Contract
EXHIBIT
10.2
AMENDMENT
No. 2, dated as of August 21, 2007 (“Amendment”), executed in
connection with the Credit Agreement, dated as of November 23, 2005, and
entered
into by and among MTM Technologies, Inc., a New York corporation ("MTM"),
MTM
Technologies (California), Inc., a Delaware corporation ("MTM-CA"), MTM
Technologies (Texas), Inc., a Delaware corporation ("MTM-TX"), MTM Technologies
(US), Inc., a Delaware corporation ("MTM-US"), MTM Technologies (Massachusetts),
LLC, a Delaware limited liability company ("MTM-MA") and Info Systems,
Inc., a
Delaware corporation ("ISI", MTM, MTM-CA, MTM-TX, MTM-US, MTM-MA and ISI
being
collectively, the "Borrowers" and each a "Borrower"); Columbia Partners,
L.L.C.
Investment Management, as Investment Manager; and National Electrical Benefit
Fund, as Lender (as amended or modified from time to time, the “Credit
Agreement”). Terms which are capitalized in this Amendment and not
otherwise defined shall have the meanings ascribed to such terms in the
Credit
Agreement.
WHEREAS,
the Borrowers are replacing the existing Senior Bank Indebtedness with
a new
loan facility from GE Commercial Distribution Finance Corporation (in its
capacity as agent for itself and the various lenders under the GE Financing
Agreement, “Senior Agent”) and in connection therewith, have requested that the
Investment Manager and the Lender enter into a Subordination Agreement
with
Senior Agent in substantially the form attached hereto as Exhibit A (the
“GE
Subordination Agreement”).
WHEREAS,
the Investment Manager and the Lender are willing to enter into the GE
Subordination Agreement, but only on the condition that the Credit Agreement
be
amended as set forth in this Amendment.
WHEREAS,
the Borrowers are willing to amend the Credit Agreement as set forth in
this
Amendment in order to induce the Investment Manager and Lender to enter
into the
GE
Subordination Agreement.
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, the parties hereto hereby agree as
follows:
Section
One. Amendment to Credit
Agreement.
(a) Section
1.3(b) of the Credit Agreement is hereby amended by deleting the reference
to
“November 23, 2009” contained therein and inserting “November 23, 2010” in lieu
thereof, thereby modifying the definition of “Maturity Date.”
(b) Section
1.3(c) of the Credit Agreement is deleted in its entirety, and following
is
substituted in lieu thereof:
“(c) Interest. The
outstanding principal amount of the Note shall bear interest at a rate
per annum
equal to 4.52% for the term between the date of issuance and the final
payment
in full of the Obligations. Interest on the outstanding principal
amount of the Note equal to the Applicable Current Cash Rate shall be payable
in
cash in arrears on each Quarterly Interest Payment Date. As used
herein, the term “Applicable Current Cash Rate” shall mean (i) for the period
from the Second Amendment Date through the first anniversary of the Second
Amendment Date, one percent (1.0%) on an annualized basis, (ii) for the
period
from the date immediately following the first anniversary of the Second
Amendment Date through November 22, 2009, two percent (2.0%) on an annualized
basis, and (iii) for the period from November 23, 2009 until payment in
full of
the Obligations, eight percent (8%) on an annualized basis. All
remaining accrued and
unpaid
interest shall be payable by Borrower to Investment Manager, for the benefit
of
Lender, on the Maturity Date, upon a Change of Control, Liquidity Event
or
Partial Liquidity Event, on the date of any prepayment or at such time
such
amount becomes due and payable in accordance with the terms
hereof. All computations of interest payable hereunder shall be on
the basis of a 360-day year consisting of twelve 30-day months and actual
days
elapsed in the period of which such interest is payable.”
