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$OOMA
·
10-Q
OOMA INC · Dec 9, 5:20 PM ET
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OOMA INC 10-Q
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Contents
17
Section 1. Defined Terms. Capitalized terms used but not defined herein (including in the recitals hereto) shall have the meanings assigned to them in the Credit Agreement, as amended hereby.
Section 2. Amendments to Credit Agreement. The Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages attached as Annex I hereto.
Section 3. Consent to FluentStream Acquisition. Pursuant to the terms of the FluentStream Acquisition Agreement (as defined in the Credit Agreement) and the related transactions contemplated thereby, Ooma has acquired, indirectly or directly, one hundred percent (100%) of the Equity Interests of FluentStream Corp., a Delaware corporation (“FluentStream Holdco”), FluentStream Intermediate, LLC, a Delaware limited liability company (“FluentStream Intermediate”), and FluentStream Technologies, LLC, a Colorado limited liability company (“FluentStream”; and together with FluentStream Holdco and FluentStream Intermediate, the “FluentStream Entities”) (the “FluentStream Acquisition”) and (a) intends to add each of FluentStream Holdco and FluentStream Intermediate as a party to the Guarantee Agreement, Security Agreement, and each other applicable Loan Document as a Guarantor and (b) intends to add FluentStream as a party to the Credit Agreement, Security Agreement, and each other applicable Loan Document as a Borrower. Subject to the terms and conditions set forth herein, Administrative Agent hereby consents to the FluentStream Acquisition, substantially in the form presented to Administrative Agent as of the Fourth Amendment Effective Date, the agreements entered into in connection therewith, and the transactions contemplated thereby and thereunder.
Section 4. Consent to Phone.com Acquisition. Pursuant to the terms of the Phone.com Acquisition Agreement (as defined in the Credit Agreement) and the related transactions contemplated thereby, Ooma will acquire one hundred percent (100%) of the Equity Interests of Phone.Com, Inc., a Delaware corporation, (“Phone.com”) (the “Phone.com Acquisition”) and intends to add Phone.com as a party to the Credit Agreement, Security Agreement, and each other applicable Loan Document as a Borrower. Subject to the terms and conditions set forth herein, Administrative Agent hereby consents to the Phone.com Acquisition, substantially in the form presented to Administrative Agent as of the Fourth
Amendment Effective Date (or later period as agreed to herein), the agreements entered into in connection therewith, and the transactions contemplated thereby and thereunder.
Section 5. Joinder Agreement. Pursuant to that certain Joinder Agreement, dated as of the date hereof, by and between Administrative Agent and the FluentStream Entities, (i) FluentStream shall be added and joined as a “Borrower” to the Credit Agreement and a party to the Security Agreement and each other applicable Loan Document as of the Fourth Amendment Effective Date, and (ii) each of FluentStream Holdco and FluentStream Intermediate shall be added and joined as a “Loan Party” to the Credit Agreement and a party to the Guarantee Agreement, Security Agreement, and each other applicable Loan Document as of the Fourth Amendment Effective Date.
Section 6. Effectiveness. This Amendment shall become effective as of the Fourth Amendment Effective Date if, and only if, the following conditions precedent have been satisfied:
Section 7. Post-Closing Obligations. Unless otherwise provided in writing:
Section 8. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, each Loan Party that is party hereto represents and warrants to the Administrative Agent and the Lenders as follows:
Section 9. Effect of this Amendment.
Section 10. Counterparts, Severability, etc.. The provisions of Section 10.6 and Section 10.7 of the Credit Agreement are hereby incorporated herein by reference as if fully set forth herein, mutatis mutandis.
Section 11. Reaffirmation. Subject to any limitations on its obligations expressly stated in the Loan Documents to which it is a party, each Loan Party (a) acknowledges and agrees, as of the effectiveness of this Amendment, that all of its obligations under the Loan Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis, and (b) reaffirms each Lien granted by each Loan Party pursuant to the Collateral Documents, all of which obligations and Liens remain in full force and effect after giving effect to this Amendment.
Section 12. Expenses. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the negotiation, preparation, execution, and delivery of this Amendment and each other document contemplated hereby (including, without limitation, the reasonable fees and expenses of counsel).
Section 13. No Actions, Claims, Etc. As of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, any other Credit Party, or any of their respective officers, employees, representatives, agents, advisors, consultants, counsel or directors arising from any action by such Persons, or failure of such Persons to act on or prior to the date hereof, in each case in connection with the Credit Agreement.
Section 14. Governing Law; Jurisdiction; Service of Process.
Section 15. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 16. Headings. Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
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