MASTER LOAN AND SECURITY AGREEMENT NO. 85043
CO-DEBTORS: Infocrossing, Inc and ETG, Inc. SECURED PARTY: Xxxxx Fargo Equipment
0 Xxxxxxxx Xxxxxxx Xxxxxx Finance, Inc.
Xxxxxx, XX 00000 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
In consideration of the mutual covenants set forth herein, the above named
Debtor and the above named Secured Party hereby enter into this Master Loan and
Security Agreement and agree to the terms and conditions set forth herein. Each
Loan Schedule which may be executed by Debtor and Secured Party from time to
time pursuant to this Master Loan and Security Agreement shall be deemed to be a
separate loan transaction incorporating all of the terms and conditions of this
Master Loan and Security Agreement. References in this Master Loan and Security
Agreement to "Agreement", "hereunder" and "herein" shall mean a Loan Schedule
which incorporates this Master Loan and Security Agreement.
1. LOAN SCHEDULES. Debtor shall evidence its agreement to enter into each
Agreement incorporating the terms hereof by executing and delivering to Secured
Party a Loan Schedule in the form annexed hereto as Exhibit 1. Debtor's
execution of a Loan Schedule shall obligate Debtor to make all of the payments
set forth in the Schedule of Obligations as set forth in the Loan Schedule. The
Loan Schedule shall set forth the amount of the Loan, the Term of the Loan, the
number of payments to be made and the amount and dates upon which such payments
are due. The Loan Schedule shall also set forth the Time Balance which means the
aggregate amount of all payments which are payable under the Agreement evidenced
by such Loan Schedule. Secured Party shall have no obligation to enter into or
accept any Loan Schedule and no Loan Schedule shall be binding upon Secured
Party until accepted by Secured Party which acceptance shall be evidenced only
by the execution of such Loan Schedule by Secured Party.
2. GRANT OF SECURITY INTEREST. Debtor hereby grants to Secured Party a security
interest in the personal property referred to and/or described in each Loan
Schedule (hereinafter with all renewals, substitutions and replacements and all
parts, repairs, improvements, additions and accessories incorporated therein or
affixed thereto referred to as the "Equipment"), together with any and all
proceeds thereof and any and all insurance policies and proceeds with respect
thereto.
3. OBLIGATIONS SECURED. The aforesaid security interest is granted by Debtor as
security for (a) the payment of the Time Balance (as set forth in the Loan
Schedule) and the payment and performance of all other indebtedness and
obligations now or hereafter owing by Debtor to Secured Party, of any and every
kind and description under the Agreement evidenced by such Loan Schedule, and
any and all renewals and extensions of the foregoing, and all interest, fees,
charges, expenses and attorneys' fees accruing or incurred in connection with
any of the foregoing (all of which Time Balance, indebtedness and obligations
are hereinafter referred to as the "Liabilities") and (b) the payment and
performance of all other indebtedness and obligations now or hereafter owing by
Debtor to Secured Party, of any and every kind and description, howsoever
arising or evidenced including without limitation those arising under other Loan
Schedules, (all of which indebtedness and obligations are hereinafter referred
to as the "Other Liabilities"). Subject to Paragraph 16, any nonpayment of any
installment or other amounts due hereunder shall result in the obligation on the
part of Debtor promptly to pay also an amount equal to five percent (5%), (or
the maximum rate permitted by law, whichever is less) of the installment or
other amounts overdue.
4. DISCLAIMER OF WARRANTIES. DEBTOR ACKNOWLEDGES THAT SECURED PARTY MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, IN RESPECT OF THE EQUIPMENT, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR
PURPOSE. Secured Party shall not be liable to Debtor for any loss, damage or
expense of any kind or nature caused, directly or indirectly, by any Equipment
secured hereunder or the use or maintenance thereof or the failure of operation
thereof, or the repair, service or adjustment thereof, or by any delay or
failure to provide any such maintenance, repairs, service or adjustment, or by
any interruption of service or loss of use thereof or for any loss of business
howsoever caused. The Equipment shall be shipped directly to Debtor by the
supplier thereof and Debtor agrees to accept such delivery. No defect or
unfitness of the Equipment, nor any failure or delay on the part of the
manufacturer or the shipper of the Equipment to deliver the Equipment or any
part thereof to Debtor, shall relieve Debtor of the obligation to pay the Time
Balance or any other obligation under this Agreement. Secured Party shall have
no obligation under this Agreement in respect of the Equipment and shall have no
obligation to install, erect, test, adjust or service the Equipment. Secured
Party agrees, so long as there shall not have occurred or be continuing any
Event of Default hereunder or event which with lapse of time or notice, or both,
might become an Event of Default hereunder, that Secured Party will permit
Debtor to enforce in Debtor's own name at Debtor's sole expense any supplier's
or manufacturer's warranty or agreement in respect of the Equipment to the
extent that such warranty or agreement is assignable.
5. ASSIGNMENT. Any transaction evidenced by a Loan Schedule shall be assignable
by Secured Party, and by its assigns, without the consent of Debtor, but Debtor
shall not be obligated to any assignee except upon written notice of such
assignment from Secured Party or such assignee. The obligation of Debtor to pay
and perform the Liabilities to such assignee shall be absolute and unconditional
and shall not be affected by any circumstance whatsoever, and such payments
shall be made without interruption or abatement notwithstanding any event or
circumstance whatsoever, including, without limitation, the late delivery,
non-delivery, destruction or damage of or to the Equipment, the deprivation or
limitation of the use of the Equipment, the bankruptcy or insolvency of Secured
Party or Debtor or any disaffirmance of this Agreement by or on behalf of Debtor
and notwithstanding any defense, set-off, recoupment or counterclaim or any
other right whatsoever, whether by reason of breach of this Agreement or of any
warranty in respect of the Equipment or otherwise which Debtor may now or
hereafter have against Secured Party, and whether any such event shall be by
reason of any act or omission of Secured Party (including, without limitation,
any negligence of Secured Party) or otherwise; provided, however, that nothing
herein contained shall affect any right of Debtor to enforce against Secured
Party any claim which Debtor may have against Secured Party in any manner other
than by abatement, attachment or recoupment of, interference with, or set-off,
counterclaim or defense against, the aforementioned payments to be made to such
assignee. Debtor's undertaking herein to pay and perform the Liabilities to an
assignee of Secured Party shall constitute a direct, independent and
unconditional obligation of Debtor to said assignee. Said assignee shall have no
obligations under this Agreement or in respect of the Equipment and shall have
no obligation to install, erect, test, adjust or service the Equipment. Debtor
also acknowledges and agrees that any assignee of Secured Party's interest in
this Agreement shall have the right to exercise all rights, privileges and
remedies (either in its own name or in the name of Secured Party) which by the
terms of this Agreement are permitted to be exercised by Secured Party.