(c) Section
1.4 of the Credit Agreement is deleted in its entirety, and following is
substituted in lieu thereof:
“1.4 Payment
Premium. Upon the occurrence of the Maturity Date, an
acceleration of the Loan due to an Event of Default, a Change of Control,
a
Liquidity Event, a Partial Liquidity Event or a voluntary prepayment pursuant
to
Section 1.8(a), Borrowers shall pay to Investment Manager, for
the benefit of Lender, in addition to all other amounts due hereunder,
a payment
premium (the “Payment Premium”) equal to (i) for the period
from the Closing Date through and including July 31, 2007, the amount required
to provide the Lender with an IRR during such time period of eleven percent
(11%) per annum, except during any period in which an Event of Default
shall
have occurred and be continuing, in which case the IRR for such period
shall be
adjusted to thirteen percent (13%) per annum, (ii) for the period from
August 1,
2007 through and including the August 21, 2007, the amount required to
provide
the Lender with an IRR during such time period of thirteen and one-half
of one
percent (13.5%) per annum, except during any period in which an Event of
Default
shall have occurred and be continuing, in which case the IRR for such period
shall be adjusted to fifteen and one-half of one percent (15.5%) per annum,
and
(iii) at all times thereafter, until the date on which all Obligations
have been
paid in full, the amount required to provide the Lender with an IRR during
such
time period of fifteen percent (15%) per annum, except during any period
in
which an Event of Default shall have occurred and be continuing, in which
case
the IRR for such period shall be adjusted to seventeen percent (17%) per
annum,
all in accordance with the calculation examples set forth on Exhibit 1.4
(after giving effect to the modification in the rate
of the Payment
Premium as set forth in clauses (ii) and (iii)
above). Notwithstanding anything to the contrary contained herein, in
the event of a voluntary partial prepayment made pursuant to Section
1.8(a) or mandatory partial prepayment made in the event of a Liquidity
Event or a Partial Liquidity Event pursuant to Section
1.8(b)(ii), the Payment Premium shall be calculated assuming the
payment of all outstanding principal and accrued and unpaid interest, whether
or
not such amounts are actually paid in connection with the subject
prepayment.”
(d) Section
1.8(b)(ii) of the Credit Agreement is deleted in its entirety, and following
is
substituted in lieu thereof:
“(ii) Liquidity
Event; Partial Liquidity Event. Upon the occurrence of a
Liquidity Event or Partial Liquidity Event, Borrowers shall immediately
pay to
the Investment Manager, for the benefit of Lender, in respect of the
Loan an
amount equal to fifty percent (50%) of the difference of (A) the net
proceeds
received by MTM (or the applicable Borrower) in the Liquidity Event or
Partial
Liquidity Event minus (B) Twenty Five Million Dollars ($25,000,0000),
but not in
excess of all amounts due under the Loan as set forth in this Agreement,
including, without limitation, all costs and fees incurred as of the
date of
payment, all accrued and unpaid interest, the principal outstanding as
of the
date of such
payment,
and the applicable Payment Premium. The payments made pursuant to this
Section 1.8(b)(ii) shall be applied in accordance with
Section 1.9.”
(e) Section
6.3 of the Credit Agreement is deleted in its entirety, and the following
is
substituted in lieu thereof:
“6.3
Financial Covenants. Until termination of this Agreement and
the full and final payment and satisfaction of all Obligations, each
Borrower
agrees:
(a) Minimum
Liquidation Multiple. Each
Borrower covenants that the Liquidation Multiple calculated as of the
last day
of each fiscal month of Borrower shall be no less than 1.08:1.00.
(b) Minimum
EBITDA. Each Borrower covenants that as of
the last day of each fiscal quarter, for the fiscal quarter then ended,
Borrowers’ EBITDA shall not be less than the amounts set forth in the table
below:
|
The
Fiscal Quarter Ending On:
|
Minimum
EBITDA
|
|
September
30, 2007
|
$720,000
|
|
December
31, 2007
|
$1,584,000
|
|
March
31, 2008
|
$1,656,000
|
|
June
30, 2008
|
$1,800,000
|
|
September
30, 2008
|
$1,800,000
|
|
December
31, 2008
|
$1,800,000
|
|
March
31, 2009
|
$1,800,000
|
|
June
30, 2009
|
$1,800,000
|
(c) Maximum
Total Funded Indebtedness to EBITDA. Each
Borrower covenants that
(A)
the ratio of Total Funded Indebtedness, calculated as of March 31, 2008,
to
EBITDA, calculated as of March 31, 2008 for the preceding four fiscal quarters
then ended, shall be no more than 4.40:1.00, and (B) the ratio of Total
Funded
Indebtedness, calculated as of the last day of each fiscal quarter ending
after
March 31, 2008, to EBITDA, calculated as of the last day of each fiscal
quarter
ending after March 31, 2008, for the preceding four fiscal quarters then
ended,
shall be no more than 4.40:1.00.
