Exhibit 10.1


 


AMENDMENT
NUMBER 1 TO THE LOAN AND SECURITY AGREEMENT 


AND TO THE LOAN AGREEMENT SCHEDULE


 


This
Amendment Number 1 to the Loan and Security Agreement and to the Loan Agreement Schedule (“Amendment No. 1”)
dated effective as of December 9, 2016 by and between SYSOREX GLOBAL, a Nevada corporation with offices at 2479 East Bayshore
Road, Suite 195, Palo Alto, CA 94303 (“SG”), SYSOREX USA, a California corporation with offices at 2479 East
Bayshore Road, Suite 195, Palo Alto, CA 94303 (“SUSA”) and SYSOREX GOVERNMENT SERVICES, INC., a Virginia corporation
with offices at 2479 East Bayshore Road, Suite 195, Palo Alto, CA 94303 (“SGS” and together with SUSA and SG,
jointly and severally the “Borrower”), and GEMCAP LENDING I, LLC, a Delaware limited liability company with
offices at 24955 Pacific Coast Highway, Suite A202, Malibu, CA 90265 (together with its successors and assigns, the “Lender”).


 


RECITALS


 


A.       Borrower
and Lender are parties to the Loan and Security Agreement dated as of November 14, 2016 (the “Loan Agreement”).


 


B.       In
connection with the Loan Agreement, Borrower executed and delivered to Lender (i) the Loan Agreement Schedule dated as of November
14, 2016 (the “Loan Schedule”), and (ii) other Loan Documents.


 


C.       Borrower
acknowledges that for the period from November 21, 2016 through and including December 6, 2016, Borrower did not deposit Collections
of Accounts received by Borrower in the account designated by Lender in violation of the Loan Documents.


 


D.       Borrower
has requested additional availability for unbilled Accounts.




 


E.       As
an accommodation to Borrower, Lender has consented to provide additional availability for unbilled Accounts in accordance with
this Amendment No. 1, subject to the terms and conditions set forth herein.


 


F.       In
consideration of Lender’s consent and accommodation, Borrower has agreed to pay all of Lender’s fees and costs including
Lender’s attorneys’ fees and costs in respect of the transactions regarding this Amendment No. 1.


 


G.       Capitalized
terms used but not defined herein have the meanings set forth in the Loan Agreement.


 






     


     


    

 


NOW,
THEREFORE, in consideration of the foregoing, the mutual covenants and agreements herein contained and other good and valuable
consideration, Lender and Borrower mutually covenant, warrant and agree as follows:


 


1.       Amendments.
Subject to Section 2 below, the Loan Agreement and the Loan Schedule, effective as of the date hereof, are amended as follows:


 


A.       The
definition of “Borrowing Base” in Section 1.14 of the Loan Agreement is hereby deleted and restated in its
entirety as follows:


 


“Borrowing
Base” shall be calculated at any time as the sum of (i) the product obtained by multiplying the outstanding amount of
all Eligible Accounts (not including and specifically excluding Eligible Unbilled Accounts), net of all Taxes, discounts, allowances
and credits given or claimed, by up to eighty-five percent (85%), and (ii) (A) for the period from December 9, 2016 through and
including January 9, 2017, the product obtained by multiplying the amount of only Eligible Unbilled Accounts net of all Taxes,
discounts, allowances and credits given or claimed, by up to eighty-five percent (85%), (B) for the period from January 10, 2017
through and including February 8, 2017, the product obtained by multiplying the amount of only Eligible Unbilled Accounts net
of all Taxes, discounts, allowances and credits given or claimed, by up to seventy percent (70%), (C) for the period from February
9, 2017 through and including March 9, 2017, the product obtained by multiplying the amount of only Eligible Unbilled Accounts
net of all Taxes, discounts, allowances and credits given or claimed, by up to fifty percent (50%), and (D) from and after March
10, 2017, the product obtained by multiplying the amount of only Eligible Unbilled Accounts net of all Taxes, discounts, allowances
and credits given or claimed, by zero percent (0%), it being the understanding of Borrower, that on and after March 10, 2017,
Lender shall not make Advances against Eligible Unbilled Accounts; provided, that, at all times, the aggregate amount of Eligible
Unbilled Accounts shall not exceed twenty percent (20%) of the aggregate amount of Eligible Accounts. For the avoidance of doubt,
when any Eligible Unbilled Account becomes an Eligible Account, Lender shall credit the amount already Advanced by Lender on any
such Eligible Unbilled Account.