6. DAMAGE TO OR LOSS OF THE EQUIPMENT; REQUISITION. Debtor assumes and shall
bear the entire risk of loss or damage to the Equipment from any and every
cause, whatsoever. No loss or damage to the Equipment or any part thereof shall
affect any obligation of Debtor with respect to the Liabilities and this
Agreement, which shall continue in full force and effect. Debtor shall advise
Secured Party in writing promptly of any item of Equipment lost or damaged and
of the circumstances and extent of such damage. If the Equipment is totally
destroyed, irreparably damaged, lost, stolen or title thereto shall be
requisitioned or taken by any governmental authority under the power of eminent
domain or otherwise, Debtor shall, at the option of Secured Party, replace the
same with like equipment in good repair, condition and working order, or pay to
Secured Party all Liabilities due and to become due, less the net amount of the
recovery, if any, actually received by Secured Party from insurance or otherwise
for such destruction, damage, loss, theft, requisition or taking. Whenever the
Equipment is destroyed or damaged and, in the sole discretion of Secured Party,
such destruction or damage can be repaired, Debtor shall, at its expense,
promptly effect such repairs as Secured Party shall deem necessary for
compliance with clause (a) of paragraph 8 below. Any proceeds of insurance
received by Secured Party with respect to such reparable damage to the Equipment
shall, at the election of Secured Party, be applied either to the repair of the
Equipment by payment by Secured Party directly to the party completing the
repairs, or to the reimbursement of Debtor for the cost of such repairs;
provided, however, that Secured Party shall have no obligation to make such
payment or any part thereof until receipt of such evidence as Secured Party
shall deem satisfactory that such repairs have been completed and further
provided that Secured Party may apply such proceeds to the payment of any of the
Liabilities or the Other Liabilities due if at the time such proceeds are
received by Secured Party there shall have occurred and be continuing any Event
of Default hereunder or any event which with lapse of time or notice, or both,
would become an Event of Default. Debtor shall, when and as requested by Secured
Party, undertake, by litigation or otherwise, in Debtor's name, the collection
of any claim against any person for such destruction, damage, loss, theft,
requisition or taking, but Secured Party shall not be obligated to undertake, by
litigation or otherwise, the collection of any claim against any person for such
destruction, damage, loss, theft, requisition or taking.
7. REPRESENTATIONS AND WARRANTIES OF DEBTOR. Debtor represents and warrants
that: it has the right, power and authority to enter into and carry out the
terms and provisions of this Agreement; this Agreement constitutes a valid
obligation of the Debtor and is enforceable in accordance with its terms; and
entering into this Agreement and carrying out its terms and provisions will not
violate the terms or constitute a breach of any other agreement to which Debtor
is a party.
8. AFFIRMATIVE COVENANTS OF DEBTOR. Debtor shall (a) cause the Equipment to be
kept in good condition and use the Equipment only in the manner for which it was
designed and intended so as to subject it only to ordinary wear and tear and
cause to be made all needed and proper repairs, renewals and replacements
thereto; (b) maintain at all times property damage, fire, theft and
comprehensive insurance for the full replacement value of the Equipment, with
loss payable provisions in favor of Secured Party and any assignee of Secured
Party as their interests may appear, and maintain public liability insurance in
amounts satisfactory to Secured Party, naming Secured Party and any assignee of
Secured Party as insureds with all of said insurance and loss payable provisions
to be in form, substance and amount and written by companies approved by Secured
Party, and deliver the policies therefor, or duplicates thereof, to Secured
Party; (c) pay or reimburse Secured Party for any and all taxes, assessments and
other governmental charges of whatever kind or character, however designated
(together with any penalties, fines or interest thereon) levied or based upon or
with respect to the Equipment, the Liabilities or this Agreement or upon the
manufacture, purchase, ownership, delivery, possession, use, storage, operation,
maintenance, repair, return or other disposition of the Equipment, or upon any
receipts or earnings arising therefrom, or for titling or registering the
Equipment, or upon the income or other proceeds received with respect to the
Equipment or this Agreement provided, however, that Debtor shall pay taxes on or
measured by the net income of Secured Party and franchise taxes of Secured Party
only to the extent that such net income taxes or franchise taxes are levied or
assessed in lieu of any other taxes, assessments or other governmental charges
hereinabove described; (d) pay all shipping and delivery charges and other
expenses incurred in connection with the Equipment and pay all lawful claims,
whether for labor, materials, supplies, rents or services, which might or could
if unpaid become a lien on the Equipment; (e) comply with all governmental laws,
regulations, requirements and rules, all instructions and warranty requirements
of Secured Party or the manufacturer of the Equipment, and with the conditions
and requirements of all policies of insurance with respect to the Equipment and
this Agreement; (f) xxxx and identify the Equipment with all information and in
such manner as Secured Party may request from time to time and replace promptly
any such marking or identification which are removed, defaced or destroyed; (g)
at any and all times during business hours, grant to Secured Party free access
to enter upon the premises wherein the Equipment shall be located and permit
Secured Party to inspect the Equipment; (h) reimburse Secured Party for all
charges, costs and expenses (including attorneys' fees) incurred by Secured
Party in defending or protecting its interests in the Equipment, in the
attempted enforcement or enforcement of the provisions of this Agreement or in
the attempted collection or collection of any of the Liabilities; (i) indemnify
and hold any assignee of Secured Party, and Secured Party, harmless from and
against all claims, losses, liabilities, damages, judgments, suits, and all
legal proceedings, and any and all costs and expenses in connection therewith
(including attorneys' fees) arising out of or in any manner connected with the
manufacture, purchase, ownership, delivery, possession, use, storage, operation,
maintenance, repair, return or other disposition of the Equipment or with this
Agreement, including, without limitation, claims for injury to or death of
persons and for damage to property, and give Secured Party prompt notice of any
such claim or liability; and (j) maintain a system of accounts established and
administered in accordance with generally accepted accounting principles and
practices consistently applied, and, within forty-five (45) days after the end
of each fiscal quarter, deliver to Secured Party a balance sheet as at the end
of such quarter and statement of operations for such quarter, and, within one
hundred and twenty (120) days after the end of each fiscal year, deliver to
Secured Party a balance sheet as at the end of such year and statement of
operations for such year, in each case prepared in accordance with generally
accepted accounting principles and practices consistently applied and certified
by Debtor's chief financial officer as fairly presenting the financial position
and results of operation of Debtor, and, in the case of year end financial
statements, certified by an independent accounting firm acceptable to Secured
Party.
