Contract
Exhibit 10.1
FOURTH AMENDMENT AND CONSENT dated as of September 30, 2013 (“Amendment”), executed in connection with the LOAN AND SECURITY AGREEMENT, dated as of September 17, 2012 (as such Agreement has been and may hereafter be amended, supplemented or restated from time to time, the “Loan Agreement”), by and among INTERCLOUD SYSTEMS, INC. f/k/a GENESIS GROUP HOLDINGS, INC., a Delaware corporation (the “Borrower”), XXXXX-XXXXXXXX LEASING, LLC, an Alabama limited liability company, TROPICAL COMMUNICATIONS, INC., a Florida corporation, ADEXCOMM CORPORATION, a Florida corporation, ENVIRONMENTAL REMEDIATION AND FINANCIAL SERVICES, LLC, a New Jersey limited liability company, AW SOLUTIONS, INC., a Florida corporation, and each other Person that is now, or from time to time hereafter may become, a party thereto as a guarantor (collectively, the “Guarantors,” and each a “Guarantor”), MIDMARKET CAPITAL PARTNERS, LLC, a Delaware limited liability company (“MMCP”), in its capacity as agent for the Lenders, as hereinafter defined (in such capacity, the “Agent”), and each of the financial institutions which is now or which hereafter becomes a party thereto as a lender (each individually a “Lender”, and collectively, the “Lenders”). Terms which are capitalized in this Amendment and not otherwise defined shall have the meanings ascribed to such terms in the Loan Agreement.
WHEREAS, Borrower has requested and Lenders have agreed to (i) consent to the Loan Parties’ incurrence of certain Indebtedness pursuant to the PNC Credit Agreement and (ii) agree to certain modifications to the terms and provisions of the Loan Agreement, in each case on the terms and subject to the conditions contained in this Amendment, as more particularly described in this Amendment;
NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party hereto, and intending to be legally bound, the Borrower, the Guarantors, the Agent and the Lenders hereby agree as follows:
Section One. Consent.
(a) Effective upon the satisfaction of the conditions precedent contained in Section Four (a) hereof, and notwithstanding any of the restrictions contained in Section 6 of the Loan Agreement or anything to the contrary contained in the Loan Agreement or the other Loan Documents, Lenders hereby consent to Loan Parties’ incurrence of Indebtedness under the PNC Credit Agreement, to the extent of the amounts set forth in clause (k) of Section 6.1 of the Loan Agreement (as amended by Section Two (a)(i) hereof).
(b) Effective upon the satisfaction of the conditions precedent contained in Section Four (b) hereof, and notwithstanding any of the restrictions contained in Section 6 of the Loan Agreement or anything to the contrary contained in the Loan Agreement or the other Loan Documents, Lenders hereby consent to Loan Parties’ incurrence of Indebtedness under the PNC Credit Agreement, to the extent of the amounts set forth in clause (k) of Section 6.1 of the Loan Agreement (as amended by Section Two (b)(iii) hereof).
Section Two. Amendment.
(a) Subject to the satisfaction of the conditions precedent contained in Section Four (a) hereof, the Loan Agreement is hereby amended effective as of the date of this Amendment as follows:
(i) Section 6.1. Indebtedness and Liabilities. Clause (k) of Section 6.1 of the Loan Agreement is deleted in its entirety and the following is substituted in lieu thereof:
(k) Indebtedness owing under the PNC Credit Agreement in an amount equal to the sum of (i) an aggregate principal amount not to exceed $1,000,000 at any one time outstanding, provided that any such amount shall be used exclusively to (a) pay the transactional fees and expenses relating to the events contemplated to occur under the PNC Loan Documents and this Amendment on the Third Amendment Closing Date and (b) make scheduled payments of principal and interest on the Term Loan, plus (ii) all interest, fees, costs and expenses that are capitalized into principal under the PNC Loan Documents as in effect on the date of this Amendment and as may be amended to the extent permitted by the Intercreditor Agreement
(b) Subject to the satisfaction of the conditions precedent contained in Section Four (b) hereof, the Loan Agreement is hereby amended effective as of the date of this Amendment as follows:
(i) Section 1.1. Certain Defined Terms. Section 1.1 of the Loan Agreement is amended by (i) amending and restating the definition of “Additional Term Loan Maturity Date”, and (ii) by adding the following defined term thereto: “Additional Term Loan Installment Date”:
“Additional Term Loan Installment Date” means November 13, 2013.
