OMNIBUS AMENDMENT
Exhibit
10.4
OMNIBUS
AMENDMENT
This
Omnibus Amendment, dated as of November 30, 2005, by and between Conversion
Services International, Inc., a Delaware corporation (the “Company”), CSI Sub
Corp. (DE), a Delaware corporation (“CSI Sub”), XxXxxxx Associates, LLC, a
Delaware limited liability company (“XxXxxxx”), Evoke Software Corporation, a
Delaware corporation (“Evoke”) and XxXxxxxx Associates, Inc., a Delaware
corporation (“XxXxxxxx” and, together with the Company, CSI Sub, XxXxxxx, and
Evoke, the “Credit Parties” and, each a “Credit Party”) and Laurus Master Fund,
Ltd., a Cayman Islands company (the “Purchaser”), amends that certain Security
Agreement, dated as of August 16, 2004 (the “Initial Closing Date”), by and
between the Credit Parties and Purchaser (as amended, modified or supplemented
from time to time, the “Security Agreement”); that certain Secured Revolving
Note, dated August 16, 2004, as amended and restated on July 28, 2005, made
by
the Company in favor of Purchaser for the total principal amount of $4,500,000
(as amended and restated, amended, modified or supplemented from time to
time,
the “Revolving Note”); that certain Secured Convertible Minimum Note, dated
August 16, 2004, made by the Company in favor of Purchaser for the total
principal amount of $2,000,000 (as amended, modified or supplemented from
time
to time, the “MB Note”); that certain Secured Convertible Term Note, dated
August 16, 2004, as amended and restated on July 28, 2005, made by the Company
in favor of Purchaser for the total principal amount of $5,000,000 (as amended
and restated, amended, modified or supplemented from time to time, the “Term
Note”, and, together with the Security Agreement, the Revolving Note, the MB
Note, and the other Ancillary Agreements (as defined in the Securities
Agreement), the “Funding Documents”). Capitalized terms used but not defined
herein shall have the meanings given them in the Security
Agreement.
PREAMBLE
WHEREAS,
pursuant to the Funding Documents, the Purchaser purchased from the Company
the
Term Note, the Revolving Note and the MB Note;
WHEREAS,
the
Company has requested that the Purchaser increase the Capital Availability
Amount set forth in the Security Agreement to $7,500,000 pursuant to the
terms
and conditions set forth herein, and the Purchaser is willing to so increase
the
Capital Availability Amount and, in consideration therefor and in consideration
of the other agreements set forth herein, the receipt and sufficiency of
which
is hereby acknowledged, the Purchaser and the Company have agreed to decrease
the Fixed Conversion Price of each of the Term Note, the Revolving Note and
the
MB Note as set forth herein;
NOW,
THEREFORE,
in
consideration of the covenants, agreements and conditions hereinafter set
forth,
and other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, the parties hereto agree as follows:
1. Amendments.
1.1 The
Security Agreement.
The
Security Agreement is hereby amended to delete the following definitions
of
“Capital Availability Amount” and “Revolving Note” contained therein, and in
their stead to insert the following definitions in their proper alphabetical
order:
“Capital
Availability Amount”
means
$7,500,000.
“Revolving
Note”
means
that secured revolving note made by Company in favor of Laurus in the aggregate
principal amount of Five Million Five Hundred Thousand Dollars
($5,500,000).
1.2 Amended
and Restated Term Note.
The
Company shall issue the Purchaser an Amended and Restated Secured Convertible
Term Note that is attached and incorporated herein as Exhibit
A
in
substitution and not in satisfaction of the Term Note. The Amended and Restated
Convertible Term Note shall include the following changes: The “Fixed Conversion
Price” shall be $1.00.
1.3 Amended
and Restated Revolving Note.
The
Company shall issue the Purchaser an Amended and Restated Secured Revolving
Note
that is attached and incorporated herein as Exhibit
B
in
substitution and not in satisfaction of the Revolving Note. The Amended and
Restated Secured Revolving Note shall include the following changes: The
“Fixed
Conversion Price” shall be $1.00.
1.4 Amended
and Restated Secured Convertible Minimum Borrowing Note.
The
Company shall issue the Purchaser an Amended and Restated Secured Convertible
Minimum Borrowing Note that is attached and incorporated herein as Exhibit
C
in
substitution and not in satisfaction of the MB Note. The Amended and Restated
Secured Convertible Minimum Borrowing Note shall include the following changes:
The “Fixed Conversion Price” shall be $0.62.