9. NEGATIVE COVENANTS OF DEBTOR. Debtor shall not (a) create, incur, assume or
suffer to exist any mortgage, lien, pledge or other encumbrance or attachment of
any kind whatsoever upon, affecting or with respect to the Equipment or this
Agreement or any of Debtor's interests hereunder; (b) make any changes or
alterations in or to the Equipment except as necessary for compliance with
clause (a) of paragraph 8 above; (c) permit the name of any person, association
or corporation other than Secured Party to be placed on the Equipment as a
designation that might be interpreted as a claim of interest in the Equipment;
(d) part with possession or control of or suffer or allow to pass out of its
possession or control any of the Equipment or change the location of the
Equipment or any part thereof from the location shown above; (e) assign or in
any way dispose of all or any part of its rights or obligations under this
Agreement or enter into any lease of all or any part of the Equipment; (f)
change its name or address from that set forth above unless it shall have given
Secured Party no less than thirty (30) days prior written notice thereof; (g)
sell any shares of its capital stock or transfer any ownership interest in the
Debtor to any person, persons, entity or entities (whether in one single
transaction or in multiple transactions) which results in a transfer of a
majority interest in the ownership and/or the control of the Debtor from the
person, persons, entity or entities who hold ownership and/or control of the
Debtor as of the date of this Agreement without the prior written consent of
Secured Party, which will not be unreasonably withheld; or (h),consolidate with
or merge into or with any other entity, or purchase or otherwise acquire all or
substantially all of the assets or stock or other ownership interest of any
person or entity without the prior written consent of Secured Party, which will
not be unreasonably withheld, provided that Debtor is the surviving entity of
such merger or consolidation and further provided that such merger,
consolidation or acquisition, as the case may be, is not likely to have a
material adverse effect on Debtor's financial or business condition (it being
understood that following Debtor's request for Secured Party's consent to a
proposed merger, consolidation or acquisition Debtor shall promptly provide such
business and financial information and documentation regarding the proposed
merger, consolidation or acquisition as Secured Party may reasonably request,
and that if Secured Party does not grant its written consent to such request
within ten (10) days after Debtor has provided to Secured Party all such
requested information and documentation, then Debtor may pre-pay this Agreement
by paying to Secured Party an amount equal to the Prepayment Amount calculated
as set forth in the prepayment agreement executed by Secured Party and Debtor
the prepayment agreement executed by Secured Party and Debtor. or (i) sell,
transfer, lease or otherwise dispose of all or substantially all of Debtor's
assets to any person or entity.
10. EQUIPMENT PERSONALTY. The Equipment is, and shall at all times be and
remain, personal property notwithstanding that the Equipment or any part thereof
may now be, or hereafter become, in any manner affixed or attached to, or
imbedded in, or permanently resting upon, real property or attached in any
manner to real property by cement, plaster, nails, bolts, screws or otherwise.
If requested by Secured Party with respect to any item of Equipment, Debtor will
obtain and deliver to Secured Party waivers of interest or liens in recordable
form, satisfactory to Secured Party, from all persons claiming any interest in
the real property on which such item of Equipment is installed or located.
