EXHIBIT 4.5
FIRST AMENDMENT TO AMENDED AND RESTATED
TERM LOAN AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED TERM LOAN AGREEMENT (this
"Amendment"), dated as of June 30, 2004, is by and among INFOCROSSING, INC., a
Delaware corporation (the "Borrower"), the Subsidiaries of the Borrower that are
signatories hereto (collectively, the "Guarantors"), the financial institutions
that are parties hereto as "Lenders" (together with any other financial
institutions that become parties to the Loan Agreement defined below, in each
case with their successors and assigns, collectively, the "Lenders"), and
CAPITALSOURCE FINANCE LLC, a Delaware limited liability company, as such a
Lender and as Agent for the Lenders. All capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in Section 1 below.
R E C I T A L S:
A. The Borrower, the Agent and the Lenders are parties to that certain
Amended and Restated Term Loan Agreement dated as of April 2, 2004 (the
"Existing Loan Agreement;" the Existing Loan Agreement, as amended hereby, and
as the same further may be amended, modified, supplemented or restated in
accordance with its terms and as in effect from time to time, the "Loan
Agreement"), pursuant to and subject to the terms and conditions of which, among
other things, the Lenders have made certain loans and other financial
accommodations to the Borrower.
B. The Borrower has requested that the Lenders (i) consent to the
Convertible Notes Issuance and (ii) agree to amend the Existing Loan Agreement
in certain respects.
C. The Agent and the Lenders agree to accommodate such requests of the
Borrower, on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt,
sufficiency and adequacy of which hereby are acknowledged, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used but not elsewhere defined herein
shall have the respective meanings ascribed to such terms in the Loan Agreement.
2. Amendments to the Existing Loan Agreement. The Existing Loan
Agreement hereby is amended as follows:
2.1 Section 1.1 - Substituted Definitions. Section 1.1 of the
Existing Loan Agreement hereby is amended by substituting the following
definitions of the terms set forth below in lieu of the current
versions of such definitions contained in the Existing Loan Agreement:
"Change of Control": means the occurrence of any of
the following events, whether in a single transaction or a
series of related transactions, and any other similar events:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 and 13d-5 under
the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all securities that such person has
the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total Voting Capital Stock
of the Borrower; or (b) the Borrower consolidates with, or
merges with or into, another Person or Persons or sells,
assigns, conveys, transfers, leases or otherwise disposes of
all or substantially all of its assets to any Person or
Persons, or any Person or Persons consolidate with, or merge
with or into the Borrower, in any such event pursuant to a
transaction in which (i) the holders of the outstanding Voting
Capital Stock of the Borrower immediately prior to such
transaction hold less than 50% of the outstanding Voting
Capital Stock of the surviving or transferee company or its
direct or indirect parent company immediately after the
transaction or (ii) immediately after such transaction any
"person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that a person shall be deemed to have "beneficial ownership" of
all securities that such person has the right to acquire,
whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 50% of
the total Voting Capital Stock of the surviving or transferee
company or its direct or indirect parent company immediately
after the transaction; or (c) during any consecutive two-year
period, individuals who at the beginning of such period
constituted the Board of Directors of the Borrower (together
with any new directors whose election by the Board of Directors
of the Borrower or whose nomination for election by the
stockholders of the Borrower was approved by a vote of a
majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors
of the Borrower then in office provided, however, that the
change in individuals constituting the Board of Directors in
connection with the closing of the transactions contemplated by
the Exchange Agreement shall be deemed not to result in a
Change of Control pursuant to this clause (c); or (d) any
transaction subject to Rule 13e-3 under the Exchange Act if
following such Rule 13e-3 transaction such Person owns more
than 50% of the total Voting Capital Stock of the Borrower; or
(e) any "Change of Control" under the Convertible Notes
Indenture Documents.
2.2 Section 1.1 - Additional Definitions. Section 1.1 of the
Existing Loan Agreement hereby is amended further by adding the
following terms and respective definitions to such Section 1.1 in the
appropriate alphabetical order:
"Convertible Notes": those certain 4.00% Convertible
Senior Notes due 2024 in the aggregate principal amount of up
to $72,000,000 issued by the Borrower pursuant to the
Convertible Notes Indenture, including all notes issued in
exchange therefor or substitution thereof.