2. Miscellaneous.
2.1 The
amendments set forth above and in the attached exhibits shall be effective
as of
the date first above written (the “Amendment
Effective Date”)
on the
date when (i) each of the Credit Parties and the Purchaser shall have executed
and each of the Credit Parties shall have delivered to Purchaser its respective
counterpart to this Amendment, (ii) each of the Credit Parties and the Purchaser
shall have executed and each of the Credit Parties shall have delivered to
Laurus its respective counterpart to the Reaffirmation Agreement attached
hereto
as Exhibit
D,
(iii)
the Company shall have executed, caused to be witnessed and delivered to
Purchaser its respective counterpart to each of the Amended and Restated
Secured
Convertible Term Note attached as Exhibit
A
hereto,
Amended and Restated Secured Revolving Note attached as Exhibit
B
hereto
and Amended and Restated Secured Convertible Minimum Borrowing Note attached
as
Exhibit
C
hereto,
and (iv) the Purchaser shall have received a management fee of $35,000 arising
in connection with the increase made to the Capital Availability Amount as
set
forth in Section 1.1 above.
2
2.2 Except
as
specifically set forth in this Amendment, there are no other amendments,
modifications or waivers to the Funding Documents, and all of the other forms,
terms and provisions of the Funding Documents remain in full force and
effect.
2.3
Each
Credit Party hereby represents and warrants to Purchaser that (i) no Event
of
Default exists on the date hereof, (ii) on the date hereof, all representations,
warranties and covenants made by each Credit Party in connection with the
Funding Documents are true, correct and complete and (iii) on the date hereof,
all of the Credit Parties covenant requirements have been met.
2.3 From
and
after the Amendment Effective Date, all references in the Funding Documents
shall be deemed to be references to the Funding Documents, as the case may
be,
as modified hereby.
2.4 The
Company understands that the Company has an affirmative obligation to make
prompt public disclosure of material agreements and material amendments to
such
agreements. It is the Company’s determination that this Amendment is material.
The Company agrees to file an 8-K within the period prescribed by the SEC.
2.4 This
Amendment shall be binding upon the parties hereto and their respective
successors and permitted assigns and shall inure to the benefit of and be
enforceable by each of the parties hereto and their respective successors
and
permitted assigns. THIS
AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED
BY THE
LAW OF THE STATE OF NEW YORK.
This
Amendment may be executed in any number of counterparts, each of which shall
be
an original, but all of which shall constitute one instrument.
[signature
page follows]
3
IN
WITNESS WHEREOF,
each of
the parties hereto has executed this Amendment or has caused this Amendment
to
be executed on its behalf by a representative duly authorized, all as of
the
date first above set forth.
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COMPANY:
|
PURCHASER:
|
|||
|
Conversion
Services International, Inc.
|
Laurus
Master Fund, Ltd.
|
|||
|
By:
|
/s/ Xxxxx Xxxxxx |
By:
|
/s/ Xxxxx Grin | |
|
Name:
|
Xxxxx
Xxxxxx
|
Name:
|
Xxxxx
Grin
|
|
|
Title:
|
Chief
Executive Officer
|
Title:
|
Director
|
|
Agreed
and Acknowledged:
CSI
SUB CORP., INC.
| By: | /s/ Xxxxx Xxxxxx | ||
| Name: |
Xxxxx
Xxxxxx
|
||
| Title: |
Chief
Executive
Officer
|
XXXXXXX
ASSOCIATES, LLC
| By: | /s/ Xxxxx Xxxxxx | ||
| Name: |
Xxxxx
Xxxxxx
|
||
| Title: |
Chief
Executive Officer
|
EVOKE
SOFTWARE CORPORATION
| By: | /s/ Xxxxx Xxxxxx | ||
| Name: |
Xxxxx
Xxxxxx
|
||
| Title: |
Chief
Executive
Officer
|
XXXXXXXX
ASSOCIATES, INC.
| By: | /s/ Xxxxx Xxxxxx | ||
| Name: |
Xxxxx
Xxxxxx
|
||
| Title: |
Chief
Executive
Officer
|
4
EXHIBIT
A
5
EXHIBIT
B
6
EXHIBIT
C
7
EXHIBIT
D
8
