WAIVER AND AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT
WAIVER
AND AMENDMENT NO. 1
TO
THIS
WAIVER AND AMENDMENT NO. 1 (this “Amendment”) is entered into as of December 16,
2005, by
and
among OBLIO TELECOM, INC., a Delaware corporation (“Oblio”), each of its direct
and indirect subsidiaries signatory hereto (Oblio and each such subsidiary
are
referred to, individually and collectively, jointly and severally as the
“Borrower”), TITAN
GLOBAL HOLDINGS, INC
(f/k/a
Ventures- National Incorporated) (“Parent”), XXXXXXX EQUITY PARTNERS, LLC
(“Xxxxxxx”) (Parent, Xxxxxxx and Borrower, each individually a “Credit Party”
and collectively the “Credit Parties”) and CAPITALSOURCE FINANCE LLC, a Delaware
limited liability company (the “Lender”).
BACKGROUND
Borrower
and Lender entered into a Credit and Security Agreement dated as of
August
12, 2005 (as amended, restated, supplemented or otherwise modified from time
to
time, the “Loan Agreement”) pursuant to which Lender provided Borrower with
certain financial accommodations.
The
Borrower has requested that Lender waive
certain Events of Default that have occurred and make certain amendments
to the
Loan Agreement, and Lender is willing to do so on the terms and conditions
hereafter set forth.
NOW,
THEREFORE, in consideration of any loan or advance or grant of credit heretofore
or hereafter made to or for the account of Borrower by Lender, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions.
All
capitalized terms not otherwise defined herein shall have the meanings given
to
them in the Loan Agreement.
2. Acknowledgement.
Credit Parties hereby affirm and acknowledge that (a) as of December 13,
2005,
there is presently due and owing to Lender the principal amounts of
$2,860,142.93
with
respect to Revolving Facility, $
4,375,000.01
with
respect to Term Loan A and $5,599,999.99
with
respect to Term Loan B, in each case together with interest (including, without
limitation, interest at the Default Rate), costs, fees (including without
limitation, the Non-Compliance Fee) and expenses (collectively, the “Amount”),
(b) the Amount is due and owing without defense, offset or counterclaim
of
any kind or nature whatsoever, and (c) the Loan Documents are and
shall
continue to be legal, valid and binding obligations and agreements of Borrower
enforceable in accordance with their respective terms.
3. Waiver.
Subject to the satisfaction of conditions precedent set forth in Section
6
below, Lender hereby waives the Events of Default existing pursuant to (i)
Section 8.1(c) of the Loan Agreement as a result of Borrower’s failure to comply
(without giving effect to any amendments thereto in this Amendment No. 1)
with
Paragraph 1 of Annex 1 of the Loan Agreement as a result of Borrower’s failure
to maintain the Minimum EBITDA required for the one month period ending
September 30, 2005 and the two month period ending October 31, 2005, so long
as
Borrower’s EBITDA for such periods was not less than $470,000 and $340,000,
respectively; (ii) Section 8.1(b) of the Loan Agreement as a result of
Borrower’s failure to comply with Sections 5.4, 5.11, 5.18 and 5.20(b) of the
Loan Agreement solely due to Borrower maintaining
Inventory at locations in violation of the Loan Agreement and not disclosed
to
Lender,
so
long
as each of the events giving rise to such Defaults are complied with not
later
than the Amendment No. 1 Effective Date
and
(iii) Section 8.1(c) of the Loan Agreement as a result of Borrower’s failure to
comply with (x) Section 2.5 solely with respect to Borrower’s failure to ensure
that all collections are delivered to the appropriate Lockbox Account, and
(y)
Sections 6.16, 7.8 and 7.10(b) of the Loan Agreement solely with respect
to
Borrower maintaining Inventory at locations in violation of the Loan Agreement
and not disclosed to Lender, so long as each of the events giving rise to
the
foregoing Defaults are complied with not later than the Amendment No. 1
Effective Date. Lender’s election not to exercise any rights or remedies with
respect to the aforementioned Events of Default does not limit in any manner
whatsoever Borrower’s obligation to comply with, and Lender’s right to insist on
Borrower’s compliance with, each and every term of the Loan Agreement and the
other Loan Documents, including without limitation, the aforementioned Sections
in clauses (ii) and (iii) above, and such waivers shall not preclude the
future
exercise of any right, power, or privilege available to Lender whether under
the
Loan Agreement, the other Loan Documents or otherwise.