"Convertible Notes Indebtedness": the unsecured
Indebtedness of the Borrower that is incurred pursuant to the
Convertible Notes Issuance.
"Convertible Notes Indenture": that certain Indenture
dated as of June __, 2004 between Xxxxx Fargo, National
Association, as Trustee, and the Borrower, as the same may be
amended, modified and/or supplemented from time to time in
accordance with the terms hereof.
"Convertible Notes Indenture Documents":
collectively, the Convertible Notes Indenture, the Convertible
Notes and all related agreements, documents and instruments
evidencing or otherwise relating to the Convertible Notes
Indebtedness.
"Convertible Notes Issuance": the offering by the
Borrower of up to an aggregate of $72,000,000 in principal
amount of Convertible Notes Indebtedness upon the terms and
conditions set forth in that certain Offering Memorandum of
the Borrower dated as of June 24, 2004.
"First Amendment": that certain First Amendment to
Amended and Restated Term Loan Agreement dated as of June 30,
2004 among the Borrower, its Subsidiaries, the Agent and the
Lenders.
"First Amendment Effective Date": shall mean June
30, 2004.
2.3 Section 3. Section 3 of the Existing Loan Agreement hereby
is amended by adding the following Sections 3.23 and 3.24 to such
Section 3 in the appropriate numerical order:
3.23 Convertible Notes Indenture Documents. The Loan
Obligations are permitted under the Convertible Notes
Indenture Documents. The execution, delivery and performance
by the Borrower and its Subsidiaries of the Loan Documents to
which they are parties do not and will not conflict with or
result in any breach or contravention of, or result in the
creation of any Lien or default or event of default under, any
of the Convertible Notes Indenture Documents. None of the
Convertible Notes Indenture Documents prohibits or otherwise
restricts in any manner the making of any payments hereunder
by the Borrower or any of its Subsidiaries. The Convertible
Notes Issuance was made in compliance with all Requirements of
Law, including, without limitation, the Trust Indenture Act of
1939 (15 U.S.C. Sections 77aaa-77bbbb), as amended.
3.24 Representations and Warranties Incorporated from
the Convertible Notes Indenture Documents. As of the First
Amendment Effective Date, and each other date on which the
following described representations and warranties are made or
deemed made under the Convertible Notes Indenture Documents,
each of the representations and warranties made in each of the
Convertible Notes Indenture Documents is true and correct in
all material respects, and, without limiting any other
representation or warranty contained in any Loan Document,
such representations and warranties hereby are incorporated
herein by this reference, mutatis mutandis, with the same
effect as though such representations and warranties were
expressly set forth in their entirety herein.
2.4 Section 5.2. Section 5.2 of the Existing Loan Agreement
hereby is amended by (x) deleting the "and" at the end of clause (d) of
such Section 5.2, (y) deleting clause (e) of such Section 5.2 and
substituting clause (e) below in lieu thereof, and (z) adding clause
(f) below to such Section 5.2 in the appropriate alphabetical order:
(e) concurrently with the delivery thereof to the
trustee under the Convertible Notes Indenture, copies of any
and all notices, certificates, statements, reports and other
deliveries required to be made thereunder, including without
limitation, all compliance certificates and reports required
to be filed pursuant to Sections 13 and 15(d) of the
Securities Exchange Act of 1934, as amended; and
(f) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request.
2.5 Section 6.2. Section 6.2 of the Existing Loan Agreement
hereby is amended by (x) deleting the "and" at the end of clause (k) of
such Section 6.2, (y) deleting the "." at the end of clause (l) of such
Section 6.2 and substituting "; and" in lieu thereof, and (z) adding
the following clause (m) below to such Section 6.2 in the appropriate
alphabetical order:
(m) Convertible Notes Indebtedness not to exceed
$72,000,000 in aggregate principal amount at any time
outstanding (reduced from time to time by principal payments
made, or deemed made as a result of conversion, thereon, the
making of which remain subject to the terms of this Agreement)
evidenced by the Convertible Notes.