(d) Excess
Cash/Marketable Securities plus Availability. Each Borrower
covenants that on the last day of each calendar month that the sum of (A)
the
amount of cash or marketable securities permitted by Section 14.1.4 of
the GE
Financing Agreement, plus (B) the difference between (i) the Borrowing
Base (as
defined in the GE
Financing
Agreement) on such date, minus (ii) the sum of (a) the Swingline Loan (as
defined in the GE Financing Agreement), (b) the Floorplan Shortfall (as
defined
in the GE Financing Agreement), (c) the Letter of Credit Exposure (as defined
in
the GE Financing Agreement) on such date (except to the extent that a Revolving
Loan Advance (as defined in the GE Financing Agreement) will be used immediately
to reimburse Letter of Credit Issuer (as defined in the GE Financing Agreement)
for unreimbursed draws on a Letter of Credit (as defined in the GE Financing
Agreement)), (d) without duplication, the outstanding Aggregate Revolving
Loans
(as defined in the GE Financing Agreement), (e) the amount of the Other
Creditor
Indebtedness (as defined in the GE Financing Agreement) (unless an intercreditor
agreement in form and substance satisfactory to GE has been executed between
GE
and the holder of such Other Creditor Indebtedness), and (f) the amount
of Bid
Bonds (as defined in the GE Financing Agreement), shall be greater than
or equal
to $1,350,000.”
(f) Section
7.1(c) of the Credit Agreement is hereby amended by deleting the phrase
“(other
than Overadvances (as defined in the CIT Financing
Agreement) which are cured within three (3) days)”
contained therein.
Section
Two. Amendment of Credit Agreement
Definitions. Annex A of the Credit Agreement is amended
by (i) deleting the terms Consolidated EBITDA, Consolidated Fixed Charge
Coverage Ratio, Consolidated Fixed Charges, Consolidated Senior Leverage,
Consulting Charges and Textron, (ii) adding the terms Capital Expenditure
Equivalent, Dilution, EBITDA, GE, GE Financing Agreement, Interest Expense,
Liquidation Multiple, Net Recovery, Net Income, Partial Liquidity Event,
Second
Amendment Date and Total Funded Indebtedness and the definitions thereof
as set
forth below, in the appropriate alphabetical order, and (iii) deleting
the
definitions of the terms Acquisition Conditions, Capital Expenditure Liquidity
Event, Senior Bank Indebtedness, Senior Indebtedness, Subordination Agreement
and Warrant, and substituting the following in lieu thereof:
“Acquisition
Conditions” shall mean, with respect to any Permitted Acquisition, that (i)
Borrowers shall have given Investment Manager not less than twenty (20)
days
prior written notice of the intention of the applicable acquiring Borrower,
or
an entity organized by the applicable acquiring Borrower for the purpose
of
making such Permitted Acquisition (each a “Buyer”) to consummate such Permitted
Acquisition, which notice shall include, in reasonable detail (x) a description
of such Permitted Acquisition, (y) a statement of the Buyer’s expected sources
and uses of cash pertaining to such Permitted Acquisition, which sources
and
uses shall be reasonably satisfactory to Investment Manager, and (z) a
calculation, certified by Buyer’s chief executive officer or chief financial
officer, showing that on a pro forma basis, after giving effect to such
Permitted Acquisition, the Borrowers and their Subsidiaries on a consolidated
basis shall be in compliance with Section 6.3 (it being understood that
no such
chief executive officer or chief financial officer shall have any personal
liability to Investment Manager or Lender hereunder with respect to any
such
certificates if such officer believes in good faith that the information
set
forth therein is accurate), (ii) if the sources of cash reflected in the
statement described in clause (y) above include the proceeds of (A) Indebtedness
(other than the Loan or Senior Indebtedness), such Indebtedness shall be
unsecured and Borrowers shall have used commercially reasonable efforts
to cause
the holders of such Indebtedness to execute and deliver a subordination
agreement to and in favor of Investment Manager, in form and substance
acceptable to Investment Manager; provided that no such subordination agreement
