THIS DEBENTURE HAS BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAS NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY
APPLICABLE STATE SECURITIES LAWS. THIS DEBENTURE MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED OR PLEDGED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR SUCH APPLICABLE STATE SECURITIES LAWS, OR IF THE
PROPOSED TRANSFER MAY BE EFFECTED WITHOUT REGISTRATION UNDER THE SECURITIES ACT
OR REGISTRATION OR QUALIFICATION UNDER APPLICABLE STATE SECURITIES LAWS.
THIS DEBENTURE IS SUBJECT TO THE TERMS AND PROVISIONS OF THE SECURITIES
PURCHASE AGREEMENT AMONG INFOCROSSING, INC., AND XXXXXX, XXXXXXX STRATEGIC
PARTNERS FUND, L.P., STRATEGIC ASSOCIATES, L.P., CAMDEN PARTNERS STRATEGIC FUND
II-A, L.P., AND CAMDEN PARTNERS STRATEGIC FUND II-B, L.P., DATED AS OF FEBRUARY
1, 2002, AS AMENDED FROM TIME TO TIME, AND THE HOLDERS OF THIS DEBENTURE ARE
ENTITLED TO THE BENEFITS THEREOF.
INFOCROSSING, INC.
12% SENIOR SUBORDINATED DEBENTURE
$____________ February 1, 2002
SECTION 1. GENERAL; INTEREST.
1.1 General. For value received, INFOCROSSING, INC., a Delaware corporation
(the "Company") (the Company, including any successors of the Company (by way of
merger, consolidation, sale or otherwise), the "Payor"), hereby promises to pay
to the order of Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P. or such payee's
successors or assigns (the "Payee"), $____________ or such lesser principal
amount, plus any accrued and unpaid interest thereon and all other obligations
arising hereunder (the "Indebtedness"), which may be outstanding hereunder on
February 1, 2005 (the "Maturity Date"), provided, however, that the Maturity
Date may be extended until February 1, 2006 at the sole option of the Payor upon
written notice to the Payee delivered at least 60 days before the Maturity Date
as in effect prior to giving effect to such extension or such earlier date as
all obligations under the Debenture have been paid in full provided, further,
that the Payor may not extend the Maturity Date if a Default has occurred. This
Debenture is one of the Debentures (each a "Debenture" and collectively, the
"Debentures") issued pursuant to that certain Securities Purchase Agreement,
dated as of February 1, 2002 (the "Purchase Agreement"), by and between the
Payor, Xxxxxx Xxxxxxx Strategic Partners Fund, L.P., a Delaware limited
partnership ("CW"), Strategic Associates, L.P., a Delaware limited partnership
("SA"), Camden Partners Strategic Fund II-A, L.P., a Delaware limited
partnership ("Camden II-A"), and Camden Partners Strategic Fund II-B, L.P., a
Delaware limited partnership ("Camden II-B" and together with CW, SA and Camden
II-A, each a "Payee" and collectively, the "Payees"). The unpaid principal
amount of this Debenture and the accrued and unpaid interest thereon, shall be
payable in U.S. Dollars by wire transfer of immediately available funds to the
account of the Payee or by certified or official bank check
payable to the Payee mailed to the Payee at the address of the Payee as set
forth on the records of the Payor or such other address as shall be designated
in writing by the Payee to the Payor. Capitalized terms used and not otherwise
defined herein have the meanings ascribed thereto in the Purchase Agreement.
1.2 Guaranty. This Debenture is unconditionally guaranteed by the
Subsidiaries of the Payor (the "Guarantors"), pursuant to a Guaranty (each, a
"Guaranty") executed and delivered on the date hereof by each Subsidiary of the
Payor, to which reference is made for a statement of the nature and extent of
the benefits and security for this Debenture afforded thereby and the rights of
the holder of this Debenture and the Guarantor in respect hereof.