4. Amendment
to Loan Agreement. Subject to satisfaction of the conditions precedent set
forth
in Section 6 below, the Loan Agreement is hereby amended as
follows:
(a) The
fifth
sentence of Section 2.1(a) of the Loan Agreement is hereby amended in its
entirety to read as follows:
“Subject
to the provisions of this Agreement, Borrower may request Advances under
the
Revolving Facility up to and including the value, in U.S. Dollars, of the
Receivables Percentage of the Borrowing Base for Eligible Receivables minus,
if
applicable, amounts adjusted or reserved pursuant to this Agreement (such
calculated amount being referred to herein as the “Availability”).”
(b) Section
2.3 of the Loan Agreement is hereby amended by amending the first sentence
thereof in its entirety to read as follows:
“Interest
on outstanding Advances under the Revolving Facility shall be payable monthly
in
arrears on the first day of each calendar month at an annual rate of (i)
the
Prime
Rate plus five percent (5%)
during
the period commencing on the Amendment No. 1 Effective Date and continuing
through the later of (x) February 28, 2006 or (y) the repayment in full in
cash
of the Term Loan Facilities and (ii) the Prime Rate plus one percent (1%)
at all
other times, provided,
however,
that,
notwithstanding any provision of any Loan Document, for the purpose of
calculating interest hereunder, the Prime Rate shall be not less than six
and
one half percent (6.50%), in each case calculated on the basis of a 360-day
year
and for the actual number of calendar days elapsed in each interest calculation
period.”
(c) Section
2.5 of the Loan Agreement is hereby amended by amending the second sentence
thereof in its entirety to read as follows:
“Each
Borrower shall ensure that all collections of Borrower’s Accounts and all other
cash payments received by Borrower are paid and delivered directly from Account
Debtors and other Persons into the appropriate Lockbox Account; provided,
however,
Account
Debtors may send payments directly to Borrower (and not to the Lockbox Account)
so long as (a) such collections and proceeds shall be held in trust by Borrower
for the benefit of Lender, (b) Borrower immediately remits such collections
and
proceeds, in the form received, to the appropriate Lockbox Account, (c) on
a
daily basis, Borrower sends Lender (i) evidence of such deposit (on the date
of
such deposit) together with copies of the deposited checks or (ii) a notice
that
no deposits were made on such day. Whether or not there shall occur and be
existing and Event of Default, Lender may, in its sole discretion, instruct
Account Debtors to remit payments directly to the Lockbox Accounts and not
Borrower.”
(d) Section
2.7 of the Loan Agreement is hereby amended by amending the first sentence
thereof in its entirety to read as follows:
“Interest
on the outstanding balance of Term Loan A shall be payable monthly in arrears
on
the first day of each calendar month at an annual rate of (i) the Prime Rate
plus eight percent (8%) during the period commencing on the Amendment No.
1
Effective Date and continuing through the later of (x) February 28, 2006
or (y)
the repayment in full in cash of the Term Loan Facilities and (ii) the Prime
Rate plus four percent (4%) at all other times, provided,
however,
that,
notwithstanding any provision of any Loan Document, for the purpose of
calculating interest hereunder, the Prime Rate shall be not less than six
and
one half percent (6.50%), in each case calculated on the basis of a 360-day
year
and for the actual number of calendar days elapsed in each interest calculation
period.”
(e) Section
2.8 of the Loan Agreement is hereby amended in its entirety and replaced
with
the following:
“(a)
Payment of principal (in addition to the interest payments in Section 2.7)
and
all other amounts outstanding under Term Loan A shall be payable in equal
monthly installments of $208,333.33 each beginning October 1, 2005 and
continuing on the first day of each month thereafter.
(b)
The
unpaid principal amount of Term Loan A and all other Obligations under Term
Loan
A shall be due and payable in full, if not earlier in accordance with this
Agreement, on the earlier of (i) the occurrence of an Event of Default if
required pursuant hereto or Lender’s demand upon an Event of Default, and (ii)
February 28, 2006 (such earlier date being the “Term
Loan A Maturity Date”).”