shall be required in connection with the NEXL Acquisition (Indebtedness
pursuant
to this subsection, “Permitted Acquisition
Indebtedness”),
or (B) Senior Indebtedness to GE, then the certification described in clause
(z)
above shall also include a calculation showing that immediately after giving
effect to the borrowing of such Indebtedness, availability under the GE
Financing Agreement shall not be less than $2,000,000, (iii) Investment
Manager
shall have received and reviewed to its satisfaction copies of all of the
applicable acquisition documents, (iv) Investment Manager shall have received
the results of a UCC, tax and judgment lien search, and pending litigation
search, against the Target and (v) the Buyer or the Target, as the case
may be,
shall have (1) become a Borrower pursuant to a joinder agreement executed
and
delivered by it, in form and substance satisfactory to Investment Manager
and
(2) granted to Investment Manager, for the benefit of Lender, as collateral
security for all Obligations, and Investment Manager shall have a perfected,
a
first priority lien (subject to the Senior Indebtedness) on and security
interest in all of its personal property and real property (if so requested
by
Investment Manager).
"Capital
Expenditure" means an expenditure for an asset that must be depreciated or
amortized under GAAP, or for any asset that under GAAP must be treated
as a
capital asset. An expenditure for purposes of this definition includes
any
deferred or seller financed portion of the purchase price of an asset and
includes the Capital Expenditure Equivalent of a Capital
Lease. Capital Expenditures do not include any expenditure made with
insurance proceeds to the extent used to replace or repair damaged fixed
assets
and plant equipment.
"Capital
Expenditure Equivalent" of a Capital Lease is the amount which would have
been the aggregate cost of the property leased if it had been purchased
rather
than leased.
"Dilution"
means the rolling 12-month Dollar amount of dilution expressed as a percentage
as determined by GE in its sole discretion as set forth in GE’s most recent
field exam.
"EBITDA"
means, for any period of calculation, an amount equal to (A) the sum of
(i) Net
Income, (ii) Interest Expense, (iii) income tax expense, (iv) depreciation
expense, (v) amortization expense, (vi) non-cash charges relating to any
share-based compensation awards, to the extent such non-cash charges were
expensed during such period in accordance with SFAS 123R or are required
to be
shown as an expense in any financial statements for periods prior to the
effective date of SFAS 123R, and (vii) actual cash and non-cash nonrecurring
severance and actual cash and non-cash nonrecurring restructuring charges
for
such period up to $250,000 in the aggregate in a fiscal quarter and up
to
$750,000 in the aggregate during the term of this Agreement, plus (B),
the sum
of (i) all nonrecurring losses under GAAP, and (ii) all extraordinary losses
not
otherwise related to the continuing operations of the Borrowers in such
period,
minus (C) the sum of (i) all nonrecurring gains under GAAP, and (ii) all
extraordinary gains and income not otherwise related to the continuing
operations of the Borrowers in such period.
“GE”
means GE Commercial Distribution Finance Corporation, as administrative
agent
for itself and the other lenders under the GE Financing Agreement.
“GE
Financing Agreement” means that certain Financing Agreement dated August 21,
2007, by and among GE, the Borrowers and the other parties thereto, as
amended,
modified, restated or replaced from time to time.
"Interest
Expense" means for any period of calculation, all interest, whether paid in
cash or accrued as a liability, but without duplication, on Total Indebtedness
during such period.
"Liquidation
Multiple" means (I) Net Recovery divided by (II) the lesser of (A) the
amount of the Aggregate Revolving Loan Commitment (as defined in the GE
Financing Agreement) as of the last day of the most recently completed
fiscal
month and (B) the Borrowing Base (as defined in the GE Financing Agreement)
as
shown in the Borrowing Base Certificate provided to GE closest to (but
not
after) the end of the most recently completed fiscal month.