1.3 Interest. The Payor promises to pay interest on the outstanding
principal amount of this Debenture at the rate of (i) 12% per annum for the
period commencing on the date hereof (the "Closing Date") and ending on February
1, 2004, (ii) 13% per annum for the period commencing on February 1, 2004 and
ending on the Maturity Date or such earlier date as all obligations under this
Debenture have been paid in full, and (iii), if the Maturity Date is extended,
14% per annum commencing on February 1, 2005 and ending on the Maturity Date as
so extended or such earlier date as all obligations under the Debenture have
been paid in full (the "Interest Rate"); provided, however, that upon the
occurrence of an Event of Default, the Payor promises to pay interest on the
outstanding principal amount of this Debenture at the rate of seventeen percent
(17%) per annum (or, if less, to the maximum rate allowed under applicable law)
("Default Interest") from the date that such Event of Default has occurred and
is continuing until the date such Event of Default is cured, waived in writing
by the Payee or all Indebtedness under this Debenture has been paid in full. The
Payor shall pay interest (the "Interest Amount") semi-annually in arrears on
each July 31 and January 31 of each year or, if any such date shall not be a
Business Day, on the next succeeding Business Day to occur after such date (each
date upon which interest shall be so payable, an "Interest Payment Date").
Interest shall be payable, at the option of the Payor, in (i) cash in U.S.
Dollars by wire transfer to Payee of immediately available funds equal to such
Interest Amount, (ii) additional Debentures in an aggregate principal amount
equal to the aggregate Interest Amount due to the Payee on such Interest Payment
Date ("PIK Debentures") with Additional Warrants (as such term is defined in
Section 2 below), or (iii) a combination of cash and PIK Debentures with
Additional Warrants. The Payor shall signify its election to make payment of an
Interest Amount in the form of cash or PIK Debentures with Additional Warrants,
or a combination of cash and PIK Debentures with Additional Warrants, by
notifying the Payee of such election at least twenty (20) days prior to each
Interest Payment Date. If the Payor fails to give notice under the preceding
sentence, the payment shall be made in cash. Interest on this Debenture shall
accrue daily, and compound semi-annually, from the date of issuance until the
date of repayment in full of the principal amount of this Debenture, plus any
accrued and unpaid interest thereon. Interest shall be computed on the basis of
a 365-day year and the actual number of days elapsed. Subject to Applicable Law,
any interest that shall accrue on Default Interest on this Debenture and shall
not have been paid in full on or before the next Interest Payment Date to occur
after the Interest Payment Date on which the Default Interest became due and
payable shall itself be deemed to be overdue interest on this Debenture. PIK
Debentures shall contain terms and conditions (including rate of interest)
substantially similar (except for the date of issuance and aggregate principal
amount thereof) as those in this Debenture. "Business Day" shall mean any other
day
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other than a Saturday, a Sunday or a day on which banking institutions in New
York City, New York are not required to be open.
SECTION 2. WARRANT.
As part of the consideration for the loan evidenced by this Debenture, the
Payor has authorized and issued, initially, warrants to purchase (the "Initial
Warrants") 2 million shares of the Common Stock, par value $.01 per share, of
the Payor (the "Common Stock") to the Payee. The Initial Warrants shall be
exercisable in accordance with the terms and conditions of that certain Warrant
Agreement, of even date herewith, between the Payor and the Payees (the "Warrant
Agreement"). If the Payor elects to pay any of the Interest Amount in PIK
Debentures, the Payor will issue additional warrants (the "Additional Warrants")
as more fully set forth in the Warrant Agreement. Notwithstanding anything to
the contrary set forth herein no Additional Warrants shall be issued with
respect to any PIK Debentures issued prior to February 1, 2004; provided that,
to the extent that any Debentures remain outstanding on such date, the Payor
shall issue Additional Warrants to purchase one (1) share of Common Stock for
each $10.00 aggregate principal amount of PIK Debentures actually issued on, or
prior to, February 1, 2004, and, thereafter, shall issue Additional Warrants in
respect of all PIK Debentures in accordance with the terms thereof. The Initial
Warrants and this Debenture are not attached and may be separately assigned. Any
PIK Debentures and Additional Warrants to be issued also shall not be attached
and may be separately assigned.
SECTION 3. PREPAYMENT.
3.1 Prepayment at the Option of the Payor.
(a) Prepayment in Full. The principal amount of this Debenture,
together with the accrued and unpaid interest thereon, may be prepaid in
whole, without premium, at the option of the Payor at any time.
