Exhibit 10.9 


THIS NOTE HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
AND THIS NOTE MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE ACT AND
THE RULES AND REGULATIONS THEREUNDER 


EACH HOLDER OF
THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY
THE PROVISIONS OF THIS NOTE. THIS NOTE AND THE RIGHTS AND OBLIGATIONS EVIDENCED
HEREBY ARE SUBORDINATE TO CERTAIN INDEBTEDNESS AS SET FORTH HEREIN. 


THIS NOTE MAY
NOT BE ASSIGNED, NEGOTIATED OR TRANSFERRED EXCEPT AS SET FORTH HEREIN. 


AMENDED AND RESTATED SUBORDINATED PROMISSORY
NOTE


	
 

	
 


	
$2,410,235.00

	
June 11, 2009





          FOR
VALUE RECEIVED, the undersigned, MTM TECHNOLOGIES, INC., a New York corporation
(the “Borrower”), promises to pay to FIRSTMARK III, L.P. (the “Holder”), the
principal sum of two million four hundred ten thousand two hundred thirty five
($2,410,235.00) with interest on the unpaid balance from the date hereof, at
the rate of eight and one-half percent (8.5%) per annum in lawful money of the
United States of America, at c/o FirstMark Capital, L.L.C., 1221 Avenue of the
Americas, 26th Floor, New York, New York 10020, or at such other
place as the Holder may designate in writing. 


          This
Amended and Restated Subordinated Promissory Note (this “Note”) amends
and restates in its entirety that certain Subordinated Promissory Note dated as
of June 11, 2008, and made by Borrower to evidence the principal sum of
$2,410,235 (the “Existing Note”). This Note evidences the same
indebtedness evidenced by the Existing Note and the terms, covenants,
agreements, rights, obligations and conditions contained in this Note
supersede, replace and control the Existing Note and the terms, covenants,
agreements, rights, obligations and conditions contained in the Existing Note.


          The
principal of and interest on this Note shall be due and payable as follows: the
principal balance and all interest accrued hereon from June 11, 2008 to the
date of payment of the principal hereof shall be due and payable November 30,
2010 (the “Maturity Date”). Interest on this Note shall be due and payable in
cash or, at the option of the Borrower, in shares of the series of preferred
stock of the Borrower next designated by the Borrower after the date hereof, at
a price per share of $0.33; provided that, except as provided in paragraph 1
below, no interest or principal may be paid on this Note by Borrower until
after November 30, 2010.


          In
addition to the issuance of this Note, in 2008 and 2009 Borrower issued to
FirstMark III, L.P. (formerly Pequot Private Equity Fund III, L.P.) and to
FirstMark III Offshore Partners, L.P. (formerly Pequot Offshore Private Equity
Partners III, L.P.) other notes in the aggregate amount of $6,500,000
(collectively, this Note and all other notes issued to FirstMark III, L.P. and
FirstMark III Offshore Partners, L.P., as amended by the Amendment to
Subordinated Promissory Notes, dated as of February 11, 2009, and the Second
Amendment to Subordinated 






Promissory
Notes, dated as of the date hereof, the “FirstMark Notes”). In 2008, the
Borrower issued to Constellation Venture Capital II, L.P., Constellation
Venture Capital Offshore II, L.P., the BSC Employee Fund VI, L.P. and CVC II
Partners, LLC, other notes in the aggregate amount of $500,000 (as amended by
the Amendment to Subordinated Promissory Notes, dated as of February 11, 2009,
and the Second Amendment to Subordinated Promissory Notes, dated as of the date
hereof, the “Constellation Notes”). The FirstMark Notes and the Constellation
Notes are referred to herein as the “$7,000,000 Notes.”


          All
computations of interest payable hereunder shall be made on the basis of the
actual number of days in the period for which such interest is payable and a
year of 365 or 366 days, as applicable. Notwithstanding any other provision of
this Note, to the extent, permitted by applicable law, interest shall be due
and payable on any overdue unpaid installment of principal or interest on this Note
(including amounts due and unpaid upon any acceleration of this Note) within
five (5) days of its due date at a rate equal to the lesser of (i) ten and
one-half percent (10.5%) and (ii) the maximum rate permitted by applicable law.