11. EVENTS OF DEFAULT AND REMEDIES. If any one or more of the following events
("Events of Default") shall occur:
(a) Debtor shall fail to make any payment in respect of the
Liabilities when due; or
(b) any certification, statement, representation, warranty or financial
report or statement heretofore or hereafter furnished by or on behalf of Debtor
or any guarantor of any or all of the Liabilities proves to have been false in
any material respect at the time as of which the facts therein set forth were
stated or certified or has omitted any material contingent or unliquidated
liability or claim against Debtor or any such guarantor; or
(c) Debtor or any guarantor of any or all of the Liabilities shall fail
to perform or observe any covenant, condition or agreement to be performed or
observed by it hereunder or under any guaranty agreement; or
(d) Debtor or any guarantor of any or all of the Liabilities shall
be in breach of or in default in the payment and
performance of any obligation relating to any of the Other Liabilities; or
(e) Debtor or any guarantor of any of Debtor's obligations
hereunder shall be in breach of or in default in the payment or performance of
any obligation owing to any bank, lender, lessor or financial institution,
howsoever arising, present or future, contracted for or acquired, and whether
joint, several, absolute, contingent, secured, unsecured, matured or unmatured;
or
(f) Debtor or any guarantor of any or all of the Liabilities shall
cease doing business as a going concern, make an assignment for the benefit of
creditors, admit in writing its inability to pay its debts as they become due,
file a petition commencing a voluntary case under any chapter of Title 11 of the
United States Code entitled "Bankruptcy" (the "Bankruptcy Code"), be adjudicated
an insolvent, file a petition seeking for itself any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
arrangement under any present or future statute, law, rule or regulation or file
an answer admitting the material allegations of a petition filed against it in
any such proceeding, consent to the filing of such a petition or acquiescence in
the appointment of a trustee, receiver or liquidator of it or of all or any part
of its assets or properties, or take any action looking to its dissolution or
liquidation; or
(g) an order for relief against Debtor or any guarantor of any or
all of the Liabilities shall have been entered under any chapter of the
Bankruptcy Code or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a petition seeking
reorganization, arrangement, readjustment, liquidation, dissolution or similar
relief against Debtor or any guarantor of any or all of the Liabilities under
any present or future statute, law, rule or regulation, or within thirty (30)
days after the appointment without Debtor's or such guarantor's consent or
acquiescence of any trustee, receiver or liquidator of it or such guarantor or
of all or any part of its or such guarantor's assets and properties, such
appointment shall not be vacated, or an order, judgment or decree shall be
entered against Debtor or such guarantor by a court of competent jurisdiction
and shall continue in effect for any period of ten (10) consecutive days without
a stay of execution, or any execution or writ or process shall be issued under
any action or proceeding against Debtor whereby the Equipment or its use may be
taken or restrained;
then and in any such event, Secured Party may, at the sole discretion of Secured
Party, without notice or demand and without limitation of any rights and
remedies of Secured Party under the Uniform Commercial Code, take any one or
more of the following steps:
(1) Declare all of the Time Balance to be due and payable, whereupon
the same shall forthwith mature and become due and payable as provided for in
paragraph 16 below, provided, however, upon the occurrence of any of the events
specified in subparagraphs (f) and (g) above, all sums as specified in this
clause (1) shall immediately be due and payable without notice to Debtor (the
date on which Secured Party declares all of the Time Balance to be due and
payable is hereinafter referred to as the "Declaration Date");
(2) proceed to protect and enforce its rights by suit in equity, action
at law or other appropriate proceedings, whether for the specific performance of
any agreement contained herein, or for an injunction against a violation of any
of the terms hereof, or in aid of the exercise of any other right, power or
remedy granted hereby or by law, equity or otherwise; and
(3) at any time and from time to time, with or without judicial process
and the aid or assistance of others, enter upon any premises wherein any of the
Equipment may be located and, without resistance or interference by Debtor, take
possession of the Equipment on any such premises, and require Debtor to assemble
and make available to Secured Party at the expense of Debtor any part or all of
the Equipment at any place or time designated by Secured Party; and remove any
part or all of the Equipment from any premises wherein the same may be located
for the purpose of effecting the sale or other disposition thereof; and sell,
resell, lease, assign and deliver, grant options for or otherwise dispose of any
or all of the Equipment in its then condition or following any commercially
reasonable preparation or processing, at public or private sale or proceedings,
by one or more contracts, in one or more parcels, at the same or different
times, with or without having the Equipment at the place of sale or other
disposition, for cash and/or credit, and upon any terms, at such place(s) and
time(s) and to such persons, firms or corporations as Secured Party shall deem
best, all without demand for performance or any notice or advertisement
whatsoever, except that Debtor shall be given five (5) business days' written
notice of the place and time of any public sale or of the time after which any
private sale or other intended disposition is to be made, which notice Debtor
hereby agrees shall be deemed reasonable notice thereof. If any of the Equipment
is sold by Secured Party upon credit or for future delivery, Secured Party shall
not be liable for the failure of the purchaser to pay for same and in such event
Secured Party may resell such Equipment. Secured Party may buy any part or all
of the Equipment at any public sale and if any part or all of the Equipment is
of a type customarily sold in a recognized market or which is the subject of
widely distributed standard price quotations Secured Party may buy at private
sale and may make payment therefor by application of all or a part of the
Liabilities and of all or a part of any Other Liabilities. Any personalty in or
attached to the Equipment when repossessed may be held by Secured Party without
any liability arising with respect thereto, and any and all claims in connection
with such personalty shall be deemed to have been waived unless notice of such
claim is made by certified or registered mail upon Secured Party within three
business days after repossession.
Secured Party shall apply the cash proceeds from any sale or other disposition
of the Equipment first, to the reasonable expenses of re-taking, holding,
preparing for sale, selling, leasing and the like, and to reasonable attorneys'
fees and other expenses which are to be paid or reimbursed to Secured Party
pursuant hereto, and second, to all outstanding portions of the Liabilities and
to any Other Liabilities in such order as Secured Party may elect, and third,
any surplus to Debtor, subject to any duty of Secured Party imposed by law to
the holder of any subordinate security interest in the Equipment known to
Secured Party; provided however, that Debtor shall remain liable with respect to
unpaid portions of the Liabilities owing by it and will pay Secured Party on
demand any deficiency remaining with interest as provided for in paragraph 16
below.
12. SECURED PARTY'S RIGHT TO PERFORM FOR DEBTOR. If Debtor fails to perform or
comply with any of its agreements contained herein Secured Party may perform or
comply with such agreement and the amount of any payments and expenses incurred
by Secured Party in connection with such performance or compliance, together
with interest thereon at the rate provided for in paragraph 16 below, shall be
deemed a part of the Liabilities and shall be payable by Debtor upon demand.
13. FURTHER ASSURANCES. Debtor will cooperate with Secured Party for the purpose
of protecting the interests of Secured Party in the Equipment, including,
without limitation, the execution of all Uniform Commercial Code financing
statements requested by Secured Party. Secured Party and any assignee of Secured
Party are each authorized to the extent permitted by applicable law to file one
or more Uniform Commercial Code financing statements disclosing any security
interest in the Equipment without the signature of Debtor or signed by Secured
Party or any assignee of Secured Party as attorney-in-fact for Debtor. Debtor
will pay all costs of filing any financing, continuation or termination
statements with respect to this Agreement, including, without limitation, any
documentary stamp taxes relating thereto. Debtor will do whatever may be
necessary to have a statement of the interest of Secured Party and of any
assignee of Secured Party in the Equipment noted on any certificate of title
relating to the Equipment and will deposit said certificate with Secured Party
or such assignee. Debtor shall execute and deliver to Secured Party, upon
request, such other instruments and assurances as Secured Party deems necessary
or advisable for the implementation, effectuation, confirmation or perfection of
this Agreement and any rights of Secured Party hereunder.