(b) Partial Prepayment. At the Payor's option, the Payor may make one
(and only one) partial prepayment of at least 50% of the principal amount
of this Debenture, without premium, together with the accrued and unpaid
interest thereon, at any time.
3.2 Mandatory Prepayment. Unless agreed to in writing by the Payee, the
Payor shall be required to prepay all Indebtedness:
(i) upon a Change of Control. The Payor shall provide the Payee
with written notice ten (10) business days prior to a Change of Control.
For purposes of this Section 3.2 only, "Change of Control" means any event
or series of events that results in (A) any Person or entity (an "Acquiring
Person") other than (x) one or more members of the Control Group, and (y)
the Payees and their Affiliates, obtaining at least 35% of the Payor's
Common Stock (calculated on a fully-diluted basis), provided, that the
acquisition by an Acquiring Person of more than 35% of the Payor's Common
Stock shall not be a Change of Control so long as the Control Group and the
Payees jointly hold more of the Payor's Common Stock (calculated on a
fully-diluted basis) than the Acquiring Person; (B) the merger,
consolidation, reorganization, recapitalization, dissolution or liquidation
of the Payor as a result of which the stockholders of the Payor immediately
prior to
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giving effect to such transaction do not own more than 50% or more of the
securities of the Payor ordinarily entitled to vote for the election of
Directors, immediately after giving effect to such transactions; (C) any
sale, lease, exchange or other transfer of all, or substantially all, of
the assets of the Payor and its Subsidiaries taken as a whole; or (D) the
adoption of a plan leading to the liquidation or dissolution of the Payor.
"Person" means any individual, partnership, corporation, limited liability
company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity. "Control Group" shall include Xxxx Xxxxxxxx, DB
Capital Investors, L.P., Sandler Capital Partners V, L.P., Sandler Internet
Partners, L.P. and Sandler Co-Investment Partners, L.P. and their
Affiliates; and
(ii) pursuant to Section 4 hereof.
SECTION 4. EVENTS OF DEFAULT.
4.1 Definition. In each case of the happening of the following events (each
of which is an "Event of Default" or, if the giving of notice or the lapse of
time or both is required, then, prior to such notice or lapse of time, a
"Default"),
(a) (i) if a default occurs in the due observance or performance of
any covenant or agreement of the Payor to be observed or performed pursuant
to Section 6.1, Section 6.2, Section 6.4, Section 6.6, or Section 6.7 of
the Purchase Agreement and such default shall continue for more than
fifteen (15) days after notice thereof from Payee; or (ii) if any default
occurs in the due observance or performance of any covenant or agreement of
the Payor to be observed or performed pursuant to Section 5.7, Section 6.3
or Section 6.5 of the Purchase Agreement;
(b) if a default occurs in the due observance or performance of any
covenant or agreement of the Payor to be observed or performed pursuant to
the terms of this Debenture or any of the Financing Documents (other than
those set forth in Section 4.1(a) above) and such default shall continue
for more than forty-five (45) days after notice thereof from the Payee;
(c) if a default occurs in the payment of any principal or interest
under this Debenture and such default shall continue for more than ten (10)
business days from the date such payment is due;
(d) if any representation or warranty of the Payor in this Debenture,
the Purchase Agreement or that certain Escrow Agreement of even date
herewith, by and among the Payor, the Payee and the Escrow Agreement named
therein shall prove to have been false in any material respects upon the
Closing Date or if such representation or warranty is made as of a specific
date, as of such date;
(e) if any representation or warranty of any Subsidiary of the Payor
in any Guaranty shall prove to have been false in any material respects
upon the Closing Date;
(f) the lenders under any senior credit facility accelerate the
payment of principal or interest under such senior credit facility;
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(g) if the Payor shall (1) discontinue its business, (2) apply for or
consent to the appointment of a receiver, trustee, custodian or liquidator
of it or any of its property, (3) admit in writing its inability to pay its
debts as they mature, (4) make a general assignment for the benefit of
creditors, or (5) file a voluntary petition in bankruptcy, or a petition or
an answer seeking reorganization or an arrangement with creditors, or to
take advantage of any bankruptcy, reorganization, insolvency, readjustment
of debt, dissolution or liquidation laws, or an answer admitting the
material allegations of a petition filed against it in any proceeding under
any such law;
(h) there shall be filed against the Payor an involuntary petition
seeking reorganization of the Payor or the appointment of a receiver,
trustee, custodian or liquidator of the Payor or a substantial part of its
assets, or an involuntary petition under any bankruptcy, reorganization or
insolvency law of any jurisdiction, whether now or hereafter in effect;
(i) if final judgment(s) for the payment of money in excess of an
aggregate amount of $750,000 shall be rendered against the Payor and shall
remain undischarged for a period of 30 consecutive days during which such
judgment and any levy or execution thereof shall not have been effectively
stayed or vacated; and
(j) any violation of ERISA that could reasonably be expected to result
in liability to the Payor in excess of $250,000. "ERISA" shall mean the
Employee Retirement Income Security Act of 1974, as amended, and all
regulations and rules issued thereunder, or any successor law.