          1.
Payment and Prepayment of the Note. The principal of this Note and the
interest accrued hereon may be paid upon the earlier of November 30, 2010, or
the date on which the Senior Lenders (defined below) consent to the prepayment
hereof. 


          2. Event of Default Remedies. (a) Upon the occurrence and during the
continuance of an Event of Default, this Note may be accelerated upon the
written consent and direction of the holders holding a majority of the then
outstanding aggregate principal balance of the $7,000,000 Notes and as provided
in this Section 2 and the Holder shall have all of the rights and remedies
provided herein. An Event of Default shall mean the occurrence or existence of
one or more of the following events or conditions (for any reason, whether voluntary,
involuntary or effected or required by law): 


	
 

	
 

	
 


	
 

	
          (i)
 The Borrower shall fail to pay when due the principal of this Note or any of
 the $7,000,000 Notes. 


	
 

	
 

	
 


	
 

	
          (ii)
 The Borrower shall fail to pay when due the interest on this Note or any of
 the $7,000,000 Notes and such failure shall have continued for a period of
 three Business Days; provided, however, that for the avoidance of doubt, any
 accrual of interest permitted under this Note or any of the $7,000,000 Notes
 (in lieu of payment thereof) shall not constitute an Event of Default. For
 the purposes of this Note a “Business Day” shall mean any day other
 than a Saturday, Sunday, public holiday under the laws of the State of New
 York or any other day on which banking institutions are authorized to close
 in New York City.


	
 

	
 

	
 


	
 

	
          (iii)
 A proceeding shall have been instituted in respect of the Borrower or any of
 its material subsidiaries (each, a “Material Party”):


	
 

	
 

	
 


	
 

	
 

	
          (A)
 seeking to have an order for relief entered in respect of such Material
 Party, or seeking a declaration or entailing a finding that such Material
 Party is insolvent or a similar declaration or finding, or seeking
 dissolution, winding-up, charter revocation or forfeiture, 





2






	
 

	
 

	
 


	
 

	
 

	
liquidation,
 reorganization, arrangement, adjustment, composition or other similar relief
 with respect to such Material Party, its assets or its debts under any law
 relating to bankruptcy, insolvency, relief of debtors or protection of
 creditors, termination of legal entities or any other similar law now or
 hereafter in effect, or


	
 

	
 

	
 


	
 

	
 

	
          (B)
 seeking appointment of a receiver, trustee, liquidator, assignee,
 sequestrator or other custodian for such Material Party or for all or any
 substantial part of its property, and such proceeding shall result in the
 entry, making or grant of any such order for relief, declaration, finding,
 relief or appointment, or such proceeding shall remain undismissed and
 unstayed for a period of 60 consecutive days.


	
 

	
 

	
 


	
 

	
          (iv)
 Any Material Party shall voluntarily suspend transaction of its business;
 shall make a general assignment for the benefit of creditors; shall institute
 (or fail to controvert in a timely and appropriate manner) a proceeding
 described in Section 2(a)(iii)(A) or (whether or not any such proceeding has
 been instituted) shall consent to or acquiesce in any such order for relief,
 declaration, finding or relief described therein; shall institute (or fail to
 controvert in a timely and appropriate manner) a proceeding described in
 Section 2(a)(iii)(B), or (whether or not any such proceeding has been
 instituted) shall consent to or acquiesce in any such appointment or to the
 taking of possession by any such custodian of all or any substantial part of
 its property; shall dissolve, wind-up, revoke or forfeit its charter or
 liquidate itself or any substantial part of its property; or shall take any
 action in furtherance of any of the foregoing.








	
 

	
 

	
 


	
 

	
          (b)
 Exercise of Remedies. If an Event of Default has occurred and is
 continuing hereunder:


	
 

	
 

	
 


	
 

	
 

	
          (i)
 the Holder may declare the entire unpaid principal and interest due on this
 Note, immediately due and payable, without presentment, notice or demand, all
 of which are hereby expressly waived by the Borrower;


	
 

	
 

	
 


	
 

	
 

	
          (ii)
 upon the occurrence of any Event of Default specified in Section 2(a)(iii)
 above, the entire unpaid principal and interest, shall become automatically
 and immediately due and payable; and


	
 

	
 

	
 


	
 

	
 

	
          (iii)
 the Holder may exercise any remedy permitted by this Note or at law or in
 equity.