14. NON-WAIVER; ETC. No course of dealing by Secured Party or Debtor or any
delay or omission on the part of Secured Party in exercising any rights
hereunder shall operate as a waiver of any rights of Secured Party. No waiver or
consent shall be binding upon Secured Party unless it is in writing and signed
by Secured Party. A waiver on any one occasion shall not be construed as a bar
to or a waiver of any right and/or remedy on any future occasion. To the extent
permitted by applicable law, Debtor hereby waives the benefit and advantage of,
and covenants not to assert against Secured Party, any valuation, inquisition,
stay, appraisement, extension or redemption laws now existing or which may
hereafter exist which, but for this provision, might be applicable to any sale
or other disposition made under the judgment, order or decree of any court or
under the powers of sale and other disposition conferred by this Agreement or
otherwise. Debtor hereby waives any right to a jury trial with respect to any
matter arising under or in connection with this Agreement.
15. ENTIRE AGREEMENT; SEVERABILITY; ETC. This Agreement constitutes the entire
agreement between Secured Party and Debtor and all conversations, agreements and
representations relating to this Agreement or to the Equipment are integrated
herein. If any provision hereof or any remedy herein provided for shall be
invalid under any applicable law, such provision or remedy shall be inapplicable
and deemed omitted, but the remaining provisions and remedies hereunder shall be
given effect in accordance with the intent hereof. Neither this Agreement nor
any term hereof may be changed, discharged, terminated or waived except in an
instrument in writing signed by the party against which enforcement of the
change, discharge, termination or waiver is sought. This Agreement shall in all
respects be governed by and construed in accordance with the internal laws of
the State of New York, including all matters of construction, validity and
performance, and shall be deemed a purchase money security agreement within the
meaning of the Uniform Commercial Code. The captions in this Agreement are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof. This Agreement shall inure to the benefit of and be binding
upon Secured Party and Debtor and their respective successors and assigns,
subject, however, to the limitations set forth in this Agreement with respect to
Debtor's assignment hereof. No right or remedy referred to in this Agreement is
intended to be exclusive but each shall be cumulative and in addition to any
other right or remedy referred to in this Agreement or otherwise available to
Secured Party at law or in equity, and shall be in addition to the provisions
contained in any instrument referred to herein and any instrument supplemental
hereto. Debtor shall be liable for all costs and expenses, including attorneys'
fees and disbursements, incurred by reason of the occurrence of any Event of
Default or the exercise of Secured Party's remedies with respect thereto. Time
is of the essence with respect to this Agreement and all of its provision.
16. PREPAYMENT; REBATE; INTEREST. Except for (a) the installment payments of the
Time Balance as set forth in the Schedule of Obligations or (b) as permitted by
the prepayment agreement executed by Secured Party and Debtor, the Debtor may
not prepay the Time Balance, in whole or in part, at any time. In the event
Secured Party declares all of the Time Balance to be due and payable pursuant to
clause (1) of paragraph 11 above as a result of an Event of Default under
Section 11 (a) hereof, Debtor shall pay to Secured Party an amount equal to the
sum of (a) all accrued and unpaid amounts as of the Declaration Date plus
interest thereon, and (b) the present value of all future installments set forth
in this Agreement over the remaining unexpired term of this Agreement discounted
to present value using a discount rate of five percent (5%), provided that the
amount of interest earned by Secured Party computed as aforesaid shall not
exceed the highest amount permitted by applicable law. In the event Secured
Party declares all of the Time Balance to be due and payable pursuant to clause
(1) of paragraph 11 above and there has not occurred an Event of Default under
Section 11 (a) hereof, Debtor shall pay to Secured Party an amount equal to the
Prepayment Amount calculated as set forth in the prepayment agreement executed
by Secured Party and Debtor. The Time Balance as reduced to present value or
calculated in accordance with the prepayment agreement in accordance with the
preceding sentences, as applicable, shall in either case bear interest from and
after the Declaration Date, and all other Liabilities due and payable under this
Agreement (including past due installments) shall bear interest from and after
their respective due dates, at the lesser of 1.5% per month or the highest rate
permitted by applicable law, provided, however, that Debtor shall have no
obligation to pay any interest on interest except to the extent permitted by
applicable law.
17. CONSENT TO JURISDICTION. Debtor hereby irrevocably consents to the
jurisdiction of the courts of the State of New York and of any federal court
located in such state in connection with any action or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby. Any such
action or proceeding will be maintained in the United States District Court for
the Southern District of New York or in any court of the State of New York
located in the County of New York and Debtor waives any objections based upon
venue or forum non conveniens in connection with any such action or proceeding.
Debtor consents that process in any such action or proceeding may be served upon
it by registered mail directed to Debtor at its address set forth at the head of
this Agreement or in any other manner permitted by applicable law or rules of
court. Debtor hereby irrevocably appoints Secretary of State of the State of New
York as its agent to receive service of process in any such action or
proceeding.
18. NOTICES. Notice hereunder shall be deemed given if served personally or by
certified or registered mail, return receipt requested, to Secured Party and
Debtor at their respective addresses set forth at the head of this Agreement.
Any party hereto may from to time by written notice to the other change the
address to which notices are to be sent to such party. A copy of any notice sent
by Debtor to Secured Party shall be concurrently sent by Debtor to any assignee
of Secured Party of which Debtor has notice.
The Debtor agrees to all the provisions set forth above. This Agreement
is executed pursuant to due authorization. DEBTOR ACKNOWLEDGES RECEIPT OF A
SIGNED TRUE COPY OF THIS AGREEMENT.
Date July 19, 2001 Accepted on July 31, 2001
INFOCROSSING, INC. (Debtor) XXXXX FARGO EQUIPMENT FINANCE, INC.
