the Aggregate Floorplan Loan Facility, then there shall be an Event of Default and the Borrower shall, on such date, pay such excess to the Administrative Agent for the pro-rata benefit of the Lenders.”
9. 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) there is no Existing Default, (v) the execution, delivery and performance of this Agreement by Borrower does not violate, contravene, or conflict with any Material Law or Material Agreement, (vi) there are no Material Proceedings pending or, to the knowledge of Borrower, threatened, and (vii) 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.
10. Reaffirmation; No Claims; RELEASE. 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 OR ANY OF THEIR RESPECTIVE PRESENT AND FORMER SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, DIVISIONS, PREDECESSORS, DIRECTORS, OFFICERS, ATTORNEYS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES ARISING FROM OR IN CONNECTION WITH THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. 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 Loan Document.
EACH BORROWER, ON BEHALF OF ITSELF AND ITS RESPECTIVE SUCCESSORS, ASSIGNS, AND OTHER LEGAL REPRESENTATIVES, HEREBY ABSOLUTELY, UNCONDITIONALLY AND IRREVOCABLY RELEASES, REMISES AND FOREVER DISCHARGES ADMINISTRATIVE AGENT, LENDER, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND THEIR PRESENT AND FORMER SHAREHOLDERS, AFFILIATES, SUBSIDIARIES, DIVISIONS, PREDECESSORS, DIRECTORS, OFFICERS, ATTORNEYS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (ADMINISTRATIVE AGENT, LENDER, AND ALL SUCH OTHER PARTIES BEING HEREINAFTER REFERRED TO COLLECTIVELY AS THE "RELEASEES" AND INDIVIDUALLY AS A "RELEASEE"), OF AND FROM ALL DEMANDS, ACTIONS, CAUSES OF ACTION, SUITS, COVENANTS, CONTRACTS, CONTROVERSIES, AGREEMENTS, PROMISES, SUMS OF MONEY, ACCOUNTS, BILLS, RECKONINGS, DAMAGES AND ANY AND ALL OTHER CLAIMS, COUNTERCLAIMS, DEFENSES, RIGHTS OF SET-OFF, DEMANDS AND LIABILITIES WHATSOEVER OF EVERY NAME AND NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, BOTH AT LAW AND IN EQUITY, WHICH ANY BORROWER, OR ANY OF THEIR RESPECTIVE SUCCESSORS, ASSIGNS, OR OTHER LEGAL REPRESENTATIVES MAY NOW OR HEREAFTER OWN, HOLD, HAVE OR CLAIM TO HAVE AGAINST THE RELEASEES OR ANY OF THEM FOR, UPON, OR BY
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REASON OF ANY NATURE, CAUSE OR THING WHATSOEVER WHICH ARISES AT ANY TIME ON OR PRIOR TO THE DAY AND DATE OF THIS AGREEMENT, FOR OR ON ACCOUNT OF, OR IN RELATION TO, OR IN ANY WAY IN CONNECTION WITH THE LOAN AGREEMENT, AS AMENDED AND SUPPLEMENTED THROUGH THE DATE HEREOF, AND/OR THE OTHER LOAN DOCUMENTS, AS AMENDED AND SUPPLEMENTED THROUGH THE DATE HEREOF.
11. Payments. Each Borrower reaffirms, covenants and agrees to direct all Account Debtors to remit payments on their Accounts to a Lockbox, including, without limitation, the Account owing from Defense Finance and Accounting Services.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
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19. Incorporation By Reference. Administrative Agent, the 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.
20. 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.