          3.
Waiver of Certain Rights. Subject to any applicable notice periods, all
parties to this Note, including Borrower and any sureties, endorsers, or
guarantors, hereby waive protest, presentment, notice of dishonor, and notice
of acceleration of maturity and agree to continue to remain bound for the
payment of principal, interest and all other sums due under this Note
notwithstanding any change or changes by way of release, surrender, exchange,
modification or substitution of any security for this Note or by way of any
extension or extensions of time for the payment of principal and interest; and
all such parties waive all and every kind of notice of such 


3






change or
changes and agree that the same may be without notice or consent of any of
them. No Event of Default shall be waived by the Holder except in a writing
signed by the Holder. No waiver of any Event of Default shall extend to any
other or further Event of Default. 


          4.
Payment Priority. If the Borrower is not able to pay to FirstMark III
L.P. (“FirstMark Fund”), FirstMark III Offshore Partners, L.P. (“FirstMark
Offshore” and, together with FirstMark Fund, “FirstMark”), Constellation
Venture Capital II, L.P. (“Constellation Ventures”), Constellation Venture
Capital Offshore II, L.P. (“Constellation Offshore”), The BSC Employee Fund VI,
L.P. (“BSC”) and CVC II Partners, LLC (“CVC” and, together with Constellation
Ventures, Constellation Offshore and BSC, “Constellation”) the full amounts due
under the Subordinated Promissory Notes held by FirstMark (the “FirstMark
Notes”) and the Subordinated Promissory Notes held by Constellation (the
“Constellation Notes”) at any time, either upon the occurrence of an Event of Default
or on the Maturity Date, payment shall be made first to FirstMark until the
FirstMark Notes have been paid in full and then to Constellation with respect
to the Constellation Notes.


          5.
Subordination.


          The
right of repayment of principal of and interest on this Note shall be
subordinated to the rights and security interest of (i) GE Commercial
Distribution Finance Corporation (“CDF”) in connection with the August 21, 2007
secured Credit Facilities Agreement (“Credit Facilities Agreement”) with CDF,
as Administrative Agent, GECC Capital Markets Group, Inc., as Sole Lead
Arranger and Sole Bookrunner, and CDF and the other lenders listed in the
Credit Facilities Agreement; (ii) Columbia Partners, L.L.C. Investment
Management (“Columbia”), as Investment Manager for the Letter of Credit
Guarantors in connection with the Letter of Credit Commitment and Reimbursement
Agreement dated June 11, 2009 (the “L/C Agreement”), with Columbia, as
Investment Manager for the L/C Guarantors signatory thereto; and (iii)
Columbia, as Investment Manager and National Electric Benefit Fund (“NEBF”) in
connection with the November 23, 2005, secured credit agreement (the “CP/NEBF
Credit Agreement”) with Columbia, as Investment Manager, and NEBF, as Lender
(CDF, Columbia and NEBF collectively, the “Senior Lenders” and the Credit
Facilities Agreement, the L/C Agreement and the CP/NEBF Credit Agreement
collectively, the “Senior Debt”). The issuance of this Note requires the
consent of the Senior Lenders pursuant to the Senior Debt. The Borrower has
obtained such consent. While any default or event of default has occurred and
is continuing with respect to any Senior Debt, the Borrower shall not make and
the Holder shall not accept any payments or distribution in respect of this
Note of any kind. The Holder agrees that this Note shall remain unsecured at
all times and the Holder shall not accept any collateral security in respect
hereof. For so long as any Senior Debt remains outstanding or any Senior Lender
shall have any obligation to lend to the Borrower, the Holder shall not
exercise any remedies or take any enforcement action against the Borrower with
respect to this Note.