then, upon the occurrence of each and every such Event of Default (other than an
Event of Default specified in Sections 4.1(f) or (g)) and at any time thereafter
during the continuance of such Event of Default, the holders of at least a
majority in the aggregate principal amount of the outstanding Debentures
(including, without limitation, PIK Debentures) may, by written notice to the
Payor declare the principal and accrued and unpaid interest on all Debentures to
be immediately due and payable. If an Event of Default specified in Sections
4.1(f) or (g) occurs, the principal and accrued and unpaid interest on this
Debenture and all other Debentures (including, without limitation PIK
Debentures), shall ipso facto become due and payable without any declaration or
other act on the part of the holders thereof. The holders of at least a majority
in aggregate principal amount of the outstanding Debentures (including, without
limitation, PIK Debentures) may, by notice to the Company rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereto. ("Financing Documents" means the
Purchase Agreement, the Registration Rights Agreement, the Warrant Agreement,
the Stockholders' Agreement, the Escrow Agreement, the Management Rights
Agreement, the Guaranty Agreement, and each document, certificate or instrument
delivered in connection).
4.2 Failure to Obtain Stockholder Consent. In addition to any other remedy
available to the Payee hereunder (including acceleration of this Debenture), if
the Company does not obtain the Required Stockholder Approval (as defined in the
Purchase Agreement) before the
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earlier to occur of (i) the occurrence of an Event of Default or (ii) the date
of the Company's next annual meeting of its stockholders, the Payor promises to
pay a cash payment equal to seventeen percent (17%) of the Initial Amount per
annum from such date until the occurrence of the Required Stockholder Approval.
4.3 Remedies on Default, Etc. In case any one or more Events of Default
shall occur and be continuing and acceleration of this Debenture shall have
occurred, the Payee may, among other things, proceed to protect and enforce its
rights by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained herein or in the
Purchase Agreement, or for an injunction against a violation of any of the terms
hereof or thereof or in and of the exercise of any power granted hereby or
thereby or by law. No right conferred upon the Payee hereby or by the Purchase
Agreement shall be exclusive of any other right referred to herein or therein or
now or hereafter available at law, in equity, by statute or otherwise. 4.4
Waiver of Past Defaults. The holders of a majority in the aggregate principal
amount of the outstanding Debentures (including, without limitation, PIK
Debentures) may waive an existing Event of Default and its consequences. When a
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
4.5 Control by Majority. The holders of a majority in the aggregate
principal amount of the outstanding Debentures (including, without limitation,
PIK Debentures) may direct the time, method and place of conducting any
proceeding for any remedy available to the holders of such Debenture.
SECTION 5. SUBORDINATION.
5.1 Agreement to Subordinate. The Payor agrees, and each holder of
Debentures by accepting a Debenture agrees, that the Indebtedness evidenced by
the Debentures is subordinated in right of payment, to the extent and in the
manner provided in this Section 5, to the prior payment in full of all Senior
Indebtedness of the Payor and that the subordination is for the benefit of and
enforceable by the holders of such Senior Indebtedness. The Debentures shall in
all respects rank pari passu with all other Senior Subordinated Indebtedness of
the Payor and only indebtedness of the Payor that is Senior Indebtedness of the
Company shall rank senior to the Debentures in accordance with the provisions
set forth herein.