“Liquidity
Event” means the issuance after the Closing Date by any Borrower of
indebtedness for borrowed money or the sale by any Borrower of equity securities
in a public offering or in a private sale to a Person that is not a Borrower
for
cash in which (A) such Borrower receives aggregate net proceeds in excess
of
Twenty-Five Million Dollars ($25,000,000) and (B) such excess shall be
sufficient to pay the Payment
Premium in full; provided none of the following events shall constitute
a
Liquidity Event: (i) the issuance of equity securities in connection with
MTM’s
Series A Preferred Stock (including upon conversion of such stock,
the payment of “in kind” dividends, the issuance of shares upon the exercise of
warrants or the operation of anti-dilution provisions), (ii) the issuance,
vesting or exercise of board, employee, management and consultant equity
incentives, (iii) the incurrence by Borrowers of Senior Indebtedness, the
Obligations, or short term inventory, receivables or vendor financing and
the
issuance and sale of the Warrant, (iv) the issuance of acquisition consideration
and related earn-outs, notes and similar payments, (v) the issuance of
securities upon the exercise of the Warrant or any warrant issued by MTM
on or
prior to the Closing Date or (vi) the issuance and sale of Series A-5 Preferred
Stock and warrants by MTM in the Series A-5 Financing.”
"Net
Recovery" means a Dollar amount equal to: (I) (A) 100% of the
face amount of all Accounts (as defined in the GE Financing Agreement)
of
Borrowers minus the bad debt reserve, as set forth in the Financial Statements
for the most recently ended fiscal month, multiplied by (B) 100% minus
(i)
Dilution multiplied by 2 plus (ii) 5% of the amount determined in clause
(I)(B)(i), plus (II) the Floorplan Inventory Value (as defined in the GE
Financing Agreement) as calculated by GE, as of the last day of the most
recently completed fiscal month, plus (III) 50% multiplied by total aggregate
wholesale invoice price of all of Borrowers’ Inventory that is not financed
under the Floorplan Loan Facility (as defined in the GE Financing Agreement)
and
the Interim Floorplan Loan Facility (as defined in the GE Financing Agreement),
as shown in the Financial Statements for the most recently completed fiscal
month, and minus (IV) $1,000,000.
"Net
Income" means, for any period of calculation, "net income" as determined
in
accordance with GAAP.
“Partial
Liquidity Event” means the issuance after the Closing Date by any Borrower
of indebtedness for borrowed money or the sale by any Borrower of equity
securities in a public offering or in a private sale to a Person that is
not a
Borrower for cash in which (A) such Borrower receives aggregate net proceeds
in
excess of Twenty-Five Million Dollars ($25,000,000) and (B) such excess
shall
not be sufficient to pay the Payment
Premium in full; provided none of the following events shall constitute
a
Liquidity Event: (i) the issuance of equity securities in connection with
MTM’s
Series A Preferred Stock (including upon conversion of such stock,
the payment of “in kind” dividends, the
issuance
of shares upon the exercise of warrants or the operation of anti-dilution
provisions), (ii) the issuance, vesting or exercise of board, employee,
management and consultant equity incentives, (iii) the incurrence by Borrowers
of Senior Indebtedness, the Obligations, or short term inventory, receivables
or
vendor financing and the issuance and sale of the Warrant, (iv) the issuance
of
acquisition consideration and related earn-outs, notes and similar payments,
(v)
the issuance of securities upon the exercise of the Warrant or any warrant
issued by MTM on or prior to the Closing Date or (vi) the issuance and
sale of
Series A-5 Preferred Stock and warrants by MTM in the Series A-5
Financing.”
“Second
Amendment Date” shall mean August 21, 2007.
“Senior
Bank Indebtedness” means, collectively, Indebtedness described in clause (i)
of the definition of Senior Indebtedness, and any renewals, refinancings
or
replacements of such Indebtedness, so long as the aggregate principal amount
of
such Indebtedness does not at any time exceed $37,000,000.