(f) Section
2.10 of the Loan Agreement is hereby amended by amending the first sentence
thereof in its entirety to read as follows:
“Interest
on the outstanding balance of Term Loan B shall be payable monthly in arrears
on
the first day of each calendar month at an annual rate of (i) the Prime Rate
plus eight percent (8%) during the period commencing on the Amendment No.
1
Effective Date and continuing through the later of (x) February 28, 2006
or (y)
the repayment in full in cash of the Term Loan Facilities and (ii) the Prime
Rate plus four percent (4%) at all other times, provided,
however,
that,
notwithstanding any provision of any Loan Document, for the purpose of
calculating interest hereunder, the Prime Rate shall be not less than six
and
one half percent (6.50%), in each case calculated on the basis of a 360-day
year
and for the actual number of calendar days elapsed in each interest calculation
period.”
(g) Section
2.11 of the Loan Agreement is hereby amended in its entirety and replaced
with
the following:
“(a)
Payment of principal (in addition to the interest payments in Section 2.10)
and
all other amounts outstanding under Term Loan B shall be payable in equal
monthly installments of $266,666.67 each beginning October 1, 2005 and
continuing on the first day of each month thereafter.
(b)
The
unpaid principal amount of Term Loan B and all other Obligations under Term
Loan
B shall be due and payable in full, if not earlier in accordance with this
Agreement, on the earlier of (i) the occurrence of an Event of Default if
required pursuant hereto or Lender’s demand upon an Event of Default, and (ii)
February 28, 2006 (such earlier date being the “Term
Loan B Maturity Date”).”
(h) Section
3.5 of the Loan Agreement is hereby amended in its entirety to read as follows:
“Section
3.5. Default
Rate of Interest.
Upon
the occurrence and during the continuation of an Event of Default, the
Applicable Rate of interest in effect at such time with respect to the
Obligations shall be increased by (i) 0% if such Event of Default occurs
at any
time from the Amendment No. 1 Effective Date through and including February
28,
2006 and (ii) 4.0% per annum if such Event of Default occurs at any other
time
(the “Default
Rate”).”
(i) The
first
sentence of Section 5.20(b) is hereby deleted in its entirety.
(j) Paragraphs
1, 2 and 3 of Annex 1 to the Loan Agreement are hereby amended in their entirety
to read as follows:
| “1) |
Minimum
EBITDA
Borrower
shall maintain for each period set forth below a minimum EBITDA
of not
less than the amount set forth below opposite such period and
for the Test
Period ending on each subsequent month thereafter in an amount
not less
than $5,170,000.
|
|
Period:
|
Minimum
EBITDA:
|
|
|
For
the three (3) month period ending November 30, 2005
|
$1,150,000
|
|
|
For
the four (4) month period ending December 31, 2005
|
$1,490,000
|
|
|
For
the five (5) month period ending January 31, 2006
|
$1,830,000
|
|
|
For
the six (6) month period ending February 28, 2006
|
$2,170,000
|
|
|
For
the seven (7) month period ending March 31, 2006
|
$2,670,000
|
|
|
For
the eight (8) month period ending April 30, 2006
|
$3,170,000
|
|
|
For
the nine (9) month period ending May 31, 2006
|
$3,670,000
|
|
|
For
the ten (10) month period ending June 30, 2006
|
$4,170,000
|
|
|
For
the eleven (11) month period ending July 31, 200
|
$4,670,000
|
|
|
For
the twelve (12) month period ending August 31, 2006
|
$5,170,000
|
| 2) |
Fixed
Charge Coverage Ratio (EBITDA/Fixed
Charges)
|
Borrower
shall not permit the Fixed Charge Coverage for the Test Periods ending on
the
last day of the (i) fiscal quarter ending November 30, 2005 and February
28,
2006 to be less than 0.65 to 1 and (ii) fiscal quarters ending February 28,
2006, May 31, 2006, August 31, 2006 and for the twelve month period ending
November 30, 2006 and at the end of each month thereafter for the twelve
months
then ended to be less than 1.5:1.00. For the purposes of this covenant, Fixed
Charges shall be reduced by the amount of net proceeds realized by Borrower
from
its Equity Raise (as defined in Section 6(a) of Amendment No. 1) to the extent
such proceeds are applied to reduce the outstanding balance of the Term Loan
Facilities.