“Additional Term Loan Maturity Date” means December 30, 2013.
(ii) Section 2.5(C). Scheduled Payments. Section 2.5(C) of the Loan Agreement is amended by deleting the last sentence of Section 2.5(C) in its entirety and by substituting the following in lieu thereof: “The principal amount of the Additional Term Loan shall be repaid in two installments, (i) on the Additional Term Loan Installment Date in the amount of $500,000 and (ii) on the Additional Term Loan Maturity Date in an amount equal to the entire remaining unpaid principal amount of the Additional Term Loan, in each case by automatic wire transfer to Agent’s bank account.”
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(iii) Section 6.1. Indebtedness and Liabilities. Clause (k) of Section 6.1 of the Loan Agreement is deleted in its entirety and the following is substituted in lieu thereof:
(k) Indebtedness owing under the PNC Credit Agreement in an amount equal to the sum of (i) an aggregate principal amount not to exceed $1,000,000 at any one time outstanding, provided that any such amount shall be used exclusively to (a) pay the transactional fees and expenses relating to the events contemplated to occur under the PNC Loan Documents and this Amendment on the Third Amendment Closing Date and (b) make scheduled payments of principal and interest on the Term Loan, plus (ii) additional Indebtedness owing under the PNC Credit Agreement in an aggregate principal amount not to exceed $9,000,000 at any one time outstanding; provided, that in the case of any Indebtedness permitted to be incurred under this clause (ii), (a) the Borrower shall have in each instance obtained the written consent of Agent prior to the incurrence of any such Indebtedness, which consent may be provided or withheld by Agent in its sole and absolute discretion and (b) no Event of Default shall have occurred and be continuing, plus (iii) all interest, fees, costs and expenses that are capitalized into principal under the PNC Loan Documents as in effect on the date of this Amendment and as may be amended to the extent permitted by the Intercreditor Agreement.
Section Three. Representations and Warranties. To induce the Agent and the Lenders to execute this Amendment, Borrower and each Guarantor warrant and represent as follows:
(a) all of the representations and warranties contained in the Loan Agreement and each other Loan Document are correct on and as of the date hereof as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date, with the exception of any representation or warranty in respect of the non-existence of any Event of Default, to the extent any such Event of Default was waived pursuant to the Second Amendment;
(b) the execution, delivery and performance of this Amendment by Borrower and each Guarantor is within their respective limited liability company or corporate, as applicable, powers, has been duly authorized by all necessary limited liability company or corporate, as applicable, action on their part, and Borrower and each Guarantor have received all necessary amendments and approvals (if any shall be required) for the execution and delivery of this Amendment;
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(c) upon its execution, this Amendment shall constitute the legal, valid and binding obligation of Borrower and each Guarantor, enforceable against each of them in accordance with its terms; and
(d) immediately after giving effect to this Amendment, Borrower and Guarantors are not in default under any indenture, mortgage, deed of trust, or other material agreement or material instrument to which any of them are a party or by which any of them may be bound. Neither the execution and delivery of this Amendment, nor the consummation of the transactions herein contemplated, nor compliance with the provisions hereof, in each case by Borrower and each Guarantor will (i) require any authorization, amendment or approval by, or registration, declaration or filing with, or notice to, any governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, or any third party, except such authorization, amendment, approval, registration, declaration, filing or notice as has been obtained, accomplished or given prior to the date hereof; (ii) violate any provision of any law, rule or regulation (including Regulation X of the Board of Governors of the Federal Reserve System) or of any order, writ, injunction or decree presently in effect having applicability to the Borrower or any Guarantor or of the Borrower’s or any Guarantors’ formation or governing documents; (iii) result in a breach of or constitute a default under any indenture or loan or Loan Agreement or any other material agreement, lease or instrument to which the Borrower or any Guarantor is a party or by which the Borrower, any Guarantor or any of their respective properties may be bound or affected; or (iv) result in, or require, the creation or imposition of any lien upon or with respect to any of the properties now owned or hereafter acquired by the Borrower or any Guarantor, other than liens and security interests in favor of the Agent which secure the Obligations.