(Signature of Proprietor or (Secured Party)
name of Corporation or
Partnership)
By Xxxx Xxxxxxxx By Xxxxx Xxxx
---------------------- ----------------------------
Its Chairman Its Asst. Vice President
---------------------- ----------------------------
(if Corporation, President or Vice
President should sign and give
official title; if Partnership, state
partner; if L.L.C., state member or manger)
ETG, INC. (Debtor)
(Signature of Proprietor or name
of Corporation or Partnership)
By Xxxx Xxxxxxxx
-----------------------
Its Chairman
-----------------------
(if Corporation, President or Vice
President should sign and give
official title; if Partnership, state
partner; if L.L.C., state member or manger)
85043- Master Loan and Security Agreement
RIDER TO MASTER LOAN AND SECURITY AGREEMENT NO. 85043 DATED JULY 19, 2001
BETWEEN XXXXX FARGO EQUIPMENT FINANCE, INC. ("WFEFI"), AND INFOCROSSING, INC.
AND ETG, INC., (HEREIN TOGETHER REFERRED TO AS THE
"OBLIGORS") (THIS "AGREEMENTS")
Notwithstanding anything to the contrary, Infocrossing, Inc. and ETG, Inc.,
Obligors and WFEFI hereby agree as follows:
Obligors are and shall remain jointly and severally liable for all duties,
liabilities and obligations of Debtor under the Agreement as if each of them was
originally named as Debtor therein. Each of them shall be fully liable for any
default or Event of Default by either one or both of them. Each such Debtor
agrees that its liability will not be affected by the voidability of the
Agreement or cessation of liability under the agreement as to the other, for any
reason whatsoever. Moreover, neither Debtor's liability will be affected by any
modification or amendment to the Agreement which is based upon or relates to
Equipment at any location controlled by the other, including any change in rent
or other payments, the addition, elimination or substitution of Equipment at any
location, termination or assignment of the Agreement as, or of the payments due
with respect, to any such Equipment, WFEFI's consent to such other Debtor's
assignment of this Agreement, the taking, holding, exchanging, enforcing,
waiving, releasing or application of security for the Agreement, or the release
of the other Debtor from liability under the Agreement. Each Debtor also waives
any right of subrogation as to the payments made under the Agreement or any
right of subrogation as to payments made under the Agreement or any right to
participate in any security, or any right to direct WFEFI in WFEFI's pursuit of
remedies following a default. Each Debtor has and shall maintain adequate means
to apprise itself as to the financial condition of the other Debtor and waives
any duty of WFEFI to advise it of any such matters. Each Debtor acknowledges for
itself that it has requested that WFEFI fund this transaction for its own
benefit and that it will gain financial benefit from this transaction, from the
availability of the Equipment for use by it and the other Debtor, and from the
affairs of the other Debtor.
In witness whereof, Debtor and WFEFI have executed this rider as of the 19th day
of July 2001.
INFOCROSSING, INC. (Debtor) ETG, INC. (Debtor)
By: Xxxx Xxxxxxxx By: Xxxx Xxxxxxxx
----------------------- --------------------------
Title: Chairman Title: Chairman
----------------------- --------------------------
XXXXX FARGO EQUIPMENT FINANCE, INC.
(Secured Party)
By: Xxxxx Xxxx
--------------------------
Title: Asst. Vice President
--------------------------
85043-Rider - Joint and Several Obligors
RIDER TO MASTER LOAN AND SECURITY AGREEMENT NO. 85043
DATED JULY 19, 2001 (THE "AGREEMENT")
BETWEEN INFOCROSSING, INC AND ETG, INC (REFERRED TO HEREIN JOINTLY AND
SEVERALLY AS "OBLIGOR") AND
XXXXX FARGO EQUIPMENT FINANCE, INC. (REFERRED TO HEREIN AS "OBLIGEE")
1. It shall be an Event of Default under the Agreement if at any time:
(a) Obligor's Unrestricted Cash is less than Thirteen Million Dollars
($13,000,000.00.) or
(b) Obligor or any guarantor of any or all of the Liabilities
shall suffer an adverse material change in its financial condition
as compared to such condition as at the date of the Agreement
As used herein:
Unrestricted Cash means the minimum cash balance on Obligor's balance
sheet in the form of cash or readily marketable securities which has
not been pledged, encumbered, restricted or otherwise assigned to or by
any third party.
All other accounting terms not defined herein shall have the meanings
ascribed to them according to generally accepted accounting principles,
consistently applied.
2. In order to enable Obligee to review Obligor's compliance with the foregoing
terms, conditions and covenants, Obligor shall, (a) within ten (10) days of the
end of each calendar month, provide Obligee with an affidavit from the chief
financial officer for Obligor in a form required by Obligee, stating that the
Obligor has complied and is then in compliance with the covenants set forth
above, or in the event of any non-compliance, stating the extent of any such
non-compliance, and (b) within twenty (20) days of the end of each calendar
month, provide Obligee with a true and correct copy of a balance sheet for
Obligor as of the end of such month.
3. It shall be an Event of Default if Obligor fails to be in compliance with any
of the provisions set forth hereinabove. In such event, Obligor shall within ten
(10) days of the occurrence of such failure, either (a) pay off the balances due
under all Loan Schedules by paying to Obligee good funds by wire transfer, bank
check or certified check, an amount equal to the prepayment amount set forth in
the prepayment agreement executed by Obligor with regard to the Agreement, or
(b) deliver to Obligee an irrevocable standby letter of credit issued by a
recognized financial institution acceptable to Obligee in an amount equal to the
sum of the present value of the then remaining payments due under the Agreement
and all then existing Loan Schedules during the remaining terms thereof,
discounted at a rate equal to five percent (5%), which letter of credit shall be
substantially in the form annexed hereto as Exhibit 1 (the "LC"). Such LC shall
secure the payment of all liabilities under the Agreement and all Loan Schedules
thereto and performance of all other obligations of Obligor to Obligee and its
assigns under the Agreement. Once an LC is required or posted pursuant to this
Section 3, it shall be an Event of Default under the Agreement if at any time
during which any amounts remain due under the Agreement or any Loan Schedule,
the LC is not in full force and effect or if Obligee receives notice that the LC
will not be replaced or renewed.