          6.
Representations and Warranties of the Borrower.


	
 

	
 


	
 

	
          (a)
 Organization and Qualification. Each of the Borrower and its
 subsidiaries is duly organized, validly existing and in good standing under
 the laws of its respective jurisdiction of incorporation or organization and
 has the requisite power and authority to own, lease and operate its assets,
 properties and business and to carry on its business as it





4








	
 

	
 


	
 

	
is now being
 conducted or proposed to be conducted. Each of the Borrower and its
 subsidiaries is duly qualified as a foreign corporation to transact business,
 and is in good standing, in each jurisdiction where it owns or leases real
 property or maintains employees or where the nature of its activities make
 such qualification necessary, except where such failure to qualify would not
 have a Material Adverse Effect. An event or condition shall have occurred
 which the Holder reasonably believes creates a Material Adverse Effect. For
 the purposes of this Note, a “Material Adverse Effect” shall mean an
 effect which is materially adverse to the business, assets, properties,
 operations, results of operations or condition (financial or otherwise) of
 the Borrower individually or of the Borrower and its subsidiaries taken as a
 whole (excluding general economic conditions or acts of war or terrorism). 


	
 

	
 


	
 

	
          (b)
 Certificate of Incorporation and Bylaws. The Borrower has delivered to
 the Holder true, correct, and complete copies of the Borrower’s certificate
 of incorporation as in effect on the date hereof (the “Existing
 Certificate”) and the Borrower’s bylaws as in effect on the date hereof
 (the “Bylaws”).


	
 

	
 


	
 

	
          (c)
 Corporate Power and Authority. The Borrower has all requisite
 corporate power and authority to execute and deliver this Note. The Borrower
 has all requisite corporate power and authority to carry out and perform its
 obligations under the terms of this Note.


	
 

	
 


	
 

	
          (d)
 Authorization. The execution, delivery and performance by the Borrower
 of this Note, and the performance of all of the obligations of the Borrower
 under this Note have been authorized by the Board of Directors (or a duly
 authorized committee thereof), and no other corporate action on the part of
 the Borrower and no other corporate or other approval or authorization is
 required on the part of the Borrower, or any person by law or otherwise in
 order to make this Note the valid, binding and enforceable obligations (subject
 to (i) laws of general application relating to bankruptcy, insolvency, and
 the relief of debtors, and (ii) rules of law governing specific performance,
 injunctive relief, or other equitable remedies) of the Borrower. This Note
 constitutes a valid and legally binding obligation of the Borrower,
 enforceable against the Borrower in accordance with its respective terms,
 subject to (i) laws of general application relating to bankruptcy,
 insolvency, and the relief of debtors, and (ii) rules of law governing specific
 performance, injunctive relief, or other equitable remedies.


	
 

	
 


	
 

	
          (e)
 Consents. No consent, approval, waiver or authorization, or
 designation, declaration, notification, or filing with any person or entity
 (governmental or private), on the part of the Borrower is required in
 connection with the valid execution, delivery and performance of this Note or
 the consummation of any other transaction contemplated hereby (other than
 such notifications or filings required under applicable federal or state
 securities laws, if any), except for such consents, approvals, waivers,
 authorizations, designations, declarations, notifications, or filings that
 have been received prior to the date hereof.


	
 

	
 


	
 

	
          (f)
 Brokers or Finders. The Borrower has not incurred, directly or
 indirectly, as a result of any action taken by the Borrower, any liability
 for brokerage or finders’ fees 





5






	
 

	
 


	
 

	
or agents’
 commissions or any similar charges in connection with this Note or any
 transaction contemplated hereby or thereby.


	
 

	
 


	
 

	
          (g)
 Offering Exemption. Assuming the truth and accuracy of the
 representations and warranties contained in Section 7, this issuance and
 delivery to the Holder of this Note is exempt from registration under the
 Securities Act of 1933, as amended (the “Securities Act”), and will be
 registered or qualified (or exempt from registration or qualification) under
 applicable state securities and “blue sky” laws, as currently in effect.


	
 

	
 


	
 