Section Four. Conditions Precedent to Amendment and Consent.
(a) This Amendment shall become effective upon the satisfaction of all of the following conditions precedent (with the exception of the consent and amendments contemplated to occur pursuant to Section One (b) and Section Two (b) hereof, which shall become effective upon the satisfaction of the condition precedent contained in Section Four (b)):
(i) Agent shall have received this Amendment, duly executed by the Borrower, each Guarantor and each other party hereto, as well as all other agreements, notes, certificates, orders, authorizations, financing statements, mortgages and other documents which Agent may reasonably request;
(ii) After giving effect to the transactions contemplated by this Amendment, as of the date hereof, no Event of Default or Default shall have occurred and be continuing; and
(iii) All corporate and other proceedings, and all documents, instruments and other legal matters in connection with this Amendment and the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Agent and its counsel.
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(b) Section One (b) and Section Two (b) of this Amendment shall become effective upon the satisfaction of all of the following conditions precedent:
(i) Agent shall have received evidence that Borrower has consummated an Offering and, in connection therewith, it has received at least $5,000,000 in gross cash proceeds as a result of such Offering;
(ii) Agent shall have received payment in cash, for its own account, of a non-refundable fee in consideration of this Amendment in the amount of $25,000;
(iii) Borrower shall have paid directly to Agent’s counsel all attorneys’ fees and disbursements incurred by such counsel on behalf of Agent, or on behalf of Lenders, in connection with the Loan Agreement, including the negotiation, preparation and entering into of this Amendment;
(iv) After giving effect to the transactions contemplated by Section One (b) and Section Two (b) of this Amendment, no Event of Default or Default shall have occurred and be continuing; and
(v) All corporate and other proceedings, and all documents, instruments and other legal matters in connection with this Amendment and the transactions contemplated hereby shall be reasonably satisfactory in form and substance to the Agent and its counsel.
Section Five. Release. Borrower and each Guarantor acknowledge and agree that they have no claims, suits or causes of action against Agent or any Lender and hereby remise, release and forever discharge Agent and each Lender, their officers, directors, members, shareholders, employees, agents, successors and assigns, and any of them, from any claims, suits or causes of action whatsoever, in law or at equity, which Borrower or any Guarantor has or may have arising from any act, omission or otherwise, at any time immediately prior to the effectiveness of (i) this Amendment (excluding Section One (b) and Section Two (b) hereof) and (ii) Section One (b) and Section Two (b) of this Amendment..
Section Six. General Provisions.
(a) The Loan Agreement and all of the other Loan Documents are ratified and confirmed in all respects and shall remain in full force and effect in accordance with their respective terms as so amended. The Borrower and each Guarantor, as applicable, hereby confirm their existing pledge, assignment and grant to the Agent, for the ratable benefit of the Lenders, of a perfected lien on and security interest in the Collateral, as security for the payment and performance of all present and future Obligations. Borrower and each Guarantor hereby confirm that all security interests at any time granted by each of them to the Agent for the ratable benefit of the Lenders in any and all of Borrower’s and each Guarantor’s property and assets, including the Collateral, continue in full force and effect and secure and shall continue to secure the Obligations so long as any such Obligations remain outstanding and that all Collateral subject thereto remains free and clear of any liens or encumbrances other than (i) those in favor of the Agent provided for under the Loan Agreement and the other Loan Documents, and (ii) other Permitted Encumbrances.
