EX-10.97






Exhibit 10.97



THIS AMENDMENT AGREEMENT No. 1 (this Amendment Agreement) is dated as of October 26, 2005



BETWEEN:




	 	(1)	 	WARP TECHNOLOGY HOLDINGS, INC., a Nevada corporation, (the Company);






	 	(2)	 	FORTRESS CREDIT OPPORTUNITIES I LP, as lender (the Lender); and






	 	(3)	 	FORTRESS CREDIT CORP., as agent (in that capacity, the Agent).





WHEREAS:




	 	(A)	 	The Company, Fortress Credit Corp., as original lender, and the Agent have entered into the
credit facilities agreement dated August 2, 2005 (the Credit Agreement).






	 	(B)	 	Pursuant to Section 2.1 of the Credit Agreement, on August 2, 2005, Fortress Credit Corp.
loaned the Company $10,000,000.00. On the date hereof, pursuant to Section 2.1 of the Credit
Agreement, Fortress Credit Corp. has made an additional loan of $15,000,000.00 to the Company
to allow the Company to acquire the following companies: David Corporation, Foresight
Software, Inc., Process Software, LLC, ProfitKey International, LLC and Tesseract Corporation.






	 	(C)	 	Fortress Credit Corp., as original lender, and the Lender have entered into an assignment and
assumption agreement dated August 2, 2005 by which Fortress Credit Corp. transferred all its
rights and obligations as original lender to the Lender.






	 	(D)	 	This Amendment Agreement is supplemental to and amends the Credit Agreement. The Company,
the Lender and the Agent have agreed that the Credit Agreement should be amended as set forth
in this Amendment Agreement.





IT IS AGREED as follows:




	 	1.	 	INTERPRETATION






	 	1.1	 	Definitions






Terms defined in the Credit Agreement (by reference or otherwise) have, unless expressly
defined in this Amendment Agreement, the same meanings in this Amendment Agreement.




	 	1.2	 	Construction






The provisions of Clause 1.2 (Construction) of the Credit Agreement apply to this
Amendment Agreement as though they were set out in full in this Amendment Agreement, except
that references to “this Agreement” are to be construed as references to this Amendment
Agreement.




	 	2.	 	EFFECT OF AMENDMENT AGREEMENT






With effect on and from the date of this Amendment Agreement, the Credit Agreement will
be amended by, and the rights and obligations of the parties thereto relating to their
future performance under the Credit Agreement will be governed by and construed in
accordance with, the Credit Agreement as amended and supplemented by this Amendment
Agreement.




	 	3.	 	AMENDMENTS






	 	(a)	 	The Credit Agreement will be amended on and from the date of this Amendment Agreement in
accordance with the amendments and supplements described in this Clause 3 (Amendments).






	 	(b)	 	The definition of “Collateral Account” is deleted in its entirety and replaced with the
definition in Exhibit A (Collateral Account Definition).






	 	(c)	 	The definition of “Subordinated Indebtedness” is deleted in its entirety and replaced with
the following definition:






"Subordinated Indebtedness means (i) the principal amount of $2,500,000.00 which will
remain outstanding after the Closing Date under the Subordinated Note and Warrant Purchase
Agreement and (ii) that certain promissory note dated October 26 in which the Company has
agreed to pay Platinum Equity, LLC the aggregate principal sum of $1,750,000 together with
accrued interest.”




	 	(d)	 	Clause 7.2(Mandatory prepayments – certain proceeds) is amended by deleting Clause 7.2(c) in
its entirety and replacing it with the following paragraph (c):






"(c) an amount equal to 100% of all Excess Cash Flows (calculated for each period
commencing on the later of the Closing Date or the date on which a prepayment under
this subclause (c) was last previously made and ending on the date immediately prior
to a payment under this subclause (c)).”




	 	(e)	 	Schedule 7 (Principal Due) to the Credit Agreement is deleted in its entirety and replaced by
Schedule 7 (Principal Due) to this Amendment Agreement






	 	(f)	 	Schedule 8 (Material Agreements) to the Credit Agreement is deleted in its entirety and
replaced by Schedule 8 (Material Agreements) to this Amendment Agreement.






	 	(g)	 	Schedule 9 (Redeemable Preference Shares) to the Credit Agreement is deleted in its entirety
and replaced by Schedule 9 (Redeemable Preference Shares) to this Amendment Agreement.






