Exhibit 10.6
EXECUTION COPY
AMENDMENT NO. 9 TO CREDIT
AGREEMENT
AMENDMENT No. 9 to CREDIT AGREEMENT, dated as of June 11,
2009 (“ 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 (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-US,
MTM-MA and ISI being collectively, the “ Borrowers
” and each a “ Borrower ”); Columbia
Partners, L.L.C. Investment Management, as investment manager
(“ Investment Manager ”) for the benefit of
itself and National Electrical Benefit Fund, as lender (“
Lender ”); and Lender (as amended, modified,
supplemented or otherwise 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.
RECITALS
WHEREAS, the Borrowers have requested that Investment
Manager and Lender: (a) amend certain provisions of the Credit
Agreement as set forth herein, (b) consent to the disposition by
the Borrowers of certain assets related to its DataVox business,
and (iii) consent to the Borrowers incurring certain additional
indebtedness obligations senior in priority to the Obligations
under the Credit Agreement; and
WHEREAS, Investment Manager and Lender are willing to
consent to the foregoing, but only on the condition that the Credit
Agreement be amended as set forth 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, the
parties hereto hereby agree as follows:
Section One. Consent .
(a)
The Borrowers have notified Investment Manager and Lender that it
intends to sell certain assets related to its DataVox business
(“ Proposed Asset Sale ”). The Borrowers
anticipate that (i) the aggregate purchase price for the Proposed
Asset Sale would be between $60,000 and $100,000, and (ii) the
aggregate liabilities that would be assumed by purchasers in
connection with the sale of the DataVox business would be between
$55,000 and $70,000. Notwithstanding the restrictions set forth in
Section 5.3, or any other provisions of the Credit Agreement to the
contrary, Investment Manager and Lender hereby consent to the
Proposed Asset Sale.
(b)
The Borrowers have notified Investment Manager and Lender that it
intends to incur additional indebtedness obligations senior to the
Obligations under the Credit Agreement (“ Additional
Senior Debt ”). Notwithstanding the restrictions set
forth in Sections 5.1
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and 5.2, or any other provisions
of the Credit Agreement to the contrary, Investment Manager and
Lender hereby consent to the Borrowers’ incurring the
Additional Senior Debt.
(c)
The consents contained in this Section One are specific in intent
and are valid only for the specific purposes for which they are
given. Nothing contained herein obligates Investment Manager and
Lender to agree to any additional consents to any additional
actions by the Borrowers.
Section Two. Amendments to Credit Agreement
.
(a)
Section 3.9 (Solvency) of the Credit Agreement is deleted in its
entirety, and following is substituted in lieu thereof:
“
3.9 [ Intentionally Omitted .]”
(b)
Section 7.1(j) (Solvency) of the Credit Agreement is deleted in its
entirety, and following is substituted in lieu thereof:
“
(j) [ Intentionally Omitted .]”
(c)
Section 8.1(c) of the Credit Agreement is deleted in its entirety,
and following is substituted in lieu thereof:
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“(c)
Subject to the registration requirements of the Securities Act or
any applicable state securities laws, Lender shall also have the
right to grant participations in all or any part of, or any
interest in, the Note and Lender’s rights and benefits
hereunder.
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(d)
Lender may furnish any information concerning Borrowers in the
possession of Lender from time to time to assignees and
participants (including prospective assignees and participants);
provided that Lender shall obtain from assignees or
participants confidentiality covenants substantially equivalent to
those contained in Section 10.12 .”
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Section Three. Amendments to Credit Agreement
Definitions . Annex A of the Credit Agreement is amended by
(i) adding the following defined terms “L/C Agreement”
and L/C Agreement Guarantors” in the appropriate alphabetical
order and (ii) deleting the definitions of
“Indebtedness,” “Senior Indebtedness” and
“Subordination Agreement” and the following are
substituted in lieu thereof:
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““
Indebtedness ” means, with respect to any Person,
without duplication (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of property
payment for which is deferred six (6) months or more, but excluding
obligations to trade creditors incurred in the ordinary course of
business that are unsecured and not overdue by more than six (6)
months unless being contested in good faith, (b) all reimbursement
and other obligations with respect to letters of credit,
bankers’ acceptances and surety bonds, whether or
not
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matured, (c) all obligations
evidenced by notes, bonds, debentures or similar instruments, (d)
all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired
by such Person (even though the rights and remedies of the seller
or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all Capital Lease
Obligations, (f) all obligations of such Person under commodity
purchase or option agreements or other commodity price hedging
arrangements, in each case whether contingent or matured, (g) all
obligations of such Person under any foreign exchange contract,
currency swap agreement, interest rate swap, cap or collar
agreement or other similar agreement or arrangement designed to
alter the risks of that Person arising from fluctuations in
currency values or interest rates, in each case whether contingent
or matured, (h) all Indebtedness referred to above secured by (or
for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in
property or other assets (including accounts and contract rights)
owned by such Person, even though such Person has not assumed or
become liable for the payment of such Indebtedness, (i)
“earnouts” and similar payment obligations, except for
such obligations which are payable solely in Stock, (j) Contingent
Obligations, (k) the obligations (in the event such obligations do
not otherwise
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