“Senior
Indebtedness” means, collectively, (i) Indebtedness to GE and the other
lenders named in the GE Financing Agreement, (ii) Indebtedness to Xxxxxx
and any
other vendor to any Borrower, in the case of (i) and (ii), which is secured
on a
basis that is senior to the lien and security interest of Lender, and (iii)
any
renewals, refinancings or replacements of the Indebtedness described in
(i)
above so long as the aggregate principal amount of Senior Indebtedness
does not
at any time exceed $37,000,000.
“Subordination
Agreement” means that certain Subordination Agreement dated as of the Second
Amendment Date, executed by Investment Manager in favor of GE, as administrative
agent for certain lenders, as the same may be amended, modified, supplemented
or
restated from time to time, or any other subordination or intercreditor
agreement entered into between Investment Manager and any holder of Senior
Bank
Indebtedness in replacement thereof.
"Total
Funded Indebtedness" means the sum of the following, without duplication
(i) outstanding principal and interest of the Senior Bank Indebtedness
(including any fees paid to GE or any Senior Lender in connection with
the
execution and delivery of the GE Financing Agreement)
excluding the principal outstanding under the
Aggregate Floorplan Loan Facility (as defined in the GE Financing Agreement)
and, without duplication, the Interim Floorplan Loan Facility (as defined
in the
GE Financing Agreement) and unfunded Approvals (as defined in the GE Financing
Agreement), (ii) the face amount of any letters of credit issued on
the account of any Borrower, (iii) the aggregate outstanding principal
balance of all other Indebtedness for borrowed money, including, without
limitation, the Capital Expenditure Equivalent, and (iv) the maximum amount
payable under any guaranty executed by a Borrower, but,
excluding, the Obligations and any Subordinated Debt if a
Subordination Agreement is in effect.
“Warrant”
has the meaning ascribed to it in Section 1.2 and from and
after the Second Amendment Date, all references to “Warrant” herein shall also
includes the Warrant to Purchase Stock issued by MTM to Lender on the Second
Amendment Date.
Section
Three. Release of
Claims. To induce the Investment
Manager and the Lender to enter into this Amendment, each of the Borrowers
hereby agrees as follows:
(a) each
Borrower hereby represents and warrants that there are no known claims,
causes
of action, suits, debts, liens, obligations, liabilities, demands, losses,
costs
and expenses (including attorneys'
fees)
of
any kind, character or nature whatsoever, fixed or contingent, which such
Borrower may have or claims to have against Investment Manager or Lender,
which
may arise out of or be connected with any act of commission or omission
of
Investment Manager or Lender, existing or occurring on or prior to the
date of
this Amendment.
(b) each
Borrower hereby releases, waives and forever discharges and relieves Investment
Manager and Lender and all their respective parents, subsidiaries and affiliates
and the officers, directors, agents, attorneys and employees of each of
the
foregoing (hereinafter “Releasees”) from any and all claims, liabilities,
demands, actions, suits, covenants, losses, costs, offsets and defenses
of any
nature and kind whatsoever, whether at law or equity of otherwise, whether
known
or unknown, which such Borrower ever had, now has, or have been caused
by any
act of commission or omission of Investment Manager or Lender, existing
or
occurring on or prior to the date of this Agreement, against or related
to the
Releasees.
