Exhibit 10.4


 


FIFTH AMENDMENT TO LOAN DOCUMENTS


 


THIS FIFTH AMENDMENT
TO LOAN DOCUMENTS (this “Amendment”), dated as of November __, 2020, is among Stratos
Management Systems, Inc. (f/k/a Tango Merger Sub Corp.), a Delaware corporation (“Stratos”), American
Virtual Cloud Technologies, Inc. (f/k/a Pensare Acquisition Corp.), a Delaware corporation (“Parent”
and together with Stratos, collectively and individually, “Borrower”), COMPUTEX, INC., a Texas corporation (“Computex”),
FIRST BYTE COMPUTERS, INC., a Minnesota corporation (“First Byte”), ENETSOLUTIONS, L.L.C., a Texas limited liability
company (“eNET”, and together with Computex and First Byte, collectively, “Guarantors”, and
each, individually, a “Guarantor”), and COMERICA BANK (“Bank”).


 


RECITALS:


 


A. Borrower
and Bank are party to that certain Credit Agreement dated as of December 18, 2017 (as the same has been or may hereafter be amended,
restated or otherwise modified from time to time, the “Credit Agreement”).


 


B. In
connection with the Credit Agreement, (i) Borrower and the Guarantors (other than Parent) are party to that certain Security
Agreement dated as of December 18, 2017 in favor of Bank and (ii) Parent is party to that certain Security Agreement dated
as of April 7, 2020 in favor of Bank (collectively, as the same have been or may be amended, restated or modified from time to
time, the “Security Agreement”).


 


C. In
connection with the Credit Agreement, (i) the Guarantors (other than Parent) are party to that certain Guaranty dated as of December
18, 2017 in favor of Bank and (ii) Parent is party to that certain Guaranty dated as of April 7, 2020 in favor of Bank (collectively,
as the same have been or may hereafter be amended, restated or otherwise modified from time to time, the “Guaranties”).


 


D. In
connection with the Credit Agreement, the Borrower and Guarantors are party to that certain Advance Formula Agreement dated as
of December 18, 2017 (as the same has been or may hereafter be amended, restated or otherwise modified from time to time, the “Advance
Formula Agreement”).


 


E. Borrower,
Guarantors, and Bank now desire to amend the Credit Agreement and the other Loan Documents as provided herein.


 


NOW, THEREFORE, in
consideration of the premises herein contained and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows (all provisions of this Amendment being effective as of the date hereof
unless otherwise stated herein):


 






    Fifth Amendment to Loan Documents – Page 1


     


    

 


ARTICLE I



Definitions


 


Section 1.1 Definitions.
Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the same meanings as in the
Credit Agreement, as amended hereby.


 


ARTICLE II



Amendments to Loan Documents


 


Section 2.1 Additions
to Definitions in Section 1(a) of the Credit Agreement. The following definitions are hereby added to
Section 1(a) of the Credit Agreement in alphabetical order in their entirety as follows:


 


“Fifth
Amendment Effective Date” shall mean November                , 2020.


 


“Liquidity”
shall mean the sum of (a) the unrestricted cash and cash equivalents of Borrower and Guarantors on deposit with or held by Bank,
plus (b) the Unused Availability.


 


“Unused
Availability” shall mean, on any date of determination, the amount equal to the sum of (a) the Advance Formula, minus
(b) the aggregate outstanding principal amount under the Revolving Credit Note.


 


Section 2.2
Amendments to Definitions in Section 1(a) of the Credit Agreement. The following definitions in Section 1(a) of the
Credit Agreement are amended and restated to read in their entirety as follows:


 