5.2 Liquidation, Dissolution, Bankruptcy. Upon any payment or distribution
of t he assets of the Payor to creditors upon a total or partial liquidation or
a total or partial dissolution of the Payor or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Payor or its
property:
(a) holders of Senior Indebtedness of the Payor shall be entitled to
receive payment in full of such Senior Indebtedness before holders of
Debentures shall be entitled to receive any payment of principal or
interest on the Debentures; and
(b) until the Senior Indebtedness of the Payor is paid in full, any
payment or distribution to which holders of Debentures would be entitled
but for this Section 5 shall
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be made to holders of such Senior Indebtedness as their interests may
appear, except that holders of Debentures may receive shares of stock and
any debt securities that are subordinated to such Senior Indebtedness to at
least the same extent as the Debentures.
5.3 Default on Senior Indebtedness. The Payor may not pay the principal of,
premium (if any) or interest on the Debentures and may not otherwise repurchase,
redeem or otherwise retire any Debentures (collectively, "pay the Debentures")
if (a) any Senior Indebtedness of the Payor is not paid when due or (b) any
other default on such Senior Indebtedness occurs and the maturity of such Senior
Indebtedness is accelerated in accordance with its terms unless, in either case,
(i) the default has been cured or waived and any such acceleration has been
rescinded or (ii) such Senior Indebtedness has been paid in full: provided,
however, that the Payor may pay the Debentures without regard to the foregoing
if the Payor receives written notice approving such payment from the
Representative (as such term is defined in Section 5.12 below) of such Senior
Indebtedness with respect to which either of the events set forth in clause (a)
or (b) of this sentence has occurred and is continuing. During the continuance
of any default (other than a default described in clause (a) or (b) of the
preceding sentence) with respect to any Senior Indebtedness of the Payor
pursuant to which the maturity thereof may be accelerated immediately with
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Payor may
not pay the Debenture for a period (a "Payment Blockage Period") commencing upon
the receipt by the Payor of written notice (a "Blockage Notice") of such default
from the Representative of such Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 180 days thereafter (or earlier if
such Payment Blockage Period is terminated (a) by written notice to the Payor
from the Person or Persons who gave such Blockage Notice, (b) by repayment in
full of such Senior Indebtedness or (c) because the default giving rise to such
Blockage Notice is no longer continuing). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section), unless the holders of such
Senior Indebtedness or the Representative of such holders shall have accelerated
the maturity of such Senior Indebtedness, the Payor may resume payments on the
Debentures after the end of such Payment Blockage Period, including any missed
payments. For purposes of this Section, no default or event of default that
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Senior Indebtedness initiating such Payment
Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Payment Blockage Period unless such default or event of default shall
have been cured or waived for a period of not less than 90 consecutive days.
5.4 Acceleration of Payment of Debentures. If payment of the Debentures is
accelerated because of an Event of Default, the Payor shall promptly notify the
holders of the Senior Indebtedness of the Payor (or their Representative) of the
acceleration. If any Senior Indebtedness of the Payor is outstanding the Payor
may not pay the Debentures until five Business Days after such holders or the
Representative of such Senior Indebtedness receive notice of such acceleration
and, thereafter, may pay the Debentures only if this Section 5 otherwise permits
payment at that time.
5.5 When Distribution Must Be Paid Over. If a distribution is made to
holders of
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Debentures that because of this Section 5 should not have been made to them, the
holders of Debentures who receive the distribution shall hold it in trust for
holders of Senior Indebtedness of the Payor and pay it over to them as their
interests may appear.
5.6 Subrogation. After all Senior Indebtedness of the Payor is paid in full
and until the Debentures are paid in full, holders of Debentures shall be
subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Section 5 to holders of such Senior Indebtedness which otherwise would have been
made to holders of Debentures is not, as between the Payor and holders of
Debentures, a payment by the Payor on such Senior Indebtedness.
5.7 Relative Rights. This Section 5 defines the relative rights of holders
of Debentures and holders of Senior Indebtedness of the Payor. Nothing in this
Section 5 of Debentures shall:
(a) impair, as between the Payor and holders of Debentures, the
obligation of the Payor, which is absolute and unconditional, to pay
principal of (premium, if any) and interest on the Debentures in accordance
with their terms; or
(b) prevent any holder of Debentures from exercising its available
remedies upon an Event of Default, subject to the rights of holders of
Senior Indebtedness of the Payor to receive distributions otherwise payable
to such holder of Debentures.