21. 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
By: /s/ David Mintert
Name: David Mintert
Title: Operations Director
MTM TECHNOLOGIES, INC., as a Borrower
By: /s/ Steven Stringer
Name: | Steven Stringer |
Title: | President and Chief Executive Officer |
| | |
MTM TECHNOLOGIES (US), INC., as a Borrower
By: /s/ Steven Stringer
Name: | Steven Stringer |
Title: | President and Chief Executive Officer |
| | |
MTM TECHNOLOGIES (MASSACHUSETTS), LLC, as a Borrower
By: /s/ Steven Stringer
Name: | Steven Stringer |
Title: | President and Chief Executive Officer |
| | |
INFO SYSTEMS, INC., as a Borrower
By: /s/ Steven Stringer
Name: | Steven Stringer |
Title: | President and Chief Executive Officer |
| | |
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EXHIBIT A
1. | Eighth Amendment to Credit Facilities Agreement |
| | |
2. | Reaffirmation of Guaranty. |
| | |
3. | Delivery to Administrative Agent of retention agreement with the Trenwith Group. |
| | |
| 4. | Resolutions of each Borrower, certified by the corporate secretary or assistant secretary of such Borrower, authorizing this Agreement and the transactions contemplated by the Eight Amendment to the Credit Facilities Agreement. |
| | |
| 5. | Amendment No. 8 to the Subordinated Indebtedness Documents in the form attached hereto as Exhibit B. |
| | |
6. | Payment to Administrative Agent, in same day funds, of a $250,000 Eighth Amendment Fee. |
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EXHIBIT B
Form of Amendment No. 8 to Subordinated Indebtedness
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EXHIBIT 3
LENDERS’ FACILITIES AND PRO-RATA SHARES
Subject to the Total Aggregate Facility Limit
LENDER | TOTAL AGGREGATE FACILITY LIMIT | REVOLVING LOAN FACILITY | FLOORPLAN LOAN FACILITY | PRO-RATA SHARES |
GE Commercial Distribution Finance Corporation | $25,000,000.00 | $15,000,000.00 | $15,000,000.00 | 100.000000% |
AGGREGATES | $25,000,000.00 | $15,000,000.00 | $15,000,000.00 | 100.000000% |
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UNCONDITIONAL REAFFIRMATION OF GUARANTY
The undersigned (“Guarantor”) has reviewed the Eighth Amendment to Credit Facilities Agreement, 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") of even date herewith (the “Eighth Amendment”), and all other documents and financial statements the Guarantor deems necessary relating to the Borrower. Capitalized terms used herein, but not defined herein, unless otherwise noted, shall have the meanings set forth in the Eighth Amendment or, if not defined therein, as defined in that certain Limited Guaranty dated as of May 28, 2009, to which the Guarantor and the Administrative Agent are a party (the Guaranty Agreement”).
Guarantor acknowledges and consents to all changes set forth in the Eighth Amendment, and agrees that all such changes are in the best interests of the Borrower and the Guarantor. In consideration of financial accommodations granted and which may hereafter be granted to the Borrower by Administrative Agent and the Lenders, in consideration of Administrative Agent’s and the Lenders’ reliance on the Guaranty Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor irrevocably and unconditionally reaffirms pursuant to the terms of the Guaranty Agreement, each of which it is a party to, its unconditional continuing guarantee of the payment and performance of all Guarantied Obligations, and Guarantor further agrees that the validity and enforceability of the Guaranty Agreement is not and shall not be affected in any way or manner by the Eighth Amendment.
Guarantor hereby unconditionally reaffirms, covenants, represents, warrants, acknowledges and confirms to Administrative Agent and Lender that (i) the Guaranty and Collateral Agreement is in full force and effect, (ii) this Reaffirmation has been duly authorized by Guarantor’s governing body, members or shareholders, as the case may be, (iii) no consents are necessary from any third Person for Guarantor’s execution, delivery or performance of this Reaffirmation which have not been obtained, (iv) this Reaffirmation and the Guaranty Agreement constitutes the legal, valid and binding obligation of Guarantor enforceable against Guarantor in accordance with its terms except as the enforcement thereof may be limited by bankruptcy, insolvency or other laws related to creditors rights generally or by the application of equity principles, (v) the Guaranty Agreement is hereby reaffirmed and ratified without qualification and is and remains in full force and effect, except that on and after the date hereof all references in the Guaranty Agreement to “the Loan Agreement” or words of like import referring to the Loan Agreement shall mean the Loan Agreement as amended by the Eighth Amendment, and (vi) each of the representations and warranties made by the Guarantor under the Guaranty Agreement are true and correct as of the date hereof.
Guarantor hereby unconditionally reaffirms, covenants, represents, warrants, acknowledges and confirms to Administrative Agent and each Lender that (i) Guarantor has no defenses to its obligations under the Guaranty Agreement, arising out of or relating to any facts or circumstances existing on or before the date hereof, known or unknown, to the Guarantor, the Borrower or any other Covered Person, and (ii) as of the date hereof, the Guarantor has no claim against Administrative Agent or any Lender arising from or in connection with the Credit Agreement or the Guaranty Agreement and any and all such claims are waived, released and discharged (the foregoing is not intended to waive any manifest errors in the Administrative Agent’s or any Lender’s records with respect to the Loan Obligations).
Guarantor has caused this Unconditional Reaffirmation to be duly executed and delivered by its duly authorized officers as of the date first set forth above.
Dated and effective as of June 2, 2009.
NATIONAL ELECTRIC BENEFIT FUND, as Guarantor
By: COLUMBIA PARTNERS, L.L.C.
INVESTMENT MANAGEMENT
as Investment Manager and the Authorized Signatory of National Electrical Benefit Fund
By: /s/ Jason Crist
Name: Jason Crist
Title: Managing Director
Agreed and accepted as of June 2, 2009:
GE Commercial Distribution Finance Corporation,
as Administrative Agent
Name: David Mintert
Title: Operations Director
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