“2020
Subordinated Debt” shall mean the Debt owed by Parent, Borrower and Borrower’s Subsidiaries pursuant to the following
documents: (a) the Securities Purchase Agreement dated on or about the Third Amendment Effective Date, by and among Parent and
the investors party thereto and any and all convertible debentures (including any such debentures issued following the Third Amendment
Effective Date in accordance with the terms of such Securities Purchase Agreement) and warrants to purchase common stock issued
pursuant thereto; (b) any other convertible debentures and warrants having substantially the same terms, conditions and subordination
provisions as the debentures and warrants issued pursuant to the foregoing clause (a) issued pursuant to one or more agreements
entered into on or after the Fifth Amendment Effective Date; (c) the Registration Rights Agreement dated on or about the Third
Amendment Effective Date, by and among Parent and the holders party thereto; (d) the subordinated promissory notes dated on or
about or within 60 days following, the Third Amendment Effective Date in an amount not to exceed $7,000,000 in the aggregate, by
Parent in favor of certain holders party thereto and issued in settlement of certain obligations of Parent to the holders thereof
as evidenced by letter agreements (or other agreements evidencing such settlements) dated on or about or within 60 days following,
the Third Amendment Effective Date between Parent and each holder of such subordinated promissory notes; and (e) any other documents,
agreement, and instruments related thereto; provided, however, that the aggregate principal amount of any convertible debentures
issued pursuant to the foregoing clauses (a) and (b) shall not exceed, in the aggregate, $100,000,000.


 






    Fifth Amendment to Loan Documents – Page 2


     


    

 


“Revolving
Credit Note” shall mean the Fourth Amended and Restated Master Revolving Note dated the Fifth Amendment Effective Date
in the maximum original principal amount of $16,500,000 made by Borrower payable to the order of Bank, as the same has been or
may be renewed, extended, modified, increased, or restated from time to time.


 


“Term
Note” shall mean the Second Amended and Restated Term Note dated the Third Amendment Effective Date in the maximum original
principal amount of $5,821,428.54 made by Borrower payable to the order of Bank, as the same has been or may be amended, renewed,
extended, modified, increased or restated from time to time.


 


Section 2.3 Addition
to Section 2 of the Credit Agreement. A new clause (c) is added to the end of Section 2 of the Credit Agreement to
read in its entirety as follows:


 


(c) Amendment
Fee. An amendment fee equal to $100,000 (the “Amendment Fee”) shall be deemed fully earned as of the
Fifth Amendment Effective Date and shall be due and payable as follows:


 


(i) $50,000
shall be due and payable as of the Fifth Amendment Effective Date; and


 


(ii) $50,000
shall be due and payable on April 1, 2021; provided, however, if the Borrower satisfied one of the following conditions, then Bank
agrees that payment of this portion of the Amendment Fee is waived:


 


(A) Borrower
has paid in full all Indebtedness and all of Bank’s commitments under the Credit Agreement have been terminated; or


 


(B) Borrower
has provided sufficient cash collateral to Bank to secure all of the outstanding Indebtedness.


 


Section 2.4 Amendment
to Section 4(k) of the Credit Agreement. The reference to the phrase "Within thirty (30) days of the Third
Amendment Effective Date" in Section 4(k) of the Credit Agreement is hereby deleted and the reference to the phrase
"On or before December 31, 2020" is inserted in lieu thereof.


 


Section 2.5 Amendment
to Section 4(l) of the Credit Agreement. Section 4(l) of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:


 


(l) Liquidity.
At all times beginning January 31, 2021 and tested monthly at the end of each month thereafter, maintain Liquidity of at least
Three Million and No/100 Dollars ($3,000,000.00).


 






    Fifth Amendment to Loan Documents – Page 3


     


    

 


Section 2.6 Amendment
to Section 4(q) of the Credit Agreement. The reference to the phrase "Within forty-five (45) days of the Third
Amendment Effective Date" in Section 4(q) of the Credit Agreement is hereby deleted and the reference to the phrase
"On or before December 31, 2020" is inserted in lieu thereof.


 


Section 2.7 Amendment
to Section 4 of the Credit Agreement. A new clause (w) is added to the end of Section 4 of the Credit Agreement to
read in its entirety as follows:


 


(w) Fifth
Amendment Post-Closing Deliverables. On or before December 31, 2020, Borrower shall deliver to Bank evidence that
all insurance required under Section 4(d) of the Credit Agreement shall have been endorsed to list Bank as an additional insured
or lender loss payee, as appropriate, all in form and substance satisfactory to Bank.