4. Obligor acknowledges that it has agreed to deliver the LC in strict
compliance with the terms hereof in order to induce Obligee to enter into the
Agreement and Loan Schedules thereunder, and that Obligee would not enter into
the Agreement or Loan Schedules except in reliance upon Obligor's agreement to
strictly comply with the terms hereof. Time is of the essence with regard to
Obligor's compliance with the terms hereof. Obligor agrees that Obligee shall be
entitled to the remedy of specific performance to compel Obligor to deliver the
LC in accordance herewith as Obligor's financial condition is such that if there
is a failure to comply with the Unrestricted Cash covenant and failure to
deliver the LC as agreed, Obligee's other remedies will be insufficient.
5. Provided that no additional Event of Default shall have occurred subsequent
to the posting of the LC as aforesaid;
(a) Obligee will permit the LC to be reduced semi-annually to an
amount equal to the sum of the present value of the then
remaining payments due under the Agreement and all then
existing Loan Schedules during the remaining terms thereof
as of the end of each such semi-annual period, discounted
at a rate equal to five percent (5%), it being agreed that
the costs of reducing the LC in accordance with this
section shall be the sole responsibility of Obligor, and
(b) if Obligee returns to compliance with the breached
covenant that resulted in the posting of the LC, Obligor
may make written request to Obligee for the reduction of
the amount of the LC and Obligee in its sole discretion
may consider whether or not it will reduce the amount of
the LC, and
6. Provided that no Event of Default shall have occurred under the Agreement,
once per year after Obligor has delivered to Obligee its year end financial
statements for the preceding fiscal year audited by its independent accounting
firm in accordance with the requirements of the Agreement, Obligor may make
written request for the reduction of the Unrestricted Cash covenant or for the
replacement of the Unrestricted Cash covenant with other financial covenants
acceptable to Obligee. Obligee in its sole discretion may consider whether or
not it will reduce the amount of the Unrestricted Cash covenant or replace the
Unrestricted Cash covenant with other financial covenants acceptable to Obligee.
If Obligee does not consent to a reduction of the Unrestricted Cash covenant or
the replacement of the Unrestricted Cash covenant with other financial covenants
if requested to do so by Obligor, Obligor may elect to prepay the Agreement as
permitted by the prepayment agreement executed by Obligor. Obligee shall have no
other rights or claims in connection with any refusal of Obligee to give such
consent and shall remain fully obligated thereunder unless it pays off the
Agreement in accordance with the prepayment agreement.
7. In addition to the other information and documentation to be provided by
Obligor under the Agreement, Obligor shall deliver to Obligee copies of all
revised and additional financial and business projections regarding Obligor, as
and when produced.
8. All other terms and conditions of the Agreement and any schedules and other
agreements incorporating the terms thereof or made in connection therewith
(together, "Related Agreements") shall remain in full force and effect. In the
event that there is any conflict between the terms and conditions of this Rider
and the terms and conditions of the Agreement or any Related Agreements, the
terms and conditions of this Rider shall govern. All of the terms, conditions
and provisions hereunder shall be deemed to be an indivisible part of and
supplement to the Agreement and any schedules which incorporate the terms
thereof. Capitalized terms used in this Rider but not defined xxxxx shall have
the meaning ascribed to them in the Agreement.
INFOCROSSING, INC. (Debtor) ETG, INC. (Debtor)
By: Xxxx Xxxxxxxx By: Xxxx Xxxxxxxx
----------------------- ----------------------
Title: Chairman Title: Chairman
----------------------- ----------------------
Date: July 19, 2001 Date: July 19, 2001
----------------------- ----------------------
XXXXX FARGO EQUIPMENT FINANCE, INC.
By: Xxxxx Xxxx
-----------------------
Title: Asst. Vice President
-----------------------
Date: July 31, 2001
-----------------------
Rider - Financial Covenants.doc
EXHIBIT 1
[Letterhead of Issuing Bank]
[LETTERHEAD OF BANK]
IRREVOCABLE LETTER OF CREDIT
Date: ________
Letter of Credit No.: _____
Beneficiary: Xxxxx Fargo Equipment Finance, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention:
Ladies and Gentlemen:
At the request and for the account of ______________________ (the
"Account Party") we hereby establish our irrevocable Letter of Credit in your
favor in the amount of __________________________ United States Dollars (U.S.
$_____________) available with us by sight payment of your draft(s) drawn on us
at sight accompanied by your signed and dated statement containing the wording
below of (1) or (2) or (3) alone or (1) and (2) combined:
(1) "This demand covers amounts payable to Xxxxx Fargo Equipment
Finance, Inc. ("WFEF") from ________________________ (the
"Obligor") under or in connection with one or more agreements
between ________________ and the Obligor as such agreements
may be amended from time to time."
AND/OR
(2) "This demand covers amounts paid to Xxxxx Fargo Equipment
Finance, Inc. ("WFEF") by ___________________________ (the
"Obligor") under or in connection with one or more agreements
between WFEF and the Obligor as such agreements may be amended
from time to time. The amounts covered by this demand were
paid to WFEF within 90 calendar days before the Obligor made a
general assignment for the benefit of creditors or a petition
was filed by or against the Obligor under the United States
Bankruptcy Code or under similar state or federal law relating
to bankruptcy, reorganization or other relief for debtors."
OR
(3) "Xxxxx Fargo Equipment Finance, Inc. ("WFEF") has received
notice that Letter of Credit No. ____ issued by
___________________ will not be extended beyond its current
expiration date. This demand covers amounts which in the
future will or may be payable to WFEF by
________________________________ (the "Obligor") under or in
connection with an agreement dated __________, 200_ between
WFEF and the Obligor (the "Agreement"), as well as amounts
which have been paid to WFEF by the Obligor under or in
connection with the Agreement within the 90 calendar days
preceding the date of this demand."
Each draft presented hereunder must be marked "DRAWN UNDER LETTER OF CREDIT NO.