| 3) |
Minimum
Liquidity and Working Capital
|
Borrower
shall at all times have Available Cash on hand of not less than (i) $0 from
the
Amendment No. 1 Effective Date through February 28, 2006 and (ii) $500,000
at
all other times (the amount in (i) and (ii) above, the “Required Liquidity
Amount”); provided,
however,
that
payments made by or on behalf of Borrower prior to Closing, including without
limitation, commitment fees paid to Lender and all out of pocket expenses
in
connection with this transaction (for the avoidance of doubt, such amounts
shall
include $150,000 paid by Xxxxxxx with respect to the Commitment Fee and $100,000
paid by Xxxxxxx for expenses incurred in connection with the Closing) will
reduce such Available Cash requirement on a dollar for dollar basis;
provided, further,
that if
Available Cash on hand is less than the Required Liquidity Amount at any
time,
Borrower shall be required to raise additional equity in an amount sufficient
to
restore Available Cash in the amount of the Required Liquidity Amount by
not
later than ten (10) calendar days after the occurrence of such breach and
otherwise pursuant to documentation and terms satisfactory to
Lender.”
(k) Annex
1
of the Loan Agreement is hereby further amended by amending the following
defined terms in its entirety to read as follows:
“Test
Period”
shall
mean the twelve most recent calendar months then ended (taken as one accounting
period), or such other period as specified in the Agreement or any Annex
thereto; provided that for (i) the Test Period ended November 30, 2005 shall
mean the three month period then ended, (ii) the Test Period ended December
31,
2005 shall mean the four month period then ended, (iii) the Test Period ended
January 31, 2006 shall mean the five month period then ended, (iv) the
Test
Period ended February 28, 2006 shall mean the six month period then ended,
(v)
the
Test Period ended March 31, 2006 shall mean the seven month period then ended,
(vi) the Test Period ended April 30, 2006 shall mean the eight month period
then
ended, (vii) the Test Period ended May 31, 2006 shall mean the nine month
period
then ended, (viii) the Test Period ended June 30, 2006 shall mean the ten
month
period then ended, (ix) the Test Period ended July 31, 2006 shall mean the
eleven month period then ended, and (x) the Test Period ended August 31,
2006
shall mean the twelve month period then ended.
“Non-Compliance
Fee”
shall
mean a daily fee payable by Borrower equal to (x) $0 at any time from the
Amendment No. 1 Effective Date through and including February 28, 2006 and
(y)
after February 28, 2006, the greater of (i) $500, or (ii) five one-hundredths
of
one percent (0.05%) of the outstanding principal balance of the Obligations
as
of any date of determination.
(l) Appendix
A to the Loan Agreement is hereby amended by inserting the following defined
terms in their appropriate alphabetical order to read in their entirety as
follows:
“Amendment
No. 1”
shall
mean Waiver and Amendment No. 1 to Credit and Security Agreement dated as
of
December 13, 2005.
“Amendment
No. 1 Effective Date”
shall
mean December 13, 2005.
(m) Appendix
A to the Loan Agreement is hereby amended by deleting the defined terms
“Borrowing Base for Eligible Inventory”, “Eligible Inventory” and “Inventory
Percentage”.
(n) Schedules
5.4 and 5.11 to the Loan Agreement are hereby amended in their entirety to
read
as provided in Schedules 5.4 and 5.11 attached to Amendment No. 1.
5. Intellectual
Property Amendment.
Schedule C to the Intellectual Property Security Agreement, dated as of the
Closing Date between Oblio and Lender, and Schedule 5.11 of the Loan Agreement
are hereby amended by inserting the following trademarks:
|
Trademark
|
||
|
Xxxx
|
Registration
Number
|
Registered
Owner
|
|
BRAVO!
|
2802973
|
Oblio
Telecom, Inc.
|
|
Pending
|
||
|
Marks
|
Serial
Number
|
Registered
Owner
|
|
SOLO
|
78725114
|
Oblio
Telecom, Inc.
|
|
SMART
1
|
76314895
|
Oblio
Telecom, Inc.
|
6. Conditions
of Effectiveness.