 


Section 2.8 Amendment
to Section 5(d) of the Credit Agreement. Section 5(d) of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:


 


(d) Debt.
Incur, create, assume or permit to exist any Debt of any kind or nature whatsoever, except (without duplication) for (i) the
Indebtedness, (ii) Subordinated Debt, (iii) existing indebtedness (if any) to the extent set forth in the Schedule of
Debt attached hereto or in the most recent financial statements of Borrower delivered to Bank prior to the date of this Agreement,
(iv) unsecured trade indebtedness, utility indebtedness and non-extraordinary accounts payable incurred and paid in the ordinary
course of business, (v) purchase money indebtedness and lease obligations (whether in respect of capitalized leases, operating
leases or otherwise, but not leases in respect of real property pursuant to which the Loan Parties are a tenant), not otherwise
disclosed in said Schedule of Debt or such most recent financial statements, not to exceed $1,000,000, in aggregate, at any time,
(vi) Debt owing solely between or among Loan Parties, (vii) Debt owed by any Foreign Subsidiary to a Loan Party in an
aggregate outstanding amount not to exceed $100,000 at any time, (viii) Ingram Micro Debt, (ix) other unsecured Debt not to
exceed $100,000, in aggregate, at any time outstanding; (x) any Debt incurred in connection with any Capital Expenditure set forth
on the Schedule of Permitted Capital Expenditures, (xi) unsecured Debt incurred for the sole purpose of financing insurance premiums
in an aggregate outstanding amount not to exceed $1,500,000 at any time, (xii) the Permitted PPP Loan so long as (1) it is unsecured
and (2) the aggregate principal amount of the Permitted PPP Loan shall not exceed $4,200,000 at any one time outstanding; (xiii)
the 2020 Subordinated Debt; and (xiv) any Debt incurred to refinance any Debt referred to in this Section 5(d); provided, that
the principal amount of the Indebtedness secured thereby is not increased.


 


ARTICLE III 


 


No Waiver


 


Section 3.1 No
Waiver. Nothing contained herein shall be construed as a consent to or waiver of any Default or Event of Default, which
may now exist or hereafter occur or any violation of any term, covenant or provision of the Credit Agreement or any other
Loan Document. All rights and remedies of Bank are hereby expressly reserved with respect to any such Default or Event of
Default. Nothing contained herein shall affect or diminish the right of Bank to require strict performance by each Loan Party
of each provision of any Loan Document to which such Loan Party is a party, except as expressly provided herein. Except as
amended hereby, all terms and provisions and all rights and remedies of Bank under the Loan Documents shall continue in full
force and effect and are hereby confirmed and ratified in all respects.


 






    Fifth Amendment to Loan Documents – Page 4


     


    

 


ARTICLE IV



Conditions Precedent


 


Section 4.1 Conditions
Precedent. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent:


 


(a)
Bank shall have received this Amendment properly executed by Borrower, Guarantors and Bank.


 


(b)
Bank shall have received payment of not less than $250,000 to be applied as a prepayment to the outstanding principal balance
of the Term Note.


 


(c)
The representations and warranties contained herein and in all other Loan Documents, as amended hereby, shall be true and
correct in all material respects as of the date hereof as if made on the date hereof.


 


(d)
No Default or Event of Default shall have occurred and be continuing.


 


(e)
Bank shall have received payment of $50,000 of the Amendment Fee due and payable as of the date hereof.


 


ARTICLE V



Ratifications, Representations and Warranties


 


Section 5.1 Ratifications.
The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Credit Agreement and except as expressly modified and superseded by this Amendment, the terms and provisions of
the Credit Agreement and the other Loan Documents are ratified and confirmed and shall continue in full force and effect.
Each of Borrower, Guarantors and Bank agree that the Credit Agreement, as amended hereby, and the other Loan Documents shall
continue to be legal, valid, binding and enforceable in accordance with their respective terms. Each Guarantor hereby
consents and agrees to this Amendment and agrees that each Loan Document to which such Person is a party shall remain in full
force and effect and shall continue to (a) in the case of the Guaranty, guarantee the Indebtedness (as defined in the
Guaranty) and the other amounts and obligations as provided in the Guaranty, and (b) be the legal, valid and binding
obligation of such Person and enforceable against such Person in accordance with its terms.


 


Section 5.2 Representations
and Warranties. Each of Borrower and Guarantors hereby represents and warrants to the Bank that (a) with respect to
Borrower, the execution, delivery and performance of this Amendment and any and all other Loan Documents executed and/or
delivered in connection herewith have been authorized by all requisite company or other action on the part of Borrower and
will not violate the charter or organizational documents of Borrower, (b) the representations and warranties contained in the
Credit Agreement and each other Loan Document are true and correct in all material respects on and as of the date hereof as
though made on and as of the date hereof (except for such representations and warranties as are limited by their express
terms to a specific date), and (c) effective upon the execution of this Amendment and the Loan Documents executed in
connection herewith, no Default or Event of Default (other than the Subject Default) has occurred and is continuing.