2.6 Section 6.7. Section 6.7 of the Existing Loan Agreement
hereby is amended by (x) deleting the "and" at the end of clause (iii)
of such Section 6.2, (y) deleting the "." at the end of clause (iv) of
such Section 6.2 and substituting "; and" in lieu thereof, and (z)
adding the following clause (v) below to such Section 6.2 in the
appropriate numerical order:
(v) for the avoidance of doubt, the Borrower may make
regularly scheduled semi-annual payments of interest in respect of the
Convertible Notes Indebtedness and may convert the Convertible Notes
Indebtedness into shares of the Borrower's common stock in accordance
with the terms of the Convertible Notes Indenture Documents.
2.7 Section 6.10. Section 6.10 of the Existing Loan Agreement
hereby is deleted in its entirety and the following is substituted in
lieu thereof:
6.10 Modifications of Debt Instruments. Amend, modify
or change, or consent or agree to any amendment, modification
or change to any of the terms of any material Indebtedness,
except for such amendments, modifications or waivers that
could not reasonably be expected to effect any change
materially adverse to the interests and rights of the Agent or
the Lenders under any Loan Document. Without limiting the
generality of the foregoing, and anything contained herein to
the contrary notwithstanding, the Company shall not amend,
modify or change, or consent or agree to any amendment,
modification or change to any of the terms of the Convertible
Notes Indebtedness or the Convertible Notes Indenture
Documents, except for such amendments, modifications, changes,
consents or agreements that do not, will not and could not
reasonably be expected to effect any change adverse to the
interests, rights, remedies and/or claims of the Agent or any
of the Lenders under any of the Loan Documents.
2.8 Section 6. Section 6 of the Existing Loan Agreement hereby
is amended by adding the following Section 6.18 to the end of such
Section 6:
6.18 Specific Restricted Payments. (i) Make any
payment or prepayment of principal of, premium, if any,
interest, fees, redemption, exchange, purchase, retirement,
defeasance, sinking fund or similar payment with respect to,
the Convertible Notes Indebtedness other than regularly
scheduled semi annual payments of interest in respect thereof,
(ii) grant any Lien as security for any of the Convertible
Notes Indebtedness or (iii) use the proceeds thereof for
purposes other than (a) those permitted under the terms of
this Agreement and (b) to repay any of the Loan Obligations
subject to the terms of the First Amendment.
2.9 Section 6. Section 6 of the Existing Loan
Agreement hereby is amended by adding the following paragraph to the
end of such Section 6:
Anything contained in this Section 6 to the contrary
notwithstanding, no act, transaction or other action otherwise
permitted under this Section 6 shall be permitted if such act,
transaction or other action is prohibited or is otherwise not
permitted under any of the Convertible Notes Indenture
Documents and the Agent shall have the right, at any time, to
require the Borrower to deliver a certificate executed by a
Responsible Officer of the Borrower and otherwise in form and
substance reasonably satisfactory to the Agent which certifies
to the Agent and the Lenders that any such act, transaction or
other action, at the time such act, transaction or other
action is to be taken or consummated, is permitted under the
Convertible Notes Indenture Documents. Furthermore, all
covenants contained in each of the Convertible Notes Indenture
Documents hereby are incorporated herein, mutatis mutandis, as
if such covenants were set forth in this Agreement, and shall
be deemed in addition to, and not in substitution of, the
covenants contained in the Loan Documents.
