedent to the effectiveness of the Fourth Amendment that the Obligors execute and deliver this Agreement;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Obligors agree as follows:

 

 

1.           All capitalized terms used herein and not otherwise defined shall have the meanings given to such terms in the Loan Agreement, as amended through and including the Fourth Amendment (the “Amended Loan Agreement”).

2.           Each Obligor acknowledges receipt of a copy of the Fourth Amendment and consent to, and agree to be bound by, to the extent applicable the terms and conditions thereof.

3.           Each Obligor hereby agrees that all references in the Guaranty, the Security Agreement and the IP Security Agreement to the “Loan Agreement” shall henceforth be deemed to refer to the Amended Loan Agreement.

4.           Each Obligor acknowledges and agrees that all obligations of the Borrower under the Amended Loan Agreement are included in the “Obligations,” as such term is defined in the Guaranty, and are guaranteed by the Guaranty.

5.           Each Obligor acknowledges and agrees that all Obligations of the Borrower under the Amended Loan Agreement are included in the “Obligations,” as such term is used in the Security Agreement, and are secured by the security interests in the Collateral granted by the Security Agreement.

6.           Each Obligor acknowledges and agrees that all Obligations under the Amended Loan Agreement are secured by the security interests in the Intellectual Property granted by the IP Security Agreement.

7.           Each Obligor reaffirms all the terms and conditions of the Guaranty, the Security Agreement and the IP Security Agreement and agrees that the Guaranty, the Security Agreement and the IP Security Agreement, and their obligations thereunder, remain in full force and effect, without release, diminution or impairment, notwithstanding the execution and delivery of the Fourth Amendment or any other agreement, document or instrument.

8.           This Agreement may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, are an original, and all taken together, are one Agreement.  This Agreement shall constitute a Loan Document.

 

9.           This Agreement shall be governed by the laws of the State of Georgia.

 

[signatures appear on following page]

 

IN WITNESS WHEREOF, the Obligors have executed this Reaffirmation and Agreement under seal as of the date first written above.

 

	EVERSTREAM HOLDINGS, INC.
	By:	/s/ Emory O. Berry
	Name: Emory O. Berry
	Title: Director
	EVERSTREAM, INC.
	By:	/s/ Emory O. Berry
	Name: Emory O. Berry
	Title: Director
	EHI PATENT CO. LLC
	By:	/s/ Emory O. Berry
	Name: Emory O. Berry
	Title: Director

reaffirmation of subsidiaries

signature page

 

	CONCURRENT REALISATIONS LTD.
	By:	N/A
		Name: N/A
		Title: N/A
	CONCURRENT COMPUTER CORPORATION PTY LTD
	By:	/s/ Kirk L. Somers
		Name: Kirk L. Somers
		Title: Director