This
Amendment shall become effective upon Lender’s receipt of the following items in
form and substance satisfactory to Lender and its counsel:
(a) four
(4)
copies of this Amendment duly executed by Credit Parties;
(b) an
amendment fee (“Amendment No.1 Fee”) equal to 0.25% of the sum of the Facility
Cap plus the outstanding principal balance of the Term Loan Facilities, which
Amendment No.1 Fee shall be earned in full on the Amendment No. 1 Effective
Date
and payable on the earlier to occur (x) the occurrence of an Event of Default
and (y) February 28, 2006;
(c) the
accrued Non-Compliance Fee in the sum of $228,420.04 for the period commencing
November 9, 2005 and continuing until the Amendment No. 1 Effective Date,
which
fee shall be earned in full on the Amendment No. 1 Effective Date and payable
on
the earlier to occur (x) the occurrence of an Event of Default and (y) February
28, 2006;
(d) Borrower
shall pay all costs, fees and expenses of Lender (including the reasonable
costs, fees and expenses of Lender’s in-house and outside counsel, consultants
and appraisers) incurred by Lender in connection with the negotiation,
preparation and closing of this Amendment No. 1, including, without limitation,
the costs (x) of that certain Inventory appraisal prepared by NASSI Group
and
(y) incurred in connection with the due
diligence services of Capstone Advisory Group, LLC, including its
services with
respect to the historical performance and prospective business plans of the
Borrower;
and
(e) such
other certificates, instruments, documents and agreements as may be required
by
Lender or its counsel.
7. Additional
Covenants.
(a) By
not
later than February 28, 2006, Credit Parties shall take all steps necessary
and
appropriate to raise additional equity in an amount sufficient to repay in
full
in cash the outstanding amount of the Term Loan Facilities (the “Equity Raise”).
By not later than January 9, 2006, Credit Parties shall have obtained a
bona fide
signed
letter of intent or proposal letter with respect to the Equity Raise from
a
third party financial institution or investor acceptable to Lender in its
Permitted Discretion and containing terms and conditions acceptable to Lender
in
its Permitted Discretion. Credit Parties acknowledges and agrees that the
Equity
Raise is consistent with the sound exercise of Borrower’s fiduciary duties based
upon each Credit Party’s current business operations and financial condition,
and in furtherance thereof, Credit Parties shall consummate the Equity Raise
if
a bona fide
offer
therefor acceptable to Lender in its Permitted Discretion is obtained from
a
third party financial institution or investor acceptable to Lender in its
Permitted Discretion.
(b) By
no
later than January 15, 2006, the stock of Xxxxxx Equipment, Inc. will be
traded
on the American Stock Exchange.
(c) In
the
event the outstanding balance of the Term Loan Facilities is not repaid in
full
in cash by February 28, 2006, Borrower shall pay a daily fee, in addition
to all
other interest, fees and charges payable pursuant to the Loan Agreement,
equal
to five one-hundredths of one percent (0.05%) of the outstanding principal
balance of the sum of Term Loan A and Term Loan B as of any date of
determination from the Amendment No. 1 Effective Date through and including
February 28, 2006.
8. Representations
and Warranties. Each
Credit Party hereby represents and warrants as follows:
(a) This
Amendment and the Loan Agreement, as amended hereby, constitute legal, valid
and
binding obligations of Credit Parties and are enforceable against Credit
Parties
in accordance with their respective terms.
(b) Upon
the
effectiveness of this Amendment, each Credit Party hereby reaffirms all
covenants, representations and warranties made in the Loan Agreement and
the
other Loan Documents to which it is a party to the extent the same are not
amended hereby and agree that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date of this
Amendment.
(c) Except
as
otherwise provided herein, no Event of Default or Default has occurred and
is
continuing or would exist after giving effect to this Amendment.
(d) No
Credit
Party has any defense, counterclaim or offset with respect to the Loan Agreement
or any other Loan Document to which it is a party.
9. Effect
on the Loan Agreement.
(a) Upon
the
effectiveness of Sections
4 and 5
hereof,
each reference in the Loan Agreement or any other Loan Document to “this
Agreement,”“hereunder,”“hereof,”“herein” or words of like import shall mean and
be a reference to the Loan Agreement or the applicable Loan Documents as
amended
hereby.
(b) Except
as
specifically amended herein, the Loan Documents, shall remain in full force
and
effect, and are hereby ratified and confirmed.
(c) Except
as
provided herein, the execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Lender, nor
constitute a waiver of any provision of the Loan Agreement, or any other
Loan
Documents.
10. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the internal
laws
of
the State of Maryland without giving effect to its choice of law provisions.