 


B.       The
following definition shall be added as a new Section 1.29A;




 


1.29A
“Eligible Unbilled Accounts” means Accounts (i) for which goods are to be provided to an Account Debtor
or work or services are to be performed for an Account Debtor and the Borrower has not invoiced the Account Debtor within thirty
(30) days after such Accounts are first included on the Borrowing Certificate, and (ii) which otherwise satisfy (1), (3), (5)
through and including (12) and (14) through and including (22) of the definition of Eligible Accounts. For the avoidance of doubt,
any unbilled Account that has not been invoiced to the Account Debtor within thirty (30) days after the date the Eligible Unbilled
Account is first included on the Borrowing Certificate will be made ineligible on the thirty-first (31st) day.


 


C.       Section
7(b)(ii) of the Loan Schedule is hereby deleted and restated in its entirety as follows:


 


(ii) Monthly
Financial Statements. Not later than thirty (30) days after the end of each calendar month, the unaudited balance sheets
and the related statements of income of Borrower, certified by the Chief Financial Officer, subject to year-end audit
adjustments, with an aging schedule for all accounts receivable and accounts payable, together with such other information
with respect to the business of Borrower as Lender may request


 






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D.       Section
7(b)(vi) of the Loan Schedule is hereby deleted and restated in its entirety as follows:


 


(vi)
Other Weekly Reports. Weekly aging schedule for all Accounts, accounts payable and such other reports as requested
by Lender, in such form as Lender may request.


 


2.       Effectiveness.
The effectiveness of this Amendment No. 1 is conditioned upon and subject to the receipt by the Lender of each of the following
on or before the dates set forth below:


 


a.       A
copy of this Amendment No. 1 duly executed by Borrower and delivered to Lender by e-mail on or before December 9, 2016 with the
original of this Amendment No. 1 duly executed by Borrower and delivered to Lender on or before December 12, 2016;


 


b.       Borrower
shall have paid to Lender an accommodation fee in the amount of $50,000 on December 9, 2016. The accommodation fee shall be fully
earned on Lender’s receipt of such fee; and


 


c.       Receipt
by Lender on or before December 9, 2016, of all costs of Lender (including Lender’s attorneys’ fees and expenses)
in respect of the transactions relating to the Loan Documents and this Amendment No. 1.


 


3.       Waiver.
Upon the terms and subject to the conditions set forth in this Amendment No. 1, Lender hereby waives any Event of Default resulting
from the failure to deposit Collections of Accounts received by Borrower in the account designated by Lender through December
6, 2016. This waiver shall be effective only in this specific instance and for the specific purpose for which it is given, and
shall not entitle Borrower to any other or further waiver in any similar or other circumstances.


 


4.       Miscellaneous.
Except as herein expressly amended by this Amendment No. 1, all of the terms and provisions of the Loan Agreement and the
Loan Agreement Schedule shall continue in full force and effect and the foregoing together with the other Loan Documents are
hereby ratified and confirmed by Borrower. The Borrower acknowledges to Lender that no offsets, counterclaims or defenses
exist as of the date of this Amendment No. 1 with respect to any of the Loan Documents and the Obligations. The foregoing is
without prejudice to Lender’s rights under the Loan Agreement and the other Loan Documents referred to therein,
including, without limitation, applicable law, all of which rights are hereby expressly reserved. In addition to the
representations, warranties and covenants set forth in the Loan Agreement, the Borrower represents, warrants and covenants to
Lender that (i) Borrower been represented by the law firm of Mitchell Silberberg & Knupp LLP in connection with the
negotiation, execution and delivery of this Amendment No. 1, and (ii) such law firm has reviewed and approved this Amendment
No. 1. This Amendment No. 1 may be executed in counterparts and by facsimile or other electronic signatures, each of which
when so executed, shall be deemed an original, but all of which shall constitute but one and the same instrument


 


[SIGNATURE
PAGE FOLLOWS]








 






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	By:	/s/ Nadir Ali	 
	Name:	Nadir Ali	 
	Title:	CEO	 


 


SYSOREX
USA


 


	By:	/s/
    Nadir Ali	 
	Name:	Nadir
    Ali	 
	Title:	CEO	 


 


SYSOREX
GOVERNMENT SERVICES, INC.


 


	By:	/s/
    Wendy Loundermon	 
	Name:	Wendy
    Loundermon	 
	Title:	President	 


 


LENDER:


 


GEMCAP
LENDING I, LLC


 


	By:	/s/
    James Thieken	 
		James
        Thieken,

        Executive
        Vice President
	 


 


[SIGNATURE
PAGE - AMENDMENT NUMBER 1 TO THE LOAN AND SECURITY AGREEMENT 

AND TO
THE LOAN AGREEMENT SCHEDULE]


 


 


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