_______ ISSUED BY (BANK)"
Partial and multiple drawings are permitted under this Letter of
Credit.
This Letter of Credit expires at our above-specified office on
_______________, but shall be automatically extended thereafter,
without written amendment, to _____________ in each succeeding calendar
year unless you have received at your address above written notice from
us sent by registered mail or express courier that we elect not to
renew this Letter of Credit beyond the date specified in such notice
(the "Final Expiration Date"), which Final Expiration Date will be
_______________ or any subsequent ______________ and shall be at least
60 calendar days after the date you receive such notice.
The Final Expiration Date shall be automatically extended to that
Banking Day (a day on which we are open at our above-specified office
to conduct our letter of credit business) which is 10 Banking Days
after the Final Expiration Date if (1) the Final Expiration Date falls
on a day which is not a Banking Day for any reason referred to in
Article 17 of the UCP (as defined below) or (2) the Final Expiration
Date falls on a day which is not a Banking Day or any reason other than
those referred to in such Article 17 and the next day which would
normally be a Banking Day is not a Banking Day for any reason referred
to in Article 17.
Except as otherwise herein provided, this Letter of Credit is subject
to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500, (the
"UCP") and engages us in accordance with the terms thereof.
All bank charges in connection with this Letter of Credit are for the account of
the Account Party.
Very truly yours,
_____________________ (BANK)
By: ___________________
Title:__________________
COMPLIANCE CERTIFICATE
I, , hereby certify that I am the duly
------------------------
elected, qualified and presently serving Chief Financial Officer of
____________________, a ___________________ duly organized and existing under
and by virtue of the laws of the State of __________________________
(the "Company") and in connection with
No. ______________ dated ___________________ , 2001
(the "Agreement"), by and between the Company, as ____________ and Xxxxx
Fargo Equipment Finance, Inc., as ____________, I do
hereby further certify as follows:
1. That this Certificate accurately represents the financial condition of
the Company determined in accordance with Generally Accepted Accounting
Principles for the _________ ending _____________ (the "Fiscal
Period"). All capitalized terms used herein but not defined herein
shall have the meanings ascribed to them in the Agreement and in the
Riders thereto.
2. That the amount set forth below as Available Cash is the true and
accurate amount of Available Cash of the Company for
the Fiscal Period:
AVAILABLE CASH REQUIRED AVAILABLE CASH
$ $
------------------------ -----------------------
3. The Master Service Agreement between the Company and Customer remains
in full force and effect and Customer is current in making payment
thereunder, having most recently paid to Obligor the sum of
$________________ on _____________________. (or if the foregoing is not
true, set forth true facts and status of signed or pending Replacement
Contract, including name of new customer.)
4. That the Company is in compliance /non-compliance
---------- -----------
with the Unrestricted Cash covenant and all other
terms and conditions of the Agreement.
.
IN WITNESS WHEREOF, the undersigned Chief Financial Officer has
executed this Certificate this day of
----------- ------------------
, 2001.
Name:
---------------------------------------
Chief Financial Officer
LOAN SCHEDULE NO. 700 UNDER
MASTER LOAN AND SECURITY AGREEMENT NO. 85043
Pursuant to a Master Loan and Security Agreement No. 85043 dated July 19, 2001
("Master Agreement") between Xxxxx Fargo Equipment Finance, Inc. ("Secured
Party") having a place of business at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000 and Infocrossing, Inc. ("Debtor") a Delaware corporation and ETG, Inc.
("Debtor") a Delaware corporation both having a place of business at 0 XXXXXXXX
XXXXXXX XXXXXX, XXXXXX, XX 00000, Debtor hereby promises to pay to the order of
Secured Party the Loan Amount set forth in the schedule of obligations below, in
installments in the amounts and at the times specified below. This Loan Schedule
incorporates the terms and conditions of the Master Agreement and constitutes an
Agreement as referred to in the Master Agreement. Terms used herein which are
defined in the Master Agreement shall have the meanings as so defined.
The Equipment in which Debtor grants to Secured Party a security interest in
accordance with the provisions of the Master Agreement is set forth and
described in Schedule A annexed hereto and made a part hereof. Said Equipment
shall be located at 0 XXXXXXXX XXXXXXX XXXXXX, XXXXXX, XX 00000 at all times
until all payments hereunder have been paid in full.
--------------------------------------------------------------------------------
SCHEDULE OF OBLIGATIONS
--------------------------------------------------------------------------------
Loan Amount $ 3,000,000.00
Documentation Fees $ 0.00
Interest $ 615,335.64
Time Balance $ 3,615,335.64
Term of Loan Thirty-six (36) months
Number of Payments Thirty-six (36)
Payments Payable Monthly
Amount of Each Payment $ 100,425.99
Debtor agrees to pay the Time Balance to Secured Party in thirty-six
(36) installments payment in the amount of $100,425.99 due and payable on the
last day of each month, commencing on August 31, 2001 and continuing on the
like date of each month thereafter through and including July 31, 2004.
The Debtor agrees to all the provisions set forth above. This Agreement
is executed pursuant to due authorization. DEBTOR ACKNOWLEDGES RECEIPT OF A
SIGNED TRUE COPY OF THIS AGREEMENT.
Date: July 19, 2001 Accepted on July 31, 2001
INFOCROSSING, INC. (Debtor) XXXXX FARGO EQUIPMENT FINANCE, INC.
(Signature of Proprietor or (Secured Party)
name of Corporation or
Partnership)
By Xxxx Xxxxxxxx By Xxxxx Xxxx
---------------------- ----------------------------
Its Chairman Its Asst. Vice President
---------------------- ----------------------------
(if Corporation, President or Vice
President should sign and give
official title; if Partnership, state
partner; if L.L.C., state member or manger)
ETG, INC. (Debtor)
(Signature of Proprietor or name
of Corporation or Partnership)
By Xxxx Xxxxxxxx
-----------------------
Its Chairman
-----------------------
(if Corporation, President or Vice
President should sign and give
official title; if Partnership, state
partner; if L.L.C., state member or manger)
