Exhibit 10.16
THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE ACT AND THE RULES
AND REGULATIONS THEREUNDER.
EACH HOLDER OF THIS INSTRUMENT,
BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE
PROVISIONS OF THIS NOTE. THIS NOTE AND THE RIGHTS AND OBLIGATIONS
EVIDENCED HEREBY ARE SUBORDINATE TO CERTAIN INDEBTEDNESS AS SET
FORTH HEREIN.
THIS NOTE MAY NOT BE ASSIGNED,
NEGOTIATED OR TRANSFERRED EXCEPT AS SET FORTH HEREIN.
AMENDED AND RESTATED SUBORDINATED PROMISSORY
NOTE
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$249,617.80
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June 11, 2009
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FOR
VALUE RECEIVED, the undersigned, MTM TECHNOLOGIES, INC., a New York
corporation (the “ Borrower ”), promises to pay
to CONSTELLATION VENTURE CAPITAL II, L.P. (the “
Holder ”), the principal sum of two hundred forty-nine
thousand six hundred seventeen and 80/100 ($249,617.80) with
interest on the unpaid balance from the date hereof, at the rate of
eight and one-half percent (8.5%) per annum in lawful money of the
United States of America, at c/o Constellation Ventures Bear
Stearns Asset Management, Inc., 237 Park Avenue, 7 th
Floor, New York, New York 10017.
This
Amended and Restated Subordinated Promissory Note (this “
Note ”) amends and restates in its entirety that
certain Subordinated Promissory Note dated as of June 16, 2008 and
made by the Borrower to evidence the principal sum of $249,617.80
(the “Existing Note”). This Note evidences the same
indebtedness evidenced by the Existing Note and does not create or
evidence any new or additional indebtedness. This Note and the
terms, covenants, agreements, rights, obligations and conditions
contained in this Note supersede, replace and control the Existing
Note and the terms, covenants, agreements, rights, obligations and
conditions contained in the Existing Note.
The
principal of and interest on this Note shall be due and payable as
follows: the principal and all interest accrued hereon from June
16, 2008 to the date of payment of the principal amount hereof
shall be due on a payable November 30, 2010 (the “
Maturity Date ”). Interest on this Note shall be due
and payable in cash or, at the option of the Borrower, in shares of
the series of preferred stock of the Borrower next designated by
the Borrower after the date hereof, at a price per share of $0.341;
provided that, except as provided in paragraph 1 below, no interest
or principal may be paid on this Note by Borrower until after
November 30, 2010.
In
addition to the issuance of this Note, in 2000 the Borrower issued
to the Holder, The BSC Employee Fund VI, L.P., Constellation
Venture Capital Offshore II, L.P. and CVC II Partners, LLC
(collectively, “ Constellation ”), other notes
in the aggregate amount of $500,000 (collectively, this Note and
all other notes issued to Constellation, as amended by the
Amendment to Subordinated Promissory Notes, dated as of
February 11, 2009, and the Second Amendment to Subordinated
Promissory Notes, dated as of the date hereof, the “
Constellation
Notes ”). In 2008 and 2009, the Borrower issued
to Pequot Private Equity Fund (n/k/a FirstMark III, L.P.) and to
Pequot Offshore Private Equity Partners III, L.P. (n/k/a FirstMark
III Offshore Partners, L.P.) other notes in the aggregate amount of
$6,500,000 (as amended by the Amendment to Subordinated Promissory
Notes, dated as of February 11, 2009, and the Second Amendment
to Subordinated Promissory Notes, dated as of the date hereof, the
“ FirstMark Notes ”). The FirstMark Notes and
the Constellation Notes are referred to herein as the “$
7,000,000 Notes .”
All
computations of interest payable hereunder shall be made on the
basis of the actual number of days in the period for which such
interest is payable and a year of 365 or 366 days, as applicable.
Notwithstanding any other provision of this Note, to the extent
permitted by applicable law, interest shall be due and payable on
any overdue unpaid installment of principal or interest on this
Note (including amounts due. and unpaid upon any acceleration of
this Note) within five (5) days of its due date at a rate equal to
the lesser of (i) ten and one-half percent (l0.5%) and (ii) the
maximum rate permitted by applicable law.
1.
Payment and Prepayment of the Note . The principal of this
Note and the interest accrued hereon may be paid upon the earlier
of November 30, 2010, or the date on which the Senior Lenders (as
defined below) consent to the prepayment hereof.
2.
Event of Default: Remedies . (a) Upon the occurrence and
during the continuance of an Event of Default, this Note may be
accelerated upon the written consent and direction of the holders
holding a majority of the then outstanding aggregate principal
balance of the $7,000,000 Notes and as provided in this Section 2
and the Holder shall have all of the rights and remedies provided
herein. An Event of Default shall mean the occurrence or existence
of one or more of the following events or conditions (for any
reason, whether voluntary, involuntary or effected or required by
law):
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(i)
The Borrower shall fail to pay when due the principal of this Note
or any of the $7,000,000 Notes.
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(ii)
The Borrower shall fail to pay when due the interest on this Note
or any of the $7,000,000 Notes and such failure shall have
continued for a period of three Business Days; provided, however,
that for the avoidance of doubt, any accrual of interest permitted
under this Note or any of tile $7,000,000 Notes (in lieu of payment
thereof) shall not constitute an Event of Default. For the purposes
of this Note a “ Business Day ” shall mean any
day other than a Saturday, Sunday, public holiday under the laws of
the State of New York or any other day on which banking
institutions are authorized to close in New York City.