Section
Four. Representations and
Warranties. To induce the Investment Manager
and the Lender to enter into this Amendment, each of the Borrowers hereby
warrants and represents to the Investment Manager and the Lenders as
follows:
(a)
all of the representations and warranties contained in the Credit Agreement
and
each other Loan Document to which such Borrower is a party continue to
be true
and correct in all material respects as of the date hereof, as if repeated
as of
the date hereof, and (ii) to the extent of changes resulting from transactions
expressly permitted by the Credit Agreement, this Amendment or any of the
other
Loan Documents, or to the extent that such representations and warranties
are
expressly made only as of an earlier date;
(b)
the execution, delivery and performance of this Amendment by such Borrower
is
within its corporate powers, has been duly authorized by all necessary
corporate
action, and such Borrower has received all necessary consents and approvals,
if
any are required, for the execution and delivery of this Amendment;
(c)
upon the execution of this Amendment, this Amendment shall constitute the
legal,
valid and binding obligation of such Borrower, enforceable against such
Borrower
in accordance with its terms, except as such enforceability may be limited
by
(i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally
and (ii) general principles of equity; and
(d)
neither the execution and delivery of this Amendment, nor the consummation
of
the transactions herein contemplated, nor compliance with the provisions
hereof
will (i) violate any law or regulation applicable to any Borrower, (ii)
cause a
violation by any Borrower of any order or decree of any court or government
instrumentality applicable to it, (iii) conflict with, or result in the
breach
of, or constitute a default under, any indenture, mortgage, deed of trust,
or
other material agreement or material instrument to which any Borrower is
a party
or by which it may be bound, (iv) result in the creation or imposition
of any
lien, charge, or encumbrance upon any of the property of any Borrower,
except in
favor of the Investment Manager and the Lender, to secure the Obligations,
(v)
violate any provision of the Certificate of Incorporation, By-Laws or any
capital stock provisions of any Borrower, or (vi) be reasonably likely
to have a
Material Adverse Effect.
Section
Five. General Provisions.
(a) Except
as herein expressly amended, the Credit Agreement and all other agreements,
documents, instruments and certificates executed in connection therewith,
are
ratified and confirmed in all respects and shall remain in full force and
effect
in accordance with their respective terms.
(b) To
induce the Investment Manager and the Lender to enter into this Amendment,
the
Borrowers, jointly and severally, represent and warrant to the Investment
Manager and the Lender that no Event of Default has occurred.
(c) This
Amendment embodies the entire agreement between the parties hereto with
respect
to the subject matter hereof and supercedes all prior agreements, commitments,
arrangements, negotiations or understandings, whether written or oral,
of the
parties with respect thereto.
(d) This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of New York, without regard to the conflicts of law principles
thereof.
(e) The
effectiveness of this Amendment is conditioned on receipt by Investment
Manager
of each of the following: (i) this Amendment, a Warrant to Purchase
Stock in the form attached hereto as Exhibit B, each duly executed by the
Borrowers party thereto, (ii) payment of a one-time modification fee in
the
amount of $250,000, which fee shall be fully earned when paid and shall
be in
addition to, and not in lieu of, any other fees payable under the Credit
Agreement or any of the other Loan Documents, (iii) payment of all
fees and expenses which are due and payable pursuant to Section 1.6
of the Credit Agreement.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, the parties to this Amendment have signed below to
indicate their agreement with the foregoing and their intent to be bound
thereby.
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for
itself and as Borrowing Agent, and as successor by
merger
with each of MTM Technologies (California),
Inc.,
and MTM Technologies (Texas), Inc.
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By:
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/s/ | |
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Name:
Title:
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X.X.
Xxxxxxxx III
Senior
Vice President and
Chief
Financial Officer
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MTM
TECHNOLOGIES (US), INC.
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By:
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/s/ | |
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Name:
Title:
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X.X.
Xxxxxxxx III
Senior
Vice President and
Chief
Financial Officer
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INFO
SYSTEMS, INC.
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By:
|
/s/ | |
|
Name:
Title:
|
X.X.
Xxxxxxxx III
Senior
Vice President and
Chief
Financial Officer
|
|
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MTM
TECHNOLOGIES (MASSACHUSETTS), LLC
|
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By:
|
/s/ | |
|
Name:
Title:
|
X.X.
Xxxxxxxx III
Senior
Vice President and
Chief
Financial Officer
|
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COLUMBIA
PARTNERS, L.L.C. INVESTMENT MANAGEMENT,
as
Investment Manager
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By:
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/s/ | |
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Name:
Title:
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NATIONAL
ELECTRICAL BENEFIT FUND,
as
Lender
By: Columbia
Partners, L.L.C.
Investment
Management, its Authorized Signatory
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By:
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/s/ | |
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Name:
Title:
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