 






    Fifth Amendment to Loan Documents – Page 5


     


    

 


ARTICLE VI



Miscellaneous


 


Section 6.1 Survival
of Representations and Warranties. All representations and warranties made in this Amendment or any other document
executed in connection herewith shall survive the execution and delivery of this Amendment, and no investigation by Bank or
any closing shall affect the representations and warranties or the right of Bank to rely upon them.


 


Section 6.2 Reference
to Agreement. Each of the Credit Agreement, the Loan Documents and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit
Agreement and the Loan Documents, as amended hereby, are hereby amended so that any reference in such documents to the Credit
Agreement and the Loan Documents shall mean a reference to the Credit Agreement and the Loan Documents as amended hereby.


 


Section 6.3 Expenses
of Bank. As provided in the Credit Agreement, each of Borrower agrees to pay on written demand all reasonable and
documented costs and expenses incurred by Bank in connection with the preparation, negotiation, and execution of this
Amendment and any other documents executed pursuant hereto and any and all amendments, modifications, and supplements
thereto, including without limitation the reasonable costs and fees of Bank’s legal counsel, and all costs and expenses
incurred by Bank in connection with the enforcement or preservation of any rights under the Credit Agreement, as amended
hereby, or any other document executed in connection therewith, including without limitation the costs and reasonable fees of
Bank’s legal counsel.


 


Section 6.4 Severability.
Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or
unenforceable.


 


Section 6.5 Applicable
Law. This Amendment and all other documents executed pursuant hereto shall be deemed to have been made and to be
performable in Dallas, Dallas County, Texas and shall be governed by and construed in accordance with the laws of the State
of Texas.


 


Section 6.6 Successors
and Assigns. This Amendment is binding upon and shall inure to the benefit of Bank, each Borrower, each Guarantor, and
their respective successors, assigns, heirs, executors and personal representatives, except neither Borrower, nor any
Guarantor may assign or transfer any of its rights or obligations hereunder without the prior written consent of Bank.


 






    Fifth Amendment to Loan Documents – Page 6


     


    

 


Section 6.7 Counterparts.
This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which
shall be an original and all of which taken together shall constitute one and the same agreement. The signature of a party to
any counterpart shall be sufficient to legally bind such party. Bank may remove the signature pages from one or more
counterparts and attach them to any other counterpart for the purpose of having a single document containing the signatures
of all parties. Delivery of an executed counterpart of a signature page to this Amendment by facsimile, emailed portable
document format (“pdf”), or tagged image file format (“tiff”) or any other electronic
means that reproduces an image of the actual executed signature page shall be effective as delivery of an original executed
counterpart of a signature page to this Amendment. Any party sending an executed counterpart of a signature page to this
Amendment by facsimile, pdf, tiff or any other electronic means shall also send the original thereof to Bank within five (5)
days thereafter, but failure to do so shall not affect the validity, enforceability, or binding effect of this Amendment.


 


Section 6.8 Headings.
The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.


 


Section 6.9 ENTIRE
AGREEMENT. THE CREDIT AGREEMENT, THIS AMENDMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED AND
DELIVERED IN CONNECTION WITH THE CREDIT AGREEMENT OR THIS AMENDMENT EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.


 


Section 6.10 INDEMNIFICATION
OF BANK. EACH OF THE LOAN PARTIES HEREBY AGREES TO INDEMNIFY BANK AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, ATTORNEYS, AFFILIATES, AND AGENTS (COLLECTIVELY, “RELEASED
PARTIES”) FROM, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES,
PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) TO WHICH ANY OF THEM MAY BECOME
SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (a) ANY AND ALL FAILURES BY SUCH LOAN PARTY TO COMPLY WITH
ITS AGREEMENTS CONTAINED IN THE LOAN DOCUMENTS, (b) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION,
OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS PRIOR TO THE DATE HEREOF, (c) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE
LOAN DOCUMENTS PRIOR TO THE DATE HEREOF, (d) ANY BREACH PRIOR TO THE DATE HEREOF BY SUCH LOAN PARTY OR SUMMIT OF ANY
REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS OR (e) ANY INVESTIGATION,
LITIGATION, OR OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER PROCEEDING
RELATING TO ANY OF THE FOREGOING (COLLECTIVELY, “RELEASED CLAIMS”). WITHOUT LIMITING ANY PROVISION OF THIS
AMENDMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION SHALL BE
INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS,
DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RESULTING FROM THE SOLE OR
CONTRIBUTORY NEGLIGENCE OF SUCH PERSON; PROVIDED, HOWEVER, NO PERSON SHALL BE INDEMNIFIED HEREUNDER FOR ITS OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.