2.10 Section 7. Section 7 of the Existing Loan Agreement
hereby is amended by (x) adding "or" at the end of clause (k) of such
Section 7, and (y) adding the following clause (l) below to such
Section 7 in the appropriate alphabetical order:
(l) Without limiting any of the foregoing, the
occurrence of any default (and continuation beyond any
applicable cure or grace period) under the Convertible Notes
Indenture Documents or otherwise in respect of the Convertible
Notes Indebtedness, or the exercise of any rights or remedies
by any Person thereunder or in respect thereof due to the
occurrence of any such default (and continuation beyond any
applicable cure or grace period); the exercise of any put
option or similar right by any Person in respect of the
Convertible Notes Indebtedness; or the receipt of a default
notice by the Borrower from the trustee or any other Person
under the Convertible Notes Indenture Documents;
2.11 General Agreements. The Borrower has requested that the
Agent and the Lenders consent to the Convertible Notes Issuance and the
incurrence by the Borrower of the Convertible Notes Indebtedness
pursuant to the terms of the Convertible Notes Indenture Loan
Documents. On the terms and subject to the conditions set forth in this
Amendment (including, without limitation, the conditions set forth in
this Section 2.11) and subject to the effectiveness of this Amendment
in accordance with Section 3, the Agent and the Lenders hereby consent
to the Convertible Notes Issuance and the incurrence of the Convertible
Notes Indebtedness. In consideration for the granting of the foregoing
consents, and anything contained in any Loan Document to the contrary
notwithstanding, the parties hereto hereby agree that:
(a) unless such amounts shall have been paid earlier
in accordance with the terms of the Loan Agreement (and the
Agent and the Lenders hereby agree and acknowledge that the
Borrower may pay such amounts at any time prior to the
Scheduled Repayment Date (as defined below)) or in accordance
with paragraph (e) below, the outstanding principal amount of
the Loan, together with all accrued and unpaid interest
thereon and all other Loan Obligations (other than the
prepayment premium that otherwise shall have been due and
owing in respect of the repayment of the Loan Obligations with
the proceeds of the Convertible Notes Indebtedness), shall be
due and payable on July 30, 2004 (the "Scheduled Repayment
Date"), and the Borrower hereby agrees to pay such amounts to
the Agent and the Lenders, unless paid earlier, on the
Scheduled Repayment Date;
(b) each of the parties hereto hereby agrees to use
good faith efforts to negotiate, document and close an
acquisition facility (the "Acquisition Facility"), on terms
and conditions consistent with the term sheet dated June 21,
2004 executed by the Borrower and CapitalSource Finance LLC,
which documentation shall be generally consistent in nature
with the Loan Documents currently in effect and with
acquisition facilities of the types contemplated by such term
sheet and otherwise mutually agreeable to the Borrower and the
Agent, on or before the Scheduled Repayment Date;
(c) if the Acquisition Facility shall not have been
documented and executed in accordance with paragraph (b) above
on or before the Scheduled Repayment Date for any reason other
than due to the failure of the Agent to comply with its
obligations under paragraph (b) above (as determined by a
court of competent jurisdiction on a final and nonappealable
basis), then, as consideration for the agreements of the Agent
and the Lenders herein set forth, the Borrower shall pay to
the Agent a consent and amendment fee (the "First Amendment
Fee") on the Scheduled Repayment Date in an amount equal to
6.645% of the aggregate principal amount of the Loan in excess
of $15,000,000 that shall have been repaid or prepaid, or
required to be repaid or prepaid (in each case, other than
repayments constituting regularly scheduled amortization
installments of principal thereof) during the period
commencing on the First Amendment Effective Date and ending on
the date the Borrower complies with its payment obligations
under paragraph (a) above (including in such calculation all
principal of the Loan required to be repaid on the Scheduled
Repayment Date), and the obligations of the Borrower under
this paragraph (c) shall constitute Loan Obligations and shall
be secured by the Collateral and the Security Documents (and
this Amendment and the other Loan Documents shall remain in
full force and effect regardless of the payment of all Loan
Obligations other than the First Amendment Fee);
(d) the payment by the Borrower of the First
Amendment Fee in accordance with the terms of paragraph (c)
above shall be in substitution of, and not in addition to, the
other prepayment premium that otherwise shall have been due
and owing in respect of the repayment of Loan Obligations with
the proceeds of the Convertible Notes Indebtedness;
(e) if the Acquisition Facility becomes effective in
accordance with paragraph (b) above on or before the Scheduled
Repayment Date, then simultaneously therewith the Borrower
shall repay to the Agent and the Lenders the then-outstanding
principal amount of the Loan, if any, together with all
accrued and unpaid interest thereon and all other Loan
Obligations, if any, and the Loan Documents shall terminate in