	
          (h) SEC Reports. (A) The Borrower has
 filed all required forms, reports and documents with the Securities and
 Exchange Commission (the “SEC”) since April 1, 2003, each of which has
 complied in all material respects with all applicable requirements of the
 Securities and the Securities Exchange Act of 1934, as amended (the “Exchange
 Act”), and the rules and regulations promulgated thereunder, each as in
 effect on the date such forms, reports and documents were filed. (B) None of
 the following contains any untrue statement of a material fact or omits to
 state a material fact necessary in order to make the statements contained
 herein in light of the circumstances under which they were made not
 misleading: (i) this Note, (ii) the Borrower’s Existing Certificate, (iii)
 the Bylaws, or (iv) the SEC Reports. There is no fact which, to the Knowledge
 of the Borrower, has not been disclosed to the Holder, which could be
 expected to have a Material Adverse Effect on the ability of the Borrower to
 perform its obligations under the Existing Certificate, Bylaws or this Note.
 (C) The Borrower is not aware of any correspondence (other than routine
 communications), action or proposed or threatened action by the SEC or Nasdaq
 with regard to the Borrower since April 1, 2006, other than such
 correspondence that has been disclosed by the Company in its SEC Reports. For
 the purposes of this Note, “Knowledge” shall mean with respect to the
 Borrower, the knowledge, after diligent investigation, of the directors,
 officers and senior management of the Borrower and of the person or persons
 in such entity with responsibility for the matter with respect to which the
 knowledge is applicable.


	
 

	
 


	
 

	
          (i)
 Financial Statements. Included in the Borrower’s filings with the SEC
 are the audited financial statements of the Borrower and its subsidiaries as
 at and for the years ended March 31, 2008, 2007 and 2006 (the “Financial
 Statements”). The Financial Statements have been prepared in accordance
 with GAAP and fairly present the financial condition and operating results of
 the Borrower and its subsidiaries as of the date, and for the period,
 indicated therein.


	
 

	
 


	
 

	
          (j)
 Absence of Conflicts. The Borrower is not in violation of or default
 under any provision of its Existing Certificate or Bylaws. The execution,
 delivery, and performance of, and compliance with this Note and the
 consummation of the transactions contemplated hereby, have not and will not:








	
 

	
 

	
 


	
 

	
 

	
          (i)
 violate, conflict with or result in a breach of any provision of or
 constitute a default (or an event which, with notice or lapse of time or
 both, would constitute a default), under, or result in the termination of, or
 accelerate the performance required by, or result in the creation of any lien
 upon any of the 





6






	
 

	
 

	
 


	
 

	
 

	
assets,
 properties or business of the Borrower and the subsidiaries under, any of the
 terms, conditions or provisions of the Existing Certificate or the Bylaws, or
 any material contract of the Borrower (for purposes of this Section 6(j)(i) a
 material contract of the Borrower shall be only those agreements that are
 included as exhibits to the. Borrower filings with the SEC); or


	
 

	
 

	
 


	
 

	
 

	
          (ii)
 violate any judgment, ruling, order, writ, injunction, award, decree, or any
 law or regulation of any court or federal, state, county or local government
 or any other governmental, regulatory or administrative agency or authority
 which is applicable to the Borrower or any subsidiary or any of their assets,
 properties or business, which violation would have a Material Adverse Effect.


	
 

	
 

	
 


	
 

	
7. Representations
 and Warranties of Holder. The Holder hereby
 represents and warrants that:


	
 

	
 

	
 


	
 

	
          (a)
 Organization and Qualification. The Holder is duly organized, validly
 existing and in good standing under the laws of its jurisdiction of
 incorporation or organization to carry on its business as it is now being
 conducted or proposed to be conducted.


	
 

	
 


	
 

	
          (b)
 Power and Authority. The Holder has all requisite power and authority
 to execute and deliver this Note, and to carry out and perform its obligations
 under the terms of this Note.


	
 

	
 


	
 

	
          (c)
 Authorization. The execution, delivery and performance by the Holder
 of this Note, and the performance of all of the obligations of the Holder
 under this Note has been duly and validly authorized, and no other action,
 approval or authorization is required on the part of the Holder or any Person
 by Law or otherwise in order to make this Note the valid, binding and
 enforceable obligations (subject to (i) laws of general application relating
 to bankruptcy, insolvency, and the relief of debtors, and (ii) rules of law
 governing specific performance, injunctive relief, or other equitable
 remedies) of the Holder. This Note when executed and delivered by the Holder
 will constitute a valid and legally binding obligation of the Holder,
 enforceable against the Holder in accordance with its terms subject to: (i)
 laws of general application relating to bankruptcy, insolvency, and the
 relief of debtors, and (ii) rules of law governing specific performance,
 injunctive relief,. or other equitable remedies.