5.8 Subordination May Not Be Impaired by Payor. No right of any holder of
Senior Indebtedness of the Payor to enforce the subordination of the
indebtedness evidenced by the Debentures shall be impaired by any act or failure
to act by the Payor or by its failure to comply with this Section 5.
5.9 Distribution or Notice to Representative. Whenever a distribution is to
be made or a notice given to holders of Senior Indebtedness of the Payor, the
distribution may be made and the notice given to their Representative (if any).
5.10 Section 5 Not To Prevent Events of Default or Limit Right to
Accelerate. The failure to make a payment pursuant to the Debentures by reason
of any provision in this Section 5 shall not be construed as preventing the
occurrence of an Event of Default. Nothing in this Section 5 shall have any
effect on the right of the holders of Debentures to accelerate the maturity of
the Debentures.
5.11 Reliance by Holders of Senior Indebtedness on Subordination
Provisions. Each holder of a Debenture by accepting such Debenture acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Senior Indebtedness
of the Payor, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Debentures, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of such Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
5.12 Definitions. As used herein, the following terms shall have the
following meanings:
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"Representative" shall mean the trustee, agent or representative (if any)
for any issue of Senior Indebtedness;
"Senior Indebtedness" shall have the meaning set forth in Section 6.2 of
the Purchase Agreement; and
5.13 "Senior Subordinated Indebtedness" shall have the meaning set forth in
Section 6.2 of the Purchase Agreement.
SECTION 6. COVENANTS.
The Payor agrees to comply with and of the covenants set forth in the
Purchase Agreement (including, without limitation, Articles V and VI) and such
covenants are incorporated herein by reference thereto.
SECTION 7. DEFENSES.
The obligations of the Payor under this Debenture shall not be subject to
reduction, limitation, impairment, termination, defense, set-off, counterclaim
or recoupment for any reason.
SECTION 8. EXCHANGE OR REPLACEMENT OF DEBENTURE.
8.1 The Payee may, at its option, in person or by duly authorized attorney,
surrender this Debenture for exchange, at the principal business office of the
Payor, and the Payee will receive in exchange therefor, a new Debenture or
Debentures, as the case may be, in the same principal amount as the unpaid
principal amount of this Debenture and bearing interest at the same annual rate
as this Debenture, such new Debenture, or Debentures, as the case may be, to be
dated as of the date of this Debenture and to be in such principal amount as
remains unpaid and payable to such person or persons, or order, as the Payees
may designate in writing.
8.2 Upon receipt by the Payor of evidence satisfactory to it of the loss,
theft, destruction, or mutilation of this Debenture, and (in case of loss, theft
or destruction) of an indemnity reasonably satisfactory to it, and upon
surrender and cancellation of this Debenture, if mutilated, the Payor will
deliver a new Debenture of like tenor in lieu of this Debenture. Any Debenture
delivered in accordance with the provisions of this Section 8 shall be dated as
of the date of this Debenture.
SECTION 9. EXTENSION OF MATURITY.
Should the principal of or interest on this Debenture become due and
payable on other than a Business Day, the maturity date thereof shall be
extended to the next succeeding Business Day, and, in the case of principal,
interest shall be payable thereon at the rate per annum herein specified during
such extension.
SECTION 10. ATTORNEYS' AND COLLECTION FEES.
Should any obligation of Payor under this Debenture (including without
limitation, the Indebtedness or any part thereof, evidenced by this Debenture
and interest or any part thereof) be
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collected at law or in equity or in bankruptcy, receivership or other court
proceedings, or this Debenture be placed in the hands of attorneys for
collection, the Payor agrees to pay, in addition to principal and interest due
and payable hereon, all reasonable costs of collection, including reasonable
attorneys' fees and expenses, incurred by the Payee in collecting or enforcing
this Debenture.
SECTION 11. WAIVERS.
11.1 The Payor waives presentment, demand for payment, notice of dishonor,
notice of protest and all other notices or demands in connection with the
delivery, acceptance, performance or default of this Debenture.