accordance with their terms (other than provisions and terms
therein contained that expressly survive repayment of the Loan
Obligations) and, if the Borrower shall have complied with the
foregoing, no First Amendment Fee shall be due or owing and
the Borrower shall not have any further obligation to pay the
prepayment premium that otherwise shall have been due and
owing in respect of the repayment of Loan Obligations with the
proceeds of the Convertible Notes Indebtedness;
(f) if the Borrower shall have paid the First
Amendment Fee to the Agent and shall have repaid the
outstanding principal amount of the Loan, together with all
accrued and unpaid interest thereon and all other Loan
Obligations, then the Loan Documents shall terminate in
accordance with their respective terms (other than provisions
and terms therein contained that expressly survive repayment
of the Loan Obligations); provided, that, for clarification,
(i) the Loan Documents shall not terminate, even if the
outstanding principal amount of the Loan, together with all
accrued and unpaid interest thereon and all other Loan
Obligations (other than the First Amendment Fee) are repaid in
full, until the earlier of (A) the payment of the First
Amendment Fee to the Agent or (B) the effectiveness of the
Acquisition Facility in accordance with paragraphs (b) and (c)
above and (ii) the Loan Documents shall be reinstated, be
revived and continue in full force and effect if at any time
any payment of any of the Loan Obligations subsequently is
rescinded, declared to be fraudulent or preferential, set
aside, required to be paid to any receiver, trustee in
bankruptcy or similar Person, or under any insolvency,
receivership, fraudulent conveyance, preference or similar
law, or must otherwise be returned by the Agent or any Lender;
and
(g) the failure of the Borrower to make any payment
required by this Section 2.11 shall result automatically in an
Event of Default, without notice or other action by or on
behalf of the Agent, any Lender or any other Person, and any
and all unfulfilled or unsatisfied payment obligations of the
Borrower under this Section 2.11 hereby expressly shall
survive any payment or repayment of other Loan Obligations.
3. Conditions to Effectiveness. The effectiveness of this Amendment
shall be subject to the satisfaction of all of the following conditions in a
manner, form and substance satisfactory to the Agent:
(a) Representations and Warranties. All of the representations
and warranties of the Borrower and each of its Subsidiaries set forth
in the Existing Loan Agreement and the other Loan Documents (including,
without limitation, this Amendment) to the extent such Person is a
party thereto shall be true and correct in all material respects (or,
with respect to any such representation or warranty that, by its terms,
is qualified by materiality, Material Adverse Effect or similar
qualification, such representation or warranty shall be true and
correct in all respects), except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all
material respects as of such earlier date (or, with respect to any such
representation or warranty that, by its terms, is qualified by
materiality, Material Adverse Effect or similar qualification, such
representation or warranty shall be true and correct in all respects as
of such earlier date).
(b) Delivery of Documents. The following shall have been
delivered to the Agent, each duly authorized and executed, as
applicable:
(1) this Amendment;
(2) such evidence of the authority of the Borrower
and each of its Subsidiaries to execute and deliver this
Amendment and all other Loan Documents delivered in connection
herewith as the Agent may require, including, but not limited
to, (i) a copy of resolutions duly adopted by the board of
directors of each such Person, authorizing the execution by
each such Person of this Amendment and the other agreements,
documents and instruments to be executed by each such Person
pursuant to this Amendment (collectively, the "Other Amendment
Documents"), certified as complete and correct by the
secretary, the assistant secretary or any Responsible Officer
of each such Person, and (ii) a certificate of the secretary
or assistant secretary of each such Person to the effect that
neither the articles of incorporation nor the bylaws of such
Person have been amended or modified since the Original
Closing Date or, if more recent than the Original Closing
Date, the date on which certified copies of such documents
previously were delivered to the Agent;
(3) a certificate executed by a Responsible Officer
or the Vice Chairman of the Borrower on behalf of the Borrower
certifying to the Agent and the Lenders that all necessary
governmental, regulatory, creditor, shareholder, partner,
member and other material consents, approvals and exemptions
required to be obtained by the Borrower in connection with the
transactions evidenced hereby have been duly obtained and are
in full force and effect;
(4) a certificate signed by a Responsible Officer or
the Vice Chairman of the Borrower dated as of the Effective
Date affirming the matters set forth in this Section 3 and the
satisfaction of the conditions precedent herein contained; and
(5) such other instruments, documents, certificates,
consents, waivers and opinions (including opinions from Xxxxxx
& Xxxxxxx LLP, counsel to the Borrower and its Subsidiaries)
as the Agent reasonably may request.