	 	(h)	 	Schedule 10 (Compliance Certificate) to the Credit Agreement is deleted in its entirety and
replaced by Schedule 10 (Compliance Certificate) to this Amendment Agreement.






	 	(i)	 	Schedule 12 (Material Group Members) to the Credit Agreement is deleted in its entirety and
replaced by Schedule 12 (Material Group Members) to this Amendment Agreement.






	 	(j)	 	Schedule 13 (Intellectual Property Rights) to the Credit Agreement is amended by adding to
the end thereof the list of intellectual property rights in Schedule 13 (Intellectual Property
Rights) to this Amendment Agreement.






	 	(k)	 	Schedule 14 (Subsidiaries) to the Credit Agreement is deleted in its entirety and replaced by
Schedule 14 (Subsidiaries) to this Amendment Agreement.






	 	(l)	 	Schedule 15 (Financial Terms and Covenants) to the Credit Agreement is deleted in its
entirety and replaced by Schedule 15 (Financial Terms and Covenants) to this Amendment
Agreement.






	 	4.	 	REPRESENTATIONS AND WARRANTIES






	 	4.1	 	Representations and Warranties






The Company makes each representation and warranty set out in Clauses 4.2 (Powers and
Authority) through 4.6 (Credit Agreement) to each Finance Party.




	 	4.2	 	Powers and authority






It has the power to enter into and perform, and has taken all necessary action to
authorize the entry into and performance of this Amendment Agreement and the transactions
contemplated by this Amendment Agreement.




	 	4.3	 	Legal validity






	 	(a)	 	This Amendment Agreement is its legally binding, valid and enforceable
obligation.






	 	(b)	 	This Amendment Agreement is in the proper form for its enforcement in the
jurisdiction of its incorporation.






	 	4.4	 	Non-conflict






The entry into and performance by it of, and the transactions contemplated by, this
Amendment Agreement do not and will not:




	 	(a)	 	conflict with any law or regulation applicable to it; or






	 	(b)	 	conflict with its constitutional documents; or






	 	(c)	 	conflict with any document which is binding upon it or any of its assets or
constitute a default or termination event (however described) under any such document,
in each case to an extent or in a manner which:






	 	(i)	 	has a Material Adverse Effect;






	 	(ii)	 	could reasonably be expected to result in any liability on the
part of any Secured Creditor to any third party; or





	 	 	 	 	 
	4.5

	 	(iii)

Authorizations
	 	could require the creation of any Lien over any asset in favor of a third party.










All authorizations required by it in connection with the entry into, performance and
validity and enforceability of, and the transactions contemplated by, this Amendment
Agreement have been obtained or effected (as appropriate) and are in full force and effect.




	 	4.6	 	Credit Agreement






On the date of this Amendment Agreement, the representations and warranties set out in
Clauses 15.2 (Status) through 15.16 (United States laws) of the Credit Agreement:




	 	(a)	 	are true with each such representation and warranty being understood to mean
such representation and warranty as amended pursuant to Clause 3 (Amendments); and






	 	(b)	 	would also be true if references to “this Agreement” were construed as
references to the Credit Agreement as amended by this Amendment Agreement.






	 	4.7	 	Acknowledgment of Reliance






The Company acknowledges that it makes such representations and warranties with the
intention of persuading the Lender and the Agent to enter into this Amendment Agreement and
that the Lender and the Agent have entered into this Amendment Agreement on the basis of,
and in full reliance on, each of such representations and warranties.




	 	5.	 	GOVERNING LAW, ETC.






This Amendment Agreement is governed by the laws of the State of New York. The
provisions of Clauses 36 (Governing Law) and 37 (Enforcement) of the Credit Agreement are
incorporated by reference into this Amendment Agreement as if fully set out herein, with
each reference to “this Agreement” (including in the definition of Finance Documents) being
understood to be a reference to this Amendment Agreement.




	 	6.	 	SEVERABILITY






If any provision of this Amendment Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:




	 	(a)	 	the legality, validity or enforceability in that jurisdiction of any other
provision of this Amendment Agreement; or






	 	(b)	 	the legality, validity or enforceability in any other jurisdiction of that or
any other provision of this Amendment Agreement.






	 	7.	 	COUNTERPARTS






This Amendment Agreement may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single copy of this
Amendment Agreement.