	
 

	
 


	
 

	
          (d)
 Acquired Entirely for Own Account. This Note will be acquired for
 investment for the Holder’s own account, not as a nominee or agent, and not
 with a view to the resale or distribution of any part thereof. The Holder’s
 principal office is 1221 Avenue of Americas, 26th Floor, New York,
 New York 10020. The Holder is aware that the Borrower is issuing this Note
 pursuant to Section 4(2) of the Securities Act and Regulation D promulgated
 thereunder without complying with the registration provisions of the
 Securities Act or other applicable federal or state securities laws. The
 Holder is also aware that the Borrower is relying upon, among other things,
 the representations and warranties of the Holder contained in this Note for
 purposes of complying with Regulation D.





7






	
 

	
 

	
 


	
 

	
          (e)
 Disclosure of Information. The Holder has received and carefully
 reviewed all the information it considers necessary or appropriate for
 deciding whether to enter into this Note. The Holder further represents that
 the Borrower has made available to the Holder, at a reasonable time prior to
 the date of this Note, an opportunity to (a) ask questions and receive
 answers from the Borrower regarding the terms and conditions of this Note and
 the business, properties and financial condition of the Borrower, all of
 which questions (if any) have been answered to the reasonable satisfaction of
 the Holder, and (b) obtain additional information, all of which was furnished
 by the Borrower to the reasonable satisfaction of the Holder. The foregoing,
 however, does not limit or modify the representations and warranties of the
 Borrower in Section 6 of this Note or the right of the Holder to rely
 thereon.


	
 

	
 


	
 

	
          (f)
 Investment Experience. The Holder acknowledges that it is able to fend
 for itself, can bear the economic risk of its investment, and has such
 knowledge and experience in investing in companies similar to the Borrower
 and in financial or business matters such that it is capable of evaluating
 the merits and risks of this Note. The Holder has made the determination to
 enter into this Note based upon its own independent evaluation and assessment
 of the value of the Borrower and its present and prospective business
 prospects.


	
 

	
 


	
 

	
          (g)
 Accredited Investor. The Holder is an “accredited investor” within the
 meaning of SEC Rule 501 of Regulation D, as presently in effect.


	
 

	
 


	
 

	
          (h)
 Restricted Securities; Legends. The Holder recognizes that this Note
 will not be registered under the Securities Act or other applicable federal
 or state securities laws. The Holder understands that the Note is
 characterized as “restricted securities” under the federal securities laws
 inasmuch as it is being acquired from the Borrower in a transaction not
 involving a public offering. The Holder acknowledges that it may not to sell
 or transfer this Note unless it is registered under the Securities Act and
 under any other applicable securities laws


	
 

	
 


	
 

	
          (i)
 No General Solicitation. The Holder acknowledges that this Note was
 not offered to the Holder by means of: (a) any advertisement, article, notice
 or other communication published in any newspaper, magazine or similar
 medium, or broadcast over television or radio, or (b) any other form of
 general solicitation or advertising.


	
 

	
 


	
 

	
          (j)
 Absence of Conflicts. The Holder’s execution, delivery, and
 performance of, and compliance with this Note and the consummation of the
 transactions contemplated hereby, have not and will not:


	
 

	
 


	
 

	
 

	
          (i)
 violate, conflict with or result in a breach of any provision of or
 constitute a default (or an event which, with notice or lapse of time or
 both, would constitute a default) under, or result in the termination of, or
 accelerate the performance required by, or result in the creation of any lien
 upon any of the assets, properties or business of the Holder under, any of
 the terms, conditions or provisions of (i) its certificate/articles of
 formation or organization or any of its 





8






	
 

	
 

	
 


	
 

	
 

	
other
 formation or organizational documents, or (ii) any material contract to which
 it is a party; or


	
 

	
 

	
 


	
 

	
 

	
          (ii)
 violate any judgment, ruling, order, writ, injunction, award, decree, or any
 law or regulation of any court or federal, state, county or local government
 or any other governmental, regulatory or administrative agency or authority
 which is applicable to the Holder or any of its assets, properties or
 businesses, which violation would have a Material Adverse Effect.


	
 

	
 

	
 


	
 

	
          (k)
 Brokers or Finders. The Holder has not incurred, nor will it incur,
 directly or indirectly, as a result of any action taken by the Holder, any
 liability for brokerage or finders’ fees or agents’ commissions or any
 similar charges in connection with this Note or any transaction contemplated
 hereby. The Holder agrees to indemnify and hold the Borrower harmless from
 any liability for any commission or compensation in the nature of a finders’
 fee (and the costs and expenses of defending against such liability or asserted
 liability) for which the Holder, or any of its respective officers, employees
 or representatives is responsible.


	
 

	
 

	
 


	
 

	
8. Miscellaneous.
 The following general provisions apply:


	
 

	
 

	
 


	
 

	
          (a)
 This Note, and the obligations and rights of the Borrower hereunder, shall be
 binding upon and inure to the benefit of the Borrower, the Holder, and their
 respective heirs, personal representatives, successors and assigns. The
 Holder may not transfer this Note without the consent of the Borrower, which consent
 shall not be unreasonably withheld.


	
 

	
 


	
 

	
          (b)
 No amendment or waiver of any provision of the Note, nor consent to any
 departure by a party herefrom, shall in any event be effective unless the
 same shall be in writing and signed by the holders holding a majority of the
 then outstanding aggregate principal balance of the $7,000,000 Notes. Any
 amendment, waiver or consent so made or effected shall be binding upon all of
 the holders of the $7,000,000 Notes; provided, however, the principal amount
 of this Note shall not be reduced without the prior written consent of the
 holders of at least a majority of the then outstanding principal amount of
 the $7,000,000 Notes. Any principal so reduced shall be so reduced
 proportionally for all holders of the $7,000,000 Notes.


	
 

	
 


	
 

	
          (c)
 All payments shall be made in such coin and currency of the United States of
 America as at the time of payment shall be legal tender therein for the
 payment of public and private debts.


	
 

	
 


	
 

	
          All
 notices and other communications required or permitted hereunder shall be in
 writing. Notices shall be delivered personally, via recognized overnight
 courier (such as Federal Express, DHL or Airborne Express) or via certified
 or registered mail. All notices shall be effective upon receipt Notices may
 be delivered via facsimile or e-mail, provided that by no later than two days
 thereafter such notice is confirmed in writing and sent via one of the
 methods described in the previous sentence. Notices shall be addressed as follows:





9






	
 

	
 

	
 


	
 

	
 

	
          (i)
 if to the Borrower, to MTM Technologies, Inc., 1200 High Ridge Road,
 Stamford, Connecticut 06905, Attention: Steven Stringer, with a copy to
 Ballard Spahr Andrews & Ingersoll, L.L.P. 1735 Market Street, 51st
 Floor, Philadelphia, Pennsylvania 19103-7599, Attn: Justin P. Klein.


	
 

	
 

	
 


	
 

	
 

	
          (ii)
 if to the Holder, to c/o FirstMark Capital, L.L.C., 1221 Avenue of the
 Americas, 26th Floor, New York, New York 10020 with a copy to
 Brian Kempner, c/o FirstMark Capital, L.L.C., 1221 Avenue of the Americas, 26th
 Floor, New York, New York 10020.


	
 

	
 

	
 


	
 

	
          (d)
 Whenever possible, each provision of this Note will be interpreted in such
 manner as to be effective and valid under applicable law, but if any
 provision of this Note is held to be invalid, illegal or unenforceable in any
 respect under any applicable law or rule in any jurisdiction, such
 invalidity, illegality or unenforceability will not affect any other
 provision or any other jurisdiction, but this Note will be reformed,
 construed and enforced in such jurisdiction to the greatest extent possible
 to carry out the intentions of the parties hereto.


	
 

	
 

	
 


	
 

	
          (e)
 This Note shall be construed and enforced in accordance with, and the rights
 of the parties shall be governed by, the laws of the State of New York.





Signature on the following page


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          IN
WITNESS WHEREOF, the Borrower has caused this instrument to be executed in its
corporate name by a duly authorized officer, by order of its Board of Directors
as of the day and year first above written. 


	
 

	
 

	
 

	
 


	
 

	
MTM
 TECHNOLOGIES, INC.


	
 

	
 

	
 

	
 


	
 

	
By: 

	
 

	
/s/ Steven Stringer


	
 

	
 

	



	
 

	
Name:

	
Steven
 Stringer


	
 

	
Title:

	
President
 and Chief Executive Officer





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