(c) [Reserved].
(d) No Default. No Default or Event of Default shall exist or
be created hereby, and no default or event of default shall exist or be
created under the Convertible Notes Indenture Documents.
(e) No Material Adverse Effect. No Material Adverse Effect
shall have occurred since December 31, 2003.
(f) Copies of Documents. Delivery to Agent of copies,
certified by a Responsible Officer or the Vice Chairman of the
Borrower, of the material Convertible Notes Indenture Documents.
(g) Filings, Registrations and Recordings. The Agent shall
have received each document (including Uniform Commercial Code
financing statements and in lieu financing statements or amendments
thereto) required by the Loan Documents or under law or reasonably
requested by the Agent to be filed, registered or recorded in order to
create in favor of the Agent, for the benefit of the Agent and the
Lenders, a perfected Lien on the Collateral described therein, prior
and superior to any other Person, in proper form for filing,
registration or recording.
(h) Satisfaction of the Agent's Counsel. All legal matters
incident to the transactions contemplated hereby shall be reasonably
satisfactory to counsel for the Agent.
The date on which the foregoing conditions shall have been satisfied shall be
referred to herein as the "Effective Date." The execution and delivery of this
Amendment by the Borrower and the Guarantors shall be deemed a representation
and warranty by such Persons that the foregoing conditions precedent have been
satisfied in all respects as of the date hereof.
4. References. From and after the Effective Date, all references in the
Existing Loan Agreement and the other Loan Documents to the Loan Agreement shall
be deemed to refer to the Existing Loan Agreement, as amended hereby. This
Amendment constitutes a Loan Document.
5. Representations and Warranties. The Borrower and each of its
Subsidiaries (individually, an "Obligor" and collectively, the "Obligors") each
hereby confirms to the Agent and the Lenders that the representations and
warranties set forth in the Loan Agreement and the other Loan Documents are true
and correct in all material respects as of the date hereof (or, with respect to
any such representation or warranty that, by its terms, is qualified by
materiality, Material Adverse Effect or similar qualification, such
representation or warranty are true and correct in all respects), except to the
extent such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date (or, with respect to
any such representation or warranty that, by its terms, was qualified by
materiality, Material Adverse Effect or similar qualification, such
representation or warranty shall have been true and correct in all respects as
of such earlier date). Each Obligor further represents and warrants to the Agent
and the Lenders that (a) it has full power and authority to execute and deliver
this Amendment and the Other Amendment Documents and to perform its obligations
hereunder and thereunder, (b) upon the execution and delivery hereof and
thereof, this Amendment and the Other Amendment Documents will be valid, binding
and enforceable upon it in accordance with their respective terms, subject to
bankruptcy, insolvency and similar laws affecting the enforceability of
creditors' rights generally and to general principles of equity, (c) the
execution, delivery and performance of this Amendment and/or the Other Amendment
Documents do not and will not contravene, conflict with, violate or constitute a
default under (i) the articles of incorporation, certificate of limited
partnership, bylaws or agreement of limited partnership of such Obligor, as
applicable, or (ii) any applicable law, rule or regulation, or any judgment,
decree or order, of which such Obligor has knowledge or any material agreement,
indenture or instrument to which such Obligor is a party or is bound or which is
binding upon or applicable to all or any portion of its property and (d) no
Default or Event of Default presently exists.
6. [Reserved].
