CONSENT TO CREDIT FACILITIES AGREEMENT
Exhibit
10.14
CONSENT
TO
This CONSENT TO CREDIT FACILITIES
AGREEMENT (this “Agreement”) is entered into and effective as of June 16, 2008,
by and among MTM TECHNOLOGIES, INC., a New York corporation, MTM TECHNOLOGIES
(US), INC., a Delaware corporation, MTM TECHNOLOGIES (MASSACHUSETTS), LLC, a
Delaware limited liability company, and INFO SYSTEMS, INC., a Delaware
corporation (collectively, and separately referred to as, "Borrower" or "the
Borrower"), and GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION ("CDF"), as
Administrative Agent, and CDF, as the sole lender (the “Lender”).
Recitals:
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A.
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Borrower,
Administrative Agent and the Lender are parties to that certain Credit
Facilities Agreement dated as of August 21, 2007, as amended by the First
Amendment to Credit Facilities Agreement entered into and effective as of
August 21, 2007, as amended by the Second Amendment to Credit Facilities
Agreement entered into and effective as of February 4, 2008, as amended by
the Third Amendment to Credit Facilities Agreement entered into and
effective as of February 28, 2008, as amended by the Fourth Amendment to
Credit Facilities Agreement entered into and effective as of May 16, 2008
(but effective May 1, 2008), and as amended by the Fifth Amendment to
Credit Facilities Agreement (the “Fifth Amendment”) entered into and
effective as of June 11, 2008 (as amended, the “Loan
Agreement”).
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B.
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Administrative
Agent, the Lender and Borrower have agreed to the provisions set forth
herein on the terms and conditions contained
herein.
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Agreement
Therefore, in consideration of the
mutual agreements herein and other sufficient consideration, the receipt of
which is acknowledged, Borrower, Administrative Agent and the Lender hereby
agree as follows:
1.
Definitions.
All
references to the “Agreement” or the “Loan Agreement” in the Loan Agreement and
in this Agreement shall be deemed to be references to the Loan Agreement as it
may be amended, restated, extended, renewed, replaced, or otherwise modified
from time to time. Capitalized terms used and not otherwise defined
herein have the meanings given them in the Loan Agreement.
2.
Effectiveness
of Agreement.
This
Agreement shall become effective as of the date first written above, but only if
this Agreement has been executed by Borrower, Administrative Agent and the
Lender.
3.
Consent.
As
contemplated by the Fifth Amendment, Borrower has informed the Lender that an
additional $3,000,000 in Subordinated Indebtedness will be funded to Borrower in
accordance with the Loan Agreement and in accordance with the amendment
documents to the Subordinated Indebtedness Documents attached hereto as Exhibit
A (the “Subordinated Indebtedness Amendment Documents”). The
Subordinated Indebtedness Amendment Documents are a part of the Subordinated
Indebtedness Documents.
Subject
to the terms and conditions hereof, the Loan Agreement and other Loan Documents,
Administrative Agent and the Lender hereby consents to the terms and provisions
of the Subordinated Indebtedness Amendment Documents, such consent to be under
effective under the Loan Agreement and under the Subordination Agreement by and
between the Administrative Agent and the holders of the Subordinated
Indebtedness.
4.
Default
Rate.
The
parties agree that the Default Rate, which shall be in effect beginning on July
1, 2008 as provided for in Fifth Amendment, was agreed to by Borrower,
Administrative Agent and Lender in consideration for the agreement by
Administrative Agent and the Lender to modify certain loan covenants, and not
the result of any existing Default or Event of Default by Borrower.
5.
General
Representations and Warranties of Borrower.
Each
Borrower hereby represents and warrants to Administrative Agent and the Lender
that (i) such Borrower’s execution of this Agreement has been duly authorized by
all requisite action of such Borrower, (ii) no consents are necessary from any
third parties for such Borrower’s execution, delivery or performance of this
Agreement except for those already duly obtained, (iii) this Agreement, the Loan
Agreement, and each of the other Loan Documents, constitute the legal, valid and
binding obligations of such Borrower enforceable against such Borrower in
accordance with their terms, except to the extent that the enforceability
thereof against such Borrower may be limited by bankruptcy, insolvency or other
laws affecting the enforceability of creditors rights generally or by equity
principles of general application, (iv) except as disclosed on the disclosure
schedule attached to the Loan Agreement, all of the representations and
warranties contained in Section 11 of the Loan Agreement are true and correct
with the same force and effect as if made on and as of the date of this
Agreement with such exceptions as have been disclosed to Administrative Agent
and the Lenders in writing, (v) there is no Existing Default, (vi) the
execution, delivery and performance of this Agreement by Borrower does not
violate, contravene, or conflict with any Material Law or Material Agreement,
(vii) there are no Material Proceedings pending or, to the knowledge of
Borrower, threatened, and (viii) since August 21, 2007, no Borrower’s Charter
Documents have been amended, restated or otherwise modified in any manner which
has or is reasonably likely to have a Material Adverse Effect on any Covered
Person or which will or is reasonably likely to cause a Default or Event of
Default.
6.
Reaffirmation;
No Claims.
Each
Borrower hereby represents, warrants, acknowledges and confirms that (i) the
Loan Agreement and the other Loan Documents remain in full force and effect,
(ii) the Security Interests of the Administrative Agent under the Security
Documents secure all the Loan Obligations under the Loan Agreement, continue in
full force and effect, and have the same priority as before this Agreement,
(iii) no Borrower has any defenses to its obligations under the Loan Agreement
and the other Loan Documents, and (iv) no Borrower has any claim against
Administrative Agent or the Lenders arising from or in connection with the Loan
Agreement or the other Loan Documents, and each Borrower hereby releases and
waives and discharges forever any such claims it may have against Administrative
Agent or the Lenders arising from or in connection with this Agreement, the Loan
Agreement or the other Loan Documents which have arisen or accrued on or prior
to the date hereof. Until the Loan
Obligations are paid in full in good funds and all obligations and liabilities
of Borrower under the Loan Agreement and the Loan Documents are performed and
paid in full in good funds, Borrower agrees and covenants that it is bound by
the covenants and agreements set forth in the Loan Agreement, the Loan Documents
and in this Agreement. Borrower hereby ratifies and confirms the Loan
Obligations. This Agreement is a part of the Loan
Documents.
7.
Effect
of Agreement.
The
execution, delivery and effectiveness of this Agreement shall not and does not
operate as a waiver of any right, power or remedy of Administrative Agent or 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 or any Existing Default or Event of Default. The
execution, delivery and effectiveness of this Agreement shall not and does not
act as a release or subordination of the liens and Security Interests of
Administrative Agent under the Loan Documents.
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8.
Payment
of Fees and Expenses.
Borrower
shall promptly pay to Administrative Agent an amount equal to all reasonable
fees, costs, and expenses, incurred by the Administrative Agent (including all
reasonable attorneys fees and expenses) in connection with the preparation,
negotiation, execution, and delivery of this Agreement, and any further
documentation which may be required in connection herewith.
9.
Governing
Law.
This
Agreement and the rights and obligations of the parties hereunder and thereunder
shall be governed by and construed and interpreted in accordance with the
internal Laws of the State of Illinois applicable to contracts made and to be
performed wholly within such state, without regard to choice or conflicts of law
principles.
10.
Patriot
Act.
Administrative
Agent and each Lender hereby notifies the Borrowers that, pursuant to the
requirements of the USA Patriot Act, Title III of Pub. L. 107-56, signed into
law October 26, 2001 (as amended from time to time (including any successor
statute) and together with all rules promulgated thereunder, collectively, the
“Act”), it is required to obtain, verify and record information that identifies
the Borrowers and any Guarantor, which information includes the name and address
of the Borrowers and any Guarantor and other information that will allow
Administrative Agent and each Lender to identify the Borrowers and each
Guarantor in accordance with the Act.
11.
Section
Titles.
The
section titles in this Agreement are for convenience of reference only and
shall not be construed so as to modify any provisions of this
Agreement.
12.
Counterparts;
Facsimile Transmissions.
This
Agreement may be executed in one or more counterparts and on separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures to
this Agreement may be given by facsimile or other electronic transmission, and
such signatures shall be fully binding on the party sending the
same.
13.
Binding
Arbitration.
This
Agreement is subject to the binding arbitration provisions contained in the Loan
Agreement and the Loan Documents as applicable to the parties
hereto.
14.
Incorporation
By Reference.
Administrative
Agent, Lender and Borrower hereby agree that all of the terms of the Loan
Documents are incorporated in and made a part of this Agreement by this
reference.
15.
Notice—Oral
Commitments Not Enforceable.
ORAL AGREEMENTS OR COMMITMENTS TO
LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE, REGARDLESS
OF THE LEGAL THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THE
CREDIT AGREEMENT. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
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16. Statutory Notice-Insurance.
UNLESS
YOU PROVIDE EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY YOUR AGREEMENT WITH
US, WE MAY PURCHASE INSURANCE AT YOUR EXPENSE TO PROTECT OUR INTERESTS IN YOUR
COLLATERAL. THIS INSURANCE MAY, BUT NEED NOT, PROTECT YOUR
INTERESTS. THE COVERAGE THAT WE PURCHASE MAY NOT PAY ANY CLAIM THAT
YOU MAKE OR ANY CLAIM THAT IS MADE AGAINST YOU IN CONNECTION WITH THE
COLLATERAL. YOU MAY LATER CANCEL ANY INSURANCE PURCHASED BY US, BUT
ONLY AFTER PROVIDING EVIDENCE THAT YOU HAVE OBTAINED INSURANCE AS REQUIRED BY
OUR AGREEMENT. IF WE PURCHASE INSURANCE FOR THE COLLATERAL, YOU WILL
BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM,
INTEREST AND ANY OTHER CHARGES WE MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF
THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO YOUR TOTAL
OUTSTANDING BALANCE OR OBLIGATION. THE COSTS OF THE INSURANCE MAY BE
MORE THAN THE COST OF INSURANCE YOU MAY BE ABLE TO OBTAIN ON YOUR
OWN.
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IN
WITNESS WHEREOF, this Agreement has been duly executed as of the date first
above written.
GE COMMERCIAL DISTRIBUTION FINANCE
CORPORATION,
as
Administrative Agent and sole Lender
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By:
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/s/ Xxxxx Xxxxxxx | |
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Name:
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Xxxxx Xxxxxxx | |
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Title:
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Vice President Operations | |
MTM TECHNOLOGIES, INC., as a
Borrower
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By:
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/s/ X.X. Xxxxxxxx, III |
Name:
X.X. Xxxxxxxx, III
Title:
Senior Vice President and Chief Financial Officer
MTM TECHNOLOGIES (US), INC.,
as a Borrower
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By:
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/s/ X.X. Xxxxxxxx, III |
Name:
X.X. Xxxxxxxx, III
Title: Senior
Vice President and Chief Financial Officer
MTM TECHNOLOGIES (MASSACHUSETTS),
LLC, as a Borrower
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By:
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/s/ X.X. Xxxxxxxx, III |
Name:
X.X. Xxxxxxxx, III
Title:
Senior Vice President and Chief Financial Officer
INFO SYSTEMS, INC., as a
Borrower
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By:
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/s/ X.X. Xxxxxxxx, III |
Name:
X.X. Xxxxxxxx, III
Title:
Senior Vice President and Chief Financial Officer
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