11.2 No delay by any Payee in exercising any power or right hereunder shall
operate as a waiver of any power or right, nor shall any single or partial
exercise of any power or right preclude other or further exercise thereof, or
the exercise of any other power or right hereunder or otherwise; and no waiver
whatsoever or modification of the terms hereof shall be valid unless set forth
in writing by any Payee and then only to the extent set forth therein.
SECTION 12. AMENDMENTS AND WAIVERS.
No provision of this Debenture may be amended or waived except if such
amendment and waiver is in writing and is signed, in the case of an amendment,
by the Payee, or, in the case of a waiver, by the holders of at least a majority
in the aggregate principal amount of the outstanding Debentures (including,
without limitation, PIK Debentures).
SECTION 13. GOVERNING LAW.
This Debenture is made and delivered in, and shall be governed by and
construed in accordance with the laws of the State of New York (without giving
effect to principles of conflicts of laws).
SECTION 14. NOTICES.
All notices, consents, requests, reports, demands or other communications
hereunder (collectively, "Notices") shall be in writing and may be given
personally, by registered mail, fax or by Federal Express (or other reputable
overnight delivery service):
if to Payee, to it at:
Xxxxxx, Xxxxxxx Strategic Partners Fund, L.P.
c/o Camden Partners, Inc.
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Tel: 000.000.0000
Fax: 000.000.0000
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with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx, Esq.
Tel: 000.000.0000
Fax: 000.000.0000
if to Infocrossing, Inc., to it at:
0 Xxxxxxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Tel: 000.000.0000
Fax: 000.000.0000
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: X. Xxxx Xxxxxxxxx, Esq.
Telephone: 000.000.0000
Fax: 000.000.0000
or to such other address or such other person as the addressee party shall have
last designated by notice to the other party. All Notices shall be deemed to
have been given (i) when delivered personally, (ii) three (3) days after being
sent by registered mail with proper postage prepaid, (iii) upon transmission by
fax and receipt of confirmation of such transmission by the sender's fax
machine, or (iv) one day after being sent by Federal Express (or other reputable
overnight delivery service) with proper postage prepaid.
SECTION 15. SEVERABILITY.
If any provision of this Debenture is held in any jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Debenture or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, such
provision shall automatically be amended to the extent (but only to the extent)
necessary to make it not invalid, prohibited or unenforceable in such
jurisdiction, without invalidating the remaining provisions of this Debenture or
amending or affecting the validity or enforceability of such provision in any
other jurisdiction.
-11-
SECTION 16. ASSIGNMENT.
Payor may not assign its rights or obligations hereunder to any Person,
without the prior written consent of Payee, such consent shall not be
unreasonably withheld. Payee may assign any of its rights and obligations
hereunder to any one of its Affiliates. "Affiliate" means, with respect to (i)
the Payor, any other Person directly or indirectly controlling, controlled by,
or under direct or indirect common control with the Payor; and (ii) the Payees,
any current or former members of or any general or limited partners or retired
partners of any of the Payees, or any Person or entity that directly or
indirectly, through one or more intermediaries, controls, with the general
partner of the Payees, the Payees. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
SECTION 17. NO IMPAIRMENT.
The Payor will not, by amendment of its Certificate of Incorporation or
through any reorganization, transfer of assets, consolidation, merger,
dissolution, or any other similar voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Debenture, but will at all
times in good faith use its reasonable best efforts to assist in the carrying
out of all such terms and in the taking of all such actions as may be necessary
or appropriate in order to protect the rights of the Payor against impairment
due to such event. Without limiting the generality of the foregoing, the Payor
will not consolidate with or merge into any other person or entity or permit any
such person or entity to consolidate or merge into the Payor, unless such other
person (or, in the case of a merger or consolidation in which the Company is the
surviving entity, the person issuing the securities involved in such merger or
consolidation) shall expressly assume in writing and will be bound by all terms
of this Debenture.
(Signature page follows)
IN WITNESS WHEREOF, the Payor has duly executed and delivered this
Debenture as of the date first written above.
INFOCROSSING, INC.
By:
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Chief Executive Officer and
Chairman of the Board of Directors