7. No Further Amendments; Ratification of Liability; Waiver. Except as
amended hereby, the Existing Loan Agreement and each of the other Loan Documents
shall and do remain in full force and effect in accordance with their respective
terms. Each Obligor, as a debtor, grantor, pledgor, guarantor or assignor, or in
any similar capacity in which it has granted Liens or acted as an accommodation
party or guarantor, as the case may be, hereby ratifies, confirms and reaffirms
its liabilities, its payment and performance obligations (contingent or
otherwise) and its agreements under the Loan Agreement and the other Loan
Documents to the extent such Person is a party thereto, all as amended by this
Amendment, and the liens and security interests granted, created and perfected
thereby, and acknowledges that (a) it has no defenses, claims or set-offs to the
enforcement of such liabilities, obligations and agreements, (b) the Agent and
the Lenders have fully performed all obligations to such Person which such
Persons may have had or have on and as of the date hereof and (c) other than as
specifically set forth herein, neither the Agent nor any of the Lenders waives,
diminishes or limits any term or condition contained in the Existing Loan
Agreement or any other Loan Document. The Agent and the Lenders' agreement to
the terms of this Amendment or any other amendment of the Existing Loan
Agreement or any other Loan Document shall not be deemed to establish or create
a custom or course of dealing among the Obligors, the Agent and the Lenders, or
any of them. This Amendment and the Other Amendment Documents contain the entire
agreement among the Obligors, the Agent and the Lenders contemplated by this
Amendment.
8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which, when
taken together, shall constitute one and the same instrument. Delivery of a
counterpart by facsimile shall as effective as delivery of a manually-executed
counterpart.
9. Further Assurances. Each Obligor covenants and agrees that it will
at any time and from time to time do, execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged and delivered, all such further acts,
documents and instruments as reasonably may be required by the Agent in order to
effectuate fully the intent of this Amendment.
10. Severability. If any term or provision of this Amendment or the
application thereof to any party or circumstance shall be held to be invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
the validity, legality and enforceability of the remaining terms and provisions
of this Amendment shall not in any way be affected or impaired thereby, and the
affected term or provision shall be modified to the minimum extent permitted by
law so as most fully to achieve the intention of this Amendment.
11. Captions. The captions in this Amendment are inserted for
convenience of reference only and in no way define, describe or limit the scope
or intent of this Amendment or any of the provisions hereof.
12. Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of New York, without regard to conflict of
laws principles that may direct the application of the laws of any other
jurisdiction.
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First Amendment to Amended and Restated Term Loan Agreement Delivered at
Chicago, Illinois as of the day and year first above written.
BORROWER:
INFOCROSSING, INC.
By: /s/ XXXX XXXXXXXX
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Name: Xxxx Xxxxxxxx
Its: Chief Executive Officer
GUARANTORS:
INFOCROSSING SOUTHEAST, INC., a Georgia corporation
formerly known as Amquest, Inc.
By: /s/ XXXX XXXXXXXX
-------------------------------
Name: Xxxx Xxxxxxxx
Its: Chief Executive Officer
ETG, INC., a Delaware corporation
By: /s/ XXXX XXXXXXXX
-------------------------------
Name: Xxxx Xxxxxxxx
Its: Chief Executive Officer
INFOCROSSING SERVICES, INC., a Delaware corporation
By: /s/ XXXX XXXXXXXX
-------------------------------
Name: Xxxx Xxxxxxxx
Its: Chief Executive Officer
INFOCROSSING SERVICES SOUTHEAST, INC., a Georgia
corporation formerly known as Amquest Services, Inc.
By: /s/ XXXX XXXXXXXX
-------------------------------
Name: Xxxx Xxxxxxxx
Its: Chief Executive Officer
INFOCROSSING WEST, INC., a California corporation
formerly known as ITO Acquisition, Inc. and doing
business as Systems Management Specialists
By: /s/ XXXX XXXXXXXX
-------------------------------
Name: Xxxx Xxxxxxxx
Its: Chief Executive Officer
LENDERS:
CAPITALSOURCE FINANCE LLC, as a Lender
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Xxxxxx X. Xxxxxxx
Its: Senior Vice President
AGENT:
CAPITALSOURCE FINANCE LLC, as the Agent
By: /s/ XXXXXX X. XXXXXXX
----------------------------
Xxxxxx X. Xxxxxxx
Its: Senior Vice President