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(iii)
A proceeding shall have been instituted in respect of the Borrower
or any of its material subsidiaries (each, a “ Material
Party ”):
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(A)
seeking to have an order for relief entered in respect of such
Material Party, or seeking a declaration or entailing a finding
that such Material Party is insolvent or a similar declaration or
finding, or seeking dissolution, winding-up, charter revocation or
forfeiture, liquidation, reorganization, arrangement, adjustment,
composition or other similar relief with respect to such Material
Party, its assets or its debts under any law relating to
bankruptcy, insolvency, relief of debtors or protection of
creditors,. termination of legal entities or any other similar law
now or hereafter in effect,
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2
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or
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(B)
seeking appointment of a receiver, trustee, liquidator, assignee,
sequestrator or other custodian for such Material Party or for all
or any substantial part of its property, and such proceeding shall
result in the entry, making or grant of any such order for relief,
declaration, finding, relief or appointment, or such proceeding
shall remain undismissed and unstayed for a period of 60
consecutive days.
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(iv)
Any Material Party shall voluntarily suspend transaction of its
business; shall make a general assignment for the benefit of
creditors; shall institute (or fail to controvert in a timely and
appropriate manner) a· proceeding described in Section
2(a)(iii)(A) or (whether or not any such proceeding has been
instituted) shall consent to or acquiesce in any such order for
relief, declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate
manner) a proceeding described in Section 2(a)(iii)(B), or (whether
or not any such proceeding has been instituted) shall consent to or
acquiesce in any such appointment or to the taking of possession by
any such custodian of all or any substantial part of its property;
shall dissolve, wind-up, revoke or forfeit its charter or liquidate
itself or any substantial part of its property; or shall take any
action in furtherance of any of the foregoing.
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(b)
Exercise of Remedies. If an Event of Default has occurred and is
continuing hereunder:
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(i)
the Holder may declare the entire unpaid principal and interest due
on this Note, immediately due and payable, without presentment,
notice or demand, all of which are hereby expressly waived by the
Borrower;
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(ii)
upon the occurrence of any Event of Default specified in Section
2(a)(iii) above, the entire unpaid principal and interest, shall
become automatically and immediately due and payable;
and
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(iii)
the Holder may exercise any remedy permitted by this Note or at law
or in equity.
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3.
Waiver of Certain Rights . Subject to any applicable notice
periods, all parties to this Note, including Borrower and any
sureties, endorsers, or guarantors, hereby waive protest,
presentment, notice of dishonor, and notice of acceleration of
maturity and agree to continue to remain bound for the payment of
principal, interest and all other sums due under this Note
notwithstanding any change or changes by way of release, surrender
exchange, modification or substitution of any security for this
Note or by way of any extension or extensions of time for the-
payment of principal and interest; and all such -parties waive all
and every kind of notice of such change or changes and agree that
the same may be without notice or consent of any of them. No Event
of Default shall be waived by the Holder except in a writing signed
by the Holder. No waiver of any Event of Default shall extend to
any other or further Event of Default.
4.
Payment Priority . If the Borrower is not able to pay to
FirstMark III L.P. (“FirstMark Fund”), FirstMark III
Offshore Partners, L.P. (“FirstMark Offshore” and,
together with FirstMark Fund, “FirstMark”),
Constellation Venture Capital II, L.P. (“Constellation
Ventures”), Constellation Venture Capital Offshore II, L.P.
(“Constellation Offshore”), The BSC Employee Fund VI,
L.P. (“BSC”) and CVC II Partners, LLC
(“CVC” and, together with Constellation Ventures,
Constellation Offshore and BSC, “Constellation”) the
full amounts due
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under the Subordinated Promissory
Notes held by FirstMark (the “FirstMark Notes”) and the
Subordinated Promissory Notes held by Constellation (the
“Constellation Notes”) at any time, either upon the
occurrence of an Event of Default or on the Maturity Date, payment
shall be made first to FirstMark until the FirstMark Notes have
been paid in full and then to Constellation with respect to the
Constellation Notes.
5.
Subordination . The right of repayment of principal of and
interest on this Note shall be subordinated to (a) the rights and
security interest of (i) GE Commercial Distribution Finance
Corporation (“CDF”) in connection with the August 21,
2007, secured Credit Facilities Agreement (“Credit Facilities
Agreement”) with CDF, as Administrative Agent, GECC Capital
Markets Group, Inc., as Sole Lead Arranger and Sole Bookrunner, and
CDF and the other lenders listed in the Credit Facilities
Agreement; (ii) Columbia Partners, L.L.C. Investment Management
(“Columbia”), as Investment Manager for the L/C
Guarantors in connection with the Letter of Credit Commitment and
Reimbursement Agreement dated June 11, 2009 (the “L/C
Agreement”), with Columbia, as Investment Manager for the L/C
Guarantors signatory thereto; and (ii) Columbia, as Investment
Manager and National Electric Benefit Fund (“NEBF”) in
connection with the November 23, 2005, secured credit agreement
(the “CP/NEBF Credit Agreement”) with Columbia, as
Investment Manager, and NEBF, as Lender (CDF, Columbia and NEBF
collectively, the “Senior Lenders” and the Credit
Facilities Agreement, the L/C Agreement and the CP/NEBF Credit
Agreement collectively the “Senior Debt”) and (b) the
rights of FirstMark in connection with the FirstMark Notes. The
issuance of this Note requires the consent of the Senior Lenders
pursuant to the Senior Debt. The Borrower has obtained such
consent. While any default or event of default has occurred and is
continuing with respect to any Senior Debt or the FirstMark Notes,
the Borrower shall not make and the Holder shall not accept any
payments or distribution in respect of this Note of any kind. The
Holder agrees that this Note shall remain unsecur
