Exhibit
10.27


 


FIRST
AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of January 23,
2008, by and between CONSONUS ACQUISITION CORP., a Delaware corporation (“Borrower”),
and U.S. BANK NATIONAL ASSOCIATION (“Lender”).


 


RECITALS


 


A.          Borrower and Lender
entered into that certain Amended and Restated Credit Agreement, dated as of November 19,
2007 (the “Credit Agreement”), pursuant to which Lender agreed to extend to
Borrower certain credit facilities described therein, including a revolving
line of credit (the “Line of Credit’) in the maximum principal amount
of Two Million Five Hundred Thousand Dollars ($2,500,000.00).


 


B.           Borrower has
requested that Lender issue certain letters of credit under the Line of Credit.


 


C.           Borrower and Lender desire to amend the
Credit Agreement to provide for the issuance of such letters of credit, on and
subject to the terms and conditions set forth herein.


 


NOW,
THEREFORE, Borrower and Lender hereby agree as follows:


 


1.             DEFINITIONS. Capitalized terms used
but not otherwise defined herein shall have the meanings given them in the
Credit Agreement.:


 


2.             CONDITIONS TO LENDER’S
OBLIGATIONS. The following are conditions precedent to the obligations of Lender hereunder:


 


2.1           Borrower shall have
reimbursed Lender’s costs and expenses incurred in connection with this
Amendment and the transactions contemplated hereby, including, without limitation, attorneys’ fees, and documentation costs and charges, whether such
services are furnished by Lender’s employees or agents or by independent
contractors;


 


2.2           All payments due
and owing to Lender under the Loan Documents shall have been paid current as of
the effective date of this Agreement; and


 


2.3           Borrower shall have
delivered to Lender duly executed copies of all documents required by Lender
in connection with this Amendment, including but not limited to the
Reimbursement Agreement (as defined below).


 


3.             AMENDMENT.


 


3.1           The following
definition is hereby added to Article 1 of the Credit Agreement.


 


“Reimbursement
Agreement” – means  that certain Continuing
Reimbursement Agreement for Letters of Credit, dated as of January 23,
2008, between Lender and Borrower, as it may be amended from time to time. The
Reimbursement Agreement is one of the Loan Documents.


 


3.2           The following is
hereby added to the list of Loan Documents on Exhibit A attached to the
Credit Agreement:


 


	
  1.16

  	
   

  	
  Continuing Reimbursement Agreement for
  Letters of Credit between Lender and Borrower, dated as of January 23,
  2008.

  



 

















 


3.3           The following is hereby added
to the Credit Agreement as Section 2.1(f):


 


Letters of Credit.


 


(i)            Subject to the terms and conditions of this
Agreement, Lender hereby agrees from time to time prior to the Maturity Date to issue standby
letters of credit in a form acceptable to Lender (each, a “Letter of Credit”)
for the account of Borrower. Letters of Credit may be issued hereunder for no
purposes other than those for which Line of Credit proceeds may be used
pursuant to Section 2.1(c). Each Letter of Credit shall be  subject to
the additional terms and conditions of the Reimbursement Agreement and any
other agreements, applications and related documents required by Lender in
connection with the issuance thereof.


 


(ii)           The aggregate face amount of Letters of Credit outstanding shall  not at any
time exceed Five Hundred Thousand Dollars ($500,000.00). The Line of Credit
Availability shall be reduced by the face amount of each Letter of Credit
issued hereunder.


 


(iii)          No Letter of Credit
issued pursuant to this Agreement shall have a term extending more than one
year beyond the Maturity Date.


 


(iv)          Borrower shall pay to Lender in advance of, and as a condition
precedent to, the issuance of each Letter of Credit a fee in an amount equal to
one percent (1.0%) of the face amount of such Letter of Credit per annum,
computed on the basis of a  three  hundred sixty
(360) day year, for the number of days in the  stated term of the Letter of  Credit.


 


4.             BORROWER REPRESENTATIONS AND WARRANTIES.


 


4.1         Borrower hereby represents and warrants that no Default, or event or
condition which, with the giving of notice or the  passage of
time or both, would constitute a Default, under any of the Loan Documents has
occurred and is continuing, and that all representations and warranties herein
and in the other Loan Documents are true and correct, which representations and
warranties shall survive execution of this Amendment.


 


4.2         Borrower hereby certifies that the organizational documents of Borrower
previously delivered to Lender are in full force and effect and have not been
amended or modified.


 


5.             MISCELLANEOUS.


 


5.1         Confirmation of Credit Agreement and other
Loan Documents. Borrower
hereby affirms and agrees to be bound by all of the terms of the Credit
Agreement, as amended hereby, and the other Loan Documents.


 


5.2         Non-Impairment. Except as expressly provided herein,
nothing in this Amendment shall alter or affect any provision, condition, or
covenant contained in the Credit Agreement or any other Loan Document or affect or impair any  rights,
powers, or remedies of Lender, it being the Intent of the parties that, except
as amended hereby, all of the terms, covenants and conditions of the Credit
Agreement and the other Loan Documents shall remain in full force and effect.


 


5.3         Entire Agreement. This Amendment constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.


 


2

















 


5.4         Governing Law. This Amendment shall be governed by and construed in accordance with
the laws of the State of Utah.


 


5.5         Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.


 


IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as of
the date appearing on the first page of this Agreement.


 


	
   

  	
  “LENDER”

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas Hintze

  	 

	
   

  	
   

  	
  Name: Nicholas Hintze

  	 

	
   

  	
   

  	
  Title: AVP Assistant Vice President

  	 

	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “BORROWER”

  
	
   

  	
   

  
	
   

  	
  CONSONUS ACQUISITION CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  C. Muir

  
	
   

  	
   

  	
  Robert C. Muir, Chief Financial Officer

  



 


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