	 	8.	 	COMPLETE AGREEMENT






This Amendment Agreement, the Credit Agreement and the other Finance Documents contain
the complete agreement between the Parties on the matters to which such agreements relate
and supersede all prior commitments, agreements and understandings, whether written or oral,
with respect to those matters.




	 	9.	 	NATURE OF THIS AMENDMENT AGREEMENT






	 	(a)	 	By signing this Amendment Agreement, the Parties designate this Amendment
Agreement as a Finance Document.






	 	(b)	 	Except as specifically amended by this Amendment Agreement, the Credit
Agreement is and shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed. The Credit Agreement and this Amendment Agreement
will be read and construed as a single document.






	 	10.	 	CERTAIN AGREEMENTS REGARDING ACCOUNTS






The Company hereby agrees that:




	 	(a)	 	It shall on the date hereof instruct each of the banks listed in Exhibit B
(pursuant to a written instruction satisfactory to the Agent) to immediately close each
of the accounts listed in Exhibit B which are held at such bank and to forward any
checks or payments received by such bank for the benefit of the Company or any other
Obligor to one of the accounts listed in Exhibit C. It will promptly provide Agent
with a copy of any confirmation it receives that such accounts have been closed.






	 	(b)	 	It shall provide the Agent with evidence within 15 days of the date hereof that
either (i) Comerica Bank will agree to enter into a long term control agreement in form
and substance satisfactory to the Agent relating to all accounts listed in Exhibit C or
(ii) it has identified another bank that will open accounts to replace all of the
accounts listed in Exhibit C and has provided the Agent with a draft of a control
agreement from such bank.






	 	(c)	 	It shall, prior to November 25, 2005, deliver to the Agent either (i) a long
term control agreement in form and substance satisfactory to the Agent executed by
Comerica Bank and all relevant Obligors relating to each of the accounts listed in
Exhibit C, or (ii) each of (A) evidence that all accounts listed in Exhibit C have been
closed, that new accounts have been opened with a bank satisfactory to the Agent, and
that Comerica Bank and all banks listed in Exhibit B have been instructed to forward
any checks or payments received by any such bank for the benefit of the Company or any
other Obligor to one of such new accounts and (B) a fully executed control agreement in
form and substance satisfactory to the Agent relating to all such new accounts.






	 	(d)	 	It shall ensure that each bank account of the Company or any other Obligor
(whether now or hereafter existing) is at all times from and after the date hereof (or
the date on which any such account is opened) subject to a control agreement in form
and substance satisfactory to the Agent.






	 	(e)	 	It shall (as soon as reasonably practical and in any event prior to the next
payment date) notify all customers of any Obligor that currently make payments into any
of the accounts listed in Exhibit B to make all future payments to an account which is
subject to a long term control agreement in form and substance satisfactory to the
Agent.






	 	(f)	 	The failure by the Company to comply with any of its obligations under this
Section 10 shall be an immediate Event of Default.





The undersigned, intending to be legally bound, have executed and delivered this Amendment
Agreement on the date stated at the beginning of this Amendment Agreement.



SIGNATORIES




Company



WARP TECHNOLOGY HOLDINGS, INC.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



Lender



FORTRESS CREDIT OPPORTUNITIES I LP




By: /s/ Marc K. Furstein

Name: Marc K. Furstein

Title: Chief Operating Officer




Agent



FORTRESS CREDIT CORP., as Agent for and on behalf of the Finance Parties




By: /s/ Marc K. Furstein

Name: Marc K. Furstein

Title: Chief Operating Officer




ACKNOWLEDGMENT




By signing this acknowledgment, we acknowledge and agree to this Amendment Agreement.



GUPTA TECHNOLOGIES, LLC




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



WARP SOLUTIONS, INC.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



WARP SOLUTIONS, LTD.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



6043577 CANADA INC.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



SPIDER SOFTWARE, INC.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



GUPTA TECHNOLOGIES, LTD.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



GUPTA TECHNOLOGIES GmbH




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



GUPTA TECHNOLOGIES S.A. de C.V.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



KENOSIA CORPORATION




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



DAVID CORPORATION




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



FORESIGHT SOFTWARE, INC.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



PROCESS SOFTWARE, LLC




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



PROFITKEY INTERNATIONAL, LLC




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer



TAC/HALO, LLC




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer