EXHIBIT 10.139
THIS AMENDMENT AGREEMENT No. 2
(this Amendment Agreement )
is dated as of October —, 2006
BETWEEN:
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(1)
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HALO
TECHNOLOGY HOLDINGS, INC. (formerly Warp Technology Holdings,
Inc.), a Nevada
corporation, as borrower (the Company ); and
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(2)
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FORTRESS
CREDIT CORP. , in its
capacity as agent to the Lenders under the Credit Agreement
referred to below (in that capacity, the Agent ).
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WHEREAS:
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(A)
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The Company,
the Lenders (referred to therein) and the Agent are parties to that
certain credit agreement dated August 2, 2005, as amended by
Amendment No. 1 dated as of October 26, 2005 (the
Credit Agreement ).
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(B)
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This Amendment
Agreement is supplemental to and amends the Credit Agreement. The
Company and the Agent have agreed that the Credit Agreement should
be amended as set forth in this Amendment Agreement.
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IT
IS AGREED as
follows:
Terms
defined in the Credit Agreement (by reference or otherwise) have,
unless expressly defined in this Amendment Agreement, the same
meanings in this Amendment Agreement.
The provisions of Clause 1.2 (Construction) of
the Credit Agreement apply to this Amendment Agreement as though
they were set out in full in this Amendment Agreement, except that
references to “this Agreement” are to be construed as
references to this Amendment Agreement.
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2.
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EFFECT OF
AMENDMENT AGREEMENT
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With effect on and from the date of this
Amendment Agreement, the Credit Agreement will be amended by, and
the rights and obligations of the parties thereto relating to their
future performance under the Credit Agreement will be governed by
and construed in accordance with, the Credit Agreement as amended,
modified and supplemented by this Amendment Agreement.
The
Credit Agreement will be amended on and from the Effective Date by
deleting Schedule 15 (Financial Terms and Covenants) to the
Credit Agreement and replacing it with Schedule 15 (Financial
Terms and Covenants) to this Amendment Agreement.
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4.
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REPRESENTATIONS AND WARRANTIES
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4.1
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Representations and Warranties
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The Company makes each representation and
warranty set out in Clauses 4.2 (Powers and Authority) through 4.6
(Credit Agreement) of this Amendment Agreement to each Finance
Party.
It has the power to enter into and perform, and
has taken all necessary action to authorize the entry into and
performance of this Amendment Agreement and the transactions
contemplated by this Amendment Agreement.
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(a)
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This Amendment
Agreement is its legally binding, valid and enforceable
obligation.
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(b)
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This Amendment
Agreement is in the proper form for its enforcement in the
jurisdiction of its incorporation.
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The entry into and performance by it of, and the
transactions contemplated by, this Amendment Agreement do not and
will not:
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(a)
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conflict with
any law or regulation applicable to it; or
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(b)
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conflict with
its constitutional documents; or
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(c)
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conflict with
any document which is binding upon it or any of its assets or
constitute a default or termination event (however described) under
any such document, in each case to an extent or in a manner
which:
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(i)
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has a Material
Adverse Effect;
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(ii)
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could
reasonably be expected to result in any liability on the part of
any Finance Party to any third party; or
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(iii)
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could require
the creation of any Lien over any asset in favor of a third
party.
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All authorizations required by it in connection
with the entry into, performance and validity and enforceability
of, and the transactions contemplated by, this Amendment Agreement
have been obtained or effected (as appropriate) and are in full
force and effect.
On the date of this Amendment Agreement, the
representations and warranties set out in Clauses 15.2 (Status)
through 15.16 (United States laws) of the Credit
Agreement:
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(a)
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are true with
each such representation and warranty being understood to mean such
representation and warranty as amended pursuant to Clause 3
(Amendments) of this Amendment Agreement; and
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(b)
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would also be
true if references to “this Agreement” were construed
as references to the Credit Agreement as amended by this Amendment
Agreement.
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4.7
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Acknowledgment of Reliance
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The Company acknowledges that it makes such
representations and warranties with the intention of persuading
Agent (on behalf of the Lenders) to enter into this Amendment
Agreement and that the Agent has entered into this Amendment
Agreement on the basis of, and in full reliance on, each of such
representations and warranties.
This Amendment Agreement is governed by the laws
of the State of New York. The provisions of Clauses 36
(Governing Law) and 37 (Enforcement) of the Credit Agreement are
incorporated by reference into this Amendment Agreement as if fully
set out herein, with each reference to “this Agreement”
(including in the definition of Finance Documents) being understood
to be a reference to this Amendment Agreement.
If any provision of this Amendment Agreement is
or becomes illegal, invalid or unenforceable in any jurisdiction,
that shall not affect:
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(a)
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the legality,
validity or enforceability in that jurisdiction of any other
provision of this Amendment Agreement; or
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(b)
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the legality,
validity or enforceability in any other jurisdiction of that or any
other provision of this Amendment Agreement.
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This Amendment Agreement may be executed in any
number of counterparts, and this has the same effect as if the
signatures on the counterparts were on a single copy of this
Amendment Agreement.
This Amendment Agreement, the Credit Agreement
and the other Finance Documents contain the complete agreement
between the Parties on the matters to which such agreements relate
and supersede all prior commitments, agreements and understandings,
whether written or oral, with respect to those matters.
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9.
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NATURE OF
THIS AMENDMENT AGREEMENT
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(a)
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By signing this
Amendment Agreement, the Parties designate this Amendment Agreement
as a Finance Document.
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(b)
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Except as
specifically amended by this Amendment Agreement, the Credit
Agreement is and shall continue to be in full force and effect and
is hereby in all respects ratified and confirmed. The Credit
Agreement and this Amendment Agreement will be read and construed
as a single document.
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10.
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CERTAIN
AGREEMENTS REGARDING FEES
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The Company hereby irrevocably agrees
that:
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(a)
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It shall pay
the Agent for the benefit of the Lenders an amendment fee equal to
US$200,000 as consideration for entering into this Amendment
Agreement. This amendment fee shall be payable in 2 installments of
$100,000 each. The first such installment of $100,000 shall be due
and payable on the date of this Amendment Agreement and the second
installment of 100,000 shall be due and payable 30 days after
the date of this Amendment Agreement.
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(b)
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It shall
promptly pay all reasonable costs and expenses of Allen & Overy
LLP, counsel to the Agent, incurred in connection with this
Amendment Agreement.
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11.
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ADDITIONAL
AGREEMENTS
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The Company and the Agent hereby agree that the
subordination agreement entered into on about the date hereof by
and among the Company, Vision Opportunity Master Fund, Ltd., the
Agent and others shall be deemed to be a Finance
Document.
The
undersigned, intending to be legally bound, have executed and
delivered this Amendment Agreement on the date stated at the
beginning of this Amendment Agreement.