 






    Fifth Amendment to Loan Documents – Page 7


     


    

 


Section 6.11 WAIVER
AND RELEASE. TO INDUCE BANK TO AGREE TO THE TERMS OF THIS AMENDMENT, EACH OF THE LOAN PARTIES REPRESENTS AND WARRANTS
THAT AS OF THE DATE OF THIS AMENDMENT IT OR HE HAS NO CLAIMS AGAINST RELEASED PARTIES AND IN ACCORDANCE THEREWITH IT:


 


(a) WAIVER.
WAIVES ANY AND ALL SUCH CLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF THIS AMENDMENT; AND


 


(b) RELEASE.
RELEASES, ACQUITS AND FOREVER DISCHARGES RELEASED PARTIES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE STATE AND FEDERAL
LAW, FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, COUNTERCLAIMS, CONTROVERSIES, COSTS, DEBTS, SUMS OF
MONEY, ACCOUNTS, BONDS, BILLS, RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, IN LAW OR EQUITY, WHICH SUCH LOAN PARTY EVER HAD, NOW HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY
ARISING PRIOR TO THE DATE HEREOF AND FROM OR IN CONNECTION WITH THIS AMENDMENT, THE LOAN DOCUMENTS OR THE TRANSACTIONS
DIRECTLY OR INDIRECTLY CONTEMPLATED THEREBY.


 


Section 6.12 COVENANT
NOT TO SUE. EACH OF THE LOAN PARTIES FURTHER COVENANTS NOT TO SUE THE RELEASED PARTIES ON ACCOUNT OF ANY OF THE RELEASED
CLAIMS, AND EXPRESSLY WAIVES ANY AND ALL DEFENSES IT OR HE MAY HAVE IN CONNECTION WITH ITS OR HIS OBLIGATIONS UNDER THIS
AMENDMENT OR THE OTHER LOAN DOCUMENTS. THIS SECTION IS IN ADDITION TO AND SHALL NOT IN ANY WAY LIMIT ANY OTHER RELEASE,
COVENANT NOT TO SUE, OR WAIVER BY SUCH LOAN PARTY IN FAVOR OF THE RELEASED PARTIES.


 


[Remainder of Page Intentionally Left Blank.
Signature Pages Follow.]


 




    Fifth Amendment to Loan Documents – Page 8


     


    

 


Executed as of the
date first written above.


 


	 	BORROWER:
	 	 
	 	Stratos Management Systems, Inc. (f/k/a Tango Merger Sub Corp.) and
	 	 	 	 
	 	By:	/s/ Thomas H. King

	 	 	Name: 	Thomas H. King
	 	 	Title:	Treasurer & Secretary

	 	 	 	 
	 	American Virtual Cloud Technologies, Inc.
	 	(f/k/a Pensare Acquisition Corp.)
	 	 	 	 
	 	By:	/s/ Thomas H. King
	 	 	Name:	Thomas H. King
	 	 	Title:	Chief Financial Officer

	 	 	 	 
	 	GUARANTORS:
	 	 	 	 
	 	COMPUTEX, INC.
	 	FIRST BYTE COMPUTERS, INC.
	 	eNETsolutions, L.L.C.
	 	 	 	 
	 	By:	/s/ Thomas H. King
	 	 	Name:	Thomas H. King
	 	 	Title:	Treasurer & Secretary
	 	 	 	of each entity listed above
	 	 	 	 
	 	BANK:
	 	 
	 	COMERICA BANK
	 	 	 	 
	 	By:	/s/ Chris D. Reed

	 	 	Chris D. Reed
	 	 	Vice President



 


 


 


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