(b) All references to the Loan Agreement in the other Loan Documents shall mean the Loan Agreement as heretofore and as hereafter amended, supplemented and modified from time to time.
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(c) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Lenders under the Loan Agreement or any of the other Loan Documents, nor constitute a waiver of any provision of the Loan Agreement or any of the other Loan Documents.
(d) This Amendment embodies the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, commitments, arrangements, negotiations or understandings, whether written or oral, of the parties with respect thereto.
(e) This Amendment shall be governed by and construed in accordance with the substantive laws of the State of New York.
(f) This Amendment shall be binding upon and inure to the benefit of the Borrower, each Guarantor, Agent and the Lenders and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written agreement of Agent.
(g) Any provision of this Amendment which is prohibited or unenforceable shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
(h) Borrower and each Guarantor hereby confirm and agree, and represent and warrant, that all Obligations (whether representing outstanding principal, accrued and unpaid interest, accrued and unpaid fees or any other Obligations of any kind or nature) currently owing by Borrower under the Loan Agreement and the other Loan Documents, as reflected in the books and records of Agent as of the date hereof, are unconditionally owing from and payable by Borrower to Lenders and that Borrower is indebted to Lenders with respect thereto, all without any set-off, deduction, counterclaim or defense.
(i) This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by email or facsimile shall be as effective as delivery of a manually executed counterpart thereof.
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IN WITNESS WHEREOF, the Borrower, each Guarantor, Agent and the Lenders have signed below to indicate their agreement with the foregoing and their intent to be bound thereby.
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AGENT:
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MIDMARKET CAPITAL PARTNERS, LLC
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By:
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/s/ Xxxxxx Xxxxxxxxx
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Name:
Title:
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Xxxxxx Xxxxxxxxx
Managing Director
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LENDERS:
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GREAT AMERICAN LIFE INSURANCE COMPANY
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By:
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/s/ Xxxx. X. Xxxxxxxx
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Name:
Title:
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Xxxx. X. Xxxxxxxx
Executive Vice President
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Commitment Percentage: 70%
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GREAT AMERICAN INSURANCE COMPANY
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Name:
Title:
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Xxxxxxx X. Xxxxxx
Assistant Vice President
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Commitment Percentage: 30%
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BORROWER:
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By:
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/s/ Xxxxxxxx X. Xxxxx
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Name:
Title:
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Xxxxxxxx X. Xxxxx
Senior Vice President
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GUARANTORS:
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XXXXX-XXXXXXXX LEASING, LLC
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By:
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/s/ Xxxxxxxx X. Xxxxx
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Name:
Title:
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Xxxxxxxx X. Xxxxx
Vice President
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TROPICAL COMMUNICATIONS, INC.
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By:
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/s/ Xxxxxxxx X. Xxxxx
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Name:
Title:
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Xxxxxxxx X. Xxxxx
Vice President
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[Fourth Amendment]
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ADEX CORPORATION
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By:
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/s/ Xxxxxxxx X. Xxxxx
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Name:
Title:
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Xxxxxxxx X. Xxxxx
Vice President
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T N S, INC.
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By:
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/s/ Xxxxxxxx X. Xxxxx
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Name:
Title:
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Xxxxxxxx X. Xxxxx
Vice President
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ADEXCOMM CORPORATION
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By:
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/s/ Xxxxxxxx X. Xxxxx
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Name:
Title:
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Xxxxxxxx X. Xxxxx
Vice President
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ENVIRONMENTAL REMEDIATION AND FINANCIAL SERVICES, LLC
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By:
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/s/ Xxxxxxxx X. Xxxxx
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Name:
Title:
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Xxxxxxxx X. Xxxxx
Vice President
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AW SOLUTIONS, INC.
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By:
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/s/ Xxxxxxxx X. Xxxxx
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Name:
Title:
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Xxxxxxxx X. Xxxxx
Vice President
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[Fourth Amendment]