Any
judicial proceeding against Borrower with respect to the Obligations, any
Loan
Document (including this Amendment) or any related agreement may be brought
in
any federal or state court of competent jurisdiction located in the State
of
Maryland. Any judicial proceedings against Lender involving, directly or
indirectly, the Obligations, any Loan Document or any related agreement shall
be
brought only in a federal or state court located in the State of Maryland.
All
parties acknowledge that they participated in the negotiation and drafting
of
this Agreement with the assistance of counsel and that, accordingly, no party
shall move or petition a court construing this Agreement to construe it more
stringently against one party than against any other.
11. Headings.
Section headings in this Amendment are included herein for convenience of
reference only and shall not constitute a part of this Amendment for any
other
purpose.
12. Release.
Each Credit Party hereby releases, remises, acquits and forever discharges
Lender and its employees, agents, representatives, consultants, attorneys,
fiduciaries, servants, officers, directors, members, managers, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations, affiliates and related corporate divisions (all of the foregoing
hereinafter called the “Released Parties”), from any and all actions and causes
of action, judgments, executions, suits, debts, claims, demands, Obligations,
obligations, damages and expenses of any and every character, known or unknown,
direct and/or indirect, at law or in equity, of whatsoever kind or nature,
for
or because of any matter or things done, omitted or suffered to be done by
any
of the Released Parties prior to and including the date of execution hereof,
and
in any way directly or indirectly arising out of or in any way connected
to (i)
this Amendment, the Loan Agreement and the other Loan Documents, or (ii)
any
matter related to the foregoing (all of the foregoing hereinafter called
the
“Released Matters”). Each Credit Party acknowledges that the agreements in this
Section are intended to be in full satisfaction of all or any alleged injuries
or damages arising in connection with the Released Matters.
13. Expenses.
Credit Parties shall pay all reasonable costs, fees and expenses of Lender
(including the reasonable costs, fees and expenses of Lender’s in-house and
outside counsel, consultants and appraisers (including, without limitation,
that
certain appraisal of Borrower’s inventory prepared or being prepared by NASSI
Group and all expenses of Capstone Advisory Group, LLC)) incurred by Lender
from
and after the date of this Amendment in connection with the administration
and
enforcement of this Amendment. Each Credit Party further agrees that Advances
under the Revolving Facility may be made automatically by the Lenders for
the
payment of costs, fees and expenses of Lender (including the reasonable costs,
fees and expenses of Lender’s in-house and outside counsel, consultants and
appraisers).
14. Management
Fees. Each Credit Party represents and acknowledges that Borrower has not
paid
and neither Parent, Xxxxxxx nor any of their respective Affiliates have received
any management or services fee (“Distribution”) from any Borrower, whether under
a management services agreement or otherwise. Should any Distribution, in
respect of management or service fees, be collected or received by Parent,
Xxxxxxx or any of their respective Affiliates from Borrower prior to the
payment
in full in cash of the Obligations and the termination of the Loan Agreement,
then Parent, Xxxxxxx or such Affiliate shall forthwith deliver, or cause
to be
delivered, the same to Lender in precisely the form held by Parent, Xxxxxxx
or
such Affiliate (except for any necessary endorsement) and until so delivered,
the same shall be held in trust by Parent, Xxxxxxx or any such Affiliate,
as the
property of Lender and shall not be commingled with other property of the
Parent, Xxxxxxx or any such Affiliate.
15. Counterparts;
Facsimile. This Amendment may be executed by the parties hereto in one or
more
counterparts, each of which shall be deemed an original and all of which
when
taken together 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.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, each of the parties has duly executed this Amendment No.
1 as
of the date first written above.
| CAPITALSOURCE FINANCE LLC | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx |
|
| Its: | Managing Director | |
| OBLIO TELECOM, INC. | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
|
Name:
|
Xxxxxx Xxxxxxx |
|
| Its: | Chief Financial Officer | |
| PINLESS, INC. | ||
| By: | /s/ Xxxxxx Xxxxxxx | |
|
Name:
|
Xxxxxx Xxxxxxx |
|
| Its: | Chief Financial Officer | |
ACKNOWLEDGED
AND AGREED:
By:
/s/
Xxxxx X. Xxxxx
Title:
Chairman
XXXXXXX
EQUITY PARTNERS, LLC
By:
/s/
Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Its:
Managing Member
